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The opinion of the court was delivered by
Clark, J.:
This is an appeal by Julius Hescher from an order of the district court of Wyandotte county dismissing his appeal from a judgment rendered against him in the police court of Kansas City. From the record filed in this court it appears that Hescher was arrested upon complaint of J. A. Walsh, a police officer, charged with a violation of section 1 of ordinance No. 775 of the said city, by keeping a tippling shop in said city, at No. 426 on Minnesota avenue; that said cause was duly entered upon the docket of the police judge under the caption, “ The City of Kansas City v. Julius Hescher, No. 9558” ; that'on September 3, 1895, the defendant waived arraignment and pleaded not guilty; that thereafter, and on said day, a trial was had, at which the said police officer was sworn and testified on behalf of the plaintiff; that the defendant offered no evidence ; th'at Hescher was found guilty as charged and fined $50, and offered to stand committed to the jail of said city . until said fine should be paid ; that on September 10 thereafter he tendered a recognizance, which was approved and filed by the court, and the defendant was discharged from custody, the following being a copy of said recognizance :
“ The City of Kansas City, plaintiff, v. Julius Hescher, defendant. No. 9558. Judgment before P. K. Leland, police judge of the city of Kansas City Kan.
“Whereas, judgment in the above-entitled cause was on the 3d day of September, 1895, rendered by the above-named police judge against the said-for $50 fine and costs of suit, taxed at no dollars; and whereas, said Julius Hescher has appealed from said «judgment to the district court of Wyandotte county, Kansas : Now, therefore, we, Julius Hescher, as principal, and --, as surety, jointly and severally acknowledge ourselves to owe and be indebted to the city of Kansas City, Kan., in the sum of $100, to be levied of our goods, chattels, and tenements, if default be made in the conditions following, to wit: The condition of , this recognizance is such, that if the above-named Julius Hescher shall personally be and appear before the district court of Wyandotte county, Kansas, on the first day of the term thereof next to be holden in and for said county, to answer the complaint in said cause against him, if the case be determined against him, and abide the judgment of the court and not depart the court without leave, then this recognizance shall be void ; otherwise, shall be and remain in full force and virtue. Witness our hands, this 10th day of September, 1895. Julius Hescher.
J. F. Erb.
“Taken, and the surety approved by me, this 10th day of September, 1895. — P. K. Leland, Police Judge.”
The record further shows that the recognizance and a transcript of the proceedings had in said cause before the said court were by the police judge duly certified to the district court of Wyandotte county, and that on the 30th day of November, 1895, the city, by its attorneys, filed a motion to dismiss said appeal, on the ground that the district coui’t had no jurisdiction either of the cause or of the parties thereto, for the want of a valid recognizance, the contention being that the instrument filed as a recognizance was void because, as claimed : (1) It does not state or designate the offense for which the principal therein is required to appear for trial; (2) the city of Kansas City, Kansas, instead of the state of Kansas, is therein named as recognizee ; (3) neither in form nor in substance does it meet the requirements of the law; (4) the condition therein that the defendant should pay all such fine and costs as should be imposed on him, if the case should be determined against him, is contrary to the law and constitution of this state. The Court, over the objection of the defendant, sustained the motion and dismissed the appeal, to which ruling an exception was duly, saved.
In the General Statutes of 1889 the following provisions are found:
Paragraph 612: “In all cases before the police judge an appeal maybe taken by the defendant to the district court in and for the county in which said city is situated; but no appeal shall be allowed unless such defendant shall within 10 days after such conviction enter into recognizance, with -sufficient security, to be approved by the judge, conditioned for his appearance at the district court of the county at the next term thereof to answer the complaint against him, and for the payment of the fine and costs of appeal if it should be determined against the appellant.”
Par. 5201: “All recognizances required or authorized to be taken in any criminal proceeding, or in any proceeding of a similar nature, shall be in writing, and -shall be subscribed by the parties to be bound thereby.”
Par. 5219 (Criminal Code, § 154): “No action upon a recognizance shall be defeated, nor shall judgment thereon be arrested, on account of any defect of form, omission of recital, condition of undertaking therein, neglect of the clerk or magistrate to note or record the default of any principal or surety at the term or time when such default shall happen, or of any other irregularity, so that it be made to appear that the defendant was legally in custody, charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.”
Counsel for the city insist that at common law, in order to be of any validity, a recogizance must state the offense for which the defendant is required to answer, and that notwithstanding the provisions of the statute above quoted that rule is in force in this state. In McLaughlin v. The State, 10 Kan. 581, it was held that the strict rule of the common law with reference to recognizances is changed by our statute, and that it is now sufficient if from the whole record it be made to appear that the defendant is duly in custody charged with a public offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant shoxild appear before a court for trial for such offense. In Jennings v. The State, 13 Kan. at page 91, Brewer, J., uses the following language :
“Counsel for plaintiffs in error has been very diligent, and collected numerous authorities, and presented his points with clearness and force, and under 'the old rules which obtained prior to the enactment 'of said section 154.might properly have expected a different decision from this court. But language could hardly be more sweeping and comprehensive than section 154. It has at one blow swept away, so. far as this state is concerned, nearly the entire accumulation of authorities in the matter of recognizances. It has, as we think, introduced a truer and better rule and one which will tend to promote the interests of justice.”
In Tillson v. The State, 29 Kan. 452, it-was held that a recognizance would not be fatally defective and void merely because of its indefiniteness in failing to show that it was given in a criminal case, wherein the defendant was charged with the commission of a public offense, “and especially so where the previous portions of the record show definitely, explicitly and in detail the nature and character of the offense with which the accused was charged.” In that case, Valentine, J., speaking for the court, says:
“The point that the recognizance does not show that Masterson, the accused, was charged with the commission of any offense, we also think is untenable. . The recognizance is an obligation of record, and wherever it is obscure or indefinite, other portions of the record may be examined for the purpose of making its meaning clear and explicit. The plaintiff in error founds his argument upon this point principally, if'not entirely, upon the language of section 154 of the criminal code, which says that no recognizance shall be held to be insufficient if it be made to appear, among other things, that the defendant was ‘in custody, charged with a public offense, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate for examination or trial for such offense.’ The words ‘such offense,’ above quoted, simply mean ‘public offense,’ and refer back to these words as previously used ; and the section does not mean that the offense shall be set out in detail, but simply that a statement shall be made or words inserted showing that the defendant was charged with the commission of some public offense. We think the recognizance in the present case shows this, although it shows the same only indefinitely, obscurely, and inferentially. The recognizance is entitled ‘The State of Kansas, plaintiff, v. Philip Masterson, defendant.’ It shows that the case was pending before George M. Everline, a justice of the peace of Monroe township, Anderson county, Kansas ; and it shows that the plaintiff in error bound himself to the state of Kansas for the appearance of Masterson before the said justice for an examination in the case. Now can the above description apply to any case except a criminal case? Can it apply to any case except a case where a public offense has been intended to be charged? We would think not. . We do not think that the recognizance is so fatally defective as to be utterly null and void.”
In this case, while the recognizance fails to designate the particular offense charged against Hescher, it shows that on September 3, 1895, in an action pending in the police court of Kansas City, bearing the number 9558, wherein said city was plaintiff and Hescher was defendant, the latter was fined $50, and that he had appealed from that judgment to the district court, and the transcript of the proceedings in the police court shows the particular offense charged against him. We think, under the rule laid down in Tillson v. The State, supra, the objection to the recognizance on the ground that it fails to state the offense charged against the defendant is without merit.
It is next contended that, as the section of the statute which authorizes an appeal from the judgment of the police court provides that in order to perfect such appeal the defendant should enter into a recognizance, conditioned as therein prescribed, but fails to designate in whose favor the same should be exe cuted, under paragraph 617 the same rules of procedure obtain as in perfecting an appeal from a judgment rendered .by a justice of the peace in a criminal case, which, under paragraph 5454, require the recognizance to be executed to the state of Kansas, and that, as the recognizance in this case was executed in favor of the city of Kansas City, it is void. While the two sections of the statutes last above mentioned would seem to indicate that. the recognizance should run to the state, yet, as the law provides that, upon a breach of a recognizance given in an action for a violation of a city ordinance, the same be deemed and declared forfeited, and the city attorney forthwith cause the same to be prosecuted in the name of the city, as plaintiff, and that all moneys recovered in such action be paid over to the city treasurer to the credit of the general fund of the city (paragraph 621), the city is the real party in interest, and is in fact the only party aggrieved by the misconduct with which the defendant is charged. The defect in the recognizance was at most but one of form, which, under paragragh 5219 (Crim. Code, §154), would not render it void. It is certainly a good common-law obligation, which could be enforced against the makers thereof should the judgment of the police court be affirmed. . (Johnson v. Weatherwax, 9 Kan. 75 ; Lewis v. Stout, 22 Wis. 234; Garretson v. Reeder, 23 Iowa, 21.) Eor the reasons above given, we do not think the order dismissing the appeal could be sustained on the ground that the recognizance was executed in favor of the city instead of the state.
In answer to the third objection, that the obligation ‘ ‘ is not in form or substance as required by law, ’ ’ we need but to quote from Valentine, J., in Ingram v. The State, 10 Kan. 635 :
“It is true that that portion of the instrumenf which, contains the obligation is in the form of a penal bond, and not in the form of a recognizance. It is true that that portion of the instrument seems to create a new debt or obligation, as a penal bond does, and is not the acknowledgment of a preexisting debt, as a recognizance is; but this is such an immaterial difference that the instrument cannot be declared void under our statutes merely for that reason. (Crim. Code, § 154.)"
It is finally insisted that the condition in the recognizance that the defendant should "pay all such fines and costs as shall or may be imposed on him, if the case be determined against him," violates section 5 of the bill of rights, makes the recognizance more onerous upon the defendant than is required by the law, and renders it void; and, in support of this contention, the .following among other authorities are cited by counsel: Roberts v. The State, 34 Kan. 151; Durein v. The State, 38 id. 485 ; and In re Jahn, Petitioner, 55 id. 694. We do not think that any of those decisions has any application to the facts in this case. In the first case cited, Roberts was charged with the commission of a criminal offense. The court fixed the amount of the recognizance to be given by him at $1,200. The sheriff required and accepted from him a bond in the sum of $1,250. In an action upon the bond, it was held that the court alone had authority to fix the amount of the bail, that the sheriff was bound to pursue his authority strictly, and that, when he departed from it, and required bail in excess of the order of the court, he acted without authority, and the recognizance was as void as if he had no authority whatever to require bail.
In the Durein case, the principal defendant pleaded guilty to the sale of intoxicating liquor in violation >f law; on February 23, 1884, he was sentenced to pay a fine, and, in addition thereto, was by the couri required to give security for his good behavior for the term of two years, in the sum of $500, and that he stand committed to the county jail until such security should be given. (Crim. Code, §242.) On June 10, thereafter, to avoid being imprisoned, he gave a bond with approved sureties, conditioned as required by the order of the court, and which bond also contained a provision that he would not ‘‘ during said term of two years, in person or in connection with or by means or through the agency of others, or any one else, either directly or indirectly, or in any form or manner, barter or sell intoxicating liquor of any kind.” He was afterward convicted of the unlawful sale of intoxicating liquor in September, 1894, and soon thereafter an action was commenced to recover the amount of the bond, and it was held that the sheriff was not authorized to require him to give bond containing the superadded condition ; that notwithstanding Durein might, within two years, upon compliance with certain prescribed conditions, be authorized by law to sell intoxicating liquor, yet a lawful sale made by him within that period would constitute a breach of the condition of the bond which he was required to give in order to avoid being committed to the county jail; that the bond was not voluntarily executed; that the superadded condition rendered it void, and no recovery could be had thereon.
The Jahn base was an original proceeding in habeas corpus. The petitioner was charged in the police court of a city of the third class with a violation of an ordinance of said city, which declared it unlawful for any person other than a druggist having a permit to sell or barter intoxicating liquors. While no provision is made by statute for a jury trial in prosecutions ia the police court for violations of city ordinances, yet Jahn demanded such a trial, which was refused by .the court. He was found guilty and adjudged to pay fines aggregating $200, in addition to the costs, and was committed to jail until the fines and costs should be paid. The statute authorizing an appeal from such a judgment and prescribing the conditions of the recognizance to be given' by the appellant (¶1010) is almost identical with paragraph 612, under which Hescher perfected this appeal. Jahn claimed .that, under section 5 of the bill of rights, he was entitled to a jury trial, and as under the statutes the only way in which he could obtain such a trial •would be by appealing to the district court from the judgment rendered against him, he was entitled to such appeal, clogged by no unreasonable restrictions ; that under said paragraph 1010 he was denied an appeal to the district court, and consequently a jury trial, unless he would enter into a recognizance with good and sufficient security to be approved by the police judge, conditioned for the payment of such fines and costs as should be imposed on him, should the case be determined against him; that that requirement of the statute was unreasonable and violated the spirit of the bill of rights, and that he was unlawfully restrained of his liberty. The supreme court sustained him in this contention, and held that the recognizance should provide for nothing more than the personal appearance of the appellant before the district court of the county on the first day of the next term thereof, and ordered that upon the execution of such a recognizance he should be discharged from imprisonment.
It will seem that the questions which were presented for solution in the cases referred to called for the ap plication of legal principles which do not arise in the case now before the court. Each of the first two cases was an action to recover upon a written obligation which had been unlawfully required by the officer, and involuntarily executed by the defendant as the alternative of being committed to jail; and, in the Jahn case the complaint made by the petitioner was that he had been denied the constitutional right of a trial by jury, except upon compliance with certain requirements of the statute which .he claimed and which the court there held to be unreasonable and therefore inoperative. In this case, the city, while claiming that the offense charged against the defendant is criminal in its nature, and that the accused is entitled to a jury trial (which he can secure if it should be held that an appeal has in fact been perfected), is seeking to have the appeal dismissed, which, if successful, would operate to make final the .judgment which was rendered by the police judge of the city upon its own finding, unaided .by the. verdict of the jury, and one of the grounds upon which that motion is based is that the condition of the recognizance, that the defendant should pay such fines and costs as might be imposed upon him if the case should be determined against him, is contrary to and in violation of the constitution of the state.
In the consideration of the question thus presented, it is important that we do not lose sight of the fact that there is no constitutional requirement that one charged with a criminal offense shall be tried by a jury. And it must also be borne in mind that all that is contemplated by that portion of the organic law which relates to the subject under consideration is that the- accused shall have the right to have the question as to his guilt passed upon by a jury, and that in the exercise of that right he shall be hampered by no unreasonable restrictions. There is no constitutional restriction upon legislation with reference to the terms upon which a person convicted of a criminal offense may appeal to a higher court. There is nothing in the record to indicate that ITescher either demanded or desired a jury trial in the police court. For aught that appears therein, he may have preferred that the police judge hear the evidence and pass upon the question as to his guilt, unaided by a jury. In fact, he may even have anticipated a finding of guilty and the imposition of a fine, and, relying upon the right of appeal given him by paragraph 612 of the statute, he may have thought it to his interest to make no defense in the police court, suffer a judgment to be rendered against him, and then appeal therefrom by giving a recognizance conditioned as prescribed, by that paragraph of the statute. If such were the case', and the sureties had knowledge thereof, they certainly could not be heard to say that the recognizance was void because it contained a stipulation for the payment of the judgment. The record fails to show that the defendant interposed any objection to being tried in the police court without a jury, or that he objected to giving a recognizance conditioned for the payment of any judgment which might be rendered against him. Upon being convicted and sentenced he tendered this recognizance, the amount and conditions of which are in strict accordance with the requirements of the statute authorizing an appeal from the judgment rendered against him. It was taken and approved by the police judge, and, with a transcript of the proceedings, was duly certified to the district court, and the defendant was discharged from custody. He did not complain in the district court tliat ill order to secure a jury trial he was required to give security for the payment of the judgment, but, on the contrary, he resisted the motion to dismiss his appeal, and he is here contending that the court erred in sustaining that motion.
If the recognizance was voluntarily executed, and the parties signing the same were at the time cognizant of all the facts connected with the taking of the appeal, the instrument certainly should not be held to be void. The judgment was in favor of the city, and, when collected, the money would be paid into the city treasury to the credit of the general fund of the city. A part of the judgment was that the defendant stand committed to the city jail until the fine should be paid, although the mayor of the city had the power, by and with the consent of the council, to remit the fine. If the fine was neither paid nor remitted, the defendant could secure his discharge from custody only by appealing from the judgment, and an appeal could not be taken except by giving a recognizance. To sustain the ruling of the trial court would be to hold that the presumption is that the recognizance conditioned for the payment of the judgment was not voluntarily executed, and from which presumption the irresistible conclusion would follow, that the city required the execution of a recognizance containing such condition as the only alternative by which Hescher should secure his discharge from custody and a trial by jury in the district court. We do not believe such to be the law. But even were it the law, the city could not be heard to complain that the defendant, in order to secure an appeal to the district court,'had, in compliance with the requirements of the city, given a recognizance containing conditions more onerous than the law requires of him. The recognizance is not void upon its face, nor is there anything in the record from which an inference could fairly be drawn that it was not voluntarily executed.
The court erred in sustaining the motion to dismiss the appeal, and the judgment will therefore be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
The court made no separate findings of fact, and the question for us to consider is, whether Smith established his title to the lot and his right to recover the same. He introduced evidence endeavoring to prove his title by three different conveyances and transactions, and it must be conceded that, if he has established a legal title in himself through any one of these three transactions, he is entitled to recover. The conveyance by which Smith first attempted to obtain a title to the lot was the deed from the Osawatomie Town Company to him, dated and acknowl edged March. 26, 1883, and filed for record February 28, 1887. At the time this deed was executed, the Osawatomie Town Company had conveyed the lot to Gilmore, and H. B. Smith,.as notary public, took the acknowledgment of H. H. • Williams, president, to the deed. Gilmore testified that he only got a bond for a deed from Mr. Williams, but that H. B. Smith made out the deed and gave it to him, so that it cannot be said that Smith had no notice of the deed from the town company to Gilmore. Further than this, Smith, as notary public, took the acknowledgment of H. H. Williams to the deed executed March 26, 1883, in which said Smith was the grantee. “An acknowledgment of a deed, being a guasi-judicial proceeding, must be taken before some officer not interested in the land.” (Wills v. Wood, 28 Kan. 400.) Brewer, J., in delivering the opinion of the court in the above case, says that a person, if interested in the land, is incompetent to take the acknowledgment of a deed in relation thereto, “on the principle that an acknowledgment is a quasi-j udicial proceeding, and that no man can sit as a judge in a case in which he is interested.” We must therefore hold that Smith did not establish his title and right of possession to the lot by reason of the deed from the town company to him executed in 1883.
The next attempt of Smith to procure the title to said lot was by virtue of the tax deed dated Décember 18, 1885, and recorded January 13, 1886. It must be conceded that, under our statute of limitations, Smith must have brought his action to recover under said tax deed within two years from the time the action might first have been brought. Smith C( u I have brought his action to recover from Greenlee upon the day that Greenlee first took possession of the lot. There is no question that Greenlee had possession of the lot. The petition recites that he had such possession, and the allegation of the petition is admitted in the answer. The only evidence introduced upon tlie trial which fixes the date when such possession commenced was that Greenlee took possession of the lot and fenced it on the 25th day of March, 1887. There is some evidence tending to show that the possession might have been a few days later than this, but all the evidence established the fact that it was either on said day or very shortly thereafter. Smith testified that a number of months after he purchased the lot from Gilmore he was down in that end of town and saw a wire fence stretched around the lot, and, after making some inquiry, found that Greenlee claimed the lot. This action was commenced on December 9, 1890, which was three years and about eight and a half months after the 25th day of March, 1887,- and was certainly more than two years after Smith might have first commenced an action to recover under the tax deed. Therefore, Smith is not entitled to recover under the tax deed, for the reason that his right of action is barred.
Smith’s next and last attempt to obtain the title to said lot was the transaction between Gilmore and himself on March 26, 1887, when he contracted with Gilmore for the latter’s interest in said lot, and paid him $50, for which Gilmore gave him a receipt. During the conversation, and after the receipt had been given, Smith ascertained that Gilmore had the original deed which he had received from the town company, and that it was unrecorded, when Smith paid him the other $50, upon his making the indorsement mentioned above upon the receipt and also the quitclaim indorsement upon the deed. Upon this last transaction Smith t ikes nothing, by reason of the registry laws, as none of the papers was filed for record. He takes only what interest Gilmore had in the lot on March 26, 1887, at which time Gilmore quitclaimed to the town company and also in his receipt certified : “ I have sold said H. B. Smith our quitclaim interest to said lot 20, block 10, for $100.” At that time, or at least very soon thereafter, Greenlee was in possession of said lot under a claim of title by virtue of the offer of Gilmore contained in the letter and his claim of acceptance thereof. It may be said that the general finding of •the court is,a finding in Smith’s favor upon this transaction. Each side set up a claim to the lot, and the court decided in favor of Smith. We are unable to say whether the finding was predicated upon the tax deed, or the deed of 1883, or the last transaction. The tax deed was barred, and the deed of 1883 was invalid. The court erred in admitting either of them in evidence. For this error a new trial must be granted. We will not attempt to define the rights of the parties under the last transaction, for the reason that no finding was made by the court upon this transaction qxcept the general finding, and the case is not properly briefed upon this question. Upon a retrial of this case with the above incompetent evidence eliminated, the questions involved will be very much simplified.
• 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
Porter, J.:
This is an appeal from a judgment sustaining a demurrer to the plaintiffs’ evidence. The plaintiffs sought to recover $360 for goods, wares and merchandise sold and delivered to the defendant at his special instance and request, according to the terms of an alleged' written contract. The petition set up a copy of the written instrument, which included an order for the shipment of goods to the amount named. The answer admitted signing the order and denied the other material averments of the petition. The follow ing are the only portions of the writing which are pertinent to the issue involved:
“We place the following factory line of rolled gold plate, gold filled, gold front, sterling silver and oxidized finished articles in assorted styles and patterns on our most liberal and beneficial conditions: Belt buckles or pins' from 15c to $2 each, charms and lockets from 15c to $2.50 each, pin sets (three in set) from 15c to $1.25 per set, dress-button sets (three in set) from 16c to $1 per set, single studs 50c each, ditto link sleeve buttons from 15c to $1.25 per pair, emblem pins and buttons 30c to 50c each, lace pins from 16c to $1.50 each, collar buttons from 12c per doz. to $1.44 per doz., scarf pins from 8c to $1.25 each, set and signet rings from 25c to $2.25 each, friendship and baby rings from 15c to 35c each, chased band rings from 35c to 95c each, plain band rings from 50c to $1.05 each, silk' fobs from 90c to $1.50 each, vest chains or metal fobs $1.25 to $3 each, sleeve buttons from 15c to $1.25 per pair, ladies’ long and neck chains from 75c to $2.75 each, bracelets from 85c to $2.25 each, hat pins from 10c to 50c each, delivered f. o. b. transportation companies and amounting to $360, which can be paid one-fourth in two months, one-fourth in four months, one-fourth in six months and one-fourth in eight months, without interest if acceptances are given 10 days from date of invoice, otherwise terms are net cash 15 days or 6 per cent discount 10 days.
“The United Jewelers Manufacturing Company is hereby authorized at their option to reduce but not increase the amount of this order, and if thus reduced the-same to stand as if originally so given.
“United Jewelers Manufacturing Company factory:
“Please ship at your earliest convenience the goods listed in this order, and no others, all of which I fully understand and approve.
A. A. Weisner, owner of store.”
On the trial the plaintiffs offered in evidence the original instrument and rested.
There are two sufficient reasons why the demurrer was rightly sustained. First, if the instrument had constituted a binding contract the plaintiffs, in order to recover, would have been obliged to offer some proof to show that the goods were delivered in accordance with the contract. There was no offer of any evidence except the alleged contract itself. Until delivery the seller can maintain no action for the purchase price, except in those cases where the contract contemplates that he shall retain possession. (24 A. & E. Encycl. of L. 1068.)
Second, the. written instrument is not sufficiently definite and certain in respect to its subject matter and terms to constitute a contract binding upon either party. It can not be determined from the writing itself either the number, price or quality of any of the articles specified which the plaintiffs were bound to ship or which the defendant agreed to purchase. The order might have been filled by shipping but one kind of jewelry, or any number of each class or pattern of jewelry until the total amount of the purchase price figured $360. The offer of the plaintiffs is so uncertain and indefinite in its terms that no court can ascertain its meaning or fix the exact liability of the parties, and therefore its acceptance can not result in an enforceable contract. A case directly in point, involving an order for merchandise, worded in almost identical terms, is Price v. Atkinson, 117 Mo. App. 52, where the trial court sustained a demurrer to the evidence and the .judgment was affirmed because the written instrument was held to be too indefinite and uncertain in .its subject matter and terms to constitute a contract binding upon either party. In the opinion it was said:
“Defendant ordered three hundred and eighty dollars’ worth of jewelry from plaintiffs’ stock, to be made up of the articles'named in the order, but no definite quality, price or number of any one or more of these articles is mentioned. The first item, ‘buckles or pins,’ might be filled with all buckles and no pins, or with all pins and no buckles, or with both buckles and pins, at fifteen, twenty-five, thirty, fifty, seventy-five cents, one or two dollars per dozen, and it might be filled bv one dozen of either, or both buckles and pins, or with one hundred dozen of either or both. So with every other article named in the order, quantity, quality nor price are anywhere mentioned, therefore, the subject matter of the contract is too indefinite to be capable of identification.” (p. 57.)
To the same effect are Railway Co. v. Bagley, 60 Kan. 424, Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77, City of Ft. Scott v. W. G. Eads Brokerage Co., 117 Fed. 51, and Wheaton v. Cadillac Automobile Co., 143 Mich. 21.
The judgment is affirmed. | [
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Per Curiam:
The demurrer to the petition was properly sustained for the following reasons: The contract is plain and unambiguous, and in the course of nature came to naught. No new contract of sale was pleaded. The plaintiff could not insist on a waiver because she did not alter her situation or lose any rights on account of what the defendant said and did. The defendant’s conduct was not exhibited in any matter of performance, and so could not amount to a practical construction, even if the contract had been equivocal, which it was not.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An information was filed against the Glenn Lumber Company, a corporation, charging it in ten separate counts with violating the antitrust laws. The defendant filed a motion to quash the first eight, and to require the state to set out in separate counts .the different offenses charged in each of the remaining two. The court sustained both motions and made an order giving the plaintiff thirty days to amend the information, if so desired, and the defendant twenty days in which to plead to such amended information. The state declined to amend, and appeals from the rulings upon the motions.
The defendant challenges the right of the plaintiff to be heard, upon the grounds that the state can not appeal from an order quashing a part of the counts of an information or from the sustaining of a motion for the separate statement of several offenses, and that if such an appeal lies at all it can be brought only after a final judgment for the defendant, which was not formally rendered in this case.'
It has been held in other jurisdictions that so long as any count of an information is held good the state can not appeal from an order quashing the others. (The State v. Stegman, 90 Mo. 486; The State v. Thompson, 41 Tex. 523.) But under the practice in this state the prosecution of several distinct offenses at the same time by means of an information containing several counts is a mere matter of convenience.' For many purposes the proceeding under each count may be regarded as in effect a separate action. ■ A defendant may procure a reversal as to a part of the counts on which he has been convicted, although the judgment is affirmed as to the rest. (The State v. Guettler, 34 Kan. 582.) We see no reason why, where one count of an information has been quashed, a review of that ruling may not be had, even although the case proceeds to trial upon other counts charging other violations of the law. Where several counts are employed merely as different methods of describing the saíne illegal act the rule may be different.
The statute does not in terms authorize an appeal from an order requiring the state to amend an information by making two or more counts out of matter contained in one. But such an order, when the state refuses compliance, necessarily ends the prosecution and in effect sets aside the information. It is therefore appealable under the statute authorizing an appeal “on quashing or setting aside an . . . information.” (Crim. Code, § 283.)
The full language of the statute is that “appeals to the supreme court may be taken by the state in the following cases: . . . upon a judgment for the de fendant on quashing or setting aside an indictment or information.” (Crim. Code, § 283.) Under a somewhat similar statute, containing, however, other provisions possibly affecting the matter, the supreme court of Missouri held that an order quashing an indictment could not be reviewed on appeal until a final judgment for the defendant had been formally entered. (State v. Fraker, 141 Mo. 638.) We do not regard the omission to make a complete record, showing a technical final disposition of the case, as fatal to the right of review. The order sustaining the motion to quash by its own operation set aside the counts of the information so assailed, and left nothing pending in that respect against the defendant. True, the district court would for some purposes be regarded as retaining jurisdiction so long as an amendment might be contemplated, but when the state declined to amend it elected to treat the proceeding as at an end, and the practical effect was a discharge of the defendant as to the counts involved. The state’s refusal to comply with the order requiring two of the counts to be recast created substantially the same situation with respect to them.
Upon the merits, the principal contention of the defendant is that the allegations of each of the first eight counts are too indefinite to advise it of the nature of the accusation against it. The statute under which they are drawn reads:
“All arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys’ or doctors’ fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of in surance, or which tend to advance or control the rate of interest for the loan or use of money to the borrower, or any other services, are hereby declared to be against public policy, unlawful and void.” (Laws 1889, ch-257, § 1, Gen. Stat. 1909, § 5185.)
“All persons entering into’ any such arrangement, contract, agreement, trust or combination, or who shall after the passage of this act attempt to carry out or act-under such arrangement, contract, agreement, trust or combination . . . shall be guilty of a misdemeanor.” (Laws 1889, ch. 257, § 3, Gen. Stat. 1909, § 5187.)
The first count, which, so far as concerns this question, is like the next seven, charges:
“That on the first day of July, 1909, at the county of Labette, in the state of Kansas, the said defendant, the Glenn Lumber Company, a corporation organized and existing under and by virtue of the laws of the state of Kansas, did then and there wrongfully and unlawfully make and enter into an arrangement, contract, agreement and combination with the Monarch Portland Cement Company, a corporation organized and existing under and by virtue of the laws of the state of Kansas, and others, whose names are to your informant now unknown, a more particular description of which arrangement, contract, agreement and combination your informant is now unable to give, which arrangement,, contract, agreement and combination was made with a view to prevent and which tends to and does prevent full and free competition in the importation, transportation and sale of cement, an article imported into and produced and manufactured and sold in the state of Kansas, and which arrangement, contract, agreement and combination was designed to and tends to and does advance and control the price and cost of cement to the consumer of such cement.”
The state relies upon the familiar rule that in charging a purely statutory offense it is sufficient to employ the language of the statute. Of course, where a term is used which designates a common-law offense the pleader must allege the acts constituting it, but that is not the case here. Another exception, the benefit of which the defendant invokes, has been.thus stated:
“If the statute does not sufficiently set out the facts which constitute the offense so that the defendant may have notice of that with which he i's charged, then a more particular statement of the facts than is contained in the statute becomes necessary.” (10 Encyc. Pl. & Pr, 487.)
(See, also, 22 Cyc. 339 et seq.; 27 Cyc. 909.)
A good illustration of a statute of the general character of that now under consideration to which this exception would obviously apply is that involved in People v. Sheldon et al., 139 N. Y. 251, which made it a misdemeanor to conspire “to commit any act injurious ... to trade or commerce.” (p. 261.) In a prosecution under such a statute it would plainly be insufficient merely to allege that the defendant conspired “to commit an act injurious to commerce.” The federal act of 1890 denouncing monopolies and contracts in restraint of interstate commerce (26 U. S. Stat. at L. p. 209, ch. 647) has been held to belong to the class to which the exception applies. (In re Greene, 52 Fed. 104; United States v. Nelson, 52 Fed. 646; United States v. Patterson, 55 Fed. 605.) The language of that act, however, is extremely general — much more so than that of the Kansas statute. Under statutory provisions quite similar to those here involved the general rule that the information need only charge an offense in the very words of the statute was applied in Commonwealth of Ky. v. Grinstead & Tinsley, 108 Ky. 59, but denied in State v. Witherspoon, 115 Tenn. 138.
The real inquiry in each case must be whether the information sufficiently advises the defendant of the nature of the charge against him, so that he can properly prepare his defense and so that he-is not placed at a disadvantage in the conduct of the trial on his part. If it accomplishes this the spirit of the law is complied with. In the present instance the pleading goes somewhat beyond the bare letter of the statute. The information states the name of one of the other parties to the unlawful agreement, and mentions the specific commodity the cost of which is designed to be affected. What it lacks to make it sufficiently specific, if anything, is a statement of the character of the agreement to which the defendant is alleged to have been a party, or, what is perhaps the same thing, the means by which the control of the price of cement was sought to be accomplished. The omission of such a statement was one of the grounds upon which the Tennessee court held the indictment bad in the case cited. We can not agree, however, that it is necessary for the state to specify the precise nature of the agreement, or do more than to characterize it as one intended and adapted to accomplish the results described in the statute. Such a requirement would go far to render the law ineffective, since it would often be difficult or impossible for the prosecutor to ascertain with certainty the details of the combination complained of. On the other hand, a case could hardly arise under this statute in which an accused person could be seriously hampered in his defense by the omission of an information to describe with exactness the nature of the agreement forming the basis of the charge.
The eighth and ninth counts each contained allegations similar to those already quoted, coupled with further averments evidently framed under the antitrust law of 1897 (Laws 1897, ch. 265, Gen. Stat. 1909, §§ 5142-5152), charging the defendant, among other things, with having entered into an agreement the parties to which bound themselves not to sell cement below a common standard figure. This was the basis of the motion to require a separate statement. The charges evidently referred to the same act, and were therefore properly united in one count, the prosecution being for a misdemeanor. (The State v. Schweiter, 27 Kan. 499; 10 Encyc. Pl. & Pr. 532-534; 22 Cyc. 380.)
A final contention of the defendant is that the act of 1889, under which the first eight counts are drawn, is repealed by implication by the act of 1897 just referred to, on the theory that the later enactment is intended to cover the entire subject matter of the earlier one. A law forbidding combinations to prevent competition in buying and selling live stock, passed in 1891 (Laws 1891, ch. 158, Gen. Stat. 1901, §§ 2439-2441), has been held to have been so superseded, but for the reason that it treated but a single phase of a matter that was covered in every aspect by the law of 1897. (The State v. Wilson, 73 Kan. 343.) The two statutes involved in this proceeding have much in common, but inasmuch as several subjects mentioned in the first are omitted from the second the legislature must be deemed to have intended them to stand together.' A number of actions have been maintained since 1897 upon the statute of 1889. (The State v. Harvester Co., 79 Kan. 371; The State v. Harvester Co., 81 Kan. 610.)
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action in ejectment, brought by the appellee, on March 2, 1908, to recover 160 acres of land in Scott county. The plaintiff simply alleged in her petition that she was the owner of the land, was entitled to the immediate possession .thereof, and that the defendants unlawfully kept her out of possession. The answer of the appellants to this petition was a general denial only. In another paragraph defendant -Danley alleged that he had been the owner of the land and in the actual possession thereof for more than two years before the commencement of the action, that the appellee claimed some interest therein, but such claim had no foundation in law and she had no legal right, claim or interest to the real estate, and prayed for the quieting of his title thereto. The appellee replied by a general denial. A jury was waived and trial was had to the court.
The evidence on the part of the plaintiff was a tax deed to the land in controversy, issued and recorded January 9, 1895, by the county clerk of Scott county, to “Wheeler & Motter, of Buchanan county, Mo.,” for the taxes of the years 1890, 1891 and 1892, under the sale of 1891. The appellants objected to the introduction of the deed for the reason that the deed was void on its face, the grantee not being capable of taking title, and some other objections which need not be considered. The appellee also introduced in evidence a quitclaim deed to the land, wherein W. W. Wheeler and wife and Joshua Motter and wife were the grantors, and W. O. Bourne was grantee; also a chain of conveyances from W. O. Bourne to the appellee. It was admitted that the appellee and her grantors had paid all the taxes on the land since the execution of the tax deed, but the appéllants objected to this evidence as incompetent and immaterial.
After the overruling of a demurrer to the appellee’s evidence on the ground of insufficiency, it was admitted by the appellee that the patent title to the' land was - in Silas Scott Clugston, and that by deed dated February 1, 1906, and recorded February 17, 1906, he conveyed his interest in the land to appellant Danley; also that the records showed a mortgage from Silas Scott Clugston, the then owner of the land, to John D. Knox & Co., which mortgage was assigned to W. B. Lowrance, July 22, 1890, and the assignment recorded November 15, 1902. Much other evidence was offered in regard to the possession of the land by Lowrance through tenants, which we regard as immaterial, as there is na evidence that there was any privity between Lowrance and Danley, and all rights defendant J. W. Scott had to the possession at the time of the beginning of the action were under Danley.
One question in the case is the validity of the tax deed issued to “Wheeler & Motter” — whether it is void by reason of the lack of identification of the grantees. If the deed be void, there is, of course, no fountain head from which the appellee could derive title. If only voidable, the deed having been recorded more than five years, every reasonable presumption is to be indulged in favor of its validity. Neither the tax deed nor any evidence introduced, unless it be the subsequent conveyance of W. .W- Wheeler and wife and Joshua Motter and wife, in any way identifies “Wheeler & Motter,” as to whether the grantees in the deed were ■two individuals purchasing as tenants in common of whether their names constituted the name of a copartnership.
Even if it be assumed that “Wheeler & Motter” was the name of a copartnership, as was said in the case of Sherry and another v. Gilmore and another, 58 Wis. 324: “A tax deed issued to partners in the firm name is not .void for want of a grantee.” (Syllabus, ¶ 3. See, also, Black, Tax Tit., 2d ed., § 391; 30 Cyc. 432.) It is said, substantially, in volume 13 of the Cyclopedia of Law and Procedure, at page 539, that where a co-partnership is named as a grantee in a deed it constitutes a latent ambiguity which may be explained by parol. (See, also, Murray, Ferris & Co. v. Blackledge and wife, 71 N. C. 492; Morse et al. v. Carpenter, 19 Vt. 613.)
Assuming that the tax deed in question was issued to two individuals, whose Christian names were omitted,, there can be no question that the deed would not be void for that reason, but that the grantees could be' identified by evidence aliunde. (Webb et al. v. Den, 58 U. S. 576; Aultman & Taylor Manufacturing Co. v. Richardson, 7 Neb. 1.)
If, therefore, the grantee in this tax deed may be' identified by evidence aliunde, the tax deed is not void, but at most only voidable; and it matters not in the-decision of this case that such evidence was not produced at the trial. Under the rule frequently stated by this court, every reasonable presumption will be entertained to sustain the validity of a tax deed which has been of record more than five years, and no presumption will be indulged to invalidate it. (Cross v. Herman, 74 Kan. 554; Tucker v. Shorb, 80 Kan. 511; Less v. Yeats, 82 Kan. 105.) The presumption in this, case is that “Wheeler & Motter” designated two persons, and that the W. W. Wheeler and Joshua Motter, who afterward signed a deed of conveyance to the land, were the two individuals named in the deed. It follows that the tax deed should in this respect be held, valid.
The undisputed evidence is that Danley, through Scott, was in possession of the land from the date of' the deed to Danley (February 1, 1906), more than two years before the commencement of this action. It will also be observed that neither the limitation defined in subdivision 3 of section 15 of the code of 1909 nor any other limitation was pleaded to the petition. Nor did the petition on its face show that the defendants had been in possession more than two years before the-beginning of the action.
Defendant Danley, before the final submission of the' case to the court, moved to dismiss his cross-petition,, which motion was denied by the court. This was error. (Code 1909, § 395.)
The only question that remains is whether appel lant Danley could avail himself of the statute of limitations to the plaintiff’s cause of action under a general denial, and without especially pleading it. Generally it is a well-established rule that unless a petition shows on its face that the cause of action is barred by the statute of limitations a defendant can not avail himself of the statute without especially pleading it. In actions of ejectment there is much contrariety of opinion in different states as to whether the general rule applies. Our statute (Code 1909, ■■§ 619) provides what it is necessary to plead in the petition, and section 620 of the code of 1909 what .shall be necessary in the answer. Where a petition, as in this case, barely alleges, as required by statute, that the plaintiff is the owner of the land in question, is entitled to the possession thereof, and that the defendant unlawfully keeps her out of possession, the defendant can not, without more fully setting forth the plaintiff’s cause of action than is stated in the petition, plead the statute of limitations thereto. For instance, in this case defendant Danley, to interpose this defense, would be required to allege that the plaintiff’s title is based upon a tax deed, the date it was issued, that she had not been in possession of the land, and that he had been in adverse possession thereof for more than two years. A defendant can not be pre-' sumed to know upon what the plaintiff bases the cause of action except from the petition, and any rule that would require the defendant to set forth the plaintiff’s ■cause of action more fully than does the petition would ■seem absurd.
This particular question, whether the general rule that the defendant must plead the statute of limitations before it can be interposed as a defense applies in actions of ejectment does not seem to have been decided in this state; but it was said in Stout v. Hyatt, 13 Nan. 232:
“Either party under such pleadings [referring to the section of the code above cited] may prove whatever would strengthen his own title, or defeat his adversary’s title, in the same manner and to the same extent as he could do if the facts were set out with all the circumstantial minuteness and fullness of detail that they usually are in equitable actions.” (p. 241.)
(See, also, Wicks v. Smith, 18 Kan. 508.)
It was expressly held in the following cases that the .statute of limitations need not be pleaded in ejectment actions, under statutes similar to ours: Stubblefield v. Borders, 92 Ill. 279; Fairbanks v. Long, 91 Mo. 628; Stocker v. Green, 94 Mo. 280; Lea v. Slatterly, 66 Tenn. 235; Horne v. Carter’s Adm’rs, 20 Fla. 45; Rhodes v. Gunn, 35 Ohio St. 387; War. Eject. § 204.
The following authorities seem to be to the contrary: Custard v. Musgrove, 47 Tex. 217; Orton v. Noonan and another, 25 Wis. 672; Hansee v. Meade, 34 N. Y. Supr. Ct. 162; Chivington v. Colorado Springs Co., 9 Colo. 597.
In accord with what seems to be the weight of authority, and also in accord with good reasons, based upon the very necessities of the case, we hold that where a petition and an answer in an action of ejectment are such only as are required by sections 619 and 620 of the code of 1909, either party under such pleading may prove any fact which would tend to strengthen his -own title or to defeat that of his adversary, to the •same extent as if the facts were fully pleaded.
In actions for the recovery of real property, by the provisions of section 619 of the code of 1909, it is sufficient if the plaintiff state in his petition that he has a legal or equitable estate therein and is entitled to the possession thereof, and that the defendant unlawfully beeps him out of such possession; and by the provisions of section 620 of the code of 1909 it shall be •sufficient if the defendant deny generally the title alleged in the petition or that he withholds the possession. It was the clear intendment of the framers of the code that such pleadings should answer in all cases of this nature. The defendant may not be informed of the nature of the plaintiff’s claim of title, and is not required specifically to state any defense he may have thereto; he is only limited in this, that if he deny the plaintiff’s title he must admit that he has the possession. Under such pleadings either party may prove any fact which tends to establish his own right or defeat the claims of his adversary, and either party may be confronted with proof of facts of which he was wholly unadvised by the pleadings. The court, of course, follows the plain provisions of the code, resorting only to construction where there is uncertainty of its meaning. The writer, however, is of the opinion that in many cases it would be much better and fairer to litigants had the general provision of the code been made applicable to actions of this nature, to wit, that the plaintiff should make a statement of the facts constituting his cause of action in ordinary and concise language, without repetition, and that the defendant in his answer should make a statement of any new matter constituting a defense or right to relief concerning the subject matter of the action, in ordinary and concise language, without repetition.
There was evidence in this case'which tended to prove that the tax deed had been issued more than five years before the commencement of the action, that the appellee had never been in possession of the land thereunder, and that appellant Danley had been in possession of the land for more than two years prior to the commencement of the action. The evidence as to the possession, which tended to show that the plaintiff’s cause of action was barred, should be considered as pertinent to the issues raised by- the pleadings as if the limitation had been expressly pleaded in the answer.
For the reasons given the judgment is reversed and the case is remanded for a new trial. | [
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Per Curiam:
This is an appeal from a conviction under the prohibitory law. The appellant complains that the verdict is not sustained by the evidence, that the instructions given to the Jury are erroneous, and that the refusal of the court to give '.those requested by the appellant is also erroneous.
There are no separate statements of the errors complained of, ■as required by subdivision 2 of rule 10 of this court, but we have carefully examined the abstract and briefs and are unable to find any material or prejudicial error in the proceedings, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to compel the canvass of votes cast for mayor and commissioners at a special election in the city of Abilene.
In October, 1909, a petition was presented to the city council requesting that a special election should be called to vote upon a proposition to adopt the commission form of government for the city. The petition was found to be sufficient, and an ordinance was passed calling an election as prayed for, to be held on March 1, 1910, and directing the mayor and the clerk to give notice thereof by publication in the official paper for three consecutive weeks. Such notice was given, but the publication was'made on the 10th, 17th and 24th days of February, so that the last publication was made less than twenty days before the election. In other respects the proceedings were according to the statute. (Laws 1909, ch. 82, Gen. Stat. 1909, § 1473 et seq.) Returns of the election were made and the council canvassed the vote and declared that the proposition had been carried. The canvass showed 441 votes for, and 112 against, the proposition. . The registry of voters contained 1544 namés. A. -W. Rice, one of the plaintiffs, was mayor and the defendants were councilmen of the city during all these proceedings, and are still acting as such officers. The mayor was elected in April, 1909.
Acting upon the supposition that the commission form of government had been adopted, the mayor by proclamation gave notice of the annual election to be held in April, 1910, stating that a mayor and two commissioners were to be elected. The election was held accordingly. All the votes cast were for A. W. Rice for mayor, and for L. H. Kump and J. K. Forney for commissioners. The councilmen were prevented from canvassing the votes cast at the election last mentioned by a restraining order issued by the district court, in an action brought by the state on the relation of the county attorney, but on June 3, 1910, the order was set aside. The council then refused to proceed with the canvass of the vote for mayor and commissioners, and this action was commenced to compel it to do so. The defendants plead as cause for such refusal that the election of March 1, 1910, was void because of insufficient notice, and that the commission form of government was never adopted. Other reasons are assigned, but they need not be considered.
The act provides that upon the presentation of a petition of forty per cent of the voters of a city of the second class the mayor and council shall pass an ordinance calling an election for such purpose, and also provides that “the notice of such elections shall state that the election is called in order to submit this act for adoption, and shall be signed by the mayor and attested by the city clerk, and shall be published in the official city paper once each week for at least three weeks. The last publication of said notice shall be at least twenty days prior to the day fixed for such election.” (Laws 1909, ch. 82, § 36, Gen. Stat. 1909, § 1508.)
It will be observed that only five days intervened between the date of the last publication of the notice and the day of the election, instead of twenty days, as the law explicitly requires. No authority existed for changing the scheme of government other than that given by the statute, which declares that before the act shall apply to any city the proposition shall be submitted to a vote, in the manner prescribed, including the foregoing provisions relating to notice. The importance of giving the particular notice of a special election, the date of which is not fixed by the law but is left to local officers, is stated in The State, ex rel., v. Echols, 41 Kan. 1, where it was said:
“In such cases the electors depend upon the notice required to be given, and not upon any knowledge derived from the law itself; and hence the right to hold such election at a specified time is the notice prescribed by the statute. It is therefore a mandatory provision, and the courts generally hold it to be essential that the prescribed manner shall be followed in order to give validity to the election. This court has always held that the particular manner provided by statute for giving notice of a special election must be strictly pursued.” (p. 5.)
The Echols case was followed in The State v. Bentley, 80 Kan. 227.
It has been said that when there is a general participation of voters in an election held at a time 'and place fixed by law the want of the particular notice directed by a statute does not make the election void. (McCray on Elections, 4th ed., § 179.) If this principle could apply to a special election under this statute in any case, it is manifest that it can not be applied here, where much less than half the electors of the city voted upon the proposition.
It is contended that the council could not decide upon the validity of the election, their only duty being to canvass the vote and declare the result. It is true that the duties of a canvassing board are ministerial, and that it can not reject returns that are regular in form on the ground that illegal votes had been cast or other frauds or irregularities practiced at the election. (Brown v. Jeffries, 42 Kan. 605.) Still, before a canvass should be compelled an election should be held by authority of law, and there should be offices to fill. (Matthews v. Comm’rs of Shawnee Co., 34 Kan. 606; Peters v. Board of State Canvassers, 17 Kan. 365; Leavenworth Co. v. The State, 5 Kan. 688.) In The State, ex rel., v. Echols, supra, mandamus was prayed Tor to compel the canvass of the votes cast upon a proposition to establish a county high school, and it was refused because the election was held void for want of a notice. The court said:
“That the giving of notice substantially in the manner directed by law is a prerequisite of the validity of such an election, and where there is a failure to post notices at any of the polling places, and a large number of the electors of the county fail to vote upon the proposition, the election will be void.” (Syllabus.)
The fact that in this case the returns of the void elec tion had been canvassed would not make it valid. As the election of March 1, 1910, was ineffectual to adopt the commission form of government, the offices of mayor and commissioners, provided for when such form is adopted, were not created, and therefore there were no such offices to fill at the election in April, 1910. Mandamus should only be allowed to secure or protect a clear legal right, and will not be 'granted where the writ, if issued, would be fruitless or unavailing. (Rice v. County Board of Canvassers, 50 Kan. 149.)
The alternative writ is set aside and a peremptory writ is refused. | [
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Per Curiam:
This action was commenced in the district court of Marshall county to recover a balance claimed to be due on the sale of a farm. Laura L. Ewing sold the farm to James White. He went into possession after payment of a part of the purchase price, and then refused to pay the balance. Mrs. Ewing then commenced this action to recover the remainder. She claims that she sold the farm for $11,200, and that only $10,400 had been paid before she commenced this action, leaving $800 due. White claims that the farm was to, contain 140 acres, for which he was to pay $80 an acre, but it only contained 130 acres, and that he did not want to pay for the ten acres that were deficient, hence the refusal to pay more.
The case was tried to a jury, and it settled the only dispute between the parties and settled it in favor of the plaintiff. The only error pointed out was that the jury did not find the facts correctly. Of course, where a jury settles a question of fact and the trial court approves the finding, there is nothing .left for this court to do. The judgment is affirmed. | [
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The opinion of the court was delivered by
GRAVES, J.:
This is an appeal from a decree of partition of real estate in the district court of Shawnee county. The property was owned by G. S. Gordon, who died March 26, 1908, at his residence in Topeka. He left as his heirs his widow, Jennie S. Gordon, the plaintiff, and a daughter, Lillie Gordon Munn, one of the defendants. He had a son who married Miss Lee Redden, but who died some years before his father, without children. His widow was made a party to this action. Jennie S. Gordon was the second wife of G. S. Gordon, and his marriage to her was consummated June 30, 1898. Mr. Gordon was then 72 years old, and Mrs. Gordon 38. Mr. Gordon’s children were born during his first marriage. This action was commenced by the widow for the purpose of securing the separate enjoyment of the property which she was entitled to receive out of the estáte of her deceased husband, as his widow. Her right to receive any of his property was contested by the defendants. It was contended that the plaintiff was not legally married to Mr. Gordon, she having been twice married before to men who were still living and from neither of whom she had been legally divorced when she went through the form of marriage with Gordon. She entered into an antenuptial contract with him whereby she was bárred of all interest in his estate. If the plaintiff was competent to enter into the marriage relation with Mr. Gordon, then she was entitled to a widow’s portion of his estate, unless barred by the antenuptial contract.
Under these issues the defendants demanded a jury trial, claiming that the title to real estate was involved and therefore either party was entitled to a jury as a matter of right. This demand was refused by the district court. The denial of this request is presented as one of the assignments of error, and is the principal error relied upon.
The real estate is composed of several separate tracts, being both farm lands and city property. Mr. Gordon during his lifetime resided in the city and was not in the actual occupancy of any of his other real estate. It- was occupied by tenants, from whom he collected xents. Mr. Gordon died intestate, and of course his xeal estate descended to his legal heirs. They have ¡sustained the same relation to it that he did while alive. There has been no change in its actual occupancy since his death, so far as his heirs are concerned.
Just when a trial by jury may be demanded by either party as a matter of right in an action concerning real property is at times uncertain and confusing. The constitutional provision, “the right of trial by jury shall be inviolate” (Bill of Rights, § 5), is not very definite nor specific; it does not deal with details — it reads like ¿ “glittering generality.” The framers of the code, realizing this difficulty, attempted to define this important right so that it would be easily understood, and for this purpose enacted sections 266 and 267 of the code (Gen. Stat. 1901, §§ 4713, 4714), which read:
“Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as hereinafter provided.
“All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code.”
By this we are told that the right exists in all civil actions for the recovery of specific real property. Is this an action of that kind? In considering this question we are not bound by the pleadings or the form of the action. This right can not be determined by the mere form in which the issues may be cast, but it must be determined by the real, meritorious controversy between the parties, as shown by the whole case.
It is claimed that the defendants are not in the pos session of the property in controversy, and, so far as they are concerned, the plaintiff might take the actual possession thereof at any time; that therefore no cause of action in ejectment exists in her favor and the situation can not fairly justify the claim that the action is one to recover the possession of specific real property, and therefore the right to a trial by jury does not exist. The fact remains, however, that the plaintiff, as her cause of action, claims to be the owner of an undivided one-half of the real property and to be entitled to the immediate and exclusive possession thereof, separate and apart from the other parties, and she asks the court so to adjudicate. On the other hand, the defendants claim that the plaintiff has no right, title or 'interest whatever in or to the real estate, but is a mere pretender ; that they are the owners and are entitled to the immediate and exclusive possession of the real property in controversy, and ask the court so to adjudicate. Such an adjudication would necessarily give to the successful litigant the right to the exclusive possession of the property and effectually bar the other litigants from such right. For all practical purposes it would result in a recovery of the possession of the property from one party and an award of it to the other, which would seem to embrace all the essential features of an action of ejectment. The right to a trial by a jury has ever been regarded as important, and it may not be abridged or limited beyond the fair import of the constitutional and statutory provisions by which it is guaranteed. (Bodwell v. Crawford, 26 Kan. 292; Chandler v. Richardson, 65 Kan. 152; Donahue v. Meister, 88 Cal. 121.)
In an action of partition where, as in this case, the issues disclose the real controversy to be as to the title and possession of the real estate in controversy, that question must be tried to a jury if either party so desire. This can be done under the code in the same case. (Chandler v. Richardson, 65 Kan. 152; Denton v. Fyfe, 65 Kan. 1; Hewlett v. Wood et al., 62 N. Y. 75; Capell v. Moses, 36 S. C. 559; Osborne v. Osborne, 41 S. C. 195.)
The question as to when a party is entitled to a jury has been considered by this court before and substantially the same conclusion was then reached as is here announced. (Atkinson v. Crowe, 80 Kan. 161.) That case in some respects was similar to this. We conclude that this.is a case where a jury should have been called, as requested. There are other questions discussed, but. as this disposes of the case it will be unnecessary to consider anything further.
The judgment of the district court is reversed. | [
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Per Curiam:
In the second paragraph of the syllabus of the-■opinion filed in this case (ante, p. 92), it is intimated that the sufficiency of the evidence to support the judgment was first raised in this court. Our attention is called to the fact that on the motion for a new trial in the court below objection was made to the sufficiency of the evidence. We have, therefore, reviewed the testimony and find that it is sufficient to sustain the judgment. » | [
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The opinion of the court was delivered by
Benson, J.:
This is an action to recover upon an account for goods alleged to have been sold and delivered. The plaintiff, the Hessig-Ellis Drug Company, is a foreign corporation, with headquarters at Memphis, Tenn. The defendants are partners engaged in the’ drug business at Parsons. Upon an appeal from a judgment for the plaintiff, rendered by a justice of the: peace, the district court dismissed the action, upon motion of the defendants, for the reason that the plaintiff .had not been authorized to do business in this state. (Laws 1907, ch. 140, § 29, Gen. Stat. 1909, § 1726.) The motion was heard upon affidavits which show that the goods were furnished under a written contract containing the following provisions:
“First: In consideration of the purchase of a certain quantity of the product of the party of the first part, by the party of the second part, said product being known and described as Dr. Nott’s Cuban Hair Rest. & Hair Tonic, the amount of said purchase being designated by order given this day and date and which for the purpose of identification is marked ‘A.’ Now, therefore, in consideration of the faithful fulfillment of the terms of said order ‘A,’ together with the terms of this contract, by the party of the second part, the party of the first part agrees to contract with the Zellner Adv. Agency, Memphis, Tenn., for from 5000 to 10,000 lines agate measure of advertising, specifying the Sun or Eclipse singly or divided, said advertising to be executed during the twelve months following ■date of the delivery of goods described by order ‘A’ at Parsons, Kan.
“Second: The party of the first part agrees not to sell to any other dealer than the party of the second part in the town of Parsons, Kan., during the term of this agreement, the product known as Dr. Nott’s; but 1he party of the second part agrees to sell to any dealer in his territory who may be deemed worthy of credit or 'who tenders cash at the regular net wholesale price, it not being the purpose of either party to this agreement to commit any act in defiance' of the federal or state laws regulating commerce.
“Third:. It is agreed by and between the parties of the first and second part and is an element of this ¿agreement that if for any reason the party of the first part should default or commit any breach of this agreement then it shall be at the option of the party of the ¿second part to at once return all goods unsold at the full invoice price to the party of the first part, and the ■party of the first part, in event of such contingency, agrees to accept any unsold goods described by order ‘1A’ .and will remit on receipt of same, and if for any reason the party of the second part should default in the terms of the agreement made this day and date, then in that case the party of the first part shall have a measure of damage against the party of the second part the collection of the amount specified in order.
“Fifth: It is agreed and understood that the party of the second part will keep a sign on windows, or doors, or counters of or in place of business, reading ‘Local Distributor of Dr. Nott’s Cuban Hair Restorer & Hair Tonic.’
“In consideration of the fulfillment of the terms- of order ‘A’ and contract B by the party of the second part, the party of the first part agrees to take back all unsold goods at full invoice price at the end of the Kansas advertising contracts.”
The goods were shipped f. o. b. cars at Memphis, July 31, 1908, upon the order referred to in the contract, and were received by the defendants. On November 5, 1908, the plaintiff wrote to the defendants a letter, as follows:
“Send in all coupons on which you gave out Cuban Hair Restorer. We desire to replace goods so given out according to contract, at the same time we will forward you quantity of advertising matter.
“Reports all over the territory from our various agents are highly flattering. The preparations are making good through our liberal policy and aggressive advertising campaign. The free distribution proves our confidence at once. We hope sales are good with you.
“We call your attention to the big shipment to Omaha. Isn’t it about time that your stock needs replenishing? Send us an order to go out with this shipment, freight will be prepaid. We have quite a number of duplicate orders from dealers who bought as much or more than you did about the same time. We hope you are ready for a shipment. Remember you get extra discount on repeat orders, so much for, being our agent in your town. You can sell other druggists at wholesale and make 10 and 5 per cent.”
This action was commenced December 22, 1908, and was dismissed June 1, 1909. The plaintiff appeals.
While the contract contains stipulations for adver tising, and for the return of unsold goods, upon certain conditions, it contains nothing inconsistent with a sale. The letter referring to coupons for goods given out by the defendants, and proposing to replace such goods, indicates an advertising scheme, which, like the advertising stipulated for in the contract, might be beneficial to both parties, promoting sales by the defendants, and leading to further orders. The use of the word “agents” in the letter does not change the relation of the defendants as purchasers, if they were made so by the contract.
We conclude that a sale was eifected by this transaction, and that it did not constitute “doing business in this state” within the meaning of the statute. This court has said:
“The authorities are too uniform and too numerous to require citation that in the sale of goods upon an order the contract is completed where the order is received and accepted, and the sale is completed and delivery made to the purchaser by delivery of the goods to a common carrier for conveyance to the purchaser, unless a contrary intention of the parties is shown.” (Stock Food Co. v. Jasper, 76 Kan. 926, 927.)
Another question is presented upon a motion of the defendants to dismiss the cause from this court. This motion is based upon a return of the goods after this appeal had been filed. The affidavits show that the defendants shipped the goods to the plaintiff, and that the railway company delivered them to a drayman at Memphis for the plaintiff, but the plaintiff refused to accept them, and so notified the defendants. An affidavit filed by the defendants states that the return of the goods was made in accordance with the terms of the contract. This presents an issue which can not be tried upon this motion to dismiss. It is defensive matter, to be heard and determined by the district court if presented there in the usual course of practice.
The motion to dismiss the appeal in this court is de nied. The order of the district court dismissing the action is reversed, and the cause is remanded for further proceedings. | [
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Per Curiam:
All the plaintiffs were required to prove, to-make their case, was employment to effect a trade, performance-of the service, and the amount of their compensation. This they did. It was not essential to recovery that they should allege or-prove that they were licensed agents. The court could not. take judicial notice of the ordinances of the city of Wichita, and none-was pleaded or proved. Unfaithfulness, dual employment and the like are defenses which are waived unless pleaded, and no such defense was pleaded. A jury properly instructed might, have interpreted the employment as that of middlemen only, in which event a commission from both parties to the trade would have been permissible.
The judgment of the district court is reversed and the causéis remanded for a new trial. | [
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Per Curiam:
The defendant was arrested upon an information charging him with a violation of sections 8090 and 8091 of the General Statutes of 1909. -The information was quashed by the district court on the motion of the defendant. The state appeals.
Section 8091, so far as it concerns the present case, reads as follows:
“Any person who shall practice medicine and surgery or osteopathy in the state of Kansas without having received and had recorded a certificate under the provisions of this act . . . shall be deemed guilty of a misdemeanor.” (Laws 1901, ch. 254, § 7.)
Section 8090, so far as it concerns the information in this case, reads as follows:
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, . . . or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities.” (Laws 1908, ch. 63, § 1.) ,
The information, which contained three counts, follows the language, of the statute, and this is all that is required where the statute creates the offense and sets out the facts which constitute it. (The State v. Foster, 30 Kan. 365; The State v. Bellamy, 63 Kan. 144; The State v. Seely, 65 Kan. 185.) There .are a number of exceptions named in section 8090. If it be contended that the information is defective because it failed to negative these exceptions the point is not well taken. It is only necessary to negative those exceptions which are contained in the same clause of the act which creates the offense. (The State of Kansas v. Thompson, 2 Kan. 427; City of Kansas City v. Garnier, 57 Kan. 412; The State v. Thurman, 65 Kan. 90.)
It was error to sustain the motion to quash. The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
The appellee filed his petition in the district court of Franklin county on February 28, 1909, and on the same day caused summons to be issued requiring the answer to be filed on or before March 25. The summons was served in Franklin county on Carey W. Porter, who was the agent that countersigned the policy sued on, and who was shown to be the superior officer of an agency of the company in the county.
On the answer day the appellant filed its motion to quash and set aside the service of summons, for the reason that it was not served upon the superintendent of insurance of the state, and evidence was introduced to show that Porter was not licensed or authorized by the superintendent of insurance as a managing officer or agent. Evidence was also offered to show that Porter was the superior officer of an agency of the company located in Franklin county.
The court denied the motion and set the case for hearing at the same term of court, twenty-two days thereafter. The appellant assigns the denial of the motion as error, and cites Insurance Co. v. Coverdale, 48 Kan. 446. In that case service was made upon the superintendent of insurance, but was directed to the sheriff. The decision was that the summons in such a case must be directed to the superintendent of .insurance, and that it must allow the defendant forty days from the date of the summons to answer. It was not therein held or intimated that that is the only method of service.
In Betterment Co. v. Reeves, 73 Kan. 107, it was de cided that the various methods provided by statute for service of summons upon a nonresident insurance corporation are cumulative. In Insurance Co. v. Mortimer, 52 Kan. 784, it was held that service upon the chief officer of an agency which the insurance company has in the county is good. (See, also, Insurance Co. v. National Bank, 58 Kan. 86, 89.) Where service is on an agent in the county, only twenty days for answer after the return day set in the summons is requisite. The motion to quash the summons and set aside the service was properly denied.
It is urged that the court erred in setting the case for trial at the same term of court at which the motion to quash the summons was denied. When an issue of law is raised in good faith, on or before the answer day, by filing a motion to set aside the service of summons, the defendant is not in default for answer, at least during the pendency of such motion.
The question of law raised by this motion had, as we have seen, been determined by this court about sixteen years before this motion was filed. The court evidently thought the eminent counsel for the insurance company knew this, and held the motion frivolous. Full twenty-two days were given to make up the issues and to prepare for trial. The issues were not in fact made up, however, by the filing of a reply ten days before the time set for trial, as required by section 313 of the code of 1909.
Courts are vested with much discretion in protecting the orderly progress of business therein pending, and under the facts of this case we can not say that such discretion was abused in assigning this case for hearing at the same term.
On the day next preceding that for which the case was set for trial, the appellant filed a motion for a change of venue, on the ground that Judge Smart was interested financially in the cause. An affidavit of E. S. Quinton, one of the attorneys for the appellant, was filed in support thereof. Omitting formal parts, the material averments are:
“And affiant further states that he is informed and believes that the said W. H. Jones, plaintiff in said cause' of action, is largely indebted to various and many parties, and has not sufficient assets and resources to pay the same outside of a recovery upon the insurance policies sued on in this action, and others pending in this, court, and that said W. H. Jones is indebted in a very large amount, so this affiant is informed, and believes,, and therefore states the fact to be, in the sum of eight or nine thousand dollars to the First National Bank of Ottawa.
“And affiant further states that the Hon. C. A. Smart, judge of the district court of Franklin county, state of Kansas, is the vice president of said First National Bank of Ottawa, and is the owner of stock in said bank, and that the said W. H. Jones is relying upon a recovery in this action, and the other actions against the insurance companies pending in this court, to pay said indebtedness to said bank, and that said bank expects and. hopes to receive its pay from a recovery in this and. the other actions pending in this court.”
The appellee thereupon filed his affidavit, in which, he stated that the allegations in the affidavit of Quinton were not true or correct. The appellee’s affidavit in. part reads:
“He admits, however, that he is indebted to the First. National Bank in the sum of $5000, evidenced by notes,, most of which are not due, but not in a larger sum. He denies that he is dependent upon the insurance sued for in this action to pay the First National Bank; and he' says that he has other assets and means wherewith to pay all his indebtedness to the said First National. Bank, independent of the result of this suit.”
After detailing to some extent his resources the appellee further averred:
“He says that he is advised that the interest of the Hon. C. A. Smart in the said First National Bank is small or nominal, and he says that neither the said Hon. C. A. Smart nor the said First National Bank will be-affected in any manner by the outcome of this suit.”
After argument by counsel the court delivered the opinion and statement of facts. Omitting explanatory recitals as to his business interests in other matters, the judge said:
“The affidavit made by Mr. Quinton is substantially correct. In a bank with $100,000 capital, I am the owner of $1000 of the stock, and I am now and have been for a year or two one of its vice presidents. I learned for the first time when the affidavit of Mr. Jones was read here how much he owed the bank. Of ■course, I am not in the active management of the bank, although I keep in touch with it to some extent, and as I say, I learned for the first time when the affidavit of Mr. Jones was read the extent of Mr. Jones’s indebtedness to the bank.”
Thereupon the appellant filed a supplemental motion for a change of venue, on the ground that Judge Smart had been the legal adviser to the bank which is alleged tó be interested in the result of the action, and had consulted with officers of the bank in regard thereto, and further said:
“Defendant renews its motion for a change of venue at this time for the reason the facts set out in the affidavit hereto attached, not stated in the affidavit attached to the motion filed April 26, and overruled April 27, first came to defendant’s knowledge after said motion had been overruled, and because the facts set out in the court’s statement above referred to, and not set out in said affidavit, first came to defendant’s knowledge at the time said statement was made, April 27, 1909.”
An affidavit of E. L. Snider, another attorney for the appellant, was introduced in support of this motion. In this affidavit is reiterated the indebtedness of Jones to the bank, and the interest of Judge Smart in the bank, ■etc., and it is said:
“Affiant further says he is informed and believes the Hon. C. A. Smart, and therefore states the fact to be, is a director in said bank, actively engaged as such in its management, and acts as legal adviser for and advises the board of directors and officers of said bank concerning legal matters' and interests of said bank, and for his services so rendered to said bank receives a stipulated annual salary, and that such relations have existed for a continuous period dating back to the time the subject matter of this suit first came into existence, and prior to the time the indebtedness of the said W. H. Jones to said bank was first made, and that the subj ect of said indebtedness, and the ability of said Jones to pay the same, and his means so to do, have been the subject of discussion by the directors of said hank with and in the presence of the Hon. C. A. Smart, in connection with other business matters of said bank.
“Affiant further states that the facts herein set out in the affidavit filed in connection with motion for change of venue came to defendant as set out in said affidavit and about April 23, 1909, and the additional facts set out in this affidavit came to the knowledge of ■defendant and this affiant April 27 and April 28, 1909.”
This motion was also argued by counsel, and thereupon the following proceedings were had:
In passing upon the motion the trial court said:
“I don’t see anything new in this motion and affidavit. If it is considered as a new motion it is overruled; if it is supplemental to the other motion it ■stands with the other. Is it a separate motion, or is it •supplemental to the one passed upon yesterday?
“Mr. Snider: It may be -filed as a supplemental motion to the one filed yesterday, and passed upon I suppose just as well.
“The Court: 'It will be so considered, then, and may he filed as such. Call a jury, Mr. Clerk.”
The trial which was then had upon the issues presented in the pleadings resulted in a verdict and judgment for the appellee, from which the appeal is taken.
In the supplemental affidavit it is stated that the facts therein recited came to the knowledge of counsel after the filing of the Quinton affidavit. Hence, the second motion and affidavit were considered by the court at the request of counsel as supplemental to the former.
The provision of law relating to a change of venue by reason of the disqualification of the judge is a part of section 57 of the code of 1909, which reads:
“In all cases in any of the district courts of this state in which it shall be made to appear that a fair and impartial trial can not be had in the county where the suit is pending, or when the judge is interested or has been of coúnsel in the case or subject matter thereof, or is related to either of the parties, or otherwise disqualified to sit, the court may, upon application of either party, change the place of trial to some county where the objection does not exist.”
This court, in Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623, 628, decided that the word “may,” as used in this statute, means “must.” In other words, where the necessary facts have been made to appear, a change of venue is not a matter of discretion in the court, but of right to the party applying therefor. The facts which disqualify a judge must of necessity be peculiarly within his own knowledge when his attention is called thereto, and hence it must not be supposed that he is compelled to rely wholly upon affidavits or other evidence in regard thereto, but may disregard false or mistaken statements if in conflict with his personal knowledge of the facts. However, as quoted with approval by Mr. Justice Johnston in Tootle v. Berkley, 60 Kan. 446: “ ‘Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness or integrity of the judge.’ ” (p. 448.) To do this, if the judge relies upon his own knowledge, which is at material variance with the evidence introduced, it devolves upon him to make his knowledge of the facts known to the parties in a statement which should, if desired, be made a part of the record. This was done to some extent in passing upon the original motion, before the supplemental motion and affidavit were filed. In the supplemental affidavit, it having appeared by former affidavits and the statement of the judge that Jones was indebted in the sum of at least $5000 to the bank, of which the judge was a small stockholder and a director and vice president, it was further stated that Jones was relying upon a recovery in this action, and in other similar actions in the same court, for means to pay the debt, and that the bank expected and hoped to receive its pay from the same source, The affidavit then continued:
“Affiant further says he is informed and believes the Hon. C. A. Smart, and therefore states the fact to be, is a director in said bank, actively engaged as such in its management, and acts as legal adviser for and advises the board of directors and officers of said bank concerning legal matters and interests of said bank, and for his services so rendered to said bank receives a stipulated annual salary, and that such relations have existed for a continuous period dating back to the time the subject matter of this suit first came into existence, and prior to the time the indebtedness of the said W. H. Jones to said bank was first made, and that the subject of said indebtedness, and the ability of said Jones to pay the same, and his means so to do, have been the subject of discussion by the directors of said bank with and in the presence of the Hon. C. A. Smart, in connection with other business matters of said bank.”
To this, in denying the motion as supplemented, the only remark of the judge was: “I don’t see anything new in this motion and affidavit.”
It is said by the appellee that the denial of the motion was a sufficient negation of the new matter in this affidavit. In this we can not concur. The affiant was a member of the bar in good standing, and as such an officer of the court, and he made the statements as positively probably as it was possible for anyone except the officers of the bank to make them. The judge necessarily knew the facts, and if the attorney was misinformed the judge owed it to himself, and to his high office, to say so, and thus maintain the high regard in which the administration of justice should be and is almost universally held. If the statements in the affidavit were not based upon misinformation, but were true, the motion should have been allowed. It was therein substantially charged that the judge had been of counsel in the subject matter of the case. If this was true the judge was disqualified under the common law, by the statutes of the state, and by every consideration of judicial propriety and fairness. If the charge was not true the judge alone, of those participating in the trial of the case, was in a position to know the exact truth.
In a sense the relation of the judge to the case pending was for the time being on trial before the court, the judge being nominally the sole arbiter. An unsworn statement by the one most conversant with the facts, either confirming, correcting or utterly denying the hearsay charge, would have been in all probability received with credibility by all concerned, and in either event would have left no doubt as to the qualification or disqualification of the judge. (Tootle v. Berkley, 60 Kan. 446, 448.) As the record stands, no such statement having been made, the charge is supported by uneontroverted evidence, and the appellant was denied a legal right.
No question is raised as to the integrity or fairness of the judge; but simply whether his relations to the case were such as to' disqualify him under the statute.
After the motion for a change of venue was denied, a trial was had to a jury, and no question is raised as to the fairness of the court in its rulings on the introduction of evidence or in the giving or refusing of instructions to the jury. Still, the judgment must be and is reversed, and the case .is remanded with instructions to grant a change of venue.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Benson, J.:
This action is to recover a sum claimed by E. R. Julian against the Eagle Oil and Gas Company for drilling oil wells under a written contract. An attachment was levied upon property a part of which is claimed by W. R. Parsons and F. A. Parsons, who are interpleaders. The judgment was for the plaintiff against the oil and gas company, and for the sale of the attached property. The defendant and the interpleaders appeal.
The following is a copy of the contract:
“April 5, 1904.
“Memorandum of agreement made, this date between E. R. Julian, first party, Eagle Oil and Gas Company, second party, witnesseth:
“First has drilled well No. 4 on the Yockey land for second party, and agrees to drill two more wells on said land, as located by second party, on the following terms and conditions: The wells to be drilled in as directed by first party with casing to the sand, cleaned, casing pulled and wélls completed in good condition — the price to be one dollar per foot for drilling a completed well, twenty-four hours time to be given for cleaning, pulling casing, tubing, etc., extra time to be $25 per day.
“First party is allowed to take gas from the wells on said land provided there is gas enough for him after second party is supplied; the price to be 4c per foot for well No. 5 and 5c per foot for all other wells drilled for the depth of the well drilled. It is understood and agreed that first party shall wait for payment for all said wells drilled, including No. 4, until second párty sells oil enough to pay all debts and bills due and incurred in the said drilling, when first party is to be paid from oil then sold.” •
The petition states that the plaintiff drilled four wells after this agreement was made, numbered 5, 6, 7 and 8; that numbers 5 and 6 were paid for, leaving $1158.98 due for numbers 7 and 8. It also stated “that the terms and provisions of said contract relating to the payments to be made to the plaintiff, as above stated, are not entirely clear and somewhat ambiguous, but that the true and correct construction of said contract, and the real contract between plaintiff and defendant," was and is that all moneys received from the sale of oil from said premises, less the incidental expenses of pumping and marketing the oil, should be applied from time to time upon said contract and paid to plaintiff for the drilling done by the plaintiff under said contract.” The petition further alleges that instead of applying upon the plaintiff’s claim the money obtained from the oil that had been marketed, less the incidental expense, as agreed, the defendant had diverted and misapplied it, and that if the money had not been misapplied it would have been sufficient to pay the plaintiff’s claim.
The defendant answered that by the terms of the agreement the plaintiff’s claim was not due, and that its receipts from the sales of oil from the Yockey land had not been sufficient to pay all the expense of drilling and the debts and bills due at that time.
On the trial the plaintiff, as a witness in his own behalf, was asked what was the agreement as to payments for the drilling. This was objected to by the defendant. Thereupon the following occurred:
“The Court: Is that the written contract that you refer to ?
“Mr. Farrelly: Yes. The contract is ambiguous, and it is for your honor to pass upon; Mr. Jones himself said in his opening statement that it was ambiguous.
“Mr. Jones: That last clause is not very explicit or plain what debts should be paid before Mr. Julian received his money. That is the way it looks to me. I want to be frank about it.
“ (The Court examines the contract.)
“The Court: All right. You can go ahead with your examination.
“(Defendant excepts.)”
The witness then stated:
“It was understood and agreed between Mr. Parsons and myself that I was to receive the money from the oil after the running expenses and expenses of drilling those wells that I drilled were paid; the expenses of the drilling incurred in those wells that I drilled, numbers 4, 5, 6, 7 and 8. After this money — after the expenses of these wells were paid and the running expenses of the property, I was to receive the money from all of the oil that was then sold; that was our agreement.
“Ques. Net receipts? Ans. Yes, sir; net receipts. It didn’t include any outside notes, or anything like that. It was just the debts incurred in drilling, is what our contract reads.”
The witness further testified that he received the net proceeds until about November, 1900; that since then three-fifths of the proceeds had been applied to outside indebtedness, against his protest. The books of the defendant were then introduced to show the receipts from, and expenses of, the wells on this lease, and, subject to objection for incompetency and irrelevancy of the evidence under the pleadings, it was agreed that the court should examine the books and determine what were the proper items of expense to be allowed. A demurrer to the evidence was overruled.
The defendant called its manager, who had signed the contract, and he testified to his understanding as to the indebtedness that was to be paid before the plaintiff’s claim was to become due. The court found for the plaintiff.
The defendant contends that only two wells were provided for in the agreement, and that, as the suit is upon the agreement only, there can be no recovery. The evidence, however, shows that both parties treated the drilling of wells numbered 7 and 8 as being done under the contract. Partial payments were made accordingly, and this was the manifest intent of the parties. The trial proceeded upon that theory, and it can not be departed from in this court.
The defendant next insists that the evidence failed to show that anything was due when the suit was brought. It is said that the clause in the agreement claimed to be ambiguous is clear in its meaning and that the parol evidence was therefore improperly admitted. The evidence of the plaintiff, however, did not vary the terms, as we interpret them. “Debts and bills incurred in said drilling” appears to refer to drilling done under the contract, including well No. 4, and not that done on other contracts or for other purposes. As the finding of the court upon the evidence was in harmony with this interpretation, any error in receiving it must be disregarded. If, however, it should be held that the contract is ambiguous (as defendant’s counsel seemed to concede when the evidence was offered), then it should also be held that the evidence was properly received, and in that case the finding thereon would be conclusive. In either view the defendant has no cause to complain.
It is also urged that the abstract shows the absence of any evidence that the defendant had sold oil “enough to pay all debts and bills due and incurred in. said drilling,” as stipulated in the contract. Evidence was given of the receipts from wells on this lease, and the books of the company were in evidence showing the expense of operation. The defendant, although alleging error in the judgment, did not abstract the evidence so given from the books. The court will therefore presume that it was sufficient, in connection with the other evidence, to support the finding. Besides, the counter abstract shows this to be true.
Another question is presented upon the appeal of the interpleaders. This interplea alleged that the plaintiff had attached the oil-and-gas wells on the Yockey lease, machinery, tanks, pipe lines, casing and gas-well machinery, tools and appliances, and the oil in tanks, as the property of the defendant company; that this lease was owned by the interpleaders on February 13, 1904.; that on that day they had made an assignment thereof to the defendant company, whereby that company was bound to deliver to them one-eighth of the oil and gas produced thereon; and that the assignment provided:
“That said premises should be exempt from any indebtedness of the said Eagle Oil & Gas Company, and should not be in any manner encumbered by said company or be subject to any indebtedness incurred by the defendant company in its operations, beyond or further than said company’s share of oil or gas actually produced by it from said premises, and that if at any time the property or the title and interest conveyed by said assignment should be assailed for any debts of the said defendant, the Eagle Oil & Gas Company, the rights, privileges and the property assigned’ by said instrument should be forfeited to the said W. R. Parsons and F. A. Parsons; interpleaders herein.”
The court ordered that all the attached property should be sold to satisfy the' plaintiff’s claim. The decree contained the following:
“It is further considered, ordered and adjudged, by the court that the premises conveyed by the interpleaders, F. A. Parsons and W. R. Parsons, to the defendant company, be and they are hereby reconveyed and ordered delivered up to them, subject to the attachment lien of the plaintiff, E. R. Julian, and the sale of the attached property, as hereinbefore adjudged and decreed.”
Thé interpleaders complain of this decree and contend that the attachment should be discharged from the lease. When the attachment was levied the defendant had an interest in the property, subject to levy. The forfeiture clause was not self-executing and might have been waived, and it is insisted by the plaintiff that this claim of forfeiture can not be litigated in this action. The statute provides that anyone claiming the attached property may interplead in the attachment action, and he is not compelled to resort to an independent suit. (Code 1909, § 45.) All parties were before the court, and no good reason appears why the question of forfeiture should not be determined in this action, along with the right of the plaintiff to subject the attached property to the payment of his claims, and this we believe is the better practice.
The remaining question is whether the forfeiture clause in the assignment is valid. It must be remembered that this is not the case of a condition subsequent in a grant in fee, which might be held repugnant to the grant, and therefore void, but the condition here is in an assignment of a lease for years. In volume 1 of the second edition of Wood’s Landlord and Tenant it is said:
“It is competent for the lessor to limit the estate as he pleases, and if he expressly provides therein that the lease shall cease if taken upon execution or otherwise by operation of law, the provision is valid and operative.” (p. 719.)
Another text-writer says:
“The landlord may stipulate that the lease shall not pass by operation of law, so that even an involuntary assignment of the lease will work a forfeiture. As where one leased a farm for twenty-one years, if the lessee and his executors should so long continue to occupy it, stipulating that he should not let, assign, or otherwise' part with the lease; and the tenant, having become bankrupt, made an assignment, and his assignees sold the lease, it was held that the landlord had a right to enter when the insolvent quit the occupation of the premises. And wherever the tenant holds his estate under an express condition to keep it in his own possession, with a proviso that it shall cease upon its being taken in. execution, the estate will terminate upon the premises being taken under execution, if it puts an end to his occupation.” (Taylor, Land. & Ten., 9th ed., § 409.)
In Davis v. Eyton, 7 Bing., n. c., [Eng.] 154, the court considered a lease containing the following provision:
“That if the lessee should commit an act of bankruptcy, whereon a commission should issue, and he should be declared bankrupt, or if he should become insolvent, or incur any debt upon which any judgment should be signed, entered up, or given against him, and on which any writ of fieri facias or any other writ of execution should issue, it should and might be lawful for the lessor to reenter into the demised premises, and the same again to have, repossess, and enjoy, as in his former estate.” (p. 154.)
A judgment having been entered against the lessee and a fieri facias issued, under which his stock was sold, it was held that the lessor who had reentered for condition broken was entitled to the emblements, the lease being forfeited. In the opinion, Tindal, C. J., said:
“The estate of the lessee was certain at first, but liable to be defeated by a condition which he allowed to be inserted in the contract, and which was a lawful, condition. It is sufficient that the condition was broken, to see that the landlord enters on his title paramount, and takes the property then as he had it originally.” (p. 158.)
The same rule is applied where the condition in a term for years is that it shall be forfeited in case of the bankruptcy of the lessee. (Doe v. David and Others, 5 Tyr. [Eng.] 125.) In Farnum v. Hefner, 79 Cal. 575, it was held that under a covenant in a lease against assignment a sale upon execution or through bankruptcy or the like did not afford cause for forfeiture, but the court said:
“If the landlord desires to avoid such involuntary transfer of the leasehold interest of the tenant, he may provide expressly in his lease that such transfer of the property shall work a forfeiture, and the same will be effectual.” (p. 581.)
It will not be doubted that a provision that the term should not be assigned might be made a valid condition subsequent in a lease or in an assignment thereof. The condition might also be written so as to include an involuntary transfer through legal proceedings against the lessee or assignee. It would seem that the levy of an attachment or an execution, which might in the orderly course of practice result in such a transfer, might also be made a condition for a breach of which the term should be forfeited. “Assailed for any debts” is the practical equivalent of a levy by attachment or execution.
It is not necessary to distinguish between an oil-and-gas lease like the one under consideration and an ordinary lease of land. The principle upon which such a condition may be upheld in the latter applies to the former with equal force.
The judgment in favor of the plaintiff against the defendant is affirmed. The order directing the sale of the attached property should be modified so as to provide for the sale of all the attached property except the specific title and interest in the Yockey lease which was transferred by the assignment from the interpleaders to the defendant. The cause is remanded for such modification. | [
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Per Curiam:
The questions raised in this case are substantially the same as those already disposed of in The State v. Lumber Co., ante, p. 399. Upon the authority of that case the judgment here is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
George T. Brown sued the Missouri, Kansas & Texas Railway Company on account of coal alleged to have been lost by it in the course of shipments made to him over its line. The court appointed a referee to report on the facts. The referee, among other findings, reported that no competent evidence had been introduced to show either the quantity of coal shipped to the plaintiff or the quantity actually received by him. The court, being of the opinion that there was competent evidence on both points, modified these findings accordingly, found the amount of shortage shown, and gave judgment for the plaintiff. The defendant appeals and urges two grounds of error: First, that the court had no authority to change the referee’s findings of fact, and, second, that the evidence did not support the judgment.
In volume 34 of the Cyclopedia of Law and Procedure it is said:
“While in some jurisdictions the court may disregard the findings of fact of the referee and make new findings on the evidence reported, or modify or change the facts as found, the general rule is that the court has no such power.” (p. 885.)
This difference in practice exists, but the preponderance of authority in favor of what is stated as the general rule is not so great as might seem from the number of cases cited. Some of them involve a different phase of the subject, some are affected by statute, and one turns upon the fact that the reference was authorized only by the agreement of the parties. In Missouri, as shown by the note to the text quoted, the court may modify the referee’s findings of facts where the reference is or might be compulsory, but not where no referee could have been appointed except by consent. The case of Boatmen’s Bank v. Trower Bros. Co., 181 Fed. 804, is based upon that distinction. (See, also, 17 Dec. Dig., p. 1218, tit. “Keference,” § 106.) Here the reference was by order of the court, and not by consent of the parties. In this state the tendency is to a liberal view of the control of the trial court over the referee’s findings. (Kelley v. Schreiber, 82 Kan. 403, and cases there cited; Bethell v. Lumber Co., 39 Kan. 230, 236.) In the present case the findings of the referee which the court changed were not based upon conflicting oral evidence. There was nothing in the report of the referee to suggest a doubt of the truthfulness of any witness. On the contrary, it fairly appeared that the testimony .given was accepted as true. The referee found that the evidence had no tendency to prove certain facts; the -court thought it sufficient to establish them. The difference of opinion was not whether the statements in evidence were to be believed, but what inferences were to be drawn from them — a question of fact which the court had as fair an opportunity to decide as the referee; and what they tended to prove — a question of law. In this situation there was no occasion for a new trial. The evidence was before the court, not only without conflict of testimony, but practically with a finding that it was all true. It remained only for the court to make the inferences of fact and conclusions of law and render .judgment.
Some of the coal shipments originated on the defendant’s line and some on that of another company. The referee, found that there was no evidence as to the weight of any shipment. The court changed this finding so that it read in effect that there was no evidence •on this point except the weights given by the consignor to the carrier, which were adopted as a basis for freight ■charges and inserted in the bills of lading. Ordinarily bills of lading are prima facie evidence against the carrier issuing them of the amount of goods received. (4 A. & E. Encycl. of L. 522; 1 Hutch. Car., 3d ed., § 158.) The defendant maintains that here they have mot that effect, because of the insertion of the qualify ing words “in apparent good order” and “weights subject to correction.” It is doubtful whether the first phrase can. apply to material shipped in bulk (6 Cyc. 418, 419), but in any event it does not change the effect of the instrument as prima facie evidence. (4 A. & E. Encycl. of L. 522, 523, note 7; 6 Cyc. 422.) The expression “weights subject to correction” has an important function. It avoids the estoppel which would otherwise under some circumstances preclude the carrier from disputing the weight. (6 Cyc. 418.) It does not destroy the prima facie effect of the recital as to quantity; it merely leaves the matter open to further inquiry, instead of being absolutely concluded. Its insertion in a bill of lading has been held, where other rights have intervened, not even to prevent the statement of weight from being conclusive, except as to minor errors. (Tibbits v. R. I. & P. Ry. Co., 49 Ill. App. 567, 572.)
The question whether the recital of a bill of lading as to quantity is competent evidence against a connecting carrier is more difficult. In section 1348 of volume 3 of the third edition of Hutchinson on Carriers it is said:
“The receiving carrier will be regarded as the agent of the succeeding connecting carriers for the purpose of accepting the goods for transportation over the connecting lines, and the receipt or bill of lading given by such receiving carrier will be competent evidence, in an action against any of the succeeding carriers into whose possession the goods may have come, to show the delivery for transportation, the condition of the goods' at the time of such delivery, and the terms of the shipment.”
The only ease cited in support of this text is Southern Express Co. v. Hess, 53 Ala. 19, where exceptional circumstances were relied upon as making the company receiving the goods the agent .of the connecting carrier. In the present case we think that the act of the defendant in collecting freight charges upon the basis of the weights stated in the bills of lading was an adoption by it of such weights, which thereby became prima facie evidence against it of the amount of coal shipped.
The connecting carrier is presumed to have received the quantity of goods shown to have been delivered to the initial carrier. (3 Hutch. Car., 3d ed., § 1348, second paragraph of note 6; Cooper & Co. v. Geo. Pacific Railway Co., 92 Ala. 329; S., F. & W. R’y Co. v. George L. Harris, 26 Fla. 148.) The remaining question, therefore, is whether the plaintiff showed that he received a less quantity of coal than the bills of lading described.
The plaintiff testified that the custom was for the railroad company to place a car of coal on the sidetrack and notify him; that he would then notify his teamsters and have them unload it, hauling the coal to his scales, where it was weighed. The company’s liability as a carrier therefore ceased upon his assuming control. (6 Cyc. 457.) The referee found that the plaintiff correctly weighed the coal that was transferred from the cars to his scales, but that there was no competent evidence that all the coal in any car was so transferred. The court changed this finding concerning the lack of evidence, and held that as the plaintiff had shown due care in the handling of the coal there was no presumption of any loss after he took charge. The plaintiff further testified in general terms that he always exercised supervision over the drivers; that he was- careful to see that they unloaded the coal as he ordered it; that he oversaw them in the performance of their duties; .that he had a general supervision of everything that went on, and a knowledge of the shortage of every car. But upon being asked how he knew that the teamsters brought all of the coal from the cars to the scales he answered: “There is a railroad law that requires us to do certain things, and when they were not done we find it out instantly.” No explanation was given as to what he meant by this. H¿ also said in answer to the same question that the teamsters were paid by the ton for hauling, and would not be apt to throw any of it away. At another time he said he was testifying on the record of the system he used, and that that was the knowledge he had of the transaction. It seems clear, therefore, that he-did not profess to be speaking from personal knowledge. Again, he testified that there was some little stealing of coal during the unloading at the yards; that most of the coal cars were covered and were sealed on their arrival; that his effort was to unload the cars so far as practicable on the day they were delivered, so as to lessen his loss; that sometimes when a night intervened before a car was emptied he had sealed it, but not always. None of the teamsters was produced, nor was any witness who had inspected this part of their work or who knew that all of the coal or substantially all of it was transferred from the cars to the plaintiff’s scales. Of course it was not necessary to have produced witnesses who had watched the operation of unloading throughout, but no one who testified in behalf of the plaintiff seemed to have known anything personally about the coal until it reached his scales. The loss for which recovery was had was distributed among thirty-six cars, and averaged about one ton to a car. On one car it was over five tons, but with this exception it ran approximately half a ton to two tons and a half. It seems unlikely that the loss could have occurred wholly after the arrival of the cars, but some considerable portion of it may. The plaintiff has. the burden of showing how much of it had taken place before delivery to him, and, having failed to produce any evidence from which that can be ascertained, must be held to have failed in his proof.
The judgment is reversed and the cause remanded,: with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
Edwards sued the Flemings to quiet his title to a tract of land of about ten acres. The defendants formerly owned the land, and, in 1891, conveyed the same to Floyd E. Fleming by warranty deed,, which described the tract as follows:
“Commencing twenty (20) rods west of the northeast corner of northeast quarter (1,4) of section thirty-three (33), township (20), range thirteen (13), thence-west sixty (60) rods, thence south twenty-six rods, to hedge fence, thence east sixty (60) rods, thence-north to place of beginning, containing ten (10) acres, more or less.”
The petition alleged that Floyd E. Fleming was in possession of the land under this conveyance until 1908,, when he conveyed by the same description to the plaintiff, and that the plaintiff has been in possession of the-land ever since the conveyance to him. There was the-further allegation that both deeds made the “hedge-fence” an artificial boundary and a part of the description of the land conveyed. 'The plaintiff also alleged that he and his immediate grantor had been in the open, notorious, exclusive and adverse possession of the-tract of land, and the whole thereof, up to the hedge fence on the south, for more than fifteen years preceding the beginning of the action; and, further, that a. short time before the action was brought the defendants had entered upon the tract of land claimed by the plaintiff and moved a wire fence, and are now claiming that the hedge fence is not the true boundary on the south, and claim to own the land that lies immediately north thereof.
The defendants in their answer set up a survey made by the county surveyor on the 18th day of January,. 1908, at their request, and upon due notice to the plaintiff, as required by the statute, and alleged that on the day appointed the plaintiff personally appeared at the time and place of survey; that the county surveyor duly surveyed and established the comers and boundaries between the lands of the defendants and the lands of the plaintiff, and that the report and plat of' the survey so made were thereafter duly filed in the office of the county surveyor, and that the survey was. acquiesced in both by the plaintiff and the defendants,, and that no appeal therefrom was ever taken. To the answer there was attached a copy of the surveyor’s re- ■ port, and affirmative relief was asked declaring the boundaries to be those established by the survey.
In his reply the plaintiff alleged that there were no-disputed comers or boundaries between the lands of the parties and there was no occasion for any survey. The reply also alleged that the notice served upon him by the county surveyor was insufficient because, in describing the land to be surveyed, it did not follow the description in the deeds under which he held, and that there' were a number of other irregularities in the-survey.
At the conclusion of the evidence the court made a. number of special findings, and found generally for the. plaintiff and against the defendants. A decree was entered quieting title in the plaintiff to the disputed tract -of land. The defendants appeal.
Among the special findings are: That the plaintiff and his immediate grantor had been in the open, notorious, exclusive and adverse possession of the tract of land claimed by him, and the whole thereof, for more than fifteen years, and that when the defendants conveyed the land in question to Floyd E. Fleming they intended to, and did, convey to him a certain tract of land inclosed by four certain fences, to wit, a hedge fence on the north, a hedge fence on "the west, a hedge fence on the south, and a post-and-wire fence extending from the hedge fence on the south and along the entire east side to the hedge fence on the north, and that the fences had remained substantially located in the same places from the time of their being built until some time during the month of March, 1909, and after the conveyance to the plaintiff.
The defendants offered testimony to show that the possession had not been adverse. But there was little ■conflict in the testimony. Defendant William H. Fleming testified that the hedge fence on the south was planted more than thirty years ago, not for the purpose of fixing any boundary line, but in order to fence off a pasture used by. his father, who at that time owned the whole eighty acres. The plaintiff lived within a few rods of the land for forty-two years. He testified that he furnished the plants for the west and south hedge fences, and helped the old gentleman, Fleming, then the owner, to set them out; that twenty-five years ago a post-and-wire fence was built along the whole east side, inclosing the entire field; that the fences were on the same line when he bought the land in 1908.
Floyd E. Fleming testified that he had owned this tract -of land; that he bought it from his brother, defendant William H. Fleming, and sold all he owned to the plaintiff; that he knew the boundaries of the tract; that it was fenced on the east with a wire fence, and on the north, west and south by hedge fences; that during the seventeen years in which he occupied the land the defendants, never to his knowledge, claimed to own any of the land inside these fences. There was testimony of a witness who had rented the land as the “Floyd E. Fleming tract,” and who occupied it up to the south hedge, that the defendants never claimed to own any of the land within the fences until after the conveyance to the plaintiff. The findings of the court are fully sustained by a preponderance of the evidence. The following is a plat of the survey upon which the defendants rely:
The plaintiff claims the land bounded on the north by the public road and on the west, south and east by the dotted lines. The defendants own the land south and east of the plaintiff’s land, and the boundaries fixed by the surveyor gave to the plaintiff only the land included within the straight lines, amounting to 9.75 acres, which is 3.75 acres less than the plaintiff claims. The controversy, so far as the defendants are concerned, is over the location of the south and east boundaries of the tract.
The defendants rest mainly upon the conclusiveness of the survey under section 2275 of the General Statutes of 1909 (Laws 1891, ch. 89, § 10), which provides that “the corners and boundaries established in any survey . . . where no appeal is taken from the surveyor’s report . . . shall be held and considered as permanently established, and shall not thereafter be changed.”
Aside from the plaintiff’s claim that the survey was irregular and void, his main contention is that he pleaded and proved his title by a deed and adverse possession for over fifteen years, and that the only defense offered to the trespass of the defendants was the record of the survey. In answer to this contention the defendants insist that the possession of the plaintiff and his immediate grantor was through a misapprehension of the true boundary lines, and that the possession was therefore not adverse. The defendants rely upon the following decisions: Winn v. Abeles, 35 Kan. 85; Swarz v. Ramala, 63 Kan. 633; Shanline v. Wiltsie, 70 Kan. 177; Scott v. Williams, 74 Kan. 448; Crawford v. Hebrew, 78 Kan. 401. These cases, however, recognize the doctrine that the character of the possession depends upon the intent with which it is taken and held. The reason why possession held under a mistake as to the true location of the boundary line is not adverse is stated to be, in Shanline v. Wiltsie, supra (p. 182), cited with approval in Scott v. Williams, supra, “that there is no intention on the part of the occupant to exercise, or on the part of the owner to suffer, any dominion beyond the true line, wherever it may be.” (74 Kan. 451.) In Scott v. Williams there was testimony to the effect that the plaintiff claimed no more land' than was in the northeast quarter of the section, and, of course, the possession was held not to be hostile or adverse.
It would be impossible to reconcile the conflict in the authorities generally respecting the effect of possession of real property taken and held under a mistake as to the true location of the boundary line. There are many cases which state the rule in general terms and apparently hold that under no circumstances can the possession be adverse where there was a mistake as to the true boundary. The better-considered cases, however, recognize the existence of two rules, or, at least, they make an exception and hold that the general rule 'has no application where the party holds possession with intent to claim to the boundary line in any event. (1 A. & E. Encycl. of L. 791, 792.) In volume 1 of the Cyclopedia of Law and Procedure it is said that “the real test as to whether or not a title will be acquired by a holding for -the period prescribed by the statute of limitations is the intention of the party holding beyond the true line. It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines the question of disseizin.” (p. 1037.) In Preble v. Railroad Co., 85 Maine, 260, the court recognized the existence of the two rules, and in the opinion it was said:
“The distinction between them is neither subtle, recondite or refined, but simple, practical and substantial. It involves sources of evidence and means of proof no more difficult or complex than many other inquiries of' a similar character constantly arising in our courts.”' (p. 266.)
Numerous cases illustrating both rules are referred' to and collated in a note to that case in 21 L. R. A. 829-In the note the editor cites a large number of cases holding that one may acquire title by adverse possession by claiming and occupying up to a fence, notwithstanding by mistake he supposes the fence to be on the true line. Thus, in Hitchings v. Morrison, 72 Maine 331, it was held that if the title is claimed clear to the fence, which is not on the true line, the title may be acquired by adverse possession, although by mistake it was supposed to be on the true line. In Tamm v. Kellogg, 49 Mo. 118, it was decided that if possession was held to .a fence under the claim that it was the true line, and the other party acquiesced or failed to take steps to disturb possession, it was adverse. And, again, in Handlan v. McManus, 100 Mo. 124, it was decided that if .a fence is held as the true division line by one of the parties, who claims to hold all land to the fence, his possession is adverse. To the same effect are: Wilson v. Hunter, 59 Ark, 626; Ayers v. Reidel, 84 Wis. 276; Bunce v. Bidwell, 43 Mich. 542; Hockmoth v. Des Grand Champs, 71 Mich. 520; James M. Watrous v. William A. Morrison, 33 Fla. 261; Alexander v. Wheeler, 69 Ala. 332; Fuller v. Worth, 91 Wis. 406; Graeven v. Dieves, 68 Wis. 317; Taylor v. Fomby, 116 Ala. 621; Tex v. Pflug, 24 Neb. 665. (See, also, note to Finch v. Ullman, 24 Am. St. Rep. 383.)
In Alexander v. Wheeler, supra, it was said:
“The quo animo, or intention with which possession is taken and held by a defendant, must always constitute an essential consideration. . . . But the rule is different where the fence is believed to be the true line, and the claim of ownership is up to the fence as located, even though the established division line is erroneous, and the claim of title was the result of the mistake. In such case there is a clear intention to claim to the fence as the true line, and the possession does not originate in an admitted possibility of mistake.” (p. 340.)
To the same effect is Hoffman v. White, 90 Ala. 354.
There must be an intention to claim the land within a certain boundary, whether it eventually be the correct one or not. Where, however, the intent to claim title exists only upon the condition that the fence is on the true line, the intention is not absolute, but conditional, and the possession is not adverse. (Shanline v. Wiltsie, 70 Kan. 177; Scott v. Williams, 74 Kan. 448; Dow v. McKenney, 64 Maine, 138.)
There is no evidence in this case, as there was in Scott v. Williams, supra, that the claim was a provisional one. Two presumptions always obtain with respect to the possession of real estate: (1) It is presumed that the possession is in subordination to the true title; (2) where there is a deed, it is presumed that the grantee entered into possession under his deed, claiming only the title given him by his deed, and that his possession w;as restricted to the premises granted. (Fuller v. Worth, 91 Wis. 406, 410.) Neither of these presumptions hinders, and both help, the claim of the plaintiff. If we look to the deeds under which the plaintiff and his immediate grantor took and held, possession, we find that they describe the land as bounded on the south by a hedge fence, so that his entry, his possession and his claim of title are identical. As was said in Tex v. Pflug, 24 Neb. 666: “He took possession-to the line fixed by the surveyor, and designated as his boundary by his grantor, and held with reference to it, and to nothing else.” (p. 669.)
It may be observed that the findings, as well as the evidence, seem to preclude the possibility of the possession having been taken and held through a mistake as to the true location of the boundary line. There is no finding that the claim of the plaintiff and his immediate grantor was provisional — that is, that they claimed to own up to the fence only upon the supposition that this was the true boundary. Nor is there any finding that the fence is not the true boundary. If we turn to the evidence we find nothing to suggest that possession was taken and held up to the fence through a mistake, or that the fence was not the true boundary, except the evidence of the recent survey, made a short time before the commencement of the suit. This survey was made at the request of the defendants, who owned the land on the south and east. The evidence is that they told the county surveyor to get the description of the land of the plaintiff from his recorded deed, and to serve him with proper notice. It appears, however, that in his notice to the plaintiff he did not describe all the land which the plaintiff claims. Neither in the notice nor the survey was any attention paid to the artificial boundaries mentioned in the deeds under which the plaintiff holds. The notice and the survey proceed upon the theory that the land he was to survey and establish the boundaries of was a tract of ten acres, more or less, commencing at a stone twenty rods west of the northeast corner of the quarter, “then west sixty rods, then south twenty-six rods, then east sixty rods, then north to place of beginning.” The west line of the tract which the plaintiff claims to own is described in his deeds as running “south twenty-six rods to hedge fence, then east sixty (60) rods,” etc.
The only evidence, therefore, of any mistake as to the south boundary is that a survey, not of the entire tract as described in the plaintiff’s deeds or as claimed to be owned by him, but of a different tract of land, shows a south boundary different from the hedge fence. It is altogether probable that the objections raised by the plaintiff to the validity of the survey, based upon the variance in the description of his land in the notice and the description in his deeds, would, in a proper case, be held to be a mere irregularity of which advantage could only be taken by an appeal from the survey. (Shanline v. Wiltsie, 70 Kan. 177.) But this is not an action to set aside a survey, but to quiet title to a tract of land to which the plaintiff claims to have held adverse possession for more than fifteen years, so that, in our view, the validity of the survey is not involved, and we only refer to the alleged defects therein to show that there is no evidence that the hedge fence on the south is not the true boundary of the land actually claimed by the plaintiff to be his.
'The theory of the defendants, of course, is that a valid survey from which no appeal was taken has permanently fixed the boundaries between the two tracts and determined that the hedge fence never was the true boundary, and that it necessarily follows that the possession of the plaintiff was acquired under a misapprehension as to its true location. If, however, we concede that such is the effect of the survey, still, under the authorities we have cited, the plaintiff’s possession would be adverse, notwithstanding the mistake, if the intention was to take and hold to the fence in any event. Upon this theory we have deemed it necessary to review the cases holding that the test is not whether there was a mistake, but what was the intention of the person holding possession up to the mistaken boundary.
Viewed from still another aspect of the case the judgment must be affirmed. The petition alleges and the evidence abundantly shows that the defendants, having by their deed fixed the hedge fence as an artificial boundary of the land conveyed, acquiesced in that being the true boundary for a period long enough to estop them from claiming the contrary. It is well settled that adjoining landowners may, either by writing or parol, agree upon the boundary between their lands, and that their possession on either side up to the boundary so agreed upon will be mutually adverse. (Steinhilber v. Holmes, 68 Kan. 607; Sheldon v. Atkinson, 38 Kan. 14; Alexander v. Wheeler, 69 Ala. 332; Yates v. Shaw, 24 Ill. 367; Cleveland v. Obenchain, 107 Ind. 591; McNamara v. Seaton, 82 Ill. 498; James M. Watrous v. William A. Morrison, 33 Fla. 261; Clark v. Hulsey, 54 Ga. 608. See, also, note to case in 21 L. R. A. 833, and note to case in 39 Am. St. Rep. 154; 1 Cye. 1036.) The purpose of the original proprietor in planting the hedge throws no light upon the matter. He owned the land on either side and did not intend the fence as a boundary line; but the• defendants afterward, in their deed, expressly fixed upon this hedge as the south boundary line of the tract which they conveyed. Their situation is the same as though they had agreed with the adjoining landowner that this should be the boundary line. Their acquiescence in it as the true boundary line for a period even less than the statutory period for acquiring title by prescription would estop them. (Sheldon v. Atkinson, supra.) Their acquiescence continued beyond the statutory period, and, under the circumstances of this case, should, upon every principle of justice and equity, estop them from now claiming that the fence is not the true boundary.
It is unnecessary to consider whether the court erred in holding the survey void, for the reason that the judgment rests as well upon the findings of adverse possession by the plaintiff and acquiescence in the boundary line by the defendants. The latter is included in the general finding, and is fully sustained by the evidence. This being an action to quiet title, the survey, however valid, can not defeat the action. As held in Swarz v. Ramala, 63 Kan. 633, the title to real estate is not put in issue in a determination by the county surveyor of the true boundary line between two tracts of land. It was said in the opinion in that case: “Adverse possession may change the title to real property, but it can not change the location of a quarter section line.” (p. 637.) Conversely, it may be said that a valid statutory survey may change the location of the boundary line between two tracts of land, but it can not change the title to the land itself. Suppose that at the time the survey was made the plaintiff held an unrecorded deed conveying to him a perfect title to the strip of land in controversy: it would hardly be contended that his failure to appeal from the survey vested the title to this intervening strip of land in the defendants or prevented the plaintiff from asserting title by his deed. Conceding its validity, the only effect of the survey is to determine the quantity of land which the defendants deprived themselves of by agreeing in their deed upon a different boundary, and their long acquiescence in that and the other boundaries, and by the adverse possession of the plaintiff.
The judgment is affirmed. | [
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Per Curiam:
This is an action upon a replevin bond to recover damages for the failure of the plaintiff to return the property. The scope and effect of the judgment in the replevin action was determined in the case of Hines v. Stahl, 79 Kan. 88, and the doctrine there announced requires an affirmance of the judgment. | [
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Per Curiam,:
The controlling evidence in this case was given by witnesses who demonstrated the facts by using a model of the machine by which the decedent was killed. Here is a typical question and answer:
•• “Ques. You say he put his hand in just the way you are doing it there? Ans. Right in this way [indicating] under that spout, and when he tripped it appeared like his hand turned over that way [indicating] .”
. The model is not before this court, and if it were the demonstrations could not be reproduced here. Consequently the general and special findings of the jury will not be disturbed as contrary to or unsupported by the evidence.
The action having been prosecuted under the factory act, the court committed no error in refusing to give the instruction requested relating to assumption of risk, and it is not important whether the jury should have acquitted the decedent of contributory negligence. (Manufacturing Co. v. Bloom, 76 Kan. 127; Caspar v. Lewin, 82 Kan. 604.) However, it may be observed that at common law the adoption of a method not so safe as another does not necessarily constitute contributory negligence. The course pursued must, in addition, be so dangerous that a reasonably prudent person would not adopt it. (Brinkmeier v. Railway Co., 69 Kan. 738.) Therefore, the fact that the decedent used his hand instead of a shovel does not convict him of contributory negligence.
The decedent was clearly in the discharge of his duty, and for the reasons already indicated this court can not declare that the absence of a safeguard did not contribute to his injury.
It is idle to contend that because of the statement of the common law in the tenth instruction the force of the fourth, seventh, thirteenth and fourteenth instructions may not have been apprehended. The objection to the fourteenth instruction is too hypercritical to deserve extended comment.
The bit of evidence complained of does not tend to show, as the motion to strike out assumed, that some other machine had a guard. It merely shows another machine in precisely the same condition as the one in question. The question whether the machine in controversy needed a guard and the question whether a guard on such a machine was practicable were not affected one way or the other.
The question whether the plaintiff had the right to maintain the suit should have been raised by demurrer or by answer. Instead of this it was first raised in a supplemental brief filed in this court by new counsel, after the cause had been briefed on both sides by the attorneys of record and was ready for submission. Therefore, the defense, if it be a defense, was waived.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The appellee, G. V. Rickseeker, was probate judge of Reno county from January 11, 1905, to January 11, 1909. During the time he was so in office ■chapter 339 of the Laws of 1903 was in force. A part of section 1 of that chapter reads:
“In counties in which any permit or permits are issued and in force the probate judge shall receive, in addition to other compensation allowed by law, a salary at the rate of fifteen dollars per annum for each one thousand inhabitants in such county, during the time any permit or permits are in force in such county, which salary shall be in full compensation for all services rendered by the probate judge under this act.”
During the time the appellee held the office of probate judge no permit was issued or in force in Reno ■county, and no services were rendered by him under the prohibitory law. The board of county commissioners ■denied liability for such salary or any part of it, and the •appellee commenced an action against the county and recovered a judgment aggregating the sum of $554.98, including costs.
On March 2, 1909, the appellee made application for •a writ of mandamus to compel payment of the judgment, and also the additional sum of $1008.15, these amounts being stated in different counts, the amount of the judgment in. the first count and the additional salary in the second count. The court issued a peremptory writ as to the first count and an alternative writ as to the second count, the substance of the alternative writ Toeing that the appellant examine the claim of the appellee and allow him such an amount as under the census at the time and the sum fixed by the statute was due him, not exceeding the aggregate sum of $1000 per annum, this being the limit fixed by law. The appellant filed an answer to the alternative writ alleging several defenses, among which were the following: <1) That the appellee performed no service and earned no fees under the prohibitory law; (2) that the claim is. in excess of the amount allowed by law. Upon the issues made by the pleadings a trial was had and the court made the alternative writ peremptory, and from this judgment the appellant brings the case here.
The judgment mentioned in the first count having become final, we think the writ was properly issued as to that claim, but it is urgently contended that the claim involved in the second count has been at all times denied by the appellant and the liability of the county' therefor at ajl times disputed. It is also urged that because of this controversy mandamus was not a proper remedy. It is further claimed that the language of the statute which provides for the payment of this salary contemplates that it shall be paid only when actual service has been rendered as provided by the statute, and that its payment is limited to counties where a permit or permits exist. It is urged that these conditions must exist before the county will be liable for the payment of any salary under this statute.
It is claimed that this statute is unconstitutional, but we do not concur in this contention. Upon the whole case we find that the peremptory writ of mandamus issued upon the second count was improper and erroneous, and the judgment of the court is reversed so far as that writ is concerned, and so much of it as related to-the judgment is affirmed, and the district court is directed to enter such' judgment as under this conclusion will be proper. The costs are divided. | [
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The opinion of the court was delivered by
Clark, J. :
This is an action brought by George W. Wright to recover damages from the city of Abilene, a city of the second class, for personal injuries sustained by him through the alleged negligence of the defendant. The allegations of negligence and of items of damages sustained by the plaintiff are thus set forth in the petition :
“That for more than five years last past, a certain street, commonly called A street, between Cedar and Mulberry streets, in said city of Abilene, has been a public highway, open and free to all persons to pass and repass at their will at all times ; that on or about the 24th day of September, A. D. 1891, said city oT Abilene carelessly and negligently permitted the side walk on the south side of A street, between Cedar and Mulberry streets, within the corporate limits of the city of Abilene, to become broken and out of repair, and in a dangerous condition, and so to remain for a long space of time, to the great danger of persons passing along said street; that said plaintiff, without his fault or negligence, in passing along said street on the 24th day of September, A. D. 1891, unavoidably stepped into a hole in said sidewalk and fell, and thereby the arm of said plaintiff became and was lame, sick and diseased, and still continues lame, sick, and diseased, to the damage of said plaintiff in the sum of $5,000 ; and said plaintiff further says, that on account of his injuries so received he was prevented from attending to his necessary business, to his damage in the sum of $500, and was put to great expense in and about trying to be healed and cured of said injury, to wit, to the sum of $100 ; and that said plaintiff has been injured by the negligence of said defendant in the sum of $5,600.”
The answer consisted of an admission that the defendant was a city of the second class, and a general denial of all the other allegations of the petition. A trial was had, resulting in a verdict and judgment in favor of the plaintiff for $900. The assignments of error embrace the rulings of the court upon the admission of evidence, the instructions to the jury, and overruling the motion for a new trial.
The court, over the objection of the plaintiff in error, admitted in evidence certain pages of a plat book in the office of the register of deeds covering a strip of'land which in the petition is designated as “A” street. No reason was assigned for failing to introduce the original plat, and the copy thereof, as recorded, would indicate that the original plat had not been executed by th,e owners of the land described therein, although the certifícate of the notary public attached thei’eto recites that the owners and proprie tors of the land, acknowledged that the plat was true and correct, and that it had been made by the surveyor whose certificate was attached thereto at their request and direction. While we think the court erred in the ruling complained of, we cannot say that the error was so prejudicial as to compel a reversal of the judgment. The evidence outside of this plat shows clearly that this strip of l'and had been commonly known for many years as “A” street; that it had been recognized as such by the city council and by the public generally; that it was used by the public as a highway and had been in such use for many years; that the street commissioner had repaired the sidewalk where this accident occurred ; that the citizens of Abilene had in 1870 petitioned the city council to widen this street, and that at that time it was recognized by that body as a public highway. In Town of Salida v. McKinna, 27 Pac. Rep. (Colo.) 810, it was held that evidence that a street through the main business part of a town is a public thoroughfare, generally traveled, and that the municipal officers have voluntarily assumed to keep the same in'repair, is sufficient, prima facie, to warrant a finding that the street has been duly dedicated and accepted as a public highway. In Mayor v. Sheffield, 4 Wall. 189, the court, speaking through Miller, J., said :
If the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and an individual is injured in consequence of the negligent and careless manner in which this is done, the corporation cannot, when it is sued for such injury, throw the party upon an. inquiry into the regularity of the proceedings by which the street was originally established.”
In Houfe v. Fulton, 34 Wis. 608, it was held, that while as a general proposition a town is not liable for injuries caused by tlie insufficiency of any road ór bridge unless the same is a lawful highway, yet where a road has been opened or a bridge erected by a town or its officers, or where one already created without public authority has been adopted by them by acts clearly indicating their intention that it shall be regarded as a public highway, the town is estopped from denying that it is a lawful highway, in an action for injuries caused by its insufficiency or want of repair. We think this case falls within the rules laid down in these decisions. The parol testimony of the witnesses was sufficient, prima facie, to warrant the finding of the jury that the street had been duly dedicated and accepted as a public highway. In fact, as this evidence was uncontradicted, the jury must necessarily have found that the defective sidewalk was upon a public street in the city of Abilene, even had the record, which was erroneously admitted in evidence, been excluded. But for aught that appears before this court the jury may have been instructed to disregard that record, and, were it necessary to so to do in order to sustain the trial court in overruling the motion for a new trial, we would be justified in assuming that the court so instructed the jury.
The jury were instructed that, if they found for the plaintiff, the amount of their verdict should be sufficient to compensate him for the expense of being treated for the injury which he claimed to have sustained, and for any loss of time, physical suffering and permanent injury resulting therefrom. The plaintiff in error contends that Wright could not recover for loss of time, “as the record contains no evidence whatever regarding the value of the time lost.” Whether the jury in estimating damages made any allowances for loss of time we cannot say, as they re turned no special findings of fact. We think under the evidence he was clearly entitled to recover nominal damages for loss of time.
It was also contended that under the petition the plaintiff was not entitled to recover for physical suffering ; that “such suffering means pain, and is a separate and distinct cause for damage over and above mere disability and permanent injury, and ... it must be declared to exist, and compensation asked therefor in the petition.” We think, however, that physical suffering is not only the natural but the necessary result of a fractured and bruised arm, and that therefore the general allegation of damages as set out in the petition was sufficient, as against a general denial, to support an award of damages based upon physical suffering endured by the plaintiff by reason of-the negligence of the city. But even-if the allegations were not as specific as they should have been in order to entitle the plaintiff to recover for physical suffering, the defendant could not raise that question for the first time by an objection to the. giving of certain instructions to the jury.
It is further contended that, as the evidence shows that the bill for medical attendance, which amounted to $85, had not been paid at the time of the trial, the court erred in instructing the jury that the amount of their verdict should be sufficient to compensate the plaintiff for the expenses of being treated for the injury which he claimed to have sustained. We cannot agree with counsel in this contention, nor do we think he is supported by the authorities: In Varnham v. City of Council Bluffs, 52 Iowa, 698, which was an action for ’the recovery Of damages for personal injuries, it was shown that the plaintiff' had employed a physician on account of such injuries, who had not been paid, and it was held that evidence was admissible to show the reasonable value of the services rendered' by him to the plaintiff; that the law would imply a promise to pay the same; that the plaintiff being under obligation to pay for them, she might recover therefor ; that the indulgence she received from her physician would not defeat her claim against the defendant. See also Klein v. Thompson, 19 Ohio St. 569 ; City of Indianapolis v. Gaston, 58 Ind. 224 ; Lunsford v. Walker, 8 S. Rep. (Ala.) 386; Donnelly v. Hufschmidt, 79 Cal. 74; 2 Sedg. Dam. §483.
Complaint is also made that the court instructed the jury that
"The gist of the charge or complaint is the negligence of the city; and to entitle the plaintiff to recover in this case it is necessary to prove : (1) A defect in a sidewalk within the*city limits, rendering it unsafe to travel over it; (2) that the defendant . city was negligent in permitting such defect to continue without repair ; (3) that the plaintiff, in passing over such sidewalk in the night-time, exercised reasonable care and diligence in doing so, notwithstanding which he was thrown down by reason of such defect and received the injuries complained of.”
The criticism of counsel upon this instruction is that the jury might be led to infer -therefrom that proof that the defective sidewalk was within the city limits would be sufficient to authorize a recovery of damages, regardless of the fact as to whether or not such sidewalk was upon a public street or highway. We are not able to determine whether the entire charge of the court would warrant the inference claimed by counsel, as the record does not purport to contain all the instructions given. It was held in Morgan v. Chappie, 10 Kan. 216, that
‘ ‘ where the error alleged is the giving of an instruc tion, it must appear that such instruction is so full and complete and so manifestly wrong that the whole law applicable to the case could not have been correctly presented to the jury without a contradiction of that given before a reversal will be ordered.”
Tested by this .rule, we cannot say that the court erred in giving the instruction of which complaint is made. If this particular instruction was faulty it may have been so qualified by some other instruction as to appear unobjectionable: For the same reason, we cannot say that the court erred in refusing to give the instructioirs requested by the plaintiff in error. (Winston v. Burnell, 44 Kan. 367 ; Bard v. Elston, 31 id. 274 ; Davis v. McCarthy, 52 id. 116; Pac. Rld. Co. v. Brown, 14 id. 469 ; Ferguson v. Graves, 12 id. 39 ; The State v. O’Laughlin, 29 id. 20-24.)
Plaintiff in error further contends that the verdict for $900 was excessive, and that therefore the court erred in refusing to set it aside and grant a new trial. The trial was had nearly one year after the injury, and there is some evidence tending to show that even at that time the plaintiff had not fully recovered the use of his arm. From-a careful examination of the evidence, we cannot say that the damages allowed are so excessive that they appear to have been given by the jury under the influence of passion or prejudice, and that therefore the defendant is entitled to a new trial, under section 306 of the code.
It follows from what has been said that the judgment must be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J.:
The plaintiffs in error, as plaintiffs, brought this action in the district court of Leaven worth county against the defendant in error to recover the sum of $326, which was admitted to be due and owing them on an account for cigars sold and delivered to the defendant. As a counter-claim, the defendant averred the making of a contract between him and the plaintiffs by which the latter agreed to manufacture and sell to him a certain quality of cigars, with a box label which had been designed by the parties and called the “ Golden Bell,” and which the defendants agreed to purchase in certain specific quantities, it also being the understanding and agreement that the plaintiffs should not sell cigars under such label to any other person. This agreement it was alleged had been violated by the plaintiffs, by their using said label in sales of cigars to other persons, to the damage of the defendant in the sum of $2,000. A trial was had by a jury, and a verdict returned for the defendant for $26, for which judgment was rendered. The only controversy upon the trial was as to the defendant’s countermlaim.
Tire action was properly tried upon the theory that it presented a simple case of breach of contract, calling upon the defendant to prove the making of the contract alleged, its breach, and the consequent damages. The court instructed the jury that the burden of proof upon these matters was upon the defendant, and that before he was entitled to any deduction from the amount of the plaintiff’s claim, he must establish not only that there was a breach of the contract, but that damages were sustained. An examination of the special findings of fact made by the jury, conclusively shows that the defendant wholly failed to make a case. He undertook to prove that the plaintiffs had violated their contract, by making certain sales of cigars, under the “ Golden Bell ” label, to persons in the city of New York, and in the states of.Michigan, Indiana, n,nd Ohio. The plaintiffs were manufacturers and wholesale dealers in cigars, located in the city of New York. The defendant was engaged in the wholesale cigar business in Leavenworth, his trade being almost entirely confined to states outside of those above named. There was no evidence tending to show that the sales complained of in any way interfered with his trade, or that they caused him loss or damage in any respect. Upon this the following findings were made:
“7. Did any sale of Golden Bell cigars by plaintiffs interfere with the sale of any of defendant’s cigars under any Golden Bell label? Ans. Upon the evidence, we are unable to say.”
“9. Did plaintiffs or any other than defendant to whom plaintiffs had sold cigars labeled with the-Golden Bell label, compete in the same market, or in any part of the same market, with defendant for or in the manner of selling cigars under the Golden Bell label? A. Upon the evidence, we are unable, to answer.”
“14. State how much the jury find as damages in favor of defendant on each lot of cigars sold by plaintiffs with any such label thereon, as claimed by defendant, and to whom each such lot was sold. A. Jury from evidence unable to answer.”
Such findings are equivalent to findings against the defendant upon the matters included therein. (Morrow v. Comm’rs of Saline Co., 21 Kan. 484; A. T. & S. F. Rid. Co. v. McCandliss, 33 id. 366.)
Under such circumstances, the defendant, at most, was only entitled to recover nominal damages, which, in this case, might be $1. The motion of plaintiffs for judgment on the special findings of the jury should have been sustained, notwithstanding the general verdict.
The judgment will be reversed, and the case re'manded, with directions to enter judgment in favor of the plaintiffs for $325, with interest thereon from September 25, 1891, the- date of the verdict, to the date when judgment is entered.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J::
The contention of the plaintiff in error is that the court erred in not rendering judgment for the said plaintiff in error on the findings of fact as made by the court, and alleging that the judgment should have been given for the. plaintiff in error instead of the defendant in error. The first conclusion of law arrived at by the court is based upon the seventh, eighth., ninth, tenth and eleventh findings of fact, and attacks the jurisdiction of the court over the person of John T. Holland in the foreclosure action of F. E. Bates & Co. against John T. Holland and others. According to those findings the original papers in said action were lost and could not be found. One of the original papers was the original process or summons. The appearance docket shores that a summons was issued and was returned “ served,” and said notation of the fact of said service of summons appears on said appearance docket.
The question fbr us to determine is, How was it served ? The summons being lost, we are unable to say what the return was. The presumption is that it was served according to law. Now, what is there in the findings to overthrow that presumption? The finding is that two or three weeks prior to the commencement of said action John T. Holland and wife removed from the land described in the petition of plaintiff to other land in the vicinity thereof; that two or three weeks prior to the commencement of said action said John T. Holland went from Sumner county, commencement of said action, was seen in Sedgwick county, Kansas. The court also found “that the deputy sheriff of Sumner county, Kansas, testified that he left in the possession of certain persons unknown to’ him, who were then residing on the premises described in the petition of plaintiff, two copies of the summons issued in said action, and that he reported the said facts of service in such manner to the person who was sheriff of Sumner county, Kansas, in. 1878.” The court also found that the record in said case showed .that the said defendants John T. Holland and Emma. L. Holland were not brought into court by service county, Kansas, and, after the by publication. The court also found that there was no evidence that the summons was not served upon said John T. Holland in any other manner nor at any time after the commencement of the action and before the rendition of the judgment. Upon a careful examination of -the findings of fact we must hold that the first conclusion of law of the court, to wit: That the court “ did not acquire jurisdiction of the person of John T. Holland by reason of the commencement of the suit and service of summons,” is not warranted by said findings of fact.
It will be presumed, in the absence of any showing to the contrary, that the district courts have jurisdiction to render any judgment or order which it is shown that they in fact did render. All presumptions are in favor of the jurisdiction of the court. (Carey v. Reeves, 32 Kan. 723 ; Head v. Daniels, 38 id. 12; English v. Woodman, 40 id. 752.) Not only are the presumptions in favor of the jurisdiction of the court over the person of John T. Holland, but the appearance docket of the district court of Sumner county, Kansas, states that a summons was issued out of said court in said action, and returned ‘‘ served, ” and the notation of the fact of service of said summons appears on said appearance docket. To overthrow the presumption of jurisdiction and the presumption of the legality of the service by the sheriff, the court finds that ‘ ‘ two or three weeks prior to the commencement of the action the said John T. Holland went from Sumner county into Sedgwick county, Kansas, and after the commencement of said action was seen in Sedgwick county, Kansas.” This was not a finding that he was not in Sumner county at the commencement of the action, or that service of summons was not regularly made upon him either in ■said Sumner county or in Sedgwick county, Kansas. The court also finds that the deputy sheriff testified that he left copies of the summons in the possession of the unknown persons residing on the premises, and*, that he reported said fact of service in such manner to the person who was sheriff of Sumner county, Kansas, in 1878. This is not a finding that the sheriff of Sumner county accepted the report of the deputy as to the above service and made his return thereon upon such statement. There, is no attempt made to show whether the sheriff’s return recited that the service was made by delivering a copy to the defendants in person, or whether it was made by leaving a true copy at their usual place of residence. For all that appears to the contrary, the sheriff made a legal 'service of the summons and his return would sh.ow such service. The return of the sheriff upon original process is a very high class of evidence, tending to support the truth of such return. The presumption is that such return was regular and showed a valid service upon John T. Holland and Emma L. Holland. There is no attempt in this action to show that such was not the return of the sheriff; there was no attempt to show by John T. Holland or Emma L. Holland that they were not regularly and legally served, and the court finds that there was no testimony on the trial that the summons was not served in any other manner than as testified to by the deputy sheriff, and that there was no testimony that the said John T. Holland was not served at any time after the commencement of the action and before the rendition of the judgment.
The most that can be claimed for the ninth and tenth findings of fact is that they raise a doubt as to whether the summons was served upon them in Sumner county or in Sedgwick county, and whether or not the only service might not have been the leaving of the two copies by the deputy sheriff with the unknown persons residing upon the premises sought to be foreclosed. This certainly is not sufficient to overcome the presumption in favor of the jurisdiction of the court to render the judgment of foreclosure, and is not sufficient to overcome the presumption of the regularity and validity of the sheriff’s return, and is not sufficient to overthrow the return of the sheriff.
It is not necessary to notice the other assignments of error, for the reason that our views upon the question of jurisdiction will compel the rendition of a judgment in favor of the plaintiff m error.
The judgment of the district court is reversed, and the case remanded, with instructions to render a judgment in favor of this plaintiff in error, Henry Stunkle, and against the defendant in error, James H. Holland, for costs.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
On June 6, 1887, one William E. Mc-Dermott executed two promissory notes aggregating $108, payable to-the order of Nichols, Murphy & Greister, 12 and 18 months after due, respectively, in set-1-1 emeu i of a windmill and pump erected by the payees on a qu irter-section of land in Decatur county which belonged to the said McDermott. These notes afterward became the property of the Elgin Wind-power and Pump Company, the defendant in error in this proceeding. The real-estate above mentioned was incumbered by two mortgages : one for $850, and the other for $118. The second mortgage was owned by Charles A. Van Pelt, who was a partner of one Jay Olney in the loan and banking business in said county. The taxes levied and assessed against this real estate for the two .years immediately preceding February 24, 1891, and the interest which had accrued on the mortgage-indebtedness during the same period had not been paid, and on that date McDermott and wife by warranty deed conveyed said real estate to the said Charles A. Van Pelt. The Elgin Wind-power and Pump Company, as plaintiff below, seeks in this action to recover from the said Van Pelt & Olney, and the individual members of said firm, the amount due upon the two notes held by the plaintiff, and bases its right to such recovery upon an alleged verbal promise male by the said defendants to the said McDermott at the time of such conveyance, and as a-part of the consideration therefor, that they would pay to the plaintiff the amount due upon said notes. The plaintiff recovered a judgment'against Charles A. Van Pelt, and this proceeding is brought to secure a reversal of that judgment. The record shows that the entire agreement with reference to the conveyance of this land to Van Pelt and the consideration therefor was entered into between McDermott and Jay Olney. They were the only parties having any personal knowledge as to the terms of that agreement. McDermott’s testimony in relation to the conversation between him and Olney at the time the deal was made is as follows :
“ Ques. Give the conversation as near as you can. Ans. Well, he came there that day with the deed for me to sign and turn over that property to him, and I told him I wouldn’t do it unless he would accept of these other debts not specified in the deed. At last he accepted this debt, and I wanted him to accept of it in the deed, and he wouldn’t do it. He said it wasn’t necessary; that he would pay the debt and cause me no further trouble.
“ Q. What was the words you used to him when he agreed this note was to be a part of the consideration’? A. I told him the amount of the debt, $108, with interest on that at 8 per cent., I think; I wouldn’t be positive.
“Q. What did he say relative to his agreeing to pay that portion of the money to these plaintiffs? A. He said he would settle that debt and release me from further trouble.
“Q. Was that a part of the consideration upon which you finally'consented to sign the deed? A. Yes, sir.
“Q. What did Mr. Olney tell you about whom he wanted the deed made to, and who did you make it to? A. Made it to Mr. Charles Van Pelt.
“ Q. What did he tell you about this matter, why • he wanted it made to Van Pelt? A. I don’t know as he stated any reasons, any more than he said he wanted to get that into some man’s hands who had more money than I had. I believe he stated them reasons.”
Mr. Olney testified that the only consideration agreed upon for the deed was the cancellation and return' of three certain mortgage notes which McDermott had given to Van Pelt, and the assumption by Van Pelt of the first mortgage of $850, and the payment of the accrued interest thereon and the delinquent taxes on the real estate ; that he, Olney, had no interest in the land, nor in the second mortgage, although he admitted that he might possibly be liable for the payment of the interest on the first mortgage. This is all the testimony bearing upon this alleged promise of Van Pelt & Olney to pay these notes. The evidence is clear and uncontradicted that the second mortgage belonged to Van Pelt alone. The amount of this mortgage was but little in excess of the amount due on the windmill notes. It is evident that Olney had a personal interest in securing a conveyance of the title of this real estate to Van Pelt. 'While McDermott testified that Olney agreed to-pay these notes provided this real estate should be conveyed to'Van Pelt, there is nothing in the record tending to show that the latter ever agreed to pay this indebtedness, and the fact that his agent refused to insert such a stipulation in the deed would indicate-that Olney did not so understand the agreement. There is absolutely no evidence to support the verdict of the jury.
The judgment will, therefore, he reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Clark, J. :
One David R. Clements was the owner ■ of a dwelling-house and other property located about 150 feet from the center of the railroad track of the Atchison, Topeka & Santa Pe railroad, near the city of Burlingame, Osage county. On March 24, 1890, this property was destroyed by a fire caused by» the defendant in error in operating its railroad. The dwelling-house and its contents were at the time of the fire insured in the Home Insurance Company of New York in the sum of $1,370. On April 4, 1890, a duly authorized agent of the insurance company, adjusted the loss, and, in pursuance of a promise at that time made by the agent that a draft for the amount of the policy would be sent him, Clements signed a receipt on the back of the policy, and therein acknowledged the payment to him of $1,370, in full satisfaction of all claims against the company, and at the same time surrendered the policy to the agent. A draft-for the stipulated amount was soon thereafter sent to Clements by the company from its office in Chicago. On April 8, 1890, and prior to the actual payment of the loss by the insurance company, and without its knowledge or consent, Clements compromised and settled with the railroad company for the •damages resulting from the fire, and received from it $1,050, in full satisfaction of all demands-against it. The insurance company, claiming that the fire was caused by the negligence of the railroad company, and that the latter was, therefore, primarily liable for payment of the damages sustained by Clements, brought this action against the defendant in error to recover the $1,370 so paid by it. The jury returned special findings of fact and a general verdict in favor •of the defendant, and judgment was thereafter rendered in favor of the railroad company. The insurance company seeks a, reversal of that judgment.
The record shows that the plaintiff challenged for cause two talesmen who had been summoned as jurors, upon the ground that they had been in the employ of the railroad company for several years. These challenges were overruled by the trial court, and this ruling with others is assigned for error. Neither of- these parties was in the employ of the railroad company at the time the challenges were interposed, having been discharged from the service several months prior thereto, nor had either of them made application to the defendant for reinstatement, and the record fails to show that they were disqualified to sit as jurors at the trial of this action. Counsel for plaintiff in error ■complain that quite a number of the talesmen who were summoned as jurors had- formerly been employed by the railroad company, or had relatives employed by it, and contend that while the existence of such facts would not be sufficient ground upon which to base a challenge for cause, yet that, in the proper exercise of its discretion, the trial court should have excused such persons from sitting as jurors in an action in which the railroad company was a party. While •this suggestion might have much force if presented to a trial court under ordinary circumstances, yet it should be borne in mind that the general offices of the defendant in error as well as its principal shops were, and for many years prior thereto had been, located in the city of Topeka, Shawnee county, and that during all that period a very large number of persons had been employed by the defendant in said city, and that it would be‘an exceedingly difficult matter for an officer, without the exercise on his‘part of more than ordinary diligence, to summon 12 men in the city of Topeka, none of whom had ever been in the service of the railroad company or had relatives, either by affinity or consanguinity, who had not been or who were not then employed by the defendant in error. The alleged negligence of the railroad company which resulted in the loss under the policy occurred in Osage county, yet the plaintiff in error, while evidently cognizant of the existing conditions, elected to commence this action in Shawnee county, and for this reason ought not to be heard to complain •of the action of the trial court in permitting former employees of the railroad company to be called as tales-men. Prom an examination of the record, we are unable to discover anything upon which a question could reasonably be based that any attempt was made, either by the officers of the court or by the defendant in error, to secure other than a fair and impartial jury to try this cause.
It further appears from the record that one of the jurors had two sons working for the defendant at the time of the trial. The plaintiff challenged this juror for cause, but the court overruled the. challenge, and this ruling is also assigned for error. But no exception appears to have been saved to this ruling of the ■court.
The particular allegation of negligence charged against the defendant, as set up in the petition, is that
“Upon the said day, March 24, 1890, between the hours of 2 and 3 o’clock in the afternoon, an engine belonging to the defendant and engaged 'in pulling' a passenger train going east passed along the defendant’s track near the house of said Clements, and the said engine being constructed, and its spark-arrester being out of order, large quantities of sparks from the said engine were emitted, and they set fire to the said house o'f the said Clements and the house was burned to the ground. The said engine is believed by plaintiff to have been No. 642, and the plaintiff alleges that if the said engine had been properly constructed and in good and sufficient repair that the said sparks would not have been emitted nor the said property burned, and the plaintiff alleges that it was by reason, of the gross negligence of the defendant in the operation of its line of railroad that the eilgine was in said condition, and was in such condition as to emit sparks as aforesaid, and caused the damage alleged.”
Evidence was introduced by the defendant tending to disprove the allegation of the petition that the engine was faultily constructed or that its spark-arrester was out of order, and the jury made, among others, the following special findings of fact:
“10. Was the said property destroyed by fire originating from the operation of the defendant’s railroad? Ans. Yes.
“11. Was the burning caused by fire originating from the defendant’s locomotive? A. Yes.
“12. Was the said locomotive properly constructed ■and in good and sufficient repair, so far as it relates to the emission of sparks or fire? A. Yes.
“13. Did the locomotive emit burning sparks in unusual and dangerous quantities at the time and place of the fire? A. No.”
“ 15. Was the railroad negligent as to the condition of its engine immediately preceding the said fire and at the time thereof ? A. No.
“16. Did the fire originate from the improper construction of its engine or from the faulty condition or want of repair of its engine? A. No.”
Complaint is made of the action of the court in eliminating from interrogatory No. 16 the inquiry as to whether the fire originated from the negligent operation of the railroad; but we see' no error in limiting the inquiry to the particular negligence charged in the petition, which is that the engine was faultily constructed and was not in good and sufficient repair. The plaintiff in error contends that there is no evidence to support the finding that the locomotive did not emit burning sparks in unusual or dangerous quantities at the time and place of the fire. The evidence is uncontradicted that property adjoining the defendant’s right of way near Burlingame was frequently set on fire by sparks escaping from passing locomotive-engines. The evidence was clear that the wind was blowing very hard at the time of the fire, one witness testifying that it was “ a great gale.” We cannot say that this particular finding of the jury is unsupported by the evidence. As the engine was found by the jury to be in good condition and in proper repair, it necessarily follows that under the allegations of the petition no recovery could be had for any loss resulting from the escape of fire from the engine, it being purely accidental. The testimony of the agent of the railroad company was that he was not satisfied that the fire originated from the engine, or that the company was liable, but to avoid trouble he compromised the claim and paid Clements $1,050 on account of his loss, that being but little more than one-third of the amount which the agent testified Clements demanded from the company. We do not think the fact that the railroad company compromised and settled what it believed to be a doubtful claim should be held conclusive as to its liability. It was not liable unless the fire resulted from its negligence. The special findings of the jury exonerated the railroad company from any liability. As under the findings of fact and under the general verdict no recovery could be had from the railroad company, many of the questions argued by counsel for plaintiff in error need not be considered.
The judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
The plaintiff, as his cause of action, alleges that
“On December 20, 1890, the defendant, by and through its duly authorized agent, H. L. Phillips, of Olathe, Kan., agreed to furnish a car and carry over its line of railroad, from Elizabeth station, Kan., to Kansas City, Mo., one car of cattle of 22 head, for plaintiff, on the night of January 1, 1891, in considereration of which the plaintiff agreed to pay defendant the sum of $10 ; that pursuant to such contract he drove the said cattle to the stoclUyards at Elizabeth, on defendant’s railroad, but that the defendant, well knowing that plaintiff intended to take said cattle to market at Kansas City, Mo., and market them on the morning of January 2, 1891, in. disregard of its agreement so to do, failed, neglected and refused to provide the car for carrying said cattle, and failed, neglected and refused to carry said cattle to market to Kansas City, Mo., until the afternoon of January 2, 1891, too late for that day’s market; that by reason of said failure by defendant to transport said cattle he .was compelled to leave said cattle in the stock-yards at Elizabeth for a long time, viz., 18 hours, whereby said cattle became bruised and injured and shrunken in weight, and greatly lessened in their market value ; that he was by reason of said failure put to great loss of time and caused great inconvenience and trouble in looking after said stock and marketing them on January 3, 1891, and expense in feeding them ; that by reason of the delay aforesaid, and defendant’s failure to transport said cattle to mai’ket oxi the night of January 1, 1891, he was unable to market them until January 3, 1891, when the market price had greatly declined, and he was unable to get as much for his cattle on J anuaiy 3 as he could have' gotten on January 2, 1891, whereby he suffered great loss ; that by reason of the default of defexxdant, as aforesaid, he has been damaged in the sum of $90.”
The defendant railroad company filed answer of—
“(1) General denial; and (2) for a second and further defense and counter-claim against said plaintiff, this defendaxit says : That said plaintiff, at divers times during the month of February, 1891, ordered from the agent of said defendant cars to be delivered to Mm for the purpose of loading and shipment over the line of defendant’s railroad, which said cars were' duly delivered at the station requested for said purposes, but that plaintiff failed to use said cars, and this defendant says that the cars so ordered by said plaintiff for his use, which he failed to make use of, were maliciously ordered, for the purpose of damaging and injuring defendant’s business, and without any intention to make use of the same for the shipment of property over the defendant’s line of railroad ; that by reason of said wilful and malicious action this defendant has been damaged in the sum of $125. (3) Eor a third and furthef defense and counter-claim against said plaintiff, this defendant says, that on or about the — day of March, 1891, plaintiff ordered a car to be loaded with live stock to be shipped over said defendant’s line of railroad upon one of defendant’s regular freight-trains; that said plaintiff, well knowing the time when said freight-train would be ready to receive and forward said car, negligently and wilfully delayed the loading of the same, for the purpose of causing injury and damage to said defendant, for the period of two hours after the time when said freight-train should have been permitted to continue its journey, thereby delaying the entire train for over two hours, to the damage of said defendant in the sum
Defendant prayed judgment in thé sum of $325 and costs.
To the. second and third counts of this answer the plaintiff filed a demurrer, upon the following grounds : “(1) Because there is a misjoinder of causes of action in said answer ; (2) because the alleged causes of action therein have not arisen on contract, nor have they been ascertained by the decision of .a court; (3) because said causes of action sound in tortand, also, a motion to strike from said answer the second and third counts, for the reasons : “ (1) Because the alleged causes of action therein set out are improper to be set off in tliis action; (2) because the alleged causes of action therein have' not arisen on said contract, nor have they been ascertained by the decision of any court.”
The demurrer and motion were sustained by the court below.
No further answer was filed. Trial was had before the court and a jury, resulting in a general verdict for plaintiff in the sum of $39.45, upon which judgment was rendered. Defendant railroad company brings case here for review.
Paragraph 4177, General Statutes of 1889 (Code, § 94), provides, among other things : “ The defendant may set forth in Ms answer as many grounds of defense, counter-claim, set-off and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.”
Paragraph 4178, General Statutes of 1889 (Code, §95), defines a counter-claim, viz.: “The counterclaim mentioned in the last, section must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action.”
Paragraph 4181, General Statutes of 1889 (Code, § 98), provides : “A set-off can only be pleaded in .an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court.”
Do these defenses fall within the provisions of either of the sections we have quoted? We think not. The plaintiff sued on contract. The defenses attempted to be brought in are other distinct, separate transactions. Nor is it claimed that they arose out of the same transaction as the plaintiff’s cause of action, and how they can be connected with the subject of the action we are at a loss to understand. These defenses are pleaded as torts. The gist-of the second defense is undoubtedly the “ wilful and malicious ” action of plaintiff in ordering cars. The third is the wilful negligence in delaying the road; that, by reason of such action, the damages claimed occurred. There is no allegation of the terms of any contract, nor of any price or consideration ; and we cannot believe that the learned counsel who framed these pleadings had at the time any idea or intention of declaring upon a contract, or they certainly would have set forth its terms. “Where a plaintiff has a cause of action on contract, he must state the contract, and cannot properly state his cause of action without stating the contract.”
Neither of these defenses had any connection with the foundation or subject of the plaintiff’s action ; nor are they causes of action arising upon contract or ascertained by the decision of a court, but are ex delicto.
But it is contended by plaintiff in error “ that the defendant could waive the tort and recover for the' breach of the contract.” While that is true in some cases, we do not think it applies to the case at bar. It is a familiar rule of law that a promise may be express or implied. Whenever a promise is implied, and the consideration is sufficient, an action on contract may be maintained. This brings us to the question, When is a promise implied by law?
“It is a principle well settled that a promise is not implied against or without the consent of the person attempted to be charged by it. Ajid where one is implied, it is because the party intended it should be, or because natural justice plainly requires it, in consideration of some benefit received.” (Webster v. Drink- water, 5 Greenl, 322 ; Tightmeyer v. Mongold, 20 Kan. 90.)
And we think, the test to be applied in order to determine whether the law will imply or presume a contract from the commission of a tort is: “Was the tort or wrong committed against the estate of another with the intention on the part of the wrong-doer of .benefiting his own estate, o<*was his estate benefited thereby?” By what process of reason can'it be held that in this action the .plaintiff intended to or did benefit his estate by “wilfully and maliciously ” ordering cars “without any intention of making use of them,” or by “ negligently and wilfully delaying loading the same.” The supreme court of this state has passed upon the question of waiver of tort in Fanson v. Linsley, 20 Kan. 235, and thus laid down the rule as to when it can be waived:
“Whenever one person commits a wrong or tort against the estat.e of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrong-doer to pay to the party injured the full value of all benefits resulting to such wrongdoer, and when the injured party elects to waive the tort his cause of action may be used as a set-off.”
And also the rule when it cannot be waived:
“Where one person commits a wrong or tort against another without any intention of benefiting his own estate, and his own estate is not thereby benefited, the law will not imply or presume a contract on the part of such wrong-doer to pay for the resulting damages ; and such cause of action cannot be used as a set-off.”
We perceive no error m thé action of the court in sustaining the demurrer and motion to strike out the second and third counts of the answer.
This brings us to the question presented by defendant in error. With these defenses stricken out, has this court jurisdiction to inquire as to error alleged to have been committed upon the trial? This we are compelled to answer in the negative. The amount in controversy would be the amount of the judgment rendered against defendant, $39.45, which is less than the jurisdictional amount, and it is not shown by the certificate of the trial judge that this is one of the excepted cases.
The case is therefore dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered' by
Cole, J.:
This action was brought ■ by William Johnson to recover for services performed under an alleged oral contract entered into between himself and the plaintiff in error. An answer was filed setting up' four separate defenses, tlie first being a general denial, a‘nd tlie second pleading a former adjudication, m the following language :
“For a second defense, the defendant says that the particular matter sued for herein was, in a certain case wherein William Johnson, plaintiff herein, was plaintiff therein, and the defcmd&nt herein was the defendant therein, instituted in the district court of Osage county, Kansas, included in, set up and sued for in tliat cause, and upon a certain written contract; that judgment was rendered in that case, and that said judgment was wholly paid and discharged, and has at no time been reversed, vacated, or set aside, and that the said judgment was a final adjudication of all matters in controversy in this suit, and that plaintiff should not further have or maintain liis action against the defendant.”
So far as the third and fourth defenses set up in the answer are concerned, they are immaterial in tlie discussion of the question arising in this case. No demurrer was filed to either count of the answer, and no motion to make more definite and certain, but the plaintiff below filed a reply consisting of a general denial. Upon the trial of the cause, plaintiff in error sought to introduce evidence under the second ground of defense set up in his answer, and thereupon the court sustained the objection to the introduction of any evidence under said second defense, and, upon motion of the plaintiff below, the court also struck said second defense from defendant’s answer, over the objection of the defendant below, and the court also instructed the jury, in substance, that the only defense presented by the defendant below was a general denial. From a judgment in favor of Johnson, Borin brings the case here for review.
The errors complained of in this case, may all be considered together, as all arise from the view which the trial court seemed to take with regard to the second defense set up in the answer. It will of course he conceded that a final judgment rendered in an action is'conclusive between the parties upon all matters "litigated or necessarily involved in the action in which the judgment was rendered. The trial court seems to have taken the position that a former adjudication of the matters in dispute in this case was not properly pleaded, and such, also, seems to be the argument of the counsel for the defendant in error in this court. The allegations of the answer, so far as this defense is concerned, were that the particular matter sued for herein had been included, set up and sued for in a former cause, of action between the same parties, in the district court of Osage county, which action was brought upon a written contract, and that the judgment rendered in that case had been wholly paid and discharged. It is contended by counsel, that because this action was brought upon a verbal contract, and the one pleaded as a defense was upon a written contract, the latter constituted no defense as a plea in bar or as a former adjudication.
It is the policy of the law to regard substance as of greater importance than form, and in this case, when the defendant below alleges that “the particular matter sued for herein ” had been passed upon and finally adjudicated by a court of competent jurisdiction, it appears to us that but one construction can be given to the language, viz., that the services sued for in this action had been made the basis of a former action, which former action had passed into judgment and been finally disposed of. It is not the form of the action which plaintiff in error claims had been formerly passed upon,.nor is it the species of contract under which the services may have been performed. These relate only to the form. But the substance of the allegation in this defense is, that the plaintiff below had been once permitted to. recover fbr the- same services which he here sues for, and it is clear that evidence should have' been permitted' to establish this defense, and that it ought not to have been stricken from the answer.
The judgment of the district court is reversed, and the cause remanded for further proceedings.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
On March 5, 1891, the defendants in error commenced their action in the district court of Republic county to recover of plaintiff in error the sum of $1,000 on a policy of insurance issued January 16, 1890, upon a loss by fire, alleged to have occurred on March 6,1890. Trial was had before the court and a jury, a general verdict was returned by the jury, and judgment rendered thereon in favor of the plaintiffs below in the sum of $850 and costs. Motion for a new trial was filed and overruled, and defendant below brings the case here for review.
The petition in this case alleges the incorporation of the defendant, the issuance of the policy for the term of one year, the payment of the premium thereon to insure against the loss by fire, not to exceed the sum of $1,000, on a stock of general merchandise, and permission to carry other and additional insurance not to exceed the amount of $3,000 ; that at the date of the loss the policy was in full force and effect; that the loss occurred on the 6th of March, 1890 ; that the stock of merchandise insured was entirely destroyed by fire, except such things as are specifically mentioned ; that the stock of merchandise destroyed was worth at the time of the fire the sum of $4,447.50 ; that the actual loss to the plaintiffs by reason of the fire was $4,447.50. And it further alleges, that immediately after said loss plaintiffs duly notified the defendant, as required by the terms of said policy, and, subsequently to the making out of the said notice of loss, the said plaintiffs made out and transmitted to the defendant a verified statement and proof of loss, as required by the terms of said policy ; that afterward they notified the defendant that they were ready to name one of the arbitrators and submit to arbitration, although there had been no dispute or disagreement as to the amount the plaintiffs ought to recover — the defendant denying all liability whatever; that they have performed all and •singular the conditions and obligations of said policy, and still the defendant has not paid the said loss or any part thereof; that they have been- at an actual loss of $4,447.50, and that the said defendant is by the terms and conditions of the said policy of insurance indebted to the plaintiffs in the sum of $1,000, .and that the same is long past due and entirely unpaid, and that defendant entirely refuses to pay the same; that they have done and performed each and •every condition of the said policy necessary to be done to entitle them to recover the above sum of money, and still the said defendant refuses to pay the said loss; that the defendant, well knowing that the said sum of money is still due and unpaid and that the plaintiffs are entitled to the same, still refuses to pay them. The original policy of insurance is attached to the petition as an exhibit, and is made a part thereof.
Against this petition the defendant filed its motion to make more definite and certain, which was by the court overruled, and it thereupon filed its answer containing, first, a general denial of each and every statement, averment and allegation in said petition contained, except such as were expressly admitted. For a second defense, it admitted its incorporation; the issuance of the policy sued upon ; a permission to carry additional insurance as stated in the petition; that the policy was in full force on March 6, 1890; that the loss by fire occurred to said stock of goods so insured, but alleged that the value, extent, nature and amount of the loss were to the defendant unknown, and the extent thereof as to value and kind was therefore denied ; that the loss occurred on March 4, 1890 ; that notice and proof of loss were served upon said defendant within the time required by the terms of (he policy; that the property was insured in the sum of $1,000. It alleged that by the terms of the policy it was not to be liable to exceed three-fourths of its proportion of • all the insurance of the true value of the property insured ; that all of the insurance upon such property at the time of the loss was $4,000.
For a third defense, it alleged that the amount of loss and damage claimed by the plaintiffs at the time of the attempted adjustment of the loss in and by their said proof of loss was largely in excess of the true actual cash value of the property, and of the'actual loss and damage by them sustained ; that at the time of making the said claim of value of said property and the proof of loss defendant demanded the appointment of appraisers and an umpire to determine the amount of said loss and damage, as provided by the terms of said policy, because the same was excessive, as aforesaid, and which demand was refused and denied by the plaintiffs ; that no arbitration was had of such loss, but that the said plaintiffs wholly refused and denied defendant the right to have an arbitration and award, and to have the damages sustained by said plaintiffs by reason of said fire, and for which the defendant was liable, ascertained and determined by said arbitrators and award ; that on or about the 23d of June, 1890, without any arbitration, award, or demand, and without the performance of the conditions of said policy on the. part of the plaintiffs, they commenced suit in the district court of Republic county against defendant to recover the amount of insurance specified in and by said policy upon which summons was issued ; that defendant appeared and answered ; that plaintiffs replied,.and the cause remained pending in said court until the 19th of February, 1891, when the same was dismissed by the plaintiffs ; that during all of said time the plaintiffs denied the right of defendant to have and demand or require an arbitration and appraisement of damages so sustained, and denied during all of said time the right of the defendant to have, name or designate an arbitrator or to demand or require the plaintiffs to submit to an arbitration of the said differences between the plaintiffs and defendant, but long after said February 19, 1891, and immediately before the commencement of this action, said plaintiffs notified defendant of their readiness to agree upon arbitrators to adjust and arbitrate said claim.
For a fourth defense the defendant says, that by the terms of said policy it is provided as follows : “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law .or equity until after full compliance by the insured with the foregoing requirements, nor unless commenced within 12 months next after the fire ’ ’ ; and defendant alleges and charges the fact to be that said action was not commenced within 12 months next after the fire, and that by the said terms of said policy plaintiffs are barred from prosecuting said action any further and from any recovery therein.
For a fifth defense, defendant alleges and charges the fact to be that said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against defendant.
To this answer plaintiff filed a reply, consisting of (1) a general denial; (2) a special denial that the action was not commenced within one year from and after the alleged fire and loss; (3) a denial that defendant ever made a demand for arbitration; (4) a denial that there was ever any disagreement as to the amount of plaintiffs’ recovery, but claiming that the defendant denied all liability whatever under the policy ; (5) an allegation that the plaintiffs duly notified the defendant that they were ready to name one of the arbitrators; that defendant refused to name one or submit to arbitration, and specially denying that the defendant was ever entitled to arbitration, and that any dispute arose as to the amount of recovery.
Upon the trial of the cause, it was admitted that the proofs of loss and certificate were sworn to April 10, 1890, and that about April 10, 1890, they were forwarded to the defendant and received in due course of mail; that the plaintiffs, on June 23, 3890, commenced an action against the defendant, as set forth in defendant’s answer; that it remained pendingjn the court until February 39, 1891, when the same was dismissed without prejudice to a future action. It was also admitted that at the time, of the fire by which the stock of goods was injured there were three policies of insurance upon the said stock in favor of the plaintiffs in the aggregate amount of $4,000; that the policy sued on in this action was one of the three, and that there was a “three-fourths” clause in each of said policies.
. The defendant filed its motion to make the petition more definite and certain in this, to wit: (1) To state when the plaintiffs notified the defendant that they were ready to name one of the arbitrators and submit to arbitration ; (2) to state what facts are relied upon as amounting to a denial of liability on the part of the defendant, or what the defendant or its agents said which is claimed to have amounted to a denial of liability. We think these objections are extremely technical and untenable, and are at a loss to know' how the charge could be more precise or the defendant be more fully informed as to its nature if the date requested in the first ground had been inserted. If the date ever became material, it could only be so as a matter of defense. The same may be said of the second ground of the motion, and, in addition, we think the denial of liability is sufficiently stated. The allegations of the petition are that the amount is long past due and entirely unpaid, and defendant refuses to pay the same” ; and again:
“That they have done and performed each and every condition of the said policy necessary to be done to entitle them to recover the above sum of money, and still the defendant refuses to pay the said loss; that the defendant, well knowing the said sum of money is still-due and unpaid and that the plaintiffs are entitled to the same, still refuses to pay the said sum of money.”
If, as the plaintiff in error argues, “under this contract it was important to know when the notice and when the proof of loss and when the consent to name arbitrators were given, as requested by the first paragraph of the motion to make more definite and certain, and if until the time of the performance of such acts was stated in the petition the defendant could not know nor could the court be advised as to whether a cause of action had accrued,” we can only say that the question as to when the notice and proof of loss were made is not raised by the motion, and that if the date of consent to name arbitrators and submit to arbitration was such an important fact that by the omission thereof the petition failed, to state facts sufficient to constitute a cause of action, it should have been raised by demurrer and not by a motion to make more definite and certain. It will be observed in this case that the defendant in its answer (by way of demurrer) alleged that the petition did not state facts sufficient to constitute a cause of action, but evidently abandoned it, since it was never passed upon by the court nor mentioned by the defendant in its assignments of error. As we have said, if it ever became material it could only be as a matter of defense to be alleged and proved, and this is exactly what the defendant did do as to the time of serving the notice of consenting to arbitration, and it further admitted by its answer and otherwise that the notice of loss and proof of loss were made within the time required by the terms of the policy.-
This brings us to the second error complained of— admitting evidence under the petition over the objection of the defendant. This is but the presentation of the grounds of a demurrer in a different form and at a subsequent time, and the rule of construction is not as strict under the latter as under the former; when the latter is interposed the pleadings-Are all filed and the issues made up, and to support the judgment of the trial court all the pleadings are taken -and construed together, so that defects originally existing in the petition may be cured by the answer, if it supplies them. The defendant contends, and this is its only contention, that it did not appear from the petition that any cause of action had accrued.
The petition alleges that the fire occured on the 6th day of March, 1890. The answer alleges that it occurred on the 4th day of March, 1890. The 60 days, then, in which proof of loss and notice should be served would have expired on May 5, 1890, and 60 days-from that date would have been July 5, 1890, when, under the terms of the policy, the insurance would have been payable. The answer further alleges, “that a former suit upon this policy had been commenced and remained pending in the district court of Republic county until February 19, 1891, when it was dismissed,” and “that long after said 19th day of February, A. D. 1891, and immediately before the commencement of this action,” etc. So that by the pleadings it is shown that this action was not commenced until after February 19,1891, more than seven months after the notice and proof were received, even if they were not received until the very last day allowed by the terms of the policy.
The third assignment of error is that the court erred in overruling defendant’s demurrer to the evidence. The policy provides that, in the event of disagreement as to the amount of loss, the same shall be ascertained by three appraisers, to be selected as provided for in the policy, and that the award in writing of any two shall determine the amount of loss. The right of arbitration then depends upon and can only be demanded after a disagreement between the parties as to the amount of loss. The weight of authority seems to be in favor of the validity of such a condition, and to hold that arbitration of the amount of loss is a right which either party may demand of the other, and that, when such demand is made in accordance with the terms of the policy by the insurer, no action can be maintained by the insured to recover for the loss until such demand has been complied with and an appraisement made. It is not necessary, however, in order that the insured may maintain an action on the policy, that he negative this condition or prove a compliance with the same on his part. That is a matter of defense. (L. and L. and G. Ins. Co. v. Hall, 1 Kan. App. 18.) We think the evidence introduced by the plaintiff below tended to establish all the material allegations of the petition. ■
The fourth specification of error is the refusal of the court to instruct the jury that upon the pleadings and evidence the plaintiffs could not recover, and to return a general verdict in favor of the defendant. This instruction raises the same question that was raised by the demurrer to the evidence, but in a moré extended form, as.it now goes to the extent of attacking the sufficiency of all the evidence introduced at the trial, and is argued in the brief in connection and as a part thereof.
We agreei with plaintiff in error in its contention that the evidence shows that the notice or offer to submit to arbitration was not received by the adjuster until the 5th of March, 1891, the day the suit was commenced, but the paper itself shows that the offer was made February 25, 1891, and it is admitted that it might have been in the adjuster’s home or place of business some days before it actually came into his possession, owing to his absence. The notice also requires immediate notice of acceptance or intention of naming an arbitrator, but a reasonable time to act under it would be given ; but it is nowhere shown that it ever accepted the proposition, or attempted to appoint an arbitrator, or .that the plaintiffs below have ever withdrawn the offer to arbitrate. It is not claimed that it was prevented by any act of the plaintiffs from having an arbitration, nor has it asked that the suit should be abated until arbitration could be had; but, on the other hand, it 'is shown that the plaintiffs waited from February 25 to March 5 for an answer before commencing their action, and, under the terms of the policy, that was the last day given them in which to commence suit. The claim, under these circumstances, that the plaintiffs must wait, or could not commence their action until the company expressly refused to arbitrate, or until a sufficient length of time had elapsed from which a refusal would in law have been implied, has no foundation in law, equity, or reason. The defendant could have very easily placed itself in a position to have had the benefit of an arbitration, if desired.' No steps were taken on the part of the defendant with reference to this action until the 13th of April, when it filed a motion, and from that time until the 16th day of May it took no other steps, when it filed its answer. We think that common justice requires us to hold that the mere fact that the adjuster did not receive this notice until the day the suit was commenced does not operate as a bar to the action, but, if it did, the filing of the answer and going to trial without demanding the right to arbitrate under this notice amounts to a waiver.
It is contended that the court erred in refusing the following instructions:
“2. It is not the agreement of the defendant, as stated in said policy, to pay the cash value of the property described in said policy of insurance as having been insured, or what may be proved in this court to have been the value thereof; but it is expressly agreed that the defendant shall not be liable beyond the actual cash value of the property at the time the loss or damage occurred; and, also, if the plaintiffs and defendant differ as to the amount thereof, that the loss or damage shall be ascertained by appraisers, one to be. appointed by the plaintiffs and one by the defendant company, and the two so chosen shall select a competent, disinterested umpire, and that such two appraisers shall estimate and appraise the loss, and, failing to agree, shall submit their difference to the umpire; and the award, in writing, of any two shall determine the amount of loss; and if the jury believe from the evidence that there was a difference between the plaintiffs and defendant, jointly with two other companies having policies upon said stock of goods, as to the amount of the loss sustained by the plaintiffs by such-fire, under the terms of said policy, the plaintiffs cannot recover until an award in-writing shall have been made by two of said appraisers, or one of the appraisers and the umpire selected.
“3. The parties having agreed to such method of determining the cash value of the property, or the amount of loss or damage insured against by said policy, cannot now substitute other form of evidence ; and if the jury believe a difference existed, and defendant, by its agent and adjuster, demanded an appraisal of said property, and no such appraisal was made, then the jury must return a verdict for the defendant. The plaintiffs cannot recover in this action when a difference arose between them and the defendant as to the amount of the plaintiffs’ loss, and an appraisement was demanded, except such appraisement shall have been first made, and then only upon the award of the appraisers and umpire so selected, and for an amount which they may have found to be the cash value of the goods insured in said policy and destroyed by fire.”
“5. If the jury believe from the evidence in this case that, on or about April 21, 1890, the defendant demanded an appraisement of the loss and damage claimed in the petition, and that, without any appraisement, arbitration, or award, the plaintiffs, on or about June 12, 1890, commenced suit against the defendant to,recover the same, and the same remained pending in said court until on or about February 19, 1891, when the same was dismissed, and thereafter plaintiffs demanded an appraisement and award, which was received by defendant’s agent between February 19 and March 5, 1891, then the plaintiffs cannot recover in this action, and your verdict should be for the defendant.”
In L. and L. and G. Ins. Co. v. Hall, 1 Kan. App. 18, it was held by the court:
“ It should also appear that there was an admitted liability for something, and that there was an actual disagreement as to the amount of the loss. All liability under the policy cannot be denied, and at the same time a demand made to submit the amount of the loss to arbitration.”
The remarks of Garver, J., in applying the rule in that case are particularly applicable in this. The answer there contained no allegation of dispute or disagreement as to the amount of loss, nor does the evidence in this case, fairly tried, show admission of liability or actual disagreement as to amount of loss. So far as the evidence indicates, little or no effort was made to agree upon the amount of loss, and no opportunity was offered for an actual disagreement. While it might be conceded that the second and third instructions are correct statements of the law in the abstract, yet that is not. sufficient to compel the trial court to give them, nor would the refusal be error.
“ Instructions given by a trial court should be applicable to the issues in the case and the facts disclosed upon the trial ” (Lorie v. Adams, 51 Kan. 692) ; and where an instruction is not based upon or applicable to the facts in the case, even though it correctly states the rule of law, it is not error to refuse it, (City of Kinsley v. Morse, 40 Kan. 577) , and such an instruction ought not to be given. (The State v. Lindgrove, 1 Kan. App. 51.)
We cannot agree with counsel that the fifth instruction asked correctly states the law. It totally ignores the existence of any disagreement or difference as to the amount of loss between the parties, without which no right to demand appraisement or Arbitration, could exist, but instructs the jury that an arbitrary demand, by the defendant company is all that is necessary, and that if the’ plaintiffs, without complying therewith, should bring an action, aiid afterward dismiss it, the first action would be a complete bar to any future action.
In passing, we might say as to the instructions given, that they are not as full and comprehensive as they should have been; but from a careful examination of the record in this case we think the verdict of the jury is clearly warranted by the evidence, and we do not feel justified in interfering with the judgment on the grounds of the instructions alone.
The judgment of the court below will be .affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
The plaintiffs in .error contend that, under the terms of the contract of 1894, the estate of W. S.' Blakely should pay them 20 per cent, upon all the uncollected notes taken by Blakely for sales of machinery during that year, upon the theory that he was allowed that amount of commissions upon sales made by him ; that these notes were uncollectible and worthless, and that it is immaterial whether he received this commission or not, or how he received it — whether in cash, notes, or part cash and part notes. In other words, that he became a guarantor of these notes to that amount. We cannot agree with them upon this contention for two reasons : (1) The contract itself precludes the idea of guaranty, as it provides what notes he should guarantee, and none of these comes within that .class; (2) the terms of the contract will not admit of such a construction. It is provided therein that the machinery shall be sold in three ways, and that commissions shall be paid in the same manner as the sales are made, viz. : (1) Upon credit, commission to be paid in notes; (2) for part credit and part cash, commission to be paid in part notes and part cash; (3) for cash, commission to be paid in cash.
Now, as we understand this contract, when the sale is made upon credit and the notes taken therefor prove worthless, and it is shown that the agent had collected the note he received as his commission for such sale, he must refund the amount of the commission. When made for part cash and part credit, if the notes taken prove worthless, uncollectible, and it is shown that for this sale the agent received his commission in. like manner, if he has collected the note received, he must refund the amount thereof, provided that the notes held by the company prove worthless. And there is a reason for these conditions being placed in the contract. The company by this means makes it an object for the agent to collect their notes first, or at least to exercise as much diligence in their behalf as he does in his own. When made for cash the transaction is complete. But to hold that, where the agent takes notes for his commission, either in whole or in part, and. the notes so taken by him, like those turned in to the company, prove worthless and uncollectible, he mast pay the notes he has taken and turned over, would be doing violence to every principle of common sense and justice, and would be simply construing this contract to mean that the agent was to pay the principal -20 per cent, commission for the privilege of handling the machinery, and would not fall within the meaning of the term “refund,” which always includes the idea of something having been received. As we have said, when the sale is made for cash the transaction is complete — the agent turns over to the company their proportion and retains his. This idea receives additional force from the very terms .of the refunding clause: “The .party of the second part agrees to refund any commissions allowed on notes that may afterward prove worthless or otherwise uncollectible.” Is there anything in this language from which it can be inferred that he is to hold his cash commissions as a fund to make good deficits in commissions on uncollectible notes? We think not. He is merely to refund the commissions allowed upon the uncollectible notes. If this were not so, and the construction given, as claimed by the plaintiffs in er•ror, should be adopted, we can readily conceive- of circumstances arising in which the agent would be compelled to return to the company a much larger amount than he received from his year’s business.
Suppose he sold 50 machines at $100 each : this would be $5,000. Upon this amount he would be allowed, at 20 per cent., $1,000. Now, 15 of these machines were sold for cash; being $1,500. His commission would'be $300. On 35 sold on credit for $3,500 and notes taken his commission would be $700. He received his commission under the contract : cash, $300 ; notes, $700. But the notes for $3,500 are not paid. Must he then refund $700 in cash, or $400 more than he received? We think not. Under no circumstances can he be required to refund money Unless lie has received money as his commission on the identical notes uncollected. The company cannot compel him to refund the amount of a note by merely alleging that it was received as a commission. In order to recover under any circumstances, they must prove that he received money as his commission, or collected the note received as his commission upon notes claimed to be uncollectible ; for he is only “ to refund commissions allowed upon notes that have proved worthless or otherwise uncollectible.” There must be an identification. This they have failed to make. There is not a scintilla of evidence in the record showing that he ever received any money 'commissions on any of the notes or that he ever collected any of the notes he received as his commissions on these sales.
The second contention is, that the estate is responsible for and must respond in money to the company for the notes taken for machinery sold in 1885, and which the company have been unable to collect. In addition to what we have said with reference to the contract of 1884, we will add that the court found the following:
“ 7. Wm. S. Blakely died on the 11th day of June, 1885, and G. F. Gordon assumed temporary charge of the Blakely hardware store, to preserve and protect the property, and on the 25th day of June, 1885, C. H. Trott and Josephine Blakely were appointed by the probate court administrators of the estate of Wm. S. Blakely, deceased.”
And it further found that,
“ after the death of Blakely, and before the administrators took charge of the assets of the estate, all the machinery sold in 1885 was sold by parties who were in the employ of Blakely during his lifetime, notes taken therefor and turned over to Hayner & Co., and that the administrators were paid in notes taken for other machinery, the commission on the sales of the machinery for which the uncollectible notes were taken. All of this was done without any order or authority from the probate court of Davis county, and the testimony shows that some of these sales at least were made under the express direction of a special agent of Playner & Co.”
While it is true, and the court so found, that the machinery sold was received by Blakely during his lifetime, and was on hand at the time of his death, did it ever become assets in the hands of the administrators ? We think not. The contract is strictly personal. It does not extend.to the heirs, executors or administrators of Blakely.
“The death of the agent terminates the agency,” and the only exception to this rule is where the power or authority in the thing is actually vested in the agent, and the reason for this exception is that the agent, having the legal title to the property vested in himself, is capable of transferring it in his own name, notwithstanding the death of his principal. No such title was vested in Blakely. The contract expressly provides that “'the title and ownership of this property remains in the principal until disposed of under the provisions of this contract.” The only interest Blakely had in it was to receive commissions. The notes were all made payable to the company, and the fact that a special agent of the company was there exercising acts of ownership over it, directing its sale and disposal, within a very few days after Blakely’s death, strongly indicates that the company so understood this contract. .All that is required of any administrator is to make an inventory of everything belonging to the estate, and to administer the same according to law. They were not authorized to take possession of this property. It is not shown that they ever charged themselves in their representative capacities with these notes, or that they brought them into their accounts with the estate, or that they were made 'subject to the decree of the probate court, or that the estate had any use thereof or derived any benefit therefrom. The mere fact that they received commissions on the sales made is not sufficient to render the estate liable.
The record presented in this case is very imperfect. It is difficult to tell what it purports to contain, except all the evidence. It fails to show that it is a full record of all the proceedings had.
The judgment of the district court will be affirmed.
All the Judges concurring. | [
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TI o opinion of the court was delivered by
Johnson, P. J.:
On the 24th day of October, 1893, Hanauer, Kohn & Co. filed their petition in the office of the clerk of the district court of Ford county, Kansas, asking for the appointment of a receiver, and for a determination of priority of liens on certain attached property, in an action wherein Hanauer, Kohn & Co. were plaintiffs and Julius Wulfsohn was defendant, which was attempted to be commenced in said court on the 10th day of October, 1893, in which the district court of Ford county never acquired jurisdiction of either Julius Wulfsohn or the property sought to be reached. Barton v. Hanauer, ante, p. 531, which opinion is filed herewith, is referred to, and made the basis for this opinion.'
The petition for the appointment of a receiver sets forth that certain parties had commenced suits against Julius Wulfsohn in the district court of Ford county, Kansas, and also, that certain suits had been brought against Wulfsohn- & Swartzman, in- which suits the parties had acquired valid liens on the property of Julius Wulfsohn by proceedings in attachment, and also sets up certain chattel mortgages and the possession of the property by the mortgagees, and sets out the pretended claim of each party to a lien under the chattel mortgages, and also by attachment proceedings, and upon the filing of such petition the plaintiffs named therein applied to the probate judge of Ford county and obtained an order appointing a receiver, and also an order for the sale of all the goods, wares and merchandise in the store of Julius Wulfsohn and Wulfsohn & Swartzman. Under the appointment of the probate judge, the receiver took possession of the goods, wares and merchandise of Wulfsohn and of Wulfsohn & Swartzman and sold the same, and made report of his doings therein to the district court; that the goods, wares and merchandise of said Julius Wulfsohn and of Wulfsohn & Swartzman were of the aggregate value of $15,248.86. On the final disposition of the receivership, the district court undertook to determine the rights of all parties in said proceedings, and determined the priority of the liens ol each of the parties named in'the petition, and also ordered the disposition of the proceeds arising from the sale of said goods.
These proceedings, being based on attempted actions in the district court wherein the court had acquired no jurisdiction, were absolutely unauthorized and void, and should have been set aside, on the motion of Barton Brothers and the Standard Shoe Company. Th orders of attachment, having been issued without authority, were a nullity, and the parties did not obtain any lien on the property of Julius Wulfsohn. The district court of Ford county not having acquired jurisdiction over the person of Julius Wulfsohn or his property, when the attention of the court was called to these matters, it should have dismissed the action and discharged the property from the illegal seizure thereof.
The judgment of the district court is reversed, and the case remanded, for such further proceedings as are indicated in the opinion in the case of Barton v. Hanauer, ante, p. 581.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
On the 6th day of December, 1853, the defendant in error, Mary J. Fulton, was married to one William J. Fulton, and at the time of the marriage she was the owner of some property, William J. Fulton being insolvent. From time to time the defendant in error received money from her relatives, amounting to quite a sum, and in December, 1866, the said William J. Fulton, husband of the defendant in error, having this money in his possession, purchased certain real estate (it being the property in controversy in this action) of Isabelle S. Clements, it being understood and agreed that the title should be taken in the name of Mary J. Fulton. This was not done, and the deed was taken in the name of W. J. Fulton. In 1881 W. J. Fulton procured a divorce from his wife, Mary J. In 1885 Mary J. Fulton took possession of this property and has held the same ever since. In 1886 William J. Fulton and his then wife, Eliza, sold and conveyed this property to Caroline Milotte, andón the day of said sale'Milotte and her husband executed a mortgage on this property to Garrard Chestnut and R. T. Darnell & Co., both of the state of Missouri. The notes were by Chestnut and Darnell indorsed to one Mrs. Clara P. Buckner, or order, and by her indorsed to A. C. Buckner, or order, without recourse. In July, 1888, A. C. Buckner indorsed them to the Kansas City Investment Company, the plaintiff in this action, or order, without recourse. In April, 1889, the codefendants of Mary J. Fulton in this action brought suit against her for the recovery, of this property, and judgment was rendered therein on October 7, 1889, against'them in favor of said Mary J. Fulton. It also appears from tlie record that William J. Fulton, Garrard Chestnut and R. T. Darnell & Co. were and are nonresidents of the •state of Kansas, and that the plaintiff in this action is a Missouri corporation.
On the 25th day of January, 1889, the plaintiff in error brought an action to foreclose this mortgage against Alphonse Milotte, the husband, and others, the heirs of Cai’oline Milotte, deceased, making Mary J. Fulton a defendant therein. There was no contest between the plaintiff in error and any of the defendants except Mary J. Fulton, who alleged as her defense that she was at the time of the commencement of this action, and for a long time prior to the 30th day of March, 1886, had been, the equitable owner of and in the open and notorious possession of all the real estate in said petition described, and that if ever said notes and mortgage were given, made, and executed, they were given, made and executed subject to her rights in said property, and that, at the time of taking the same, the payees and grantees thereto had notice of her occupancy and title, and took the same subject thereto. She also set out the proceedings had between her and her codefendants in the supplemental answer filed herein'. To this plaintiff in error filed a reply, admitting that, the judgment referred to was rendered, and further alleging that the defendant Mary J. Fulton, during the month of August, 1880, had notice aiid knowledge' that the title to the land was taken in the name of William J. Fulton, her former husband, when he purchased it, and that she took no action to enforce her equitable title or estate ' until the fall of 1885, when she took possession of the land without his knowledge or consent, and has since remained in possession without his or his grantor’s consent; and further, that her cause of action accrued more than five years prior to the time she so took possession of said land.
The case was tried tó the court. The special findings of fact and conclusions of law ma,de by the court are as follows:
“findings of fact.
“1. I find that the property in question was purchased by William J. Fulton, on or about the 31st day of December, 1866, with funds belonging to the defendant Mary J. Fulton, then wife of William J. Fulton, and that said William J. Fulton promised said Mary J. Fulton to take the title of said property in her name at the time it was purchased.
“2. I further find that, without the knowledge or consent of his wife, said William J. Fulton took the title of said property in his own name, and that said Mary J. Fulton supposed the title of the property tn be in her name until some time in August, 1880.
“3. I further find that said William J. Fulton was divorced from said Mary J. Fulton upon or about the 31st day of March, 1881.
“4. I find that said Mary J. Fulton took no steps to assert her right to said property until some time in the fall of 1885, when she took possession of said property and has been in the open and visible possession of the same ever since.
“o. I further find that said William J. Fulton and wife conveyed said property to said Caroline Milotte upon the 30th day of March, 1886, and that said Caroline Milotte and husband thereafter gave the mortgage sued upon herein.
“6. I further find that there is due to the plaintiff, from defendant Alphonse Milotte personally, and John Gibson as administrator of Caroline Milotte, deceased, the sum of $588.92, bearing interest at the rate of 8 per cent, per annum, and its costs herein expended, and that the conditions of its mortgage have been broken.
“ 7. I further find that the defendant Mary J. Pulton was informed, in the month of August, 1880, that the title to the property was in the name of William J. Pulton, and that she took no steps as above found to assert her right in said property until some time in the fall of A. I). 1885, when she took actual possession of the same, and that during said period she was under no legal disability from asserting her said rights.
“ 8. I further find that the plaintiff did 2iot appear in, and was not a party to, the suit.of Alphonse Milotte and others against Mary J. Pulton, as alleged in the answer of said Fulton filed in this cause, and is not estopped by the proceedings in s;iid cause.”
“CONCLUSIONS OF LAW.
“ 1. That at the date of said conveyance from William J. Pulton to Cftroline Milotte said Mary J. Pulton had the equitable title to said property, and that said equitable title was paramount to the legal title of said William J. Pulton.
“2. Th{it the plaintiff’ was charged with notice of the possession of said premises by said Mary J. Pulton at the ti2ne it obtained the mortgage upon the same.
“3. That the plaintiff take, so far as the defendant Mary J. Pulton is concerned, naught by this suit, and that she have and recover her costs herein.
“ 4. That the plaintiff is entitled to recover of and from the defendant Alphonse Milotte personally, and John Gibson as administrator of Caroline Milotte, deceased, the sum of $588.92, bearing interest at the rate of 8 per cent, per annum, and that, as against all of the defendants excepting Mary J. Fulton, it is entitled to foreclosure of its mortgage, but that, 'as the land herein described is the property of Mary J. Fulton, as aforesaid, no decree of foreclosure will be given, the said mortgage for such reason not being a lien upon said land.”
We cannot agree with plaintiff in error that the court overturned a legal title without substantial testimony. On thb contrary, we think the testimony in this case supports the conclusions of law as found by the trial court by an overwhelming preponderance thereof, and is of the strongest kind possible to be presented in a case of this nature. The findings of fact are not questioned, nor could they be, for they are supported by all of the testimony in this case, and it is clearly shown that the fund with which this property was purchased was received from and belonged to the defendant Mary J. Fulton, and that the property was purchased with the express understanding that the title should vest in her.
“When the legal title to real estate is in one person, and the real interest is in another, the statute of limitations will not run as between them until there is a renunciation of the trust, or until the party holding the legal title, by some act or declaration, asserts a claim adverse to the real owner.”
There is no proof or attempt to prove that W. J. Fulton ever denied the trust, nor was there any act of hostility done or adverse claim made by him until the very transaction upon which the claim of the plaintiff is founded occurred, viz., the the sale of this property to Caroline Milotte. And at the time Mrs. Fulton was in open, notorious and exclusive possession ; and Mrs. Milotte, therefore, took the title subject to the trust — purchased with notice of this possession. The plaintiff purchased the notes and mortgages with .the same no tice — all the parties were bound thereby — of whatever title Mrs. Fulton had, and neither obtained any title which can be asserted against the defendant. (Greer v. Higgins, 20 Kan. 420.)
It is well established that open, notorious and exclusive possession of real estate under an apparent claim of ownership is notice to the world of whatever claim the possessor asserts, whether such claim is legal or equitable. (Moore v. Reaves, 15 Kan. 150 ; Johnson v. Clark, 18 id. 157 ; School District v. Taylor, 19 id. 287; Tucker v. Vandermark, 21 id. 263 ; Bruce v. McBee, 23 id. 382; McNeil v. Jordan, 28 id. 16; Deetjen v. Richter, 33 id. 414.)
Under these circumstances it was incumbent upon the plaintiff to inquire, and to pursue its inquiry until it ascertained the nature of the possessor’s claim, and failing to do so, the law treats it precisely as though it had so acted and learned all that might have been ascertained thereof. ' Milotte purchased, therefore, subject to all the equities of Mrs. Fulton, and the plaintiff took its mortgage subject to the same. As said in School District v. Taylor, supra, “ When it comes to comparing equities between the parties,” those of the defendant would enhance by her possession of the property. Her equities are prior in time, and therefore prior in right. The defendant was in possession of the property when the plaintiff’s equities were created, and constituted such a strong and paramount equitable title to the property that no mere legal title could overthrow it. And where a grantee purchases with knowledge of the trust, he takes no greater interest than his grantor had.
With reference to the admission of certain testimony of the defendant, because of the marriage relation existing between her and William J. Fulton at the time': This testimony consisted of (1) transactions had between Mrs. Fulton and her then husband, as to the furnishing of the funds to purchase this property; and (2) communications made by him to other persons as to the title of this property, in her presence and hearing. We think the testimony was competent as to the first, for the reason that they were all transactions in which he was acting as her. agent, -and fall -within the statutory exception. As to the second, such testimony is clearly admissible. (Higbee v. McMillan, 18 Kan. 133.) But if this testimony had all been excluded there would still be ample testimony to support the finding of the court that the property was purchased by William J. Fulton with funds belonging to the defendant Mary J. Fulton.
We perceive no error in the rulings or judgment of the court below. 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
Cole, J.:
Thomas McManus was convicted before'a justice of the peace in Cherokee county upon a complaint charging unlawful sales of intoxicating liquors and the maintaining of a nuisance, and appealed from said conviction to the distinct court of said county, where, upon trial, he was again convicted, and from the conviction and sentence in the district court he appeals to this court.
Two questions are presented for our consideration, the first being the contention of the defendant that the court erred in overruling the motion and request made by the defendant, after the impaneling of the jury, that the state be confined on the trial to the twentieth count in the complaint. It appears that the complaint, when filed before the justice of the peace. charged, the defendant in 19 separate counts with unlawful sales of intoxicating liquor, and, in the twentieth count, with maintaing a common nuisance by keeping a place where intoxicating liquor was unlawfully sold. Upon the trial before the justice of the peace, the state, upon motion of the defendant, filed its election as to the counts upon which it would, stand for conviction, specifying clearly the different sales relied upon for each count, and, in such election, abandoned the counts from the seventeenth to the nineteenth, inclusive. The jury that tried the cause before the justice of the peace returned a verdict as follows : “We, the jury, find the defendant guilty in 16 counts, including the nuisance count.” And thereupon the justice of the peace, instead of providing a punishment upon each of the counts separately, fined the defendant $1,600, and committed him to the county jail for 480 days. From this conviction and sentence the defendant appealed to the district court.
Upon the trial in the district court, the defendant moved the court to compel the state to confine its evidence to the nuisance count of the complaint, for the reason, as it was claimed, that the verdict and sentence in the court below were fatally defective, excepting as to the nuisance count. The court properly overruled this motion of the defendant. It nowhere appears that any objection was made, either to the form of the verdict or sentence, upon the trial before the justice of the peace. The defendant filed his recognizance, and thereby vacated the judgment of the justice of the peace, and waived any right which he had to complain of any defect in form, either of the verdict or sentence. Besides, the election made by the state was clear and distinct, and it was easy to determine from the language of the election that the jury found the defendant guilty upon the first 15 counts of the complaint, charging unlawful sales, and upon the twentieth count, charging the maintaining' of a nuisance.
The second error complained of is the giving by the court of the following instruction :
“ Some testimony has been permitted to go to you for the purpose of establishing, on behalf of the defendant, the fact that at the' time of the filing of the complaint in this case C. A. McNeill, the party who certified to the complaint, had no personal knowledge, at the time of signing, verifying and filing such complaint, of the transactions or sales upon which the county attorney now relies for conviction in this case, but I say to you, that as a matter of law is immaterial under the present condition of the prosecution of this case.”
It is contended by the defendant that, under the decisions of the supreme court of this state, a conviction could not be had upon any sale which was not within the personal knowledge of the prosecuting witness when he made the complaint. This complaint was made and sworn to positively by the county attorney of Cherokee county, and, upon the trial in the district court, evidence was introduced tending to show that the county attorney had no personal knowledge of the specific sales relied upon for conviction at the time the complaint was made and sworn to by him. It is the right of every defendant in a criminal case to have the complaint which charges him with a public offense positively verified by one who has a personal knowledge of the facts therein alleged, and no warrant can legally issue until such verification is made. But this right is one which may be waived by the defendant, and which he must assert at the first opportunity, if he would take advantage of it, for a complaint sworn to upon information and belief is sufficient for all purposes excepting the issuing of a warrant; and when a defendant is arrested upon a complaint filed before a justice of the peace, and there enters upon the trial of the cause, and, upon conviction, appeals to the district court, and enters into a recognizance for his appearance at said court without questioning either the verification of the complaint or raising any objection to the warrant, he waives all objections thereto. This case appears from the record to be based upon the same state of facts as the case of The State v. Moseli, 49 Kan. 142, where, the same doctrine as above announced is laid down. In that case, Johnston, J., in delivering the opinion of the court, says :
‘ ‘ The information was verified by the county attorney, who swore positively that the allegations contained therein were true. The county attorney elected to rely upon a sale made to one Anderson, about which testimony was given. It appeared'in the testimony that the county attorney had not actually witnessed the sale on' which the conviction was had, and it is contended that the information is to be regarded as if it was verified on information and belief. The appellant therefore insists that there was no authority for the issuance of the warrant, nor for the arrest of the defendant. If we treat the information as one verified' on information and belief, the objection of the defendant is not available. No motion was made to set aside the warrant nor to discharge the defendant from arrest. He voluntarily submitted himself to the jurisdiction of the court, and waived any irregularity there may have been in the verification. When arrested, he entered into a recognizance, binding himself to appear at the next term of the court and answer the charge which had been preferred against him, and subsequently he pleaded to the charge without questioning the sufficiency of the verification or of the information as a basis for a warrant. . . . The verification however was in positive terms, and while the county attorney may not have had such knowledge as warranted him.in making a positive declaration, yet the defendant suffered no prejudice on that account. He was notified of the nature of the offense charged against him — that is, the information contained a definite charge that at a stated time and place he un- ■ lawfully sold intoxicating liquors, and this charge was verified as has been stated.”
The district court therefore properly charged the jury that under the circumstances of this case the lack of personal knowledge upon the part of the county attorney was immaterial.
The judgment is therefore affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
All questions of fact are settled by the findings of the trial court, which seem to be fully sustained by the evidence. The plaintiff contends and introduces some testimony upon the point that, notwithstanding the mortgage shows it was made on the 6th day of July, 1889, it was not in fact made until the 12th day of November, 1889, but was dated back so as -to correspond with the notes secured-thereby. Even admitting this to be true, Crawford’s mortgage of October 21, 1889, which was filed November 2, 1889, was in full force and effect when she took her mortgage, and when she filed it for record, and covered the identical property she claims. How can she then be a subsequent mortgagee? '
‘ ‘ A subsequent mortgagee with notice of prior mortgage is not a subsequent mortgagee in good faitb, under paragraph 3905 of the General Statutes of 1889. The words ‘ subsequent purchasers’ and ‘ subsequent mortgagees in good faith,’ in paragraph 3905, mean only purchasers and mortgagees who purchased or took their mortgages after the expiration of the year from the filing of the mortgage.” {Howard v. National Bank, 44 Kan. 549.)
That she had notice of a mortgage in favor of Crawford is shown by the recital in her mortgage. But she says: “This mortgage was released, and this gave us a first mortgage.” This is not sustained by the evidence. The testimony shows that J. T. Crawford, the owner of these mortgages, has resided in Colorado for 10 years ; that Robert Crawford and his brother Grant have had the control and management of these mortgages and the debts secured thereby exclusively ; that neither he nor his brother ever authorized any one to release this mortgage.
There is not a particle of testimony to show that the colt “Charley,” which was taken as the increase of the mare “Baldy,” was “ Baldy’s” colt, or even to show that the “bay mare” mentioned in the Casner mortgage was the mare “Baldy.” On the other hand, the contention of the defendants that these mortgages from 1888 to 1890 constituted but one transaction — were simply renewals of the first — is upheld by a great preponderance of the testimony.
With regard to the usurious interest being included in the judgment, we think, if the trial court’s attention had been called to it, it would have been stricken out, as should have been done. As to this, we will modify the judgment to $104.50, and, with this modification, the judgment of the court in all other respects will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J.:
C. C. Thompson brought this action in the district court of Cherokee county to recover damages for alleged assault and battery committed upon .his person by Roseberry Pierson. After the commencement of the action Thompson was adjudged insane, and the cause was continued in the name of the defendant in error as guardian. Upon the trial, judgment was rendered for $1,000 in favor of said guardian, $29.35 of which was given by the jury as actual damages, and the balance of the amount as punitive damages. A motion for a new trial was filed, the grounds of which were, that the verdict was not sustained by sufficient evidence, that it was contrary to law, that the damages assessed were excessive and given under the influence of passion and prejudice, error occurring at the trial prejudicial to the defendant, and misconduct of the prevailing parties. Upon the hearing of said motion the district court sustained the same, upon the payment of certain costs within 50 days, and also ordered that if said costs were not paid the motion for a new trial should be overruled. Pier-son refused to pay the costs taxed against him, and brings the case here for review.
Several errors áre complained of in this case, but we do not deem it necessary to consider any but the ruling of the court upon the motion for a new trial, as in our opinion there must be another trial of this case, and the other errors complained of will probably not occur again.
It is-a well-settled rule that the verdict of a jury must meet with the approval of the trial court, and that unless- it is so approved by the court a new trial should be granted. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1.) -In this case the record shows, from the action of the trial judge, that he was dissatisfied with and did not approve the verdict rendered by the jury in this case. The particular reason for his dissatisfaction does not appear, but it must have been for some one of the reasons set forth in the motion for a new trial, as that motion contained the only grounds upon -which the verdict was assailed. The only question remaining is : Did the court have a right to impose terms, upon granting the motion for a new trial? We are clearly of the opinion that it did not in this case. The motion did not ask for a new trial upon the ground of any newly-discovered evidence, but because of certain errors claimed to have been committed upon the trial itself. Under such circumstances, it was error for the trial court to attach any conditions to the order granting a new trial, but the same should have been awarded absolutely. (Mining Co. v. Eakins, 23 Kan. 317 ; Spore v. Leeper, 27 id. 68.)
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
Gilkeson, P. J.:
At the threshold of our examination we are met with an objection to a review of the errors alleged in this action, for the reason that “the record does not affirmatively show that the motion for a new trial was filed at the term the verdict was rendered, and for this reason it must be presumed that the motion was overruled because not filed in time.” Paragraph 4403, General Statutes of 1889, (§ 308, Code,) provides:
“ The application for a new trial must be made at the term the verdict, report or decision is rendered; and, except for the cause of newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.”
As we understand this section, the application for a new trial must' be made during the term at which the verdict was rendered, and must, except for the one cause of “ newly.-discovered evidence,” be made within three days. In case of “newly-discovered evidence,” if “unavoidably prevented,” it can be made after the expiration of the three clays, but not beyond the term. This seems to be in harmony with the decisions of the supreme court of this state construing this section; (Earls v. Earls, 27 Kan. 538 ; Mercer v. Ringer, 40 id. 189 ; Powers v. McCue, 48 id. 477 ; Glass Co. v. Bailey, 51 id. 192) ; and it seems to be the construction the plaintiff in error gives to it. The record shows a verdict rendered November 8, 1890; motion for new trial filed November 11, 1890, and nothing further done until July 17, 1891. So, unless this court can take judicial notice of the duration of the September term, 1890, of the district court of Shawnee county, the record not showing that the motion was filed “ during the term at which the verdict was rendered,” it will be presumed, for the purpose of upholding the judgment of the court below and the ruling upon the motion for a new trial, that the motion was not made in time, and that therefore the court did not err in overruling it, and that all errors occurring during the trial were waived. (Hover v. Tenney, 27 Kan. 133; Lucas v. Sturr, 21 id. 480.) The plaintiffs in error concede this, but invoke judicial knowledge and appellate presumption to aid the record. We think the rule is the other way; judicial knowledge and appellate presumption are indulged only in aid of the ruling of the court below, not to overthrow it.
We agree with plaintiffs in error that - this court will take judicial notice of the commencement of the terms of court, but we have been unable to find any authority to the effect that an appellate court will take judicial notice of the duration of the term of the court below; but, on the contrary, the authorities are the other way. The supreme court cannot take judicial notice of the length of a term of the court of common ' pleas. (Kent v. Bierce, 6 Ohio, 336). And it is cer tainly well settled in this state that error is never presumed; it must always be shown; and if not affirmatively shown, it will be presumed that none was committed.
Aside from the objection made by the defendant in error, we have carefully examined the record in this case, under the assignments of error presented and urged, and fail to discover any reversible error therein.
The judgment of the court below will therefore be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Porter, J.:
For a statement of the facts in this case see The State v. Tawney, 78 Kan. 855, and 81 Kan. 162. We find no error in the ruling of the court denying a change of venue. As to the first ground, there was sufficient rebutting evidence in thé form of affidavits to warrant a finding that there existed no such prejudice in the community as would prevent the appellant from having a fair trial. The court doubtless took into consideration the fact that Franklin is a large, populous county, and that little difficulty would be experienced in finding unprejudiced jurors in portions of the county remote from where the appellant lived and' where the crime charged was committed.
To show prejudice on the part of the judge the appellant filed his affidavit and that of his attorney, relying largely upon unfavorable comments of the court in denying a motion for a new trial and other adverse rulings and errors of judgment in former trials. These have been held insufficient as grounds for reversing a decision refusing a change of venue. (The State v. Bohan, 19 Kan. 28.) Weight and consideration should always be given to the decision of the trial judge. (The State v. Tawney, 81 Kan. 162.) The trial court must exercise some discretion in passing upon applications for a change of venue. (The State v. Knadler, 40 Kan. 359.) We are unable to say that the court abused its discretion in this respect.
The challenge to the array was rightly overruled. The mere expression of an opinion by the sheriff as to the guilt or innocence of a defendant in a criminal action is not sufficient ground for quashing a panel summoned by him, in the absence of any testimony showing an attempt to influence or prejudice the jurors.
Complaint is made of errors in the admission and exclusion of testimony. It was clearly within the discretion of the court to permit questions to be asked of Joe Lockwood directing his attention to portions of a conversation which occurred almost three years before. It is urged that the court erred in excluding the offer of a letter in connection with the cross-examination of Lockwood. The letter was an anonymous one, written to him years before the offense for which the appellant was being tried was committed, and was properly excluded. It had no bearing on the case. There was no error in sustaining an objection to questions tending to show that certain relatives of the prosecuting witness had been convicted of crime and sentenced to the penitentiary. As testimony was admitted showing that a witness, Beecher Day, had been declared of unsound mind, the appellant was not prejudiced by the refusal to permit a transcript of the lunacy proceedings in the probate court to be introduced. The appellant offered to prove that prior to the time the pigs were stolen he had advised his wife .to leave them alone. This was a self-serving declaration and was properly excluded. (The State v. Hinkley, 81 Kan. 838, 846.) There was no error in refusing to permit the appellant’s wife to testify as to conversations she had with Lockwood, as her answers would have called for hearsay evidence.
The only complaint of the instructions is the refusal to give one asked with respect to reasonable doubt. The court in an instruction given fully stated the law on that subject, and the instruction asked was therefore properly refused.
The complaint of misconduct of the court and jury does not possess sufficient merit to warrant comment. The record fails to disclose that the verdict is the result of passion or prejudice, as claimed, or that it is not sustained by sufficient evidence.
Finding no prejudicial error in the record, the judgment is affirmed.
Benson, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
A civil action was brought against Bone Dykes charging him with maintaining upon a specified city lot a place where the prohibitory law was violated. A final judgment was rendered against him, not only enjoining him from the illegal use of the particular premises described, but also forbidding him to sell intoxicating liquors unlawfully anywhere in the county. He was subsequently arrested upon a charge of violating the injunction. Evidence was introduced tending to show that he had sold liquor within the county, but not at the place specifically described in the original action against him. He was adjudged guilty of eo'ntempt of court, and now appeals. His contention is that in the injunction action the court had no jurisdiction to make any order except with respect to the particular premises therein referred to, and therefore that the portion of the decree which undertook to forbid sales elsewhere was a nullity and could be disobeyed with impunity.
Of course the fact that a court’s order is erroneous does not justify its violation, if jurisdiction to make it existed. (In re Lewis, 67 Kan. 340; 22 Cyc. 1019.) Even where the injunction granted is broader than the pleadings it must be respected while it stands. (22 Cyc. 1010; O’Brien v. The People, 216 Ill. 354; Vilter Mfg. Co. v. Humphrey, 132 Wis. 587,) If Dykes had been enjoined from conducting a “joint” anywhere in a specified building the claim would hardly be made that any part of the order was void merely because the petition narrowed the description to a single room. So if the charge against him referred to a particular lot, and the judgment covered the entire block, there would obviously be no defect of jurisdiction. The present situation is not essentially different from either of those suggested. The forbidden territory was broadened so as to include the whole county. However erroneous the judgment may have been, the defendant’s remedy was to correct it by direct action. So long as it stood unreversed and unmodified it was entitled to his obedience.
The language of the decree forbidding Dykes to sell liquor anywhere in the county should probably, in view of the context, be interpreted to refer only to sales so made as to constitute a violation of what is known as the “nuisance section” of the prohibitory law (Laws 1901, ch. 232, § 1, Gen. Stat. 1909, § 4387), which pen-, alizes the keeping of a place where liquor is illegally sold. There was evidence that Dykes sold beer which he kept in a barrel in an alley for that purpose. This justified a finding that he was maintaining a nuisance within the meaning of the law. The want of other “paraphernalia” did not prevent the spot occupied from being a “place” within the condemnation of the statute, nor did its location in an alley prevent his being its “keeper,” so long as he used it for his own ends..
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action brought by the commissioners of Cheyenne county against Solomon Walter, H. C. Ewing and others a judgment was rendered, on service by publication, foreclosing a tax lien on a quarter section of land. H. C. Ewing had an interest in the land, which he assigned to Wallace Rob ertson before the action was begun, but the assignment was not recorded. Ewing was named as a defendant in the action, but Robertson was not, and no appearance was made by either of them. The judgment was rendered on May 23, 1905, under which a sale of the land.was made to R. M. Jaqua on August 16, 1905, and in due time a deed was executed and delivered to the purchaser. On August 14, 1907, Ewing and Robertson filed a verified motion to vacate the judgment, and alleged that they had no actual notice of the pendency of the action in time to make a defense. They set forth their defense to the action, and offered to pay any and all charges against them. Notice of the application was- given, and on April 7, 1908, Robertson filed his separate affidavit, which contained the necessary averments authorizing the opening up of the judgment and letting him in to defend, and on May 9, 1908, filed an answer stating a defense to the action. Within less than three years from the rendition of the judgment of foreclosure Ewing filed a sufficient affidavit and answer under the code provision for opening up a judgment. On motion of the appellee the trial court struck the affidavit of Robertson from the files, upon the ground that it had been verified before his attorney, who was a notary public, and at the same time made an order allowing him to file an amended affidavit, which was afterward done. Subsequently the amended affidavit was stricken out and the application to open up the judgment denied, and of these rulings complaint is made.
The original affidavit of Robertson was irregular in that it was verified before his attorney (Warner v. Warner, 11 Kan. 121; Tootle, Hanna & Co. v. Smith, 34 Kan. 27), but it was not void for that reason. It was an irregularity which was subject to be cured by an amendment. (Swearingen v. Howser, 37 Kan. 126.) The amended affidavit was probably ignored because it was filed more than three years after the judgment was rendered, but the amendment which was filed related back to the original affidavit, ■ and it was filed in good time. The provision for opening up a judgment and letting parties in to defend (Code 1909, § 83, former Code, § 77) is remedial in its nature and deserves liberal interpretation. Of that section it has been said:
“Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done.” (Albright v. Warkentin, 31 Kan. 442, 445.)
(See, also, Erving v. Windmill Co., 52 Kan. 787.)
There is some contention that as Robertson was not a party he was not entitled to the benefits of that section, but in Leslie v. Gibson, 80 Kan. 504, it was held that the grantee of a party to the action who was not himself named as a defendant, but who was bound by the judgment, has the same right to have the judgment opened up and to make his defense that his grantor had. The word “party,” as used in that section, applies not only to those named in the record but to everyone whose property rights are affected by the judgment.
There is a contention that the appellants’ application should be treated as one to vacate the judgment rather than to open it up. It is true that the validity of the judgment was challenged because of insufficient notice, but there was a distinct application to have it opened up and to give appellants an opportunity to defend, in which there was a substantial compliance with the statutory requirements. Now, the fact that they asked for more than could be awarded did not justify the refusal of that to which they were entitled. By asking to have the judgment opened up they may have so recognized its validity as to preclude them from insisting that no judgment had ever been rendered, but it would not deprive them of both remedies, nor of the benefit of the provision which allows a party who has no actual notice, of the action an opportunity to come in and set up his rights.
There was error in striking out the affidavits and in denying the application made by appellants, and for this reason the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action for the foreclosure ■of a mortgage. The defendant, Anna Uppenkamp, claimed the mortgaged premises by virtue of a tax deed. The judgment was in favor of the plaintiff, Gibson, for foreclosure.' The tax deed was held to be void as a conveyance, but a lien for the taxes was given, which was adjudged to be a first lien upon the premises, and the amount due upon the mortgage was made the second lien. Anna Uppenkamp appeals.
The petition sets out the mortgage, the assignments and the certificates of registration. The answer alleges that the defendant is the owner of the premises in fee simple, and that she is in possession thereof. It pleads the five and fifteen years statutes of limitation; an estoppel by a judgment quieting title; the release -of the mortgage; the failure to re-record the mortgage in conformity with the provisions of chapter 107 of the Laws of 1899; and laches of the holder and abandonment by him of the mortgage debt.
On the trial it was admitted that the mortgagor was. the owner of the land at the date of the mortgage. The plaintiff introduced the mortgage and the assignments, indorsed thereon, together with the certificates of registration, and also the accompanying note, with indorsements to the plaintiff. The defendant then introduced a tax deed, dated October 31, 1902, issued upon a certificate of a sale- of the property made in September, 1895, for the delinquent taxes of 1894. This deed recites that several disconnected tracts were-offered together, and were bid in by the county treasurer for the taxes and charges thereon; that the certificate was assigned to the grantee upon a compromise by order of the board of county commissioners, for a gross sum, for the taxes from 1894 to 1900, inclusive, upon all the tracts in bulk. The deed also recites that the several tracts were conveyed for a single consideration.
As the tax deed affirmatively shows that several disconnected tracts were offered for sale together, and were bid in by the county treasurer for a gross sum, the deed is invalid as a conveyance. (Smith v. Land Co., 82 Kan. 539; Worden v. Cole, 74 Kan. 226.)
The defendant was not in privity with the mortgagor, but claimed the land under an independent title, and can not therefore avail herself of the defense based upon the statute of limitations. (Gibson v. Ast, 77 Kan. 458.)
The defenses of estoppel by judgment quieting title and of laches and abandonment are not relied upon in the argument in this court.
The abstract does not show the evidence offered in-support of the allegation that the mortgage had been, released, but the judgment contains the following recital :
“The counsel stipulate in open court that it is a fact that the clerk of the district court of Kearny county, Kansas, made an entry in docket one (1), at page 503,. charging for the release of the mortgage in question in this action and the cancellation of the note and coupon notes secured thereby.”
This stipulation is insufficient to show a release. It purports to be an entry of items of costs for the release of the mortgage. There is no provision requiring the clerk of the district court to enter the release of a mortgage in his records. It is true that his records should show the release of a judgment, if it had been filed, but in such a case the release, in connection with the judgment entry, would be the proper evidence, and not the charge made by the clerk for entering it. There is no reference in these items of costs to any entries upon the margin of the record of the mortgage in the register’s office, as required by section 5207 of the General Statutes of 1909. (Laws 1885, ch. 145, ■§ 1.)
The remaining defense is based upon the act of 1899, supra. The preamble of this act recites that the records of mortgages in Kearny county were destroyed by fire on the 18th day of January, 1894, and the act requires that the holders of mortgages recorded prior to the date named shall refile them with the register of deeds within two years from the passage of the act, and requires the register to re-record the same. This mortgage had been duly recorded in that county before the fire. Section 2 of the act is as follows:
“All persons owning or holding any mortgages that come under the provisions of section 1 of this act who shall fail or neglect for two years from and after the passage of this act to have the same recorded shall lose all right under and all benefits and liens or surety created by such mortgage, and shall be forever barred from any and all actions to foreclose or enforce the condition in any and all courts of this state.” (Laws 1899, ch. 107, § 2.)
It will be observed that the statute declares that the consequence of a failure of the holder of a mortgage to have it recorded, as directed by this act, shall be.the loss of all rights and benefits under it. This language must be construed in the light of the purposes contemplated in the act. . The original records had been destroyed. Restoration was provided for. It could not have been the legislative intent to give a greater effect to the failure to record the instrument under that act than would have resulted from a failure to record it in the first instance. If this mortgage had never been recorded the lien would have been good between the parties and others having notice. It is still valid against the mortgagor, and it is against him that the lien was asserted and established by the judgment. The lien of the tax purchaser is in no wise affected by the lien of the mortgage.
The general purpose and object of all registry laws is to impart notice to creditors and. purchasers (Edmondson v. Beals, 27 Kan. 656), and this applies to an act to restore records as well as an act to provide for making them in the first instance. Construing the act of 1899 in the light of the emergency which led to its passage, and in harmony with the interpretation by this court of the general registration laws of this state, it is held that the failure to record the mortgage under its provisions did not destroy the instrument or affect its lien between the parties to this action. ’
The rights of the defendant were not affected by the failure to record the mortgage under the act of 1899. She had endeavored to acquire an independent title, having no relation to the title under which the mortgagee held. If the tax deed had been valid it would have extinguished the title of the mortgagor and the interest of the mortgagee alike, without regard to the registration of the instruments by which they were conveyed or established. (McFadden v. Goff, 32 Kan. 415.) The tax deed, being insufficient as a conveyance, gave a prior lien for taxes paid, which is likewise unaffected by the record of other conveyances having no relation to the tax title. The records in the register’s office are for the benefit of those whose interests maybe affected thereby.
The general statute providing for the registration of such instruments reads:
“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” (Gen. Stat. 1868, ch. 22, § 21; Gen. Stat. 1909, § 1672.)
Under this statute it is held that the lien of a judgment is inferior to that of a prior mortgage, although the mortgage is unrecorded. (Holden v. Garrett, 23 Kan. 98; N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152.) Yet a literal interpretation of the statute, apart from the purpose for which registration laws are enacted, might lead to the conclusion that an unrecorded mortgage was invalid as against the lien of a judgment. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., supra.)
The declaration of the statute of 1899 that the holder of an unrecorded mortgage shall be barred from foreclosing it must be construed in harmony with the interpretation given to the language already considered, and plainly means that he shall not be allowed to-foreclose against interests or liens acquired in the property by purchasers, mortgagees or others whose-interests may be affected by the mortgage and who-have a right to rely upon the records for notice. A tax-title purchaser can gain no advantage from a failure to-record instruments which can not affect his title or interest in the property. These views are supported' by the reasoning in Douglass v. Lowell, 55 Kan. 574, and Hagerty v. Goodlad, 70 Kan. 734.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This appeal was taken from a judgment adverse to the plaintiff in an action of ej ectment. The land in controversy was school land. It was sold in 1885 and a certificate of purchase was duly issued to the purchaser. In 1894 it was sold at tax sale to the county, for the delinquent taxes of 1893. In 1895 a notice of forfeiture was issued and returned, and the record of sale was- marked “canceled.” After that the land was taken from the tax roll, and it was leased by the state from time to time, the last lease expiring April 5, 1907. On February 26, 1907, the plaintiff took an assignment of the tax-sale certificate, took out a tax deed, and paid to the state the entire sum due on the certificate of purchase. The record was indorsed “sold to H. E. Mayse,” and on July 20, 1907, he received a patent from the state. On April 6, 1907, the defendants settled on the land, and on December 30 of the same year petitioned for its sale. On January 17, 1908, the plaintiff brought his suit. At the trial the court held that relief was barred by the limitation contained in section 4 of chapter 373 of the Laws of 1907, which took effect on January 25, 1907, and which reads as follows:
“No action shall be brought by any purchaser of school land, or by the assignee of such purchaser, in any court of this state, to recover any tract of school land, or to enforce the purchaser’s right to or interest in the same, when a forfeiture thereof has been declared, unless such action be commenced within six months after such forfeiture was declared, or, when such time has already elapsed, within six months after this act takes effect.” (Gen. Stat. 1909, § 7695.)
The preamble of the act states that the mischief to be remedied was the prejudice to the rights of new purchasers of school land, arising from incomplete, defective and lost records of forfeitures of the rights of previous purchasers. Whenever in the body of the act, as in sections 1 and 3, the phraseology adopted naturally led to a repetition of the limitations expressed in the preamble, they were inserted. The act closes with an interpretative provision which, like the preamble, states that its purpose is to afford pro tection in cases where there has been a forfeiture and a resale. It reads as follows:
“It being the intention of this act, as far as legally may be, to protect all purchasers and. settlers of school lands from the claims of prior purchasers whose interests have been declared forfeited and the lands again sold to other persons, and to that end the provisions of this act shall be liberally construed.” (Laws 1907, ch. 373, § 5, Gen. Stat. 1909, § 7696.)
True, the word “settlers” appears in this section, for the first and only time in the act, but the subsequent language restricts the application of the term to settlers claiming under a resale.
In the case of Jones v. Hickey, 80 Kan. 109, the court was obliged to consider the whole act in order to interpret certain of its provisions. The conclusion was expressed as follows:
“A consideration of the entire chapter makes it apparent that it was intended to apply only in cases where there had been an attempt to forfeit the rights of the original purchaser and the land had been sold to a new purchaser.” (p. 113.)
Taking into account the history of the act, the well-known evils which it was designed to remedy, the preamble, the body of the measure, and the concluding-exposition of its purpose, the court is satisfied that this is a correct statement of the legislative intent, and the general language of section 4 must be restrained accordingly.
If the argument of the defendants were sound, the plaintiff would have no remedy whatever against any intruder who might now, or years from now, settle on the land. More than six months having elapsed from the time the statute of 1907 took effect, an action of ejectment could not be supported by title derived through the forfeited certificate of purchase. The act was designed to promote justice and not to license spoliation.
The abstract recites that the parties are able to agree on the amount of the plaintiffs damages should he recover. The judgment is reversed and the cause is remanded, with direction to render judgment for the plaintiff for possession and damages. | [
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The opinion of the court was delivered by
Mason, J.:
W. A. Burks was killed while in the service of the Atchison, Topeka & Santa Fe Eailway Company as a freight conductor. His widow sued the company, alleging his death to have been due to its negligence. From a judgment for the plaintiff the defendant appeals. It contends that there was no evidence of actionable negligence on its part, but that, even if there was, the defense of contributory negligence was conclusively established.
There was testimony tending to show these facts, among others: A part of Burks’s train, in order to pick up a car, was backed into a spur track at Caney, upon which switching was done every day — ushally twice a day. The cars were equipped with coupling apparatus intended to operate automatically, including a lever by which to open the knuckles prior to contact, without going between the rails. If the lever failed to work the custom was to walk in and open the knuckles by hand. An eye witness thought Burks tried to raise the lever as the train approached the car. Then he stepped between the cars and was caught as they came together, his death resulting almost instantly. Close to his feet there was found, near the middle of the track, a lump of coal, or of rock resembling coal, about the size of a man’s head. It was imbedded in the soil to the depth of about an inch, and seemed to have been lying for some time exposed to the weather, having a white formation on its surface, and to have been recently disturbed by something striking it. It had the appearance of having been scratched, as though some one had stepped on it —it showed that a foot had slipped on it. Near it— within half an inch. — there was a mark showing that some one had slipped. The. track at this place had not been well kept up, but had been neglected. The section men had not done much to it. Grass and weeds grew between the rails to the height of about four to seven inches — high enough to cover the rails. They had not been mowed recently. Considerable coal, some of it in lumps the size of a man’s fist, had at different times been scattered along and upon the track and permitted to remain until some one came along and picked it up, sometimes two or three days. The section men were not seen to remove any of it. After the accident the coupler was found not to be in perfect working order, but in such condition as in a degree to prevent its manipulation by the side rods. A pin which required raising to allow the knuckle to open was bent and did not work readily.
The plaintiff does not claim that the defendant was negligent in allowing the coupling apparatus to be out of order, for if there was a defect before the accident it was not shown to have been brought to the attention of the company, or to have existed long enough so that by the exercise of due diligence it should have been discovered. But the evidence that Burks was seen to try to raise the lever and then step between the rails, in connection with the circumstance that the coupler was afterward found to be out of condition, justified an inference that he went between the cars because the automatic coupling device failed to work, and therefore was not necessarily wanting in due care. Of course the pin may have been bent by the collision, but the plaintiff was not required to prove the contrary. Contributory negligence being an affirmative defense, the burden of proving which rests on the defendant, the court can not treat it as conclusively established so long as the evidence is open to any other reasonable view.
The evidence bearing upon the cause of the accident was meager. Its substance. has already been stated. The jury were justified in believing that Burks, who-was said to have been an unusually careful and prudent man, would not have been caught and crushed between the cars except for the intervention of some unusual agency. The lump of coal lying near his feet, bearing indications of having been stepped upon, together with the mark in the soil showing where a foot had slipped, gave room for a reasonable inference, in the absence of any more probable solution of the problem, that he had stumbled upon and fallen over it.
A more difficult question is whether the evidence warranted a finding that the company was negligent in respect to the condition of the track. There was nothing to show that this particular lump of coal had ever before been seen there. The testimony as to its weathered condition possibly authorized a deduction that it had been lying on the ground for some time. At all events there was an abundant showing that pieces of coal of a smaller size were habitually permitted to remain between the rails indefinitely, among grass and weeds that would necessarily hide them to some extent. The company must be deemed to have had knowledge of the continuous existence of the vegetation and the' frequent presence of lumps- of coal. Whether the condition of the track showed a want of due care, and whether it occasioned the death of Burks, were questions for the consideration of the jury. In the defendant’s brief it is said:
“A little-used sidetrack at a small station presents a radically different situation from that of tracks in large railroad yards where many employees are constantly passing to and fro, and where, no doubt, there is at least a custom, if not a legal duty, to provide for inspection of the tracks.”
What precautions are necessary, in order that it may be said that ordinary diligence has been shown in the inspection and care of the surface of a railroad track, doubtless depends to some extent upon the frequency of its use. (Williams v. The St. L. & S. F. R’y Co., 119 Mo. 316, 322.) But just where the line should be drawn is a question of fact for the determination of the jury, rather than of law to be settled by the court.
Complaint is made of the refusal of the trial court to require more definite replies to questions' which were thus answered:
“Ques. How often had he [Burks] switched cars off and on this spur track? Ans. No evidence that he ever had.
“Q. Was he familiar at the time of his death with the construction of the track and how and in what manner it was used by the defendant ? A. No evidence that he was.”
Giving.these answers was equivalent to stating that under all the evidence the jury were not satisfied that Burks had personally conducted any switching' operations on the spur track, or that he knew its condition. A brakeman testified that Burks was familiar with the spur track — that he was nearly always out there when they were doing switching. But the same witness also said that he did not remember seeing Burks around it. The station agent was unable to say positively that Burks ever directed any switching there. The answers were therefore sufficiently specific and had some support in the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action is against the principal and surety upon a guardian’s bond. The petition shows that the guardian was appointed December 2, 1899, when the minor was fourteen years, of age; that the bond was given June 22, 1900, and that the guardian was discharged May 1, 1907, at which time he had in his hands $658 of his ward’s money, which he refused to pay. This action was commenced April 8, 1909. On a motion to make the petition more definite and certain an amendment was filed stating the dates and amounts of credits claimed by the guardian in various annual accounts filed in the probate court in the years 1901 to 1906, inclusive, for clothing, school supplies, medicine and other expenses, amounting to over $600, which items it is alleged were erroneously charged against the minor. It was further alleged that during the time of the guardianship the minor lived in the guardian’s family and worked constantly for him, and that such services were worth more than the value of the supplies furnished, but that the probate court was not informed that such services had been rendered and had no knowledge thereof when the accounts were filed.
The appeal was taken by the guaranty company, surety on the bond, from a judgment overruling its demurrer to the petition as amended.
The contention of the appellant is that it appears from the petition that the cause of action is barred by the two-year limitation prescribed by the third subdivision of section 17 of the code of 1909 for actions for relief on the ground of fraud. The appellee contends that the limitation to be applied is five years, this action being upon a guardian’s bond, and that the fifth subdivision of the section referred to governs.
This action is not for relief on the ground of fraud, within the meaning of the statute relied upon by the appellant. It is an action for a balance which became due to the plaintiff when he reached the age of majority, and which it was the duty of the guardian to pay to him at that time. The fact that the guardian withheld it upon a claim that he had made expenditures equal to the amount demanded, as set out in his ex parte accounts, does not change the nature of the plaintiff’s claim against him. The entry of these items of credit to himself in his own accounts may or may not have been fraudulent, but relief is not sought on that ground. The accounts do not conclude the appellee. They are for the information of the court, and are not adjudications against the minor. (Woerner, Am. L. of Guard., §§ 96, 97; Mitchell v. Kelly, 82 Kan. 1; The State to the use of Koch v. Roeper, 82 Mo. 57.) Whether credit should be given to the guardian for the sums so charged against his ward will be determined upon the trial of the action. The allegation concerning-these entries in the accounts is in the nature of induce-r ment, not essential to a statement of the cause of action, although a part of the history of the transaction. (Logan v. Brown, 20 Okla. 334.) A final settlement of' the guardian’s account in the probate court was not necessary; his duty was to account to the ward. (Mitchell v. Kelly, 82 Kan. 1.)
For the reasons stated, the appellant’s contention that the two-year limitation governs can not be sustained. Nor can the appellee’s claim that the five-year statute applies be sustained; it is settled otherwise by decisions of this court, for reasons which need riot be restated here. (Ryus v. Gruble, 31 Kan. 767; Comm’rs of Graham Co. v. Van Slyck, 52 Kan. 622; Davis v. Clark, 58 Kan. 454.) The limitation that does apply is determined in the case last cited. That was an action upon an administrator’s bond, for a balance due the estate, which was held to be a liability created by statute, and it was held that the period of limitation was three years, as provided in the second subdivision of' the section before referred to. The reasoning of the opinion applies to the default of a guardian as well as that of an administrator. The cause of action accrued when the appellee reached the age of majority, but that, date does not appear from the petition to have been more than three years before the action was commenced, and consequently there was-no error in overruling the demurrer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
It is strenuously contended on the re-argument of this case that the special findings of the jury are at variance with the general verdict — that such findings acquit the defendant of any negligence in maintaining and permitting to be used the gas pipe from the leaking of which the explosion occurred. Particular attention is called to special findings of the jury numbered 18 to 85, inclusive, all of which relate to the pipe in which the leakage occurred.' These findings are in the main to this effect: That the pipe was new, apparently in good condition, and free from rust when it was laid in the ground, about the year 1902, and continuously thereafter carried gas under a five-pound pressure, and none of the officers of the company had at any time known of any escape of gas therefrom; also, that a gas pipe of the size of this one, new when laid in the ground, will ordinarily remain sound and capable of carrying gas under a five-pound pressure for a longer time than had this one. It is especially urged that finding No. 31 is inconsistent with the general verdict. It reads:
“State if, after the said %-inch gas pipe referred to in question 18 had been laid in the ground by defend ant, anything had occurred to cause defendant to suspect that said pipe was in any way defective. Ans. No.”
It appears that the jury were not asked to designate, in case they found for the plaintiff, the act, or omission to act, upon which they based the conclusion that the defendant’s negligence was the cause of the calamity. Under the instructions of the court the jury must have found the defendant guilty of such negligence as a prerequisite to a verdict for the plaintiff. Question No. 31 was evidently answered with reference to the particular pipe from which the leakage occurred, and to which also several preceding and following questions related.
The company’s engineer in charge testified, in substance, that it became necessary to encase, and he did encase with cement, alí the gas pipes of the company in the immediate locality of the one in question, but that he overlooked and had forgotten the existence of this pipe, and hence did not encase it with cement. This was before the building which was demolished by the explosion was erected. There is nothing in the evidence to indicate that the engineer, or any officer of the company, thereafter knew of the existence of the pipe in question until this explosion occurred.
It is evident then that the jury answered, question No. 31 in the only way it could be answered. It seems that nothing could occur to cause the defendant to suspect that such pipe was in any way defective so long as the defendant was unaware of its existence. Apparently the fact of its existence was recalled to mind by the explosion which demolished the building and caused the death of the plaintiff’s husband.
The engineer’s evidence was uncontradicted, and indicates that he considered it dangerous to erect a building over the pipe in question. After he had testified that he had overlooked and forgotten the laying of this particular pipe, he was asked if otherwise he would have encased it before erecting the building over it. He said he would not, but would have tom it out, indicating that he would not have regarded it safe to build over it even if it had been encased.
The jury had a right to rely upon this evidence, and, if convinced thereby, to find the defendant guilty of negligence, as indicated by their general verdict. The special findings and the general verdict, a,s we have seen, are not inconsistent, and we abide by our former decision. | [
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The opinion of the court was delivered by
Smith, J.:
The appellee brought an attachment proceeding upon two promissory notes, before the maturity thereof. The sheriff levied the attachment upon several head of live stock on which the plaintiff held a' mortgage to secure the same notes. While the action was pending the plaintiff obtained an order from the court for the sale of the live stock, which order was executed by the sheriff, the stock was sold, and the proceeds of the sale ($393.25) were deposited with the clerk of the court. Thereafter, on the motion of the defendants, the court dissolved the attachment, for the reason that the grounds upon which it was allowed were not sustained by the evidence. Thereupon the plaintiff dismissed the action, and judgment was rendered against it for costs.
At the next ensuing term of the court, the money derived from the sale of the stock being still in the hands of the clerk, the plaintiff procured an order from the court for the clerk to pay the money to it. On the hearing of the motion for such order the plaintiff presented evidence that all the live stock sold was mortgaged to it by the defendants to secure the payment of the notes, and that the mortgage had been of record during all the time of the proceedings.
The defendants contend that upon the dissolution of the attachment and the rendition of the judgment in their favor the action was terminated, that at the next term of the court there was no action pending in which the plaintiff could file a motion, and that the court had entirely lost jurisdiction in the matter. Upon the determination of the question whether the court had jurisdiction to dispose of this money in the hands of the clerk of the court depends the decision of this case.
In an attachment proceeding the property is attached as belonging to the defendant, and the entire case proceeds upon that theory until at least this presumption is overcome by evidence. Hence it is provided in section 213 of the code of 1909:
“If judgment be rendered in the action for the defendant the attachment shall be discharged, and the property attached or its proceeds shall be returned to him.”
Upon the conversion of the property into money, through the sale thereof by the sheriff under the orders of the court, the money took the place of the property, and was held under the attachment in the custody of the law; and upon the rendition of judgment for the defendants they were entitled to an order for a return to them of the money, as they would have been entitled to an order for a return of the property if no sale had been had. This right, however, is not absolute, but pending a motion for a rehearing or upon appeal the order may be stayed. (Washer v. Campbell, 40 Kan. 748, 751; Miller v. Dixon, 2 Kan. App. 445.) So long as the property (or the proceeds thereof) remains in the custody of the law, the court has jurisdiction over it to make any proper order in reference thereto.
It is contended by the defendants that the court had no jurisdiction on the motion to hear and determine any matters which might be controverted — such, for instance, as the existence of the mortgage or whether or not any amount of money remained unpaid thereon, for the reason that the principal action had been fully disposed of and the term of court at which it was heard had expired. Had any showing or even a statement of counsel been made that there was a dispute as to the existence of the mortgage or the amount due thereon, or that1 the amount due thereon was less than the sum of money in the hands of the clerk, and had a request been made that pleadings be had and issues framed, probably the request should and would have been granted; but no such request was made, and there was no attempt on the hearing of the motion to attack the validity of the mortgage shown to have been of record, or to show that a sum as great or greater than the amount of money in the hands of the clerk did not remain unpaid thereon. In short, the only question presented to the court for determination was as to whom the money belonged and to whom it should order it delivered. The plaintiff made a prima facie showing that it belonged to him. The defendants made no showing whatever, and raised no issue whatever.
The plaintiff by his attachment proceeding lost no right to proceed under his mortgage against the mortgaged property or the proceeds thereof. (Commission Co. v. Bank, 79 Kan. 761. See, also, Rossiter v. Merriman, 80 Kan. 739.) The money in question in this case was unquestionably in the custody of the law, and the officer who had the custody thereof was subject to the orders of the court. (3 A. & E. Encycl. of L. 183.) At page 1801 of volume 2 of .Words and Phrases Judicially Defined it is said:
“A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ. The officer holding such a thing can not, after he has made his return of the writ, release it on his own motion to anyone claiming title to the thing. Its status as to third parties is fixed by his return, and can be changed only by order of court. Money received by a trustee in bankruptcy from the sale of property which he has received in his official capacity under the orders of the bankruptcy court is in custodia legis. McFarland Carriage Co. v. Solanes, (U. S.) 108 Fed. 532, 536.”
(See, also, 4 Cyc. 808, 809.)
An action obviously could not be maintained against the court for the disposition of the money. No method has been suggested by which this money could have been legally obtained by the plaintiff except by the very proceeding adopted, namely, an order of the court. While the money was subject to the lien of the mortgage, as before said, if it came into the hands of the mortgagor the usual methods of foreclosing a chattel mortgage were not possible of application. After the money came into the hands of the mortgagor it would be next to impossible to identify it.
We think the court proceeded properly, and its order is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The petitioner asks for release from imprisonment imposed under an order of the district court of Shawnee county made in a contempt proceeding.
In an action brought by the Atchison, Topeka & Santa Fe Railway Company against the board of railroad commissioners and . the Kiowa, Hardtner & Pacific Railroad Company it was alleged that the Kiowa company had obtained an order of the board of railroad commissioners authorizing it to build its line of railroad across the tracks and yards of the Santa Fe company at Kiowa, Kan., and had required the Santa Fe company to install a standard mechanical interlocking plant, the expense of the same-to be charged to the Kiowa company. The order, it was alleged, was unlawful, oppressive, fraudulent and void, because the Kiowa company did not ask to cross the switch yards of the Santa Fe company, and because it was practicable to cross outside of the yards, as the statute requires. It was also alleged that no compensation was allowed for a right of way through the land and over the yards of the Santa Fe company, and that a crossing through the yards of the latter company would, in addition to interfering with and impeding the company in its business, greatly imperil the lives and limbs of its employees, as well as the passengers traveling over its line, and it was averred that a .crossing could be made not more than 1000 feet away from the crossing proposed and the injuries and perils mentioned would be avoided. It was further alleged that the Kiowa company was proceeding to make the crossing without authority of law, and the plaintiff therefore asked that the order be set aside, and that defendant be enjoined from carrying out the order or from making the crossing through the yards of the Santa Fe company. On application a temporary restraining order was issued, restraining the defendants from proceeding in the building of a crossing until the further order of the court. Summons and notice of injunction was served on the defendants, after which ■ the Kiowa company moved to set aside the summons because of a lack of jurisdiction of the subject matter, but this motion was denied. Subsequently the Kiowa company filed an answer setting forth a general denial and alleging that there was no joint interest in, nor joint liability of, the Kiowa company and the board of railroad commissioners, and that the causes of action alleged against them were improperly joined. The board of railroad commissioners and its individual members also answered with a general .denial, and, further, that there was no community of interest between the defendants, and that the plaintiff had no capacity to maintain the action in Shawnee county. An affidavit was filed stating that the Kiowa company was proceeding to make the crossing in violation of the temporary restraining order, on which a writ of attachment was issued and served on the petitioner. Ah accusation was then filed setting forth an alleged violation of the restraining order, on which a trial was had, which re- suited in a finding that the petitioner was guilty of contempt of court, and a judgment sentencing him to pay a fine of $100 and to be committed to the custody of the sheriff of Shawnee county until the fine and the costs of the proceeding were paid.
The petitioner contends that in the first place the court had no jurisdiction or power to issue the injunction, and that therefore noncompliance with the order is not a punishable contempt. The basis of the claim is that the Kiowa company is a nonresident defendant which could not be served in Shawnee county, and that, while an action might be brought against the board of railroad commissioners, there was no right to summon the railroad company unless there was a cause of action against it and the board and both were properly joined as defendants, citing Marshall v. Land Co., 75 Kan. 445. The board of railroad commissioners, however, was a necessary and a proper party in the action. The action was one challenging the validity of the crossing order made by the board, and to enjoin its enforcement or the making of the crossing which the order purported to authorize. In such an action the board that made the order, as well as the railroad company which obtained it and proposed to make the crossing, may be sued together. (U. T. Rld. Co. v. Rld. Comm’rs, 52 Kan. 680.)
It is contended, however, that the order was made in a condemnation proceeding, that the only remedy of a railroad company dissatisfied with the order is an appeal under section 7192 of the General Statutes of 1909 (Laws 1901, ch. 286, §14), and that when the order was made and no appeal was taken within ten days the order became a finality and thereafter the board had no further interest or power in the matter. It is insisted that no action against the board could be maintained, and therefore no summons could be sent to another county to be served on the Kiowa company, and U. T. Rld. Co. v. Rld. Comm’rs, 54 Kan. 352, is cited as a sustaining authority. In that case a crossing order made under chapter 184 of the Laws of 1887 (Gen. Stat. 1889, §§ 1359-1361) was held to be in effect an order in a condemnation proceeding; and it was held that the decision was to be treated as final unless an appeal was taken within the prescribed time, and that, if no appeal was taken, the commissioners had no power thereafter to reopen and retry the question decided. In 1901 the law regulating railroads was revised, and in the revision the section authorizing the board to order the making of railroad crossings was reenacted substantially as in the statute of 1887; but in addition the legislature enacted a provision that a railroad company dissatisfied with any order made by the board of railroad commissioners might, within thirty days thereafter, bring an equitable action, such as the injunction proceeding in this case, to test the right of the board to make the order, and to enjoin its enforcement if it was found to be unreasonable, unjust, oppressive or illegal. (Laws 1901, ch. 286, §39, Gen. Stat. 1901, § 5999; Laws 1907, ch. 268, § 8, Gen. Stat. 1909, § 7228.) This added remedy was given after the case of U. T. Rld. Co. v. Rld. Comm’rs, 54 Kan. 352, to which counsel refer, was decided. It gives a dissatisfied railway company a right to go into court and test the legality and justice of every order made against it, and clearly embraces orders made respecting crossings. The statute therefore gives, not only the remedy of appeal, but also the right to challenge the order in a direct equitable proceeding, in which not only the amount of the award and the questions involved in an appeal but all other questions of an equitable character may be tried and determined. The proceeding in which the order in question was made fairly comes within this provision. Even as the law stood before the statute of 1901 was enacted, a party was entitled to bring a proceeding and enjoin the making of a crossing where the commissioners acted without authority or where the decision was fraudulently obtained. (U. T. Rld. Co. v. Rld. Comm’rs, 54 Kan. 352.). But under the later statute and the new remedy provided the courts may inquire into the reasonableness and justice of the order, as well as its validity.
Apart from this consideration, the district court has jurisdiction of the subject of injunction, and it determined upon a challenge of misjoinder that the board of railroad commissioners and the Kiowa company were properly joined as defendants and the action was rightly brought against both parties. If the decision was wrong it was one to be corrected on appeal, and not in a habeas corpus proceeding. In Ayres v. Deering, 76 Kan. 149, it was contended that a judgment was open to. collateral attack because an action against a nonresident defendant could not be properly joined with that against a resident defendant, the defect being apparent on the face of the petition, and it was said:
“The petition was sufficient to bring up for decision the question whether there was a misjoinder. True, it showed upon its face that in a correct view of the law the two causes of action could not properly be united, and therefore that a summons could not lawfully be served upon Jackson in another county; but whether the joinder was rightful was one of the very matters to be determined. The fact that the record showed that it was wrongly decided does not render the resulting judgment open to collateral attack.” (p. 151.)
(See, also, National Bank v. Town Co., 51 Kan. 215; Clevenger v. Figley, 68 Kan. 699.)
- There is a contention that the order violated was a temporary injunction rather than a temporary restraining order, and that as no bond was required or given the order never became operative. It was a temorary restraining order which was asked for, and the district court treated and designated the order granted as a temporary restraining order. The only basis for calling the restraining order a temporary injunction was that no time was fixed to hear the application for a temporary injunction, but this fact alone does not determine the character of the order. The purpose of a temporary restraining order is to suspend operations until the propriety of granting an injunction can be heard, and, of course, it should only be continued for a brief time. Ordinarily the order granting it limits its operation by providing that it shall only continue until a certain day, when a hearing for a temporary injunction shall be had. Instead of fixing a particular day in this instance the court temporarily restrained the parties until the further order of the court. The time for a hearing may have been left open in order that the convenience of the defendants, who were not present, might be consulted. In every other respect the court indicated that it was granting a mere temporary restraining order. The fact that it was granted ex parte and without notice indicated to'some extent the purpose of the court, and the further fact that no bond was required showed the view which the court took of it. In the order itself the court in plain terms called it a temporary restraining order, and we think it should be so treated in this collateral attack. The order, although it may have been erroneously granted, should have been obeyed by the defendants until it was set aside in a direct proceeding.
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Per Curiam:
This is an appeal from a judgment of conviction of an assault with intent to commit manslaughter in the second degree. The information charged an assault with intent to murder.
One of the claims of error is.that a conviction of assault with intent to commit manslaughter is a legal impossibility, because manslaughter is involuntary killing, not killing by design. To this it is sufficient to say that assaults with intent to commit manslaughter are among the offenses defined by the law (Gen. Stat. 1897, ch. 100, § 40, Crimes act, § 41, Gen. Stat. 1909, § 2529; and under section 17 (Gen. Stat. 1909, § 2505) •of this chapter, which defines one of the instances of manslaughter in the second degree, it is entirely possible to commit the offense with a specific intent to kill.
The claim is also made that inasmuch as the prosecution was under section 39 (Crimes act, § 38, Gen. Stat. 1909, § 2526) of the act defining and providing for the punishment of crimes a conviction could not be had under section 40. This claim is in the face of a long line of our own decisions to the contrary, among which is the recent case of The State v. O’Shea, 59 Kan. 593.
Some other claims of error are made, but they are altogether lacking in merit. The judgment is affirmed. | [
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Per Curiam:
The motion of the plaintiff for an order from this court allowing the plaintiff for expenses in attending court, printing briefs and attorney’s fees is denied, for the amount claimed or for any amount whatever. Thé duty of the state auditor in passing upon questions presented in the original case, as to whether the municipal bonds in question should be registered in his office, involves the decision of a judicial question. His action in deciding the same is quasi judicial. The performance of his duty involves the exercise of judgment, and in the absence of any suggestion of malice, oppression in office or willful misconduct, he is not individually responsible. (29 Cyc. 1444; 23 A. & E. Encycl. of L. 375.) Indeed, the request for an order against him. is in his capacity as state auditor, and is in effect a proceeding against the state. The state can not in a proceeding of this nature be subjected to a money judgment, especially in the absence of any consent on the part of the state, or of the officer authorized to give such consent, to be made a party to such proceeding. The costs of this motion will be taxed to the plaintiff. | [
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Per Curiam:
In a petition for a rehearing in this case it is suggested that it might be inferred from the opinion filed that this court holds the evidence to be conclusive upon the various questions of fact involved. The opinion is not to be so interpreted. The decision is merely that there was evidence enough to withstand a demurrer.
Further, it is suggested that the agent, Fast, could not act in a dual capacity, and, having been employed by Funk, the latter is concluded by Fast’s conduct. Fast could act as scrivener for Funk and Nuss in the preparation of their papers and then act as agent for the company in effecting an assignment of the policy without violating any rule of propriety.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
Arthur Faulkner brought an action to foreclose a mortgage which he had acquired' by assignment from J. O. Davidson, the mortgagee. Two of the defendants, B. D. Messing and Ora P. Messing, answered alleging that prior to the recording of the assignment of the mortgage they had obtained a judgment against Davidson quieting their title to the land. The answer was found to be true, and the court properly rendered judgment in favor of the defendants, upon the ground that Faulkner, having failed to record his assignment, wa,s bound by the decree against his assignor, the apparent owner of the mortgage. (Utley v. Fee, 33 Kan. 683.) Faulkner afterward made application, in the case of the Messings against Davidson, under the provision of the code (Civ. Code, § 77, Gen. Stat. 1901, § 4511, Code 1909, § 83) authorizing a judgment based upon service by publication to be set aside within three years from its rendition upon a showing of a meritorious defense and a want of actual notice. Although not previously a party to the litigation, he was entitled to the benefit of this provision. (Leslie v. Gibson, 80 Kan. 504.) The judgment was opened and he was let in to defend. He then set up his mortgage and asked its foreclosure. He was denied relief upon the sole ground that he was barred by the judgment in the action which he had previously brought. He appeals.
In our view the trial court gave too far-reaching an effect to the judgment in the foreclosure action. That judgment merely determined that the decree quieting title was valid as against any collateral attack, that it was binding upon Faulkner, and that it was a bar to his action to foreclose the mortgage — not that it was absolutely final, or that it could in no way be set aside, but that while it stood it operated as an effectual barrier to the enforcement of the mortgage. When the decree quieting title was vacated the barrier was removed, and a materially different situation was presented.
“The estoppel of a judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a reexamination of the same questions between the same parties where in the interval the facts have changed or new facts have «occurred which may alter the legal rights or relations <of the litigants.” (23 Cyc. 1290.)
“An adjudication is conclusive only as to those matters capable of being controverted between the parties at the time and as to conditions then existing, and can not operate as an estoppel to another action or proceeding which, though involving the same rights passed upon, is yet predicated upon facts which have arisen subsequent to the former adjudication.” (24 A. & E. Encycl. of L. 777.)
If a judgment could only be pleaded as an estoppel after it had become absolutely final, so as to be no longer capable of vacation on any ground, it would follow that in holding the decree quieting title to. be a bar to the foreclosure action the court determined that it was a permanent and insuperable obstacle. But in Kansas a judgment may be used as a bar even where it has been appealed from and its enforcement has been stayed. (Willard v. Ostrander, 51 Kan. 481.) And such is the rule in the majority of the states in which the question has been passed upon, although the conflict is sharp and the division is nearly even. (23 Cyc. 1129; 24 A. & E. Encycl. of L. 809.) The practical argument against this rule has been thus stated:
“The evil resulting from this rule is, that though the judgment is erroneous, and for that reason is reversed, yet before the reversal it may be used as evidence, and thereby lead to another judgment, which can not in turn be reversed, because the action of the trial court: in receiving and giving effect to the former judgment, was correct, and does not become erroneous when such ■judgment is subsequently reversed.” (1 Freeman, Judg., 4th ed., § 328.)
(See, also, 24 A. & E. Encycl. of L. 810.)
That argument has no force as applied to the situation here presented. The judgment denying a foreclosure did not need to be set aside in order to allow a foreclosure in another action, because all it decided was that as matters then stood the plaintiff had nu right of action. And that is all it could rightfully have decided. If it had gone further and decreed the cancellation of the mortgage it would doubtless have been a bar to a subsequent action thereon, but the remedy would have been to procure its reversal for error. As suggested in Willard v. Ostrander, 51 Kan. 481, the courts have ample power to continue a case in which the protection of a prior judgment is invoked, until its finality is determined. Here, however, there was no occasion for continuing the action brought by Faulkner. He was entitled to try out in that case the question whether the decree quieting title, as it- stood, was binding upon him, without prejudice to his right to procure its subsequent vacation in a direct proceeding for that purpose.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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Per Curiam:
This action was brought by the appellant to recover from Shawnee county $1562.35, which amount the appellant claims the board of county commissioners required him, as register of deeds, to deposit in the county treasury, being a portion of the sum received by him as fees as register of deeds for the year 1907. The board demurred to the petition, and the court sustained the demurrer.
Chapter 131 of the Laws of 1897 (§ 13), relating to the compensation of registers of deeds, entitled “An act fixing the fees and salaries of certain officers and persons therein named,” as amended by section 13 of chapter 141 of the Laws of 1899 (Gen. Stat., 1909, § 3670), provides that registers of deeds in counties having the following population may retain of fees collected the amount specified: “In counties having a population of more than 55,000 [which includes Shawnee county], $3000”; and further provides: “And if in any one year the fees charged shall be more than the sums above specified in their respective counties, the •said registers of deeds shall pay to the county treasurer of their .respective counties one-half of such excess, when collected,” etc.
Chapter 247 of the Laws of 1903 is entitled “An act providing for the application of the excess fees of the registers of deeds in the counties of . . . Shawnee and Bourbon.” Reading the provision as if it applied to Shawnee county only, it reads:
“Section 1. The register of deeds of the county of Shawnee is hereby authorized to apply to the payment of salaries and wages of his respective necessary deputies and assistants the excess fees, that is to say, such parts or proportions of the fees of said office of the said register of deeds as may be by law payable' into the general fund of the several counties named, to wit, ... in the county of Shawnee, one thousand dollars per annum; . . . provided, that one-half of all the balance of such excess fees remaining in the hands of said officer shall be paid to the county treasurer, as provided by law.”
For the year 1907 the appellant, as register of deeds of Shawnee county, collected $7124.70, of which it is admitted he was entitled to take for his compensation $3000, leaving $4124.70, of which, by the provisions of the laws of 1897 and 1899, he was entitled to $2062.35, and was required to deposit an equal amount with the county treasurer for the use of the county. In his petition he claims that he was entitled to take of the amount payable into the general fund of the county the sum of $1000 as salaries and wages to his necessary deputies and assistants, leaving only $1062.35, of which he was required by the act of 1903 to deposit only one-half, namely, $531.18.
The board of county commissioners construed thp law to be that he was authorized to pay $1000 for salaries and wages to his deputies and assistants from the excess after retaining his $3000 salary, namely, from the excess of $4124.70; that he should deposit one-half of the remainder, viz., $1562.35, which demand he complied with, and brought this action to recover that sum.
It will be observed that the title of the act of 1903 makes no reference to the compensation of registers of deeds; but relates solely to the application of the excess fees of registers of deeds, while the body of the act provides for the application of only a portion of the excess, viz., “that is to say, such parts or proportions of the fees of said office of the register of deeds as may be by law payable into the general fund of the several counties named.” (Laws 1903, ch. 247, § 1.) As construed by the register of deeds, the act of 1903 would increase his salary at least $1000, which, if provided for directly in the body of the act, would necessarily be held not to be within the title of the act. It thus appears that the provisions of the law are ambiguous, at least so far as the provisions comply with the constitutional requirements. '■
It is plain that the appellant was not entitled to recover the amount claimed, and it seems impossible to reconcile the legal provisions and to say what amount, if any, he is entitled to recover. We are inclined to adopt the construction of the law as made by the board of county commissioners and approved by the court below, and leave it to the legislature to remedy the ambiguity. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was charged with aiding and abetting another in 'the larceny of two gallons of whisky. From a judgment of conviction he appeals.
The errors assigned relate wholly to the instructions. The appellant claimed that at the time he assisted in taking the whisky he believed it belonged to James F. Ansiel, known as “Indian Jim.” He testified that the latter told him he w'as expecting a box of whisky that morning; that they first called at the Santa Fe depot to see if the package had arrived; that afterward “Indian Jim” told him that it had just come in on the Rock Island, and they drove together to the Rock Island depot, where the appellant held the team while his companion went and got the package from the platform. The appellant testified that he acted innocently, believing that he was only assisting “Indian Jim” in taking charge of "and removing his own property from the platform of a public carrier. It is claimed that the refusal of the following instruction was error:
“The court instructs the jury that the defendant, in order to be guilty of the crime of larceny, must have had knowledge that the property stolen was not the property of James F. Ansiel, and before you can find him guilty of being an abettor or accomplice you must find beyond a reasonable doubt that he had this knowledge.’-’
We agree with the appellant’s contention that a person who, without knowing that another is stealing property, innocently aids and abets him in taking the same is not guilty of the crime of larceny; but the instruction asked is too broad in its language. It states that in order to constitute the appellant guilty he must have had knowledge that the property stolen was not the property of the other. This would require the state to prove that the appellant had actual knowledge that the" property did not belong to the person he was assisting, whereas he would have been guilty of larceny if he aided and abetted another in taking property which he had reason to believe did not belong to the other. In this connection it may be said that the state offered abundant evidence that sometime prior to the taking of the whisky the appellant saw and examined the package containing it, and that the package was not consigned to James F. Ansiel, or “Indian Jim,” but bore the name of another person as the consignee. While the jury might properly have been instructed that if the appellant acted innocently, believing that he was aiding another in taking charge of and removing the other’s own property from the platform, he was not guilty of larceny, the instruction asked was faulty, and, for the reasons stated, its refusal was not error.
The principal witness against the appellant was “Indian Jim,” who admitted stealing the whisky, and a further claim of error is predicated upon the failure to instruct the jury that great caution should be exercised in weighing the testimony of an accomplice. It is a sufficient answer that the appellant made no request for an instruction of this character. Without such an instruction a jury of ordinary intelligence would naturally receive with caution the testimony of a confessed accomplice. In all of the cases cited in support of this claim of error the defendant requested and the court refused such an instruction.
We find no prejudicial error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant commenced this action against the appellee, as sheriff of Reno county, to enjoin him from selling real estate under execution, and alleges the following facts:
A thrasher company had theretofore brought an action against the appellant praying judgment on certain promissory notes executed by him to the company, and to foreclose certain chattel mortgages given to secure the payment thereof. In that action the company recovered a judgment in the district court of Reno county for the sum of $923 and costs; also an order that the chattel mortgages be foreclosed and the property therein described sold and the proceeds of the sale applied, first, to the payment of the costs, and, next, to the payment of the judgment; also “that upon order of sale or execution being issued herein that said property be taken by the sheriff of Reno county and notice of •sale be advertised,”- etc. No order of sale, or special execution, was issued on the judgment; but something over two years and a half after the rendition of the judgment a general execution for the amount specified in the judgment was issued by the clerk of the court and delivered to the sheriff, who levied upon a large number of lots in Park’s First Addition to the city of Hutchinson, which addition had been vacated since the rendition of the judgment. In his petition in this, action the appellant alleged that the personal property mortgaged was of the value of $555. The petition was presented to the probate judge of the county, who granted a temporary order enjoining the sale. The-thrasher company thereafter filed a motion in the district court to dissolve the temporary injunction, for the following reasons:
“(1) Because said probate judge had no authority of law to grant or make such order.
“(2) Because from the facts stated in the petition of plaintiff he was not entitled to such order.
“(3) Because upon the facts stated by plaintiff in his petition, this court has no jurisdiction to grant an order of injunction of any kind.”
Upon the hearing in the district court the motion to dissolve the injunction was allowed,-and the action was; dismissed at the cost of the plaintiff.
The appellant contends that under the judgment in the original action the thrasher company should be compelled first to procure a special execution for the sale1 of the personal property, and bases his claim upon sections 439 and 506 of the code of 1909, which provide :■
“Sec. 439. Executions are of four kinds: First,, against the property of the judgment debtor; second,, against his person; third, for the delivery of the possession of real or personal property, with damages for1 withholding the same, and costs; fourth, executions in special cases.
“Sec. 506. In special cases not hereinbefore provided for the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance as in other cases.”
The thrasher company, on the other hand, contends that under the original judgment the plaintiff therein was entitled to either of two remedies: First, to procure an order of sale or special execution and sell the personal property and apply the proceeds to the judgment, and if the amount of the judgment were not realized to have a general execution issued for the remainder; or, second, at its option, to have a general execution for the amount of the judgment in the first instance, as was done in this case.
It is, of course, conceded that if a special execution or order of sale was issued for the sale of the personal property, it must conform to the judgment of the court. The only question is whether the plaintiff in the original action was compelled to proceed to the sale of the personal property before it was entitled to a general execution upon the judgment. The appellant cites Lisle v. Cheney, 36 Kan. 578, and Norton v. Reardon, 67 Kan. 302. In neither of those cases was the question now pending involved, and we find nothing in Norton v. Reardon, supra, bearing upon this issue. In Lisle v. Cheney, supra, we find this language:
“Under a judgment for any other money demand, the judgment creditor has a lien on the real estate of the debtor within the county; under a judgment on a money demand secured by mortgage, a judgment creditor has a lien on the real estate of the debtor within the county, with this condition attached, that the proceeds of the sale of certain specific real property shall be first applied to the satisfaction of such judgment. This we adopt, and declare to be the true construction of the various sections of the code of civil procedure on judgments rendered in actions to foreclose mortgages.” (p. 583.)
As before said, we do not find that the question apparently decided in the above excérpt, especially the portion beginning “with this condition attached,” was involved in that action, and that dictum is disapproved.
In the original action the court rendered, first, a general judgment. Under the statute the company was entitled to a general execution to enforce this judgment against any property of the judgment debtor not exempt by lavr from execution. To procure such execution requires no order of court. The statute expressly gives the right. The court has no power to direct upon what property a general execution shall be levied. The sale is made according to the provisions of the statute. Such sale should be confirmed or' set aside by the court, but can only be set aside for the reason that-the provisions of the statute have not been complied with. The sale is made under the law. On the other hand, the foreclosure of the mortgage and the sale therein provided for is a judicial sale — a sale made by the court — and in the absence of a statute directing an execution to be issued therefor, as our statute provides, the court may order any person to make the sale and prescribe the manner of the sale. The person or officer making the sale does so, practically, as the agent of the court. (Norton v. Reardon, 67 Kan. 302.)
No good reason appears why the judgment creditor in this case was not entitled to its choice of remedies under the judgment, and we accordingly hold that it was entitled thereto. (Pingrey, L. of Chat. Mort. § 1036; Jones, Chat. Mort., 5th ed., §764; Karnes v. Lloyd et al., 52 Ill. 113; Fish v. Glover, 154 Ill. 86.) We believe this is in accord with the practice in the state, and the understanding of the bar generally, that where one who is entitled, to .pursue a specific lien under a judgment, and is also entitled to a general execution to enforce the judgment, he may first exhaust the property covered by the specific lien and apply the proceeds to the discharge of the judgment, or, in the first instance, he may have a general execution issued and levied upon any property subject to execution to satisfy the entire judgment.
The question may later arise, if the sheriff knew or should have known of any personal property subject to execution, included or not included in the chattel mortgage in the action, whether he was not required first to levy thereon. (Code 1909, § 445:) But it seems that this question can not be raised in this collateral action. (17 Cyc. 1091.)
The judgment of'the court, being in accordance with the views herein expressed, is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Girard Trust Company, trustee, obtained judgment against Thomas Owen upon a note and mortgage, and he appeals.
A preliminary question is presented by a motion to dismiss on the ground that the case-made was not served in time. The judgment was rendered December 8, 1908, and the time then allowed for serving a case expired April 7, 1909. A written acknowledgment of service recited that it was made April 8, and affidavits have been filed here stating such to be the fact. On the other hand, the defendant presents affidavits that service was made at an earlier date. The certificate of the trial judge, made at the time of settlement (May 25, 1909), includes a recital that the case-made had been served in due time. This is not ordinarily conclusive (Gimbel v. Turner, 36 Kan. 679), but it is competent evidence (Jones v. Kellogg, 51 Kan. 263, 271, 272). It amounts to a finding made at a hearing of which the adverse party had notice, and will be regarded in this instance as controlling, inasmuch as the conflict of testimony would otherwise leave the fact in doubt. The justice of this solution of the controversy is especially obvious because, if the trial judge had found that the case-made had been served too late, the defendant would still have had abundant time within which to institute an appeal under the new code.
The note sued on was due June 1, 1892. The action was begun April 2, 1907. To toll the statute of limitations the plaintiff relies upon a written acknowledgment in the form of an extension agreement signed June 20, 1901, and upon a payment of interest found to have been made May 27, 1902. The defendant maintains that the acknowledgment and the payment were of no effect because neither was made to the owner .of the note. The note and' mortgage w«re made payable to Thomas Frahm, who was the cashier of the McKinley-Lanning Loan and Trust Company, to which he shortly transferred them. According to the evidence they were then turned over to the plaintiff as collateral security. While the plaintiff held them the defendant signed an extension agreement acknowledging the indebtedness, which was described as owned by the McKinley-Lanning Loan and Trust Company. This written agreement was brought about by, and was delivered to, W. H. Lanning, who was the agent of Frahm and the McKinley-Lanning company, but not of the plaintiff, so far as the record shows. The subsequent payment was likewise made to him.
In Investment Co. v. Bergthold, 60 Kan. 813, it was held that a written acknowledgment incorporated in an extension agreement made with the payee after the assignment of the note does not interrupt the running of the statute. In that case, however, no suggestion seems to have been made regarding the effect of a subsequent adoption by the owner of the acts done by one having no authority at the time to represent him. Possibly the ratification might operate retrospectively by relation. (See, as having some bearing upon this phase of the matter: Dresser v. Wood, 15 Kan. 344; Service v. Bank, 62 Kan. 857; Haines v. Watts, 53 N. J. Law, 455; 31 Cyc. 1283, 1290.) The case of Moore v. Roper, 35 Can. Supr. Ct. Rep. 533, tends to the contrary. In volume 19 of the American • and English Encyclopaedia of Law it is said that “an acknowledgment made to the assignee [obviously a misprint for assignor] after the assignment is of no effect.” (p. 318.) Of the two cases cited in support of this text, one (Maxwell v. Reilly, 79 Tenn. 307) holds that after the death of the owner of a note an acknowledgment made to his widow does not inure to the benefit of an administrator subsequently appointed. The widow claimed to own the note by gift, and the decision was based upon that .fact. In the other case (Stamford, Spalding and Boston Banking Co. v. Smith, L. R. [1892] 1 Q. B. Div. 765), a payment made to a former owner of the note was held not to suspend the statute because the .giving of money to a stranger was not a payment upon the note. The principle of ratification was suggested, and might have been applied, but it happened that the adoption of one payment would have involved recognizing enough others to have wiped out the debt.
In the present case the acknowledgment was sufficient irrespective of the effect of a subsequent ratification. Although the Lanning-McKinley company, to whose agent the acknowledgment was made, had previously transferred the note and mortgage, the evidence shows that the transfer was for security. By such a transfer the company lost the right of collection and control, but did not part with all interest in the claim. It was entitled to any surplus over the amount secured, and was itself liable for any deficiency. It had a substantial interest in the payment of the note, and can not be regarded as a stranger to it. The cases holding that an acknowledgment made to a stranger is without effect have no application to such a situation. This readily appears from an examination of collections in 25 Cyc. 1362 and 19 A. & E: Encycl. of L. 316, and notes in 102 Am. St. Rep. 754, and in 5 A. & E. Ann. Cas. 811. In the note last cited it is said:
“If the relationship between the person to whom the acknowledgment is made and the creditor is such that they have an interest in common in the debt, or that there is privity between them, the acknowledgment will be sufficient to toll the statute.” (p. 812.)
A situation somewhat analogous to that here presented arises where, upon the death of a creditor, the debtor admits the indebtedness to an heir, who has no legal title, but is interested in the payment. By the weight of authority such an acknowledgment is as effective as one made to the administrator. These cases tend to support that view: Haines v. Watts, 53 N. J. Law, 455; Hodnett v. Gault, 64 N. Y. Supr. Ct., App. Div., 163; Hill v. Hill, 51 S. C. 134; Robertson v. Burrill, 22 Ont. App. 356; Croman v. Stull, 119 Pa. St. 91. The following have a contrary tendency: Visher v. Wilbur, 5 Cal. App. 562; Kisler v. Sanders, Administratrix, 40 Ind. 78.
Ordinarily a part payment is effective to suspend the running of the statute only when it is made to the creditor or some one authorized to represent him. The reason has already been referred to — the giving of money to a stranger is not in fact a payment on the debt. Here, however, that reason does not apply. Owen was entitled to credit for the payment made in 1902 to Lanning, the agent of the mortgagee, because at that time no assignment of the mortgage had been recorded. The statute (Laws 1889, ch. 168, §§ 3, 4, Gen. Stat. 1909, §§ 5214, 5215) makes payments to the record owner of a mortgage binding upon the real owner; it in effect makes the one the agent of the other for the purpose of receiving payments. As a payment made to such a statutory agent reduces the debt, it gives a new starting point for the period of limitation.
Prior to the extension agreement nothing had been paid upon the principal, which was $500. At that time a payment of $100 was made, and Owen signed a new contract which recited that the unpaid balance was $250, and provided for the payment of half of that amount in one year and the remainder in two years, interest to be paid semiannually, coupons therefor being attached. Judgment was rendered for the full amount of the original note and interest, less such payments as had actually been made. Owen maintains it should not have been for more than $250 and interest.
The question for our determination is, What contract did the parties in fact make. It was of course competent for them to agree either that the execution of the instrument relating to the extension should of itself reduce the amount of the debt, by the absolute forgiveness of a portion of it, or that such reduction should result only if the new promise to pay the less amount were fully kept. (1 Enc. L. & P. 637, 642.) A witness for the plaintiff undertook to give the transaction the latter color, but his testimony must be regarded as expressing merely his view of the legal effect of the writing signed by Owen, for he 'stated no facts bearing on the matter. The negotiations leading up to the signing of the new contract were conducted by correspondence, and there was no evidence as to the contents of any communication on the subject. The question must therefore be determined upon the face of that instrument.
The new contract was supported by abundant consideration!. For one thing, the place of payment was changed; and for another, Owen’s wife, who had not previously been personally bound, assumed liability for the debt. The writing described the original note and mortgage, and recited that $250 of the principal remained unpaid. It contained nothing to suggest the payment under any circumstances of a larger sum than it stated to be still owing on the note. It provided, among other things, that in case of default in the payment of the interest coupons attached to it the mortgagee might declare the “said principal sum” (referring to the $250) immediately due and payable. This express provision that a failure to meet the interest promptly should mature the new principal fairly implies that the parties did not intend such a default to have a greater effect — that there was no purpose to make a delay in meeting the readjusted payments work a forfeiture of all the benefits to Owen of the readjustment.
The judgment is modified by reducing the amount to the sum due by the terms of the extension agreement. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action John P. Sondegard' sued F. H. Martin for alienating the affections of his wife, and asked for damages in the sum of $5000. At the conclusion of the trial the jury returned the following verdict: “We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find for’ the plaintiff and assess his damage at actual $1, punitive $2000.” The court was not satisfied with the form of the verdict, and directed the jury to retire again and bring in a verdict in proper form, saying to them that “in cases of this kind, if your verdict is for the defendant, it should be for him generally; if for the- plaintiff, you should find a general verdict for the plaintiff. You may state separately, in addition, the elements of damage which form the lump sum agreed upon by you, but you do not have to do so.” Shortly .afterward the jury returned another verdict, in this form: “We, the jury impaneled and sworn in the .above-entitled case, do, upon our oaths, find for the plaintiff and assess his damages at $2001.” The amount of the damages found in the second' verdict, as will be observed, is exactly the sum of the two elements ■of damages found by the first verdict. Upon the sec-', -ond verdict judgment in favor of Sondegard for $2001 was rendered. Martin appeals, and insists that error was committed in the admission of testimony, and that in any event, if a judgment is to be rendered against him, it should be based upon the first verdict .and should not exceed $1. The contention is that the first verdict of the jury indicated with certainty the elements of their award; that the $1 allowed as actual damages was not a substantial award, but was only a nominal sum, and that under the rule which obtains in this state it furnishes no basis for the incidental award of exemplary damages. It is further contended that in the second, or final, verdict returned the jury did no more than combine the two elements specified in the first verdict, and that the second is therefore as invalid as the first.
The course of the proceedings strongly indicate, and the court is inclined to'believe, that when the jury retired a second time and undertook to correct the verdict they obtained their result by simply adding the amounts previously found by them as actual and exemplary damages. If this were clearly shown by special findings which had been accepted and approved by the trial court the special findings would control, and judgment would be ordered for appellee in the sum of $1 notwithstanding the second verdict. It is clear that where the injury for which the action is brought is merely nomi nal, as an award of $1 would indicate, exemplary damages can not be allowed. It has already been decided that no one has the right to maintain an action for the mere purpose of inflicting punishment upon a wrongdoer, and if a party has no cause of action independent of his claim for punitive damages he has no cause of action at all. If no real or substantial damages aré' suffered no exemplary damages can be recovered. (Schippel v. Norton, 38 Kan. 567; Adams v. City of Salina, 58 Kan. 246; Bank v. Grain Co., 60 Kan. 30; Cole v. Gray, 70 Kan. 705.)
The two verdicts are clearly inconsistent, and it would appear from the action of the jury that they must have inferred from the instruction of the court to bring in a general verdict for a lump sum that they were only required to add together and return the items, of damages which they had already found. For that-reason the second verdict can not be upheld. Nor can j udgment be entered on the first verdict. The findings, in the first were never accepted or approved by the trial court and the' appellee had no opportunity to test, their validity. The jury may not have had a proper-conception of what .constituted actual or exemplary damages. It does not appear that exemplary damages, were asked for by the appellee, nor that the jury were instructed as to the nature of exemplary damages or what would constitute a basis for such damages. The abstract does not contain either the instructions or the testimony.
The obj ection to the admission of the testimony is not deemed to be substantial, but for the error in the verdict the case will be reversed and the cause remanded for a new trial. | [
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Per Curiam:
The complaint that the evidence did not warrant a conviction can not be sustained. The testimony of the tracing of the defendants from the burglarized bank to the place of the arrest, their tracks on the road, which corresponded with the shoes that they wore, and the fact that when arrested there was found on their persons explosives and burglar’s tools, although not strong evidence, was certainly sufficient to furnish a basis for the verdict.
The court was not required to tell the jury that where the testimony in behalf of the state and of the defendant is circumstantial it is unnecessary for the evidence of the defendant to be of as high an order as that of the state. In its general charge the court placed the burden of proof upon the state, clothed the defendants with a presumption of innocence, and instructed that the jury' could not convict unless the evidence satisfied them of the defendants’ guilt beyond a reasonable doubt and unless it was inconsistent with every reasonable theory other than their guilt.
Nor was there error'in refusing tp instruct that the attempt and failure of the defendants to establish an alibi could not be considered. The law of alibi was fairly given, and the general rules for weighing testimony were fairly stated. It was not necessary for the court to pick out and state the effect of each bit of testimony that was introduced.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Gilikeson, P. J.:
In April, 1885, the plaintiff commenced a suit in the district court of Shawnee county, which was afterward removed to the circuit court of the United States..for the district of Kansas, against Rufus Bean, Susan A. Bean (husband and wife), and Christopher E. Schmidt, to recover of the Beans the amount due on a promissory note secured by mortgage, and to foreclose said mortgage. Christopher Schmidt also held a mortgage on the same property, and was for that réason a party 'defendant. At the time of the commencement of this suit an application was made for a receiver. The defendants Bean and his wife tendered a bond in the sum of $1,200, upon which W. S. Curry was surety. The court accepted this bond, and overruled the application for a receiver. The bond is as follows:
“ Know all men by these presents, that we, Rufus Bean and Susan A. Bean, as principals, and W. S. Curry and-, as sureties, all of Shawnee county, in the state of Kansas, are held and firmly bound unto the Merrimack River Savings Bank, a corporation duly organized and existing under and .by virtue of ■the laws of the state of New Hampshire, in the penal sum of $1,200, lawful money of the United States, to the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors, administrators, and assigns, firmly by these presents. The conditions of this obligation are such that, whereas the said Rufus Bean and Susan A. Bean, on the 15th day of December, 1881, executed and delivered to said Merrimack River Savings Bank their certain promissory note for the sum of $6,000, due 5 years after date, with interest thereon at the rate of 8 per cent, per annum, payable semiannually according to the coupons attached to said note, and to secure the same executed and delivered unto the Merrimack River Savings Bank a certain real-estate mortgage, which said mortgage was, however, junior and subsequent to' certain other mortgages held by Christopher E. Schmidt, to secure the sum of $3,500 and interest ; and whereas, said Merrimack River Savings Bank, as plaintiff, has commenced á suit in the district court within and for the county of Shawnee, in the state of Kansas, against said Rufus Bean and Susan A. Bean and Christopher E. Schmidt, as defendants, praying a personal judgment against said Rufus Bean and Susan A. Bean for the amount due on said note and mortgage, and also for a foreclosure of said mortgage, and the sale of said mortgaged premises to pay said indebtedness; and whereas, said plaintiff lias made an application to said court in said action for the appointment of a receiver therein to take charge of said mortgaged premises and collect the rents and profits thereof, which said order said court refused to make, but ordered this bond, conditioned as herein set forth, to be executed in lieu thereof : The condition of this obligation is such that, if the above-bounden' Rufus Bean and Susan A. Bean shall, within 10 days after the sale of said mortgaged premises under a decree of foreclosure rendered in said action, pay to the Merrimack River Savings Bank the balance, if any, to the amount of this bond, due upon the judgment rendered in favor of said Merrimack River Savings Bank in said action, after applying the proceeds arising from the sale of said mortgaged premises to the payment of the mortgaged indebtedness- thereon, under the order of said court, in accordance with the priorities established by said court, then this obligation shall be void ; otherwise shall remain in full force and effect. Dated this 6th day of May, 1885. Rufus Bean.
Susan A. Bean.
W. S. Curry.”
' On the 3d day of May, 1886, the circuit court of the United States ordered and decreed that there was due the said Merrimack River Savings Bank, plaintiff herein, from Rufus Bean and Susan A. Bean, the sum of $7,275.84, and that said indebtedness should bear interest at the rate of 12 per cent, per annum; that there was due defendant Christopher E. Schmidt, from said defendants Rufus Bean and Susan A. Bean, the sum of $4,404.67, and that debt should bear interest at the rate of 10 per cent, per annum ; and that said Christopher E. Schmidt had a first lien, and that said Merrimack River Savings Bank had a second lien upon the premises therein described, by virtue of the mortgages sued on. And it was then and there by the court further ordered and decreed, that should defendants Rufus Bean and Susan A. Bean fail for six months from the rendition of said judgment to pay to said Merrimack River Savings Bank and said Christopher E. Schmidt said sums so as aforesaid foundd ue them, together with the interest thereon and the costs of action, the said described premises should be sold, without appraisement, etc. Said premises were, on the 20th day of December, 1^86, by W. A. Scott, special master in chancery, sold in accordance with said decree, and he filed his report showing that the premises sold for the aggregate sum of $12,175; that the costs of suit amounted to $261.27 ; that the amount due Christopher E. Schmidt was $4,682.40, and that the amount due the Merrimack River Savings Bank was $7,826.37.
After this report was filed, in January, 1887, the plaintiff applied to the court, asking that the taxes levied and assessed against the real estate, amounting to $282.68, be paid. The court ordered the master in chancery to pay these taxes out of the proceeds of said sale. On the 16th day of February, 1887, W. S. Curry, tlie surety on said bond, paid to the clerk of said circuit court the sum of $606.14. The plaintiff contends that under the terms of this bond the taxes so as aforesaid paid should be deducted from the amount received for tfie property, as well as the cost of said suit, and that then the balance due would be $877.72, with interest at the rate óf 12 per cent, per annum, and, to recover this amount, on the 13th day of April, 1890, brought suit upon this bond. W. S. Curry filed a demurrer to the petition. Rufus Bean and Susan A. Bean made default. Upon the. hearing had upon the demurrer, the court held that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant Curry, and sustained the demurrer. The cause was proceeded with as against the other defendants, and judgment rendered against Bean and Bean for the sum of $441.61. Plaintiff brings the case here for review on the action of the court sustaining the demurrer.
Why was this bond given? There was an action pending to foreclose two mortgages against the property of the principals on this bond — one belonging . to the plaintiff in error, and the other to one Christopher E. Schmidt. These were the only things under consideration at the time, and to provide for the payment thereof this bond was entered into. One of these must be a first, and the other a second lien on the land. The court must and would decide between them. This would constitute the "priorities” to be established. If the plaintiff’s was decreed to be a prior lien, then the liability of the bond would only be the difference between the purchase price (or proceeds) and the amount due on the judgment rendered. If the purchase price was more than the judgment, then there would be no liability. If it was declared to be a second lien, then the liability would be determined in another manner, viz. : If the purchase price was not sufficient to pay the first, the liability would be for the amount of the judgment rendered. If more than sufficient to pay the first, then it would be the difference between the purchase price, less the amount of the other mortgage, and the amount of the judgment rendered, subject to the order of the court made at the time the decree of foreclosure was entered. The order entered at that time was “to pay to said Merrimack River Savings Bank the sum as aforesaid found due, together with the interest thereon and costs of this action.” -The court found with reference to the amounts due, that there was due the plaintiff $7,275.84, with interest at 12 per cent. ; that there was due to Christopher E. Schmidt the sum of $4,404.67, with interest at 10 per cent. The amount therefore found due on the mortgage indebtedness was the difference between these two sums, and the interest thereon; and, under the order of the court, the bondsmen had six months from the date of the rendition of the judgment in.which to pay this amount.
We cannot believe that it was. contemplated by the. parties at the time the bond was given that the term “proceeds ” meant the amount due after all expenses were deducted, or that they intended to be bound for the payment of any and all liens that might be established against this property. They used the’term “proceeds” in its usual well-known general signification, “The sum, amount; money arising from the sale; the purchase price; the-bid.” We think the language of the bond admits of but one construction, viz. : That the proceeds (that is, the purchase price; the amount bid) shall be applied to themortgage indebtedness” according to the “priorities,” and then, if any balance was due, it should be paid under the bond, according to the order of the court. We fail to see where there is any room, under the conditions of this bond, to hold the surety for a deficiency created by any other liens than those contemplated at the time he became a surety. Suppose it developed in the progress of this action that a mechanic’s lien had attached to either of the tracts of land, and it was prior to either or both of these mortgages, so that the plaintiff’s mortgage, instead of being a second, would have been a third lien : would it for a moment be contended that this bond would indemnify against it? We think not; and the taxes were simply a lien. These parties, as we have said, were contracting for and about two certain mortgages — nothing more and nothing less. The taxes were surely not contemplated. The record shows that the plaintiff did not think of them until long after the sale was made. The plaintiff had it in its power to make these taxes a part of the mortgage indebtedness. It failed to do so. We cannot make a contract for it. The court, under the statutes, ordered these paid, not as a part of the “mortgage indebtedness,” but out of the “proceeds.” We cannot understand how it can be claimed that the parties to be bound intended that the taxes should be first paid, any more than any other lien that had attached to this property.
This bond was given in a legal proceeding. The parties could very easily have made it express what they "now claim it means. They did not, but have acted under it. The record shows that the surety paid (under the order of the court, adding interest and deducting costs) the sum of $606.14, and there is ■no showing made that any objection was ever entered by the plaintiff until more than three years afterward, by bringing this action. We do not think equity demands or would uphold any such strained construction being placed upon the plain terms of this bond.
The contention of the plaintiff in error calls to mind the noted litigant in the court of last resort at Venice, reported unofficially some centuries ago. He, being in about the same frame' of mind and occupying the position they do here, stated his claim :
“ Till thou oaust rail the seal from off my bond, Thou but offend’st thy lungs to speak so loud. ... I stand here for law.”
Shylook v. Antonio, Merchant of Venice, act IV, scene I.
We can best meet this position by using the plea the plaintiff in that case urged, as he saw his right of recovery melting away before the argument of Portia r
“Is it so nominated in the bond? ’
I cannot find it; ’t is not in the bond.”
Shylook v. Antonio, supra.
And the courts of the present day have sustained this doctrine: "That a surety is a favorite of the law, and has a right to stand upon the precise terms of his obligation.” "That his liability cannot be extended by implication.” (Burton v. Decker, 54 Kan. 608.)
The judgment of the court will therefore be affirmed.
Clark, J., concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.:
On the 4th day of September, 1858, certain persons occupying the east half of section 28, township 23, range 23, 'in Bourbon county, Kansas territory, surveyed and platted said land, and claimed it as a town site, under the provisions of an act of congress passed and approved May 23, 1844, in the name of the town of Eldorado. Said land was divided into streets, alleys, blocks, squares, and lots, making 650 lots, and the same was then and there preempted by Horatio Knowjes, probate judge of Bourbon county.
' .On the 20th day of February, 1862, a patent was issued by the United States to Horatio Knowles, probate judge of Bourbon county, Kansas, in trust for '-the several use and benefit of the occupants-of the town of Eldorado, according to their respective interests, under the town-site act approved May 23, 1844. In 1861 the legislature of Kansas, by special act, changed the name of the town of Eldorado to Maple-ton. On the 27th day of November, 1860, Horatio Knowles, as probate judge, conveyed said tract of land to the persons who were the occupants thereof, to wit: Ellis Greenfield, S. O. Hymoe, M. E. Hudson, J. F. Hoofnagle, John M. Hawk, William Baker, Stark Wilson, George Hobson, and Catharine M. Blair. By mesne conveyances from the persons to whom the property was conveyed by the probate judge and their grantees, L. Bolinger became the owner of five-ninths of lots 5, 6, 7, and 8, in block 40, and four-ninths of block 39. On the 18th day of November, 1885, L. Bolinger and Rosa Bolinger, for the consideration of $1,100, by their deed of general warranty, conveyed said lots and block to L. A. Brake, and the said Brake then and there entered into the possession of said property and has remained in the undisturbed possession, thereof ever since.
On the 15th day of November, 1890, Brake commenced this action in the district court of Bourbon county against L. Bolinger and Rosa Bolinger to recover damages on account of the breach of warranty in their conveyance. This deed contained full covenants of seizin, as follows :
“And said L. Bolinger and his wife, for themselves, their heirs, executors, or administrators, do hereby covenant, promise, and agree, to and with said party of the second part, that at the delivery of these presents they are lawfully seized in their own right of an absolute and indefeasible estate of inheritance in fee simple of and in all and singular the above-granted and described premises,' with the appurtances ; that the same are free, clear, discharged and unincumbered of and from all other and former grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever, and that they will warrant and defend the same unto said party of the second part, his heirs and assigns, against said parties of the first part, their heirs, and every person or persons whomsoever lawfully claiming or to claim the same."
The breach alleged is that, at the time of the execution and delivery of said deed, L. Bolinger and Rosa Bolinger were hot lawfully seized in their own right of an absolute and indefeasible estate of inheritance in fee simple of and in all and singular the lands described in said deed, were not the true, lawful and rightful owners thereof, and had not good right, full power and lawful authority to grant, bargain, sell and convey the same in the manner and form as in said deed covenanted and agreed by them. The first paragraph of the answer of the defendants denies all the allegations in the petition of plaintiff, but the second paragraph alleges:
“ That at the time'of making, executing and delivering the warranty deed mentioned and described in plaintiff’s petition herein the said plaintiff well knew the defendants’ title to the lots and land in said warranty deed mentioned and described, and had full and complete knowledge of the nature, character and extent of defendants’ title to said lots, and all defects, if any, connected with or relating to defendants’ title at .the time "of making, signing and delivering said warranty deed, and plaintiff accepted and received said deed from defendants upon a full agreement and understanding between the plaintiff and defendants that said covenant of warranty of title in said warranty deed described in plaintiff’s petition should not be binding upon defendants, but should be considered as waived and' abandoned by plaintiff, and that plaintiff relinquished and abandoned any and all rights upon his part to enforce said covenant of warranty, by suit or otherwise, he being fully acquainted with defendants’ title to said lots and land, and fully satisfied therewith.”
Plaintiff’s reply was by general denial. The case was tried before the court and a jury. The plaintiff below introduced the deeds forming the chain of title to the property, and proved that he had obtained from the defendants below title to an. undivided five-ninths of the four lots in block 40, and an undivided four-ninths of block 39, and rested his case. The defendant below demurred to plaintiff’s evidence. The demurrer was overruled, defendants excepted, and, no evidence being offered by defendants, the court instructed the jury, over defendants’ exception. The jury returned a verdict of $529.62 for the plaintiff, with 7 per cent, interest, making in all $733.52, but the court subsequently refused to allow the interest, and rendered judgment on the verdict of the jury against the Bolingers for $529.62. Motion for a new trial was overruled, and defendants excepted and bring the case here for review. .
It is insisted by plaintiffs in error that the covenants contained in the deed of Bolinger have not in fact been broken in any respect, that the grantee has not been evicted from the premises, that no hostile claim or title had ever been asserted, and that, as he still retains possession of the granted premises, he cannot maintain this action and' recover back the pro tanto original consideration ; that he cannot retain possession of the land and also compel the return to him of the full pro tanto consideration paid for it. Under the undisputed evidence on the trial of this case, it was shown that the grantors were only possessed of the title to five-ninths of four lots in block 40 and four-ninths of block 39, the title to the remaining four-ninths of the four lots in block 40 and five-ninths of block 39 being in other parties at .the time of the execution and delivery of the deed.'
The majority of American courts has decided that a covenant of seizin is broken, if at all, so soon as made, and thereby an immediate action accrues to him who has receivéd it. (Dale v. Shively, 8 Kan. 276 ; Scantlin v. Allison, 12 id. 85; Guthrie v. Pugsley, 2 Johns. 126 ; Sedg. Dam. 175.)
What was the correct measure of damages? The general rule laid down by the courts of this country undoubtedly is, that upon breach of a covenant of seizin the vendee may recover the consideration paid therefor and interest; but where the grantee enters into the possession of the granted premises and occupies the same, he is not entitled to interest during the time he so occupies the same, where he is not liable for the use of the granted premises. For a partial breach damages are assessed pro tanto-, according to the recognized standard of damages for a total breach ; and where the grantor conveys no title to some undivided interest in the estate the value of the interest not conveyed is measured by the ratable part of the consideration, according to the relation that such interest bears to the several interests in which the estate is divided. Where two separate tracts of land are sold for a gross sum and conveyed by deed with warranty of title, and the title fails as to one of the tracts, in an action for breach of covenant, the measure of damages will be such portion of the consideration paid as the value of the tract lost bears to the value of the whole, and interest on such portion. But where the title to a certain interest in the whole property conveyed fails, the measure of damages will be the pro tanto value of the whole property, measured by the consideration paid therefor, as the interest lost bears to the whole number of interests into which the estate is divided.
In the case of Dale v. Shively, supra, Brewer,, J., delivering the opinion of the court,, says :
‘ ‘ The deed purported to convey the entire interest in the land. The grantors were in actual possession, and surrendered the same to the grantee. She was never actually disturbed in that possession. Upon the trial, it was admitted that Dale had only an undivided one-third interest in the premises. The remaining two-thirds were purchased by defendant in error after she obtained the deed from plaintiff in error, and before bringing this suit. Upon these facts, the court below held that the covenants were broken, and that the grantee had a right of action thereon. In this we see no error. Notwithstanding some deviations in Óhio, Massachusetts, and New Hampshire, we think it well settled upon authority that the .covenant of seizin is broken as soon as made, if the title be bad, and that an action lies thereon at once without waiting for disturbance. Kent says (4 Kent, 470) : ‘The covenants of seizin and of a right to convey, and that the land is free from incumbrance, are personal covenants, not running with the land or passing to the assignee ; for, if not true, there is a breach of them as soon as the deed is executed, and they become choses in action which are not technically assignable.’ ”
It is insisted by plaintiff in error, that as Brake had never been evicted from the premises, and had never paid anything to remove an incumbrance therefrom or to perfect his title, but is still in the quiet and peaceable possession of the property, enjoying-and collecting the rents and profits, he can recover, at most, only nominal damages, and this upon whatever covenant the action may be considered as having been commenced. We do not think that this position is tenable. The Bolingers conveyed to Brake the entire interest in the land described in their deed, and they only owned five-ninths interest in. the one block and four-ninths interest in the other block. They could pass no title whatever to the remaining interests, and the grantee was not bound to wait for an eviction before he could maintain. Ms action for a breach of the covenants of seizin, for the covenants of seizin were broken as soon as the deed was executed, and an action might have been brought thereon at once, without waiting for a disturbance of possession. (Dale v. Shively, supra ; Scanlin v. Allison, supra; Smith v. Davis, 44 Kan. 362.)
This is unlike a case where the party is seized of an estate of inheritance in fee simple, and conveys the land by deed of general warranty of title, where there is an incumbrance upon the same. In such case the party must either pay off and discharge the incumbrance,, or wait until there has been an assertion of rights under the incumbrance and he has suffered some loss by eviction or the payment of a sum of money to release the land from the incumbrance.
It is insisted by plaintiff in error that the court erred in instructing the jury to divide the nominal consideration for the number of .lots and to find accordingly, which, of course, meant that they should consider the lots as all being of equal value. We do not think the court erred in this regard. In this case it mattered very little as to what the difference in the value of the lots was, for the reason that the estate which was not conveyed by the deed of Bolinger was an undivided interest in each lot and block attempted to be conveyed, and the failure of title was not as to any particular lot described in the deed, but as to the interest in each one of the several lots. The contention of counsel would be correct if the title to any one of the several lots had failed in toto, but there was simply a failure of title to the five-ninths of the four lots in block 40 and four-ninths of block 39. The consideration paid for these lots was in gross,-and not so much for each lot, and the breach of warranty is as to each of the several lots in proportion to the consideration paid for the whole.
The final contention of counsel is that the court erred in rendering judgment against L. Bolinger and Rosa Bolinger, for the reason that the property stood in the name of L. Bolinger, who was the husband of Rosa Bolinger, and the only purpose of his wife, Rosa, in joining in the deed to Brake, was to relinquish her interest as wife and not to bind herself upon the covenants. The covenants in' the deed were joint, of both L. Bolinger and Rosa Bolinger, to the grantee, and the grantors were both liable on the covenants, and the judgment was properly rendered against both the husband arid wife.
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. :
Mrs. Flora Cowley was the owner of a lot upon which was situated a house and barn, upon which she procured a loan from the Sedgwick Loan and Investment Company, and she and her husband executed to said company a. mortgage thereon. She also procured a policy of insurance upon said house and barn from the agents of this defendant in error in Wichita, Kan., which had attached to it the following subrogation contract:
“Policy No. 963, in name of Flora Cowley. Agency at Wichita, Kan.
“Loss, if any, payable to Sedgwick Loan and Investment Company, mortgagee or trustee, or its assigns, as its interest may appear as herein provided.
“It being hereby understood and agreed, that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy: Provided, That the mortgagee or trustee or assigns shall notify this company of .any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard duly indorsed on this policy: And provided further, That every increase of hazard not permitted by the policy to the mortgagor or owner shall be paid for by the mortgagee or trustee or assigns on reasonable demand, and after demand made by this company upon, and refused by the mortgagor or owner to pay, according to the established schedule of rates. It is, however, understood that this company reserves the right to cancel this policy as stipulated in the printed conditions in said policy; and also to cancel this agreement on giving 10 days’ notice of their intentions to the trustee or assigns or mortgagee named therein, and from and after the expiration of the said 10 days this agreement shall be null and void. It is further agreed, that in case of any other insurance upon tlie property hereby insured, then this company shall not be liable under this policy for a greater proportion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein. It is also agreed, that whenever this company shall pay the mortgagee or trustee or assigns any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor exists, it shall at once, and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payments shall be made, under any and all securities held by such party for the payment of said debt. But such subrogation shall be in subordination to the claim of said party for the balance of the debt so secured; or said company may, at its option, pay the mortgagee or trustee or assigns the whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to whom such payment shall be made an assignment and transfer of said debt, with all securities held by said parties for the payment thereof. The foregoing provisions and agreements shall take precedence over any provision or condition conflicting therewith, contained in said policy. This clause is attached to and is made a part of the said policy from the 9th day of January, 1890. In witness whereof, the duly authorized agent of said insurance company has hereunto set his hand on said day.
Caldwell & Fellows,
Agents Hamburg-Bremen Insurance Company, of Germany
Dodge commenced this action to recover upon said insurance policy. The answer was a general denial. The case was tried by the judge without a jury, upon the following agreed statement of facts :
“It is,hereby stipulated and agreed between the parties to' this action, that the above-entitled cause may be tried in the court without a jury, and that the court may render judgment upon the pleadings filed herein, and the following facts which are hereby agreed to :
“ That the defendant, Hamburg-Bremen Fire Insurance Company, is a corporation organized under the laws of Germany and duly authorized to and is transacting business in the state of Kansas as an insurance company; that on the 9th day of January, 1890, the defendant herein, for a valuable consideration paid to it by Mrs. Flora Cowley, issued to her its certain fire-insurance policy (said original policy is attached to the plaintiff’s petition herein) ; that at the time said policy was issued Mrs. Flora C-owley wap the owner of the fee title of the property described in said policy; that on the 1st day of April, 1889, the said Flora Cowley, with her husband, Hale Cowley, executed a mortgage on the premises described in said policy to the Sedgwick Loan and Investment Company; that on or about the'9th day of January, 1890, the date on which the policy of insurance was delivered to the said Mrs. Flora Cowley, she delivered the same with the mortgage clause attached to said policy to the Sedgwick Loan and Investment Company ; that subsequent to the delivery of said policy of insurance by Mrs. Flora Cowley to the Sedgwick Loan and Investment Company the said the Sedgwick Loan and Investment Company assigned, indorsed and delivered said mortgage hereinbefore mentioned, together with this policy of insurance, to John L. Dodge, plaintiff herein; that on the 21st day of January, 1892, John L. Dodge, plaintiff herein, as jdaintiff, commenced an action in this court against Hale Cowley and Robert E. Lawrence, administrator of the estate of Flora Cowley, deceased, and others, to foreclose the said mortgage herein mentioned on the premises described in the policy sued on in this action (a copy of petition in said action of John L. Dodge against said Hale Oowley and others, together with a copy of the mortgage sued on. herein, above mentioned, is hereto attached and made a part of these facts and marked exhibit ‘A’ and ‘B’ respectively) ; that thereafter, on the 24th day of October, 1892, the said John L. Dodge, as plaintiff, ■ recovered a judgment in said cause which has never been vacated, reversed, set aside, or modified (a copy of said judgment is hereto attached, marked exhibit ‘O’ and made a part of these facts) ; that on the 6th day of September, 1893, I. T. Ault, the then duly elected, qualified and acting sheriff of Sedgwick county, Kansas, did, pursuant to said last-mentioned judgment, sell the premises described in said policy to the said John L. Dodge ; that on the 12th day of October, 1893, the Hon. C. Reed, judge of this court, did confirm the sale of real estate made in said action by the said sheriff (a copy of said confirmation of sale is hereto attached and made a part of these facts and marked exhibit ‘D’); that on the 8th day of November, 1893, the dwelling-house and private barn, insured by the policy hereinbefore mentioned, was totally destroyed by fire; that said, policy sued on in this action provides among other things, in said mortgage clause, as follows : ‘It being hereby understood and agreed that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the-mortgagor or owner of the property insured, or by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy : Provided, That the mortgagee or trustee or assigns shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have the permission for such change of ownership or increase of hazard duly indorsed on this policy’ ; that the said policy and mortgage clause attached to the plaintiff’s petition herein are to be considered a part of these facts as if fully set out herein; that this defendant company had no knowledge or information of the suit, or any of the proceedings had therein by said John L. Dodge against Hale Cowley and others, to foreclose said mortgage herein mentioned or of the sale of said premises by the said sheriff to John L. Dodge, on the 6th day of September, 1893 ; that on or about the 10th day of November, 1893, the plaintiff, John L. Dodge, by his agent, R. E. Lawrence; notified this defendant company, by stating verbally to Caldwell & Fellows, agents of this defendant company, that the house and private barn insured by this policy had been destroyed by fire ; that on the 2d day of December, 1893, the plaintiff herein submitted proof of loss, as provided for by conditions in said policy of insurance, a copy of which is hereto attached and made a part of these facts, and marked ‘Exhibit E.’
“Dated, Wichita, Kan., December 4, 1894.”
Judgment was rendered for the defendant and the plaintiff brings the case here for review.
At the outset we are met with a motion to dismiss this action for the reason that there is no sufficient transcript or case made attached to the petition in error. The record is certainly far from satisfactory. It cannot be upheld as a case made. However, the petition, answer, agreed statement of facts, judgment and all proceedings necessary' to show the errors complained of are attached to the petition in error, accompanied by a certificate of the clerk of the court which reads as follows :
“I, S. N. Bridgman, clerk of the district court within and for the county of Sedgwick, state of Kansas, do hereby certify that the above and foregoing is a true copy of all papers and proceedings in the cause wherein John L. Dodge is plaintiff and the Hamburg-Bremen Fire Insurance Company is defendant, as the same remains of record in my office, except returned summons by superintendent of insurance, prcecipes for copies, execution, journal entry of correction, journal entry overruling motion.
“ Witness my hand as such clerk, and the seal of said court attached, this the 13th day of April, 1895.
S. N. Bridgman,
Clerk of the District Court of Sedgwick County, Kansas.”
By a liberal interpretation we treat the record as a transcript, and review the case. We cannot, however, recomménd it as a model to be copied in the future.
The real question in this case is whether the plaintiff should recover upon the agreed statement of facts and the pleadings. In Westchester Fire Ins. Co. v. Cover-dale, 48 Kan. 446, it was decided that the mortgagor could not maintain an action upon a policy of insurance which contained a similar subrogation contract unless the mortgage was paid, but that the mortgagee only could maintain the action, unless he authorized the owner so to do". By the subrogation contract the insurance company entered into a contract with the mortgage company or its assigns, by the terms of 'which the amount of the policy, in case of loss, is to be paid to it so far as its interest may appear. -It therefore follows that so far as his interest appears John L. Dodge is the assured. The subrogation contract must be construed the same as though it read, “loss, if any, under this policy payable to John L. Dodge, mortgagee, as his interest may appear.” The policy was to run five years and the premium for the full term was paid. No one could collect the money in case of loss but Dodge. The insurance company took the risk and collected the full premium knowing that, while Mrs. Cowley held the fee title, Dodge held a lien upon the property which might in time be transferred into a title. It must have anticipated th:; 0 Dodge was likely to take steps to foreclose the lie.; v, hicli was insured.
When an insurance company insures a mortgage lien, it must anticipate that, upon default, the lien-holder will begin foreclosure proceedings, obtain judgment, and secure a sale of the mortgaged property. There can be no question but that the mortgagee is protected by the terms of the contract with the insurance company until the sale is confirmed and the money ordered by the court to be paid to the mortgagee. Is the purchaser also protected by the terms of the contract, ’ and does it make any difference whether the mortgagee or a stranger is the purchaser? If a stranger is the purchaser there is a change of ownership. If the mortgagee is the purchaser his interest is changed from a lien-holder to an owner in fee. Counsel for defendant in error contend that the interest of “ John L. Dodge, mortgagee,” was insured, and not the interest of “ John L. Dodge, owner,” and that, in order to have held the insurance in force, Dodge should have notified the company of the change of the fee title and obtained the consent of the company to the change. They argue that the company might have been willing to have insured the property if Mrs. Cowley was the owner, but not if Dodge was the Owner. The property was occupied by a tenant as a dwelling when it was insured and when it burned. It cannot be said that the hazard was increased by the transfer of the interest of Dodge from a lien-holder to a judgment creditor and then to an owner in fee. The insurance company was willing to insure Dodge as the assignee of the mortgagee.
The contention of counsel for the insurance company is that Dodge failed to notify the company of the change of ownership which occurred when he purchased the property at sheriff’s sale and have the permission of the insurance company for the change of ownership indorsed upon the policy. We cannot think that this is such a change of ownership as is contemplated by that clause of the subrogation contract. The change of ownership in this case increased the interest of Dodge, who under the subrogation contract is the insured. In no way was the risk increased. The title had not vested in some one other than the insured. It cannot be said that the insurance company might not be willing to insure the property with Dodge as the owner, because Dodge was already the insured. No one else could have maintained an action for the recovery of the insurance money. "A change of title which increases the interest of the insured, whether the same be by sale under judicial decree or by voluntary conveyance, will not defeat the insurance.’’ (Continental Ins. Co. v. Ward, 50 Kan. 349, and cases there cited.)
If the property had been sold to some one other than the insured and the insured had knowledge thereof, there would be a reason why such knowledge should have been imparted to the insurance company, so that it could have elected whether it would carry the insurance with such a person as owner. In #this case there was at no time a change of the person insured. It was always the loan company and its assignees. The only change of title or ownership was to increase the interest of the insured in the property and make his interest the absolute ownership thereof. Surely the insurance company cannot complain of this, nor is it entitled to any notice of such a change under the terms Of the subrogation contract.
The judgment of the district court is reversed, and the cause remanded, with instructions to render judg ment upon the pleadings and agreed statement of facts against the defendant in error and in favor of the plaintiff in error, in accordance with the views expressed in this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
The plaintiffs in error commenced this action in the district court of Rawlins county, alleging that the defendant was indebted to them for certain interest moneys collected by the defendant on certain mortgage loans in said county belonging to the plaintiffs and not remitted. In his answer, the defendant admitted the collection of the sum claimed, and alleged that the same was fully accounted for and settled by the payment to plaintiffs by the defendant of certain moneys which he had advanced to them in connection with certain other interest coupons which were in his hands for collection; Upon the trial, the principal contention between the parties was as to the right of the defendant to have credit, as against the plaintiffs, for the several sums which he advanced to them on uncollected interest coupons.
The defendant was a banker doing business at Atwood, Rawlins county, and made the advancements, as claimed by' him, under the mistaken belief that it was the understanding and arrangement that such advancements were to be made on interest coupons in his hands for collection when they were not promptly paid at maturity by the makers. The plaintiffs con tended that there was no such understanding or-agreement; that the moneys so paid were received by them without any notice or information that they had not been paid by’the makers of the several interest coupons in the hands of the defendant, and that, being voluntarily made by the defendant, he had no legal right to claim credit therefor or to recover back the same from the plaintiffs. The defendant offered evidence tending to show that, after the misunderstanding had arisen between him and the plaintiffs, an arrangement was made between them according to which the defendant was to be reimbursed for his advancements; and that, pursuant to such arrangement, the defendant surrendered to the plaintiffs, or to their attorneys, the several interest coupons remaining unpaid in his hands upon which he had advanced the interest; that some of such coupons were afterward included in suits of foreclosure brought by plaintiffs upon the real-estate mortgages in connection with which the coupons were executed, and judgments obtained thereon in favor of the plaintiffs ; also, that in some cases the plaintiffs took title to the mortgaged lands by voluntary conveyances from the mortgagors. The case was tried by the court without a jury, and a géneral finding made in favor of the defendant, no special findings being requested or made.
The plaintiffs in error contend fhat the finding of the court is not sustained by the evidence, and claim that there is no proof on behalf of the defendant showing that any advancements were made under a mistake of fact, or that there was any understanding or agreement on the part of the plaintiffs to reimburse him therefor. There is much force in this contention, and we might be inclined to agree therewith were it presented to us as a trial court authorized to weigh the evidence and to pass upon disputed questions of fact. But tins is not a case of an entire want of evidence to sustain the finding of the court. It is a case of conflicting evidence, in which the various facts and circumstances surrounding the several transactions of the parties must be considered. The trial court had better-opportunities of making correct deductions and conclusions from the evidence than are afforded to us as an appellate court. Under the well-settled. rules of practice in this state, the judgment-cannot be reversed on this ground alone.
It is further claimed that the court erred in overruling the objection of the plaintiffs to the introduction of testimony by the defendant. This objection is based on the ground that the answer of the defendant was not verified. The correctness of the plaintiffs’ account against the defendant for moneys collected was not disputed. The only issue presented for trial, and the only one upon which the decision of the court was based, was raised by the answer of the defendant. This needed no verification. But even though the defendant had sought to dispute the correctness of plaintiff’s account, we think he could do so under an unverified general denial. The plaintiffs set out their account in detail in their petition, and attached thereto an affidavit of their attorney that the statements therein contained were true, as he verily believed. But the petition itself contained no allegation of the correctness of the account. The correctness of the plaintiffs’ account is not admitted by the defendant’s failure to deny it under oath, when the petition contains no allegation of its correctness.
Failing to find any reversible error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Cole, J. :
Plaintiffs in error were the officers of the Woodson County State Bank, and this action is brought against them as such officers, under paragraph 406, General Statutes of 1889, to recover the amount of a certain deposit made by Madison Frame in said bank at a time when it is claimed the bank was insolvent and in failing circumstances. Since the rendition of judgment in the court below, one of the plaintiffs in error has died, and astipulation has been filed in this court by counsel discharging the judgment so far as said'plaintiff in error is concerned, and waiving his absence or that of,his representative in this court. It was further agreed, in open court, by counsel, that the only question for the determination of this court was whether an.action brought under paragraph 406 was one for the recovery of a penalty, within the meaning of the statute governing the limitations of actions, ■ or whether such action is to recover upon a statutory liability. It is therefore our duty to construe the section of the statute in question.
Chancellor-Kent has given us some excellent rules with regard to the manner of construing statutory enactments. Among others is the following:
“ It is an established rule in the exposition of the statutes that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute taken and compared together. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the objects and the remedy in view, and the intention is to be taken or presumed, according to what is consonant to reason and good discretion.” (1 Kent’s Com. [8fch ed.] 510, 511.)
- Following the rule laid down by this eminent law-writer, we find, first, that the statute in question was enacted by the legislature of 1879, and appears as section 1, chapter 47 of the session laws of that year. The occasion and necessity of the law arose from the fact that until that date there was no statute in this state making officers of banking institutions liable in any way for receiving deposits or creating debts when a- bank was insolvent or in a failing condition. The legislature not only enacted the chapter to which reference has been made, but at the same date enacted á further statute making the reception of deposits or the creation of debts by the officers of an insolvent bank a crime, and prescribed a punishment therefor. (Laws 1879, ch. 48.)
The logical deduction to be drawn from the action of the legislature is, that there was a necessity for a law compelling a more strict accountability of officers of banking institutions in this state. .It is obvious that the legislature felt that those who had been placed in positions of trust in institutions of that character, who manage the business affairs and should be presumed to have knowledge of its financial standing, had been permitted to escape liability, even when their own tortious acts had caused the mischief which the legislature sought to control. These statutes were enacted with knowledge upon the part of the legislature that the law already provided a liability so far as the stockholders of a corporation are concerned, and with the further knowledge that the officers of corporations are chosen from the stockholders. The intention, therefore, of the legislature must necessarily have been to provide either a further liability for stockholders, or a punishment for those persons chosen by stockholders as officers, and whose duties, if properly fulfilled, would give them a personal knowledge of the financial condition of the bank with which they were connected, but who, through negligence or intention, failed in the performance of their duties as such officers. Section 1, chapter 47, Laws of 1879, (Gen. Stat. 1889, ®|[406,) reads as follows:
“It shall be unlawful for any president, director, manager, cashier or other officer of any banking institution to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and it is hereby made the duty of every such officer, agent or manager of such banking institution to examine into the affairs of the same, and, if possible, know its condition. And, upon failure of any such person to discharge such duty, he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section shall be individually responsible for such deposits so received, and all such debts so contracted : Provided, Any director who may have paid more than his share of the liabilities mentioned in this section may have the proper remedy at law against such other persons as shall not have paid their full share of such liabilities.”
Our attention is first directed to the opening clause of this section, which recites that it shall be unlawful for the pei'sons therein named to do the acts prohibited or fail to perform the duties enjoined by said section. Bouvier says : “Penal statutes are those which command or prohibit a thing under certain penalty.” It is plain that this section commands and prohibits certain things. It prohibits the officers'of any banking institution from, assenting to the reception of deposits or the creation of debts with knowledge of the fact that the bank is insolvent, and it commands such officers, as a part of their duty, to examine into the affairs of the bank and know its condition. The section then prescribes that a violation of the provisions thereof shall bring a punishment to every officer who violates. Without the statute neither officers nor stockholders would be liable in an action of this character, and paragraph 1206, General Statutes of 1889, fixes the liability of a stockholder, as such, in the following language:
“ No stockholder shall be liable to pay debts of the corporation beyond the amount due on his stock and an additional amount equal to the stock owned by him. ’ ’
Did the statute in question create a further liability upon the part of the officers of a banking corporation simply because they were officers? We think not. This statute makes all officers liable, not because they are officers, but because, being officers, they fail to perform the duties required of them by statute. If,, then, the added liability is not created because one is a stockholder or an officer, but because of a failure in the performance of a duty, the conclusion must be that the liability created is in the nature of a penalty for the failure to perform such duty.
We are the more firmly convinced that the conclusion reached is the correct one from the further provisions of this statute. It is a well-settled principle of law that there is no contribution enforceable between wrong-doers unless the statute specially provides therefor. This statute specially provides for contribution among the officers who may have been guilty of the wrongs named in the statute.
Again, section 4 of the act provides :
“ This act shall extend’to and may be enforced by and against executors and administrators of such deceased officers, agents, and managers.” (Gen. Stati 1889, ¶ 409.)
Had it been the intention of the legi slature to create simply a statutory liability there would have been no necessity for the section last quoted. A statutory liability outside of a penalty would survive as against the representatives of any deceased officer of the bank. The legislature must therefore have had in mind, in the enactment of section 4, that a penalty had been prescribed, an action for the recovery of which would not survive unless• covered by some statute. Again, the liability of the officer is not determined in any sense by the actual loss of the creditor, for, under this statute the officers of a bank are made liable for the full amount of the claim of any creditor who becomes such by reason of their failure to comply with the statute. The creditor need not ■ await the winding up of the affairs of the insolvent bank to see what share of his loss its assets will pay, but may .proceed at once against the officers for his full account.
We have discussed this question thus far upon the statute itself taken as a whole and the separate parts compared together, and in connection with the evident occasion and necessity of the law and the object and remedy in view. We will now call attention to further statutes declared by our supreme court, and those of other states, to be statutes involving a penalty, and which, in some respects are analogous to the one under discussion. It has been held by our own supreme court that the statute permitting a mortgagor to recover against the mortgagee for failure to enter satisfaction on the record, when a mortgage has been paid, prescribes an action for the recovery of a penalty which is barred by the one-;year statute of limitation. (Wey v. Scofield, 53 Kan. 248.) And the same doctrine has been announced by this court in Schultz v. Morgan, 1 Kan. App. 572. It has also been held by this court, in the case of Reese v. Rice, 1 Kan. App. 311, that the provisions of the code permitting the amercement of a sheriff for failure to return an execution within 60 days are of a penal character. Both of the statutes referred to proceed upon the theory of permitting a recovery for. the failure of an officer or a person to perform a duty enjoined by statute, and the measure of damages is not governed-by the amount of the loss incurred.
Counsel for defendant in error insist that the statute under discussion is one permitting compensation only, but we cannot so view it, for the assets of an insolvent bank might pay 25, 50 or 75 per cent, of the deposits, but this would in no way release the officers from the penalty imposed on. account of their failure to perform their official duties. Nor is there any provision permitting the recovery .from the bank itself by the officers in case they are compelled to reimburse a depositor under this statute..
We cannot but think that, in case an action was brought by an officer of the bank to recover the amount paid by him to a depositor under this statute, it would be a valid defense that the payment was made, not for and on account of the bank, but because of his own wrong. See, also, Globe Pub. Co. v. State Bank, 41 Neb. 175, and cases there cited ; Merchants Nat. Bank v. Mfg. & Car Co., 48 Minn. 849. In this latter case the following language is used :
“While this remedial purpose of the law is unquestionable, it is equally plain that the liability imposed is in the nature of a penalty. It is imposed by the statute as a consequence of a violation of the law, resulting in the insolvency of the corporation. While the liability is declared in favor of the creditors of the corporation, it does not rest upon contract, nor upon any principle of the law of contracts. . . . The creditors of the corporation may be able to recover from it, although it be insolvent, 90 per cent, of the' amount of their debts, nevertheless, the directors are made jointly and severally liable . . . for all debts contracted after such violation.”
Considerable stress is laid by counsel for defendant -in error upon the decision of the supreme court of the state in The State v. Pfefferle, 33 Kan. 718, where it was held that a civil action brought by a county attorney to enforce a lien for fine and costs against the owner of premises who has knowingly suffered a person to sell liquor thereon in violation of law was one upon a liability created by statute, and not for a penalty or forfeiture within the provisions of the statutes of limitations'. In that case, however, the distinction is clearly drawn in the opinion that the fine and costs, for the recovery of which such action is brought, are not imposed upon the owner of the building but upon the person who violates the law, and the owner of the premises is simply made a surety for their payment. It follows from the above views that the district court erred in holding that the statute in question was one prescribing a statutory liability and not a penalty.
The judgment is reversed, and the cause remanded, with instructions to the district court of Woodson county to render judgment for plaintiffs in error, defendants below.
All the Judges -concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was charged, tried and convicted under section 15 of the crimes act. A large number of assignments of error were made, but only two are urged. In appellant’s brief it is alleged that the principal point relied upon for a reversal of the judgment is the insufficiency of the evidence to establish the charge. The evidence tending to establish the guilt of the defendant is practically all circumstantial. One woman was present, but not in the same room, although, if her testimony is true, she was in a position to see the deceased at the time of the supposed act which resulted in the death of the deceased and her unborn child. If her evidence had been believed by the jury, an acquittal must have resulted. It is conceded by the .defense, however, that although the state offered this woman as a witness the prosecution was not concluded by her evidence, and that the jury might believe the circumstantial evidence tending to establish guilt even in opposition to the direct and positive evidence of the witness.
The evidence of a number of physicians who held a post-mortem examination of the body on the day following the death indicates that the deceased died of shock, and that there was no apparent physical injury upon the body which would account for the death; that shock may result from nervous excitation, possibly caused by a very slight physical injury, which causes the heart to empty itself of blood, the brain to become ansemic,' and engorges nearly all the other internal organs with an excess of blood; that the accused exhibited to one or more of the physicians very soon after the death a catheter smeared with vaseline, indicating that it had been recently used; that the underclothing and body were wet; that around the armpits and on the waist the clothing was slightly smeared with blood, indicating that an attempt had been made to wash off the blood. The accused stated to the coroner, in effect, that she was in the business, to some extent, of procuring abortions for women and charging a fee therefor.
The woman who was present testified that the deceased had called upon the accused for the second time for the purpose of having the accused procure an abortion for her, and that the accused had' been for some time alone with the deceased immediately before and following the death.
It is urged that the court erred in admitting in evidence the opinions of some of the physicians who conducted the post-mortem examination as to whether the fetus was quick. It is urged that only the mother or persons who have placed their hands upon her body and felt the independent motion of the fetus can know whether or not it is quick. If this were adopted as the iron-clad rule of evidence in such cases; the statute defining the crime would be practically impossible of enforcement after the death of the mother. The evidence given by the physicians of the measurements made of the fetus, and its appearance, their means of knowing from measurements and appearance its age and of the time of quickening, we think was properly admitted; also the opinion of each as to whether the deceased was quick with child. It was for the jury to say, after considering all the evidence, what weight they would give to such opinions.
The court properly instructed the jury that they must acquit the accused unless they were satisfied by the evidence beyond a reasonable doubt of her guilt.
After fully considering all of the evidence, all of the objections thereto and the arguments of counsel, we think that the case was fairly submitted to the jury and can not say that the jury could not conscientiously, after a full consideration of all the circumstances, find beyond a reasonable doubt that the accused was guilty of the crime charged. The judgment is affirmed. | [
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Per Curiam:
Only questions of evidence and familiar principles of law are involved in this appeal.
The second and thirteenth findings of fact are contrary to the evidence only as they seem to say that no examination whatever by manipulation was made. The evidence is conclusive that the plaintiff’s femur was broken and that the fracture would have been discovered by manipulation with any degree of care and skill. Evidently such an examination only was intended to be negatived.
There was evidence that manipulation was dangerous practice: in the plaintiff’s case because of her age, and that the measurement of her limbs was really no' measurement because only the' toes of her feet were placed together.
The nineteenth, twentieth and twenty-first findings are not: inconsistent. The defendant did make what was called an examination. An examination worthy of the name would have: disclosed the fracture, but the defendant found none.
The judgment is affirmed. | [
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Per Curiam:
Nelson was arrested and tried in the district court of Finney county on an information the charging part of which is as follows:
“That on the 5th day of September, 1909, in the county of Finney and state of Kansas, said defendant, Forest Nelson, then and there being, did then and there unlawfully, feloniously keep and maintain, in .a certain wooden building known as an amphitheater or grand stand, situated on what is commonly known as the fairgrounds in the aforesaid county and state, to which divers persons whose names to your informant are unknown, were accustomed to resort for the purpose of gambling, by playing certain games of chance therein, commonly called ‘craps,’ played with dice, for money and property; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
He attacked the information by motion to quash, on the ground that it did not state facts sufficient to constitute a public offense because the information was so indefinite and uncertain that the defendant was not apprised of what charge was attempted to be alleged against him, and that the information was bad for duplicity. He moved for a new trial on substantially the same grounds.
It seems apparent, however, that the particular defect now urged, namely, that the information does not charge the keeping of a place or room, was not called to the attention of the court, as the omission is so glaring that the court would have sustained the motion or ordered the information to be amended.
A trial was had and evidence was introduced on the part of the state sufficient to justify the jury in finding that the defendant kept a place where divers persons were accustomed to resort for the purpose of gambling at dice, and the defendant introduced evidence tending to show the contrary. It is therefore evident that the defendant knew in fact what he was being tried for and what was intended to be charged in the information.
Technically, the objection made to the information was good and should have been sustained, but a fair trial was had thereafter and it was evidently not misleading.
In The State v. Everett, 62 Kan. 275, which was a prosecution for a felony, where the information was attacked for the reason that it did not charge a public, offense, and the defendant’s counsel declined on request to designate in what respect it was deficient and' replied that the information spoke for itself, it was held that the judgment of the court would not here be' reversed, although there was in fact a technical defect in the information which would have been apparent to-the court had attention been called to it. In that case (p. 277) the language of the court in Ambrose v. Parrott, 28 Kan. 693, is quoted as applicable, although the latter case was a civil action. It reads:
“If, however, the various causes of action set forth in the plaintiff’s petition were so manifestly obvious that the court must have readily taken notice of them by a bare inspection of the petition and without any specific designation of them in the defendant’s motion, then they were necessarily so manifestly obvious that the defendants themselves should also have taken notice of them, and would not have experienced any considerable inconvenience in pointing them out in their motion.” (28 Kan. 700.)
This is the only assignment of error in the trial which seems to merit comment, and as the case was fully tried and defended as if the information charged the offense for which conviction was had, we do not deem it proper to reverse the just judgment of the court for a technical defect.
The crime intended to be charged is perfectly apr parent, and the omitted words — “a place” — are necessarily implied from the context. No other words are suggested to the mind of the reader. That both the state and the defendant in effect supplied these words after the word “state” and preceding the word “to” in line seven as above copied is demonstrated by the evidence, as before. said. The evidence to sustain the charge is ample. The judgment is affirmed. | [
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The opinion of the court was delivered by
Benson,. J.:
The question tried by the jury was: whether the release pleaded contained all the terms, of the settlement, the appellee contending that it did' not; that another writing was executed with it as a. part of the agreement, whereby the right of the appellee to the insurance money was reserved to be paid to him in addition to the $3200. Upon this issue the jury made the findings which follow:
“Ques. Did the written contract or contracts between the A. T. & S. F. Rly. Co. and D. E. Hanks, by which the railway company settled its liability for the fire, provide that D. E. Hanks should have the right to collect the insurance policy on the property? Ans. Yes.
“Q. Does ‘Exhibit A’ — the so-called release — contain the whole of the written contract or contracts between D. E. Hanks and the railway company made at the time of the release of the company? A. No.
“Q. Was it the written contract between D. E. Hanks and the railway company that D. E. Hanks should have the sum of $3200 from the railway company and the right to collect the insurance policy on the property? A. Yes.
“Q. Was any other written instrument executed by either the said D. E. Hanks or E. H. Hemus at the time of the execution of said release and draft, except the affidavit in evidence as ‘Exhibit C’? A. A question of doubt, but answered yes.
“Q. If you answer the foregoing question in the affirmative, then state fully by whom such instrument was executed .and what its terms and provisions were. A. Terms and provisions were that defendant should be permitted to collect the insurance. Evidence does not prove.”
Other findings are that the release pleaded had not been changed since it was signed, and that it was not obtained by fraud. The facts, then, are established that there was no fraudulent alteration of the release pleaded, but that another writing, made and delivered with it, gave the appellee the right to the insurance money, which is the subject of this action.
It is contended that these findings are based on testimony erroneously admitted, and that the court improperly instructed the jury. These alleged errors relate substantially to the same matter, viz., the parol evidence relating to the settlement. It appears that the railway company was represented by a claim ad j uster, and the appellee by an attorney, at this settlement. Other persons were also present. The appellant proved the execution and delivery to the adjuster of an affidavit of ownership of the property, and the release, and that a draft for $3200 was drawn and delivered to the appellee. Evidence was also given of the adjustment and payment of the loss by the insurance company to the appellee afterward. The appellee then called the attorney who had represented him at the settlement, who testified to the execution of several papers on that occasion. He was shown the release, and was asked if there was any other writing. 'The following testimony was given:
“Ques. There was some additional writing, then, in that instrument than what is shown in ‘Exhibit A’? Ans. There was.
“Q. But just how it was written you do not recall, Judge Clark? A. I don’t know as it was written there, I say; I did n’t see much of it.
“Q. But you do say there was some other writing? A. Ido.
“Q. Then there was no other instrument than this signed by any of these parties, you mean? A. There was other writing, but whether another instrument I don’t know.
“Q. You may state, Judge Clark, how this writing ■you refer to was connected with this writing here, or what it was? A. The relation it bore was, it was a part of the agreement.”
The witness was then asked to state the contents of that writing, and upon objection the attorneys for the other parties were permitted to examine him concerning it. After this examination the court asked the witness:
“Judge Clark, I will ask you this question: Does ‘Exhibit A’ express the entire contract as you understood it as entered into by Mr. Hanks that evening in your office? Ans. No, sir.”
Another question having been asked by counsel, the witness said, “I should like to state what happened there, and think I could explain it better that way,” and was directed by the court to proceed. After some preliminary statements the witness said:
“Now, I don’t remember whether this ‘Exhibit A’ was written there in my presence or not. I hardly think it was, all of it, but I. insisted to these gentlemen that the written receipt or whatever they called it should state in writing the fact that it was not to interfere with, or affect, Mr. Hanks’s rights under his insurance policy. One of these gentlemen said in substance: ‘We can not settle for the insurance company,’ and I said, ‘ I don’t want you to, but I will not consent to Mr. Hanks giving you a receipt for the entire loss. He must be permitted to retain his rights against the insurance company,’ and I insisted that should be in writing. It was stated there by one of these gentlemen, I don’t know now which one, that they were not paying the entire loss, but they were paying the loss as they had agreed, less the amount of the insurance policy, and I insisted that the substance of this should be in writing. . . . After I had read ‘Exhibit A’ [the release], and before Mr. Hanks had signed it and I witnessed it, there was something put in writing, and to the best of my recollection it was what I had demanded —that is, that it stated in substance it was not to interfere with Mr. Hanks’s rights under his insurance policy, and I have believed from that time that it was put in.”
On cross-examination the witness said his recollection was that the appellee signed but two papers, the affidavit and the release; that he did not remember that any paper was attached to the release, but that the provision he had insisted .on was put into it. He also testified .that he could not swear that no other paper was attached to the release.
Another witness who was present at the settlement testified:
“Ques. Was there some papers drawn up there? Ans. Yes, sir.
“Q. Did you see them or hear them read? A. I heard them read.
“Q. Who read them? A. Judge Clark.
“Q. Do you know what the papers were that Judge Clark read there? A. There were other papers drawn up and I did not examine them, so I could not say as to any particular one.
“Q. You don’t know-what particular paper he read? A. No, sir.
“Q. Now, you may state what that particular paper you do remember that Judge Clark read said. A. I can’t give the words, but it said that the railroad company was to give him or pay him $3200 and he was to retain the insurance. That was the amount of it, but I can’t give the exact language.
“Q. Then, after that was read, what did they do relative to the papers there, if anything? A. They signed them up.”
The appellee also gave similar testimony.
This evidence, if competent, certainly tended to prove the claim of the appellee. The appellant insists that some of the testimony offered to prove the existence of an additional writing relative to the insurance was received in violation of the rule excluding parol evidence varying the terms of a written agreement. The evidence, however, was not offered for that purpose, but to prove the existence of another writing. Thus, testimony of the appellee was received that after discussing the amount of loss by the fire the adjuster said “that he would give me $3200, and I could collect the insurance.” Other testimony to the same effect was received, but this was in connection with evidence given to show that a written agreement had been made to that effect, and not to prove a parol agreement. When the inquiry relates to the existence of a written contract, parol evidence of the conversation and circumstances out of which it is claimed that it arose, fairly tending to prove it, is not excluded merely because it may also tend to vary the terms of another writing executed at the same time. The court limited the evidence to this particular issue, and no error is found in the rulings.
Instructions submitting this issue are also com plained of, upon the ground that the jury were allowed to predicate their findings upon a- parol modification of a written agreement, but this is not the effect of the instructions, for the court stated that the antecedent parol negotiations were not to be considered for the purpose of determining what the real contract was, but for the purpose of ascertaining whether the written agreement as alleged was that to which the parties assented, and directed the jury to find what the written contract was. They were informed that the writing or writings embodying the agreement must govern. Although some of the language used in the instructions may be subject to criticism, any merely verbal inaccuracy is immaterial, especially in view of the finding that there was an additional written agreement, and that its terms were as the appellee had alleged.
It is urged that as the release upon its face purports to be complete, parol evidence can not be allowed to extend its obligations. This rule, however, does not apply where the parol evidence is offered merely to prove another contemporaneous written contract, which with the release constitutes the agreement. All contemporaneous writings relating to the same subject matter are admissible to show the entire agreement. (1 Greenl. Ev., 16th ed., §§277-283; Wilson et al. v. Randall, 67 N. Y. 338.)
“Where two written instruments, executed at the same time concerning the same transaction, comprise the contract between the parties, they should be construed together so as to give force and effect to both of them, when it can be reasonably done.” (Windmill Co. v. Piercy, 41 Kan. 763, syllabus.)
The appellee argues that as the issues between the railway company and himself were found in his favor, and the railway company did not appeal, the terms of the settlement are res judicata, and the appellant has no standing in this court for that reason. It is not necessary to consider this question, as the judgment must be affirmed for the reasons already given.
The judgment is affirmed. | [
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Per Curiam:
The appellees ask that in advance of the hearing on the merits the court settle certain disagreements between the original abstract and the counter abstract.
In the counter abstract two errors (apparently clerical) of the original abstract in setting out the details of the judgment complained of are corrected, and the contents of the amended answer and the testimony of a witness are set out in greater detail. There is no real dispute as to these matters, and no order with regard thereto is necessary at this time.
The case involves the title to real estate. The de-, fendants relied upon two judgments quieting title. The plaintiff challenged the validity of the judgments, upon the ground that they were based on void service. The original abstract shows the proceedings on which the judgments were founded, and says that the records thereof were all introduced in evidence. The counter abstract says that nothing was introduced in this connection except the journal entries of the judgments. The stenographer’s transcript of the evidence sustains the latter statement, and must be regarded as conclusive. Therefore the case will be heard upon the theory that the affidavits for service by publication, and other proceedings leading up to the two judgments, were not in fact formally offered in evidence.
Nevertheless, as the accuracy of the copies of the records as set out in the original abstract is not questioned, they will be taken to be correct, and will be regarded as being before this court for whatever use may properly be made of them. The occasion for such use may arise in two ways. Copies of the briefs presented by both parties in the district court seem to show that the case was argued there as though all the proceedings referred to were before the court. The omission formally to introduce the records was of course immaterial if they were treated as though in evidence. Again, the plaintiff asks that, although the records may not have been introduced or considered as introduced at the trial, they be admitted here under the statute (Code 1909, § 580) authorizing this court to receive further testimony on appeal. If it is demonstrated by conclusive evidence in this court that the judgments which the trial court held good were in fact void, the language of the new code seems to justify a reversal, although the decision below may have been in accordance with the evidence there presented. However, no decision upon these matters is made at this time. The effect of the records referred to may be argued upon the final hearing.
The samé situation arises with respect to the- record of a tax deed which the original abstract erroneously says was introduced in evidence. The case will be heard upon the understanding that such a tax deed was issued and recorded, but not introduced in evidence. | [
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The opinion of the court was delivered by
Smith, J.:
In September, 1906, Fred L. Morris filed his petition in the district court of Hamilton county against John E. Miller, W. H. Burks, T. F. Shinkle, R. F. Evans, Lee S. Chaney, James L. Emerick and George J. Downer. The action was to foreclose a mortgage on certain land of which Chaney claimed to be the owner at the time. During the pendency of the suit the appellant purchased the land of Chaney, and on her motion was substituted as a party defendant in his stead. The note and mortgage sued on were executed by John E. Miller, in May, 1889, to the Southern Kansas Mortgage Company. Prior to the commencement of the suit Morris succeeded to the rights of the mortgage company, and to avoid the statute of limitations alleged that the maker had been absent from the state of Kansas ever since the maturity of the note. Upon being made a party defendant the appellant filed her answer, and, after pleading the statute of limitations, alleged that the land had been conveyed by a tax deed executed by the county clerk of the county-to defendant Burks, which was recorded August 28, 1895, and that she had succeeded to the title of Burks; that on May 16, 1902, the county clerk of the county had executed a tax deed to the land to defendants Shinkle and Evans, which deed was filed for record May 19, 1902; that on September 27, 1902, the district court of Hamilton county rendered a judgment in an action wherein Shinkle and Evans were plaintiffs and the Southern Kansas Mortgage Company, John E. Miller and all those under whom Morris claims were defendants; that by that judgment the title to the land was quieted and confirmed in Shinkle and Evans, and that by a chain of conveyances by warranty deeds the title to the land had passed from Shinkle and Evans to the appellant.
Thereafter Morris filed a reply to such answer, which reply contained a general denial, and alleged that the judgment relied upon as a defense was void for the reason that the court had no jurisdiction to render it against the Southern Kansas Mortgage Company; that the only service had upon the company was by publication, and no affidavit was filed as required by statute upon which to base the publication; and that the mortgage company was the record owner of the mortgage when the judgment was entered. The reply also attacked the validity of both of the tax deeds, setting forth various alleged defects therein and in the tax proceedings leading up to the execution of the deeds.
If the judgment quieting title was, as we have concluded, valid, it concludes the determination of this case, and it will be unnecessary for us to consider whether the tax deeds were valid or not.
The case was tried February 9, 1909, and at the conclusion of the trial judgment was rendered foreclosing the appellee’s mortgage in the'sum of $1000, and a lien for taxes paid was allowed. A motion for a new trial was filed by the appellant and denied by the court.
In the action in which judgment quieting the title in Shinkle and Evans was rendered the mortgage company did not appear, and no question is raised as to the sufficiency of the published notice. The question to be determined is whether the affidavit to obtain service by publication was sufficient. At that time section 73 of the old code was in force. The affidavit for publication was introduced in evidence,’ and, omitting the formal parts, the portion obj ected to is as follows: •
“Affiant further says, that the said defendants, Mabel Ebert and J. R. Ebert, her husband; . . . W. H. Burks and-Burks, his wife, whose first name is unknown; . . . John E. Miller; Thomas B. Brown and-Brown, his wife, whose first name is unknown ; . . . and each of them are nonresidents of the state of Kansas, and that service of a summons can not be made on the said defendants, the Southern Kan sas Mortgage Company, a corporation; ... or either of them within the state of Kansas, and that said plaintiff wishes to obtain a service on said defendants by publication; and further affiant sayeth not.”
The sufficiency of the affidavit in other respects was not questioned, namely, that the plaintiffs were the owners of the land described, that the defendants claimed some title therein adverse to the plaintiffs, and that the action was brought to quiet their title thereto.
About four years after the rendition of the judgment in the action to quiet title an amended affidavit to obtain service by publication was filed by leave of the court. This affidavit was made by the same affiant who made the previous affidavit, and the sufficiency of the amended affidavit is not questioned, except as to the following portions thereof:
“Affiant further says that the said defendants, Mabel Ebert and J. R. Ebert, her husband; . . . W. H. Burks and-Burks, his wife, whose first name is unknown; . . . John E. Miller; Thomas B. Brown and--Brown, his wife, whose first name is unknown ; . . . and each of them are nonresidents of the state of Kansas, and that personal service of summons can not be had on the said defendants within -the state of Kansas; . . . that the Southern Kansas Mortgage Company . . . are domestic corporations which have not been legally dissolved and their officers have departed from the state or can not be found, and that said plaintiff wishes to obtain a service by publication on all of said defendants above named.
“Affiant further says that the facts stated in this amended affidavit were true at the time of the verification and filing of the original affidavit on June 11, 1902 ; further the affiant sayeth not.”
The sufficiency of the pleading, or of the published notice, or of the judgment rendered, is not attacked,provided the affidavit and the amended affidavit for publication are sufficient to atxthorize service by publication. The entire record in the case was introduced in evidence.
One of the defects urged as to both affidavits is that the words “with due diligence” are omitted from the statement that the plaintiffs were unable to make service of summons upon the defendants;'also, that in the first affidavit there is no evidence that the statutory provision applied to the Southern Kansas Mortgage Company, the provision being:
“This act shall apply to domestic corporations which have not been legally dissolved in cases where the officers thereof have departed from the state or can not be found.”
The statute in force at the time of the beginning of that action, and also at the time of the making of the amended affidavit, was section 73 of the old code, which reads as follows:
“Before service can be made by publication, an affidavit must be filed stating that the defendant or defendants are nonresidents of the state of Kansas, and that personal service of summons can not be had upon said defendant or defendants within the state of Kansas, or that the plaintiff with due diligence is unable to make personal service of summons upon the defendant or defendants to be served by publication within the state, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed, the party may proceed to make service by publication. This act shall apply to domestic corporations which have not been legally dissolved in cases where the officers thereof have departed from the state or can not be found.”
It will be observed that the statute requires a statement that the defendant or defendants are nonresidents of the state of Kansas, and that personal service of summons can not be had upon such defendant or defendants within the state of Kansas, or that the plaintiff with due diligence is unable to make personal service upon the defendant or defendants to be served within the state. It will also be observed that under this provision two conditions are provided for — one where the -defendant is a nonresident of the state, and it is there sufficient to state that service of summons ■can not be had upon him within the state; and the other, where there is no statement that the defendant is a nonresident of the state, the statement is required that the plaintiff “with due diligence” is unable to make service of summons upon him within the state. The first requirement was fully met in the first affidavit for publication as to the individuals named; but as to the mortgage company there was no statement that it was a nonresident of the state, but the statement. “that service can not be made on the said defendants [the ■defendants named], the Southern Kansas Mortgage Company, a corporation, ... or either of them within the state of Kansas,” applies to all of the defendants. Is this statement in the affidavit that service, can not be made upon the mortgage company equivalent to saying, or does it inferentially say, that the plaintiff with due diligence is unable to make personal service of summons, etc.? We think so, and that ft is even •stronger.
Prior to the act of 1889, post, the statute required an affidavit that the plaintiff was unable to make service of summons in the state of Kansas upon the defendant or defendants to be served by publication. In 1889, as we understand, it was desired to modify the statement to provide for the service of defendants within the state who were avoiding the service of summons, and for this purpose the legislature passed chapter 107 of the Laws of 1889. By chapter 79 of the Laws of 1891 section 73 ■of the code was again amended to read as quoted above.
In Harris v. Clafiin, 36 Kan. 543, it was said in the •syllabus:
“If there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable.”
It 's easy to imagine conditions where it would be quite possible to serve a summons personally upon the defendant within the state and yet a plaintiff might truthfully testify that with due diligence he was unable' to make personal service, etc. The defendant may be in the state and thus liable to be served, but the plaintiff or the officers might not, after extraordinary effort so to do, be able to find him. Hence we say that the statement in the affidavit is stronger than a statement that the plaintiff could not “with due diligence” make service of a summons upon the corporation in the state. It is more; it is in effect a statement that personal service in the state was impossible.
To avoid requiring an affidavit which the affiant could not know to be literally true, and to permit service by publication when the plaintiff could neither testify that the defendant was a nonresident of the state' nor that personal service of a summons could not be made upon him in the state, the amendments. (Laws 1889, ch. 107, and Laws 1891, ch. 79) were adopted. Under these provisions the affidavit need only state that the plaintiff “with due diligence” is unable to obtain personal service, etc. That this is the proper construction of the law and the correct history of the development of the statute is verified by the more specific and ample provisions of the new code. (Code 1909, § 79.)
It will also be noticed that the statute in question prescribes what is required in an affidavit for publication, and then provides that when such affidavit has been filed • the party may proceed to make service by publication. Then follows the statement that the act shall apply to domestic corporations which have not been, legally dissolved, in cases where the officers thereof have departed from the state and can not be found. This provision is not only not required to be set forth in the affidavit, but it is by express terms said that the party may proceed to make service without it. The facts set forth in the last provision quoted must exist as to domestic corpora tions, but they need not be set forth in the affidavit required before publication. In this case the facts required were shown by the amended affidavit, filed by leave of court, to exist at and before the time of the publication. This procedure has .been approved in Pierce v. Butters, 21 Kan. 124, Harrison v. Beard, 30 Kan. 532, and Long v. Fife, 45 Kan. 271. However this may be, all the facts requisite to be stated in an affidavit before publication are at least inferentially stated in the first affidavit, and, therefore, the proceedings are, at most, merely voidable. (Harris v. Claflin, 36 Kan. 543.) Even if voidable, the proceedings can not be attacked collaterally; but to justify a collateral attack, as the attack is in this case, the proceedings must be absolutely void.
There was, of course, no conflict in the evidence as to the record of the judgment in the action to quiet title, and the judgment expressly quieted the title in the plaintiffs in that case against this mortgage, which was then held by the mortgage company; and, the judgment being valid, as we have found, the plaintiff in this case has no cause of action, and the defense to the alleged cause of action was fully sustained by the evidence.
The judgment is therefore reversed and the case is remanded, with instructions to render judgment in favor of the appellant as prayed for. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought to foreclose a mortgage in the form of a warranty deed. The plaintiff was awarded judgment on the pleadings. The defendants appeal.
It is first contended that the demurrer to the petition should have been sustained because there was no statement showing when the indebtedness matured or what the implied conditions of the mortgage were. We have no difficulty in discovering from the petition that the note was dated August 30, 1902, was due five years thereafter, and that no part of the principal or interest had been paid when the suit was brought, which was long after the nóte matured by its terms. It is also alleged in the petition that by the terms of the original mortgage the whole sum became due and payable upon the first default in payment of interest, and that the implied conditions of the deed were the same as those contained in the mortgage. The demurrer was properly overruled.
The defendants fall into the error of assuming that because the note and mortgage were canceled and surrendered the indebtedness in some way was satisfied. But the petition alleges, and the answer adteiits, that the deed was given for the purpose of securing an extension of the debt represented by the note and mortgage. The fact that the plaintiff surrendered the note to the defendants under these circumstances carried no presumption that the note was paid. Besides, there was no plea of payment. The court rightly awarded judgment on the pleadings. The answer raised no defense. The general denial amounted to nothing. True, the answer alleges that one of the purposes for which the plaintiff took the deed was to avoid the payment of taxes. But coupled with this is the admission that the deed was executed for the purpose of securing an extension of time. The plaintiff being the holder of the indebtedness and the real party in interest, the defendants can not rely upon the case of Sheldon v. Pruesmer, 52 Kan. 579. In that case the mortgage had been assigned in order that the mortgagor might avoid the payment of taxes. The assignment was held to be fraudulent, and it necessarily followed that the assignee was not the real party in interest, and it was held that he could not maintain the action. According to the averments of the answer in the case at bar the avoidance of taxes was only one of the reasons for changing the form of the security. The satisfaction of the judgment against the defendants would be a complete protection from further liability. (Greene v. McAuley, 70 Kan. 601; Cobe v. Hackney, ante, p. 306.) It is no concern of theirs whether the taxes on the mortgage were paid or not. This is not a case where the plaintiff, in order to establish his case, is obliged to rely upon an illegal transaction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment refusing to grant a temporary injunction against the city of Hutchinson, in which suit the. court was asked to restrain the city from the construction of an open drainage ditch across the appellants’ lands. The appellants are the grantees of A. J. Malick, who owned a small tract of land in the city of Hutchinson, across which Cow creek, a tortuous stream carrying considerable water, flows. On the west side of appellants’ lands a drainage canal had been built by the city for the purpose of carrying off the flood waters of Cow creek. In 1908 the city undertook to straighten the course of Cow creek running through appellants’ lands, and thus prevent an overflow upon the grounds, by damming up Cow creek at a point near its entrance upon appellants’ lands and causing the water to flow through the drainage canal west of appellants’ lands for some distance. By an agreement entered into by the city of Hutchinson and Malick he granted to the city the right to reconduct the waters from the drainage canal into Cow creek at a point several hundred feet below the dam, by laying drainage pipes in and across the lands of appellants to the bed of Cow creek. Under this agreement the city laid three twenty-four-inch pipes in and through the Malick land for a distance of 267 feet. The extent of the easement and the right of the city under it is the main controversy in this action. .
The purpose of the city in damming the creek and turning the water into the canal, and then back into and through drainage pipes, was to eliminate several curves, or bends, in the creek on appellants’ lands, thus straightening the stream and preventing overflows. The material part of the instrument creating the easement is the provision for “a right of way or easement for the purpose of laying three or more lines of twenty-four-inch pipe in and across the land of grantors from the drainage canal to Cow creek, said right of way and easement to be twenty-five feet wide, and located as follows,” describing'the location of the line, which was 267 feet long. The instrument conveying the easement is formal and complete. The city claimed the right, and had begun, to dig up the three drainage pipes laid across the appellants’ lands by virtue of the easement, because of their inadequacy for drainage purposes, and to substitute and maintain an open ditch twenty-five feet wide along the strip of land in which the city had been given the right to lay the pipes.
The city admits that in the digging of .such open ditch the dirt will be piled temporarily on the lands of appellants, but insists that it has the right under the easement granted to maintain in the place of the pipes an open ditch, and thus prevent the appellants from the use of the surface of their lands over the drainage pipes. The injunction was refused, and appellants are here contending that they were entitled to an order enjoining the appellee from proceeding with the construction of an open ditch without their consent or without condemning the interest proposed to be taken in excess of that granted and the making of compensation therefor in the manner prescribed by law. The easement in controversy was created by an express grant, and it must be held to be the measure of the rights of the parties. The city was granted the right to lay three or more twenty-four-inch pipes in a certain twenty-five-foot strip, extending from the canal to the creek, a distance of 267 feet. Under this easement the city is entitled to lay as many twenty-four-inch pipes as can be placed in the strip, but the easement to lay pipes in the ground differs greatly from one to construct and maintain an open canal across the land. An open waterway dividing an owner’s 'land and depriving him of all benefit of the use of the surface under which the pipes were laid would constitute an increase of the burden imposed and an enlargement of the use actually granted. In Darlington v. Painter, 7 Pa. St. 473, it was decided that “the grantee of a watercourse can not use it for any purpose that would increase the flow, enlarge the ditch, or affect the water in any way different froin that use for which the watercourse was granted.” (Syllabus.) The city can claim no more under the grant than the right to lay and maintain pipes, and incidental to this it probably has the right to enter upon the land for the purpose of making necessary repairs, while the owner who granted the easement and in whom the title to the land remains is entitled to make any and every use of the land and to the profits derivable from such use, providing they are not inconsistent with the enjoyment of the easement. In Burnham, v. Nevins, 144 Mass. 88, it was said:
“These general principles are that a man who owns land subject to an easement has the right to use his land in any way which is not inconsistent with the easement, but has no right to use it in a way which is inconsistent with the easement; and that the extént of the easement claimed must be determined by the true construction of the grant or reservation by which it is created, aided by any circumstances surrounding the estate and the parties which have a legitimate tendency to show the intention of the parties.” (p. 92.)
In behalf of the city it is argued that there is no recital in the deed specifically reserving to the grantor the right to use the surface of the land, but there was no necessity to reserve that which was not granted. The specific grant plainly implies that everything not granted is reserved to the owner of the fee. In a Massachusetts case where something was claimed because of the lack of such a reservation it was said:
“The fact that there is no clause reserving to the grantor what is not granted is equally without significance. A proper way of limiting an easement is to specify the purposes for which it is to be used. If an easement is so limited, the land subjected thereto can not be used by the grantee of the easement for any other than the purpose named. As w'ell might it be argued that when a life estate is carved out of a fee it is not enough that all that is granted is a life estate, in order that the reversion should be preserved to the original owner. For the same reason it is of no importance that the words ‘for no other purpose whatsoever,’ found in the grant of 1856, are omitted from the grant in question. It is enough if an easement is limited to a specific purpose.”. (Gray v. Cambridge, 189 Mass. 405, 415.)
The contention is that the pipe-drainage plan is inadequate, and that public interest and safety require an open waterway. If the present plan endangers the health and safety of the city it devolves on the authorities to devise and carry out a more effective one, and the law points out a method by which the city may obtain an open waterway; but the necessity, however pressing, does not warrant the taking of private property for that purpose without compensation. If an additional easement is required, ■ and private property is necessary, cities of the class in which Hutchinson belongs may acquire it by a condemnation proceeding; but such property can not be appropriated until adequate compensation is provided for or made. (Laws 1872, ch. 100, § 65, Gen. Stat. 1909, § 1410.)
It is contended that the straightening of the stream and the making of a new waterway was beneficial to the landowner, but this may have been one of the considerations that entered into the original grant of the easement. If a condemnation proceeding is had for an open waterway which is of benefit to the landowner, that benefit may be considered in determining the compensation to be awarded him; but the m'ere fact that an appropriation of private property may result in benefit or that a change of an easement granted might improve the landowner’s property is no reason why the city may change the easement or enlarge the use against his will. The city can not take more than was granted, Without consent or compensation, whether it is productive of either benefit or injury. It has been said that “no one has a fight to compel another to have his property improved in a particular manner; it is as illegal to force him to receive a benefit as to submit to an injury.” (Merritt v. Parker, 1 N. J. Law, 460, 466.) In Jaqui v. Johnson, 27 N. J. Eq. 526, it was held that a proposed change in an easement for conducting water which it was said would cause no more injury than the easement actually granted could be enjoined. The court said:
“It seems to me to be quite clear, also, that the right is wanting in the appellant, against the objection of the appellee, to bed the water pipes beneath the surface of the ground, where, before, they were above, or to make any substantial change in the relation of the pipe to the surface of the appellee’s lands from the manner of its use and position at the time of conveyance. It is no proper answer to his objection, in such case, to say that it will injure him no more or less than the others, or benefit him. One may not invade the property of another, and justify or excuse the legal wrong because attended with no actual injury to such property, and especially so when the question of whether injurious or not rests only on the opinion of the trespasser.” (p. 532.)
In Dickenson v. The Grand Junction Canal Company, 15 Beav. (Eng. Ch., R. C., 1852) 260, on an application for an injunction for the violation of an agreement as to the use of a waterway, it was held to be no answer to say that the alterations would not be injurious or even to prove that they were beneficial to the complainants. Likewise it has been held that an owner of a flume across another’s land has no right, on its decay, to erect a larger one, even if it should turn out to be more advantageous to the owner of the land. (Dewey v. Bellows, 9 N. H. 282.) So, also, it was held in Johnston v. Hyde, 32 N. J. Eq. 446, that the grantee of an easement for an open raceway over the lands of another could not, without his consent, be compelled to accept the substitution of a covered aqueduct or any other conduit in lieu of the original open one. (See, also, Allen v. San Jose Land & W. Co., 92 Cal. 138; Hulme et al. v. Shreve, 4 N. J. Eq. 116.)
Reference is made by appellee to the obligations of the parties to the lower riparian owners on the creek. Whatever these obligations may be, and whether the riparian owners can require the opening of the old creek bed from which the water was diverted and compel its flow through the natural channel, are questions not involved in this controversy. The litigation is confined to the rights of the city and the appellants under the granted easement. It is not proposed to turn the water back into the dry channel of Cow creek, but the city is undertaking to make a substantial change in.'the easement and to impose burdens upon appellants’ lands, without their consent, that are not warranted by the deed granting it a right to a waterway through their lands.
There is no doubt that appellants are entitled to the remedy invoked. Injunction is a proper remedy to prevent a party from trespassing upon and using a way over the land of another without his consent, where such trespass or use if continued would ripen into an easement. (Kirkendall v. Hunt, 4 Kan. 514; City of Kansas v. K. P. Rly. Co., 18 Kan. 331; Poirier v. Fetter, 20 Kan. 47; Hanselman v. Born, 71 Kan. 573; Council Grove Township v. Bowman, 76 Kan. 563; Winslow v. City of Vallejo, 148 Cal. 723; 1 High, Inj., 4th ed., § 622.)
Under the pleadings appellants were entitled to an inj unction, and therefore the j udgment is reversed and the cause remanded, with directions to grant the injunction. applied for. | [
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Per Curiam:
Among the candidates for county assessor of Greenwood county were two who were entitled to the benefit of the veterans’ preference law. (Laws 1907, ch. 374, §1, Gen. Stat. 1909, §7879.) The county commissioners appointed D. S. McNeill, who was not a soldier. This action is brought by the state against McNeill to remove him from office upon the ground that his appointment violated thé statute referred to. The commissioners were made defendants at their own request.
Evidence has been introduced tending to show that each of the old soldier candidates was entirely competent to perform the duties of the office. Witnesses whose sincerity can not be questioned have expressed their opinion to that effect. There is also evidence of a contrary tendency, and witnesses of seemingly equal sincerity have said that these candidates lacked the physical endurance necessary to meet the requirements of the situation, and were perhaps deficient in the knowledge of the present values of property, although their clerical fitness was conceded. The question before us is not whether the old soldier applicants were in fact competent. That question the county commissioners were required to decide, and their decision must be final unless it. is shown that they acted in bad faith. (The State v. Addison, 76 Kan. 699; Dever v. Platt, 81 Kan. 200.) Two witnesses attributed to one of the commissioners expressions unfavorable to the enforcement of the preference statute, but the construction placed upon his language is entirely inconsistent with his own testimony, and the probability seems to be that he was misunderstood. With this exception the evidence on the part of the plaintiff goes rather to show that the commissioners were mistaken in their judgment as to the competency of the applicants, than that they intended to disregard the law or failed to interpret it properly. The evidence for the defendants showed abundant room for a difference of opinion on the facts, and upon the whole record we find no basis for a determination that the commissioners acted in bad faith.
The statute evidently contemplates that the county assessor shall supervise the work of his deputies, the township trustees, since he is authorized to suspend them for incompetency or other cause. (Laws 1909, ch. 251, § 4, Gen. Stat. 1909, § 9356.) It also requires him to assess any omitted property. (Laws 1909, ch. 251, § 6, Gen. Stat. 1909, § 9358.) Clearly his duties might involve considerable traveling and personal activity. In. a publication of the state tax commission on .the subject it is said:
“It has been suggested that the law does not require much from the county assessors, but to the commission it seems that he will be the hardest worked officer of the county; this is upon the assumption that he will be assiduous in his work, and if he is not he should either resign the office or be removed therefrom.” (Rev. Duties of Assess. 1910, p. 7.)
How much physical effort is likely to be required of a county assessor depends somewhat upon local conditions. If the county commissioners made an overestimate in this respect the fact does not argue a want of good faith.
The plaintiff contends that the commissioners did-not make a sufficient investigation of the qualifications of the old soldier applicants. It appears, however, that at the time the appointment was made they were fairly well advised-upon the subject from their own knowledge and from inquiry. They were not required to hold a formal hearing. (Ray v. Miller, 78 Kan. 843.) They did not refuse to listen to anything that was offered, although a committee that went before them failed to be heard, apparently through a mutual misunderstanding.
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The opinion of the court was delivered by
Burch, J.
The appellants, Naylor and Hollembeak, sought to enjoin the collection of taxes levied by the city of Cimarron upon tracts of land owned by them and claimed to be outside the city limits. Some of the land affected was discharged from the levy, and this appeal is taken from the judgment of the district court holding the remainder to be within the city limits and therefore subject to city taxes.
The initial question is one of statutory interpretation. In 1889 the legislature, by an omnibus act, vacated portions of more than sixty town sites. (Laws 1889, ch. 261.) Section 15 of the act'relates to the town of Cimarron, and reads as follows:
“That all that part of the town of Cimarron, Gray county, Kansas, lying west of the west line of Eighth street, also blocks thirty, thirty-one, forty-three, forty-four, forty-nine, fifty-four, fifty-seven, fifty-eight, sixty-two,, sixty-three, sixty-four, sixty-five, sixty-six;, sixty-seven, seventy, seventy-one, seventy-two, seventy-four, seventy-seVen, seventy-eight, eighty-two, eighty-three, eighty-four, and one hundred and three, is hereby vacated.”
By section 67 of the same act streets and alleys in the vacated portions of the .various town sites affected were also vacated and became the property of the adjacent owners. ,
. In 1893 thé legislature passed an act which reads as .follows:
“Section 1. Where any town site or portion of a town site containing more than five acres has been heretofore vacated by the board of county commissioners or' by act of the legislature, and such town site or a portion of a town site is a part of a city of the ’first, second or third class, and included within the corporate limits of such municipal corporation, then, from and after the passage of this act, the town site or portion of a town site containing more than five acres, thus vacated, shall no longer be a part of such municipal corporation, nor included in the corporate limits thereof. • (Laws 1893, ch. 66, Gen. Stat. 1909, § 723.)
“Sec. 2. If any town site or portion of a town site containing more than five acres shall hereafter be vacated by the board of county commissioners or by act of the legislature, and such town site or portion of a town site is at the time a part of a city of the first, second or third class, the act of vacation thereof shall of itself detach the same from such municipal corporation, and it shall no longer be a part of such city, nor included within the corporate limits thereof.” (Laws 1893, ch. 66, Gen. Stat. 1901, § 636.)
The judgment from which the appeal is taken aifects ten blocks of those enumerated in section 15 of the act of 1889, owned by appellant Naylor and located as follows : Commencing at the southwest and running east are blocks 67, 66, 65 and 103. North of them, beginning at the west, are 62, 63, 64 and 71. North of 64 and 71 are 49 and 72. The judgment likewise affects five other blocks mentioned in section 15 of the act of 1889, owned by appellant Hollembeak and located as follows: At the northeast is block 43. South of 43 is 44. West of 44 is 57. South of 57 is 58. East of 58 is a block not included in the statute and south of it is 70. All the blocks referred to were 300 feet square. Streets running north and south were 80 feet wide and streets running east and west were 60 feet wide. Because no single block vacated by the act of 1889 contained more than five acres the district court held that none of them was excluded from the town site by the act of 1893.
Section 15 of the act of 1889, vacating blocks, and section 67, vacating streets and alleys within the boundaries of vacated blocks, should be read together. So considered, they did in fact completely vacate a distinct portion of the town of Cimarron, compact in form, containing much more than five acres of land, and composed of blocks 67, 66, 65, 103, 62, 63, 64, 71, 49 and 72, and the streets and alleys within the boundaries of those blocks. The result accomplished by the statute was the same as if it had read “all that portion of the town of Cimarron composed of blocks [naming them], and of the streets and alleys within the boundaries of such blocks, is hereby vacated.”
The act of 1893 was intended to apply to conditions as they existed at the time of its passage. It exactly fitted the Naylor tract. That tract constituted a solid portion of the town site of Cimarron, much more than five acres in extent, which theretofore had been vacated by the legislature. Consequently the tract was excluded from the corporate limits. The same is true of the Hollembeak land, unless block 70 should be excepted. The act of 1898 looks only to units of more than five acres, and not to detached tracts containing a smaller area. Therefore block 70 can not be considered in connection with any land from which it is separated. It is inferable from the abstract, however, that block 70 is attached to other land containing the required quantity which the court held to be excluded from the town site. If this be the fact block 70 ought also to be excluded.
The next question is whether section 1 of the act of 1893, so far as it relates to previous special acts vacating portions of town sites, is essentially a special act conferring corporate power within the meaning of section 1 of article 12 of the constitution. In 1897 the court of appeals of the northern department held this section to be constitutional and valid. (Town Co. v. City of Smith Center, 6 Kan. App. 252.) The judgment was affirmed by this court for the reasons stated by the court of appeals. (Allen v. Town Co., 60 Kan. 857, see “Appendix,” post.) The material portion of the opinion delivered by the court of appeals reads as follows :
“This act is general, applies to all cities in the state . — there being none other than cities of the first, second and third class — and has a uniform operation. This act is general in form, and may be made applicable to all cities when a certain condition of things exists. It is not necessary that the law should operate upon all cities of the state, to be' constitutional. If it is general and uniform throughout the state, operating upon all Who are brought within the relations and circumstances provided for in the act, it is not obnoxious to the limitation against special legislation.
“This act is general in form and operates not only upon all cities brought within the relations and circumstances specified therein at the time of its passage, but it is prospective in its operation, and operates generally and uniformly throughout the state, upon all cities which may at any time in the future come within its provisions. It is sufficient if it applies to all of a certain class, and it belongs to the legislature to make the classification.” (6 Kan. App. 256.)
The prop afforded this decision by a consideration of section 2 of the act of 1893 (Gen. Stat. 1901, §636) was removed by the decision of this court in the case of Davenport v. Ham, 72 Kan. 179. By a special act (Laws 1895, ch. 326) a portion of the town site of the city of Stockton was vacated. It was claimed that section 2 of the act of 1893 operated to exclude the vacated • territory from the corporate limits of the city. The court said:
“Chapter 326 of the Laws of 1895 is a special act, and could not change the limits of the city of Stockton. It could only have such effect in conjunction with section 636 of the General Statutes of 1901. There can be no doubt that it was the intention of the legislature that section 636 should operate to detach from the corporate limits of any city in Kansas all territory in which the lots, blocks, streets and alleys should thereafter be vacated.
“It is a rule of construction that where several statutes have been enacted relating to the same subject they should be construed together and harmonized, and each given the meaning intended by the legislature. The two statutes under consideration should be so construed. If section 636 [Gen. Stat. 1901] should be given the force intended, the legislature could change the boundaries of a city lay special act. It would thus accomplish by indirection that which the constitution has imperatively forbidden. The legislature can not enact a law that will give to it the power subsequently to violate the constitution. It can not without violating this provision of the constitution enact a law the purpose and effect of which is to give to special acts subsequently passed the force and effect of changing the corporate limits of cities. Chapter 326 [Laws 1895], being special, can not be broadened nor converted into a general law conferring corporate powers by the provisions of any previously existing law. It bias just been held in Levitt v. Wilson, ante, p. 160, that section 109 of chapter 529 of the Laws of 1903, which undertook to withdraw certain lands from the corporate limits of the city of Wilson, violated sections 1 and 5 of article 12 of the constitution, because it was a special act and contemplated the change of the corporate limits of a city. Section 636 of the General Statutes of 1901 is a plain attempt to evade this constitutional provision by providing that its provisions shall be read into all special acts subsequently passed vacating streets and alleys. It is therefore unconstitutional so far as it attempts to confer upon special acts of the legislature subsequently passed the effect of a general law granting corporate powers.” (p. 180.)
This reasoning is obviously sound. But it applies to section 1 of the act of 1893 (Gen. Stat. 1901, § 635, Gen. Stat. 1909, § 723) when that section is brought to bear upon special acts of vacation like the act of 1889, as well as-to section 2 (Gen. Stat. 1901, § 636). In either case a special act is employed to effect a grant of corporate power, which is not permissible. Such a .grant must be accomplished wholly by general law. (Levitt v. Wilson, 72 Kan. 160, 163.) Besides this, a statute like section 1 of the act of 1893, which confers corporate power upon an unchangeably- fixed number of corporations, is itself usually regarded as special, and therefore unconstitutional. (City of Topeka v. Gillett, 32 Kan. 431; Cole v. Dorr, 80 Kan. 251, 259.)
It follows that if the question were a new one the court would hold that section 1 of chapter 66 of the laws of 1893 (Gen. Stat. 1909, § 723) is unconstitutional as applied to the facts of this case. The court is confronted, however, with the decision in Allen v. Town Co., 60 Kan. 857, rendered March 11, 1899. (See “Appendix,” post.) The evidence shows that the Naylor and Hollembeak tracts, and others affected by the act of 1889, have been separately fenced and farmed as rural lands, that the voting places of electors have been determined accordingly, and that township and city finances and other municipal affairs have been ad justed for years upon the supposition that such lands are outside the city limits. No doubt the same conditions obtain in a multitude of localities affected by the numerous acts of vacation passed prior to 1893. This being true, the doctrine of stare decisis, which is based upon the necessity for stability and uniformity in the interpretation of laws, applies, and in the interest of public and private right the former decision will not be disturbed.
There is no dispute about the facts of this case. The only questions involved are questions of law, and there is no necessity for another trial. Therefore the judgment of the district court is reversed, and the cause is remanded with direction to render judgment according to the views which have been expressed. | [
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The opinion of the court was delivered by
Burch, J.:
Nena H. Quinton recovered a judgment against P. H. Adams, and caused his farm in Menoken township, Shawnee county, to be sold for its satisfaction. Motions to confirm and to set aside the sale were made, and after a hearing the district court set aside the sale on the ground that the land is the homestead of the judgment debtor. The creditor appeals. The hearing was had in June, 1909, upon affidavits, and the controversy is presented to this court in the same form that it was to the district court.
In 1899 the appellee lived on the farm with his wife and minor son. Prior to that time they had been in the habit of coming to Topeka for the winter and going back to the farm in the spring. In 1899 the appellee and his family removed to Topeka and have never returned to the farm to reside. At first they lived at No. 308 West Sixth street, Topeka, but soon afterward moved into the dwelling house at No. 621 Topeka avenue, then owned by Sara H. Quinton, the mother of Mrs. Adams. They have ever since resided there. Later in 1899 the appellee went to New Mexico on some cattle business, and beginning with that year was in New Mexico much of the time for three years. During that period he was back and forth between Topeka and New Mexico several times. About five years before the hearing he was employed, from month to month, as a salesman at the Mills company’s store in Topeka, which employment still continues. In 1906, while the son was still a minor, the property at No. 621 Topeka avenue was deeded to him by Sara H. Quinton. During the appellee’^ absence from the farm it has been rented, sometimes for crop rent and sometimes for cash' rent. In 1907 he leased it for three years, beginning March 1, 1908, to John M. Skinner. Skinner has subleased the premises to a tenant who occupies the buildings.
No reason of any kind is offered for leaving the farm, and no hint is given of what the appellee expected to do in town. Mrs. Adams testifies at length in the case, but withholds all information as to the character of the arrangement whereby she and her husband and son jointly occupy the Topeka avenue property with her mother. She says the arrangement was made at the request of her mother, was “temporary,” and was mutually satisfactory to all parties. The appellee says the arrangement was made at the request of his wife’s mother, and was “understood to be temporary and liable to be terminated by defendant’s removing with his family to said homestead on said farm.” Witnesses for the appellant undertake to state the facts. Mrs. Quinton bought the house and fixed it up for a home for the appellee and his family, they to furnish her a home with them and take care of her there. Mrs. Quinton had one room for herself, and the appellee and his family had the remainder of the house, which was fitted up and furnished for permanent occupancy.
The appellee and his wife say in general phrases that “nearly all of the time” and for “a large part of the time” he has had horses and other personal property on the land, and that he retained the right to use and occupy a portion of it. These statements are met by definite evidence of the facts. When the appellee first came into town some household goods were left at the farm, but when he moved into the Quinton house they were all brought there and used to furnish the new quarters. At least as early as 1908, and probably much earlier, the appellee had no personal property of any kind left at the farm, particularly no tools, implements or stock necessary on a farm, and he never reserved or retained for himself any rooms or portions of the dwelling house, barn or buildings necessary to residence there.
Immediately after the appellee established himself at No. 621 Topeka avenue he engaged in the New Mexico venture. He stated to his wife’s brother that he had gone into the cattle business with W. W. Mills; that they had a lease on several thousand acres for several years; that he expected to make some money, and that that was the only thing he could do, because his wife would not go back to the farm — would not live there. Two witnesses relate conversations with the appellee’s wife, in his presence, in which she said they had left the farm for good, and never intended to return to it. The appellee does not deny these statements and conversations. He merely says he has never expressed an intention to abandon the homestead, and has always intended “ultimately” to return to it. His wife merely says that she has never stated that the land was not the homestead of herself and family and has always claimed the farm as her permanent residence.
When the appellee withdrew from New Mexico he did not go back to the farm. For two or more years, and until he went to work for the Mills company, he gives no account of himself. Why he was detained from returning to his homestead is not stated. At no time was it leased for longer than a year, until the Skinner lease was given, and hence he could have obtained possession had he so desired.
Being unable, during the long blank period mentioned, to mature his persistent intention to return to his farm, and thereby terminate his “temporary” absence from it, the appellee changed his occupation a second time, at least. He secured “temporary” employment, “liable to be terminated at any time,” with the Mills company. This precarious tenure, however, had lasted for five years at the time of the trial. Although it can be terminated any month, the appellee expresses no purpose to resign this employment; and no fact, situation or relation is offered in evidence in dicating even a remote probability that it will come to an end or that he will ever go back to the farm.
The farm itself is no longer a desirable one. The appellee has been willing to sell it, but has been unable to find a purchaser for it because it has been seriously damaged by floods.
Besides testifying directly to their intention, the appellee and his wife offer in evidence some self-serving acts and declarations. Two witnesses say they have frequently heard the appellee express an intention to return to the farm. He has voted in Menoken township and not elsewhere, and years ago paid some tuition for his son’s attendance at the Topeka schools. Such tuition, however, was rarely demanded by the school authorities. This evidence is quite consistent with a purpose to hold creditors at bay while maintaining a settled residence in town.
The constitution and statutes of this state exempt from sale on execution a homestead “occupied as a residence by the family of the owner.” (Const., art. 15, § 9; Gen. Stat. 1868, ch. 88, § 1, Gen. Stat. 1909, § 3646.) The affairs of men are too varied to permit them to occupy their homesteads every moment of time. Duty, necessity or even pleasure may occasion extended absences which will not defeat the exemption. But it must appear from the circumstances that an absence in fact is genuinely temporary or the homestead privilege is lost. Otherwise the words of the constitution and statute which require not only occupancy, but occupancy as a family residence, would be deprived of all force.
All the evidence considered, the appellee’s claimed intention to occupy the land in controversy as a residence for his family is refuted, and an absence is disclosed which is incompatible with occupancy for residence purposes as the law contemplates.
The judgment of the district court is reversed, and the cause is remanded with direction to confirm the sheriff’s sale.
Johnston, C. J., dissenting. | [
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The opinion of the court was delivered by
Mason, J.:
A hospital for the treatment of patients afflicted with cancer was about to be established in Kansas City, Kan., in a building formerly used as a dwelling house. The owner and occupant of adjacent premises brought an action to enjoin its establishment, upon the ground that in view of the character of the neighborhood its presence there would render it in legal contemplation a nuisance. A permanent injunction was granted, and the defendants appeal.
The home of the plaintiff is. seventy-eight feet from the main building which it is proposed to use as a hospital. The two houses face in the same direction, and each has a number of windows looking toward the other. A fifteen-foot alley runs between them, near which is a small building belonging to the hospital property, formerly used for a billiard room. Two other residences are situated about ninety feet from the hospital building, and three others at a distance of about 150 feet. All the houses in the vicinity are used solely as dwellings.
Witnesses for the plaintiff who were familiar with real-estate values testified that in their judgment the establishment of the hospital would cause a material depreciation in the rental and market value of the surrounding property. Several physicians expressed the opinion that there would be some danger of the communication of the disease through transmission by means of insects and perhaps in other ways. There was also evidence that offensive odors resulting from the disease itself, and from disinfectants used on account of it, might reach the occupants of neighboring dwellings. On behalf of the defendants there was testimony that none of the anticipated evils had resulted from a cancer hospital formerly maintained by them under somewhat similar conditions; that under proper management there need be no offensive odors about such a place; and that cancer is not contagious or infectious. Perhaps the court may take notice of the prevailing view in the medical profession upon the last proposition. From the current literature of the subject it appears that while it has not been proved to the satisfaction of the profession generally that cancer can be communicated from one individual to another, except by the process of grafting or transplanting cancerous tissue, competent investigators are not lacking who believe that it is of parasitic origin and in some degree infectious. That theory is presented and argued at length in an address published in The Lancet of January 11, 1908 (pp. 80-85), to which is appended a bibliographical note. Results of experiments tending to support the theory are recorded in the issues of June 5, 1909 (pp. 1591-1593), and April 9, 1910 (pp. 990-992). An article in the same publication (December 4, 1909, pp. 1709-1711) describes observations made in Paris covering a period of two years and a half, which lend color to the popular belief in the existence of “cancer houses” — that is, houses the occupants of which are peculiarly subject to cancer. In the present state of accurate knowledge on the subject it is quite within bounds to say that, whether or not there is actual danger of the transmission of the disease under the conditions stated, the fear of it is not entirely unreasonable.
It is of course not necessary that the use to which property is put shall be unlawful in itself in order to constitute it a nuisance in the eye of the law. (29 Cyc. 1160; 21 A. & E. Encycl. of L. 692.) Whether in a given case the obligation so to use one’s own property as not to injure another’s has been or is about to be so far transgressed as to justify the interference of a court is a question to be determined as a matter of reason, fairness and justice under all the circumstances. The injury need not extend beyond annoyance, if in view of all the facts it is unreasonable. For instance, offensive odors, although not injurious to health, have often been held to constitute sufficient ground for injunction.
The general considerations upon which the line is to be drawn between annoyances that can be restrained and those which must be endured are thus stated in Barnes v. Hathorn, 54 Maine, 124:
“What is a nuisance? In considering this question, when the complaint is based upon the use of another of his own property, we are first met by the general doctrine of the right of every man to regulate, improve and control his own property; to make such erections as his own judgment, taste or interest may suggest; to be master of his own, without dictation or interference by his neighbors. On the other hand, we meet that equally well-established and exceedingly comprehensive rule of the common law — ‘sic utere tuo, ut alienum non laedas’ — which is the legal application of the gospel rule of doing unto others as we would that they should do unto us. The difficulty is in drawing the line in particular cases, so as to recognize and enforce both rules, within reasonable limitations. • It is quite clear that the law does not recognize any legal right in anyone to compel his neighbor to follow his tastes, wishes or preferences, or to consult his mere convenience. He can not dictate the style of architecture or, generally, the location of the buildings — or maintain that an unsightly or ill-proportioned edifice is a nuisance because it offends his eye, or his too cultivated taste. Nor can he interfere because he has idle and unfounded fears of ill effects from the use of the adjoining lot. There may be many acts which, to the eyes of others, appear to be: unneighborly and even unkind, and entirely unnecessary to the full'enjoyment of the property — vexatious, and irritating, and the source of constant mental annoyance, and yet they may be but the legal exercise of the right of dominion, and therefore can not be deemed nuisances. The diminution of the market value of adjacent buildings, by such use, will not of itself make it. a nuisance. But there is a limit to such right. No man is at liberty to use his own without any reference to the health, comfort or reasonable enjoyment of like public or private rights by others. Every man gives up something of this absolute right of dominion and use of his. own, to be regulated or restrained by law, so that others may not be hurt or hindered unreasonably in the use and enjoyment of their property. This is the fundamental principle of all regulated civil communities, and without it society could hardly exist, except by the law of the strongest. This .illegal, unreasonable and unjustifiable use to the injury of another, or of the public, the law denominates a nuisance.” (p. 125.)
The same thought runs through the discussion of the subject by the text-writers, as shown by the following typical expressions:
“It is not practicable to give other than a general definition of what constitutes a nuisance. A precise, technical definition, applicable at all times to all cases, can not be given, because of the varying circumstances-upon which the decisions are based. . . . One of the great difficulties in defining a nuisance technically is to describe the degree of annoyance necessary to cause the actionable injury. . . . It is difficult to define just what degree of injurious influence must be reached in order to warrant the court in determining-what circumstances constitute a nuisance. . . . The determination, however, of the question rests in sound judgment and depends upon common sense in each case. . . . Even that which causes a well-founded, reasonable apprehension of damage may be a nuisance.” (Joyce, Law of Nuis. §§ 1, 19.)
“Thus a business or erection which, should be located in a remote locality may be a nuisance merely because located in a residence or populous neighborhood.” (21 .A. & E. Encycl. of L. 692.)
“The locality is to be considered in determining whether there is a nuisance, for what might be a nuisance in one locality might not be ,so in another.” (29 Cyc. 1157.)
“A hospital is not a nuisance per se, or even prima facie; but it may be so located and conducted as to be a nuisance to people living close to it. Even a pesthouse is not a nuisance per se, although it may be a nuisance where it is . . . situated near to property used or ¡suitable for residence purposes.” (29 Cyc. 1175.)
“The locality, the condition of property, and the .habits and tastes , of those residing there, devested of ■any fanciful notions, or such as are dictated by ‘dainty modes and habits of living,’ is the test to apply in a .given case. In the very nature of things there can be no definite or fixed standard to control every case in •any locality. The question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.” (1 Wood on Nuis., 3d ed., § 9.)
Cases bearing more or less directly on the question involved are collected in a note in 15 Ann. Cas. 719.
In Deaconess Hospital v. Bontjes, 207 Ill. 553, an injunction against the maintenance of a hospital close to dwelling houses was sustained, the court saying:
“It is said that a screen may be erected between the two properties, and that the windows of the hospital may be kept closed and the curtains drawn on the side .next the property of appellee. It is manifest that in the summer time the windows must be opened and the curtains drawn aside in both buildings for ventilation; and it is equally apparent that the screen would not prevent the cries.of the suffering, the moans of the dying and other offensive noises being heard in the home of the appellee; nor would such an obstruction entirely prevent the transmission of the smell of iodoform, •ether and other offensive substances; nor would the ■annoyance resulting from the frequent visits of the hearse and the ambulance to the hospital be materially lessened by the proposed precautions. The work in which appellant is engaged is philanthropy of the highest order, but the law will not permit it to be conducted in such a manner that it becomes an intolerable nuisance to those who are in nowise responsible for its .location and operation.” (p. 560.)
In Baltimore City v. Fairfield Imp. Co., 87 Md. 352, an injunction against the placing of a leper for care and restraint in a residence neighborhood was justified in part upon grounds thus stated in the opinion:
“Leprosy is, and always has been, universally regarded with horror and loathing. . . . The horror of its contagion is as deep-seated to-day as it was more than two thousand years ago in Palestine. There are modern theories and opinions of medical experts that the contagion is remote and by no means dangerous; but the popular belief of its perils founded on the Biblical narrative, on the stringent provisions of the Mosaic law that show how dreadful were its ravages and how great the terror it excited, and an almost universal sentiment, the result of a common concurrence of thought for centuries, can not in this day be shaken or dispelled by mere scientific asservation or conjecture. It is not, in this case, so much a mere academic inquiry as to whether the disease is in fact highly or remotely contagious; but the question is whether, viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located.” (pp. 364, 365.)
Much the same reasoning may be applied here. The question is not whether the establishment of the hospital would place the occupants of the adjacent dwellings in actual danger of infection, but whether they would have reasonable ground to fear such a result, and whether, in view of the general dread inspired by the disease, the reasonable enjoyment of their property would not be materially interfered with by the bringing together of a considerable number of cancer patients in this place. However carefully the hospital might be ■conducted, and however worthy the institution might be, its mere presence, which would necessarily be manifested in various ways, would make the neighborhood less desirable for residence purposes, not to the oversensitive alone, but to persons of normal sensibilities. The court concludes that upon these considerations the injunction was rightfully granted.
The plaintiff, as the owner and occupant of adjacent property, has such a peculiar interest in the relief sought as to enable her. to maintain the action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The appellant operates its railroad through Arkansas City, in Cowley county. Fred R.. Turner was an employee of the appellant at that place, at the time he received the injuries herein alleged. The injuries caused his death soon after they were received.. The widow of the deceased commenced this action in the district court of Cowley county to recover damages for the loss of her husband, and was awarded the sum of $10,000. The railroad company appeals.
At the time the deceased was injured he was in charge of the turntable. He had been at that work only three or four days. He had previously been in charge of the cinder pit. The foreman of the gang to which Turner belonged had been.directed to instruct him i'n the duties belonging to his work. He was given some instruction, but the foreman omitted to give any direction or instructions concerning the use of the pushpole by which he was injured. At the time of his injury the deceased was assisting in placing an engine having no' steam, called a dead engine, upon the turntable by the use of a “pushpole” and an engine having steam and called a live engine. The two engines ran upon parallel tracks which converge toward the turntable and come very close together. When near the turntable the push-pole is placed from one engine to the other, and by this means the dead engine is pushed upon the turntable. The deceased never assisted in this work before, and, so far as is known, never saw it done. Under the direction of the foreman he assisted in placing the push-pole in proper position, where it was held by the pressure of the engine. He was then left there, without instructions, and was caught beween the pole and the tender of the dead engine and crushed. Upon the trial the jury found that the injury was caused by the negligence of the appellant, and the appellee insists that the special findings sustain this conclusion. They •are as follow:
“(1) Ques. Do you find that the defendant’s negligence caused the death of the deceased, Fred R. Turner? Ans. We so find from evidence.
“(4) Q. Do you find that the injury of the deceased was due to any defects in the engines, cars, machinery, tracks or other property of the defendant? A. Lack of air in engine contributory.
“(5) Q. If you answer the next preceding question in the affirmative, state what particular defects in what particular property or machinery caused the injury. A. Lack of air in engine.
“(7) Q. What do you find were the duties of Fred R. Turner at the time of his injury by reason of his employment by the defendant? A. Operate turntable and clean up around or near it.
“ (8) Q. How long do you find he has been thus employed ? A. About three days.
“ (9) Q. How old was Fred R. Turner at the time of the accident? A. Twenty-two years and past.
“(10) Q. How long had he worked in the yards of the defendant near the turntable at the time of the accident? A. Three days.
“ (11) Q. How long had Fred R. Turner worked for the defendant at or near the turntable in the yards of the defendant before the injury occurred? A. About three days.
“(12) Q. Had Fred R. Turner during the time he was employed in the yards of the defendant at and ncar the turntable had opportunity to observe the conditions of the track and ground at and near the turntable? A. Yes, for three days.
“(13) Q. Did Fred R. Turner, during his employment by the defendant at and near the turntable in the •defendant’s yards at Arkansas City, have an opportunity to observe the manner and methods of the employees of the defendant in placing engines on the turntable? A. No.
“(14) Q. Had Fred R. Turner, during his employment at the turntable and in the yards, ever seen the employees of the company placing dead engines on the turntable with the pusbnole prior to the time he received his injury? A. No. ' _
“(15) Q. Do you find that Fred R. Turner had opportunities to see the manner ór methods in which the engines were placed upon the turntable by the defendant by means of the pushpole? A. No.
“(16) Q. Was it the duty of Fred R. Turner, during ' the time he was employed at the turntable, to assist the hostler, foreman and employees.of the defendant in placing dead engines on the turntable? A. His duty when ordered.
“(17) Q. At the time, of the injury was Fred R. Turner acting within the line of his duty? A. Yes.
“ (18) Q. Was the manner in which the dead engine was attempted to be put on the turntable at the time of the injury of Fred R. Turner the ordinary and usual method employed by the defendant for placing dead engines on the turntable under similar conditions and circumstances? A. No.
“(21) Q. Do you find that Fred R. Turner received his injury alleged to have caused his death on the 24th .day of October, 1907? A. Yes.
“ (22) Q. Do you find that Fred R. Turner received the injury alleged to have caused his death while assisting in placing a dead engine on the turntable by means of a live engine and a pushpole? A. Yes.
“ (23) Q. If you answer the next preceding question in the affirmative, then was Fred R. Turner ordered to assist in the placing of the dead engine on the turntable? A. Yes.
“• (24) Q. If you answer the next preceding question in the affirmative, state who ordered him to assist in the moving of the dead engine on the turntable. A. Nix, W. L.
“(26) Q. If you answer that Fred R. Turner assisted in placing the pushpole between the engines, state what part of the pushpole the said Fred R. Turner held and how he held it. A. North end. Held with his hands.
“(27) Q. If you answer, that the said Fred R. Turner assisted in the placing of the pushpole between’ the engines, state where the said Fred R. Turner was when the live engine backed up and tightened the push-pole. A. Between middle arid north end of pole.
“ (28) Q. State in what manner the live engine was backed up against the pushpole, that is, whether done slowly or rapidly. A. Slowly.
“(29) Q. Was there any negligence on the part of the hostler in charge of the live engine in backing up to tighten the pushpole, and if so, state in what the negligence consisted ? A. No.
“(30) Q. After the pushpole was tightened did the hostler, before backing up or kicking the dead engine, warn W. L. Nix to look out or get out of the way? A. Yes. •
“(31) Q. If you answer the next preceding question in the affirmative, state in what manner he warned him. A. ‘Look out, Billy — she has no air. I am going to give her a kick.’
“ (32) Q. If you answer the next but one of the preceding questions in the affirmative, state where Fred R. Turner was at the time of the warning and where W. L. Nix stood. A. Turner at north end of pole and Nix probably in rear of dead engine.'
“(33) Q. Was there anything to prevent Fred R. Turner from seeing the danger of being between the pushpole and the dead engine when'the same was being pushed by the live engine on the turntable, and, if so, what was it? A. His lack of instruction and inexperience in doing such work.
“(34) Q. Was there any sudden emergency which arose which required Fred R. Turner to act quickly in going into a place of danger, and, if so, what was it? A. No. He was there as ordered by Nix.
“(35) Q. Before the live engine began to move or kick the dead engine, and after the pushpole had been placed, did W. L. Nix warn or signal Turner to go back out of the way? A. No-.
“(36) Q. Did Turner, before the hostler turned on the steam and kicked the dead engine, move back north between the two engines to a place out of danger? A. No.
“(37) Q. Where did you find Turner was standing at the time the hostler moved the live engine back to kick the dead engine? A. At north end of pole, with hands on pole.
“ (38) Q. If he had remained where he was then standing could the injury have occurred? If so, state how. A. No.
“(39) Q. Do you find that Fred R. Turner was directed lay anyone to go in between the pushpole and the dead engine after the pushpole had been placed and tightened and the hostler had signaled his intention of moving back? A. No, he was already there.
“(41) Q. Did b red R. Turner have hold of the push-pole when the hostler kicked the dead engine ? A. Yes.
“ (42) Q. If you answer the next preceding question in the affirmative, state whether or not the said Fred R. Tui ner walked along with the engine moving back and held to the pushpole until the injury occurred. A. He did.
“(43) Q. Was the.place where the injury occurred one of obvious danger, which could have been seen or noticed by a person of ordinary prudence? A. No, if uninstiucted and not shown it.
“ (.44) Q. If you find in any of the preceding questions that the engineer gave warning or notice that he was about to back up before doing so, state whether or not W. L. Nix heard the warning. A. Yes.
“(45) Q. If you answer the next.preceding question in the affirmative, state whether or not Fred R. Turner heard the warning. A. He probably did, but ■d’d not understand it was for him.
“ (46) Q. If you answer the next preceding question in the negative, or that you do not know, then state whether on not he was as near the hostler when the warning was given as W. L. Nix. A. Yes, as nea^.
“(47) Q. If you answer that the said Fred R. Turner was as near the hostler as W. L. Nix at the time that the hostler gave the warning, state whether or not his opportunity for hearing was as good as that of W. L. Nix. A. Not so good, on account of escaping ■steam near him.
“(49) Q. Was there any negligence on the part of the defendant’s hostler in backing up or kicking the dead engine after the pole was placed, and, if so, state what it was? A. Yes, in-using an engine without air.
“(50) Q. Could the deceased have placed the push-pole as well by standing on the side opposite to that where he was standing when he received the injury? A. No.
“(51) O. Would the deceased have been in a safer place if he had been on the opposite side, or west side, of the nushpole? A. No.
“(52) O. Would the west, or opposite, side of the pushpole from where the injury occurred have been safer than the Dlace where the' deceased stood when the injury occurred? A. No.
“(53) Q. If you answer the preceding question in the affirmative, was there anything to prevent the deceased from seeing or knowing that the opposite side of the pushpole from where he received his injury was safer than the position kept by him? A. Was not safer.
“(55) Q. After the pushpole was placed, and before the live engine kicked or pushed the dead' engine, could the deceased have stepped back north a few steps to a place of safety? A. He could, but had no orders thus to act.
“(56) Q. Could deceased, with ordinary care and ordinary intelligence, have discovered the danger in which he was placed? A. No.
“(57) Q. Could the deceased, with ordinary care and ordinary intelligence, have known that the opposite side of the pushpole was safer than the position occupied by him? A. No.
“(58) Q. Did Fred R. Turner understand the risk to which he was exposed when he went or remained between the pole and the dead engine? A. No.
“(59) Q. By the exercise of common observation would Fred R. Turner have known the risk to which he was exposed by being or remaining between the pushpole and the dead engine? A. He could not, because of his inexperience and lack of instruction.
“(60) Q. If you answer the preceding question in the negative, state what prevented him from knowing it. A. His inexperience.
“(61) Q. Was the danger to which Fred R. Turner was exposed open to common observation? A. No.
“(62) Q. Was the danger to which Fred R. Turner was exposed as well known to him as to the defendant company? A. No.
“(63) Q. If you answer the last question in the negative, state what prevented the said Fred R. Turner from knowing the danger to which he was exposed. A. Inexperience and lack of instruction.
“ (64) Q. After the pushpole was placed could Fred R. Turner have walked back north between the engines and gotten out of danger before the hostler kicked the dead engine? A. He could not, consistently with his. duty as he understood it.
“ (65) Q. If you answer interrogation No. 64 in the negative, state what prevented him from doing so. A. Was there on duty in obedience to orders.
“(66) Q. After the pushpole was placed could Fred R. Turner have passed south under the pole and around the end of one of the engines as Nix did, and thus avoided the injury? A. He could not and have obeyed orders.
“ (67) Q. If you answer interrogation No. 66 in the negative, state what would have prevented him from doing so. A. His duty as he understood it.
“(68) Q. At .the time of the injury of Fred R. Turner, could the defendant have placed its live engine north of the dead engine on the same track and have pushed it on the turntable ? A. Yes.
“(69) Q. Was the cinder pit on the track north of the dead engine in such shape that the live engine could have been brought around in that way? A. Yes.
“(70) Q. Did deceased have good eyesight? A. Yes.
“(71) Q. Did deceased have good hearing? A. Yes.
“(72) Q. Was deceased Fred R. Turner an ordinarily prudent man? A. Yes.”
These findings show that the deceased was in a place of great danger and was in the performance of a duty which was entirely new to him. He did not know the dangers to be apprehended nor how to protect himself therefrom. He was left there without warning or instruction. This was negligence. The circumstances were such that he must have supposed that he was expected to remain at his post to protect the pushpole from falling out of place or to perform some other duty of which he would receive instruction. This is indicated by the findings of the jury. We do not think contributory negligence can be fairly imputed to him.
Complaint is made of certain instructions refused and others that were given, but after a careful examination of them we are unable to find material or prejudicial error in the rulings relating to the instructions.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In March, 1907, the legislature passed an act relating to the establishment, acquisition, maintenance, regulation and improvement of public parks,, parkways, boulevards, streets, bridges, viaducts, public buildings, grounds and places in cities having a population of more than 50,000 inhabitants. Very extensive powers were granted to a board of'park commissioners to carry out the comprehensive purpose of the act, which became effective March 5, 1907. (Laws 1907, ch. 115; see Gen. Stat. 1909, § 1090 et seq.)
In March, 1907, the same legislature passed an act authorizing cities of the first class to adopt the commission form of government. (Laws 1907, ch. 114; see Gen. Stat. 1909, § 1213 et seq.) This act became effective by publication in the statute book on May 27, 1907, and contains a diminutive article relating to public parks.
At the next regular session of the legislature both of the acts referred to were amended. On February 10, 1909, the amendment to the act relating to the commission form of government took effect, section 8 of which reads as follows:
“In all cities adopting the provisions of this act and the act of which this is amendatory having a park board or other department of said city, the mayor and commissioners elect shall succeed to all powers and duties of said board or department.” (Laws 1909, ch. 74, § 8, Gen. Stat. 1909, § 1242.)
On March 20, 1909, the act amending and supplementing the park and boulevard law took effect. The population qualification of cities entitled to the benefit of the act was raised to 65,000, and the following provisions were inserted in section 12:
“Neither this act nor the said acb of which it is amendatory and supplemental shall be held or con strued to be suspended or limited in their application or otherwise by any other statute. Cities to which said acts are applicable are required to carry out the provisions thereof, subject only to the limitations therein contained.” (Laws 1909, ch. 71,' § 12, Gen. Stat. 1909, § 1148.)
In 1907 the city of Kansas City took advantage of the park and boulevard law, and members of the board of park commissioners, duly chosen, have ever since continued to exercise the statutory powers conferred upon such board. In 1909 the city adopted the commission form of government, and the mayor and commissioners elected under that form of government bring this action to oust the members of the board of park commissioners from exercising the powers which it is claimed devolve upon the mayor and commissioners by virtue of section 8 of the amendment to the commission form of government law.
The question is one of statutory construction. The original park and boulevard act, and the act amending and supplementing it, although general in form, were really passed for the special benefit of the city of Kansas City, that being the only city in the state having the specified population. The park provisions of the original commission form of government act were manifestly inadequate to meet the needs of the city recognized by the park and boulevard act, and evidently were not intended to supersede the special provisions made for Kansas City. Not so, however, with the commission form of government act of 1909. The language of section 8 is too explicit to be misunderstood. “All cities” means all cities whatever their population, and the Kansas City board of park commissioners was included in the designation “park board or other department.” The powers and duties cast upon park boards of any description were not affected in any way. All the means for establishing, acquiring, maintaining, regulating and improving parks, boulevards and the like, appearing in any existing statute or city ordinance, were preserved, but the administration of such statutes and ordinances was transferred from park boards or departments to the mayor and commissioners in cities adopting the commission form of government, in accordance with the theory of the law authorizing such a form of government. Such being the purpose of the legislature in February, did it intend in March to undo its work so far as it related to the city of Kansas City? If so, clear language to that end should have been employed, and none such can be found. Repeals by implication are not favored, both acts should be construed together, and the two acts are easily harmonized so that both may be given effect.
Section 12 of the amendment to the park and boulevard law preserves in express terms the functions, powers, rights and duties created in that act, and in the act which it supplements, as against the commission form of government law. Section 8 of the amendment to the commission form of government law casts those functions, powers, rights and duties upon the governing body of the city adopting that form of government, instead of allowing them to rest with the board of park commissioners.
The title of the commission form of government act is clearly sufficient. The plaintiffs have the right to maintain the action under sections 680 and 681 of the' code of 1909. The adoption of the commission form of government by the city is not open to question by the defendants.
•Judgment of ouster. | [
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The opinion of the court was delivered by
Benson, J.:
A road was laid out by order of the board of county commissioners, upon petition, notice and view in the usual manner provided by statute. The appellant owned land upon the route of the road, and was given notice as required by section 4 of the road law. (Laws 1874, ch. 108, § 4, Gen. Stat. 1909, § 7277.) He presented a written claim for damages, which was considered by the viewers, and damages were allowed thereon, but not for the amount claimed. The viewers made their report to the board in favor of the establishment of the road, with their assessment of damages. After hearing the objections of the appellant the board made an order that the road be established and opened, and allowed damages to the appellant as'recommended by the viewers. The appellant gave notice of an appeal from the decision establishing the road, and also from the allowance of damages. The appeals were perfected and filed in the district court, where a motion was made to dismiss the appeal taken from the order establishing the road. The motion was sustained and that appeal was dismissed. The appellant asks for a review of that order.
The objection to laying out the road appears to have been based principally upon the claim that it was a city-line road, so-called, and should have been laid out under section 9 of the statute (Laws 1903, ch. 411, § 6, Gen. Stat. 1909, § 7282), and that viewers should have been appointed from the city. The petition was for the location of a road parallel with the south line of the city of Holton and one inch therefrom. No part of the road was taken from territory within the city. It is argued by .the appellees that the provision for the appointment of viewers from the city is for the benefit of property holders therein who might be affected by the road, and does not apply where the road is entirely outside of the city. But it is not necessary to consider that question. The appellant claimed damages before the viewers and before the board, and by his appeal from the award still claims damages, to be assessed in the district court. It is fundamental that he can not be heard to object to the establishment of a road for the opening of which he also claims damages. (Reisner v. Strong, 24 Kan. 410.) The appeal on the allowance of damages limited the further investigation to that matter. (Comm’rs of Lyon Co. v. Kiser, 26 Kan. 279; Comm’rs of Woodson Co. v. Heed, 33 Kan. 34; Briggs v. Comm’rs of Labette Co., 39 Kan. 90; Cowley County v. Hooker, 70 Kan. 372; Russell County v. Sumner, 71 Kan. 845.)
“When a party takes an appeal in a condemnation proceeding, he really abandons all other remedies until the appeal is disposed of. It would, indeed, be wrong to authorize the prosecution of two remedies for the same thing at the same time.” (Reisner v. Strong, 24 Kan. 410, 418.)
If it should be conceded that the claim of damages and the appeal from the award did not operate as a waiver of objections to laying out-the road, it must still be held that the court was without jurisdiction to try the matters involved in the appeal from the order establishing the road. That appeal was taken under section 2094 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 25, § 30). While the language of the statute is broad, it is limited in its application; the district court exercises only judicial power, and the establishment of roads involves legislative and administrative power. (Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125; Kent v. Comm’rs of Labette Co., 42 Kan. 534.) It is true that the jurisdiction of a district court to review on proceedings in error an order of county commissioners establishing a road has been upheld (Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; Comm’rs of Chase Co. v. Cartter, 30 Kan. 581; Howell v. Redlon, 44 Kan. 558), but that remedy was not pursued in this instance. An appeal was taken under the statute referred to, which, had it been sustained, would have required a trial de novo of the matters heard and determined by the board in laying out the road. (Gen. Stat. 1868, ch. 25, § 31, Gen. Stat. 1909, § 2095, Jus. Civ. Code, § 122.) Such functions are beyond the jurisdiction of a district court.
The order appealed from is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
After the judgment in this case was reversed (ante, p. 242) the appellee filed certain objections to the allowance of costs taxed against her. On the hearing of the motion to retax, it was claimed that it would be inequitable to tax the costs at this time against the appellee, and that by the provisions of the new code the allowance of costs of appeal rests entirely within the discretion of this court. The provision of the old code (Civ. Code, § 562, Gen. Stat. 1901, § 5048), was as follows:
“When a judgment or final order is reversed, the plaintiff in error shall recover his costs, including the costs of the transcript of the proceedings or case-made filed with the petition in error; and when reversed' in part and affirmed in part, costs shall be equally-divided between the parties.”
The provision of the new code (Code 1909, § 583),. is as follows:
“The costs of appeal shall be taxed against such, party or parties as the court shall direct.”
While the new code leaves the taxing of costs in the discretion of the court, it is hardly to be supposed that in an ordinary case the court would direct the costs to- be paid by; the prevailing party. The intention evidently was to do away with the arbitrary rule under the old code requiring the losing party to pay all the costs in every case where the judgment was reversed, and that in cases where the judgment was reversed in part and affirmed in part the costs should be equally divided between the parties. In all cases the court is now permitted to apportion the costs as equity and justice require. As a rule the costs will follow the judgment and will be taxed against the losing party, subject to the right of the court to direct otherwise where it appears for any reason that the costs should be apportioned between the parties. There is nothing peculiar about this case which takes it out of the ordinary rule providing that the costs shall be paid by the losing party.
The principal contention of the appellee arises over the item of $127.50, being the cost of the transcript of the evidence, for which the receipt of the stenographer of the district court was filed showing its payment by the appellants. It is urged that this is not an item of costs of appeal, but of costs in making the record in the district court, and therefore not taxable as costs here. It is said that there is no provision under the code of 1909 for a transcript of the record or case-made, and that, therefore, section 2404 of the General Statutes of 1909 (Laws 1899, ch. 141, § 18), providing that the party paying for a transcript or case-made may by attaching thereto the receipt of the official stenographer for the amount paid have the same taxed as costs in this court, is no longer of any force. It is true there is no provision under the new code for a transcript of the record or for a case-made, but there is a provision for a transcript of the evidence. Section 574 of the code of 1909 reads:
“Either party to any case tried in a court of record having an official stenographer may direct such stenographer to transcribe and certify to the correctness of all of the stenographer’s notes of the testimony and pro ceedings in the case or any such part as such party may designate, and such transcript shall be made, certified and filed with the clerk of such court on payment to such stenographer by the party ordering the same of the costs of such transcript, and such transcript shall thereupon become a part of the record in the case, subject to amendment and correction by the trial court or judge.”
The code of 1909 then provides:
“In case of a challenge of the correctness of any part of an abstract, the court or any justice thereof may direct that all or any designated part of the original files, transcript of evidence, or other papers in the case, or copies of journal entries, or of other records of the said court, be forwarded by the clerk having custody thereof to the clerk-of the supreme court, and the costs incident to the determination of any question as to the correctness of any abstract shall be taxed against the. party in the wrong by order of the supreme court.” (§ 576.)
These provisions make the district court the custodian of the record. The court or judge is authorized to amend and correct the transcript of the evidence before the same is filed and made a part of the record, and the costs of making such transcript must be paid by the party ordering the same before it is filed and becomes a part of the record. The only purpose of the transcript, however, is to preserve the evidence as part of the record for use in this court. The record itself may never be seen by this court, but the abstracts for the use of the court are to be made from it. In order to recover costs advanced for the transcript of the evidence the party procuring it must perfect his appeal. After an appeal has been perfected, this is the only court authorized to direct which party shall pay the costs of the transcript. As a general rule this as well as the other costs will follow the judgment, subject to the right of the court, for sufficient reasons, to direct otherwise.
The motion is denied. | [
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The opinion of the court was delivered by
Cole, J. :
This was an action brought in the court of common pleas of Sedgwick county by Weaver, Thomas & Kirk against Geo. P. Lock and B. F. Loper, partners as Lock & Loper, upon an account for mer chandise. At the commencement of the action an order of attachment was issued as to the property of the defendant B. F. Loper, and levied upon certain real estate in Sedgwick county. Afterward a motion was filed by B. F. Loper to dissolve the attachment, and also an interplea was filed, by leave of the court, on behalf of S. I. Loper, wife of the above-named defendant. Upon the hearing of the cause the attachment was discharged, and judgment was rendered upon the inter-plea in favor of S. I. Loper, and also a judgment for plaintiffs against the defendants, Lock &. Loper, for the amount of their claim. From the order of the court discharging said attachment and sustaining the interplea of S. I. Loper the plaintiffs bring the case here for review.
A motion has been filed in this case to dismiss the petition in error, for the reason that Duvalson G-. Weaver, one of the plaintiffs in error, died in December, 1892, and that no steps have been taken to revive the action in the name of his representatives. These facts are admitted by plaintiff in error, but the claim is made that prior to the death of Weaver the judgment in this action was assigned by Weaver, Thomas & Kirk to Sherwood & Rumsey ; that after such assignment, the firm of Sherwood & Rumsey dissolved partnership, Frederick A. Sherwood, one of the members of the firm, succeeding to the business, and the said Frederick A. Sherwood files his motion asking that he be substituted as plaintiff in error in this action, for the reason that he is the only person having any interest in the judgment in question.
We are of the opinion that the motion to dismiss should be overruled, and the motion to substitute 'allowed. Paragraph 4117, General Statutes of 1889-, provides the manner in which an action may be con tinued after the death or other disability of a party, and also provides that-'
“in case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.”
Where the transfer of a judgment is made after proceedings for review have been filed in an appellate court, it is the undoubtéd right of the court of review to adnfit evidence of such transfer. In this case, Frederick A. Sherwood has established the fact in this court that the alleged transfer of the judgment in question was made prior to the death of Duvalson G. Weaver, one of the plaintiffs in error. It will be admitted under the above facts, that the firm of Weaver, Thomas & Kirk have no further interest in this action, and while it might be continued in their name if the death of one of the parties had not occurred, yet it would be useless under the circumstances to revive the action at any time in the name of the representatives of Weaver. Under the statute above cited, and the case of Harris v. Frank, 29 Kan. 200, we are clearly of the opinion that a substitution is proper,' and, as Frederick A. Sherwood, one of the members of the firm to whom the judgment was assigned, has succeeded to the interest of the firm therein, it is proper that substitution be in his name. (Brown v. School District, 48 Kan. 709 ; Mechanics Ins. Co. v. Brown, 3 Kan. App. 225.)
So far as the ruling of the trial court discharging the attachment is concerned, it is not before us in proper manner for review. The statute prescribes that when an order' discharging an attachment shall be made in any case, and the party who obtains such attachment shall except to such order for the purpose ■of having the same reviewed, the court or judge making such order shall fix the time, not exceeding 30 days from the time of discharging the attachment, within which the petition in error shall be filed, and if such petition in error shall not be filed within the time limited, the order discharging said attachment shall become operative.
In this case no objection is made to the judgment of the district court upon the cause of action, but simply to the ruling discharging the attachment and ■sustaining the interplea of S. I. Loper. As the petition in error was n'ot filed for several months after the discharging of the attachment, that order has become final. Under ordinary circumstances the fact that the order discharging the attachment has become final would dispose of this case, but plaintiffs in ■error contend that they have a right to be heard in this court upon the alleged errors occurring upon the hearing of the interplea of S.T. Loper, and we are inclined to the opinion that this position is correctly taken. We have carefully examined the interplea and all the evidence in this case, and it is impossible for us to say that the decision of the trial court was contrary to law and not supported by the evidence.
The contention in this case arises from the fact that certain real estate had been conveyed to B. F. Loper which shortly before the commencement of this action he conveyed to his wife, S: I. Loper. It was claimed upon the trial that this was a fraud upon the creditors of B. F. Loper, and that S. I. Loper was es-topped by her own action from asserting any title as against said creditors. It is true that some of the evidence tends quite strongly to uphold this theory, ■but there is also evidence which quite as clearly establishes. the fact that the real estate in question was purchased with the separate money of S. I. Loper, and that long before the commencement of this action she had demanded of her husband a deed of the same, and he had promised to convey the land to her. If these facts were true, he probably always held as a trustee for his wife. But the trial court had all the evidence and the witnesses before it, and there being testimony to sustain this finding, it will not be here disturbed.
It is further contended that the interplea of S. I. Loper was not heard by the court, and that the judgment which recites that a hearing thereon took place is false. It appears from the record that the hearing upon the principal case, the motion to discharge the attachment and the interplea of S. I. Loper were, by agreement of counsel made in open court, heard at the same time. It is now contended by counsel for plaintiff in error that no such agreement was. made, and affidavits have been filed with the record to sustain, the position. Upon the other hand, affidavits of counsel for defendants in error, quite as strong, are filed supporting the position that such an agreement was made. It is to be regretted that any disagreement should occur between counsel as to a stipulation entered into in open court; but where such disagreement arises, and the evidence before this court is conflicting as to what the nature and scope of the stipulation was, a finding of the trial court must be deemed conclusive upon that point, and, as the parties might stipulate to have all these questions heard before the court at one time, we must hold that they are bound by the stipulation.
Perceiving no error in this case, the judgment of the court of common pleas of Sedgwick county is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
This is an action brought in the district court of Franklin county by L. M. Todd against the railroad company to recover damages alleged to have been sustained by him by fires caused by the negligence of sa,id company. The jury returned a verdict in favor of Todd for $100, and. answered the special questions submitted to them. The defendant below requested the court to instruct the jury tore-turn a verdict in its favor, which request the court refused. The defendant below filed a motion for judgment upon the special findings, which motion was overruled, The plaintiff below filed a motion for a new trial, which motion was by the court granted. The defendant below excepted to the rulings and orders of the court and brings the case here for review.
The specifications of error enumerated in the brief Of plaintiff in error are as follows :
“T. The court erred in refusing to instruct the jury to return a verdict for the defendant below, as requested.
“2. The court erred in overruling the motion of defendant below for judgment on the special findings, the general verdict to the contrary notwithstanding.
“3. The court erred in sustaining the motion of the plaintiff below for a new trial.”
The petition in error contains but two allegations of error, which are as follows :
“1. That the said court erred in overruling the motion of said railroad company for judgment'in its behalf and against the said defendant in error, L. M. Todd, upon the special findings of the' jury made, returned and filed in said cause.
“2. The said court erred in sustaining the motion of the said defendant in error, L. M. Todd, for a new trial of said cause and for granting a new trial therein.”
The first specification of error in the brief is not set forth in the petition in error and is therefore not complained of. Following the rule laid down in the case of Beck v. Baden, 3 Kan. App. 157, we cannot consider this assignment of error.
The second specification of error relates to the refusal of the court to render judgment upon the special findings of the jury notwithstanding the general verdict. The verdict has been set aside and a new trial granted. Our authority to reverse, vacate or modify judgments or orders of the district court is granted by paragraph 4641, General Statutes of 1889. Our supreme court has held that, when the verdict has been set aside and a new trial granted, a refusal to render judgment on the special findings of the jury is not such a judgment or order as is enumerated in said paragraph 4641. (Burton v. Boyd, 7 Kan. 17; A. T. & S. F. Rld. Co. v. Brown, 26 id. 443.)
The third and last specification of error relates to the order of the court granting a new trial. The new trial was'granted upon the motion of the plaintiff below and contains 17 grounds upon which a new trial was asked. It devolves upon the plaintiff in error affirmatively to show that none of the grounds of the. motion was sufficient, before a reversal can be had. No argument is made or authorities cited in the brief of plaintiff in error upon this specification of error, and no mention is made of it except to assign it as error. Our attention is nowhere called to the particular ruling in which the court erred. No error is apparent to us. We discover no such error as would justify us in reversing the order of the district court in granting a new trial. We’ cannot therefore saj’ that the court erred in granting a new trial.
The order of the district court granting a new trial is affirmed, and the case remanded for trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
This is an action in replevin brought by the plaintiff in error against the defendants in error to recover the possession of one D. M. Osborne & Co. binder, of the alleged value of $150. The plaintiff is a corporation, and alleges in its petition that it has a special ownership in said property, and is entitled to the immediate possession thereof by virtue of two chattel mortgages, copies of which are thereto attached as exhibits and made a part thereof. The following is a copy of one of these exhibits, and differs from the other only in the date of its maturity :
“ $50. Bird City, Kan., July 1, 1889.
“For value received, on the 1st day of October, 1894, I, or we, or either of us, promise to pay to the order of D. M. Osborne & Co., a corporation organ ized under the laws of the state of New York, the sum of fifty dollars at the F. & M. Bank in Bird City, with interest at eight per cent, per annum from date until paid, waiving appraisement and valuation. The express condition of the sale and purchase of the new Osborne No. 5695, for which this note is given, is such that the title, ownership, or right of possession does not pass from the said D. M. Osborne & Oo. until this note and interest and all 'other notes given for same purchase are paid in full; that the said machine is now' on the farm owned or leased by the undersigned, or either of them, located in township Rotate, county of Rawlins, state of Kansas. Said D. M. Osborne & Oo. have full power to declare this note due and take possession of said machine at any time they may deem themselves insecure, even before the maturity of the note, without rescinding the contract of the sale for which 'the same was given, and may sell-the said machine at private sale or public auction, as they may deem more advantageous, without any notice thereof to the parties hereto ; the proceeds of said sale, after deducting all expenses, to be applied to whatever sum may then be due on purchase price of said machine, and I hereby agree to pay the deficiency, if said proceeds shall fail to satisfy said debt.
“The indorsers, signers, sureties and guarantors severally waive presentment for payment, protest and notice of protest, and notice of nonpayment of this note, and diligence in bringing suit against any party to this note, and agree that time of payment may be extended without notice or other consent, and without affecting their liability. Josiah Connor..
Josp. Holmes.”
The answer was a general denial. The record shows that upon the trial the defendants admitted the execution of these notes (which are in the petition denominated chattel mortgages) ; that the value of the property in controversy was $ 150 ; that due demand had been made for the possession, and delivery thereof refused by the defendants. The record fur Clier shows that the plaintiff had, a short time prior to the commencement of this action, recovered a personal judgment against the defendants upon these notes for $118.50, the amoúnt then due thereon. The findings and judgment in this action were in favor of the defendants. A motion for a new trial was duly-filed and overruled, and these proceedings ■ in error were accordingly instituted by the plaintiff below.
No brief has been filed in this court by the defendants in error, and an examination of the record fails to disclose upon what theory the trial court held that the plaintiff was not entitled to recover possession of the property in controversy. Counsel for plaintiff in error claims that the contention of the defendants was that the plaintiff could not recover the full amount of the purchase price of the binder, and at the same time insist that the title did not pass to the defendants ; that they could not treat the transaction both as a conditional and as an' absolute sale; that, as the plaintiff had, prior to the commencement of this action, recovered a personal judgment against the defendants for the purchase price of the binder, it had by that act elected to treat the transaction as an absolute sale, and was therefore estopped from asserting that the title thereto had not passed to the defendant, and that, in support of such contention, reliance was placed upon the decision of our supreme court in Harvesting Machine Co. v. Lewis, reported in 52 K&n. 358. We think, however, that decision is not applicable to the facts in this case. That was an action brought to, recover upon a promissory note given by Lewis for a binder. The note contained a stipulation that the title should not pass until the note and interest were paid in full. After the execution of the note, Lewis mortgaged the binder and other property of the machine company. The supreme court held that the stipulation in the note reserving the title in the company evinced an intention by both parties to treat the sale as conditional rather than absolute, and that, if nothing more appeared, it would necessarily be held that a conditional sale was intended, and that the ownership of the property had never passed from the company; but when Lewis mortgaged the machine to the company he assumed to have title to it, and the company, in applying for and accepting the mortgage, recognized such title ; and that, under such view, the company was entitled to recover all that remained unpaid upon the note, after allowing proper credit for the proceeds of the mortgaged property.
While the clause set out in the notes with reference to the retention of title, the ownership and right of possession of the property in the payee-until full payment of the purchase price had been made, would indicate that a conditional sale was intended, we think the other provisions of the notes evidence an absolute sale of the binder, with a retention of the title and right of possession only by way of security for the payment of the purchase price, and that the agreement for such retention was, in effect, a short form of chattel mortgage. As will be seen, it was stipulated that if the payee should at any time deem itself insecure, even before the date upon which the notes by their terms matured, it might declare the notes due, “without rescinding the contract of the sale for which the same were given,” and sell the property and apply the proceeds of such sale “to the payment of whatever sum may then be due on purchase price of said machine,” and the makers of the notes agreed to pay the deficiency if such proceeds should fail to satisfy the debt. “This giving of property as a security for the payment of a debt is the very essence of a mortgage, which has no existence in the case of a conditional sale.” (Heryford v. Davis, 102 U. S. 235 ; Equip. Co. v. Bank, 136 id. 268.) Of course, if it had been shown that the purchase price had been paid in full, the plaintiff would not have been entitled to the possession of the property. The binder having been pledged as security for the payment of the purchase price, the plaintiff upon taking possession would be required to account to the defendant for the value thereof. It is not in this action claiming to be the absolute owner of the binder, but bases its right to a recovery upon the stipulation set out in the notes that it might take possession of the machine and sell it in order to obtain satisfaction of the balance due upon the debt. The recovery of a personal judgment against the defendant for the purchase- price did not amount to a satisfaction of the debt, nor did it destroy the plaintiff’s lien on the property, which it held by virtue of the stipulation contained in the notes. (Frost v. Shaw, 3 Ohio St. 270 ; Greendale v. Morgan, 5 Sneed, 716 ; Thomason v. Lewis, 15 So. Rep. [Ala.] 830.)
It follows from what has been said herein that the judgment must be reversed and a new trial awarded.
All the Judges concurring. | [
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Tbe opinion of the court was delivered by
Clark, J.:
On June 4, 1890, the United States National Bank of Atchison, Kansas, commenced an action in tbe district court of Pottawatomie county against tbe administrator of tbe estate of J. N. Roberts, deceased, M. N. Hartwell, and C. A. Dickman, to recover the sum of $1,000 and interest due upon a promissory note, and on tbe same day caused a garnishment summons in said cause to be served on tbe defendants in error. Tbe garnishees severally answered, denying any indebtedness by them to tbe defendants, or either of them, or that they bad in their possession or under their control any property, effects or credits of any description belonging to tbe defendants, or in which they bad any interest. The plaintiff gave due notice that it elected to take issue upon tbe truth of each answer as filed. On September 2, 1890, tbe plaintiff recovered a judgment in tbe action against the administrator of tbe estate of J. N. Roberts, deceased, M. N. Hartwell and C. A. Dickman for $1,077.50, and tbe garnishment proceedings -were continued from time to time until September 8, 1891, when a trial was bad upon the issues joined between the plaintiff and tbe several garnishees, none of tbe defendants in tbe main action participating in or being parties thereto. Tbe court found in favor of tbe. garnishees and rendered judgment against tbe plaintiff for costs. Tbe plaintiff seeks a reversal of this judgment.
Several assignments of error are set forth, in the petition in error, but they relate principally to the rulings of the court on the admission and rejection of evidence offered at the hearing, to the findings of the court, the rendition'of the judgment in favor of the garnishees, and the overruling of the motion for a new trial. But the brief of the plaintiff in error filed herein contains no specification of the errors complained of, as required by the rules of this court. * It consists wholly of a statement of the facts out of which this controversy arose, a brief recital of the court proceedings, a refex’ence to certain testimony offex-ed, and an argument in support of the assignments of ex’ror in x’elation to such testimony. We have therefore been compelled, in order to ascertain whether the court ex-red in overruling the motion for a new trial, carefully to examine the entire record, which would not have been necessary had the rules of this court in relation to the preparation of briefs been observed.
It appears from the record that in July, 1889, J. N. Roberts and C. A. Dickman were partners eng'aged in the mercantile business at Blaine, in Pottawatomie county, and that on that day Roberts purchased from Dickman his interest in the partnership business for $3,516.30, and in payment thereof executed and delivered to Dickman five promissory notes for $703.'26 each, payable at intervals of six months respectively, secured by a chattel mortgage on the stock of goods. This chattel mortgage was not filed for record until April 24, 1890. On April 7, 1890, Robex’ts executed, in favor of A. B. Pomeroy, cashier, a note for $10,-000, and at the same time executed a mortgage on this same property to secure its payment. This mort gage was filed for record on May 15, 1890, and contained this stipulation:
“It is understood between the parties hereto that this mortgage shall cover all existing indebtedness of said first party to the First National Bank of Westmoreland, Kansas, also all future advances from said second party as cashier to said first party, and shall also be and remain a lien upon said goods, wares and merchandise as collateral security to protect all accommodation indorsements of said first party and held by said bank.”
On April 22, 1890, a new note for $10,000, secured by a chattel mortgage on the same stock of goods, and which also covered the “books of accounts and accounts therein contained, now due and owing said first party,” was executed by Roberts and his wife to Pomeroy as cashier, and which otherwise contained the same stipulations as were set out in the mortgage of date April 7. This mortgage was filed the day after its execution. The last two mortgages above mentioned were executed to secure the same indebtedness. On April 23, Pomeroy, on behalf of the bank, 'took possession of the property, and on May 7 Dick-man commenced an action in replevin against the First National Bank of Westmoreland to recover its possession.
The record does not show either the value of the goods in controversy, or that the bank had possession thereof on the date of the service of the garnishment summons, and for aught that appears the property may have been turned over to the administrator of the Roberts estate before this proceeding was commenced. After the service of the garnishment summons, the First National Bank purchased from Dickman f©r $2,050 the notes held by him against the Roberts estate. Of the purchase price, $1,700 was paid by canceling a judgment which the bank held against Dickman, and the balance was paid in cash. The record does not show what became of the suit between Dickman and the First National Bank, but it was evidently the understanding between the parties, at the time of the purchase of the Roberts notes, that that suit was to be dismissed. Nor does the record show that Dickman was entitled to the possession of the property, or that he sustained any damage by .reason of its detention by the Westmoreland bank, or that the latter was indebted to him. We think there is sufficient competent evidence in the record to show a valid indebtedness from Roberts to the bank at the date of the execution of these mortgages and at the date of the service of the garnishment summons. That being the case, it was rightfully in possession of the property. The plaintiff, on cross-examination of Pomeroy, proved that Roberts vías indebted to the bank in the sum of at least $4,500, and, as. the record does not show that the value of the property exceeded that amount, although the court may have erred in its rulings upon the admission of some of the evidence offered, the finding must necessarily have been in favor of the garnishee had the evidence which counsel designates as incompetent been stricken out. The mortgage from Roberts to Dickman, as between the parties to the transaction and their privies, created a valid lien on the property. This mortgage and the notes secured by it were purchased and paid for by the Westmoreland bank after the service of the summons in garnishment, and the record fails to show that any liability existed in favor of either Roberts or Dickman at the time the summons was served.
As the finding and judgment of the court are sus tained by the evidence, and as no substantial error appears in the record, the judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
This action was commenced by George W. Love in the district court of Coffey county against J. W. Parker and the Kansas Loan and Trust Company, to recover a balance alleged to be due plaintiff below in consideration of the execution and delivery of a certain note and mortgage to the Kansas Loan and Trust Company. The plaintiff below alleged that on the 1st day of October, 1886, he executed a note and mortgage to the loan and trust, company for the sum of $2,500; that the note and mortgage were received and the mortgage placed or. record by the loan and trust company, and it has ■failed and neglected to pay the sum expressed therein) except $2,000; that it retained $500 and refused to ■pay the same to the plaintiff. The loan company answered that the loan was made upon a written application, which set out various terms and conditions; that $400 might be retained out of the proceeds of the loan until the frame of a dwelling intended to be erected was put up and the insurance on the building assigned as part security for the loan; that the loan company paid the sum of $2,500 to J. W. Parker, as agent of the plaintiff below, with instructions to retain $400 until the building was up and the insurance was effected ; that Love afterward requested the loan company to recall the money from Parker, which was done ; that the sum of $300 was held by it, and it was willing to pay said sum to the plaintiff on the performance of the conditions mentioned, but claimed that said conditions had not been complied with. The sum of $125 was claimed as a commission for negotiating the loan. The reply to this answer was a general denial, with a specific denial of the agency of Parker, which was properly verified.
The case was tried before the court with a jury. Upon the conclusion of the evidence of the plaintiff below, the defendants interposed a demurrer, which was sustained as to the defendant J. W. Parker, and overruled as to the loan and trust company. The trial resulted in a verdict and judgment for the plaintiff below for $325 against {¡he loan and trust company. Exceptions were taken and the case was taken to the supreme court on error, where it was reversed. (Loan Co. v. Love, 45 Kan. 127.) The case having been remanded to the district court, plaintiff below filed an amended petition, alleging, in substance, that it was orally agreed between the parties-that said George W. Love was to make Ms promissory note, secured bj' a trust deed on certain real estate, to the plaintiff in error; that in consideration thereof plaihtiff in error was to pay him $2,500, and that was the whole of the oral agreement. Then follow allegations that the note and trust deed were duly made and delivered to the Kansas Loan and Trust Company, and the Kansas Loan and Trust Company accepted said note and mortgage in full compliance with said agreement on the part of the plaintiff, and that said loan company has sold and disposed of said note and mortgage to an innocent purchaser, for value received, and that it paid therefor $2,000, and refused to pay the remainder, and prays for a judgment for $500.
The defendant answered by a general denial and alleged that George W. Love, by his agent, J. W. Parker, made application to it in writing to negotiate for him a loan of $3,000 on the premises described in his amended petition, to bear interest at 6 per cent, per annum; that among the various terms, conditions and agreements on which said loan was to be made, and set forth in said written application, were agreements that $400 of the proceeds of said loan might be retained by the Kansas Loan and Trust Company until the frame dwelling intended so be erected was up, and that insurance on the frame building to the amount of $800 was to be assigned as a part of the' security for said loan; that said Kansas Loan'and Trust Company duly considered the application, and informed said George W. Love that it would negotiate for him a loan of $2,500 on security offered, to bear interest at the rate of 7 per cent, per annum; that said George W. Love accepted the proposition, •and that the loan was negotiated in accordance with (.he terms, conditions and agreements of said written application as it is modified; that after the delivery of the note and trust deed, the Kansas Loan and Trust Company, in accordance with the written order of said George W. Love, paid the full sum of $2,500 to J. W. Parker, with instructions to retain $400 until uhe conditions above mentioned should be performed ; that afterward s.aid George W. Love requested the Kansas Loan and Trust Company to recall from said ■J. W. Parker the balance of the loan then in his hands ; that on request said J. W. Parker returned to the Kansas Loan and Trust Company the sum of $325 ; that this sum was then in its hands, and that it was willing then, and always had been, to pay it over to said George W. Love, on the performance of the condition above mentioned, but that said condition had not been complied with or performed. The reply was a general denial, coupled with the specific denial of the agency of ,J. W. Parker, and was verified. In the course of the first trial the action was-dismissed against Parker and he is out of the case.
The case was tried the second time before a jury. The defendant objected to the introduction of any evidence under the petition, upon the ground that the petition did not state facts sufficient to constitute a cause of action against it, which objection was overruled, and excepted to by the defendant. Plaintiff then introduced his evidence, to which the loan company filed its demurrer, which demurrer was overruled. To this ruling the company excepted. The jury returned a verdict against the defendant for $399.22. A motion for a new trial was duly filed, overruled, and exceptions taken, and the case brought, here for review.
The first errór complained of in plaintiff’s brief is, that the court erred in not sustaining the demurrer of the defendant below to the evidence of the plaintiff below. It is contended by plaintiff in error that, inasmuch as the amended petition in the district court on which the case was tried alleges that the contract between Love and the Kansas Loan and Trust Company was verbal, and the evidence shows that the contract was partly verbal and partly written, the court should have sustained the demurrer and rendered judgment for the defendant below.
The evidence on the trial shows that Love made an application in writing to the Kansas Loan and Trust Company for the loan of $3,000, for a term of five years, at 6 per cent, per annum, payable semiannually, to be secured by first morgage or trust deed upon the following lands in Coffey county, Kansas : North half of northwest quarter,'and southwest quarter of northwest quarter, and north half of southwest quarter, of section 28, township 20, range 17. The company, on investigation of the farm, notified Love that it could not loan him that amount of money on the security offered, and it could not let him have the money at 6 per cent". ; that it would loan him. $2,500 on the farm at 7 per cent. ; ■ and under that arrangement Love and his wife executed their note to the Kansas Loan and Trust Company for $2,500, and a mortgage on the farm to secure the payment of the money mentioned in the note, according to the terms and conditions thereof; that this arrangement was about a month or six weeks after the written application was sent it. It seems that the matter of the loan of the money and the security therefor was first introduced by the written application, but the contract was afterward made upon a different arrangement between the parties.
From all the evidence, it is clear that the terms of the written application were not accepted, and new arrangements were afterward made that were entirely oral. But if w'e concede that the contract was partly written and partly oral, the oral arrangement was made after the written application, and was so modified by the oral agreement that it then became a question of fact for the jury to determine what part of the agreement was written and what part was oral,, and as to what the terms of the contract really were. The whole transaction was in evidence before the jury, and it was for them to determine from all the evidence what the contract and agreement between the-parties was. It was not the duty or right of the court to weigh the evidence and determine the questions of fact upon the evidence. Where there is any evidence tending to prove the facts necessary to recovery, the facts should-be submitted to the jury. We think the plaintiff below made out a prima facie case under his petition. He alleges that he entered into an oral agreement with the Kansas Loan and Trust Company to borrow $2,500 of it; that he gave his note for the-same and executed a mortgage on his farm in Coffey county to secure the payment of said loan; that the Kansas Loan and Trust company received the note and mortgage .in compliance with the terms and con-' ditions of the agreement; that defendant below paid him $2,000 on said note and mortgage, and withheld $500. We think the evidence of plaintiff -below substantially sustains the allegations of the petition. We do not think there was such a variance between the allegations in the petition and the proof as would authorize the court to sustain a demurrer to the evidence.
This loan was procured through the agency of J. W. Parker, a loan agent located at Burlington. On the trial it became a material question as to which party he acted for, whether for Love or the loan and trust company. The supreme court, in reviewing this case, says :
“The real controversy in this cáse is, whether or not the plaintiff ever authorized the retention of any portion of the loan until the frame of a proposed dwelling was up, and certain insurance was effected for the benefit of the mortgagee, and this matter depends largely upon the question of Parker’s agency. The plaintiff below contended that Parker was not his agent, and had no authority to make the statement he did in regard to the retention of a portion of the loan until certain conditions were complied with. The loan company, on the other hand, insisted that Parker was not its agent, but was the agent of the applicant for the loan ; that after the money in controversy had been in Parker’s hands for some time plaintiff requested the company to recall it, and that it held the sum of $300, which it was willing to pay upon the performance of the conditions mentioned.”
The very same question became' material on the retrial of the case in the district court which is now before this court for review. The plaintiff below made án application to J. W. Parker, a loan agent in Burlington, for a loan of $3,000 on his farm. Parker had in his possession blank applications for loans furnished by the Kansas Loan and Trust Company, one of which his clerk filled out. George W. Love, defendant in error, signed the first page of the sheets, as to which there seems to be no question, but it is claimed by Love that the matter contained on the third .page of this application was not signed by him or authorized by him to be signed. The third page is signed by Parker. After giving a description of the farm, with the improvements, and the value thereof, it contains the'following :
“He intends to use this money to build a house, improve farm, and buy stock, and in addition to this loan he will owe $500. From the character and condition of said farm and the credit of the applicant, I belie.ve that the loan of $3,000 on said farm would be well secured, and that such a loan would prove satisfactory. He intends to use part of this money to build house. You may retain $400 until frame is up.
“Dated, Burlington, September 6, 1886.— J. W. Parker.”
It was contended by plaintiff below that the third page of this sheet was not filled out at the time he sigped the application ; that Parker was not his agent and was not authorized by him to make the statement contained on this sheet. The real questions are as to the agency of Parker, whether Love ever authorized the signing of the third sheet of the application by Parker, whether the loan was made under the written application, or whether Love, after the loan was made and the money sent to Parker, authorized or directed the loan and trust company to withdraw the $300 from Parker and retain the same until the frame of the dwelling-house was up and the house insured for the benefit of the mortgagee. They were all questions of fact for the consideration and determination of the jury. The jury returned a verdict upon the testimony, and their verdict, being sustained by the trial court, is conclusive of the questions of fact. •
Complaint is made of the charge of the court to the jury. The court charged the jury:
“ 1. That the plaintiff was entitled t'o recover whatever amount of this loan the evidence shows to have been withheld from him by the defendant, less any amount which he may have agreed to pay Parker.
“2. You will ascertain from the evidence what amount, if any, the plaintiff was indebted to Parker for his services for procuring such loan. This amount you will deduct from the amount of the loan still re maining unpaid., and return a verdict for the plaintiff for the difference.
“3. You will compute interest on the amount you find due the plaintiff at the rate of 6 per cent, per annum from the date upon which the plaintiff made demand for the payment of said sum, as shown by the evidence.
“ 4. The burden of proof is upon the defendant to show by a preponderance of the evidence how much, if anything, was due from Love to Parker.
“5. A preponderance of the evidence does not necessarily mean by the greater number of witnesses, but by it is meant the degree or condition of the proof which, considered in the light of all the evidence in the case, seems to be most reasonable, the most consistent, and the most satisfactory.
“6. You are the exclusive judges of the evidence, of its weight, and of the credibility of,the witnesses.”
We do not think that there is any error in the instructions of the court to the jury. They are all applicable to the issues under the evidence on the trial in this caso. In trials by jury, it is the duty of the court to instruct the jury on questions of law which it deems applicable to the case, as appear by the pleadings and evidence, and if the instructions of the court are not as full and complete as a party desires, and do not contain all the law applicable to the case, and the party desires other or different instructions, he should.make his z'equest in writing foz' them, as provided by section 275 of the code. The record does not show that any further or different instructions were asked on the part of the defendant below. It was content simply to object and except to the instructions as given, but did not require further or different instructions to be given. The record does not anywhere show that it cozitains all the instructions given by the court to the jury in the case, and for this reason we are unable to determine whether the court erred in.the instructions given.
In the case of Davis v. McCarthy, 52 Kan. 116, Johnston, J., delivering the opinion of the court, says :
“The correctness of the charge of the court, however, is not open to inquiry, as the record does not purport’ to set forth the instructions in full as given by the court, nor is there any statement that those contained in the record were the only statements of the law upon any particular branch of the case.”
In the case of Winston v. Bwmell, 44 Kan. 370, Johnston, J., speaking for the court, says :
‘ ‘ The record fails to show that all the instructions given are preserved in the record, and therefore the court cannot say that those refused were not given, or that any error was committed by the refusal.”
The final contention of the plaintiff in error is,’that the verdict of the jury is not sustained by sufficient evidence, and is contrary to both the law and the evidence. The court cannot disturb the verdict of the jury, or the judgment of the court founded thereon, unless there is such an entire want of evidence to prove some material fact necessary to entitle the party to recover, or it is such that the party was not entitled to recover under any view that may be taken of the evidence most favorable to him, or such as to show that the jury were influenced by prejudice or passion. Where there is evidence tending to prove each material fact necessary to support the verdict, and the jury have rendered their findings thereon, this court cannot disturb the verdict, although it might have come to a different conclusion upon the whole evidence. We have carefully examined the evidence C 'Utained in the record, and find that there was some evidence tending to prove each matter, necessary to entitle the plaintiff below to recover, and the trial court having sustained it, this court cannot say that there was such lack of evidence to support the verdict as would authorize a reversal of the judgment. We find no error in the record of the trial of this case which authorizes a reversal.
The judgment of the district court is affirmed.
All the J udges concurring. | [
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The opinion of the court was delivered by
Garver, J. :•
In an action brought in'the circuit court of Shawnee county to foreclose a mortgage on certain property in the city of Topeka, the plaintiff in error, T. B. Barnes, and the defendant in error, S. M. Crokett, were made parties defendant. On a cross- petition filed therein, Crockett sought to foreclose, as a mortgage, a deed of conveyance executed by Barnes to him on property included in the plaintiff's mort•gage, alleging that said deed was executed as and for a mortgage to secure the payment of certain indebtedness by Barnes to Crockett. Upon the trial of the case, it was admitted that, at the time said deed was executed, Barnes was indebted in the sum alleged, and that it was the intention of said parties to secure the same by said conveyance. But, on the part of Barnes, it was claimed that if such indebtedness was not paid within a year said deed was to be held and taken as an absolute and unconditional conveyance to Crockett. The main question for the determination of the court was whether the deed was intended by the parties to have only the effect of a mortgage, and whether it should be foreclosed as such. The case was tried by the court without a jury, and a general finding made in favor of the defendant in error. A further finding of the court, as it appears in the journal entry, was as follows:
‘ ‘ The court does further find, that the deed set out in the answer of the defendant S. M. Crockett was given as and for security of an existing indebtedness of $516 due from the defendant T. B. Barnes to the defendant S. M. Crockett, and that there is now due from the defendant T. B. Barnes to the defendant S. M. Crockett the sum of $608, and that said amount is a lien on said premises, subject to the lien of the plaintiff herein.”
On such finding a personal money judgment was rendered against Barnes in favor of Crockett, and the premises ordered to be sold for the satisfaction thereof. The plaintiff in error assigns error upon such finding and judgment.
It is well established that a deed absolute upon its face may be shown to have been intended as a mortgage for the security of a debt. And when it appears by direct evidence or from the facts and circumstances of the transaction that such was the mutual understanding and agreement of the parties, the court will give to such instrument the effect intended. (McNamara v. Culver, 22 Kan. 661; Bennett v. Wolverton, 24 id. 284; McDonald v. Kellogg, 30 id. 170; Reeder v. Gorsuch, 55 id. 553.) The case was tried in the court below upon oral and other evidence, which was to some extent conflicting. The main facts upon which the decision turned were however undisputed, it being admitted by the plaintiff in errror, the grantor, that the deed was executed in the first instance for the purpose of security only. The principal controversy at the trial was as to the understanding and agreement of the parties with reference to the effect which should be given to the deed at the expiration of a year. The complaint now made is that the trial court erred in its conclusions from the evidence. We think there was sufficient competent evidence to sustain the decision, and under the established rule of this court the judgment of a trial' court will not under such circumstances be disturbed.
The judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
This prosecution was begun before a justice of the peace in Osage county, against Robert Mitchell, charging him, in two counts, with unlaw fully selling intoxicating liquors. Tlie case was tried by the justice with a jury, and a verdict and judgment of guilty rendered. The case was appealed by the defendant to the district court, and, at its June, 1895, term, was tried by said court with a jury, and a verdict of guilty returned, and judgment rendered thereon. A motion for a new trial was overruled, and the defendant appeals to this court for a review of the errors alleged to have been committed in the district court. At the close of the plaintiff’s evidence the county attorney was required to elect upon which sales he would rely for a conviction, and he made the following : (1) On the first sale of beer to Edw'ard Herald, on or about the middle of January, 1895 ; *(2) on the first sale of beer to Edward Herald after one Charles Plerald had come into the defendant’s place of business, on the 13th day of February, 1895.
The defendant contends that all the testimony proves the sales to have been made to ‘ ‘ Edwin Herald ” instead of to “Edward Herald.” The complaint was subscribed and sworn to by Edward Plerald. The first witness called by the state was Edward Herald. He testified that he. bought intoxicating liquors of Mitchell about the middle of January, 1895, and on the 13th day of February, 1895. He also, on cross-examination, testified as follows : “Q,ues. You have a brother named Edwin? Ans. No, sir; I am the man, myself. Q,. Well, your name is Edward? A. Yes, sir. Q,. You have no brother named Edwin? A. No, sir.” The only time Edward Herald is referred to as Edwin is in the examination of Charles Herald, who refers to him once as brother Edwin. Whether or not this is an error of the stenographer does not appear. James Cann testified that he knew Edward Herald, and was in Mitchell’s place of business with him but once, and that was in January or February, 1895, and Ms description of the transactions was similar to those described by Edward Herald. There is abundant evidence tending to prove that Mitchell sold to Edward Herald on or about January 15, 1895, and February 13, 1895.
The other error complained of is that the court erred in giving the thirteenth instruction, which reads as follows:
“There has been some testimony introduced tending to show that the defendant was not in business at the time at which it is claimed he committed the offenses charged. This, however, even if proved, would not warrant you in finding the defendant not guilty if the evidence otherwise should convince you beyond a reasonable doubt. But if it is a fact that he was not in business at that time, then such fact is a circumstance which you should consider with all the other evidence to enable you to determine his guilt or innocence of the offenses charged, and each of them.”
We see nothing wrong in this instruction. The defendant is charged with unlawfully selling intoxicating liquors. He is not charged with running a place as a nuisance. If he sold unlawfully he is guilty, whether he ran a place of business or not. The defendant contends that, as the county attorney relied for a conviction upon the second count upon a sale “ after one Charles Herald had come into the defendant’s place of business,” it must be shown that he was in business at that time, or a conviction could not be sustained, and therefore that the thirteenth instruction was wrong.
The eleventh instruction given by the court reads as follows:
“You are further instructed that the state has elected to rely for a conviction of the defendant of the charge contained’in the second count of the complaint upon, an alleged sale of beer to Edward Herald after one Charles Herald had come into the defendant’s place of business on the 18th day of February, 1895, and if you believe from the evidence, beyond a reasonable doubt, that the defendant did sell to the said Edward Herald beer on said occasion, being the first sale at said time, and that said beer was intoxicating liquor, and that the defendant at the time had no permit to sell intoxicating liquors as provided by law, and this sale took place at Osage county and state of Kansas, you will find the defendant guilty as charged in tire second count of said complaint; otherwise you shall acquit the defendant of said charge.”
The term “defendant’s place of business,” in the election of the county attorney, had relation to the first sale to Edward Herald after Charles Herald had joined the party. It was used to fix the time of the sale of February 13, 1895. Edward Pier aid had testified that he had bought and paid for beer of Mitchell, in a building which he had charge of and was running, on the north side of Main street, in Carbondale, Osage county, Kan., and, among others, that his brother Charles was present at the time he made the the purchase. Charles Herald testified that he wanted to find Jack Urey, and that he went' into Mitchell’s place, and that Urey and Steffe and Ed. were there, and that Mitchell was there, making five in all, including the witness, and that Mitchell sold them beer four times, and that Once or twice he saw his brother pay for the beer. During the introduction of the testimony the place where the liquor is alleged to have been sold was referred to repeatedly by the attorneys upon both sides, and by the witnesses, by such names as “Mitchell’s,” “Mitchell’s place of business,” and “The Iron Clad.” The defense attempted to show that Mitchell had ceased doing business there about the 5th or 6th of January, 1895. There is no contention that the place was not Mitchell’s place of business prior to that time. The term “defendant’s place of business,” as used' in the county attorney’s election, was a descriptive term, used only to establish the time of the sale. The time was “after one-Charles Herald had come.” Where? Into the place the attorneys and witnesses had 'all described as “Mitchell’s place of business;” into the building where the liquors were alleged to have been sold and drunk. The instruction complained of made no mention of defendant’s place of business as a descriptive term, but only as to the fact of whether the defendant was engaged in business at the time he is alleged to have made the unlawful sales. We think the instruction was not erroneous.
The judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
Cora B. Eggelston was engaged in the business of dealing in sewing-machines in Logan county, Ohio, and on the 20th day of July, 1889, she entered.into an agreement in writing with the Davis Sewing Machine Company for the purchase of 50 machines, to be shipped as directed by her at any time before May 1, 1889, bills to be dated October t, 1888. She was to give her promissory notes for machines, one-fourth payable in 30 days, one-fourth in 60 days, one-fourth in 90 days, and one-fourth in four months. The defendant, L. C. Gibbons, on the same sheet entered into the following contract of guaranty, for the payment of the notes given for said machines :
“For value received, I hereby guarantee the payment, in cash, the note or draft given or made for the goods above ordered, and waive presentment for payment, protest or notice of nonpayment of said note or draft. L. C. Gibbons.”
Under this contract the Davis Sewing Machine Company shipped 50 machines to Cora B. Eggelston, and she executed her several promissory notes for the same according to the agreement, amounting in the aggregate to the sum of $1,212.50. She failed to pay the full amount for the goods when due, and on October 30, 1891, suit was commenced against L. C. Gibbons upon his guaranty, before a justice of the peace, to recover the sum of $197.82, as a balance due on said machines. The case was appealed to the district court, where it was tried before the court and a jury. On the conclusion of the plaintiff’s evidence the court sustained a demurrer to its evidence, discharged the jury, and rendered a judgment against the plaintiff for costs of suit. Plaintiff excepted, and brings the case here for review.
For answer to the plaintiff’s bill of particulars, the defendant, L. O. Gibbons, denied that he guaranteed the payment of the notes and said that he was not indebted to the plaintiff in any sum whatever. On tiro trial of the case, the plaintiff introduced evidence tending to sliow the execution of the written instrument sued on, the furnishing of the machines, the execution of the notes by Oora B. Eggelston for $1,212.50, that the notes were not all paid when due, that two of the notes had been paid in full, and two had never been paid in full; that, at the request of Cora B. Eggelston, the two notes that were not paid had been renewed, and that Gibbons had consented in writing to the renewal of these two notes ; that partial payments have been made on these two notes, leaving a balance of indebtedness amounting to $197.82. The questions of fact as to whether there was anything due on the indebtedness for the sale of these machines, and as to whether Gibbons had consented in writing to the renewal of these notes, should have been submitted to the jury for their findings thereon.
The real contention of the defendant seems to have been that the renewal of the notes and extension of time for the payment, without his knowledge or consent, released him from the obligation of his contract of guaranty. But, if this were so, the evidence shows that by his letter to the company he gave his consent to the renewal of the notes and extension of time for payment thereof, and this question, under his own claim, should have been submitted to the jury.
This case will have to be reversed, and remanded to the district court for a new trial, for the errors already pointed out; but the real question that will necessarily arise on a new trial is whether the contract of guaranty is governed by the same rules that obtain in case of mere sureties. , Guaranty is a contract between two or more persons, founded upon a consideration, by which one person promises to answer for the payment of some debt or the performance of some act, in case of the failure of some person, who, in the first instance, is liable for such payment or performance — an undertaking to answer for another's liability and collateral thereto, and, in a commercial and legal sense, an undertaking by one person to be answerable for the payment of a debt or due performance of a contract or debt by another, who himself remains liable to pay or perform the same.
While a contract of surety corresponds with that of guaranty in many respects, there is a broad distinction between the liabilities of a guarantor and a mere surety. The two contracts, although entered into for the. common purpose of securing the payment of a note due at its maturity, do not create the same liability. The contract of a surety and the contract of a guarantor, although identical in purpose, are never identical in their nature, or in respect to the liability created. A surety is bound with his principal as an original promisor. He is a debtor from the beginning, and must see that the debt is paid. He is held, ordinarily, to know every default of his principal, and cannot protect himself by the mere indulgence of the creditor, or by want of notice of the default of the principal, however much such indulgence or want of notice in fact may injure him. Being bound with the principal, his obligation to pay is equally absolute. On the other hand, the contract of a guarantor is his own separate contract. It is in the nature of a warranty by him that the thing guaranteed to be done by the principal shall be done, and not merely an engagement jointly with the principal to do the thing. A guarantor, not being a joint contractor with the' principal, is not bound to do what the principal has contracted to do, like a surety, but only to answer for the consequence of the default of the principal. The original contract of his principal is-not his contract.
The obligation of the guarantor in this case was for the payment of the notes given for the purchase of the 50 sewing-machines at the time the notes severally became due, in 30, 60, 90 and 120 days, and when the principal debtor failed to pay the notes at their maturity, a right of action accrued to the sewing-machine company upon said guaranty, frnd the mere extension of time thereafter to the principal debtor to pay the notes did not affect the liability .of the guarantor in any particular. The guarantor waived notice of nonpayment and protest, and obligated himself, in case the principal debtor should fail to pay, to pay the amount of the notes himself.
The judgment of the district court is reversed, and the case remanded to the district court with instructions to set aside the judgment and grant a new trial herein.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.:
This action was brought by Ernest Heiland in the district court of Ford county against Albert Ertel and Mary A. Ertel to compel the specific performance of an alleged contract for sale and conveyance of a certain quarter-section of land situated in Ford county. The defendants demurred to the plaintiff’s petition upon the ground that the petition did not state facts suíficieníi to constitute a cause of action against them, which demurrer was sustained. The plaintiff electing to stand on his petition, judgment was rendered for defendants, and plaintiff brings the case here for review.
It is alleged in the plaintiff’s petition in the court below that on the 18th day of September, 1890, and prior thereto, Albert Ertel was the owner of the southwest quarter of section 27, in township 26, of range 21 west of the sixth principal meridian, situated in Ford county, Kansas, and Mary A. Ertel is the wife of Albert Ertel; that the Edwards County Bank, of Kinsley, was the agent of the defendants at that time for the purpose of selling said lands; that at that time defendants agreed in writing, by their certain deed and letters, to sell and convey said land to the plaintiff for the sum of $400; that the contract for the purchase and sale of this land is embodied in the following letters and a certain deed attached to plaintiff’s petition as exhibits, and form a part of his petition :
“exhibit a. '
“ Shelbina, Shelby Co., Mo., Sept. 13, 1890.
“Dear Sir : I seat myself to write you a few lines in order to let you know that we have the right of selling my own land, not .John. If you don’t believe me, go to Dodge City and see, and if you want the land you can have it for the offer made John, if you can, send us our 200 right away, for we are about to buy a piece over here, and we want to know right away so we know what to do ; if you can send me the money or not. I want to know what you are going to do about it as soon as you get this. You will find out where the deeds is what we made for August ILessman ; in the Edwards Kinsley Bank is where the deed were sent to. They said they was going to send the deeds back as soon as they laid their hands on it, so you will let me know what you are going to do about it soon — what you are going to do. Write soon and send me John’s letter, for lie says he didn’t know why you wrote to him to buy it, for he didn’t know what you wanted to write to him for. He gave me the letter you wrote him. So I want you to write as soon as you get this. So I will close for this time.
From your friend, A. Ertel. .
“To Mr. Heiland.”
“exhibit b.
“ Shelbina, Shelby Co., Mo., September 23.
‘ ‘Dear Friend Heiland: I received your letter yesterday, and was glad to hear you was well. This leaves us all well. Well, Mr. Heiland, you can go to Kinsley and see if the deeds are out there yet, and if they are you can get them and let me know, and you get all the money for the place all the better for me. I have got till the 15th of October, that is all the time I have got on the place I have in view, and if you get the deeds you can have the deeds made out for 400 and send to me, and we will sign them and then you can leave- them in the land agent’s hands out there, the one you got his name, till I get all of my money, and you pay the taxes for this year, for I am just giving the place away anyhow. I will write to Kinsley and tell them to give you the deed and tell them if they have misplaced them they can stand good for them or you get them. You can send to the Mashel Bank in Shelbiná anyway to make it safe for us both, and I want to know just what I can do by the tenth of next month, so I can fix this place out here safe. I don’t lose it of course if I wait till April for the other $200. I will have to have interest on the money, for I will have to pay interest on what I borrow; so let me know all about your arrangements, so I can make mine out here, and see about this deeds. I am out now on that piece of land $350, so you see I ain’t making much on it, so I Will close'. Hoping to hear from you soon and just what you can do, so write soon. From your friend, Albert Ertel.”
“ exhibit c.
“The grantors, Albert Ertel and Mary Ertel, his wife, of the county of Adams and state of Illinois, for and in consideration of $450 in hand paid, convey and warrant to August Hessman, of the county of Ford and state of Kansas, the following-described real estate : The southwest quarter of. section No. 27, in township No. 26 south, of range No. 21 west, situated in the county of Ford, in the state of Kansas, hereby releasing and waiving all right under and by virtue of the homestead-exemption laws of this state.
“ Dated this 19th day of March, A. D. 1890.
Albert Ertel.
, Mary Ann Ertel. •
“ Signed, sealpd and delivered in the presence of — ”
“ State of Illinois, County of Adams, ss.
“ I, George W. Cyrus, a notary public in an,d for said county and state, do hereby certify that Albert Ertel and Mary A. Ertel, his wife, who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument as having executed the same, appeared before me this day in person, and ■ acknowledged that they signed, sealed and delivered the said instrument, including the release and waiver of the right of homestead, as their free and voluntary act for the uses and purposes therein set forth.
“ Given under my hand and notarial seal, this 19th day of March, 1890.
[l. s.] George W. Cyrus, Notary Public.”
“ My commission expires September 20,1892.”
“exhibit d.
“Shelbina, Shelby Co., Mo., Sept. 23, 1890. ■
“ Dear Sir : I take my pen in hand to inform you that I have been informed that my deeds is there made out for August Hessman, and if they are you can let Ernest Heiland have them, as Hessman backed out and Heiland had bought, and he will call for them. If he don’t call for them in 10 days you will send them to Shelbina, Shelby county, Missouri. Everything is there, deeds and tax receipt, too ; so please let me know all about them as soon as you can, so I remain, yours . truly. Mr. Albert Ertel.
“ It has been 10 or 11 years since I was out there. Plow is business out there, Mr. Edwards?”
“exhibit e.
“Shelbina, Shelby Co., Mo., Sept. 27, 1890.
“My Dear Sir : I seat myself to ask you if no one Has n’t got my deeds. Please send them'to me unless they will give $500 for them. If any one will leave $500 is there and let me know I will make a deed to that effect. If you have my deeds please send them all to me to (Shelbina, Shelby coiinty, Mo.), as soon as you get this. If I can’t get that I will keep it a year longer yet. I received a letter last night saying they would leave $400 in the bank, but I do n’t understand it; it seems as if Joseph Holtfrench is the way it was wrote, but the letter come from Camp Point, 111., and it stated that we could send my contract to the Edwards County Bank. If there is such a man saying anything, tell him he can have it for $500 cash. If you have the deeds I want them soon, or I will see what some one is doing with them all this time ; so let me know soon as you will get this letter. From your friend,
Yours respectfully, Mr. Albert Ertel,
Shelbina, Shelby county, Mo.
“Please send me my papers soon.”
“EXHIBIT E.
“Ernest Heiland has deposited with the Edwards County Bank, Kinsley, Kan.', September 27, 1890, $200. Payment of Ertel land.
Fred I. Boies, Assistant Cashier.”
‘ ‘ EXHIBIT G.
“Ernest Heiland has deposited-with the'Edwards County Bank, Kinsley, Kan., October 6, 1890, $200. Payment on Ertel land.
Fred L Boies, Assistant Cashier.”
The petition alleges that the Bank of Edwards County, at Kinsley, Kan., was the agent of the defendants for the purpose of selling their land in Ford county, but alleges that the sale and purchase was made through the correspondence between Albert Ertel and Heiland, and was contained in the letters written by Heiland,'and all contract or right claimed to the land is contained in the deed and letters.
It appears from the petition and exhibits that in March, 1890, Albert Ertel and his wife, Mary A. Ertel, at Adams county, in the state of Illinois, executed a deed for the conveyance of this land to one August Hessman, and, in order to carry out the sale of this land, they had made to him a deed and sent it to the Edwards County Bank, of Kinsley, Kan., to completo the sale, but when the deed arrived at Kinsley Hess- man refused, for some cause, to complete the sale, and this deed remained in the bank, but it can form no part of the alleged sale and purchase of this land between Heiland and Ertel. This deed was intended to convey the land to Plessman, and no other person than the grantors and grantee named in this deed are interested therein. When Hessman refused to carry out the terms of his purchase the deed belonged to Ertel, and was of no force or effect'as a conveyance or an agreement to convey. As it had never been delivered to Hessman it should have been returned by the bank to Ertel, so that he could have destroyed it as an in-completed transaction. The plaintiff in his petition attempts to explain the several exhibits, and what each one refers to, and says :
“That ‘Exhibit A’ is an answer to a letter written to John Ertel; that, after receiving the letter marked ‘Exhibit A,’ and prior to September 20, 1890, he, plaintiff, wrote a letter to defendants, in which he accepted the offer of said lands aforesaid at the price of $400, and informed him that he would deposit the money with the defendants’ agent, the Edwards County Bank, at Kinsley, Kan., and also agreed in said letter that the plaintiff would deposit $200 on or before October 1, 1890, and the remaining $200 on or before the 1st day of April, 1891, in answer to which letter the plaintiff received the letter marked ‘Exhibit B’; that after receiving letter marked ‘Exhibit B,’ and on the 27th day of September, 1890, he, the plaintiff, deposited the sum of $200 in the Edwards County Bank aforesaid, in part payment of said land, and wrote the defendants to that effect, and informed them that he, plaintiff, would deposit the balance in a short time, which was accordingly deposited October 6, 1890, and requested them to send the deed at' once, to which he never received reply.”
The defendants at no time nor in any of the letters over assented to the deposit of any money in the Ed wards County Bank, at Kinsley, Kan., for the sale of the land. The letter marked “Exhibit A,” dated September 13, 1890, reads:
“ Sin: You can have it for the offer made John, if you can send us our 200 right away, for we are about to buy a piece over here, and we want to know right away so we know what to do ; if you can send me the money or not. I want to know what you are going to do about it as soon as you get this.”
In the letter marked “Exhibit B,” dated September 23, 1890 :
' “You can have the deeds made out for 400 and send to me and we will sign them and then you can leave them in the land agent’s hands out there, the one you got his name, till I get all of my money, and you pay the taxes for this year. . . . You can send to the Mashel Bank, in Shelbina, any way to make it safe for us both, and I want to know just why I Can do by the 30th of next month, so I can fix this place out here safe.”
Plaintiff’s petition alleges that he accepted the offer of said land aforesaid at the price of $400, and notified him that he would deposit the money with the Edwards County Bank, at Kinsley, Kan., but the proposition was not for the deposit of the money in the bank at Kinsley, Kan., but says: “ If you can, send us our 200 right away,” and states the reason why he will sell on these conditions, because he was then in Shelby county, Missouri, and had bargained for a tract of land in that county and wanted tne money sent to him there ato he could carry out his contract for the purchase he had made there. ■ The correspondence all goes to show that the parties at no time agreed upon the same conditions, and the correspondence did not make a valid contract, such as was capable of being enforced in a court of equity. A universal rule of the law of contracts as well as the law of sales is, that there is no binding contract, and hence no sale, unless the parties have mutually assented to the same contract. Until there is a clearly defined offer on the one hand and an acceptance on the other of the very terms offered there cannot be a sale. Where an executory contract consists of mutual promises both parties must be bound or it will be void for want of mutuality.
In the case of Lyman v. Robinson, 14 Allen, 254, the judge delivering the opinion of the court says: “ That care should always be taken not to construe as an agreement letters which the parties intended only as a preliminary negotiation.” An agreement, to be enforced by a decree for specific performance, must be mutual in its character and certain in its terms. Ernest Heiland was not liable for the perforanazzce of any contract on his part with Albert Ertel and Mary A. Ertel. He had incurred zzo binding obligation on his part, so that the contract could be enforced against him if he refused to take the land and pay the $400. While he was zzot liable himself, and the same could not be enforced against him, there is no reciprocity in allowing him to enforce it against Ertel. We think the parties never came to a mutual understanding in this case, that there was no binding obligation on the part of either of the parties, and that the correspondezzce did not constitute such a contract as was capable of being enforced by specific perforan anee, and that the'demurrer was properly sustained.
The judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
The plaintiffs in error, Greer, Mills. & Co., who were plaintiffs below, together with the defendants in error, compose a voluntary association, formed at Kansas City, Kan., and designated as the Kansas City Live Stock Exchange. The plaintiffs were charged, tried by the board of directors, and found guilty of violating the rules of the exchange with reference to the commission charges to be made for the purchase of cattle. As penalties therefor, fines were assessed against them aggregating the sum of $1,000. By the rules of the association, a member failing to pay a fine assessed against him within three days may be suspended from membership until the same is paid. This action was brought by the plaintiffs, for an injunction to restain the defendants from enforcing the payment of said fines by suspending them from membership in said association. Upon the trial in the district court of Wyandotte county, an injunction was refused, and the case is now here for review upon the pleadings, the findings of fact and conclusions of law, and the judgment. The evidence is not included in the record. Among the findings of the court are the following:
“2. The Kansas City Live Stock Exchange is an unincorporated voluntary association, composed of individuals, partnerships and corporations doing business as live-stock commission merchants at the Kansas City stock-yards, and was organized for the purpose, as expressed in -its articles of association, of ‘ maintaining a business exchange, not for pecuniary profit or gain, nor for the transaction of business, but to promote and protect all interests connected with the buying and selling of live stock at the Kansas City stock-yards, and to promulgate and enforce amongst the members correct and high moral principles in the transaction of business*.’
"3. Said exchange issues certificates of membership, has adopted a seal, and permits its certificates of membership to be assigned and transferred. Its membership numbers at this time about 300, and includes nearly all the persons, firms and corporations doing business as live-stock commission merchants at the Kansas City stock-yards. It has no part in the profit of the business of buying and selling live stock, and the sale or purchase of such live stock is not the transaction of the exchange, but is the individual transaction of each member, firm or corporation making the particular purchase or sale. It is maintained by membership fees, dockage fees, and assessments on its members when needed.”
”4. The membership fee in said exchange at this time, as fixed by the exchange, is $1,000, and each member of a partnership, or stockholder in a corporation, is required to take .out certificates of membership, to entitle such partnership or corporation to the privileges of such exchange, provided that the total number of such members of a commission firm or stockholders in a corporation holding membership need not exceed five. Such certificate of membership entitles the holder to all the privileges of the exchange, and to do business with each and all the other members of the exchange, and to the use and service of the dockage system and dockers provided by said exchange in said yards, and such membership, rights and privileges are valuable in and about the business of live-stock commission merchants at said yards, and if the plaintiffs are suspended or expelled from membership in said exchange the same would result in a pecuniary loss to them of more than $2,000.
“5. To carry out the objects and purposes of its organization said exchange has adopted rules, by-laws and regulations for the government of the exchange and discipline of its members and for the conduct of business by its members at said yards, which, together with its articles of association, are printed in book or pamphlet form, and distributed among all the members of said exchange, and upon becoming a member of said exchange, and as a condition to receiving a certificate of membership therein* each member is required to subscribe to said articles of association, bylaws, rules, and regulations, for which purpose a book is kept in the office of the secretary, in which are copied the articles of association, rules, and by-law;s, in the order named, to which is signed the name of each member, either by himself or some authorized agent, and each of said plaintiffs, J. E. Greer and Frank O. Mills, subscribed to said articles of associa tion, rules, and by-laws, tbe same as other members, at the time of joining said exchange.”
“7. Rules were adopted by said exchange, and were in force at the time plaintiffs became members thereof, including those above set out, except an amendment to section 5, rule 9, as hereinafter stated; and plaintiffs signed and agreed to faithfully observe and be bound by said rules. After the plaintiffs became members thereof, to wit, March 31, 1892, an amendment to section 5, rule 9, increasing the minimum charge for commissions, was made, and the manager for the plaintiffs was present and voted for said change.”
“9. When a member of the exchange is suspended or expelled, or when one who is not a member attempts to do business as a live-stock commission merchant at said stock-yards, the board of directors of said exchange gives notice by posting on a bulletin-board, in a conspicuous place in the exchange building, requesting that no members of the exchange do business with such non-member, and the services of inspectors or dockers in the yards, being employees of the exchange, are also refused to such non-member or suspended or expelled members.”
Rule 9, adopted and enforced by the association, contains the following provisions :
“ Section 1. The commissions charged by members of this association for selling live stock shall not be less than the following-named rates :
“Sec. 2. Six dollars per car-load, for single-deck carloads of hogs or sheep, and $10 per car-load for double-deck car-loads of the same : Provided, Members of this exchange may, aftár charging commissions as above , provided, pay a regular sheep salesman on these yards a sum of money contingent on number of sheep sold; and said sheep salesman may be in the employ of other members of the exchange.
“ Sec. 3. Fifty cents per head for cattle of all ages. In car-loads of 24 or more, not more than $12 per carload ; $10 per single-deck car-load, and $18 per doubiedeck car-load, of veal calves.
“ Sec. 4. Fifty cents per head for cattle, and 25 cents per head for calves, and 10 cents per head for hogs and sheep in mixed car-loads — but not to exceed $12 per car-load. Fifty cents per head for cattle and 25 cents per head for calves driven into the yards, and 10 cents per head for hogs and sheep, for 60 head or less ; more than that number shall be charged for at car-load rates.
“ Sec. 5. Fifty cents per head for buying cattle for stockers or feeders, provided, such charges shall not exceed $12 per car-load; $6 per single-deck car-load for buying sheep, and $10 per double-deck car-load. All purchases paid for by a commission house or shipping clearance made by same shall be deemed a purchase and charged for as above provided.
“Sec. 6. Not less than $4 per single-deck and $5 per double-deck car-load for buying live hogs, and not less than 3 cents per head for hogs bought by the head.”
“ Sec. 11. Any member of this association, or firm or corporation represented herein, sending or causing to be sent a prepaid telegram or telephone message quoting the markets, giving information as to the condition of the same, shall be fined not less than $100 nor more than $500. If said fine is not paid within three days, said firm or member shall be suspended until said finé is paid : Provided, however, That prepaid message may be sent to shippers quoting ac-' tual sales of their stock on the day made ; also to j)arties desiring to make purchases on this market.
“Sec. 12. Any member of this exchange, or firm or corporation in which he may be a partner, violating any of the provisions of this rule, shall be fined not less than $500 nor more than $1,000 for the first offense, and if said fine be not paid within three days said member or firm may be suspended from membership until same is paid. For a second offense said member or firm may be expelled from membership in the exchange.”
■The particular rule which plaintiffs were charged with violating is that contained in above section 5, the complaint stating thatj through their agent, they bought certain cattle for feeders, for which- service a commission was charged that was less than the minimum charges established by said rule. Various matters are urged by counsel for plaintiffs as reasons why they should have been granted the injunction prayed for, the principal ones being that the facts found by the court show that the charges made against them, and the trial thereof by the board of directors, were ncrb made and had in good faith ; that the rules of the exchange relating to the trial which were enforced against the plaintiffs are unreasonable and unjust; that the rule fixing the minimum commission charges is unreasonable, was enacted in aid of an unlawful combination in restraint of trade, is illegal and void; and, therefore, that the defendants should not be permitted to deprive the plaintiffs of their membership because of their failure to observe an illegal and void rule. On the part of the defendants, it is conte'nded that the plaintiffs having had a fair -and regular trial in accordance with the rulés and regulations of the exchange, the result thereof is not subject to review by the courts; that such membership is not a property right that a court of equity will protect by injunction; that the action, even if maintainable, is prematurely brought, for the reason that no attempt has been made to enforce the payment of the fine by making an order of suspension ; and that, if the rules and regulations which the plaintiffs are charged with violating are illegal and void, because against public policy and in violation of the laws of the state, a court of equity will not exercise its jurisdiction to aid them in retaining membership in such illegal organization.
Able and elaborate briefs have been filed by cofin sel for plaintiffs and defendants, respectively,- upon the several questions raised in this case. In the view, however, which we take, we do not deem it necessary to consider all of them, and shall content ourselves with a brief statement of the grounds upon which we think the judgment of the court below must be affirmed. It may be conceded that a membership in the Kansas City Live Stock Exchange is such a property right as will, in a proper case, be protected by a court of equity; and that, if equity would aid the plaintiffs in maintaining their right of membership, there has been such a threat and attempt to interfere therewith by the defendants as justifies the commencement .of an action to restrain the threatened suspension. It may also be conceded that no society or association has a right to enforce against its members any rule or regulation which is unreasonable, or which is contrary to public policy or in violation of the law. But such considerations, in our opinion, fall short of the real questions involved in this case. It is admitted by the plaintiffs, and so alleged in their petition, that rule 9 was adopted for the purpose of effecting an illegal combination of the persons who were engaged in the live-stock commission business at Kansas City, and is in restraint of trade. The petition states, “that said rules above set out, to wit, rule 16, and sections 5,12 and 15 of rule 9, are unreasonable, in aid of an unlawful combination, in restraint of trade, against public policy, and repugnant to and in violation of law.”
By the seventh finding of facts, it appears that “ the plaintiffs signed and agreed to faithfully observe and be bound by said rules ” ; and, after they had become members, and on March 31,1892, they voted to amend said section 5 by increasing the minimum commission ■charges.
■ The articles of association and the rules and by-laws must be taken as a whole, in order to determine the character of this exchange. It matters not how meritorious and praiseworthy its declared objects maybe ; the law cannot be evaded by colorable pretenses. It looks at the substance of things, whatever disguise may be assumed to conceal it. It is impossible to read the articles, of association and by-laws of this exchange without being convinced of the fact that the principal inducement is, not “ to promulgate and enforce among tjie members correct and high moral principles in the transaction of-business,” as stated in the articles, but that it is, rather, to prevent competition along certain lines among those engaged in the live-stock commission business, and to maintain uniform minimum prices for their services. Thus, by section 11 of rule 9, a commission man or firm is prohibited, under penalty of á fine of not' less than $500 nor more than $1,000, from sending a prepaid telegram giving information as to the condition of the markets to a farmer or stock-man contemplating the sale or shipment of stock. Another rule prohibits members from doing business with one not a member who attempts to transact the live-stock commission business at the Kansas City stock-yards. These, and other rules of a like character, are, apparently, the main, features of this organization, which make a membership therein so valuable. The exchange makes no pretense of giving direct aid to its members in securing business, but leaves that to their own individual efforts. Its profitableness, however, is no doubt greatly augmented by reason of the fixing of charges by a combination which is powerful enough to monopolize such services. ^ An organization having such objects is an unlawful combination which is expressly prohibited by law. (Laws 1889, ch. 257.)
Combinations and associations which are entered into for an illegal restraint of trade are usually organized with great skill, and with a special view to covering up the- unlawful purposes by 'professed designs and objects which are lawful; hence,-the recognized difficulties which obstruct the enforcement of all general laws against unlawful trusts and combines. This fact, doubtless, induced the legislature of this state to enact a law which was specially designed to prevent and suppress unlawful combinations of persons engaged in buying or selling live stock for others on commission. (Laws 1891, ch. 158.) That act not only makes it unlawful for two or more persons or corporations engaged in such business to enter into any combination for the purpose of regulating the charges to be demanded, but' it specially provides : “ It shall be unlawful for any person or persons, or corporation or corporations, doing business in this state, to be or become a member of any society, association or corporation whose by-laws provide for and fix the minimum commission for the selling of live stock for others, or whose by-laws prohibit its members from purchasing live stock from persons who are not members of such society, association, or corporation,” and any one violating its provisions is deemed guilty of a misdemeanor, and subject to severe penalties. The plaintiffs invoke the act to invalidate and nullify the by-laws which they are charged with violating; while the defendants contend that its legal effect is to put the plaintiffs in the position of asking the courts to maintain them in a membership which is a direct _ violation of the law.
The association of the persons composing the exchange is a voluntary one. Their mutual rights, of whatever nature, are contractual. Any right which. the plaintiffs may have to membership is based upon, and grows out of, the contract entered into between them and the exchange at the time they became members and signed the articles of association: The right to the relief which they ask against the threatened action of their associates is based upon the recognition of this contract; and granting the relief would be the solemn declaration of the law that they must not be deprived of its privileges and benefits. Not only is the entering into such contract relations expressly prohibited by the statute, but the simple act of continuing the relationship is made a misdemeanor, subject to severe penalties. The contract of. membership is, therefore, illegal and void, and no right can grow out of it. .Hence, it comes to this: A court of equity is asked to assist the plaintiffs in carrying out 'an illegal contract, so that they may enjoy its fruits, and to aid them in maintaining a position as members of an organization, which can be done only by a continual violation of the law. This will not be done. The law will not allow any effect to an illegal contract either by enforcing. it or by aiding one to secure benefits accruing from it. Whenever it is necessary for a plaintiff to establish or rely upon an illegal contract as a basis of his right to relief, the courts will not stop to inquire into the merits of the controversy, but will at once refuse to exercise their jurisdiction in his behalf. The general rule is thus stated by Mr. Pomeroy:
“Whenever a contract or other transaction is illegal, and the parties thereto are, in cqntemplation of law, in pari delicto, it is a well-settled rule, subject only to a few special exceptions, depending upon other considerations of policy, that a court of equity will not aid a paxticeps criminis, either by enforcing the contract or obligation while it is yet executory, or by relieving him against it by setting it aside, or by enabling him to recover the title to property which he has parted with by its means. The principle is thus applied in the same manner when the illegality is merely a malum prohibitum, being in contravention to some positive statute, and when it is a malum in se, as being contrary to public policy or to good morals.” ( Pom. Eq. Jur. §402.)
See, also, Mellison v. Allen, 30 Kan. 382 ; Water Supply Co. v. City of Potwin, 43 id. 404 ; Sheldon v. Pruessner, 52 id. 579 ; Yount v. Denning, 52 id. 629 ; Buchtella <v. StepaneJi, 53 id. 373 ; Woodworth v. Bennett, 43 N. Y. 273; Watson v. Fletcher, 7 Gratt. 1; Griffin v. Piper, 55 Ill. App. 213 ;. Watson v. Murray, 23 N. J. Eq. 257 ; Spalding v. Preston, 21 Vt. 9 ; Abbe v. Marr, 14 Cal. 210 ; Nestor v. Brewing Co., 101 Pa. St. 474; Rigby v. Connol, 14 Ch. Div. 482 ; Swaine v. Wilson, 24 Q,. B. Div. 252 ; More v. Bennett, 140 Ill. 69 ; Salt Co. v. Guthrie, 35 Ohio St. 666; Coppell v. Hall, 7 Wall. 542; Armstrong v. Tolor, 11 Wheat. 258 ; Roby v. West, 4 N. H. 285 ; Dillon v. Allen, 46 Iowa, 299.
While the above are, for the most part, cases in which the plaintiff sought to recover the fruits and benefits derived from an illegal contract, yet they all involve an application of the same principle. The mere fact that the courts in very few instances have been appealed to to aid a party in carrying out an illegal contract, or to enable him to enjoy future benefits to be derived therefrom, and that parties to such contracts, with few exceptions, have ventured into court only for the purpose of recovering something already earned, or damages previously sustained, is strong evidence of what the opinion of the legal profession has been upon this question. Our attention has been called to no case, and we know of none, in which a court of equity directed the specific perform anee of an executory contract which was tainted with illegality, or in which the parties to it were granted any assistance in carrying it out. Rigby v. Connol, supra, was an action similar to the one at bar, in which the plaintiff sought to restrain the trustees of a trades-union from excluding him from membership therein because of his violation of a rule which, he alleged, was illegal and void. It was held that, as the trades-union was an unlawful association, for the reason that some of its principal objects were in restraint of trade, the court would not aid the plaintiff in maintaining his membership therein. In the opinion it is said:
“It appears, to me that it is clearly an unlawful association ; it is an association by which men are not only restrained in trade, but they are bound to do certain acts under a penalty. Take the very act for which this man was expelled. He was expelled because he bound his son apprentice in a shop where the workmen did not belong to this union, but to another union. That is the allegation. And the rule is that any man binding his son in a ‘foul shop,’ which, as it has been explained to me, includes a shop of this description, where the members employed belong to another union and not to this union, shall be fined £5, and so on, according to the rules. I see a great number of other stipulations of a character which are not only a restraintin trade, but so much in restraint of trade, limiting the subject of it, that I have no doubt before this act [legalizing certain trades-unions] was passed these rules would have been altogether illegal; and if nothing in the act, therefore, will assist the plaintiff, he must still be in the position of a member of an illegal association coming to a court of justice to assist him to enforce his rights under that illegal association.”
In Spalding v. Preston, supra, Redfield, J., said:
‘ ‘ One who sets himself deliberately at work to con travene the fundamental laws of civil governments — that is, the security of life, liberty, or property — forfeits his own right to protection in those respects wherein he was studying to infringe the rights of others. ... If any member of the body politic, instead of putting his property to honest uses, convert it into an engine to injure the life, liberty, health, morals, peace or property of others, he thereby forfeits all right to the protection of his bona fide interest in such property before it was put to that use.”
In Coppell v. Hall, supra, considering the principle involved in such cases, it is said : '
“In such cases there can be no waiver. The defense is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of- its administration. It will not enforce what it had forbidden and denounced. The maxim, ex dolo malo non oritur actio, is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. . . . Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is, that the law will not lend support to a claim founded upon its violation.”
In Roby v. West, supra, the following forcible language is used: .
“The principle that no court shall aid men who found their cause of action upon illegal acts, is not only well settled, but a most salutary principle. It is fit and proper that those- who make claims which rest upon violations of the law should have no right to be assisted by a court of justice. It is fit and proper that courts should refuse their aid to those who seek to obtain the fruits of an unlawful bargain. It is fit and proper, when parties come into court to litigate claims founded upon illegal contracts, in relation to which they stand in pari delicto, that they should be reviewed and treated in those transactions as outlaws Who have forfeited the protection of the law; and it is fit and proper that they should be left to adjust their unlawful concerns as they can, and-enjoy the fruits of their transgressions of the law as they may.”
The general rule is thus summarized by the court, in the syllabus in Buchtella v. Stepanek, 53 Kan. 373 :
“ Where parties purposely engage with equal guilt in illegal, immoral or fraudulent dealings, the court leaves them where it finds them, and will not lend its aid to either party.”
A very plausible and ingenious argument is made by the able counsel for plaintiffs, to the effect that a denial of the relief prayed for will keep the defendants in a position where they can enforce their illegal by-laws against members, and thus perpetuate their existence as an unlawful organization; whereas, the granting of the relief would be a virtual wiping out of such illegal by-laws, and the exchange, with its members, would be left to conduct its business under valid and lawful rules and regulations. It is contended that the plaintiffs should be aided in resisting the enforcement of the illegal rules, and the defendants given to understand that such regulations and agreements will not be recognized nor upheld by the courts. The argument is presented with much force and ability; but, in our opinion, it ignores the vital facts in this case and calls for an abandonment of well-settled'rules of law. We must not lose sight of the nature and object of this action. The plaintiffs’ purpose is not to wipe out illegal by-laws. It is to-prevent the wiping out of an unlawful membership. They seek to avoid the enforcement as against them of rules which, as alleged in their petition, they have been zealous and faithful in living up to and m en forcing against others. If retained as members, they would no doubt, in the future as in the past, not deny themselves the opportunity thus afforded to acquire illegal gains.
When an association of this character comes before a court of equity, it will not stop to weed out the illegal growths which have fastened themselves upon it, and endeavor to fashion out of it something that is entitled to judicial recognition. It is clear that any order or judgment, whether for the plaintiffs or for the defendants, which the court could render in this case, would not eliminate from the exchange the obnoxious by-laws. So far as this action is concerned, they will remain without change. The organization itself will continue with unimpaired ability to violate the law, and with impunity to trample upon the public interests. A membership therein, after the judgment of this court is rendered, will be as much within the prohibition of the statute as it was before this action was commenced. These parties have, by their voluntary acts, created an organization which the law condemns, and one with which no man can be connected without being answerable to the laws of the state as a criminal. Clearly the law will not aid them under the circumstances. A court of equity takes them as it finds them, and as it finds them it leaves them, undeserving .of aid and assistance in a matter which inheres in, or grows out of, their illegal contracts.
These principles, which in our opinion are of vital and controlling importance in this case, require an affirmance of the judgment.
All the Judges concurring. | [
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Per Curiam:
The evidence shows that the appellant’s agent was informed of the purpose for which the Rose-dale Cars were needed and demanded. This purpose was to fill the Hargis contract. A breach of the Hargis contract through inability to get cars necessarily entailed certain specific damages. The general market price rule does not apply in such a case, and the appellant is liable for the damages necessarily contemplated and actually suffered.
The specific findings of the jury are conclusive that the sales of the Hargis corn at Coffeyville were made at a profit over the Hargis price, consequently no damages should have been recovered on that account. The appellant, however, is not to be credited with this profit. The appellant had no concern with what became of the corn it did not haul to Rosedale.
There is no proof whatever that the particular corn which went to Coffeyville did so because of a refusal to furnish cars to take that particular corn to Galveston. No specific orders for Galveston cars were proved, and the jury answered specifically that they knew of none. Consequently no damages should have been allowed on that account.
In order to make use of the cars furnished them the appellees were obliged to do what the appellant should have done, and it is held that the appellant impliedly authorized the necessary expenditure.
The judgment is modified to include the two amounts paid Hargis, and the car-repair bill and- interest. As modified, the judgment is affirmed. The costs are divided. | [
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The opinion of the court was delivered by
Burch, J.:
Wiley and Knight agreed to exchange farms upon certain terms. Wiley’s farm lies in Iowa, ■and that of Knight in Lyon county, Kansas. Knight went to Iowa to see the Wiley land, and the contract was signed there. Knight signed personally, and Wiley by an agent authorized to do so, but not in writing. The contract provided that each party was to furnish ■an abstract of title to his land showing merchantable title, and that the trade should be consummated on or before April 1, 1908, at the Emporia State Bank in Emporia. Wiley agreed to convey by a good and sufficient warranty deed. Knight held a bond for a deed to his land, which he agreed to assign.
On April 1 Wiley appeared at the appointed place and waited throughout the day for Knight, who did not appear. Subsequently Wiley brought suit for specific performance against Knight and the obligor in the .bond for a deed, alleging compliance with all conditions, precedent on his part and readiness and ability to perform. Knight answered by a general denial and by pleading several defenses. He alleged that Wiley’s agent was not duly authorized to sign the contract, that Wiley misrepresented the character and quantity of his land, and that the contract was signed by Knight while mentally incapacitated by intoxication purposely induced by Wiley’s agent.
At the trial it appeared that on April 1 Wiley had with him at thé bank an abstract which disclosed that title was to come to him from the devisee and heirs of L. Schoonover, deceased, whose estate had not been finally settled. Also, the abstract showed no patent from the United States for one portion of the land, although the tract had been duly entered at the proper land office by John S. Weaver in 1851, and had passed ' by proper mesne conveyance from him to Schoonover. It further appeared that on April 1 Wiley had in the bank a special warranty deed from the devisee and heirs of Schoonover, blank as to the grantee, and that the bank had written authority from the grantors to fill the blank with the name of Wiley or Wiley’s vendee. Wiley testified that he was ready and willing to have his own name inserted in the Schoonover deed and then execute a warranty deed to Knight. In all other respects a case for specific performance was duly established as of April 1. The proof, however, went further, in that the abstract showed the final settlement of the Schoonover estáte, the required patent and title in Wiley, all before the suit was commenced.
A demurrer to the plaintiff’s evidence was interposed, which the court took under consideration while the trial proceeded. The defenses to the action, except the want of written authority for Wiley’s agent, were fairly disproved, and at the close of the case the court reverted to the demurrer to the plaintiff’s evidence and sustained it. Judgment was rendered for the defendants, and Wiley appeals.
The judgment is erroneous. The contract was signed by the party to be charged, which satisfies the statute of frauds. (Becker v. Mason, 30 Kan. 697; Guthrie v. Anderson, 47 Kan. 383, 386; Guthrie v. Anderson, 49 Kan. 416, 419.) It was not essential that the contract should be capable of enforcement against both parties at the time it was concluded (Zelleken v. Lynch, 80 Kan. 746), and want of mutuality because both parties did not sign is not available as a defense to a suit for specific performance brought against the party who did sign. (Guthrie v. Anderson, 47 Kan. 383, 386; Schneider v. Anderson, 75 Kan. 11, 18.) It is likely, although the point is not decided, that on April 1 the abstract failed to show a marketable title to the Iowa land because,, under the circumstances, it still might be subject to appropriation for the payment of the deceased owner’s debts. (Chauncey v. Leominster, 172 Mass. 340.) The omission to record and abstract the patent was inconsequential, and the special form of the Schoonover deed was inconsequential, because the appellant stood ready to comply with the contract by giving his own general warranty deed. But the condition of the' abstract on April 1 is not now material. By failing to keep his appointment Knight waived performance on that day. (Painter v. Fletcher, 81 Kan. 195.) Time was not of the essence of the contract, and the appointment of a day to complete the purchase meant no more than that it should be completed within a reasonable time. (Maupin, Mark. Tit. Real Estate, p. 749.) The appellant could complete the abstract, and even his title, at. any time before decree, if his adversary suffered no-special injury by the delay, and none is claimed. (Bell v. Sternberg, 53 Kan. 571; McNutt v. Nellans, 82 Kan. 424, 426.)
On the trial the appellant was denied leave to amend', his petition to conform to proof which it is' claimed tended to show that Knight had partially performed on his side. The materiality of the evidence to other issues in the case was not affected by the ruling, and since the appellant does not need to rely upon part performance to take the case out of the statute of frauds the error, if any was committed, is harmless now.
The parties have had what the law intends to secure to them, a full trial, and there is no occasion for another trial. Therefore the judgment is reversed and the cause is remanded with direction to overrule the demurrer to the plaintiff’s evidence, and to decide the case upon all the evidence received, applying the rules of law recognized by this opinion. | [
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Per Curiam:
The appeal must be dismissed. The item of clerk’s fees is clearly costs and can not be considered in arriving at the amount necessary to jurisdiction. The same is true of the fees for mileage and attendance of the expert witnesses. If the remaining sum in controversy be costs it can not be considered. If it be something other than costs it is less than $100. | [
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Per Curiam:
The plaintiff was injured while-at work in a mine by the falling of a loose rock from an entry. The jury awarded him damages in the sum of $1000. The defendant, who is the mine owner, appeals.
• Every claim of error involves the same proposition of law. The demurrer to the petition, the demurrer to the evidence, the instructions requested and refused, the objection to the instructions given and the motion for judgment on the findings are predicated upon the theory that the plaintiff could not recover without alleging and proving that the defendant either, had actual notice that the rock in the roof of the entry was loose or that it was in that condition for a sufficient length of time to charge the defendant with constructive notice thereof. If this were an action to recover for injuries caused by the omission of a common-law duty of the master the defendant’s theory would apply; but the action is based upon a duty which the statute imposes upon the defendant to keep careful watch to “see that as the miners advance their excavations all loose .coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways.” (Laws 1883, ch. 117, § 6, Gen. Stat. 1909, § 4987.)
In Schwarzschild v. Weeks, 72 Kan. 190, 198, the following quotation was employed: “ ‘The employer is chargeable with knowledge of whatever it is his duty to find out and know.’ 5 Thomp. Com. L. of Neg. § 5404.” In Madison v. Clippinger, 74 Kan. 700, it was said:
“That the violation of a duty expressly imposed by a statute upon an owner or operator of machinery dangerous to employees or to the public is negligence which prima facie imposes liability for damages resulting therefrom is well-settled law.” (p. 703.)
The defendant, therefore, can not escape liability for its failure to perform the duty on the ground that it did not know that the rock was likely to fall; nor is it any answer to say that because the plaintiff (who was a miner of long experience) testified that he had not noticed that the particular rock which fell upon him was loose before it fell he was guilty of contributory negligence, or that for the same reason the defendant could not have known the condition of the entry. No duty was imposed upon the plaintiff to keep careful watch to see that loose hock did not fall upon him. He had the right to rely upon the performance by the master of the statutory duty to inspect and keep the roofs of the entries propped to prevent stone from falling. The theory of the defendant that it was only bound to use ordinary diligence to furnish a safe place for its employees to work would deprive the statute of all force. It is not to be assumed that the legislature intended merely to declare that to be the duty of the master ■vvhich the common law already imposed upon him.
The jury found that the place from which the rock fell upon the plaintiff had been measured and accepted by the defendant before the injury occurred, and that the plaintiff, while in the performance of his duties, was obliged to pass under the roof where the rock fell upon and injured him. The plaintiff testified that some time before the accident occurred he called the attention of the foreman to the fact that the roof in this entry needed props.
“ ‘The failure of the boss to perform the duties designated in the statute is, under the statute, the negligence of the master.’ Linton Coal and Mining Company v. Persons, 11 Ind. App. 264, 275.” (Schmalstieg v. Coal Co., 65 Kan. 753, 761.)
(See, also, Barrett v. Dessy, 78 Kan. 642.)
The evidence supports the findings of the jury, no error appears in the instructions, and the judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The defendant conducts a manufacturing establishment in which the plaintiff was employed. The plaintiff’s duties required him to go to an elevator shaft guarded only by a two-by-four-inch wooden bar placed three and one-half feet from the floor. The floor was an inclined one, was slippery with grease, and the plaintiff’s shoes were slippery with grease. The plaintiff acted with haste, slipped on the floor, fell so that his head protruded into the elevator shaft, and was injured by a descending elevator.' He recovered damages under the factory act, section 1 of which reads as follows:
“Every person owning or operating any manufacturing establishment which may contain any elevator, hoisting shaft or well hole shall cause the same to be properly and substantially inclosed or secured, in order to protect the lives or limbs of those employed in such establishment.” (Laws 1903, ch. 356, § 1, Gen. Stat. 1909, § 4676.)
The defendant appeals, and argues that the want of a safeguard was not the proximate cause of the injury.
Properly speaking, the common-law terms, “proximate cause,” “remote cause,” “efficient cause” and the like, are unnecessary in a discussion of a statutory action prosecuted under the factory act, because section 5 of the factory act deals in its own way with causes of injury as follows:
“If any person employed or laboring in any manufacturing establishment shall be killed or injured in any case wherein the absence of any of the safeguards or precautions required by the act shall directly contribute to such death or injury, the personal representative of the person so killed, or the person himself in case of inj ury only, may maintain an action against the person owning or operating such manufacturing establishment for the recovery of all proper damages.” (Laws 1903, ch. 356, § 5, Gen. Stat. 1909, § 4680.)
Therefore the only question in any case is, Did disobedience of the statute contribute directly to the result? If the failure to provide a safeguard is not superseded by an intervening cause, and consequently is registered in the final event as a contributing cause, liability attaches although some other cause may have intervened and may also have contributed. In this instance it is plain that a statutory safeguard would have kept the falling man’s head out of the pathway of the descending elevator.
It is said that the sole purpose of a guard before an elevator shaft is to keep employees from falling down the shaft. The words of the statute can not be restricted to such a narrow meaning. Guards must be interposed to secure employees against injury from the elevator as well as from the shaft itself.
The court in its instructions to the jury stated the defendant’s duty in the terms of the statute, and it is said that the jury were left to interpret the statute for themselves and might have believed that it was necessary to inclose the elevator from top to bottom. The statute expresses its meaning in words as clear and as definite as any which can be chosen, and trial courts will hesitate to improve upon them. It may be that one kind of safeguard will be sufficient under one set of conditions when it would not be under other conditions. The question whether a particular safeguard was sufficient under the conditions presented in a given case is a question of fact for the jury. But whatever the conditions, the measure of duty is always the same. Elevators and elevator shafts in a manufacturing establishment must be “properly and substantially inclosed or secured, in order to protect the lives or limbs of those employed in such establishment.” (§ 1.) Ordinarily the court could do nothing by way of interpretation except to restate the rule in equivalent terms, which would add nothing to the jury’s knowledge. The legislature assumed that juries are capable of understanding the language of the statute, and an instruction using that language is sufficient.
Other instructions are criticised as not supported by the evidence, but the criticisms are unfounded, and Other questions argued are disposed of in the case of Caspar v. Lewin, 82 Kan. 604.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an appeal by the state from an. order of the district court of Crawford, county sustaining a plea of former adjudication in an action against: the appellee, Dina Kaemmerling, and George Pierce and Henry Pierce, for an injunction to enjoin them from maintaining a nuisance in violation of the prohibitory law. The petition alleged that the appellee, together with two other persons by the name of Pierce, was maintaining a nuisance on April 1, 1906, and ever since had been engaged therein, upon certain specifically described premises in Chicopee, in Crawford county. The appellee, as an answer and a bar to the action, pleaded a judgment wherein she, together with one William Monroe, had been perpetually enjoined from maintaining a nuisance at such place. The petition charged that these parties had been maintaining such a place since March 1, 1908. This was held by the district court to be a sufficient bar to the pending application against Dina Kaemmerling, and the state has appealed from such ruling.
The law of res judicata requires that the cause of action pleaded in bar must be identical to the one in which the plea is made in the following particulars: (1) in subject matter; (2) in cause of action; (3) in the person and parties to the action; (4) in the quality in the person for or against whom the claim is made. (Benz v. Hines and Tarr, 3 Kan. 390; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127.) The cause here pleaded in bar seems to be essentially dissimilar instead of identical. They are not the same as to time when the nuisance was maintained nor as to' the persons who were engaged in the business. These particulars are so different as to make it seem impossible that they should relate to the same transaction. The court was manifestly in error.
The judgment is reversed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in mandamus, brought by the state to compel the bank commissioner and the state treasurer to admit the national banks of Kansas to the privileges and benefits of the law providing for the guaranty of deposits in banks. (Laws 1909, ch. 61, Gen. Stat. 1909, ch. 10, art. 2.) In the alternative writ it was recited that the state officers were disregarding the provisions of section 13 ■of that act, which authorizes national banks to avail themselves of the benefits of the law, and that they had refused to allow them to participate in the benefits of the guaranty fund created under the law. Many national banks and a number of state banks were named as defendants, and some of these contested the good faith of the proeeéding, but most if not all of the contesting banks have been dismissed from the action; and •on the answer of the state treasurer.that he had not and did not intend to refuse performance of any duty ■imposed on him under the bank guaranty statute the action was dismissed as to him. The bank commissioner in his answer stated that he had received numerous inquiries from the officers of national banks as to whether they would be allowed to participate in the fund, and had informed them that his action would be based on the decision of the comptroller of the currency, and that when that officer decided that national banks could not participate in the fund he had declined to admit them to the benefits of the act. He also alleged that the provisions of section 13 of the act relative to national banks conflicts with the rules and regulations prescribed by congress, and would therefore be beyond the power of the legislature and invalid.
In a deposition taken at the instance of some of the contesting defendants before they were dismissed from the proceeding, defendant Dolley testified that no direct application had been made by any national bank to be admitted to the benefits of the guaranty fund, and that he knew of no national bank which had passed a resolution in accordance with the provisions of the act and applied for admission. He further testified that he had bad numerous communications from national banks •and many consultations with their managing officers in regard to whether they would be permitted to participate in the guaranty fund, in which he had informed them that he would be governed by the decisions of the federal authorities, and that he had had communications and conversations with fifty or sixty of them to the effect that his decision would depend upon the decision of the comptroller of the currency and other federal authorities. He stated that he went to Washington to consult the federal officers on the subject, and before doing so wrote to all the national banks of his purpose to do so, and when the adverse decision of the federal officers was announced he decided and stated that no national banks would be admitted. In his testimony he also stated that the directors and stockholders of the Commercial National Bank of Alma, of which he was a stockholder, met with him and discussed the making of an application for admission, and that those present were unanimously in favor of coming in under the guaranty act, but that he rejected the proposition. No formal application, however, was made, and no official record was kept of the action of the meeting.
The question now submitted is whether under the pleadings and evidence the court is warranted in determining the meaning and validity of the bank guaranty act. In a decision disposing of some preliminary questions in this proceeding it was held that “a court will undertake to pass upon the validity and effect of a statute only when necessary to the determination of an actual and concrete controversy.” (The State v. Dolley, 82 Kan. 533, syllabus.) In the course of the opinion it was said:
“Of course, the court can riot undertake to interpret a statute because doubts exist as to its meaning, in advance of a situation having arisen requiring action thereunder. In order for judicial power to be exercised with regard to the statute there must be an actual and concrete controversy regarding it — a definite act demanded under it on the one hand and refused on the other. But if these conditions exist the fact that the demand or the refusal, or both, may have been prompted by a purpose to make what is called a ‘test case’ does not defeat jurisdiction. It is not uncommon or objectionable for an officer to refuse to act upon a doubtful construction of a statute, irrespective of his own judgment as to its true meaning, in order that the question may be speedily and finally settled in the courts. An action brought for that purpose under such circumstances is not fictitious, though it may in a sense be ‘friendly.’ ” (p. 536.)
To invoke the action of a court the controversy must arise out of the real facts in the case, and not upon an abstract question. It is the opinion of the court that the pleadings and evidence show that no situation has yet arisen requiring the bank commissioner to take action under the guaranty law with respect to any nactional bank. Until such a situation arises there is nothing upon which the court can act. The state officers and other interested parties may hold different opinions as to the meaning and effect of the guaranty law, but the court can not undertake to interpret a statute merely because there is a difference of opinion as to its construction. As we read the record, no national bank has asked to be admitted to the benefits of the guaranty fund. The mere want of a formal demand would be unimportant if it were shown that some national bank actually desired admission and was now seeking it, but this is not the case. There is a suggestion that national banks have been deterred from making application by reason of the announcement of the bank commissioner that he would refuse to entertain it. The evidence, however, does not appear to bear out that view. National banks that - have shown an inclination to participate in the guaranty fund appear to have refrained' from taking preliminary steps to that end, not because of the refusal of the state officers to receive them, but because the federal officers, charged with the administration of the national banking act, in effect forbid them to do so. The court can require of the bank commissioner only that he perform some specific act, and until some national bank invokes the benefit of the guaranty law there is no duty for him to perform in that connection. No national bank has yet done so, and from the attitude of the federal officers it seems probable that none will do so. In that case there is no occasion for a court to decide what the duties of the bank commissioner would be should such an application be made.
The writ is therefore denied. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by Eva Wine-garner to recover damages for the death of her husband, caused by contact with the electric wires of the defendant. The deceased was employed by a house mover. His principal business was driving a team to convey things needed in the business; but when not so engaged it was his duty to assist in any way in the business, and he was accustomed to handling electric wires strung along the streets when it became necessary in moving buildings under them.
In accordance with the requirements of the ordinances of the city of Wichita, the house mover, before moving the building on the streets, procured a permit therefor from the city clerk. The house mover had given notice to the defendant of his intention to move the building upon which the accident occurred, on the day before he started to move it, and the employees of the defendant' had arranged to remove the wires near the building at the place from which it was to be removed. This was to be done on the morning of the removal, and the defendant’s workmen remained in the neighborhood subject to call, if they were further needed.
The building was moved 350 or 400 feet to the intersection of Murdock and St. Francis streets, where the wires of the defendant company crossed the street, suspended about eighteen or twenty feet from the ground. The comb of the roof of the building was higher than the wires. The wires were raised by the house mover, or some employee, and the building was passed thereunder the greater part of its length, when it was stopped. The mover did not call upon the defendant’s men to handle the wires, but testified that he intended to attend to them himself. He was detained, however, by talking to a man who sought to engage his services, and the deceased, being then unoccupied, went up a ladder, evidently to attend to the wires. In ascending the sloping roof he slipped, and either fell across or grabbed the wires, and was instantly killed by the shock. The wires were- charged to a voltage of 2300. The contact of a person simultaneously with two wires so charged causes a “short circuit” of the current through the body, and is extremely dangerous to life, if not certainly fatal.
It appears that only two witnesses were called who saw Winegarner at the time the accident occurred, and each testified that he slipped or became overbalanced on the side of the sloping roof. One said that in falling he seemed to grab for something — for anything he could reach — and came in contact with the wires, and the witness saw the flash of electricity. The other testified to about the same circumstances, except she said Winegarner appeared to fall upon the wires, and she saw the flash. Others testified that they saw the wounds upon the body; that he was burned upon the right side through his clothing, and to, or almost to, his intestines. His death appears to have been instantaneous. When he was found he was lying across the wires, or with his arm thrown over them. One witness said that a wire burned in two.
, On the trial to a jury the plaintiff recovered a judgment and verdict for $5000.
The defendant makes three assignments of error: (1) That the court erred in not sustaining the defendant’s demurrer to the plaintiff’s evidence; (2) that the court erred in not instructing the jury to return a verdict for the defendant at the close of the evidence; and (3) that the court erred in instructing the jury that the defendant owed the deceased a positive duty to have its wires in a condition safe for interference therewith by the deceased.
After setting forth the respective claims of the parties in their pleadings, and defining the meaning of negligence and contributory negligence, the court instructed the jury as to negligence as follows:
“You are further instructed that in maintaining its electric wires and carrying on its business in and along the streets of the city of Wichita, Kan., it was the duty of the defendant to exercise care proportionate to the risk of its business, to the end that damage might not result therefrom to others.
“You are further instructed that the degree of care required varies according to the circumstances of the particular case; and if the use of electricity by the defendant in the prosecution of its business at the times in question is shown by the evidence to be a highly dangerous agency to life, unless exercised with great care, then, to such extent, a high degree of care in its supervision, management and use was required of the defendant at places where people had a right to go and had been in the habit of going, and would likely continue to go for work or business.
“You are further instructed that if under all the facts and circumstances in this case you find that the defendant knew or had sufficient and reasonable grounds to anticipate that persons might, while in the exercise of ordinary care for their own safety, come in contact with and be injured by any defective and dangerous wires it might operate and maintain at said place, and if you further find that the said Walter Winegarner, without carelessness on his part, and while rightfully and lawfully engaged in moving or assisting to move a house under said wires at said place, came in contact with said wires, and was, without his fault, then and there injured and killed by electricity escaping from said wires at the point of said contact, through the dangerous condition and defective insulation of said wires and the carelessness of the defendant, as set out in the petition, and that said wires were at said time and place charged with a powerful current of electricity, and that they were not properly insulated, and were unsafe and dangerous to the lives of persons who-might come in contact with them, and that the defendant and its agents and employees knowingly maintained and operated said wires in said condition at said time and place, in the manner and under the circumstances charged in the petition, and if you further find that the defendant was negligent in so maintaining and operating said wires at said time and place in said condition, as charged, and that said negligence was the direct, proximate and natural cause of said injury and death resulting to said Walter Winegarner, as charged, then the defendant would be liable to the plaintiff for the damages so caused plaintiff by said death, unless you should further find that the act or acts of the said Walter Winegarner himself contributed to his own injury and death; but if the said deceased was guilty of contributory negligence in the premises, and thereby contributed to his own injury and death, then the plaintiff can not recover herein.
“You are further instructed that if a negligent act or omission of a party is such as a person of ordinary intelligence and prudence should have foreseen that an accident and injury were liable to be produced thereby, then such negligent act or omission may be said to be the proximate cause of such accident and resulting injury.
“Negligent acts can not be the proximate cause of an injury to one unless, under all the circumstances, ordinary prudence would have admonished the person sought to be charged with the negligence that his acts or omissions would result in injury to some one; and in order to warrant your finding that any of the alleged acts or omissions of the defendant constituted the proximate cause of the injury and resulting death to the said Walter Winegarner, it must appear from the preponderance of the evidence that such injury and death were the natural and probable consequence of such negligence or omission, and that it ought to have been foreseen by defendant in the light of all the attending circumstances.”
The court also instructed the jury that if the injury occurred through the contributory negligence of the deceased, the plaintiff could not recover.
' The defendant urges its assignments of error for the following reasons:
“(1) The deceased was but a bare licensee; the defendant owed him no duty to have its. wires in a condition safe for him to handle.
“(2) Deceased was guilty of contributory negligence as a matter of law.
“(3) Even though it be conceded that defendant owed deceased some duty other than that owed to a bare licensee, it discharged its full duty, as shown by plaintiff’s evidence.”
It is true that the house mover, by ordinance of the city, was required to-get a permit from the city clerk before moving the building on the streets. On the other hand, by the statutes of the state, and by ordinance of the city, the defendant company was required to have the grant of a franchise and permission to set poles, etc., before engaging in the business of conducting electricity, and its business was subject to regulation by the city, so that the company was also, in this sense, a licensee. The use of the streets, either for moving buildings or for sustaining the poles and- wires of electric light and power companies, can not be said to be the ordinary use of the streets. As to the city, the house mover and the defendant were alike licensees, except that the house mover had to have a license for each particular moving, while the license to the defendant was for a certain time. It can hardly be said that the deceased was a licensee as to the defendant, or vice versa.
There was evidence that the company had notice of the moving of this building. Whether it had notice of its passing the particular point where the accident occurred is not shown, but there is evidence tending to show that the moving of buildings was of such frequent occurrence that the defendant must have taken notice of such use of the streets.
It is contended on the part of the plaintiff that it was the duty of the company to have its wires crossing streets so insulated as not to be dangerous to persons likely to come in contact therewith, and that the wires should be so insulated at street crossings where persons engaged in moving buildings are likely to come in contact with them.
There was evidence that the wires which caused the death of the deceased carried a current of 2300 volts, and that no insulation is efficient to save the life of a person who comes in contact with a wire carrying such a current. On the other hand, there was evidence that proper insulation would prevent injury to a person coming in contact with a wire having such voltage.
The plaintiff insists that it was impossible for the deceased, even if he voluntarily came in contact with the wires, to know anything of the strength of the current; and, on the other hand, it is insisted that the deceased should have known of the danger of coming in contact with the wires, and that he was guilty of contributory negligence in so doing.
It is a matter of common knowledge that wires carrying only a low voltage, like, for instance, a telephone wire, are not liable to produce any injury by contact, and that wires carrying a high voltage, as shown in this case, are extremely dangerous in case of contact. The court submitted to the determination of the jury, as a question of fact, whether under all the evidence in the case the defendant was guilty of negligence, ai^cl whether the deceased was guilty of contributory negligence, and by its instructions told them that if under all the facts of the case persons were likely to come in contact with these wires, carrying the high voltage shown by the evidence, the defendant was under obligation to have the wires insulated so that injury would not result therefrom. If, on the other hand, the deceased knew of their dangerous character, and so knowing purposely came in contact with the wires, he was guilty of contributory negligence.
We think the instructions of the court to the jury were in accordance with the principles laid down in numerous cases cited with approval in Railway Co. v. Gilbert, 70 Kan. 261. In that case (p. 265) the following citation was made with approval from Fitzgerald v. Edison Electric Co., 200 Pa. St. 540:
“Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The. difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company, however, which uses such a dangerous agent, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.” (p. 543.)
If from all the circumstances the defendant had reason to apprehend that the building would be moved under the wires where the accident occurred, it was its duty, knowing its wires to be highly charged with electricity, to have such wires at the street crossing insulated, or to take such other precautions as might be necessary to protect anyone who might be likely to be upon such building from contact with or injury from such wires.
The case was submitted to the jury under proper instructions, and we think that the jury were amply justified by the evidence in finding that the defendant was guilty of negligence which caused the death of the deceased, and that the deceased was not guilty of. contributory negligence. The judgment is therefore affirmed. | [
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Per Curiam:
The demurrer to the evidence was properly overruled. Although the plaintiff admitted in his testimony that during the time he used the push cars he learned that some of them worked harder than others, and that he knew this was because the cars stood out in the weather and got rusted and were never oiled, and that they would have run easier if they had1, been oiled, there is no testimony from which it can be said as a matter of law that he appreciated or should', have appreciated the danger of falling from the wall by reason of the car suddenly stopping. Before the master-can be relieved of liability by the servant’s assumption, of the risk incident to the service the servant must have-equal opportunity with the master to know the surroundings, and be equally competent to judge of the-risks and hazards. The very cases cited by the defendant in support of its contention (Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, and Clark v. Mo. Pac. Rly. Co., 48 Kan. 654) recognize the requirement that the servant appear to have been equally competent with the master to judge of the risks. In Rush, Adm’x, v. Mo. Pac. Rly. Co., supra, it was held that the surroundings were such that the danger must have been known to the employee and therefore he assumed the risk. To the same effect is Buoy v. Milling Co., 68 Kan. 436, Gillaspie v. Iron-works Co., 76 Kan. 70, and Railway Co. v. Quinlan, 77 Kan. 126. In Clark v. Mo. Pac. Rly. Co., supra, the servant was held to have assumed the risk because he had equal knowledge of the conditions and surroundings and knew of the dangers and hazards. There are, of course, cases where the court can say upon the facts, as a matter of law, that the servant must have known, as in Gillaspie v. Iron-works Co., supra, where the employer was held not liable because “the facts and the danger were within the comprehension of any ordinarily intelligent and prudent man and were as completely within the knowledge and appreciation of the servant as of the master.” (Syllabus.)
The defendant was not entitled to judgment on the special findings. While the findings show that between the rails of the track was a safe place to walk while pushing a loaded loom car, and that there was nothing to prevent the plaintiff from walking there while pushing the car at the time he was injured, the jury further found, in answer to question No. 18, that a loaded car could not be pushed around the curve safely and easily by the operator pushing and walking directly behind .the car. The effect of these findings, taken together, is that there were two ways in which the car could be pushed, one more easily than the other. Although one bf these ways was doubtless safer than the other, there is no finding from which it can be said that it was negligence for the plaintiff to walk on the harrow space which he testified it was necessary for him to do in order to push the car around the curve or that an ordinarily prudent person would not have done so.
Although this was an ordinary action by a servant to recover for injuries caused by the alleged negligence of the master, it requires fifteen printed pages of the abstract to set out the petition. The defendant moved to require the petition, to be made more definite and certain in forty-six particulars. The motion was denied and a demurrer was overruled, and these rulings are complained of. In the brief the defendant abandons all but fourteen of the grounds of the motion, and as none of those remaining appears to be sufficient it must be held that the ruling of the court thereon was correct. The petition stated with a great deal of useless repetition the facts upon which the plaintiff relied to entitle him to recover, but stated a good cause of action as against the demurrer.
The court properly denied the, request to submit to the jury the question whether the plaintiff, in walking on the wall while pushing loaded loom cars, took upon himself, the risk of falling. That was a question of law, and not of fact.
We find no error in the judgment, and it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by C. E. Leibengood against the Missouri, Kansas & Texas Railway Company to recover damages resulting from an alleged negligent delay of the railway company in transporting two carloads of cattle from Beagle to Kansas City. The petition was in two counts. The first set. forth a cause of action under the common law, and the second a violation of an act requiring common carriers-to transport live stock at a speed of not less than fifteen miles per hour, unless prevented by some unavoidable cause. A recovery was had on the second count, which included damages for delay and an attorney’s fee, and the railway company appeals.
The contention of appellant is that the shipment of the cattle was interstate, and therefore that the act under which recovery was had is without application. It appears that the shipment in question was from Beagle, a point in Kansas, to and through Missouri for ■a distance of at least a mile to Kansas City, another point in Kansas. How far the cattle were transported through Missouri is not definitely shown, but the railroad over which the cattle were taken passes out of Kansas at or near Rosedale and reenters the state near the stockyards where they were delivered. The statute under which the recovery was had provides:
“Section 1. That all persons, firms or corporations •operating railroads as common carriers shall transport all live stock received by them for transportation within this state without delay, and shall transport the same in a period of time, not less than one hour for •each fifteen miles of the entire distance over which said •shipment of stock is transported by rail within this state, unless prevented by unavoidable cause; provided, ■the time consumed by stops for watering and feeding, occasioned by the requirements of law or the order of the shipper, shall not be considered a part of the time in which shipments are required to be made.
“Sec. 2. Any common carrier which fails or refuses to transport such live stock at the rate of not less than ■fifteen miles per hour, as herein provided, shall be liable for all damages which may be sustained by any person on that account, which damages shall include the loss resulting from a depreciation on the market, shrinkage in weight of such live stock, the loss in time of shipper, his agent or employee, and any extra expense occasioned thereby, and all other damages which are the approximate result of such failure, together with the costs in case suit is brought to recover the same, and a reasonable attorney’s fee, fixed by the court •on the trial of said cause. All other statutory and common-law remedies, in addition to the remedies provided herein, are hereby preserved to the shippers.” (Laws 1907, ch. 276; see, also, Laws 1909, ch. 191, Gen. Stat. 1909, §§ 7116, 7117.)
Was the shipment from one point in Kansas through a portion of Missouri to another point in Kansas interstate, and, if so, is a state regulation of such a shipment permissible? The shipment sought to be regulated is a .single and indivisible thing. The statute purports to regulate the time which shall be consumed from the ■origin to the end of the transportation. If the carrier fails to transport for the whole distance within the specified time the prescribed penalties and liabilities attach. It is a regulation of a single act of transportation as a whole, and not of a part of it that may be wholly performed within the state. The effect of the regulation is direct and immediate upon a shipment ■that is interstate. It is unlike cases of regulating the .speed of trains in cities within the state, or the receipt or delivery of freight at points in the state, or the imposition of some liability for some other default occurring entirely within the state. If the statute applies, it directly affects a single shipment which is partly within and partly without the state. According to a ruling of the supreme court of the United States such a shipment is interstate, and a regulation of it is beyond the legislative power of the state. In Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, the transportation of goods on a through bill- of lading from a point in Arkansas to another point in the same state, over a road which passed a short distance through Indian Territory, was held to be interstate commerce, subject to the regulation of congress, and free from interference by the.state of Arkansas, which had undertaken to regulate the shipment. It was there said that “the transportation of these goods certainly went outside of Arkansas, and we are of opinion that in its aspect of commerce it was not confined within the ■state.” (p. 620.) It was in effect held that when the subject of regulation is indivisible there can be no division of regulation, either as between states or as between the state and the nation, and that there can be .no splitting of jurisdiction in proportion to the mileage in the state seeking to regulate interstate shipments. It was also said:
“It is decided that navigation on the high seas between ports of the same state is subject to regulation, by congress (Lord v. Steamship Co., 102 U. S. 541) and. is not subject to regulation by the state (Pacific Coast-Steamship Co. v. Railroad Commissioners, 9 Saw. 253), and although it is argued that these decisions are-not conclusive, the reason given by Mr. Justice Field, for his decision in the last-cited case disposes equally of the case at bar. ‘To bring the transportation, within the control of the state, as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the-state.’ ” (p. 620.)
The route of carriage was out of the state a very short distance, it is true, but, as we have seen, the shipment is to be treated as a unit, and the rule in such a case would appear to be the same whether the act of' transportation was outside of the state one or a hundred miles. In The State v. Otis, 60 Kan. 248, an act regulating the transportation of live stock and requiring the railroad company to carry the shipper free in certain cases was under consideration. The shipment, originated in Luray, Kan., and ended a few yards from, the state line, in Kansas City, Mo., and it was held;to be interstate commerce and the regulation a violation of the commerce clause of the federal constitution. To the same effect is Railway Co. v. Sinclair, 77 Kan. 228. Counsel for appellee contends that as the transportation began and ended in the state it was subject to state regulation, and relies on Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192, and some other cases based on that decision. That case, however, relates to taxation rather than transportation. . In transporting property from place to place in Pennsylvania, the railway company passed for a short distance through New Jersey, but the tax which was the subject-controversy was determined upon the transporta tion within the state. It was held that a state might tax the business done in the course of a continuous ear.riage from one point to another in the state, although the railway in accomplishing it incidentally traversed over a part of another state. In Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617, Mr. Justice Holmes, who wrote the opinion, made it clear that the rule of the Lehigh Valley case did not apply to a regulation of transportation. In speaking of the decisions of state courts which held that the Lehigh Valley case was an authority for the regulation of transportation which was partly outside of the state he said:
“These decisions were made simply out of deference to conclusions drawn from Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192, and we are of opinion .that they carry their conclusions too far. That was the case of a tax, and was distinguished expressly from an attempt by the state directly to regulate the transportation while outside its borders (145 U. S. 204). And although it was intimated that, for the purposes before the court,,to some extent commerce by transportation might have its character fixed by the relation between the two ends of the transit, the intimation was carefully confined to those purposes. Moreover, the tax was determined in respect of receipts for the proportion of the transportation within the state (145 U. S. 201). Such a proportioned tax had been sustained in the case of commerce admitted to be interstate. (Maine v. Grand Trunk Railway Co., 142 U. S. 217.) Whereas it is decided, as we have said, that when a rate is established it must be established as a whole.” (p. 621.)
The distinction between the imposition of a tax and the regulation of transportation as applied to a carrier doing interstate business was commented upon in Leavenworth v. Ewing, 80 Kan. 58. It was there said:
“The result of the authorities is that a rate on a continuous carriage from point to point within the state is to be regarded as a unit, and when it is applied to a shipment which passes through more than one state it takes on an interstate character and is beyond the regulation of the state; but a different rule obtains in the matter of taxation. The state may1 properly tax the property located within its borders of a corporation doing an interstate business, and may also tax that part of the business of such corporation which is done within the state.” (p. 64.)
The language of the statute indicates a legislative purpose to limit its application to intrastate traffic. It refers to live stock received by carriers “for transportation within this state,” and the time limit is applied to stock “transported by rail within this state.” If, however, it were intended to apply to interstate commerce like the shipment in question it would be necessarily invalid. In no event can there be a recovery under the statute for negligent delay in an interstate shipment.
It follows that the judgment must be reversed and the cause remanded for further proceedings. | [
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Per Curiam:
H. J. Wright sued the executors to recover the value of services rendered to Luke Stage in his lifetime. The defendants claimed that the services were performed under a contract which fixed Wright’s compensation, and that the full amount had been paid. The plaintiff contended that no amount had been agreed upon, and that the reasonable value of his services exceeded what he had received. He produced a witness who testified to having had a conversation with Stage about his services, the testimony concluding with this question and answer, which the court on motion struck out as incompetent.
“Ques. Do you remember whether or not anything was said there as to what Mr. Wright was to receive, or if there was an agreement between them ? Ans. He said there was no agreement between them.”
The court also rejected an offer to show by other witnesses that Stage had stated that he was indebted to Wright for taking care of him and that the amount had not been fixed or agreed upon. The jury found against the plaintiff, and he appeals.
The appellees do not dispute that ordinarily in an action against executors for services rendered to the testator his declarations are competent evidence in behalf of the plaintiff. But they contend that the plaintiff was properly prevented from showing that there was no contract regarding his compensation, because he had already asserted that there was a contract. It is true that the plaintiff’s counsel stated that he had a contract with the testator, covering other matters, but the claim that the amount to be paid for his services was not agreed upon was consistently maintained in his behalf.
It is also contended by the appellees that the verdict should stand because it implied a finding that the plaintiff had been fully paid — an issue which was properly submitted to the jury. If, however, the jury believed that there was an express agreement as to what the plaintiff was to receive, the conclusion that he had been fully paid naturally followed. Inasmuch as the rejected evidence bore directly upon the exact question in controversy and was vitally important to its solution, we must hold that the plaintiff has not been given a fair opportunity to prove his case, and a new trial is therefore ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.: The ownership of certain notes' and mortgages is the subject of dispute between the parties. On a former appeal many of the facts out of which the controversy arose were stated. (Hartwig v. Flynn, 79 Kan. 595.) In the final trial to determine the title of the notes and securities, wherein the administrator prevailed, there was contention as to the admissibility of the testimony of William and Frederick Hartwig, much of which was excluded; and upon the conclusion of the testimony for appellant the court sustained a demurrer to his evidence, on the ground that it did not prove a defense to the action of appellee. On the exclusion of testimony and the sustaining of the demurrer to the evidence of appellant errors are assigned.
The question tried out was whether Gotlieb Hartwig had in his lifetime given the notes and mortgages, or moneys represented by them, to his sons, William and Frederick. As the action of the administrator was brought against William Hartwig, he was incompetent to testify to any transactions or communications had with his father in respect to the notes and mortgages acquired from the father. (Code 1909, § 320.) A number of rulings excluding testimony, of which complaint is made, were clearly correct, because it came within the statutory limitation. In some cases the testimony excluded, although not communications or transactions between William and his ’ father, and therefore not within the limitation, appears to be immaterial. William was asked to tell why the notes taken in his name were allowed to remain in his father’s box until after the latter’s death, but he was not permitted to answer. As the inquiry admitted of an answer that would be neither a communication nor a transaction with his father, the objection should not have been sustained. Frederick Hartwig was also asked why the notes in which he and William were named as payees remained in his father’s box, and in the same connection he was asked to state whether the three notes were in his father’s box for safe-keeping. These questions were excluded, and in support of the ruling it is argued that as Frederick was interested in the result of the litigation because one of the notes was claimed by him he was incompetent to testify to any communications with his father in relation to these notes. The fact that a person other than the parties may have an interest in the result of the action does not disqualify him as a witness. The code specifically provides that no one shall be disqualified by reason of his interest in the result of the litigation. (Code 1909, § 317.) The prohibition in section 320 of the code of 1909 is not to be extended by implication, and it has been held to apply only to those who are technically parties to the action. The term “party,” as used in the code, does not mean or include persons not parties in the technical sense, however much they may be interested in the result of the suit. (Mendenhall v. School District, 76 Kan. 173.) Frederick was therefore a competent witness in this action as to any communications or transactions with his father which bore upon the ownership of the notes.
The testimony of William to the effect that he had paid taxes on the notes was erroneously stricken out. The assessment of the notes to William and his payment of taxes upon them were circumstances going to show ownership. There was testimony in the case to the effect that Gotlieb had suggested to William when he moved into town that he should list the notes for taxation. If William’s father, instead of listing the notes for taxation as his own and paying taxes thereon, in fact asked William to list them, and also left him to pay the taxes on the property, it tended to prove that he re garded and treated William as the owner of the notes. This testimony, should have been received and the jury allowed to determine the truth of the testimony and the probative force to be given it.
There appears to have been sufficient testimony supporting the defense of appellant that the notes involved had been given by Gotlieb Hartwig to his sons and had become their property prior to their father’s death. There was testimony that two of the notes were payable to the order of William Hartwig and one to Frederick Hartwig. The mortgage securing each of these notes was executed in favor of the payee named in the note. Gotlieb Hartwig appears to have placed the mortgages on record, and this indicated to some extent that the notes and mortgages were the property of the sons. There was no assignment of the notes and mortgages prior to the death of the father. While the notes and mortgages were in the father’s box at the time of his death, it appears that other notes belonging to Frederick, the ownership of which is not in dispute, were also kept in that box. Although William could not testify to communications or transactions had with his father, it does appear that for a considerable time before the father’s death William knew that the notes and mortgages were in his own name. There was testimony of a. statement by the father that he had given the real estate to his daughter and her husband, and that all the rest of the property would go to William and Frederick. Testimony was received to the effect that about a year-before his death the father suggested to William that he list the 2500-dollar note for taxation in William’s-name. In addition, a witness testified that the father at one time sent a message to William to come and get these notes. It appeared, too, that after reaching manhood William had worked years for his father without wages, and that while serving in the army during the' civil war he sent his earnings to his father, and that these were used to swell his father’s estate. More than that, it appears that at all times the relations between William and his father were cordial and friendly. It is clear that, accepting the foregoing testimony as true, and drawing every inference favorable to appellant to which it is open, as we must, the case should have been submitted to the jury.
The fact that the notes were still in the box of the father at the time of his death was not controlling. While a complete and unconditional delivery is essential to a gift, the donation may be consummated by a constructive or symbolic delivery, and the donor may constitute himself or be constituted a trustee of the donee; and the fact that the property may thereafter come into his possession would not necessarily be incompatible with the theory of a gift. (Barnhouse v. Dewey, ante, p. 12.) The relationship and the former dealings between father and sons are entitled to consideration in measuring the force of the testimony offered to show a gift. It has been decided that “it requires less positive and unequivocal testimony to establish the delivery of a gift from & father to his children than between persons not related, and where there is no suggestion of fraud or undue influence very slight evidence will suffice.” (Love v. Francis, 63 Mich. 181, syllabus.)
The contention that there was a variance between the evidence and the issues formed between the parties is not good. The trial court admitted testimony tending to prove a gift, and under the pleadings such testimony was admissible.
The judgment is reversed and the cause remanded for a new trial. | [
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