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The opinion of the court was delivered by
Graves, J.:
This is an action for damages for a personal injury, appealed from the district court of Rice county. The appellant and his wife were travel-? ing along the highway in a top.buggy, when they were struck by an automobile driven by the appellee. The wife of the appellant was injured by the collision. She was taken to the house of a neighbor and cared for. About a week later she was taken to the hospital at Sterling and operated upon. She died from the effects of the operation, which was for the removal of fibroid tumors. The appellant, the husband of the deceased, commenced this action to recover damages for the loss of the services of his wife and for expenses incurred on account of her injury. The jury returned a verdict in his favor of $224. The appellee offered to confess judgment for $250. The jury returned with their general verdict special findings of fact which read:
“(1) Ques. Was plaintiff’s wife, on September 13, 1908, afflicted with fibroid tumors ? Ans. Yes.
“ (2) Q. If you answer the above question ‘Yes,’ then state how long plaintiff’s wife had been afflicted with such fibroid tumors prior to September 13, 1908. A. We don’t know.
“ (3) Q. Was plaintiff’s wife operated upon for the removal of fibroid tumors about October 2, 1908, by a Dr. P. P. Trueheart? A. Yes.
“(4) Q. Did Dr. P. P. Trueheart, about October 2, 1908, by a surgical operation, remove from plaintiff’s wife three or more fibroid tumors ? A. Yes.
“(5) Q. If you answer the above question ‘Yes,’ then state what the weights of such tumors so removed were-at the time of the removal. A. Between ten and twenty pounds.
“(6) Q. Did the accident at the time defendant’s automobile struck plaintiff’s horse cause the fibroid, tumors which afflicted plaintiff’s wife? A. No.
“ (7) Q. How many years do you find that plaintiff’s, wife would have lived if there had been no accident with the automobile? A. We don’t know.
“(11) Q. Was such operation for the removal of fibroid tumors which plaintiff’s wife was afflicted with prior to the automobile accident? A. No.
“ (12) Q. When was plaintiff first informed that his. wife had a fibroid tumor, by Dr. P. P. Trueheart? A. Five or six years ago.
“(13) Q. Did Dr. Staats inform plaintiff and his. wife on the morning following the accident that plaintiff’s wife was afflicted with tumors ? A. Yes.
“(14) Q. Was plaintiff’s wife afflicted with heart disease prior to the time of the accident? A. Evidence insufficient.
“(15) Q. If you answer that plaintiff’s wife was afflicted with heart trouble prior to the accident, then state if plaintiff knew of such fact at and before the time of the accident. (Objected to.) A. Evidence insufficient.
“ (16) Q. Was plaintiff’s wife under the care of Dr. Bodenheimer for several years prior to the time of the-accident? A. Yes.
“(17) Q. If you answer the above question ‘Yes/' then state how frequently Dr. Bodenheimer treated plaintiff’s wife. A. About six times.
“ (18) Q. What was the direct and immediate cause-of the death of plaintiff’s wife? A. Shock of operation.
“(19) Q. If you say the automobile accident was-the direct and immediate cause of the death of plaintiff’s wife, then state fully and particularly in what, way it caused or produced her death. (Objected to.) A. No. . n
. n “(21) Q. Was plaintiff’s wife thrown out of the buggy at the time of the collision with the automobile?' A. Insufficient evidence.
“ (23) Q. Was plaintiff’s wife physically injured at • the time of the automobile accident on account of such accident? A. Yes.
“(24) Q. If you answer the above question ‘Yes/ then state fully all of such physical injuries — what part of the body was injured? A. Injured on back and left lower limb.
“ (25) Q. Did not plaintiff’s wife die because of the shock following the operation for the removal of fibroid tumors? A. Yes.
“ (26) Q. Did plaintiff leave his wife at the time of the accident? A. Yes.
“(27) Q. If you answer the last question ‘Yes/ then state where he went and for what purpose. A. After his horse and help.
“(28) Q. What amount, if any, do you allow the plaintiff for the bill paid for the medical services.of Dr. Staats ? A. Fourteen dollars.
“(29) Q. What amount, if any, do you allow the plaintiff for the medical services of Dr. Vermillion? A. Nothing.
“(30) Q. What amount, if any, do you allow the plaintiff for the medical services of Dr. P. P. True-heart? A. Ninety dollars.
“(31) Q. What amount, if any, do you allow the plaintiff on account of hospital fees? A. Ten dollars.
“(32) Q. What amount, if any, do you allow the plaintiff for nurse hire? A. Ten dollars.
“(33) Q. How fast was the automobile going at the time it struck the horse? A. Six miles.
“(34) Q. Where was plaintiff’s wife at the time plaintiff was thrown out of the buggy? A. We do not know.
“(35) Q. Where was Mrs. Guldner when first seen by anyone, immediately after the collision? A. North of the automobile, standing in the road.
“(36) Q. Was plaintiff’s horse struck by the automobile at the time of the collision ? A. Yes.
“(37) Q. If you answer the above question ‘Yes/ then state what part of the horse was struck. A. On right hip.
“ (38) Q. Was plaintiff’s horse struck by the automobile on the right or left side of the horse? A. Struck on right side.
“(39) Q. Which side of the road, if either, was the automobile going at the time of the collision? A. On the south side.
“(40) Q. Which side of the road was the horse go ing at the time of the collision ? A. The horse was going south.
“ (41) Q. Was the horse on the right or left side of the road at the automobile, or in front of the automobile, at the time of the collision ? A. More in front.”
It will be seen from these findings that the injuries inflicted by the collision were not at all serious of themselves, being mere bruises on the back and the left leg. The fibroid tumors, a long-existing affliction and having no relation to the collision, were the real cause of the trouble. The operation was performed for the removal of these tumors, and not because of the collision. The injuries occasioned, by the collision do not ■appear to have caused the appellant any serious loss on account of being deprived of the services of his wife. Her sickness was of short duration. Whether she had a cause of action against the appellee for the suffering endured by her on account of the bruises received and otherwise was not presented to the trial court, and it is not here. The only question here involved is the loss of services by the appellant because of the injuries tó his wife, and expenses incurred on account thereof; and his recovery is limited to such damages. In our view ■the jury confined the award of damages within this limitation. The allowance may be unduly liberal when thus confined, but the appellant has no reason to complain, and the appellee seems to be satisfied. The deceased wife was a sufferer for years and the cause of expense to her husband, with no prospects of her recovery. The ability to render valuable services to her husband seems to have been very limited. In fact the jury could not make an estimate. We think the .jury under the evidence treated the appellant very liberally. He received as much damage as the evidence would warrant.
The appellant contends that, the jury having found that the immediate cause of the death of his wife was the shock of the operation, and not of the collision, the award of damages for a part of the expenses aeeruingon account of the operation is inconsistent and should be fatal to the whole verdict. This deduction seems to. be logical, but as the appellant is in no sense injured, by such inconsistency, but, if anything, benefited, he is. in no position to complain; and we do not think the case should be reversed for this reason, but think that justice will be better subserved by an affirmance. The-judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In February, 1904, Nancy J. Higgins deeded a tract of land to her son, George Rich. Rich sold the land to R. A. McWilliams, who was the agent of the appellant, A. L. Brush. In March, 1904, Nancy J. Higgins deeded to McWilliams, and later in the same month died. Rich brought an action against the other heirs of Nancy J. Higgins to quiet his title. The defendants answered that the deeds from Nancy J. Higgins had been procured by the fraud and undue influence of Rich, and that she lacked mental capacity to convey, and prayed that they be set aside and for partition.
In July, 1904, Rich and McWilliams entered into a contract whereby McWilliams was to pay $2300 in cash, and the balance of the purchase price of the land not later than October, 1904, when Rich should produce a decree establishing his title as a result of the pending suit. The cash payment was made, and a general warranty deed from Rich to McWilliams was placed in escrow to await the production of the expected decree.. McWilliams was made a party to the suit, answered set ting up his contract with Rich, and prayed that he be subrogated to the rights of Rich should the deeds be set aside. In October the deeds were set aside, "Rich was given one-seventh of the land and McWilliams was awarded that share only, subject, however, to a lien. The $2300 which Rich had received more than paid for one-seventh- of the land, and Brush, as the real party in interest, then sued Rich for the overpayment. A demurrer was sustained to Brush’s evidence, on the ground that the matter was res judicata, and he appeals.
The district court probably had in mind the general statement frequently made that any matter which might have been litigated in a former suit is res judicata in a subsequent action between the same parties. The true rule was stated and illustrated in the case of Stroup v. Pepper, 69 Kan. 241. The first paragraph of the syllabus of that decision reads as follows:
“The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.”
Rich had until the rendition of judgment in October to make his contract good, and it could not be known whether Brush had a cause of action against Rich or the extent of a possible cause of action until the former suit was determined. Consequently such a cause of action had no rightful place in the former suit. The former suit was one to quiet title on one side and to set aside conveyances and for partition on the other. McWilliams merely asked the equitable relief of subrogation to whatever Rich might receive as the fruit of the litigation. Therefore there is no semblance of identity between the causes of action involved in the former suit and the one now presented. The facts necessary to entitle McWilliams (for Brush) to subrogation were adju dicated, but the liability of Rich to Brush, depending upon and arising in consequence of the judgment in the former suit, was not adjudicated. Therefore, from every point of view, the demurrer to the plaintiff’s evidence was wrongfully sustained.
The judgment of the district court is reversed and the cause is remanded, with direction to overrule the demurrer and proceed with the trial from the point at which it halted. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
This action was originally brought in the probate court of Lincoln county by the Saline Valley Bank against the estate of W. E. Morgan, deceased, to establish as a claim against said estate the balance due upon a certain judgment claimed to have been rendered by one James H. Smith, a justice of the peace of said county, against said W. E. Morgan during his lifetime, and in favor of said bank, for the sum of $181.35, and interest at 10 per cent. It is alleged, in the original action before the justice of the peace, that a promissory note of the face value of $200 was garnished in the hands of one David Ritchie, and by him turned over to the court, which was on the 28th day of March, 1890, sold by order of the court for the sum of $25 at constable’s sale. The probate court found that the judgment and demand of. the Saline Valley Bank had been fully paid, and rendered judgment against said bank for costs. Prom this judgment the bank appealed to the district court of Lincoln county, and, upon trial had therein to the court, a jury being waived, judgment was rendered against the estate and in favor of said bank. A motion for a new trial was filed and overruled, and the administratrix brings the case here for review.
There are several errors assigned, but we shall consider only two. It is first complained “ that the court erred in rendering judgment in said cause without requiring the plaintiff to prove its said claim — said decision and judgment having been rendered by said court without any proof of said demand having been offered by said plaintiff.” The record shows that on April 1-notice was served on the administratrix that a claim would be presented against the estate in the probate court of Lincoln county, on the 15th'day of April, at the hour of 10 o’clock; that the claim was founded upon a judgment had in the lifetime of the said W. F. Morgan, deceased, before a justice of the peace in and for Elkhorn township, in and for said county, stating the amount of the demand, and attached thereto a copy of the proceedings had before the justice of the peace, and the following affidavit:
“ State of Kansas, Lincoln county, ss.
“ Before me, the subscriber, ;\t probate judge in and for said county, personally came A. Marshall, and being by me first duly sworn, upon his oath says, that the account thereto annexed is just and true and correct, and that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled, and that the balance claimed ($189) is justly due. A. Marshall.
“ Sworn to and subscribed before me this 3d day óf April, 1891. H. M. Gilipin, Probate Judge.”
After several continuances this cause was heard by the probate court, which rendered the following decision :
“Tuesday, April 28, 1891, 10 o’clock a. m. — After hearing the evidence, argument of counsel, and being fully advised in the premises, the court finds that the said judgment-demand of the Saline Valley Bank against said estate has been fully paid, and the costs •of this hearing, amounting to $6.85, taxed to plainiff.”
The testimony offered in the probate court has not been preserved in the record. The bank gave notice by its attorney in open court of an appeal, and filed the affidavit required by statute, gave bond, and took its appeal to the district court of Lincoln county, by filing a transcript of the proceedings had in the probate court -with the clerk of the district court. In the district court the administratrix filed an answer, consisting of two defenses : (I) Admitting the pendency of a certain action on the 10th day of February, 1890, before James H. Smith, a justice of the peace in and for Ellchorn township, Lincoln county, Kansas, in which the Saline Valley Bank was plaintiff and W. F. Morgan was defendant, and that a summons of garnishment was (duly issued and served on David Ritchie, and that he answered, admitting that he had in his possession a certain promissory note belonging to said W. F. Morgan, and that by order of the court he turned the same over to the court; that afterward an order of sale was issued by said court to E. E. Abbott, the constable thereof, and that said Abbott, by virtue of the said order of sale, pretended to sell the said note at public auction, and that the plaintiff, the Saline Valley Bank, pretended to purchase said note at said sale for the sum of $25 ; that said pretended sale was absolutely void ; that afterward there was paid to the plaintiff, the Saline Valley Bank, the sum of $208.70 upon said note, which was asked to be offset against this claim and demand. (2) Alleging that no notice of sale was posted for 10 days previous and prior to the time of said pretended sale as required by law, and prayer for judgment that the sale be declared void and the sum of money so as aforesaid paid be offset against the demand. The plaintiff filed a demurrer to the first cause of action set forth in the defendant’s answer, for the reason that it did not state facts sufficient to constitute a defense. This was sustained by the court. Plaintiff replied to the second cause of defense by a general denial.
The only testimony offered at the trial" in the district court shown by the record is that of E. E. Abbott, the constable, in reference to the time when he received the order of sale, when he posted his notices and made the sale. Paragraph 2868, General Statutes of 1889, provides:
■“Any person may exhibit his demand against such estate by serving upon the executor or administrator a notice in writing, stating the nature and amount of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice.”
Paragraph 2870 id. provides :
“Any person having a demand against any estate may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, and exhibit a copy of such judgment or decree to the probate court, but the estate shall not be liable for costs in any such proceeding commenced within one year from the date of the letters of administration.”
Paragraph 2872 id. provides :
“No probate court shall allow any demand against any estate unless the claimant shall first make oath in open court, or file an affidavit with such claim, stating to the best of his knowledge and belief, he has given credit to the estate- for all payments and offsets to which it is entitled, and that the balance claimed is justly due. The affidavit in this action shall not be received as evidence of the demand, but the same shall be established by competent testimony before it is allowed or adjusted.”
Paragraph 2980 id. provides :
“Upon the filing of such transcript and papers in the office of the clerk of the district court, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew without regarding any error, defect, or other imperfection in the proceedings of the probate court.”
We think, under the section last cited, that the jurisdiction of the district, court is strictly appellate, the same as it would be in the case of an appeal from a justice’s court, and that it would have no larger juris-, diction than had the probate court in the first instance. This being true, it was incumbent upon the bank to establish its claim by competent testimony the same as is required to be done in the probate court under paragraph 2872, supra. This claim, being founded upon a judgment rendered before a justice of the peace, did not establish itself under paragraph 2870, it not being a judgment of a court of record. The statute expressly provides, “that after the transcript is filed, the district court shall try the case anew.” And certainly to try it anew, and find that a certain amount was due, would require proof of the amount, and in this respect there is a total failure to show any amount due upon the judgment of the justice of the peace.
Another point contended for by the plaintiff in error is that the court erred in sustaining the demurrer to the second ground of defense in the answer. The garnishment process simply gives 'to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains .no more or greater rights than the debtor had, and the gar nish.ee loses.no rights, and the payment of the money can be enforced from the garnishee to the creditor only by ordinary action. (Board of Education v. Scoville, 13 Kan. 32 ; Phelps v. A.T.& S. E. Rld. Co., 28 id. 169 ; Mull v. Jones, 33 id. 115.) The attaching creditor does not acquire a more summary remedy for the collection of his debt by the garnishment order than the defendant had. (Rice v. Whitney, 12 Ohio St. 358; Secor v. Witter, 39 id. 232; Railroad Co. v. Hopkins, 94 U. S. 11.) It is a mistake to say that the liability of the garnishee is fixed by the order of the justice of the peace. Its office is to give the plaintiff the right of action where the answer' discloses an indebtedness to the defendant. That liability is not fixed until a judgment is rendered against him in such action. The garnishment binds him for any debt that on such final adjudication may be found due from him to defendant at the time of the service of the order of attachment and notice (garnishment summons) upon him, and' not from the date of the order of the justice of the peace. In cases of all debts not yet due no action can be commenced until the maturity. If the instrument is not due and negotiable, it is liable to become the property of a bona fide holder before maturity. (Secor v. Witter, 39 Ohio St. 232.)
A mere paper evidencing debt, such as a promissory note, in the hands ofia third person for the purpose of enabling him to collect money due the owner of such paper, is nqt susceptible of being proceeded against as the res in an attachment suit; • for, though it belongs to the attachment defendant, it is not the debt of which it gives evidence, nor is it property beyond the value of the mere fabric. The third person having the note in his hands for collection is not the debtor of the defendant. The fact that he will be the possessor of money when he shall have collected the note does not alter the case, for to be liable to garnishment he must owe money or hold property liable at the time of the service upon him. This is the rule in New York, New Hampshire, Maine, Massachusetts, Connecticut, Vermont, Alabama, Texas, Penns-ylania,, Illinois, and Mississippi, and the principle is so held in every state except where such evidences are made attachable by statute. It is nowhere held that the mere evidence of debt is the debt itself, any more than that a title deed is the land itself. Where evidences of debt are made attachable by statute they are usually attached as representing the debt or facilitating the collection of it. When the notes are impounded they are merely held to prevent their circulation, transfer by mere delivery, etc., in order to conserve the debt due the defendant, that it may remain available to the plaintiff upon his obtaining judgment. • The attachment defendant owns the paper. A third person may possess it, but the obligor of the note is the defendant debtor and the person who ought to be garnished — not the attorney who holds the written paper for the purpose of collecting the amount acknowledged by the note to be due the defendant. Notes, due-bills, books of account and all other evidences of debt that have been taken by .the sheriff or other officer as the property of the defendant in attachment are not choses in possession, nor property, within the meaning of paragraph 4893, General Statutes of 1889, nor within the meaning of the law of attachment. The statutes are not to be. construed as extending the meaning unless such an interpretation is obviously the right one by the terms of the statute. Paragraphs 4306 to 4311 provide for the disposition of attached property, and we think are ■■•ertainly applicable to justices’ courts,under paragraph 5041. They specially mention the property so to be disposed of, either by receiver or by the sheriff or other officer attaching the property. We think these provisions of the code extend to and are applicable to justices’ courts. (Points v. Jacobia, 12 Kan. 54 ; Stevens v. Able, 15 id. 584 ; Clark v. Wise, 34 id. 553 ; Israel v. Nichols, 37 id. 68.)
The levy upon the written evidence of a credit due the defendant, in the form of a note of hand found in the possession of the defendant, or of some bank or other-agent of his, instead of garnishing the creditor, who owes him the debt evidenced by the note, is not different in principle from the attachment of books of account instead of garnishing those who owe what the accounts show to be due the defendant. In the latter case it is held, “ that levy on the account-books is not a levy on the debts charged therein due by others to the defendant.” (Waples, Att., 167-170 ; Lesher v. Getman, 30 Minn. 321; Ide v. Harwood, 30 id. 191.)
If one creditor should attach the promissory note found in the possession of the debtor and another should attach the debt itself in the hands of the party owing the debt, by the process of garnishment, it would plainly appear that the first would have seized only the evidence of the indebtedness, while the second would have attached the debt, which would have created a lien. Which would have something susceptible of being proceeded against as the res in the ancillary proceeding? Certainly the creditor who had garnished the obligor would be the only attachee of the credit due to the defendant. (Prout v. Grout, 72 Ill. 456.) The other, having merely the evidence of the fact that the maker of the note owes the defendant, would have nothing attached which could be pro ceeded against. In a conflict between the rival creditors, there can be no doubt that the one who should garnish the maker of the note and attach the defendant’s credit in the garnishee’s hands would be preferred, unless the second attachment was made after the official attaching the note had given notice as required by section 209 of the code (Gen. Stat. 1889, ¶" 4308), which, provides that the receiver shall give notice of his appointment to the persons indebted to the defendant, and that from the date of such notice the debtors shall stand liable to the plaintiff in attachment for the amount of money or credits in their hands or due from them to the defendant in attachment, and shall account therefor to the receiver. Section 211 (Gen. Stat. 1889, ¶ 4310) provides that where a receiver is not appointed - the sheriff or other officer attaching the property shall have the same powers and perform all the duties of a receiver. >
"We do not hold that a note cannot be sold, but hold that if it is sold it must be under the provision of the code for the disposal of attached property, and an attempt must be first made to collect it; then, if not collectible, or if it has a long time to run, or from other circumstances that might arise which in the judgment of the court would make it for the best interests of all concerned to have it sold, it may be disposed of. ’ The views herein expressed are not in conflict with the decisions of our supreme court in Blain v. Irby, 25 Kan. 499 ; Irby v. Blain, 31 id. 716 ; Beamer v. Winter, 41 id. 596, to which our attention has been called. In the first-cited case the court decided that under the tax law a note was a chattel, and that under a tax-warrant the sheriff had the right to sell the same, but under the law governing the collection of. taxes there is no special provision as to the disposition of property taken under the warrant, and, besides, the note might be the identical property or a portion thereof that was originally taxed, liable for the payment of the tax assessed. When that case came again before the court, it merely decided that the sale so made was valid, notwithstanding the maker of the note purchased it, and that mere suspicion of fraud would not be enough to set aside the sale.
In Beamer v. Winter, 41 Kan. 596, the court held that, when a note taken in garnishment was sold, it must be sold in the same township where seized. But we have been unable, after a careful search, to find where the supreme court has ever decided that a note taken' by garnishment process before due could be sold as other personal property. On the contrary, the weight of authority is against it. But, aside from all this, we think that it is the duty of a court to protect all parties to the action, and not allow the property of the defendant to be eaten up in costs, which, in this case, are shown to be unnecessary. No attempt was made to collect this note or to ascertain if it was collectible, but it was at once sold and purchased by the plaintiff in this action for the small price of $25, the note being for $200, with interest at 7 per cent., while the debt sued upon was less than the face of the note, being only for $189. The plaintiff did not deny, but on the contrary admitted, by its demurrer, that it received $207.70 on this note'in a very short time after it purchased it, on the very day it became due, and now it asks this court to say that, in addition to what it has already collected — which is more than the amount of the original indebtedness — it may recover from the debtor’s estate $207 ; in other words, to allow t lis plaintiff to recover $414 upon a judgment which at the utmost could only be $184.35, with interest at 10 per cent, from February 10, 1890, to September 3, 1893, amounting in the aggregate to $213.53 and costs. We cannot consent to this proposition. As we have said, the garnishment process vests no absolute property in the thing garnished. It merely gives the creditor the right to collect the indebtedness the same as the defendant had, and, when so collected, to apply the proceeds to the liquidation of his debt, and, we think, the defendant had a right and should have been allowed to show that this debt had been paid — that the plaintiff had recovered all it was entitled to receive.
The judgment in this case will be reversed and a new trial ordered.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P: J. :
This suit was originally commenced in the district court of Stafford county by the Western Kansas Loan and Mortgage Company against George A. Davis, Ozella Davis, A. J. Haman, Henry Bally and A. M. Coil to recover the sum of $370.06, alleged to be due to the plaintiff from the defendants on a certain promissory note bearing date September 12, 1888, with 12 per cent, per annum from date of said note. Service of summons was duly made on George A. Davis and Ozella Davis ; the other defendants were not served with summons, and made no appearance to the suit, and the case proceeded as an action against the defendants served with summons as though they were the sole defendants. The petition of the plaintiff was an ordinary petition on a promissor. note, praying judgment for the principal and interesi according to the terms and conditions of the note. The defendants served with 'summons appeared and filed their answer to the plaintiff’s petition, and set tip their defenses in the following order : They admit the execution and delivery of the note set out in plaintiff’s petition, but deny that there is anything due to the plaintiff on said note. In the second defense they say, that at the time this suit was brought the note had been fully paid by defendants, and that nothing was owing upon it. As a third defense the answering defendants say, that on and prior to the 28th day of April, 1887, and for a long time thereafter, the First Bank of Macksville,‘Kansas, belonged to and was owned by the plaintiff; that some time subsequent to April 28, 1887, certain transactions were had by George A. Davis with said bank, setting out fully the transactions of the bank with Davis in the way of loans and discounts and the giving of certain notes, and the renewal thereof from time to time, and the payment of interest on loans, and also including certain sums at different times by way of usurious interest, the giving of certain chattel mortgages to secure the payment of his indebtedness to the bank, and that all of the transactions between the defendant Davis and said bank were transactions had for and on account of the plaintiff, and with full knowledge of the plaintiff, and that all payments made on the several notes given by the defendant to the bank were notes of plaintiff and for its use and benefit; that the note in suit was given by defendants to the plaintiff as a collateral note to and on account of two other notes then held by plaintiff, one for $195 and the other for $2(57, and that a large amount of usurious interest was included in said notes ; that these two notes were secured by chattel mortgages, describing the property mortgaged and giving particularly the payments made on each of said notes and the date thereof, together with the amount of usurious interest paid on each note, and the source of such indebtedness, and alleging that plaintiff had failed to give credit for the payments made on said indebtedness ; and alleging further that in December, 1888, the plaintiff took possession under its chattel mortgage of the property mortgaged against the will, wish and protest of the defendants, and unlawfully converted the same to its own use, and failed to credit the amount realized from the property upon the indebtedness Of the defendants; and prays that the property taken and converted by plaintiff to its own use be credited on said notes as of the date of said conversion, and that the usury set out be credited as payments upon said notes as of the date when made, and the notes be brought into court and canceled, and •the defendants have judgment against the plaintiff for $80, the amount that they have paid in excess of the two notes and legal interest.
The plaintiff sets out in its reply to the answer of the defendants that the First Bank of Macksville was indebted to it in certain sums; that in order to cancel and satisfy a portion of such indebtedness, to wit, the sum of $267 and the sum of $195, the two notes referred to in defendant’s answer were executed; that the form of the indebtedness was changed, and the plaintiff then became the creditor of George A. Davis and Ozella Davis, and two certain promissory notes were then executed in the sums above referred to, and to secure the payment thereof two certain chattel mortgages were executed, describing the property contained in each, of the mortgages; that one mortgage was given to secure one of the notes, and the other mortgage to secure the other note, and attaches copies of each of the mortgages, and makes them a part of the reply, and alleges that after the notes became due it took possession of certain portions of the property described in the chattel mortgages and sold the same at private sale, and is willing to give defendants credit for the amount realized from such sale.
After the issues were joined an order was made, by consent and, agreement of the parties, referring the case to a referee to take the evidence and make and report special findings of fact and conclusions of law therein. The referee, after qualifying, proceeded to hear the evidence and argument of counsel, and made his report in writing, separately setting out his findings of fact and conclusions of law therein, and filed the same with the clerk of the district court of Stafford county, and plaintiff made and filed its exceptions to findings of fact and conclusions of law, which were heard by the court and overruled, and ruling excepted to, and the report of the referee was confirmed and judgment rendered in accordance with the findings of fact and conclusions of law, and plaintiff duly excepted to the judgment, and filed a motion for a new trial, which was overruled and exceptions taken. Plaintiff made a case and brings the same to this court for review.
The record is quite voluminous, and various objections and exceptions are contained in the case made, and are assigned as errors in plaintiff’s petition in error, but the plaintiff now waives all exceptions and objections except one, and says in its brief filed herein :
“ While the record is quite voluminous, there is bui. one question particularly involved in this case — the validity of an agreement in a chattel mortgage executed in this state which provides for a private sale of the property, and the right of the mortgagee to seize the property on default and, where there is no limit as to the place of sale in the instrument, to sell the same in an adjoining county.”
This brings us to an examination of the terms of the chattel mortgages arid the rights and liabilities of the parties thereunder. Each of the mortgages contains the same conditions in relation to the sale of the mortgaged property when the conditions require it, and are as follows :
“Then and thenceforth it shall be lawful for the party of the second part, their executors, administrators or assigns, or authorized agent, to enter upon the premises of the said party of the first part, or any other place or places where said goods and chattels aforesaid may be, to remove and dispose of the same and all equity of redemption of the said party of the first part, at public or private sale, to the person or persons who shall offer the highest price for the same, and out of the avails thereof to retain the amount which shall then be due upon the aforesaid obligation according to the conditions thereof, together with all reasonable costs and expenses attending the same, rendering to the said party of the first part or his legal representatives, the surplus money (if any there be), anything to the contrary notwithstanding; and until default be made as aforesaid, or until such time as said party of the second part shall deem themselves insecure as aforesaid, the said party of the first part to continue in peaceable possession of all said goods and chattels.”
There is no question as to the validity of these mortgages or as to the terms and conditions thereof. •
Section 17 of chapter 68, General Statutes of 1868 (Gen. Stat. 1889, ¶ 3911), reads:
“After condition broken, the mortgagee or his as signee may proceed to sell the mortgaged property, or so much thereof as may be necessary to satisfy the mortgage and costs of sale, having first given notice of the time and place of sale by written or printed handbills, posted up in at least four public places in the township or city in which the property is to be ■sold, at least ten days previous to the sale.”
The supreme court of this state has decided that the parties to a chattel mortgage may waive the provisions of section 17 of the chattel-mortgage act, and may proceed to make such other disposition of the property .as has been agreed upon between the parties at the time of giving the security. (Denny v. VanDusen, 27 Kan. 437.)
The agreement in these mortgages by which it is provided, upon default of payment of the money secured thereby, the mortgagee, by its duly authorized agent, should enter upon the premises wherever the .goods and chattels might be and remove and dispose of the same at public or private sale, to the person or persons who shall offer the highest price for the same, is a valid agreement, and it authorizes the mortgagee to take possession of the property and sell the same to such person as would offer the highest price for it. It gave the mortgagee the right to determine whether it would be the more advantageous to all the parties interested in the property to sell it at private or public sale, but in doing so it required of it to act in good faith. At the time these mortgages were executed the property was all in Stafford county. The stipulation in the mortgages gave the mortgagors the right of the possession of the property until the maturing of the indebtedness, unless the mortgagee should sooner ■deem itself insecure, or a depreciation of the property, •or the mortgagors should attempt to sell or remove '.the property from Stafford county. An attempt to remove the property from the county would cause a forfeiture of the right of possession of the property of the mortgagors, and it gave the mortgagee a right to enter, and take and dispose of the property at public or private sale.
Do these conditions give the mortgagee the right, on taking possession of the property, to remove it from Stafford county to some other county, and there exercise its option to sell at public or private sale? Does the contract contemplate a sale of the property, after the condition broken, in some other county than where the property was at the time it was pledged for the payment of the indebtedness? The contract does require the property to be kept in Stafford county until the indebtedness was discharged. A fair inter - pertation of these contracts required the mortgagee, on default of the payment, to sell the property in Stafford county, and did not authorize the mortgagee to remove the property and sell it in some other market. It contemplated that the property should be sold in the county where it was mortgaged, and when the mortgagee took the property and removed it to some foreign county it was an appropriation of the property by it, and it should account to- the mortgagors for the reasonable market value of the property as of the time and place it was removed to a foreign county by the mortgagee.
The referee found the value of the property at the time and place that plaintiff took possession of it, and found that defendants were entitled to be allowed the reasonable market value of the property at the time and place it was taken ; that the plaintiff took the property and removed it to Pawnee county, and never accounted to the defendants for the property or any of the avails thereof, and brought suit against the de fendants for the full amount of the note and interest; and also found the amount of usurious interest included in the note, the amount paid on said indebtedness for which plaintiff had failed to give defendants credit.
The findings of the referee are sustained by sufficient evidence, and the judgment of the court is in accordance with the findings and conclusions of the referee.
The j-udgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Oole, J.:
On November 21, 1890, Reese Brothers recovered a judgment in the district^ court of Wichita county against the Leoti State Bank, a corporation, and on July 18, 1891, caused execution to be issued thereon and placed in the hands of the sheriff of Wichita county. On the same day they filed their affidavit and bond, and caused to be issued a garnishee summons against the defendant in error, H. A. Platt, and said summons was served bn that day. On August 10, 1891, the garnishee filed his answer denying any indebtedness to the bank, or that he had property in h_j possession or under his control belonging to said bank, but alleging that on July 16, 1890, said bank had executed and delivered to him its deed of assignment, conveying all its property to him in trust for the benefit of its creditors. Attached to said answer, as an exhibit, was a list of the assets of said bank, and also, as a further exhibit, a list of its liabilities. On August 24, 1891, Beese Brothers served notice upon the garnishee that they would take issue upon his answer, and the cause came on for trial before the court upon the issue so made. After hearing said cause the court rendered judgment in favor of the garnishee defendant, and Beese Brothers bring the case here for review. Several questions are raised in this case, but we shall consider only such as are necessary to its determination.
It is contended on the part of the defendant in error that the deed of assignment cannot be assailed in a proceeding of this character for the reason that no verified denial was filed to the answer of the garnishee. This is a special proceeding, and the statute prescribes the manner of procedure in paragraph 4290, General Statutes of 1889, as follows :
‘ ‘ The answer of the garnishee shall in all cases be ■onclusive of the truth of the facts therein stated, un1 íss the plaintiff shall within 20 days serve upon the garnishee a notice in writing that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition', and the garnishee’s affidavit the answer thereto.”
Whenever a statute prescribes the pleadings necessary for any action or special proceeding, and such pleadings are filed, no others are required, but the cause or proceeding may be tried, and the rights of the parties determined, under such pleadings as the statute has prescribed. * The judgment creditors in this case, having served and filed their notice that they elected to take issue upon the answer of the garnishee in the manner provided by statute, thereby notified the garnishee that they would contest in a hearing between themselves and said garnishee the truth of the statements in his answer, and such, we take it, is the true intention of the statutory notice. The decision of this question is closely connected with a determination of the second question raised in this case, which is, Gan the .judgment creditor attack the validity of the assignment in this kind of a proceeding? The defendant in error claims that he cannot; that such an attack would be collateral in its nature , that the only manner in which an assignment for the benefit of creditors may be assailed is by direct proceedings for that purpose; and that the statute will not permit, in a proceeding of this character and under pleadings such as are prescribed therefor, any proof of fraud or other matter tending to break down the assignment.
It is true that, generally speaking, fraud must be alleged in order to admit proof thereof, but this is not always the rule. Our supreme court has held in numerous cases that in an action of replevin fraud may be proved under an answer which is simply a general denial, and we take it that in a certain sense this proceeding is somewhat of the same nature. As we have seen, the statute prescribes that the affidavit of the plaintiff shall be deemed the petition,- and the affidavit of the garnishee the answer. The force of this statute, as applied to this proceeding in garnishment, is, that the petition of the plaintiff alleges that the garnishee defendant has property, rights or credits in his possession belonging to the judgment debtor, and the answer denies that such property, moneys or credits belong to the judgment debtor, and in this case alleges that the garnishee holds the same in trust for the creditors of the judgment debtor by virtue of a certain deed of assignment. We take it that, in such an issue, the creditor may show any fact which tends to prove that the property in dispute belongs to the debtor, and this, too, although such fact may be that the transfer of such property was void on account of fraud or for any other reason. The garnishee cannot claim that this is without notice to him, for, from the very nature of the notice served by the judgment creditor, he is apprised that such creditor intends to show or attempt to show that the'property in his hands is still that of the debtor. We are also of the opinion that under such pleadings the garnishee may show any fact tending to rebut any ownership in the debtor of the property in dispute. (Bailey v. Bayne, 20 Kan. 657 ; Kennett v. Fickel, 41 id. 211; White v. Gemeny, 47 id. 741; Keep v. Sanderson, 2 Wis. 42.)
The next question for determination in this case is, Was the deed of assignment void? It is contended by plaintiffs in error that said deed was void: (1) Because it was not executed by the proper officers; (2) because it was not authenticated by its corporate seal; (3) because it preferred certain creditors, and was, therefore, fraudulent. The defendant in. error contends that the execution of the deed of assignment is admitted because no verified denial thereof has been filed. We do not understand that the objection raised by the plaintiffs in error is in the nature of a denial of the execution of a written instrument, as alleged in the answer. It is simply denying that the paper, as executed, was a legal transfer on the part of a corporation, and this, we take it, would not be within the rule relative to the denial of the execution of written instruments.
We are of the opinion, however, that said deed is not void for either of the first two reasons, urged.. The record discloses that the by-laws of the Leoti State Bank provided for the election of a vice-president, and the record further discloses that, at the time of the execution of the deed of assignment, the president of said bank was absent from the state. Under such circumstances it was perfectly competent for the vice-president and secretary to execute the deed in question. Nor do we think that because the corporate seal was not attached to the instrument the deed was necessarily void. The rule in such cases is, that where a Iona fide intention of a corporation was to make a deed of general assignment, and the same was made for the benefit of all creditors, and only lacked the seal of the corporation, such seal might be ordered attached to the instrument rather than to declare the same void. (1 Lawson, Rights, Rem. & Pr. §405, and cases there cited.)
The moát serious question in this case is whether or not this deed was void because it preferred certain creditors. The deed itself recited that the Leoti State Bank conveyed to H. A. Platt all the property, both real and personal — describing the same — of said bank, to be held by him in trust, and that the same should be disposed of and the proceeds used first to
“ pay and discharge in full the several and respective debts, bonds, notes and sums of money due or to grow due from the said parties of the first part, or for which they are liable to the said party of the second part and the several other persons and firms designated in the schedule hereto annexed, marked schedule ‘B,’ together with all interest money due, or to grow due, thereon.”
It further provided that, if said proceeds should not be sufficient to pay the persons 'designated in schedule “B” in full, then such persons so named should be paid pro rata. The deed provided further that, after the payment of the persons designated in schedule “ B,” the remainder of the net proceeds of the property conveyed should be used for the purpose of paying and discharging all other corporate debts and liabilities to such extent as such remainder would pay the same. It would seem that there can be but one construction given to this deed, and that is, that it attempts to prefer one class of creditors to another, for it distinctly provides that the claims set forth in schedule “ B ” shall be first paid, and that no other claims are to be paid until the claims so scheduled have been fully satisfied. Is .this permissible under our statute? In the case of National Bank v. Sands, 47 Kan. 591, and Brigham v. Jones, 48 id. 162, the rule is laid down that where a general assignment is made bjr an insolvent debtor for the benefit of his creditors, and the deed of assignment contains a clause directing the trustee to distribute the estate in a manner inconsistent with the statute, such clause does not avoid the conveyance, but should be treated as a nullity by the assignee, and the estate distributed by him as the statute prescribes. In tbe absence of fraud, therefore, a preference of creditors expressed in tbe deed of assignment is a mere nullity, and tbe record in this case does not in our opinion bear out tbe contention made by tbe plaintiff in error that tbe 'assignment in this case was made with fraudulent- intent.
It follows from what has been said that tbe judgment of tbe district court must be affirmed. It is so ordered.
All tbe Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
In September, 1890, ‘the plaintiff in error commenced this action in the district court of Bourbon county, Kansas, to restrain the officers of school district No. 110, Bourbon county, Kansas, from issuing bonds of said district in the sum of $500 to build a schoolhouse in said district. The petition for the injunction alleges that the officers of said district made an improper and untrue return of an election held in said district to decide whether said district should .issue its bonds to build a schoolhouse in said district, and knowing said return to.be false, and, knowing said bonds to have been illegally voted, proceeded to issue, and did issue, said bonds, and were about to dispose of the same and use the pi’oceeds to build a schoolhouse. It contained other aixd necessary allegations, and was sufficient to authorize the granting of an injunction. It prayed for an injunction perpetually to restrain the school board from selling said bonds, or proceeding further in any way under guise of the authority claimed by it to be derived from said vote, and for costs and such other proper equitable relief as plaintiff was entitled to. Afterward the defendants filed their answer to said petition, generally and specifically denying all the allegations therein. The case was tried on the issues joined between the parties by Judge West, without a jury, an'd upon all the evi dence the court found the issues in favor of the ’plaintiff and made the injunction perpetual, and adjudged the costs against the defendants. A motion was filed by the defendants for a new trial, and, while the motion was still pending, Judge West’s term of office expired, and he was succeeded by Judge Allen, who sustained it pro forma, to which plaintiff excepted.
Afterward, on the 28th day of September, 1891, while said cause was pending for a new trial, the plaintiff filed a motion to dismiss the case at defendants’ cost, and, to support the motion, introduced a resolution adopted by the voters of said school district at its annual school meeting in 1891, with proof of the adoption of said resolution by a tally-list of the votes cast at said election for and against the same, showing that 16 votes were cast for the resolution and 7 votes against it. The resolution was as follows :
“ Resolved, That the school board of this district are hereby authorized, empowered and directed to immediately discontinue the defense of the action or proceeding now pending in the district court of Bourbon county, Kansas, wherein J. M. Humphrey, as county attorney, is plaintiff, and James Windle and other members of the then school board of this district are aud were defendants ; and be it further
Resolved, That we, school district No. 110, do hereby concede, as far as this district,is concerned, the right claimed by the plaintiff in asking for an injunction restraining the issue of schoolhouse bonds ; and we denounce the action of the said defendants in contesting said suit as having been against rights and the interest of said district; and we do deny any liability of said district for costs in the said ■ action; and do claim that a taxation of costs against said .district would be unwarranted ; and we do authorize the clerk of said district to file in said suit a withdrawal from said action and a stipulation that no such bonds shall be issued by this district as set forth in plaintiff’s petition upon any bond vote heretofore had in said district.”
“ The above resolution was moved by J. R. Willett and seconded by Joseph Mercer at the annual meeting held in district No. 110, Bourbon county, Kansas, July 30,1891. The resolution was adopted by 16 votes in the affirmative and 7 votes in the negative.”
The court heard the evidence and overruled the motion to dismiss said suit at defendants’ cost, and plaintiff duly excepted. Thereafter, while said- case was still pending, the attorneys for both parties entered into an agreement in writing, and filed the same in said case, which is as follows :
“ It is agreed that the above case shall be submitted to the court and decided upon the evidence taken in the case at the former trial by shorthand by the court stenographer; and also that the defendants may introduce evidence concerning Farrell’s children as to where they attended school during the time in controversy, and the plaintiff may do the same, and as regards Farrell’s residence at that time and since. The passage of the resolution by the school district is admitted, as shown by the Lardner affidavit.”
On October 1, 1891, they made the following supplemental agreement:
“ This case is to be submitted on the Brooks statement, Lardner affidavit as to school-district resolution, and the stenographer’s notes of former trial.”
At the same time it was agreed between the attorneys that the case should be submitted under said written agreements whenever the court could hear it, without regard to the presence or absence of attorneys. The written agreements were filed in the case, and all the papers, documents and evidence therein mentioned were in the court-room all the time during the September term, under the control of the court. The judge was advised of said written agreements, and also the verbal agreements of the attorneys to submit in absence of attorneys, and he was told that the case might be taken up by him at any time. On October 7, 1891, at the September term, at the morning session of the court, the defendants’ attorneys called up the case, in the absence of plaintiff’s attorney, and demanded a trial, and, the plaintiff’s attorney not being present, the case was postponed until the afternoon session, at which time attorneys for defendants again demanded trial of the case, and plaintiff’s attorney still being absent, the court dismissed the case for want of prosecution, and rendered judgment therein against the plaintiff for all costs of suit, amounting to the sum of $120. The plaintiff filed a motion to set aside the judgment of dismissal and for costs of suit, and to reinstate the case and proceed according to the written agreements of the parties. The motion was overruled, plaintiff excepted, and a second motion was filed by plaintiff to set aside the judgment and reinstate the case, which was overruled, and. excepted to by plaintiff, and the case is brought here for review.
' The court erred in- dismissing this case and rendering judgment against the plaintiff for costs of suit, for a failure to prosecute his action. When the parties had stipulated in writing and filed in court agreements to submit the case to the court for a trial on the documents then in court, the court to take the case up at any time that it was convenient, without regard to the presence of attorneys, and to decide the same under the written stipulations, it should not be said that the plaintiff had failed to prosecute his action. The court should have taken the stipulations and pleadings and documents and stenographer’s notes, and decided the case on its merits.
The judgment is reversed, and the case remanded to the district court, with directions to set the judgment for costs aside and to render judgment of dismissal at the defendants’ cost, in accordance with the resolutions passed by the district at its annual meeting.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
The defendants in error broúght this action in the district court of Thomas county against the plaintiff in error to recover on three several promissory notes executed by Daniel Bradbury, and payable to the order of one M. T. Bradbury. .The petition sets' forth the notes separately and in full, duly alleging their execution by the defendant, their indorsement and transfer to the plaintiffs by the payee before maturity, and that the plaintiffs are the owners and holders thereof. The answer of the defendant contains a general denial which is supplemented by two other defenses separately stated as follows :
“First, Defendant admits that he made, executed and delivered each and every of the notes in plaintiff’s petition mentioned, but denies that he did so for a valuable, or any consideration, or at all, except for accommodation, and to assist one M. T. Bradbury, to whose order said notes and each of them were made payable. Defendant alleges that, at the time of making and delivery of said notes and each of them mentioned in plaintiff’s petition, said M. T. Bradbury, to whose order they were drawn payable, and for whose accommodation said notes were made, was indebted to the defendant for other and different loans of money, and other, advances made by defendant for him, and at his instance and request, in the sum of, to wit, $380, which has never been returned or repaid by him or in any way satisfied up to this date. Second, Defendant, for a further defense to each of the three causes of action set forth in plaintiff’s petition, denies that said promissory notes were transferred for value before maturity, or that plaintiffs took said notes for value, or otherwise than after maturity, and with notice of their infirmities.”
To this answer no reply was filed. The plaintiffs recovered a judgment for, the amount due on two of the notes, and the defendant has brought the case to this court for review.
The plaintiff in error contends that he was entitled to judgment in his favor upon the pleadings for the want of a reply to the alleged new matter . set up in the answer. While the defendant avers that the only consideration for the execution of the notes was the accommodation of M. T. Bradbury, his answer did not contain even the allegation that the plaintiffs had notice of that fact, and the second defense amounted to no more than a general denial of the allegations of the petition and required no reply. We think the court properly denied the defendant’s motion for judgment upon the pleadings. The record shows that these notes were negotiable in form ; that they were indorsed in blank by M. T. Bradbury, the payee, and by him deposited with the Bank of Jennings as collateral security for a loan of money ; that soon thereafter, in pursuance of an agreement entered into between M. T. Bradbury and the defendants in error, tire latter forwarded to the Bank of Jennings the amount owing by M. T. Bradbury to the said bank, and obtained from it these three notes, which they thereafter held as collateral security for the payment of the indebtedness which he owed to them, which, including the said $63, amounted to more than $850. One Of these notes was past due at the time this transaction took place. Soon thereafter a payment of $25 was made by Daniel Bradbury to the defendants in error, and,, as no directions were given with reference to the application of this payment, the amount thereof was properly indorsed on the note then past due. (Fox v. Bank of Kansas City, 30 Kan. 441.) The indebtedness from M. T. Bradbury to the defendants in error was thereafter reduced to about $150, and new notes were executed by him for the amount remaining unpaid, and it was then agreed between him and the defendants in error that these collateral notes should continue to be held as security for the payment of such indebtedness.
There is nothing in the record to indicate that, at the time these collateral notes were turned over to Van Pelt & Olney, nor until a long time thereafter, the defendant in error had any knowledge or intimation that they were executed simply for the accommodation of the payee therein, or that they did not evidence an actual bona fide indebtedness from Daniel Bradbury. The trial court held that the plaintiffs were not entitled to recover the balance due upon the note which had matured prior to the date that the plaintiffs acquired an interest therein, but directed the jury to return a verdict in favor of the plaintiffs for the amount due upon the other two notes, the same being Less than the amount of the indebtedness owing from M. T. Bradbury to the defendant in error. The plaintiff in error also contends that, as at the time o'f the execution of the notes for $450 by M. T. Bradbury and the making of the agreement with the defendants in error that the collateral notes should continue to be held as security for the payment of such indebtedness these collateral notes -were all past due, the defendants in error thereafter held them subject to any defenses which might have been interposed by the maker in an action brought by the original payee to recover the amount due thereon. It must be borne in mind, however, that these notes were originally pledged to secure the payment of a certain indebtedness from M. T. Bradbury to the defendants in error, and while new notes were subsequently executed as evidence of a portion of that indebtedness, there is nothing in the record to indicate that the parties to that transaction regarded the execution of such new notes as a payment or extinguishment of the original indebtedness, and without such an understanding on their part it should not be so construed by the courts. (Bradley v. Harwi, 43 Kan. 314.) As the plaintiffs were entitled to recover, the court very properly directed a verdict in their favor.
No error appearing in the record, the judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
On October 1, 1886, the Western Farm Mortgage Company, of Lawrence, a corporation organized and doing business under the laws of Kansas, loaned to Thomas V. Malone and wife $1,000, and accepted as evidence of such indebtedness their real-estate coupon bond for $1,000, payable to the order of one W. J. Neill, at tlie Third National Bank in the city of New York, on the'1st day of October, 1891, bearing interest at the rate of 7 per cent, per annum, payable semiannually. To secure payment of this bond, Malone and wife executed in favor of Neill a mortgage deed on 80 acres of land in Lincoln county. This bond recited that it was given for an actual loan of $1,000, and that said loan was secured by a mortgage deed on real estate duly recorded, and also contained this clause : “To which said deed reference is hereby made, and which is made a part of this contract-.” Thomas B. Cline subsequently became the owner of this real estate,.by a conveyance thereof from one John A. Shannon, a grantee of George Green, to whom Malone and wife had conveyed the same. By ‘the terms of the deed from Shannon to Cline, the latter assumed payment of this mortgage. Cline paid several installments of interest, and finally, on October 1, 1891, he remitted by bank draft the entire amount then due on the bond and mortgage, being the principal sum and interest thereon, amounting in all to $1,097.70. All of these payments and remittances were made by Cline to the mortgage company which made the loan originally, although the name of the company had changed to the Western Farm Mortgage Trust Company, of Denver.
In March, 1887, Neill transferred and assigned the bond and mortgage to one J..H. Pratt, and by successive assignments the same were transferred from Pratt to J. B. Burgess, and from Burgess to Abby J. Loekrow, the plaintiff in error herein, the last assignment having been made January 21, 1889. The trust company retained the $1,097.70 remitted to it by Cline and failed to forward the same to the then owner and holder of the bond and mortgage, Abby J. Loekrow, and on July 26, 1892, Cline commenced an action in the district court of Lincoln county against Neill, Pratt, Burgess and Lockrow to secure a cancellation and release of this mortgage. Lockrow answered, alleging her ownership of the bond and mortgage ; that the same were unpaid, and asked for a personal judgment against Malone and wife, who were on her motion subsequently made parties defendant, and against the plaintiff, Cline, upon his assumption of the mortgage indebtedness as set out in the deed from Shannon to him. The trial resulted in a verdict and judgment in favor of the plaintiff as prayed for in his petition, and Abby J. Lockrow seeks a reversal of that judgment.
The jury returned the following special findings of fact:
“ 1. Did the mortgagee, W. J. Neill, have any interest in the note and mortgage in controversy other than nominal? Ans. He did not.
“2. Was the Western Farm Mortgage Company the real owner of the note and mortgage in controversy at the time of their execution and delivery? A. It was.
“3. Did the Western Farm Mortgage Company quit business about November, 1887? A. It did.
“4. Did the Western Farm Mortgage Trust Company of Lawrence, Kansas, and Denver, Colo., purchase the assets of the Western Fax*m Mortgage Company about November, 1887 ? A. Part of them.
“5. Did the plaintiff continually, from 1888, pay all the interest coupons on the note in controversy to the Western Fax*m Mortgage Trust Company at Denver, Colo.? A. He did.
“6. Did the plaintiff pay to the Western Farm ¿Mortgage Trust Compaxry the interest and principal in full after due ? A. He did.
“7. Did the plaintiff have any knowledge or notice of the interest claimed by defendant, Lockrow, before the payment to the Western Farm Mortgage Trust Company? A. He did not.
“8. Did plaintiff pay the note and mortgage in controversy to the Western Farm Mortgage Trust Company in good faith, believing the company had the right to collect same ? A. He did.
“9. Did defendant, Abby J. Lockrow, sell the coupons detached while she was the owner to the banks where she received payment, or did she place them in the possession of the banks only for collection ? A. For collection only. r
“10. Did Cline, at the time he forwarded the money to the Western Farm Mortgage Trust Company, at Denver, Colo., believe and suppose that said company was owner and holder of the note executed by Malone and wife? A. He did.
“11. What 'acts, if any, did Abby J. Lockrow do or authorize to be done for her prior to October 13, 1891, in direction of the collection of- the coupons upon said bond or the collection of said principal bond? A. She did nothing.
“ 12. Where was the principal note and mortgage kept and held; that is, in whose possession were they on October 13, 1891? A. In Abby J. Lockrow’s possession.”
The jury further specially found that Cline paid the note and mortgage to the original owner and holder thereof; that he did not examine the records at any time to ascertain where the mortgage was payable ; that he did not know at the time he sent his last payment to Denver that Neill was not the real mortgagee ; that Abby J. Lockrow was the owner and holder of the note and mortgage at the time Cline made his final payment; that she had possession of and control over the note and mortgage at all times, after she bought them in 1889, and had no correspondence either with Neill or the Western Farm Mortgage Trust Company about the payment of interest or prin cipal, and that she never authorized either of them to collect any interest or the principal on the note and mortgage in controversy.
The plaintiff in error contends that under these special findings of fact the payment by Cline to the trust company of $1,097.70, on October 13, 1891, being un-, authorized by her, did not in law amount to a satisfaction of the indebtedness, and that she was entitled to a personal judgment against the defendants in error for an amount equal to the face of the bond, and interest thereon from April Í, 1891, and a decree foreclosing her mortgage, notwithstanding the general verdict of the jury in favor of the plaintiff bel'ow.
We 'think the proper determination of this controversy hinges upon the question as to whether or not this bond was a negotiable instrument. If it was such an instrument, then the plaintiff in error was entitled to a judgment in her favor and a decree foreclosing her mortgage. This bond contains the stipulations usually found in real-estate mortgage bonds or notes, but differs from many of them in that it refers to the mortgage deed securing the payment of the bond, and'makes the same a part thereof. By doing so each and every condition, provision and stipulation in the mortgage deed.becomes as much a part of the bond as it would were it written upon and embodied in the same instrument; and if the mortgage deed contains any provision or stipulation which, if inserted in the boxxd, would x-ender it a non-negotiable instrument, such xnust be the legal effect of that clause which refers specifically to the mortgage deed making it a part of the contract.
In this mortgage, Malone and wife covenanted that at the delivery thereof they were the lawful owners of the premises thereby granted, and that they were seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that they would warrant and defend the same in the quiet and peaceable possession of the mortgagee, his heirs and assigns forever, against the lawful claims of all persons whomsoever. It also contains an agreement that the makers thereof should pay all taxes and assessments levied against the 'premises when the same should become due, and if not so paid, that the mortgagee or the legal holder of the mortgage might, without notice, either declare the whole sum of money secured thereby at once due and payable, or he might elect to pay the taxes, and in case of such payment, the amount thereof should be a lien on the premises and secured by the mortgage, and collected in the same manner as the principal debt. The makers of the mortgage also therein agreed to keep all buildings, fences and other improvements upon the premises in as good repair and condition as the same were at the time the mortgage was executed, and abstain from the commission of strip or waste on the premises until the whole sum thereby secured should be fully paid. The mortgage further provides, that in case of default in the payment of any sum as specified in the bond, or in case of the breach of any of the agreements or conditions contained in. the mortgage, the bond and accrued interest thereon, and any money which may have been advanced by the mortgagee, should at his election become at once due and payable, and the mortgagee should at once be entitled to the possession of the mortgaged real estate, and have and receive all the rents and profits thereof.
In Killam v. Schoeps, 26 Kan. 310, the supreme court held that an instrument which contained a contract in respect to the title to property,' and for the possession thereof, rendered the instrument something more than a simple promise to pay money; and Bréwer, J., said in the opinion :
“ There might as well be included in one agreement a contract for the lease of real estate, or for the hiring of chattels, or the performance of labor, with an absolute promise to pay a sum certain at a certain time, and then affirm that by reason of this absolute promise the entire contract is a negotiable instrument. This is not the law. Doubtless many of the rules respecting negotiable paper are purely arbitrary, but nevertheless they are well settled, and' ought to be rigorously enforced. Among those rules is that of the unity of the contract, the singleness of the promise to pay, and we think no departure should be made from the spirit or letter of those rules. We conclude, then, that whenever any stipulation concerning other matters than the payment of money is incorporated in one instrument with a promise to pay money, such double contract will not be adjudged a negotiable paper.”
In Iron Works v. Paddock, 37 Kan, 510, it was held, that where a note contained a provision that if it was not paid at maturity the payee might take possession of and sell the property for the payment of which the note w;as' given, it contained other provisions than for the unconditional payment of money and was nonnegotiable. Under these decisions, we must hold that-the bond in controversy is a non-negotiable instrument.
What then were the respective rights and duties of the assignee of the bond and of the purchaser of the the equity of redemption? We answer that they were in all respects similar to those of the assignee of any other chose in action, and the party liable for the satisfaction thereof, respectively. The assignee should give notice of the assignment to the party to whom he looks for payment, as a payment to the original promisee of a non-negotiable instrument without notice of the assignment would, in law, be deemed a satisfaction of the liability. In Jones on Mortgages, §956, it is said that, "if the mortgage be overdue at the time of the assignment, the mortgagor maybe protected in making payment to the mortgagee, until he has received notice of the assignment of the mortgage.” In 1 Parsons on Contracts, 5th ed., p. 227, it is said that
"the debtor may make all defenses which he might have made if the suit were for the benefit of the assignor, as well as in his name, provided these defenses rest upon honest transactions which took place between the debtor and the assignor before the assignment, or after the assignment before the debtor had knowledge or notice of it.”
Mr. Neill, at the date of the execution of the mortgage, was a clerk in the office of the Western Farm Mortgage Company, and afterward held a similar position with the trust company, but he had no interest whatever in this bond or the mortgage given to secure its payment. The trust company sent to Cline regular notices of the dates when the interest and principal would respectively mature, and therein directed that payment should be made to it. The final payment by Cline was, as the jury specially found, forwarded to the trust company through the Western Farm Mortgage Company, the latter being the real party in interest at the date of the execution of the bond. The evidence shows that the draft by means of#which this remittance was made was drawn payable to the Western Farm Mortgage Company, and was by it indorsed in blank. Cline had no notice, either actual or constructive, that this bond belonged to any one other than the mortgage company. assignee of a mortgage, as a practical matter, should always give notice of the assignment to the holder of the equity of redemption, so as to surely protect himself against payments which may 'be made in good faith to the assignor.” (Jones, Mortg. §791.) All prior payments of interest had been made to the trust company, and in due time thereafter the interest coupons were returned to Cline by that company. We think the jury were warranted in finding that Cline acted in perfect good faith in this transaction, and that in consequence thereof he was entitled to a verdict and judgment canceling the mortgage.
'It appears from the record that, although in the deed of conveyance from Shannon to Cline the latter assumed the payment of this mortgage, Shannon himself was under no liability to pay that indebtedness, as he had in no way assumed its payment; hence, under the decision in Morris v. Mix, ante, p. 654, recently decided by this court, neither the mortgagee nor his assignee could recover from Cline by virtue of his agreement with Shannon to pay the mortgage.
'As we discover in the record no error prejudicial to the rights of the plaintiff in error, the judgment of the trial court will be affirmed.
All the Judges concurring. | [
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The opinion of the court was-delivered by
Cole, J.:
Mrs. E. A. Corbett brought an action upon a note and to foreclose a real-estate mortgage upon lot-id, Johnson’s subdivision to Osawatomie. The note and mortgage were executed by J. J. and E. Lord, and the petition alleged that Elizabeth G-. Brady had purchased the property and assumed and agreed to pay the mortgage thereon. The petition further alleged, that a certain house located upon lot 15 should be subjected to the lien of the mortgage in question, for the reason that it was supposed, at the time the said house was erected and the said mortgage given, that the house was located upon lot 14, and that the misdescription was a mistake which was not discovered until some time after the giving of the mortgage. Upon the trial of the cause, a joint personal judgment was rendered in favor of Mrs. E. A. Corbett and against J. J. Lord, E. Lord, and Elizabeth G. Brady.
In this court plaintiffs in error have only made Mrs. Corbett a party defendant, and we are asked to dismiss the proceedings in error for that reason. It has been frequently held by the supreme court, as well as this court, that where a judgment against several parties is' brought into a court of review, and it is apparent that a modification or reversal thereof will prejudicially affect other parties not made parties to the pro ceedings for review, the court cannot entertain the case and it will be dismissed. Following this rule, the request of defendant in error must be granted.
In this case a joint judgment was rendered by the trial court against J. J. Lord, E. Lord, and Elizabeth G, Brady, and a modification or reversal of that judgment would prejudicially affect J. J. Lord and E. Lord, as well as the plaintiffs in error. If, after the sale of the mortgaged property, a balance should remain unpaid, execution might issue under the decree against each of said defendants below. If we were to •reverse the personal judgment rendered against Elizabeth G. Brady, she would be relieved from it, and the whole weight of the residue would fall upon J. J. and E. Lord. It was said in the case of Norton v. Wood, 55 Kan. 559 :
“We cannot so shift the burden upon the latter in his absence. A condition precedent to such a change of responsibility by order of this court is that he be brought into it as a party in due time.”
See also Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346; Matthewson v. Senior, 3 id. 117.
We may say, in connection with this case, that we have carefully examined the record and are satisfied that the judgment was correct in all respects, but, on account of the absence of necessary parties, the case must be dismissed.
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.The opinion of the court was delivered by
Garver, J. :
April 25, 1889, the defendant, Walter Lloyd, purchased a tract of land from one Jame> Rominger, the deed of conveyance therefor reciting that it “was subject to a mortgage of $350 now on said land, which said mortgage said grantee assumes and agrees to pay.” This action was commenced against Lloyd on said agreement October 25, 1894. The note and mortgage evidencing the debt alleged to have been assumed were executed March 1, 1888, by James. Rominger in favor of W. H. Lichty, and called for the payment of said sum of $350, with interest, in five years thereafter. In the petition, the plaintiff alleged the execution of the note and mortgage, the nonpayment thereof, their transfer and delivery to the plaintiff by W. H. Lichty, and the plaintiff’s present ownership. The trial court sustained a demurrer to the plaintiff’s evidence, which ruling is now here for review.
In support of the ruling of the court, several matters are urged as showing that the plaintiff failed to introduce evidence tending to prove his right to recover . ' It is contended that the evidence does. not show that the mortgage debt referred to in the deed of conveyance from Lichty to Lloyd was the. same debt as that evidenced by the note and mortgage referred to in the petition; that there was no evidence tending to prove the plaintiff’s alleged ownership; and that the plaintiff’s cause of action was barred by the five years’ statute of limitations. We think the evidence of the plaintiff showed, without much room for question, that the mortgage indebtedness referred to in the deed from Rominger to Lloyd was the identical debt sued for in this action. While there was a second mortgage upon the same premises, the evidence shows that it was to secure the sum of $70, and was probably a commission mortgage executed between the same parties, at the same time, and regarded as a part of the $350 loan. The maker of the mortgage — the grantor in the deed to Lloyd — testified that this was the only mortgage on the land at the time of said conveyance. We are unable to see how, under this evidence, it can be reasonably said that the agreement of the defendant did not relate to this particular mortgage indebtedness.
The petition described the note by giving the date, the names of the maker and payee, and its amount. There was also attached to the petition copies of the note and mortgage with the indorsements thereon of the several written assignments through which the title became vested in the plaintiff. These written assignments on- their face purported to transfer the mortgage debt to the plaintiff. The note introduced in evidence, being the one shown to have been secured by the mortgage referred to in the Rominger deed, is the original of the copy attached to the petition, and is the identical note of which the plaintiff alleged himself to-be the owner. The objection that the petition alleged that the note was transferred and delivered by Liclity, the original payee, to the plaintiff, instead of alleging also the several intermediate transfers, we think is too technical to justify in itself the ruling of the court. If an amendment in this respect was necessary, this court, in furtherance of justice, will consider such an amendment made, for it is evident that no one has been misled to his prejudice.
As the note was not transferred to the plaintiff by a commercial indorsement, his allegation of ownership was put in issue by the general denial of the defendant ; and it devolved upon the plaintiff to prove this allegation of his petition by competent evidence. (Washington v. Hobart, 17 Kan. 275.) But possession of the note is prima facie evidence of ownership. (Eg gan v. Briggs, 23 Kan. 710 ; O’Keeffe v. National Bank, 49 id. 347.) The record shows that the plaintiff had possession of both note and mortgage upon the trial, and that they were introduced in evidence by him. This made out a prima facie case, and was sufficient, in the absence of other evidence, on which to base a recovery.
Was the plaintiff’s action barred by the statute of limitations ? The debt which the defendant assumed did not, by its terms, mature prior to March 1, 1893. It is true the mortgage provided that, in default of payment of interest, as it matured semiannualiy, the holder of the mortgage, at his option, might declare the whole sum due and payable. But it does not appear that such option was exercised prior to January 37, 1893, when an action to foreclose the mortgage was commenced. The statute of limitations would not run in favor of the defendant prior to the time when the debt which he had agreed to pay became due and payable. It is contended that the holder of the mortgage could have maintained an action against Lloyd at any time after April 25, 1889, the date- of his assumption and agreement. We think otherwise. The case of Schmucker v. Sibert, 18 Kan. 104, on which counsel for defendant- rely, does not support such a proposition. In that case the mortgaged' premises had been conveyed after the maturity of the mortgage debt which the grantee had assumed, and the court simply held that the statute of limitations began to run as to the grantee from the time when his agreement was made, and not from the time when the original debt matured. It is plain that the holder of the note and mortgage could not maintain an action thereon prior to the time when, by their terms, they were payable. The agreement of the grantee, Lloyd, was to discharge that debt; and, in the absence of evidence to the contrary, it will be conclusively presumed that he assumed no greater or different obligation than that originally contracted by his grantor. The contract as to time of payment remained unchanged. The plaintiff, as holder, had no cause of action against either the maker of the note or against the grantee upon his assumption of payment until there was a default in making payment according to the terms of the contract under which the debt matured. An agreement to pay a debt, no time being specified, is an agreement to pay it when due; or, if already due, then forthwith. (Braman v. Dowse, 12 Cush. 227 ; Furnas v. Durgin, 119 Mass. 500.) The liability which Lloyd incurred was a payment to be made in the future, and, until that time, no cause of action existed against which any statute of limitations could run. (1 Wood, Lim. § 165.)
For the foregoing reasons the judgment will be. reversed, and the case remanded for a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J.:
On August 14, 1893, Jewett & Lowen, of Fall River, made an assignment ■‘hr the benefit of creditors, naming C. M. Jones as assignee. On the two days' following certain creditors of Jewett & Lowen commenced actions against them, and caused attachments to be issued and levied upon the property in the possession of said assignee. The ground for the attachment was that said firm had disposed of their oroperty for the purpose of hindering and delaying and defrauding its creditors. Afterward the property was sold by the sheriff, and the proceeds of the sale were applied upon the judgments rendered in favor of attaching creditors by order of the court. The assignee designated bj?- Jewett & Lowen failed to comply with, the requirements of -the statute, and the district court appointed the defendant in error, A. M. Hunter, as assignee, who brought this -action against J. A. Smith, as sheriff, for the value of the goods sold under the orders of attachment. Upon the trial of the cause a verdict and judgment were had and entered for the assignee, and the sheriff brings the case here for review.
Two errors are alleged by counsel for the plaintiff in error, the first being the ruling of the court overruling the demurrer of the defendant to the evidence on the part of the plaintiff. .From the record in the case we can see no error in this ruling of the court, and counsel does not call our attention to any reason why the demurrer should have been sustained. The second error complained of is the ruling of the court in excluding certain testimony offered by the defendant to show a fraudulent appropriation by the assignors of a part of the property assigned, and to show a fraudulent intent on the part of Jewett & Lowen m making the assignment for the benefit of creditors." The defendant had shown by a witness named Wash-burn that he was in the employment of Jewett & Lowen up to the time they assigned; that for some time preceding the assignment he had been collecting accounts due said firm, and the witness was then asked- to state what he did with the proceeds of the collections. An objection was raised to the introduction of this evidence, upon the ground that this testimony was incompetent, irrelevant, and immaterial; that any, acts of Jewett & Lowen, or of their employees, were wholly incompetent as evidence for the purpose of defeating or disputing the deed of assignment in this case upon which the plaintiffs right of action is based. And the counsel for the assignee made the further objection
“I say in that connection I will make this objection to cover all acts of these parties preceding the execu■ion of this deed of assignment, also the acts of them mnployees. I mean by that all acts-and facts which might be offered m evidence for the purpose of showing any fraudulent disposition of the property, or fraudulent diversion or reservation of the property of these parties.”
The objection made was sustained by the court, and afterward the plaintiff in error offered to prove by other witnesses further acts upon the part of the assignees tending 'to show a.fraudulent diversion or reservation of the property assigned, as well as statements made by one of the assignors tending to show a fraudulent intent in the making of such assignment, all of which acts and statements were performed and made prior to the execution of the deed of assignment. A similar objection to that stated above was sustained to all of this evidence.
Several questions are presented by this record, all pertaining to a construction of the statutes of this state governing assignments for the benefit of creditors Upon the part of the defendant in error, it is contended that where a statutory assignment is made for the benefit of creditors, no act of the assignor prior to the making of the assignment, however fraudulent such act may be, will defeat the deed of assignment, but that the property passes to the assignee, to be distributed under the order of the court to all the creditors pro rata, and that no creditor has a right to attach any of the goods assigned m the hands of the assignee, on account of the fraudulent acts pf the assignor. Counsel for defendant in error concedes that the earlier cases decided by our supreme court are opposed to this theory, but claims that the later decisions and the amendments to the act of 1868, as made by the legislature of 1876, have changed the rights of parties in this state where a voluntary assignment has been made for the benefit of creditors. It must also be conceded that the general rule, outside of statutory provisions, is, that any fraudulent act upon the part of the assignor will defeat the deed of assignment. In the case of Ruble v. McDonald, 18 Iowa, 493, the supreme court says:
‘ In the first place it is contended that they [certain instructions asked] are all erroneous, in that they do not recognize a principle or rule which it is claimed pervades the law of assignments, namely, that in order to render void such instruments on the ground that they were made to defraud creditors the grantee or assignee -must have knowledge of and participate in the fraud. The rule suggested and contended for, as applicable to grantees or purchasers under bills of sale or deeds of conveyance, is perhaps a sound one, for the very plain reason that an innocent purchaser who has paid his money in good faith ought not to suffer on account of the grantor’s fraudulent purpose, of which he had no knowledge; and it is to this class' of cases that the authorities cited by appellant all refer. The principle has no application to assignment's. The assignee is but the agent of the assignor and ■beneficiaries of the trust. He has no such personal or individual' interest in the transaction as that a guilty knowledge of the fraud must be brought home to him before assignment can be impeached for the cause mentioned.”
In the case of Lampson v. Arnold, 19 Iowa, 479, the same court affirmed the rule laid down in, Ruble v McDonald, supra, and cites the sections of their statutes governing assignments for the benefit of creditors, which appear to be similar to the statutes of our own state.
In the case of Lesher v. Getman, 28 Minn. 93 ( 9 N. W. Rep. 585), the supreme court of Minnesota lays down the following rule :
“It has long been well settled, both in this state and elsewhere, that the intent of the assignor in making such an assignment is the material consideration in determining its validity, and that a fraudulent intent on the part Of the assignor will vitiate an assignment, whether such intent appear from the face of the instrument or from extrinsic evidence. It has also been decided in this court, in accordance with the great weight of authority elsewhere, that the assignee under such an assignment does not stand, in the position of an innocent purchaser for a valuable consideration; and therefore the fact that he had no knowledge of the fraudulent intent of his assignor will not cure the fraud.”
So far as our statute is concerned with regard to assignments, it may be said that it in no way forms the basis of the making of a voluntary assignment for. the benefit of creditors. Such a right existed independent of the statute, and the statutory provisions are for the purpose of regulating the mode of executing them and to define the duties of assignees, thereby giving creditors more effectual control over the acts and proceedings of both assignor and assignee, but the question of the validity of the assignment (aside from its following the statutory form) is left to be determined by the existing rules of law.
In the case of Kayser v. Heavenrich, 5 Kan. 824, our supreme court says:
“Again, it is contended that the fraud, to affect the assignment, must have been known to and participated in by the assignee or creditors. Such a doctrine would, in most cases, entirely preclude the creditors from setting up fraud in an assignment. The conveyance is usually made without consultation with the creditors, and the assignee would hardly be consulted about or advised of any illegal or fraudulent practices on the part of the failing debtor. Neither the assignee nor the creditors are purchasers for a valuable consideration, and it is not necessary that notice of the fraud should be brought home to them to render the conveyance void. (12 Mich. 61; Burrill, Assignm. 438,439.) The property had been converted into money; it was in the hands of the plaintiff in error; the conveyance by which he held it was fraudulent and void; so that the funds were in his possession, and subject to the proceedings instituted by the defendants in error to make them available for the payment of their claims.”
And the doctrine therein announced is also laid down in Grocery Co. v. Records, 40 Kan. 119. It is contended by counsel for the defendant in error that the doctrine as announced in Kay ser v. Heavenrich, supra, does not control under our present statutes, and that upon a rehearing of the case of Grocery Co. v. Records, supra, the court seems to repudiate that portion of the syllabus which we here refer to. We have carefully examined our statutes as amended, and also the opinion of the court in Grocery Co. v. Records upon the rehearing (40 Kan. 215), and can find no good reason for believing either that the rule has been changed or that the supreme court has set aside the doctrine announced in that case.
The question which now arises is, Can the fraudulent intent and acts of the assignor be shown in an action of this character? The assignee brings this action claiming to be the owner of the property in question under the deed of assignment, and it is clear that he must show a good title in order to recover. In the case of Harris v. Capell, 28 Kan. 117, Valentine, J., in delivering the opinion of the court, uses .the following language :
“ It must be remembered that the material question in this case is simply whether the attachment is valid, mid that all questions with reference to the assignment arise only incidentally. This case is wholly unlike a case where an execution, with regard to the regularity and validity of which there is no question, or a case where- an order of attachment, with regard to the regularity and validity of which there is no question, is levied upon property which is claimed by some person other than the defendant in the execution or the attachment proceedings, and claimed by him by virtue of an assignment made to him by such defendant of the property in question, in trust for the benefit of creditors. In such a case the validity of the assignment arises fairly and squarely.”
In the later case of McPike v. Atwell, 34 Kan. 142, Johnston, J., quotes at length from the opinion in Harris v. Capell, supra, affirming the doctrine therein announced, and also using the following language :
“It should be remembered, however, that the validity of the assignment was not the question before the court, but it was rather whether such assignment was executed in bad faith. To sustain the charge made and uphold the attachment there must have been an actual personal intent to defraud, hinder or delay the creditors of the assignor. The assignment may be informal, and may contain provisions which are not in compliance with the statute, and which would render it invalid, but if it was made in good faith, and without any actual intent to defraud, hinder or delay creditors, it is not alone sufficient to sustain the attachment.”
In this case ■ the sheriff stands in the place of the attaching creditors, and can made any defense which they could make, and unless the later decisions of our supreme court have given a different construction to the statute governing assignments, and have abrogated the rule laid down in the cases above cited, it would follow that a fraudulent disposition of the property on the part of the assignor might be shown to defeat the assignment, and might be shown in an action of this character. The first case relied upon by counsel which it is claimed adopts a different rule in this state is Cooper v. Clark, 44 Kan. 358. In that case the court holds that a deed of assignment so defectively executed as to render it void, but executed in good faith and without any wrongful intent, will not justify an attachment against property of the assignor. This, in our opinion, tends to fortify rather than to detract from the rule laid down in former cases, for a plain distinction is drawn between a deed of assignment void because of defective execution and one where a wrongful intent entered into the deed. The next case relied upon is Brigham v. Jones, 48 Kan. 162. This case holds that an instrument in the general form and nature of a deed ,of assignment should be so regarded, and a provision therein directing the trustees to distribute the property in a manner inconsistent with the statute relating to general assignment should be treated as a nullity, will not avoid the conveyance, and the estate should be distributed by the assignee as the statute prescribes. The next case relied upon is Chapin v. Jenkins, 50 Kan. 385, which holds that the assignee is a representative of all the creditors, and may for their benefit contest the valid ity of a mortgage given by the assignor. The last case relied upon is Walton v. Eby, 53 Kan. 257, which holds that the assignee may institute proceedings in behalf of the creditors to set aside fraudulent conveyances made by the assignor, to the end that he margain dominion over the property and make an equitable distribution of the same to all the creditors of oh estate.
We fail to perceive how any of these cases eith change or abrogate the rule laid down in the earlier ca,ses. They simply declare that the provisions of the statute as amended, governing assignments, give enlarged powers to the assignee. We take it that the evidence 'sought to be introduced in this case was such as ought to have been permitted under all the decisions of the supreme court of this state. It is true ■that the evidence tended to prove a fraudulent disposition of property upon the part of the assignor just prior to the execution of the deed of assignment, and it is also true that under the cases last cited the assignee would have had the power to pursue the property so fraudulently reserved for the benefit of all the creditors, but that does not change the rule upon a question of this kind. The evidence sought to be introduced was also offered.for the purpose of showing a fraudulent intent upon the part of the assignors which inhered in the deed of assignment itself, and if the evidence had been permitted it might have shown that the whole proceeding was simply for the purpose of hindering and delaying the creditors of the assignor. This, in our opinion, plaintiff in error had the right to show. (Reese v. Platt [not yet reported], 44 Pac. Rep. 31.)
Defendant in error contends that the record is not “ preserved in such condition as properly to submit the points raised. But we cannot agree with counsel in this proposition.
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
Johnson, P. J. :
This action was commenced in the district court of Montgomery county, Kansas, on the 5th day of May, 1891, by Emmett C. Adams, for Adams, Beck & Co., a copartnership, against the St. Louis & San Francisco Railway Company, to recover the sum of $501.25 on a certain draft drawn.by Gideon & Wallace, attached to a bill of .lading issued by the station agent of the plaintiff in error, at its station at Cherryvale, Kan., dated January 12, 1891, reciting that the said railway company had received of Gideon & Wallace, at Cherryvale, Kan., a car, No. 373657, of live poultry, 20,000 pounds, consigned to Adams, Beck & Co., New Orleans, La.
The plaintiffs below in their petition alleged that they were a partnership, and as such, on and long before the 12th day of January, 1891, were doing business as partners engaged in carrying on the business of commission poultry dealers in New Oxdeans, La., buying, selling, shipping and receiving shipments •of poultry, and making advances on bills of lading and consignments of poultry; that on the 12th day of January, 1891, the St. Louis & San Francisco Railway Company was a corporation doing business as a railway company in Montgomery county, Kansas, and that its lixxe of railroad extended through the town of Cherryvale and other ^points therein, and was during said time engaged in operating said line of railway through, into and by said city and county aforesaid, carrying and transporting all such property as is usual for railway companies to carry and transport; that on said 12th day of January, 1891, and some time prior thereto, Gideon & Wallace were engaged in shipping live poultry from said city of Chex-ryvale, Kan., and other points in said state to the city of New Orleans, La., and other points, over said railway and connecting lines, consigned to the plaintiffs and others, receiving from said railway agents bills of lading therefor, and drawing drafts upoxx these plaintiffs .as commission merchants as aforesaid, and others, against such shipments; that on said 12th day of January, 1891, at the city of Cherryvale, Kan., said defendant, by its duly authorized agent, issued to said Gideon & Wallace an original bill of lading of that date, stating that said defendant had received of said Gideon & Wallace, at Cherryvale, Kan., a car, No. 373657, of live poultry, 20,000 pounds, consigned to these plaintiffs by their said firm name, at their place of business in New Orleans, La., a copy of the bill of lading being attached to said petition; that 20,000 pounds of live poultry at said time and place were of' the value of $1,000 ■’ that upon the same day the said Gideon & Wallace took said bill of lading to the First National Bank at Cherryvale, Kan., and drew" a draft of that date, with said bill of lading attached thereto, on these plaintiffs by their firm name at their said place of business, for the sum of $500, with exchange, payable to the order of Charles A. Mitchell, cashier of said bank, who duly indorsed the same to the National Bank of Kansas City, Mo., for deposit and credit of said First National Bank of Cherryvale, Kan., and said National Bank of Kansas City indorsed the same to the Merchants National Bank of St. Louis, Mo., and the said last-named bank indorsed the same to the State National Bank of New Orleans, La.; and on the 16th day of January, 1891, the said plaintiffs in good faith, wholly relying upon said bill of lading attached to said draft, paid said draft through the New Orleans clearinghouse to the Metropolitan Bank of New Orleans, La., paying to said bank $500, the face of said draft, and $1.25 exchange thereon, a copy of the draft being attached to said petition; that said defendant after issuing said bill of lading forwarded said car of poultry to Altamont, Labette county, Kan., on its own road, and no further, and never forwarded said poultry or any portion thereof any further than to said station of Altamont, and never transported the same or any portion thereof to New Orleans by its own or any connecting line, and did not deliver the same or any part .thereof to any connecting line, and that plaintiffs never received said car of poultry or any portion thereof; that said Gideon & Wallace, and each and both of them, absconded, and they, and each of them, are worthless and wholly insolvent, and that there 'is now due the plaintiffs from the defendant the sum of $501.25 so paid by them and advanced on said bill of lading, with interest .from date, for which they claim judgment. To this petition the defendant below filed the following answer:
“Now comes the defendant in the above-entitled cause, and for answer to the plaintiffs’ petition filed herein, says: It admits that is a corporation engaged in the operation of a line of railroad, and says that, on January 12, 1891', Gideon & Wallace put five crates of poultry into one of its cars, No. 373657, at Cherry-vale, Kan., and announced to the station-agent of said defendant at that place that they would finish loading said car with poultry at Altamont, Oswego, Hallowell, and Columbus, at which places arrangements were made for the car to stop-; that said station-agent at Cherry vale issued to Gideon & Wallace a bill of lading for said car to be so loaded at Altamont, Oswego, Hallowell, and Columbus, and forwarded said car with five crates of poultry therein contained ' to Altamont, said station, for further loading; that the persons placed in charge of said poultry by said Gideon & Wallace went with said car to said station of Altamont, but at said station of Altamont abandoned the same, and absconded and disappeared from the country; that said car remained at said station of Altamont with said five crates of poult7’y in the same waiting for said Gideon & Wallace, or their agent, to come and finish loading the same, until said poultry commenced to die, and it was necessary, in order to save a portion of their value, to sell the same; that this defendant thereupon sold said five crates of poultry for $9.03, which was the full value of said poultry at said time in the condition in which it then was. And defendant further says, that it did not at any time receive from said Gideon & Wallace for .shipment to said plaintiffs any more than five crates of poultry, as hereinbefore stated. This defendant further denies that its said agent at Cherryvale had any authority to issue any bill of lading for any property not actually' received by him for transportation. This defendant hereby offers and tenders to said plaintiffs the amount of money, to wit, $9.03, received for the-sale of said poultry at Altamont, or offers to confess judgment for said amount of $9.03, together with all costs accruing to the date of filing of this answer.”
This answer was verified in the following manner :
“ State of Kansas, County of Shawnee, ss.
“A. A. Hurd, of lawful age, being first duly sworn, says : He is one of the attorneys for the above-named defendant; that he has read the above and foregoing answer, and that the matters and things therein set forth are true. — A. A. Hurd.
“ Subscribed and sworn to before me, this X7th day of July, X89X. Geo. N. PIolmes, Notary Public.”
These were all the pleadings filed in this action. Plaintiffs below moved the court to render judgment in their favor for the amount claimed by them in their petition, and against the defendant, on the pleadings herein, for the reason that the defendant’s answer states no defense to the plaintiffs’ action as set forth in the petition. The court sustained the motion for judgment, and made the following findings of fact thereon:
“ X. That the plaintiffs were partners' engaged in the commission poultry business, at New Orleans, La., and were in the habit of making advances on bills of lading and consignments of poultry, and the defendant was a railroad corporation and engaged in doing business as a railway company in the city of Cherry-vale, Montgomery county, Kansas; that its line of railroad running into and through said city and county, and receiving at said city and transporting therefrom all poultry usually carried by such corporation, all as in plaintiffs’ petition alleged.
“2. That on January 12, 1891, and long prior thereto, Gideon & Wallace were engaged in shipping live poultry from Cherry vale, Kan., and other points to New Orleans and other points, over defendant’s said road and connecting lines, consigned to plaintiffs and others, receiving from defendant’s station-agent bills of lading therefor, and drawing drafts upon plaintiffs as commission merchants, and others, and against such shipments, as by plaintiffs alleged.
“3. That on January 12, 1891, at said city of Cherryvale, Kan., said defendant, by its duly authorized agent, issued to said Gideon & Wallace an original bill of lading of that date, reciting that defendant that day had received from said Gideon & Wallace a car, No. 373657, of live poultry, of the weight of 20,-000 pounds, consigned to said plaintiffs at New Orleans, La., where the same was worth $1,000, as in plaintiffs’ petition alleged.
“4. That said Gideon & Wallace at once took said bill of lading to the First National Bank of Cherry-vale, Kan., and drew a draft of said date, with said bill of lading attached thereto, on the plaintiffs at New Orleans, La., for $500 and exchange; payable, indorsed and sent in due course of business through the various banks, and paid by plaintiffs at New Orleans, La., all as by plaintiffs alleged.
“5. That the defendant, after issuing said bill of lading, forwarded said car to Altamont, Labette county, Kansas, on its own road, and no further, and never forwarded said poultry or any portion thereof any further than Altamont, as aforesaid, and never-transported the same or any portion thereof to New Orleans, La., by its own or connecting lines., and never delivered tlie same, or any part thereof, to any connecting line b or carrier, and plaintiffs never received said car of poultry or any portion thereof, and said Gideon & Wallace, and each of them as aforesaid, and individually, were and are worthless and wholly insolvent since the date of said bill .of lading, and they and each of them absconded at the time.
“6. That there is now due from the defendant to the plaintiff on said bill of lading the said sum of' money advanced by them, $501.25, with interest thereon from January 16, 3891, at the rate of 6 per cent, per .annum, now amounting to $544.25.”
The court rendered judgment-in favor of the plaintiffs for said amount. Defendant filed a motion for new trial, which was overruled, and it excepted, and brings the case here and asks that the same be reviewed.
It is contended by plaintiff in error that the court erred in rendering judgment against the railway company on the pleadings.
Section 128 of the code, of civil procedure reads as follows:
“Every material allegation of the petition, not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purposes of the action, be taken as true ; but the allegation of new matter in the reply shall be deemed to be controverted by the adverse party, as upon direct denial or avoidance, as the case may require. A demurrer to a reply shall not be held to admit any of the facts alleged .in said reply for any purpose other than to determine the sufficiency thereof. Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them ; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.”
The contention is that this is not an action on con tract; that the allegations of value and amount of damages should not be considered as true by failure to controvert them ; that this statute only applies to amounts claimed in actions on contract, expressed or implied, for the recovery of money only. It is claimed that this is not an action on the bill of lading, or the parties would claim judgment for the value of the whole car-load of poultry ; that therefore it should be treated as an action in tort. We think this action was based on the bill of lading. The defendant below in its answer so concedes, but claims that it was a false one. We think the action is one on contract. The bill of lading acknowledges the receipt of one car of poultry, 20,000 pounds, and agrees to ship the same to the plaintiffs below as consignees, over its own and connecting lines of transportation. The petition alleges that the poultry was at the time and place of the value of $1,000, and the answer concedes this fact. Under the' recitals in the bill of lading, the railway company as common carrier agreed for hire to deliver the poultry to the consignees in New Orleans, La., and failing to do so was liable to the consignees for so much as they advanced on the draft attached to the bill of lading.
It is admitted that the defendant below was a railway company owning and operating a line of railway through Montgomery county; that its line passed through Cherry vale, and was a common carrier of goods for hire; that the agent at its station at Cherry vale, Kan., had authority to receive goods for shipment over its own and connecting lines and give bills of lading therefor. When this is conceded, and the agent has issued his bill of lading to the consignors, and they have drawn a draft on the consignees with the bill of lading attached, the defendant below is •then estopped from denying the truth of the recitals therein, and becomes liable to the consignees for such sums of money as they may advance on the faith of said bill of lading.
In the case of Savings Bank v. A. T. & S. F. Rld. Co., 20 Kan. 520, which was an action based upon four bills of lading issued by the Atchison, Topeka, & Santa Fe Railroad Company, covering four shipments of wheat, two of the bills of lading called for 23.000 pounds of wheat each, and two called for 25.000 pounds of wheat each, all consigned to the order of Henry Schneider, at St. Louis, Mo. Plenry Schneider delivered to the railway company a certain load of wheat, which it put into a car to be consigned to his order or assigns at St. Louis, Mo. At the time of the delivery of the wheat to the railway company the defendant’s agent issued and delivered to Schneider two original bills of lading, of the same terms, tenor, and effect, and each showed the receipt of 23.000 pounds of wheat, and its consignment to Henry Schneider or to his order or assigns. There was not more than 23,000 pounds of wheat delivered, covered by the two bills of lading. Schneider procured the issue of two original bills of lading, instead of one, upon his statement that he wished one original bill of lading to file in his office as a memorandum of the transaction. Schneider took the two original bills of lading to Wichita, and negotiated one of them to Messrs. Woodman & Son, for a valid consideration, and negotiated the other original bill of lading to the savings bank. The bank accepted the bill of lading from Schneider and advanced him in good faith the money sued for upon the bill of lading, wholly relying upon it for security for the advancement, and without any knowledge that two bills of lading had been issued for the wheat. The wheat was forwarded to St. Louis by the railroad company and there delivered to the holders of the bill of lading so negotiattd to Messrs. Woodman & Son. The defendant was a corporation engaged in operating a railroad through the city of Wichita, by and through the town of Valley Centre, and by and through the county of Sedgwick, in the state of Kansas, to Kansas City, in the state of Missouri, and in carrying and transporting grain and other commodities for hire to St. Louis, Mo. It was the usage and custom of the railroad company, at its station at Valley Centre, to issue but one original bill of lading for any one shipment of grain, which custom was known to plaintiff. The agent of the defendant, by whom the bills of lading were issued, had authority to receive wheat to be transported by the railroad company over its line to St. Louis, Mo., and to issue bills of lading therefor; but the company had given the agent no authority to issue more than one original bill of lading for any single shipment. Schneider being worthless, and having absconded, the bank lost the principal part of the amount of its advancement, and thereupon brought an action to recover the amount of its loss. Horton, C. J., delivering the opinion of the court, says :
“In accordance with well-settled rules, the plaintiff, knowing the custom of the defendant to issue only one original bill of lading for any one shipment of grain, having made advances on the faith of the bill of lading issued by the agent of the company within the apparent scope of his authority, was entitled to recover of such defendant all damages resulting to him from the issuance of two original bills of lading for the same grain — or, perhaps we might better say, for this false bill of lading — as the defendant was bound by the act of its agent, and therefore estopped from denying it had the grain stated in the bill sued on. When the defendant knew to what uses bills of lading could be and usually were employed, it was guilty of negligence in issuing two original bills for the same wheat, in violation of its usual custom. It is true one was issued so that Schneider might file it away; but when issued it should have been marked or designated as a ‘ duplicate,’ so as to be incapable of being hypothecated to defraud those who dealt in such paper. . . . Considering the custom of the railroad company, the mode of doing business with bills of lading, the bank was guilty of no negligence in advancing the money to Schneider. The company was guilty of culpable negligence, which resulted in the consummation of the fraud. ‘ The representations in the bills were made to any one who in the course of business might think fit to make advances on the faith of them.’ The bank acted on these representations in good faith. Schneider, who obtained the fruits of this fraud, has fled the state, and is insolvent. The bank or the railroad company must suffer. Who, under all the circumstances, ought-to bear the loss? The superior equity is with the bank. It advanced moneys on certain representations 'which were virtually untrue. In this case is presented every element to constitute -an estoppel in pais, within the doctrine that, where one of two innocent persons must suffer by reason of the fraud or misconduct of a third, he by whose act, omission or negligence such third party was enabled to consummate the fraud ought to bear the loss. Thus the defendant was liable, and the court below committed error in holding otherwise.”
There was no error in rendering judgment on the pleadings. The judgment of the district court is af- • firmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.:
Robert W. Murray commenced this suit in the district court of Finney county, Kansas, on a promissory note executed by John D. McFall and Máry C. McFall to the Jarvis-Conldin Mortgage Trust Company for $500, bearing date July 1, 1887, due in five years from date, with interest coupons attached, payable semiannually; the note was secured by a mortgage on the southwest quarter of' section 9, township 22, range 31, in Finney county, Kansas.
Before the maturity of the note or coupons thereto-attached, the plaintiff below, Robert W. Murray, for a valuable consideration, purchased said note and mortgage, and the same were duly ■ assigned and transferred to him by the Jar vis-Conklin Mortgage Trust Company, and he is the legal owner and holder of the note, coupons,- and mortgage. Said note and mortgage have a stipulation contained therein that,.in case either principal or interest remain unpaid 10 days after due, at the option of the legal holder, the whole principal and interest may be declared immediately due and payable. John D. McFall and Mary C. McFall failed and neglected to pay the second and third interest coupons when they became due and payable, and failed for more than 10 days after they were due to pay the same. Robert W. Murray, the legal holder and owner of the note and mortgage, declared the whole amount of principal and interest of said promissory note due, and commenced this suit to- recover the principal and interest due on said note, and for a decree of foreclosure of said mortgage and an order for the- sale of the mortgaged premises to pay the sum of money for which it was given to secure.
In answer to the petition of the plaintiff below, John D. McFall and Mary C. McFall admitted the execution and delivery of the note, coupons, and mortgage, as set out and claimed by the plaintiff below, but alleged that the promissory note, coupons and said pretended mortgage were executed in pursuance of a contract entered into by and between them and the Jarvis-Conldin Mortgage Trust Company for that pur- ■ pose long prior to the date of said note, coupon notes, and pretended mortgage, to wit, prior to the 1st day of July, 1887 ; that the title to the real estate set out and described in the petition of plaintiff below was at the time of contracting said debt, and at the time of execution of said note, coupons, and pretended mortgage, and along time thereafter, in the United States government, and that neither they, nor either of them, had any title thereto, ucr had they, or either of them, any ■ conveyable interest therein; that' at the time of the execution of said note, coupon notes and mortgage by them as aforesaid said real estate was the homestead claim of the said John D. McFall, under and by virtue of the United States homestead law; that said defendant John D. McFall made final proof of settlement, residence and ci salification entitling him to a patent on the 5th day of December, 1887, and not before that time — a period of time long after the time of the execution of said note, coupon notes, and the mortgage, and they ask judgment against Murray that said mortgage be set aside, canceled, and held for naught.
In reply to this answer the plaintiff below says, that the' note, coupon notes and mortgage were executed and delivered to the mortgagee after the affidavit of final proof showing that the compliance -of John D. McFall with the requirements of the United States statutes had been made and-sworn to by him, and that the note and mortgage were executed for the purpose of obtaining money-to'pay the United States government the purchase-price of the land conveyed by said McFall, and for the further purpose of stocking and improving said land, and that the proceeds of said loan were actually so applied; and alleges further, that after the issuance of the final receipt for the purchase-price of said land, and after the issuance of certificates of purchase by the United Stakes land office, John D. McFall and Mary O. McFall executed and delivered, for a valuable consideration, to the said Jarvis-Conklin Mortgage Trust Company a deed of ratification confirming and ratifying the mortgage loan sought to be foreclosed, and sets out a copy of the deed of ratification, dated on the 29th day of December, 1887, and duly acknowledged'before a notary public of Finney county, Kansas.
Upon the foregoing issues this cáse was tried before the court without a jury, and the court made special findings of fact and conclusions of law therein. The court finds upon the evidence that the note and mortgage were actually executed on the 30th day of November, 1887, and after the date of the final affidavit of John D. McFall in his proof to the United States land- office concerning entry, settlement and residence on the southwest quarter of section 9, township 22, range 31, in Finney county, Kansas; also finds that the proof of settlement and residence was made on the 26th day of September, 1887 ; and finds further, that John D. McFall made his final affidavit of right to commute, under, section 2301 of the Revised Statutes •of the United States, on the 16th'day of November, 1887 ; that payment of the money to the United States government was made on the 5th day of December, 1887, and that the final certificate for the entry of said land by commutation was issued December 5, 1887.
• As conclusions of law upon said findings of fact, the •court concluded that the plaintiff below was entitled to recover the amount claimed in his petition on the note and mortgage, and rendered judgmerft for the plaintiff beivU'' for. the amount due on the note and coupon notes, and also rendered decree of foreclosure foreclosing the mortgage and ordering a sale of the mortgaged premises. To the findings of fact and conclusions of law and judgment of the court the McFalls duly excepted, filed motion for new trial, which was overruled •and exceptions taken, and now bring the case here and ask for a reversal of the judgment of the district court.
The plaintiffs in error specify eight separate errors in their brief and ask the consideration of the court thereon. We will consider so much of the .assignments as we deem material to a complete determination of this case. It is insisted that the note and mortgage bear date of July 1, 1887, and the plaintiff below in his petition alleges that they were executed on- that date, and the defendants below in their answer admit that they were executed and delivered as •alleged, and then allege that at the date of their exe •cution they were hot the owners of the land mortgaged and had no mortgageable interest therein ; that •the land mortgaged was then claimed by John D. Mc-Eall under the homestead laws of the United States ; and the plaintiff below in his reply alleges that the note, coupon notes and the mortgage were not actually •executed until November 30, 1887, at a period after the affidavit of. said John D. McPall had-been made and filed claiming the right to commute his homestead claim to a preemption right and to prove up his settlement and pay the government price of $1.25 per acre for the land.
It is claimed by the allegation in the reply that the plaintiff below had departed from his original cause of action, and the defendants below were entitled to a judgment on the pleadings. ■ Was this a departure from the original cause of action? If so, in what did the departure consist? The action was based on the note, coupon notes, and for a foreclosure of the mortgage given to secure the payment of the note and coupons. The reply was not a departure from the original action, which was for the same note, coupons, and foreclosure of mortgage, but simply stating that they were actually executed and delivered at a later date than appears upon the face of the note and mortgage. It is always permissible to allege and prove that the note, mortgage or any other written instrument was not actually executed on the day set forth in the written instrument. Sometimes a wrong date is inserted by mistake. Sometimes notes and other written instruments are antedated, and sometimes postdated, for some good or sufficient reason; and it is always proper to allege the true date at which they were executed and prove the facts as they exist. It would have been no variance between the allegations in the petition and the proof if the plaintiff below, without filing the reply, had proceeded to a trial of the case, and shown by proof that the note and mortgage sued on were actually executed on the 30th day of November, instead of July 1.
The plaintiffs in error seem anxious to show that they were attempting to commit a deliberate fraud in this transaction. They covenanted and agreed in this mortgage that at the date of its execution and delivery they were the owners of the land mortgaged, and were seized of a good and indefeasible estate of inheritance therein, free and clear from all incumbrances, and that they would warrant and defend the same fir the quiet and peaceable possession of the mortgagee and its assigns forever against all lawful claims. After making this mortgage they allege that the said John D. McFall procured the title to the same under the homestead and preemption laws of the United States, and to do this he would have to make an affidavit tha.t he had improved the land, and that he and his family had resided thereon for so long, and that no part of. such land had been alienated, and that it was for his own benefit; that he had made no contract by which the title would inure to any other person. The note, coupons and mortgage were either executed after the making and filing of this affidavit, or he committed wilful and deliberate perjury in his sworn statement to the United States land-office.
It is also urged that the court erred in the admission of evidence, over the objection of the defendants below, to prove the actual date of the execution of the note and mortgage sued on. There was no error in the admission of this evidence. The execution of the note and mortgage in suit were admitted by the plaintiffs in error in their answers, and they were seeking to avoid the payment of the note and the foreclosure of the mortgage, for the reason that, by the date appearing on the face of the note and mortgage, the title to the land mortgaged was in the United States government, and was then claimed by John D. McFall as a homestead claim, under sections 2289 and 2290 of the Revised Statutes of the United States.
Plaintiffs in error contend that the finding of the court that the note and mortgage sued on were executed on the 30th day of November, 1887, is not sustained by sufficient evidence, and is contrary to the evidence.
Lilah M. Likens testified, that in November, 1887, he was in the employ of the Jarvis-Conklin Mortgage Trust Company, of Kansas City, Mo. ; that he was employed in writing notes and mortgages on loans made by it, and it was part of his duty to wrire and send out notes and mortgages for execution when loans had been made, and to note the date at which they were sent out, and to keep a register of the proceedings in each loan; that on November 26, 1887, he prepared and sent the note and mortgage in the John D. McFall loan, for $500, and mortgage on the southwest quarter of section 9, township 22, range 31, in Finney county, Kansas, to J.A.Flesher, at Garden City, to be signed by John D. McFall and Mary C. McFall; that the note and mortgage were sent out by him from Kansas City on November 26, 1887, for signing. The certificate of acknowledgment on the mortgage is dated by the notary public November 30, 1887, and states that John D. McFall and Mary C. McFall appeared before him on that day and duly ac■kowledged the execution of the same. It is also shown that the- draft upon which this loan was paid wapaid by the Jarvis-Conklin Mortgage Trust Company on the 3d day of December, 1887. The evidence shows that the note and mortgage were not prepared until November 26, and were signed November 30. This evidence is undisputed. The evidence shows conclusively that the note and mortgage were actually executed on that date, and the findings of the court are fully sustained by the evidence and- strictly in accordance .with the evidence.
The final contention of'the plaintiffs in error is that the court erred in overruling the motion of the defendants below for judgment against the plaintiff below for costs on the special findings of fact. The claim is that the court found that the note and mortgage sued on were executed prior to the time of the ripening of McFall’s title to the. land and at a time when the title to the same was in the United States government ; that the validity of the mortgage depends upon the United States homestead law.
The court found that the note and mortgage sued on were actually executed on the 30th day of November, 1887, and after the date of the final affidavit of John D. McFall in his proof before the United States land-office concerning the entry, settlement and residence on the southwest quarter of section 9, township 22, range 31, in Finney county, Kansas ; that the final proof of settlement and residence was made on the 26th day of September, 1887, and that he made his final affidavit of right to commute under section 2301, Revised Statutes of the United States, on the 16th day of November, 1887, and the payment of the money to the United States government was made December 5, 1887, and the final certificate for the entry on the land by commutation was issued on that, date.
The real and controlling question in this case is whether a mortgage on real estate is valid when given to secure the loan of money to pay the government the commutation price for such land, executed ■ and ■delivered after the final proof of settlement, improvement, residence, and nonalienation — a right to commute the homestead under section 2301, Revised Statutes of the United 'States. This section allows the homestead settler . to commute' his homestead right into a cash entry by paying the minimum price for the quantity of land' so entered at any time before the expiration of five years, and obtain a patent therefor from the government, as in other cases directed by law, on making proof of settlement and cultivation as provided by the law granting preemption rights. This mortgage must be held valid unless it is prohibited under the homestead laws of the United States. There is no express prohibition in the law of the United States respecting'the homestead of public land against the alienation of the same. The only thing standing in the way of alienation before the title is finally obtained is the affidavit that the claimant is required to make in order to perfect his homestead and procure a patent for the land. Section 2291, Revised Statutes of the United States, reads:
'“No certificate, however, shall be given or patent issued therefor until the expiration of five years from the date of such entry; and if at the expiration of such time, or at any time within two years thereafter, the person making such entry . ‘ . . proves by two credible witnesses that he, she or they have résided upon and cultivated the same for a term of five years immediately succeeding the time of filing the affidavit, and makes affidavit that no part of such land has been alienated, . . . he, she or they . shall be entitled to a patent as in other cases provided by law.”
Where the party has made the affidavits required by this section and the one required by section 2301 he has done all that is required of him to obtain a patent for the land, except the payment of the commutation money. .After these affidavits have been made and filed in the land-office there is no prohibition, either by express terrfis or by implication. ° If the settler has not made any alienation of the land before making this proof, he •would not be committing perjury. If the affidavits were true, he would.be guilty of no wrong. Pie could then use the land in securing the money to pay the government the price of the land by commutation.
Under the homestead act, no patent can issue until the expiration of five years from the time -the land is taken by the homestead settler ; but when the claimant has made a settlement, improved the land, and- resided on it, he may at any time before the expiration of the five years have his .rights commuted and obtain a patent-for the land by paying the minimum government price therefor, and when he has thus perfected his right to a patent he is not required to wait until the patent has been issued before he can alienate the same either.by deed or mortgage.
This mortgage, being executed after the final proof of settlement, improvement, and right to commute, was valid, and there was no error in overruling the motion for judgment against the plaintiff below for the amount due on said note, and decreeing a foreclosure of the mortgage and a sale of the mortgaged premises.
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. :
This was an action brought by the defendant in error to recover ba’ck from the plaintiff in error certain sums .of money paid by the former to the latter in satisfaction of certain illegal taxes assessed for the year 1888, under the provisions of chapter 214 of the Laws of 1887, entitled “An act providing for the improvement of county roads.” Since this action was commenced, the act in question has been passed upon by the supreme court, and held to be unconstitutional and void. (Comm’rs Wyandotte Co. v. Abbott, 52 Kan. 148.) The only remaining question in the case is whether the payment was voluntary, and, therefore, not recoverable. The case was tried in the district court upon an agreed statement of facts, in which it was stipulated and agreed :
“Said payments were made under due protest of the illegality of the taxes, and with notice to the county that suit would be brought to recover the same. It was paid to prevent the seizure and sale of the railroad property under the warrant of the treasurer, which would have been issued if said taxes had not been paid.”
It was also agreed that one-half of said illegal taxes was so paid on December 20, 1888, and the other half on June 20, 1889. It is contended by the plaintiff in error that the payment.should have been held to be a voluntary one, because, when made, no tax-warrant or other process had been issued to collect the same. With this contention we do not agree. A payment of illegal taxes, made under the circumstances shown in this case, is not a voluntary one. This question is too well settled by the decisions of the supreme court to require further discussion. (K. P. Ply. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587; A. T. & S. F. Rld. Co. v. Comm’rs of Atchison Co., 47 id. 722.0
Upon the authority of these decisions the judgment is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
The only question presented,by the record for the consideration of this court is whether, under the findings of fact, the plaintiff below was entitled to a judgment of eviction against the Chicago, Kansas & Western Railroad Company.
It appears from the record that the railroad company in 1886 was authorized to construct its railroad through Ness county, and took the necessary steps to secure the right of way through the county by having three commissioners appointed by the judge of the district court; that the commissioners were duly appointed and qualified, and gave notice by publication of the time and place at which they would proceed to lay off along the line of the proposed railroad a route for the road through Ness county. The commissioners proceeded in accordance with the notice to lay off the route for said railroad, as required by the company, and appraised the value of each tract of land as right of way, and assessed the damages to the several tracts of land through which the route was so located, and after they had completed laying off the route and appraised the value of land taken, and assessed damages thereto, they embodied their doings in a written report, and filed the same in the office of the county clerk of said county, The commissioners, in laying off said route for the railroad company, laid off as a part of said route and right of way a strip of land upon and across the lands of plaintiff below, commencing at the eastern boundary line of her land and extending across the same to the western boundary thereof, and appraised said strip of land and awarded damages thereto in the sum of $194.81. The award of damages to the same was made in the name of Lowrie, Baker & Co., the amount awarded being deposited with the county treasurer of Ness county within 30 days after filing of such report. Lowrie, Baker & Co. were not the owners of the land and had no interest in the same. The railroad company, soon after the condemnation proceedings, took possession of the right of way so condemned, and commenced the construction of its road, and soon thereafter had the same completed, and has been in the occupancy of the land ever since, operating its road thereon. The condemnation proceedings were had under article 9, chapter 23, Laws of 1885. It is not claimed that the proceedings were not in conformity to the provisions of this article, but it is claimed that the appropriation of the strip of land for right of way was in violation of the rights of the plaintiff below, under section 4 of article 12 of the constitution of Kansas ; that her land had been appropriated for right of way for the railroad company without full compensation therefor having been first made in money, or secured by a deposit of money to her as the owner thereof ; that the commissioners having appraised the value of the land and damages to the resi lue of her land to Lowrie, Baker & Co. rendered the condemnation void as to her, and gave her a right to fevict the railroad company from the right of way.
Article 9 of chapter 23, Compiled Laws of 1885, authorizing real estate to be appropriated to the use of railroad companies for right of way, does not contravene the provisions of section 4, article 12, of the constitution. (Hunt v. Smith, 9 kan. 138. )
Does the mere fact that in the- condemnation proceedings the commissioners in their report name another than the true owner as the party to whom the award is to be paid render the condemnation void? Or, in other words, does the mere fact that the commissioners found Lowrie, Baker & Co. to be the owners of the land, and awarded damages to them for the land appropriated, render the whole proceedings void so as to permit the true owner, after the railroad is constructed and in operation, to evict it from the right of way? Condemnation proceedings under the statute are essentially proceedings in rem. When commissioners have been duly appointed, have qualified, and given notice by publication that they will proceed at a given time and place to commence the condemnation of the right of way for a railroad company through the county, it is the duty of all persons owning property that is liable to be affected by such appropriation to take notice of all future proceedings, and thereby protect their rights.
Article 9 of chapter 23 of the Compiled Laws of 1885 describes the proceedings regarding the right of way for railroad companies, and fully and particularly sets out and defines the duties of the commissioners, and, under the proceedings for acquiring ■ the right of way by exercise of the right of eminent domain, the ■ commissioners are required to give public notice, by advertisement in some newspaper published in the county and of general circulation therein, where the proceedings are to be had. The object of this publication is to notify all persons interested in any property to be affected by taking and appropriating of property along the line of the proposed railroad, so that they may appear and present their claims to ■the commissioners, and inform them of their claim, if any, as they proceed with the laying out of the route and the appraisement of the value and assessment of the damages, and to present to the commissioners whatever interest such persons have in the lands to-be affepted by the location. If the award of the commissioners in the appropriation of the land is not satisfactory, they may appeal to the court having jurisdiction of such matters, and have their rights fully protected.
In the case of the. C. K. & W. Rld. Co. v. Grovier, 41 Kan. 686, Johnston, J., delivering the opinion of the court, says:
“ It is further claimed that, as lots 10 and 11 in block 1 were designated in the report of the commissioners as the property of Simar, Grovier is thereby precluded from taking an appeal from the award made for their appropriation. The mere act of the commissioners in designating who are the probable owners of the land which they condemn can have no such effect. Under our statute the owners are not made parties to the condemnation proceedings by name, nor ax*e they served with personal notice. The notice is givexx by publication, and in that notice the names of the owners are not required to be given. (Gulf Rld. Co. v. Shepard, supra.) When that publication is made, all owners whose lands may be condemned must take notice, and if dissatisfied with the award when it is made they can, and to protect their interests should, take an appeal, regardless of whether or not they are designated- as owners in the report. It is the duty of the commissioners, so far as possible, to ascertaixx the names of the owixers of each tract or lot of land condemned, and so describe them in the report which they make ; or, if the lot or tract belongs to different owmers, they should appraise the value and assess the damages of each of such owner’s interest. If they are unable to learn the names of the owners of each lot or tract, or the names of the owners of each interest in the same, they should so state in their report. The failure of the commissioners, however, to ascertain and designate the owners, whether it occurs from ignorance, inadvertence, or inability, will not prevent the real owner of any parcel of real estate or interest in the same from availing himself of the remedy of appeal. In the present case, through a mistake, Simar was designated in the report as the ‘ probable name of owner of lots 10 and.11 in block 1, when as a matter of fact he had no interest whatever in them. Grovier was’ the exclusive owner of the lots, and took an appeal from the award made for their appropriation by specifically mentioning them in the appeal bond which he filed.”
In the case of C. K. & W. Rld. Co. v. Sheldon, 53 Kan. 172, Johnston, J., delivering the opinion of the court, says :
“The general notice by publication is sufficient, and, when legally made, all persons who have an interest in the land must take notice of the subsequent proceedings, whether they are named in the notice or not. If any owner is dissatisfied with the award when it is made he may protect his interest by taking an appeal. When the award is paid into the county treasury any one having an interest in the land or a claim upon the fund§ may take proceedings to protect his interest or.claim.”
The condemnation of the right of way for a rail- ■ road and the appraisement of the lands appropriated for railroad purposes, and the assessment of damages to the residue of the tract of land from which it is taken and the money deposited in the county treasury in accordance with the report of the commissioners includes the whole right of way and interest of every person concerned in the land, and the money, when deposited with the county treasurer, becomes in law the property of the party entitled to it, and is subject to the disposal of a court having jurisdiction to determine the rightful owner thereof. (United States v. Dunnington, 146 U. S. 338; Crane v. City of Elizabeth) 36 N. J. Eq. 339.)
The only complaint made by the plaintiff below is that the money was deposited for the benefit of Lowrie, Baker & Co. and not her. After the completion of the railroad and it was in operation she was satisfied with the amount awarded as compensation, and demanded the same from the treasurer, and he refused to pay it to her. The railroad company acted in good faith in the matter. It had competent persons appointed as commissioners. They proceeded in accordance with the provision of the statute, qualified, and gave notice by publication to all persons interested in property to be affected by the condemnation of lands along the proposed line of railroad or right of way, and had the same carefully surveyed, and ascertained the amount of land necessary to be taken out of each tract of land through which it was located, and appraised the value of the land so taken and assessed the damages to the residue of each tract, made and filed their report in the office of the county clerk of the county where the lands were situated, and the company filed its plat and profiles of the route, so that all persons interested were duly-notified of just what the railroad company had done and the rights that it was thereby acquiring ; and if the' landowners whose property was affected thereby had ample time to take appeals, if dissatisfied with the proceedings, and did not appeal or take any action to protect their rights in the premises, it was their own fault, and they cannot be heard to complain after the railroad has been completed and in operation.
The condemnation being in strict conformity with the requirements of the law, and compensation for the Idnd appropriated as right of way having been se cured by the deposits of money with the county treasurer of the county where the land is situated, and the owner of the land, failing to appeal or take any legal action in the matter until the completion and operation of the railroad, is now estopped from maintaining an action in ejectment to evict the railroad company from the right of way thus acquired. Judgment should have been rendered for the railroad company on the special findings of fact.
The judgment of the district court is reversed, and the case remanded to the district court, with direction to enter up a judgment for defendant below on the special findings of fact, in accordance with this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
The plaintiff in error complains of the ruling of the judge of the district court of Ellis county in making an order dissolving a temporary injunction which had been previously granted without notice by the probate judge, of said county to stay the execution of a judgment theretofore rendered by said court, in an action in which Hill P. Wilson was plaintiff and M. J. R. Treat was defendant, until said defendant, Treat, against whom the judgment was given, could prepare his case and file a petition in error in the supreme court for a review thereof. We think no error was committed in dissolving the injunction. The judgment sought to be enjoined was, so far as disclosed, regularly obtained, and in all respects was valid and binding. No stay having been asked for or allowed when the judgment was rendered, the plaintiff had a right to have an execution issue forthwith.
If the defendant therein desired to take the case to the supreme court, the district court would, proper application having been made, doubtless have given such reasonable stay of proceedings as might have been necessary. And, even after judgment, the court still had control of any process that might be issued, and could have made any order that was proper and necessary fully to protect the legal rights of the unsuccessful party. It is the duty of courts to see that no injustice is done by the use or abuse of its process, and, to this end, the execution thereof may be stayed at any time by the court out of which it issued. (Church v. Goodin, 22 Kan. 527; Dunmeyer v. K. P. Rly. Co., 29 id. 185 ; Bogle v. Bloom, 36 id. 512.) Injunction is an extraordinary equitable remedy, not to be resorted to when there is an adequate remedy at law. An adequate legal remedy existed in this case.
The judgment will-be affirmed.
Clark, J., concurring.
Gilkeson, P. J., having been of counsel, did not sit in the case. | [
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The opinion of the court was delivered by
Dennison, J.:
This action was brought before a justice of the peace in Hamilton county, Kansas, by Harry S. Crittenden against the railroad company, to recover the damages alleged to have been caused by the negligence of said company to a car-load of cattle shipped by said Crittenden over the road of said defendant from Raton, N. M., to Coolidge, Kan. Judgment was rendered against the railroad company, and it appealed to the district court. The case was tried in the district court on the original- bill of particulars filed before the justice of the peace. That part of the bill of particulars relating to the damages reads as follows:
“And the said plaintiff saith that said defendant, not regarding its duty in that behalf, did not use due and proper care in and about the handling and carrying and conveying of the cattle of said plaintiff, but so carelessly and negligently and improperly conducted itself in the carriage and conveyance of said cattle of the plaintiff that the car in which said cattle were loaded, and while standing on the side-track of defendant at the town of Raton, was shifted and placed in the train along with other cars by the switch-engine under the care and control of an engineer and servants of the said defendant; that said car in which .said cattle of plaintiff were loaded was thrown with great violence against the train of other cars then and there standing, whereby the cattle of said plain tiff were knocked down and a large number greatly injured and wounded, and while said cattle were in transit, and before reaching said town of Coolidge, Kan., three of said cows and five of said calves died.. And-afterward, and after said cattle were unloaded at defendant’s stock-yards in Coolidge, Kan., four cows died from their wounds and injuries aforesaid, making in all of said cattle that died from said wounds and injuries seven cows and five calves, and the remainder of said cattle were greatly injured, to plaintiff’s damage in’the sum of $255.”
This is the only pleading filed in this case. Judgment was rendered in the district court against the railroad company for the sum of $255, and it brings the case here for review.
Plaintiff in error contends that the court erred in the admission of any testimony as to how the train was handled while en route — that the only injuries for which the plaintiff below claimed damages were occasioned by the manner in which the car was handled at Raton. We are of the opinion that the liberal interpretation given to a bill of particulars would permit the plaintiff below to prove any negligence on the part of the railroad company while the cattle were in its possession which caused the damages complained of.
During the trial of this action in the district court the railroad company introduced in evidence a written shipping contract signed by Crittenden, which contained the following clause :
”6. And for the consideration before mentioned said party of the second part further agrees, that as a condition precedent to his right to recover ahy damages for loss or injury to said stock he will give notice in writing of his claim therefor to some officer of said party of the first part or its nearest station-agent before said stock is removed from its place of destination above mentioned, or from the place of the delivery of the same by said party of the second part, and before said stock is mingled with other stock.”
Mr. Crittenden was permitted to testify that he served a written demand or notice upon the company for the damages to his stock in due time, but the demand or notice was not introduced in evidence. The defendant in error contends that the contract ig void because the company fraudulently collected $3.75 in excess of the regular freight-rate. This contention is not good. To establish fraud in the execution of a contract, some misrepresentation must be shown as to facts then existing. Any act or thing done afterward will not constitute such a fraud as will invalidate the contract, although it may sometimes be shown to establish the fraudulent intent at the time of the execution of the contract.- There is no evidence in this case tending to establish fraud in the execution of the contract. So far as it required the shipper to give notice in writing of his loss or injury, it is a valid, binding contract. By its terms Crittenden was compelled to give notice in writing to the company of his claim for loss or injury to said stock before the stock was removed from the place of destination or delivery, and before said stock was mingled with other stock. Failing to comply with the terms of the contract, he cannot recover. No notice was introduced in evidence; nor did Crittenden show that he was unable, for any reason,' to produce it, and offer to prove its contents by a copy or otherwise. These provisions of the contract are just and equitable. The company is entitled to a written notice that the shipper claims damages, so as to permit the company to have a thorough investigation made of the nature of the claim and the condition of the stock before the stock is removed from its premises, or before it is mingled wjth other stock so as to render its identification difficult.
The plaintiff in error claims that the court erred in its instructions to the jury. No objections were made to the instructions; hence they must be considered waived by the plaintiff in error. The other errors complained of will not be likely to occur at another trial of this case ; hence we will not now review them.
The judgment of the district court is reversed, and the case remanded for a new trial.
All the Judges concurring. | [
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Tlie opinion of the court was delivered by
Clark, J.:
On December 12, 1890, M. A. Shuemaker, as administratrix of the estate of S. C. Shuemaker, deceased, filed in the probate court of Nemaha county her verified claim against the estate of N. Morris, deceased, for a balance ¿alleged to be due her intestate of §15,118.22. A hearing was had thereon on March 23, 1891, resulting in a finding in favor of the Morris estate, and judgment was accordingly rendered against the claimant for costs. From this judgment she appealed to the district court of Nemaha county. Subsequently, a referee was duly appointed by the court to hear the evidence and to make a return of the findings ^of fact and conclusions of law thereon. The report of the referee was filed on April 1, 1892. Theodore Wolfley, as administrator of the Morris estate, duly excepted to finding of fact No. 5, and to each and all of the conclusions of law of the referee, and filed his motion to set aside the particular finding of fact complained of and all'the conclusions of law, and for judgment in favor of the Morris estate on the findings. This motion was overruled, and judgment entered in favor of the plaintiff for §1,660.29, the amount found by the referee to be due the Shuemaker estate. The motion for a new trial was overruled, and the defendant is here seeking a reversal of the judgment.
The plaintiff in error contends that the conclusions of law are not warranted by the findings of fact, and that the judgment should, for this reason, have been rendered in his favor. The evidence introduced before the referee is not preserved in the record, but ’from the findings of fact it appears that for two or three years prior to January 1, 1884, N. Morris was engaged in business at Wetmore, Nemaha county, as a retail merchant, and S. C. Shuemaker was during that period employed by him as -an assistant in the store, under a contract whereby Shuemaker was to receive, as compensation for his services, one-third of the net profits of the business ; that prior to the time covered by that employment Shuemaker was a clerk in Morris’s store upon a fixed salary; that on January 1, 1884, Morris and Shuemaker formed a partnership to carry on the business of retail merchandising in said city of Wetmore, each partner to have an equal interest with the other in the business, and in any profits resulting therefrom, Morris furnishing the stock of goods. In pursuance of this agreement, the firm of Morris & Shuemaker engaged in business during the year 1884, buying and selling the class of goods and groceries, etc., usually handled in country stores. At the close of that year the partnership was dissolved by mutual consent, Shuemaker retiring therefrom, and Morris retaining the stock of merchandise then remaining on hand, an inventory of which was at the time taken. But the referee specially found that the evidence did not show either the amount of capital invested in the business by the partners or either of them, or .the terms of the dissolution of the'partnership, or that there had been an accounting between the partners, or that Shuemaker received any share of the profits from the business, if any such there were, and that “the assets of the firm at the time of the dissolution consisted of the stock on hand and a large amount of customers’ notes and accounts, some of which were afterward collected from time to time, and many of them were worthless and never collected, and, owing to the vague character of the evidence, it does not appear whether the business of the firm was conducted at a profit or a loss.”
The fourth finding sets out a copy of the last page of the ledger of the firm, showing the account of S. O. Sliuemaker with the firm. The only credit entries on this page are as follows : “ 1884, September 9, by balance for’d, $4,385.53. January 1, by skt. rk. 622, 2.46.” The first debit entry on that page is dated September 8, 1884, and is as follows: “Bal. mdse. 383, 34.30.” This is followed by 17 other items, bearing date respectively from September 19 to December 31,1884, inclusive, the amount thereof aggregating $370.10. This account would therefore indicate that, at the date of the dissolution of the partnership, the firm was indebted to Sliuemaker in the sum of $3,983.-50. This account was not balanced until some time thereafter. The other debit items on this page were seven in number, six of which were evidently accounts on notes due the firm, amounting to $636.05, which were charged to Sliuemaker during the year 1885. The last item preceding the 'footings bears no date, nor is there anything therein indicating its.nature. It consists simply of the figures in the debit column of “3,347.54,” which, as a matter of fact, was the exact amount required to balance the account.
Other findings are as follows:
“5. For several years prior to January 1, 1884, the ledger of N. Morris showed a balance of. credits over debits in favor S. G. Sliuemaker, and footings were carried forward'from year to year until January, 1885. The balance in favor of said Sliuemaker, as shown in the last preceding finding, was not carried forward to the ledger for 1885 or any subsequent account.
“6. From January 1, 1885, and during each year up to January 13, Í890, S. C. Sliuemaker continued to purchase goods at the store of N. Morris, for which he is charged in a running account on the books of said Morris, the total debits being carried forward each year up to said date, and for which purchases he is properly charged with $1,657.25, and S. O. Shuemaker afterward received $60, the proceeds of a note belonging to Morris & Shuemaker, one-half of which should also be charged to him.
“7. After the dissolution of the partnership, the said S. O. Shuemaker took into his possession a part of the partnership accounts and notes, and made collections thereof, of which there was no accounting between said partners, and the proceeds were retained by said Shuemaker, and no credit was given to the' books of the partnership therefor or elsewhere, and it is impossible to determine what sums were so collected, there being no evidence upon that point.”
The referee’s conclusions of law upon these findings of fact were as follows :
“ M. C. Shuemaker, administratrix of the estate of S. C. Shuemaker, deceased, is entitled to an allow- • anee on the claim presented by her against the estate of N. Morris, deceased, the sum of $1,660.29, being the balance due said Shuemaker after deducting total charges against him of $1,687.25 from a credit of $3,347.54; said claim should be assigned to claims of the fifth class and bear 6 per centum per annum from April 13, 1890.”
It may be possible that the Morris estate is indebted to the Shuemaker estate in the sum of $1,660.29, but the evidence submitted at the hearing before the referee failed to establish that fact, as clearly appears from an examination of his report. With no information as to the amount of capital invested in the business by either partner, the terms of the dissolution of the partnership, the relative value of the stock of goods which was furnished by Morris, and that po7tion thereof which remained unsold and which was retained by Mm at tlie date of the dissolution of the partnership, the value of the notes and accounts due the firm and the disposition made of them, the amount of the firm indebtedness, if any, either to Morris or to general creditors, the amount collected and retained by Shuemaker on notes and accounts due the firm, whether there ever had been an accounting between the partners, or whether the business had been conducted at a profit or at a loss, it seems clear that any conclusion which might be reached as to whether any sum was due on account of the partnership affairs would be wholly conjectural. The defendant in error claimed a balance due her intestate of over $15,000, but she is apparently satisfied with a recovery of but little in excess of 10 per cent, of that amount. The conclusions of law of the referee are based upon the assumption that the last debit entry in Shuemaker’s account with the firm represented an actual indebtedness in favor of Shuemaker and against MorHs of $3,347.54. Whether that entry was intended to represent a balance in favor of Shuemaker, or that he had been paid that amount, either in cash or notes and accounts of the firm, or otherwise, or whether it expresses his share of the losses in business; we do not know, and the findings of fact do not afford' us any information regarding that matter. The referee construed' that' entry to represent a balance due Shuemaker, and he found that “ it was not carried forward to the ledger for 1885 or any subsequent account.” The partnership was dissolved on January 1, 1885. Seven of the debit entries on that page were made during the year 1885, and the account was then closed. Even if the referee properly held that the ledger of the firm showed a balance in favor of Shuemaker, the fact that “it was not carried forward to the ledger for 1885 or any subsequent account” would indicate that this balance was an indebtedness of the firm of Morris & Sliuemalcer, and, as they were equal partners in business, the presumption would be that Morris would not be liable for the payment of over'one-half of that amount, which is less than the judgment rendered herein in favor of the Shuemaker estate. We do not think the conclusions of law were warranted by the findings of fact, or that the defendant in error was entitled to a judgment in her favor.
The judgment will therefore be reversed, and a new trial awarded.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J.:
May 1, 1891, C. P. & A. B. Dewey, as plaintiffs, commenced this action in the district court of Rawlins county against Michael Flaherty and others on a note and mortgage executed by the said Michael Flaherty in favor of plaintiffs for $500. The plaintiffs in error, Burton & Hendricks, were joined as defendants, a personal judgment being asked against them for the amount of the note and interest on the following guaranty:
“Atwood, Kan., April 25, 1887.
. “ For a valuable consideration, we hereby guarantee C. P. & A. B. Dewey, of Chicago, 111., against any loss by reason of a loan of $500 negotiated by us as agents for said C. P. & A. B. Dewey, said loan being secured by mortgage on the west half of the northwest quarter and the west half of the southwest quarter of section 22, township 1 south, range 36 west, in Rawlins county, state of Kansas. Said notes and mortgage have been executed by Michael Flaherty.
Burton & Hendricks.”
Trial was thereafter had by the court and a jury, upon the issues joined between the plaintiffs and Burton & Hendricks — the other defendants being in default— and a judgment was rendered upon the verdict of the jury adjudging the amount due on the note and mortgage, to wit, $803.85, to be a first lien upon the mortgaged premises, and directing, in case of the failure of the defendants to pay said sum within six months from the date of judgment, that an order of sale issue for the sale of the mortgaged premises without appraisement, and that the proceeds thereof should be applied to the payment of the costs, taxes, and said judgment debt. Personal judgment was a'Jso rendered at the same time against said Burton & Hendricks for the amount found to be due on said note, and directing that, after sale of said lands and] application of proceeds, “let execution issue, on demand, against the property of defendants John M. Burton and R. S. Hendricks.” At the time said action was commenced Michael Flaherty was dead. His .legal heirs were made parties to the suit, but his executor or administrator, if there was one, was not brought into court. Burton & Plendricks now complain of this judgment, contending that they had assumed no such obligation as that put upon them by the judgment of the court. Both in the petition of the plaintiffs and upon the trial of the case, the guaranty of the defendants Burton & Hendricks was treated as a guaranty of payment of the Flaherty debt. This was clearly an erroneous .view of the matter. The language of the writing is not ambiguous, and plainly expresses the nature and extent of the obligation. It is familiar law that the liability of a surety or guarantor is not to be extended beyond the precise terms of his contract. When the language of the contract is plain it must control. (Kepley v. Carter, 49 Kan. 72 ; Kingsbury v. Westfall, 61 N. Y. 356.)
There is a well-understood difference between a guaranty of payment and a contract of indemnity against loss, as the result of the nonpayment of a debt. In the first case the liability of the guarantor is fixed by the failure of the principal debtor to pay at maturity, or at the time when payment was guaranteed. In the second the contract partakes of the nature of a guaranty of collection, no liability being incurred until after, by the use of due and reasonable diligence, the guarantee has become unable to collect the debt from the principal debtor. A guaranty of collection or a guaranty against loss as the result of the failure to collect a debt places upon the one for whose benefit the guaranty is made the duty of making a reasonable effort to collect the debt from the principal debtor; and a cause of action does not accrue thereon until after such effort has been made and proved unavailing. There is no right of action upon such contingent liability immediately upon the failure of the principal to perform. In the case under consideration, how can it be said that the plaintiffs have sustained pr will sustain a loss on account of the Flaherty loan without any evidence-that the mortgaged premises are not sufficient to satisfy the debt, and without any claim that the Flaherty estate is insolvent? The petition consequently fails to state a cause of action against Burton & Hendricks, To make out a case against them, the petition should allege and the evidence should prove the actual loss sustained on account of said loan. This was not attempted to be done in this case, and necessarily could not be done, as the property of the principal had not been exhausted. (Abeles v. Cohen, 8 Kan. 180 ; McNall v. Burrow, 38 id. 495 ; Dana v. Conant, 30 Vt. 246 ; Gilbert v. Wiman, 1 N. Y. 550 ; Kohler v. Matlage, 72 id. 259; Jeffers v. Johnson, 21 N. J. Law, 3; Thompson v. Taylor, 30 Wis. 68.)
It follows, therefore, that this action as to Burton & Hendricks was prematurely commenced, and the objection to the introduction of evidence should have been sustained. Other matters are presented in the briefs of counsel, but, in the view we take of the principal question involved, their consideration is unnecessary .
The judgment against Burton & Hendricks will be reversed, and the case remanded, with directions to enter judgment upon the pleadings in their favor for costs.
All the Judges concurring. | [
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'The opinion of the court was delivered by
Gilkeson, P. J.
: In 1889 Andrew N. Pettit was the owner of certain real estate in the city of Wyandotte, and entered into a contract with the Farmers and Mechanics Lumber Company for lumber and other building material to be used in the erection of two buildings thereon.' To prevent the filing of mechanics' liens, he made, executed, and filed, on the 3d •day of July, 1889, with the clerk of the district court of Wyandotte county, his bond, as provided by paragraph 4745, General Statutes of 1889, in the sum of $3,000. The Farmers and Mechanics Lumber Company performed its part of the contract, but Pettit, failed to pay for the material so furnished, amounting ■to the sum of $400, and to recover this amount it brought an action upon the bond, making Pettit, Doorley and Gruble (as principal and sureties thereon) • parties defendant.
Andrew N. Pettit made no appearance. Defendant J ames Doorley filed an answer of general denial, and further alleging, in substance, that on or about the 24th day of June, 1889, he signed said bond as surety, with the said Andrew N. Pettit as principal and one R. H. Corwin as a cosurety thereon, and, with said Corwin and the defendant Pettit, went to the clerk of the said district court and presented said bond so signed for approval and acceptance ;• that said clerk refused to approve the same, or to approve either said •defendant or the said Corwin as sureties thereon, and then, and there, without the knowledge and consent of said defendant, erased the name of said Corwin from the body of the said bond, and the signature of said Corwin therefrom, and then returned said bond to said Corwin ; that thereupon said defendant understood and believed that all proceedings to execute the* same as his bond were ended and terminated; that afterward one Cóx came into possession of said bond, and, without the knowledge or consent of said defendant, procured the signature of the said George Gruble thereon, and presented the same to the clerk of said court, who then approved the same, but without having said defendant Doorley justify as surety or approving said' Doorley as surety thereon; that all use of said bond, after the same was rejected by said clerk when presented with said defendant and said Corwin thereon, was unauthorized by said defendant and without his knowledge and consent; wherefore said defendant claimed to be released as surety thereon.
The defendant George Gruble answered said petition substantially as in the answer of said defendant Doorley, as above set out; and further stated and alleged, in substance, that when he, Gruble, signed said bond, he justified as a surety thereon and delivered it to one J. F. Cox, with directions to secure the justification of said defendant Doorley as surety thereon; that he at that time, having no knowledge of the prior rejection of said bond or the refusal of the clerk of said court to approve said Doorley as surety thereon, supposed that said bond was not to be approved without two approved sureties thereto ; that. afterward said Cox, without complying with his said directions, presented said bond to said clerk with said defendant Gruble’s name thereon, who thereupon approved the .same and filed it in his office; that he never author ized. the delivery of said bond to said clerk by said Cox in violation of the instructions of said defendant, without the justification and approval of said Doorley as a surety thereon ; wherefore said defendant claimed to be released from liability as said surety. The j ury ■ found as follows :
“ Ques. Did Towner ever approve and accept Doorley' as a surety or did he reject him? Ans. Yes, he approved him.
“ Q,. After the rejection of Doorley as a surety, did he think and understand that the proceedings to deliver, the bond as his bond were ended? A. No.
“Q,. After that time, did he ever intend that it should be delivered as his bond? A. Yes.
“ Q,. After that time, did he ever give any one any authority to use the bond as his and deliver it ? A. Yes.
“Q. Did Gruble ever agree or expect to be alone bound? A. No.
“ Q. Was Doorley insolvent when the bond was filed? A. We do not know.
“Q,. At the time Gruble signed the bond and when it was delivered did he know of the rejection of Doorley as a surety? A. . No.
“ Q,. When Towner accepted and approved the bond, did he have any authority from Doorley to do so? A. Yes.
“ Q. When Gruble signed the bond did he know Doorley or have knowledge of his insolvency? A. No.
“ Q. Did Doorley, after the rejection of the bond, leave the bond with Corwin, intending it to be used to get further sureties and then delivered as his bond? A. Yes.
“ Q,. Was the bond left in the possession of Pettit after its rejection by Towner? A. Yes, with agent.”
The defendants claim that for the reason set forth i» their answers they should be released. This contention cannot be maintained. The findings of the jury do not support .their contention, and these findings are supported by a great preponderance of the testimony, and we do not think the law sanctions their release.
The object of the bond sued upon in this action' is twofold : (1) The protection of those who contribute labor and material to the building or improvement contracted for; and (2) the benefit of the owner or' contractor. When it is given no lien can attach, and if any has so attached prior to its being given it is discharged. It takes the place of the lien. Should a bond given for such purpose be lightly set aside for any act or omission of the principal, or upon some secret, unperformed understanding between the sureties? We think not. (Risse v. Planing Mill Co., 55 Kan. 518 ; Carter v. Moulton, 51 id. 9.)
It is well established in this and in other jurisdictions, that where a surety signs a bond and leaves it in the hands of the principal, to be delivered only upon the condition that it is to be signed by another person, and the principal delivers the bond to the obligee without complying with the condition, and the obligee takes it without notice of the conditional agreement, the surety will be bound. (Doir v. United States, 16 Wall. 1; Shah v. Peck, 51 Me. 284; Taylor v. King, 73 Iowa, 153 ; The State v. Pepper, 31 Ind. 76.) In such case it is the surety who puts the trust and confidence in the principal, and not the obligee ; and if any one is to be the loser, it should be the surety, for he puts it in the power of the principal to do the mischief complained of. The bond having been accepted and acted upon,' the sureties are estopped from setting up a nonperformance and undisclosed condition.
The ancient rules of the common law in relation to estoppels in pais have been relaxed, and the tendency of modern decisions is to take broader views of the purposes to be accomplished by them, and they now apply so as to reach the case -of a party whose conduct is purposely fraudulent or will effect an unjust result. It must be conceded that courts of justice, if in their power to do so, should not allow a party who, by act or admission, has induced another with whom he was contracting to pursue a line of conduct injurious to his interests to deny the act or retract the admission in cases of apprehended loss. Sound policy requires that the person who proceeds on the faith of an act or admission of this character should be protected by estopping the party who has brought about this state of things from alleging anything in opposition to the natural consequences of his own course of action. And we. think it is well éstablished doctrine, that “whenever an act is done or statement made by a party which cannot be contradicted without fraud on his part or injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what otherwise would be mere matter of evidence.”
The trial judge has very ably and fully presented the law governing this case in his instructions, and the jury have found fully upon the facts in the case. It is clear upon these facts, both upon principle and authority, that the bond is a valid obligation upon those who executed it, upon the principle, and for the reason that the sureties knew the purpose of making the bond was for the protection of the material-men and laborers from loss by the acts of the principal. They left the bond in the principal’s hands for delivery for that purpose ; true, “upon condition.” But the obligees knew nothing of the condition. They relied upon the bond and furnished material upon the strength thereof. The sureties, by executing the bond and leaving it with the principal, placed it in his power to deliver it as a valid, complete instrument. He did so deliver it. It is a case for the application of the maxim : "When one of two innocent; parties must sustain a loss from the wrongful act of a third, the loss must be borne by the one who has enabled the wrong-doer to commit the act.”
The judgment of the court below will be affirmed.
All the Judges concurring. | [
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Per Curiam:
This action was to recover damages for fraud in the sale of shares in the capital stock of the Paola Canal and Industrial Company. The findings and judgment were for the plaintiff, Cooper: The defendant, Crossan, appeals.
The defendant’s abstract does not state the nature of the fraud alleged in the petition, therefore the bearing of the evidence abstracted does not appear. It is stated in the abstract that the witnesses for the defendant “show that the holdings of this company is and was one of the best propositions in the country.” Then follow the statements of a witness that he would consider the plant one of the best in the country, that it could water 8000 or 9000 acres, and that the average yield of rice is seven or eight sacks per acre, worth on an average $3.50 per sack, one-fifth of which goes to the water company. The statement of another witness that the property of the company was worth $65,000 is given, and also an excerpt from the company’s charter authorizing the issuance of preferred stock, upon which dividends of seven per cent per annum are to be paid out of net earnings; and in winding up the affairs of the company the preferred stock is made a first lien on all its property. All this may be true, and yet the defendant may have made a fraudulent sale of the stock.
No other evidence than that above referred to was abstracted, except the testimony given by the defendant himself, and there is no statement that all the evidence upon the issue or upon any issue is abstracted. Nor is it stated what the issues were, except the general statement that the petition charged that the defendant had committed a fraud in selling the stock. The abstract says that “there is no evidence to sustain such an allegation,” i. e., the allegation of fraud in the sale of the stock. This is insufficient. Eule 9 of this court provides:
“A party need not include in his abstract . . . all the evidence in order to support a claim on his part that it does not show or tend to show a certain fact, but when such a question is presented the adverse party shall print so much of the evidence as he claims to have that effect.”
This rule was commented on and its application illustrated in Railway Co. v. Conlon, 77 Kan. 324, but the court, said:
“It will be observed that the portion of the rule quoted speaks of ‘a certain fact:’ Its application is obvious where it is claimed, for example, that evidence of a demand or of a notice is wanting. If, however, the general claim be made that a verdict or decision is unsupported by the evidence, and a consideration of the evidence is necessary to determine the question, the evidence must be abstracted by the party making the claim. ... If in consequence of a demurrer to the evidence or a motion for a peremptory instruction it be necessary to consider the evidence generally in order to determine its. legal sufficiency, the party asserting its insufficiency must abstract it. But if the claimed defect lie in the failure to prove some certain fact essential to recovery the application of the rule made in the present controversy will govern.” (pp. 329, 330.)
The abstract does not enable us to determine that there was no evidence to sustain the findings. We can not pass upon the weight of conflicting evidence.
It is not meant that a copy of the evidence should have been set out, but an abstract is required as stated in the Conlon case. If it had been stated that the claim of the plaintiff was based on false representations and what the representations were, and an abstract of the testimony relating to the representations and their falsity had been made, it would have been sufficient. Or if, after abstracting the evidence concerning the representations, it had been stated that no evidence was given tending to show their falsity, or that only the evidence abstracted was given affecting that matter, then it would have devolved upon the other party to abstract any evidence, or additional evidence, claimed to show such falsity.
The defendant’s brief alleges error in the admission of a deposition, and of other testimony, but there is no abstract of any proceeding concerning the deposition. Neither is the testimony objected to abstracted.
The principal contention of the defendant is that the evidence does not support the finding made against him, but as this does not appear from his own abstract, nor from the counter abstract filed by the plaintiff, it must be presumed that such evidence was received, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This case presents still another phase of the Barton county road litigation. (Hines v. Barton County, 106 Kan. 682, 687, 189 Pac. 368; Hines v. Barton County, No. 23, 618, just decided.)
The present action relates to the proposed construction of an improved road from Great Bend to Pawnee Rock, near the southwest corner of Barton county, a distance of some twelve miles.
On May 31, 1919, a petition of the requisite number of qualified landowners was presented to the board of county commissioners of Barton county praying for the permanent improvement of a public road between Great Bend and Pawnee Rock. The petition alleged that the' desired improvement would be of benefit and public utility. The sort of improved road desired was outlined—
“All on condition that no award for the improvements herein prayed for shall be made upon any bid which will make the average cost per mile of the same mpre than $30,000.”
The lands to be taxed for the improved road and included in the benefit road district thus created were specified. On July 7, 1919, the county board considered the petition and determined that the road should be constructed, and designated it as Sections A and B of Federal Aid Project No. 3. Further pertinent resolutions concerning this proposed road were likewise adopted at the same time.
The petition further alleges that the county board failed to set a time for the consideration of this petition and gave no public notice thereof; that no estimates, plans or specifications were filed in the office of the county clerk. On March 1, 1920, the county board resolved to take charge of and construct this road (and another projected road east of Great Bend, Section C), by purchasing machinery, grading, building culverts and bridges, laying concrete slab, “and do such other things and make such expenditures as may further be necessary for the improvement and construction of said road.”
“Plaintiff further alleges that under the order made on the first day of March, 1920, . . . the said County Commissioners are now proposing to construct said highway from Great Bend to Pawnee Rock . . . and by day labor, and that unless restrained by the order of this court, they will proceed to the construction of said road in the manner aforesaid.
“Plaintiff further alleges that the cost of said road per mile, if built as contemplatéd and ordered, will greatly exceed the sum of $30,000, and will be not less than $40,000 per mile, and possibly much more, all of which is well known to the said defendants, the Board of County Com. missioners of Barton county, Kansas.”
This action which was for an injunction to restrain the county board from constructing the road and from levying and collecting taxes or assessments on account thereof, was commenced on March 30, 1920.
The defendant board filed an answer making certain admissions and denials of the matters alleged in plaintiffs petition, and at the trial the parties agreed on the facts of controlling significance. The record shows the following:
Mr. Osmond (counsel for plaintiff, and reading from his petition) :
“Plaintiff further alleges that the cost of said road per mile, if built as contemplated and ordered, will greatly exceed the sum of $30,000 and will be not less than $50,000 per mile, and possibly much more, all of which is well known to the said defendants the Board of County Commissioners of Barton County, Kansas.”
Mr. Smith (counsel for defendant) :
“We do not admit that; we will admit it will be more than $30,000 if built at the time the petition was filed.
“The defendants demur to the case as made and facts agreed upon, for the reason that the same wholly fail to prove a cause of action against these defendants except for an injunction against building said road at a cost exceeding $30,000 a mile, and for costs of this action. -The defendants here and now in open court profess themselves as willing to submit to a permanent injunction enjoining them from constructing said road at a cost exceeding $30,000 a mile and for costs.
“The Court: That presents same question as involved in the other case.
“Mr. Smith: Yes.”
The trial court rendered judgment for plaintiff perpetually enjoining the defendant board from constructing an improved highway under the petition of the qualified landowners filed with the board on May 31, 1919.
The board of county commissioners appeals, contending that the injunction is made too broad, that it should extend no fur ther than to prohibit the board from building the road between Great Bend and Pawnee Rock at a cost exceeding $30,000 per mile.
Counsel for the board also press upon our attention certain provisions of statute which will require some attention. The petition and preliminary proceedings to construct this improved highway were authorized by the good-roads acts of 1917 and 1919. In the latter act (chapter 246) it- is provided :
“Section 1. . . . Provided, however, That before such improvements, as prayed for in such petition, are ordered by the county commissioners, they shall, by order of the board, find the same to be of public utility, and the county clerk shall publish such order in one issue of the official county paper, and no action shall be brought to restrain the making of such improvements, or payment therefor, or levy of taxes or special assessments or issuance of bonds therefor, on the grounds of any illegality in said petition, or in any proceedings prior to said order, or in said order, unless such action be commenced within thirty days after the date of said order. . . .
“Sec. 4. . . . No action shall be brought to restrain the making of such improvements, or payment therefor, or levy of taxes or special assessments or issuance of bonds therefor on the ground of any illegality or irregularity in advertising, receiving bids or awarding the contract, or any proceedings prior to the award of said contract, or decision by the board to make such improvements by day labor, unless such action be commenced within thirty days after the date said contract is awarded or decision by the board to make such improvements by day labor.”
There was no illegality in the petition-filed on May 31, 1919. The limitation as to the cost of the road was a valid limitation. (Hines v. Barton County, supra.) The petition was not attacked within thirty days. Therefore neither the petition nor any of the proceedings undertaken pursuant thereto which were not challenged within thirty days can now be questioned. (Field v. Reno Co., 107 Kan. 397, 191 Pac. 315.) The thirty days’ limitation cuts off all controversy touching the matters had and done prior to thirty days before this suit was filed, March 30, 1920. On' the other hand, however, any attempt to construct this highway at a cost exceeding $30,000 per mile, without a new petition- of the qualified landowners, gives a cause of action to a taxpayer aggrieved thereby. The action of the county board on March 1, 1920, wherein it determined to proceed with the road building without regard to the $30;- 000 limitation gave plaintiff a cause of action, and it was filed within thirty days, so that provision of the act of 1919 was complied with, if indeed an action filed later would be barred.
It therefore follows that defendant's contention is correct. The injunction should be modified so as only to restrain the county board from constructing this improved highway at an expenditure exceeding an average cost of $80,000 per mile.
The cause is remanded with instructions to the trial court to modify its judgment granting an injunction in accordance herewith. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, John Harris, brought this action against Arthur P. Fielding, to recover upon a written contract, and the controversy between the parties is whether the contract was with Fielding or with the Manhattan Packing Company. The trial court sustained a demurrer to his petition and he appeals.
The following is a copy of the contract:
“Manhattan, Kan., July 29, 1918.
“agreement.
“The Manhattan Packing Company is this day selling and delivering to Dr. John Harris, of Manhattan, Kansas, (25) twenty-five shares of the Manhattañ Packing Company stock for the consideration of $2,023.95, for which the payment is hereby acknowledged, payments made as follows: $723.95 cash in hand, balance note due in one year, bearing rate of 7% from date. Payments for any amount may be applied at any time and stop interest. One note for $300.00 due in 90 days.
“The undersigned agrees to take all the above stock from Dr. Harris at the expiration of one year, at the rate of 7% from date, if the said Dr. Harris wishes to withdraw from the company at that time.
“It is understood that Dr. Harris shall not receive more than the price paid for this stock and the interest stated above, if he wishes to withdraw from the company within one year, and that he cannot sell said stock to any one except the undersigned, Arthur P. Fielding, president.
“It is further understood that if Dr. Harris at any time after one year wishes to sell his stock at the market price, the stock shall be offered to the company, who shall always have the refusal of same at market price.
“Witness — W. B.-DIlton.
“Witness — E. P. Lawrence.
“(Signed) Arthur P. Fielding, President.
“(Signed) John Harris.”
The plaintiff alleges that Fielding was the president and agent of the packing company and as its agent sold him twenty-five shares of stock for $2,023.95, for which he paid $723 in cash, and gave a note for $300 due in 90 days which has since been paid, and another note for $1,000 due in one year, which has since been renewed, and upon which plaintiff states that he is liable. He further alleged that the stock was sold upon the condition that if at the end of one year he wished to withdraw from the company for which he was working, the stock would be taken off his hands at a price not exceeding that which he paid for it, but that a few days before the expiration of a year it was agreed between the parties that if he would remain and work for the company, the contract would be renewed for another year. He further alleged that he continued in the employ of the company until June, 1920, when without cause or excuse he was discharged from the employment and that he then demanded that the defendant comply with the conditions of the contract and buy his shares of stock'at the price paid therefor with interest, but that the demand was met by a refusal. The plaintiff therefore asked for judgment against "the defendant for $2,023.95 with interest thereon at the rate of 7% from July 29, 1918.
The ruling of the court sustaining the demurrer to plaintiff’s petition must be upheld. The rights of the plaintiff, whatever they may be, must be asserted against the company. The sale of the stock was a company transaction and the plaintiff states in his petition that Fielding was acting as agent and president of the company in making the sale. He signed the contract as president of the company, in which it was recited that the company was selling and delivering the stock to plaintiff and that the company acknowledged payment of the consideration for the sale. In the last paragraph of the agreement it was recited that if plaintiff exercised his option to sell the stock at any time after the end of a year, it was to. be offered not to Fielding but to the company, which was to have the refusal of the same at the market price of the stock. If there had been no disclosure of the principal in the body of the contract the mere appending of the word “president” would not be sufficient of itself to relieve the signer of individual liability. Where, as here, the body of the agreement discloses the principal and shows that it is the agreement of the company and not of the signer, and the signature itself indicates that it was executed in a representative capacity, it must be regarded as the agreement of the company and not of the signer. (Note, 42 L. R. A., n. s., 1.) The entire agreement must be considered in ascertaining the intention of the- parties, and taking all the terms of the writing together it is clear that it was the company and not the defendant which was assuming the obligations of the agreement. It could only act through its officers and agents, and the defendant signed the writing in his representative capacity, indicating that he was acting for the company and not for himself. Besides, as we have seen, the plaintiff alleged that this was the capacity in which he was acting. The consideration was one moving to the company and nothing in it indicates that any individual consideration passed to Fielding.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment against the defendant for damages to an automobile caused by a collision with one of the trains of the defendant at a crossing of a public highway in Gray county. The defendant appeals.
The evidence of the plaintiff tended to prove that he was driving an automobile east on the Santa Fe trail along the north side of the right of way of the defendant; that there was an embankment which obscured the view of the railroad to one traveling along the trail; that the top of the car and back curtain were up, but the side curtains were not on; that the plaintiff, about ten rods before he turned south to cross the railroad track, looked for trains but did not see any; that he did not look when he turned to cross the track; that on the east side of the road where the collision occurred there was a wing fence four or five feet high which closely approached the railroad track; that after he turned he saw a passenger train coming from the west, but he was then so close to the track that he could not stop in time to avoid a collision, and quickly veered to the right and ran off the road into a culvert; that his car was still so near to the track that it was struck by the east-bound train; that he looked to the east and saw another passenger train headed west waiting on a sidetrack at a station about two miles distant for the first train to pass; that the automobile was then about two feet from the rail, and he knew that it wpuld be struck by the west-bound train; that he attempted to move the car away from the railroad track but was unable to do so; that he went to a house about half a mile away to get help to move his car, and that he obtained assistance, but before he returned the west-bound passenger train struck the automobile and did further damage to it. A demurrer to the plaintiff’s evidence was overruled.
The defendant then introduced evidence which tended to show that the automobile was first seen by the engineer of the second train when it was seventy-five feet from the automobile; that it was then impossible to stop the train in time to avoid striking the automobile; that the train could not be stopped in less than fifteen hundred feet; and that the stepladder of the engine slightly struck the car.
Special questions'were answered by the jury, some of which were as follows:
“Was there anything to prevent the engineer on No. 11 seeing plaintiff’s automobile in time to have stopped train No. 11 and avoided injury by that train. No.
“Could the engineer on No. 11, with ordinary care, have discovered the automobile of plaintiff in time to have prevented the damage to said automobile? Yes.
“Was the engineer of defendant’s train No. 11 guilty of negligence in failing to see the automobile of plaintiff in time to have avoided further injury thereto by said train? Yes.
“How far from the crossing was No.' 11 when the engineer first discovered that the automobile was in danger? Seventy-five feet.
“After the engineer discovered that the automobile' was so near to the track as to be in danger, what if anything should he have done which would have averted the danger? Nothing.
“If you find that the defendant was negligent, state fully in what such negligence consisted and who was guilty of it. Carelessness in not watching to see if the track was clear, by the engineer.”
The court instructed the jury in part as follows:
“The evidence in this case clearly indicates that plaintiff is not entitled to recover for any damage received by his automobile occasioned by a collision with east-bound train, for the reason that he failed to stop, look and listen for the approaching train before attempting to cross the railroad track; and you will not be required to consider any injuries received from the collision with the east-bound train, or consider the conduct of the defendant and its employees in running and operating that train. . . .
“I instruct you that if you find from the evidence that after the automobile had been struck by train No. 2, the passenger train east-bound, that it was so injured that plaintiff could not remove it from the place of danger, then plaintiff’s negligence prior to his collision with train No. 2 would not bar a right of recovery against the defendant.”
The defendant requested the following instruction, which was not given:
“In this case the plaintiff was responsible for his car being in the situation it was at the time it was struck by No. 11; the engineer was not obliged by the law to keep a lookout for an automobile stopped near the track, nor' was he obliged to attempt to bring the train -to a stop until he realized the automobile was in danger on account of its proximity to the track. If he did not discover the danger until it was too late to avert it, the defendant would not be liable in this case.”
The plaintiff'invokes the rule of the “last clear chance.” The automobile was standing in such a situation as rendered it impossible for the enginemen to determine from a distance that the train would strike it, even if they had seen it. They were not required to anticipate that an automobile might be standing beside the track near enough to be hit by a passing train, nor to keep a lookout for an automobile in such a situation. The liability of the railroad did not attach until after its employee had actually seen the automobile and realized that the train would hit it. This rule is supported by Railway Co. v. Prewitt, 59 Kan. 734, 54 Pac. 1067, Dunlap v. Railway Co., 87 Kan. 197, 123 Pac. 754, and Morris v. Railway Co., 103 Kan. 220, 173 Pac. 346. In the last case this language was'used:
“The rate of speed through such a country could hardly he regarded as excessive towards any one, hut if it had been so as to persons rightfully on the track, it could not be a violation of duty to a trespasser whose presence was not within reasonable anticipation. Neither was the failure of the trainmen to keep a lookout along the track all of the time, or a failure to have discovered the child at the earliest possible moment, a violation of their duty to him. (Nolan v. N. York, N. Haven & Hartford R. R. Co., 53 Conn. 461; Note, 32 L. R. A., n. s., 564.) The men in charge of the train are not required to guard against a danger which is not to be anticipated, and under the circumstances of this case they owed the injured child no duty until they saw him on the track and in a place of danger. All the facts show, and the finding of the jury is, that the engineer shut off the steam, applied the emergency brakes, and did all in his power to save the little one as soon as he was discovered on the track. Liability of the defendants for such an injury can only result from a violation of their duty to the injured child, and since it has been established that no duty to it was violated no recovery can be had against the defendants for the lamentable accident.” (p. 225.)
The defendant relies on McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621, and Rule v. Railway Co., 107 Kan. 479, 192 Pac. 729. In the former case, the court said:
“Where through some unknown cause an automobile engine stopped on a railway crossing in the open country and a heavy passenger train was speeding towards the crossing at fifty-five miles an hour from a point in plain view half a mile away, and the occupants of the car stepped out and began to apply themselves in seeking to crank the car and to push it from the track, and where the engineer of the train applied the emergency brakes as soon as he had a chance to discover^ that the car was stalled on the track, but the train was not stopped in time to prevent a collision, the railway company can not be held to have been negli-: gent nor liable in damages for the value of the car.” (Syl. ¶2.)
“The engineer has other duties besides observing the track, and the duty of observing the track may be assigned to the fireman. In this case the engineer says he might have had his attention drawn away from the track at the moment the automobile stopped on the track, but the fireman saw it. T)he enginemen would not be expected to assume, at the very first instant of observation, that the automobile would stop on the track or that something was the matter with it so that it could not be cranked and driven or pushed off the track.” (p. 370.)
The plaintiff criticizes McBeth v. Railway Company and contends that it is out of harmony with other decisions of this court rendered both before and after that case was decided. The court is not disposed either to criticize that decision or to abandon the rulé there followed. Under the rules declared in Dunlap v. Railway Company, and in McBeth v. Railway Company, the instruction requested by the defendant should have been given, and it was reversible error to refuse to give it; the one given by the court did not correctly state the law.
In Rule v. Railway Company, supra, the court held that one who had negligently driven his car into a switch yard and onto a railroad track, where it was struck by a train being switched in one direction, and was left near another track and was soon thereafter struck by another train being switched in the opposite direction, was not entitled to the benefit of the last-clear-chance rule. The plaintiff contends that the Rule case may be distinguished from the present one in this, that in the present case the engineer was where he could see the automobile in time to have stopped his train, while in the Rule case there was no one on either train that struck the automobile who could have seen it; both trains there backed against the automobile and there was no one at the rear of either train to look out for obstructions or to give warning. The present case comes within the principle followed in the Rule case for the following reason; there, no one saw the car; here, no one saw the car until it was too late to prevent injury.
The judgment is reversed, and because of the finding of the jury that the train was only seventy-five feet from the crossing when the engineer first saw the car, the trial court is directed to render judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to recover on two bills of exchange accepted by the Kansas State Bank. A demurrer to the evidence of the plaintiffs was overruled; and a verdict for the defendants was returned by the jury. The verdict was set aside, and a new trial was granted. From the orders overruling the demurrer to the evidence and granting a new trial the defendants appeal.
One of the bills of exchange was as follows:
“Accepted Salina, Ks., Jan. 7, 1919. Kansas State Bank by H. J. Lefferdink, Cashier.
“Protested for nonpayment this 7th day of May, 1919, by me a notary public. . Chas. F. Smith.
“Salina, Kansas. Jan. 7th, 1919. No. 6942.
Pro. Fees, 1.52
“At 120 days sight Pay to the Order of Western Brokerage Company $5,000.00. Five thousand Dollars. Value received and charge to account of Western Brokerage Company
“By L. W. Flack, President.
“To Kansas State Bank, Salina, Kansas.”
On the back of the instrument were the following indorsements :
“Western Brokerage Company,
By L. W. Flack, President.
“Pay to the' Order of any Bank, Banker or Trust Co. Prior Endorsements Guaranteed Apr. 23, 1919, No. 14816. The First National Bank, Cleveland, Ohio. C. E. Farnsworth, Cashier.”
The other bill of exchange was the same except that it was drawn by, payable to, and indorsed by the Central Securities Company of Missouri, by V. E. Flack, President. The answer of the receiver admitted that the instruments were drawn as alleged and admitted that the cashier of the defendant bank wrote thereon the following words: “Accepted,- Salina, Kan., Jan. 7,1919. Kansas State Bank by H. J. Lefferdink, cashier.” The answer denied that the bank had accepted the bills of exchange and that Lefferdink had authority to accept them, and alleged that the bank never received any consideration therefor and that the acceptances were made as part of a scheme to defraud the bank. The plaintiffs introduced evidence to show that they owned the two instruments at the commencement of the action, introduced them in evidence, and rested. A demurrer to the evidence was then overruled.
The defendants contend that the act of the bank was ultra vires and therefore void. This is made the basis of an argument that the demurrer to the plaintiffs’ evidence should have been sustained.
The authority given to banks organized under the laws of this state is as follows:
“Any five or more persons may organize themselves into a banking corporation, and shall be permitted to carry on the business of receiving money on deposit and to allow interest thereon, giving to the person depositing credit therefor; and of buying and selling exchange, gold, silver, foreign coin, bullion, uncurrent money, bonds of the United States and of the state of Kansas, and bonds and warrants of cities,- counties, and school districts in the state of Kansas, and state, county, city, township and school bonds issued in other states of the United States than Kansas; of loaning money on real estate, chattel and personal security, at a rate of interest not to exceed the legal rate allowed by law; of discounting 'negotiable notes and of notes not negotiable, and to own a suitable building, furniture and fixture's for the transaction of its business, of the value not to exceed one-third of the capital of such bank.” (Gen. Stat. 1915, § 514, as amended by Laws of 1917, ch. 79, § 1.)
Section 556 reads:
“It shall be unlawful for any officer, clerk or agent of any bank doing business under this act to certify any check, draft or order drawn upon the bank unless the person, firm or corporation drawing such check, draft or order has on deposit with the bank at the time such check, draft or order is certified, an amount of money equal to the amount specified in such check, draft, or order. Any check, draft or order so certified by the duly authorized officer shall be a good and valid obligation against such bank.”
What meaning is to be attached to the words, “check,- draft or order,” found in this section? The language is broad enough to include every written request made by any person to a bank for the payment of money. It does not matter what the technical name of the writing is; it can be described by one of the three words. The instruments sued on in this action come within these terms. There yet remains a consideration of the word “certified’ as used in this statute. In ordinary transactions it means that there are funds in the bank with which to pay the check, draft or order, on which the certification is placed, and that the instrument will be paid when presented for that purpose. The language used might be any that would say that the money is in the bank and that the check, draft or order will be paid according to its terms. The word “accepted” written on a check by the bank on which it is drawn would probably be a good certification. The word “certified” written on a bill of exchange payable at a future time would probably be a good acceptance.
Section 557 should be considered in connection with section 556. Section 557 in part reads:
“Every . . . cashier . . . who . . . makes any acceptance . . . with intent ... to injure or defraud the bank . . . shall be deemed guilty of a felony.”
This statute recognizes the power of a bank to make an acceptance. An acceptance of what? Of any writing that the law requires should be accepted. It must refer to a payment to be made in the future by the bank. This necessarily includes bills of exchange payable at a future date. Sections 556 and 557 contemplate that a bill of exchange drawn against a bank may be accepted by it although the bill is made payable at a future time.
The defendants argue that the bank had no authority to loan its credit or to become surety for another on any obligation. These two propositions may be conceded, but the difficulty with the argument is that it assumes that the bank was loaning its credit or becoming surety on the bills of exchange when there was no evidence introduced by the plaintiffs to show these facts. The written acceptances imported a consideration. (Gen. Stat. 1915, §§ 2040, 6551.) If the drawers of the bills of exchange had funds in the bank with which to pay the acceptances at the time they were made, there would have been a consideration for them. The same would be true if the drawers had made arrangements, by depositing securities or otherwise, to procure the acceptances by the bank. In either event the bank would have been bound. Not until the evidence of the defendants was introduced was it shown that there was no consideration for the acceptances. Even if that fact had been shown by the plaintiffs’ evidence, and it likewise had been shown that the plaintiffs were innocent purchasers of the bills before their maturity for value, the bank would be liable under the negotiable-instruments law. (Gen. Stat. 1915, §§ 6654-6659.) By the acceptances the bank agreed to pay the bills of exchange. After the acceptances the bills circulated as commercial paper. Checks drawn by a bank’s depositors, time certificates of deposit, cashier’s checks, bank drafts, notes given by a bank for money borrowed, and the notes indorsed by a bank when transferring them, circulate as commercial paper. The bank’s credit is behind each of them, and it i,s not excused from its obligation to pay on account of its credit being pledged.
The cashier was the proper agent of the bank to make the acceptances; the bills of exchange were accepted by the bank; they were negotiable instruments. (Gen. Stat. 1915, § 6654.) If the plaintiffs were innocent purchasers of the bills for value before maturity, the bank is liable thereon. The demurrer to the evidence was properly overruled.
Complaint is made of the judgment of the court granting a new trial. To support this complaint it is argued that a cause of action was not stated by the petition for the reason that it disclosed that the action was on an obligation that the bank had no power to incur. This proposition has been disposed of and need not be further discussed. No reason for his action was given by the court; a new trial may have been granted for the reason that the verdict was against the evidence, that a fair trial .was not had, or for any other one of the reasons for which a court is justified in granting a new trial. (Cronk v. Frazier, 86 Kan. 879, 122 Pac. 893; Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486.)
The order overruling the demurrer to the plaintiffs’ evidence and the order granting a new trial are affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Robert Farmer sued Frank Purcell under the workmen’s compensation act on account of an injury received at a time the plaintiff claims to have been employed by the defendant. The principal ground of defense was based upon the claim that at the time of the injury the plaintiff was not working for the defendant, but for an independent contractor, George E. Holter, who was doing a particular piece of work for the defendant under a special agreement. The plaintiff recovered judgment and the defendant appeals, his chief contention being that the evidence did not support a finding that the plaintiff was in his employ. The case was submitted to the jury under an instruction that if Holter was an independent contractor the plaintiff could not recover.
There is no substantial conflict in the evidence bearing upon the question at issue. The material facts as established by the evidence introduced by the plaintiff may be thus summarized :
The defendant had for some years been operating a sawmill and factory. A large quantity of sawdust had accumulated on the premises, which he desired to have removed. He caused to be constructed an elevated bin holding about four wagonloads, into which the sawdust was conveyed through a chute by an endless chain. Employees of the defendant fed the sawdust into the conveyor by means of horse-drawn scrapers. The bin referred to was so arranged that a wagon could be driven under it and filled with sawdust by drawing out a slide by means of a handle made of a piece of belting or rubber hose. The defendant by his. superintendent entered into an agreement with Holter to pay him two dollars an hour to haul the sawdust away from the bin- — to take it away as fast as it was fed into the bin irrespective of how many teams this would require- — to keep the bin clear so long as the work of removing the. heap of sawdust lasted. Holter arranged with O. H. Groomer to share the work with him on a fifty-fifty basis. The work was done in accordance with this agreement. Holter and Groomer each furnished one wagon and team. Holter hired the plaintiff to drive his wagon a part of the time, paying him 35 cents an hour, or $3.50 a day. The defendant paid Holter and Groomer by checks running to them jointly, and Holter paid the plaintiff. The plaintiff was injured in this manner: He drove the wagon under the outlet of the bin and undertook to draw the slide. As he did so the handle broke and he fell from the wagon to the ground. In the original agreement between the defendant’s superintendent and Holter it was specified that the sawdust was to be dumped one wagon-load deep clear across the tract on which it was to be deposited. Afterwards the superintendent, seeing that if this were done there would not be enough sawdust to fill up some low places, asked Holter to fill up one of them first, and this- was done. He also asked to have a few of the loads dumped in the lumberyard to make a road, and this also was done — according to his testimony as an accommodation to him. Except as has been stated the defendant or his supérintendent exercised no control over the manner in which the work of hauling away the sawdust was carried on. The superintendent testified that he could have discharged Holter if he had failed to comply with his contract to keep the bin empty.
We do not regard these facts as establishing the relation of employer and employee between the defendant and the plaintiff. There is nothing to suggest any want of good faith in the arrangement entered into between the defendant and Holter, such as characterized the contract passed upon in Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578; nor was the work in which the plaintiff was engaged intrinsically dangerous as in the case of the mining operations involved in Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498. The carrying away of the sawdust was not a continuous feature of the ordinary operation of the defendant’s business. Such an amount of sawdust had accumulated that it became necessary, or at all events desirable, that it should be removed. The defendant arranged for his employees to do the work necessary to convey it to the elevated bin, and contracted with Holter at a fixed rate per hour to see that it was removed from the bin to the dumping ground fast enough to prevent a delay in the work. The means of removal — the number of wagons used and the selection of drivers — were left with Holter. The agreement covered the getting the sawdust away from the bin during the whole period occupied by the operation of removing it from its original position. The testimony was that Holter could have been discharged at any time, if he had failed to carry out his contract, the necessary implication being that he had a right to continue the wor’so long as it lasted provided he lived up to his agreement. Groomer testified that he and Holter continued to work till they got through the job; Holter that “they [referring to the defendant] took all the sawdust out they was going to take out; they changed their minds and didn’t take it all out, and laid the teams off.” To the question thus asked by the plaintiff (on direct examination), “Well, were you discharged or did you quit?” Holter answered, “We were not discharged; we were laid off, finished up.” There was no other evidence on that feature of the case. The defendent had no control over or interest in the methods employed by Holter; he was concerned only with the results reached — the keeping of the bin empty (or in condition to receive the sawdust as it was fed in by the conveyor) and the dumping of'the sawdust in the place that had been designated. The later indication of a somewhat different place for the disposal of a few loads, acquiesced in by Holter, whether as an accommodation or in recognition of a right on the part of the defendant to make such change, did not in our judgment amount to such a control of the method of reaching the result sought as to be inconsistent with the theory of an independent contract. Holter was at liberty to use his own teams or those of some one else; to drive them himself or hire any one he might choose for the purpose; and to do as he saw fit with his time, his implements and his employees, so long as he prevented the undue accumulation of the sawdust in the bin, and procured its deposit in the proper place on its removal therefrom 1
We do not deem it advisable to review the many cases presenting facts more or less similar to those here involved, some falling on one side of the line and some on the other. A recent summary of the effect of the decisions is to be found in the article on Independent Contractors in Ruling Case Law (14 R. C. L. 65-108), and many cases involving the principle as applied to the workmen’s compensation act are collected in 1 Honnold on Workmen’s Compensation, § 66. The determining consideration is whether or not there was a control of methods as distinguished from results and we conclude that Holter was an independent contractor and that the plaintiff was not an employee of the defendant. It follows that there can be no recovery in this proceeding.
We are not called upon to determine whether the defendant might be liable notwithstanding the plaintiff was the employee of an independent contractor, under the portion of the compensation act which reads:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation, under this act which he would have been liable to pay if that workman had been immediately employed by him; . . . (d) This section shall not apply to any case where the accident occurred elsewhere than on or in, or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in, or about the execution of such work under his control or management.” (Gen. Stat. 1915, § 5898.)
The instruction of the trial court that no recovery could be had if Holter was an independent contractor has not been challenged, but has been accepted as the law of the case. The matter is mentioned only in order that the decision may not b~ regarded as placing an interpretation upon the statutory provisions just quoted.
If the action were one for an injury to the plaintiff through the negligence of the defendant an entirely different question would be presented. (Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586; 14 R. C. L. 81.)
The plaintiff contends that error affecting the amount of the judgment was committed against him, but as we hold that no cause of action was established it is not necessary to determine what would have been the proper basis of recovery if our conclusion in that regard had been different.
The judgment is reversed and the cause is remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant, who holds the office of mayor of the town of Hanover, was convicted of the offense of unlawfully having in his possession intoxicating liquor. His sole contention is that the evidence is insufficient to establish the fact of possession. .
The state’s evidence was to this effect:
On August 9, 1919, William Doebele and his brother, Edward, were together in Kansas City, Mo., leaving there in the evening on a train for St. Joseph, Mo., where they waited together an hour and a half for a train to Hanover. Edward had eleven quarts of whiskey in two suitcases. On the train to Hanover, the brothers occupied the same seat a part of the time and under the seat were the two suitcases containing the liquor. They arrived at two-thirty in the morning of the 10th, and went to William’s house. Edward then went across the street to where his brother, Henry, lived, who was in bed asleep, wakened him and had him go to William’s house where the three drank part of the whiskey. Henry drank too much and after going home abused his wife. She called the city marshal to come to her protection and informed him that there was whiskey in William’s house and asked him to get the sheriff and have all three of the brothers arrested. The sheriff had just arrived at appellant’s residence when a car drove up in which were William, Edward and George Doebele and Frank Seeberger. The sheriff showed them the warrant and William said: “There’s nothing to that at all. Just forget it. It was just a little family affair.” He inquired who started the prosecution. The sheriff said: “You had some liquor last night did you not?” Edward said, “Yes, we brought in some whiskey last night and we stopped at Henry Doebele’s as we came from the train and drank it all up.” William, the appellant, said: “That is true, we have no whiskey, we drank it all up.” He said that if the sheriff thought there was any whiskey in the house to go in and search. He afterwards withdrew this offer and refused to permit a search without a warrant. A warrant was procured and the whiskey was found in a closet of the bedroom in William’s house.
It is argued that the fact is undisputed that the liquor was placed in William Doebele’s home without his knowledge or consent, and that he could not have counselled, aided or abetted his brother in the commission of the offense. We think there were several circumstances which justified the jury ’in arriving at the verdict.
Moreover, the city marshal testified that he had a conversation with appellant about his arrest and the search of his house in which the appellant complained that the marshal should have exercised a little consideration, and could have put off calling the sheriff a couple of hours and then have told the parties that he was unable to get him; that among other things, the appellant said: “You could have let us know when they were coming.” The fact of possession, like any other element in the offense charged, may be established by circumstantial evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, Esther M. Smith, brought this suit against her son, Cameron Smith, and his wife, to set aside a contract by which she had agreed to will to the son 80 acres of land, or in case of his death before hers, to his children subject to a life estate therein to his wife, he to live on the land and care for it. She claims that the defendants had made life unbearable in her home and asks that she be given possession of the land to their exclusion.
The answer among other things alleged that seventeen years before the beginning of this suit the son made a verbal contract that he should live at home on the farm, take full charge of the work and personal property and operate the farm for his father and mother and at their death receive as compensation for his services the full legal title to the farm consisting of 160 acres; or if he should die preceding his parents, the title to go to his children, subject to a life estate to his wife; and that after the father’s death, the contract was changed so that a brother was to have one 80 and the defendant, Cameron Smith, the other. It was further alleged that the defendant carried put his part of the agreement faithfully, and that the mother had made the will as agreed to, but had later revoked it; that two grandchildren had made their home on the place and that the defendant had cared for them.
The court made findings of facts and conclusions of law by which it appears that the plaintiff and her husband engaged for many years in farming and accumulated a quarter section of land. The son, Curtis, did not remain at home after his majority, but married and went away. The defendant, Cameron, desired to enter other work, but his father was in bad health and it was verbally agreed between the three that he should remain at home, work on the farm, pay up the personal debts, and at the death of his parents have the farm and all the personal property; and in the spring of 1892, he entered upon the performance of this contract. He was married in 1905, and brought his wife home to the farm where she did her-full share of the work. Three children were bom to them. In 1906, the father died, leaving thirteen head of horses and colts and some other • stock, and farm implements worth about $2,500. There was a mortgage on the farm of $2,100, and one on the personal property of $1,100. By oral agreement between the mother and the defendant, Cameron, the former contract was modified so that the north 80 should go to Curtis and the south 80 to Cameron. February 26, 1917, a written contract to this effect was entered into between the mother and Cameron, and the mother made a will to that effect which she deposited in the office of the probate court of Marion county. In September, 1917, the plaintiff became ill and was taken to a hospital in Kansas City for a surgical operation. Before this and up to the fall of 1918, the parties lived together agreeably on the farm and without any serious trouble or dispute. ' In 1919, the mother’s attitude changed and. she charged Cameron with holding out her money; with falsehood touching her checks on the bank; with having begun to take advantage of her; with having subjected her to the operation in hopes she would not survivé; all of which charges were without foundation; and after this suit was begun quarrels and bad language and slanderous remarks occurred and bad blood arose between the parties. Also,—
“14. About the time of the bringing of this action the plaintiff repudiated the contract and' procured from the probate court the will that* she had deposited there for the purpose of carrying out the same, and burned or destroyed it.
“15. The defendant, Cameron Smith, from 1902 has faithfully performed the contract on his part for 17 years and up to the time the same was abandoned and repudiated by the plaintiff and has raised crops in a good and farmer-like manner and paid off the mortgages on the farm and personal property out of the proceeds of said crops.
“16. The farm machinery and personal property that was on hand at the time the performance of the contract in question was commenced in 1902, has been worn out or disposed of and replaced out of the .proceeds of crops that were raised on the farm in question since said time, and at the time of the repudiation of the contract in question said personal property consisted of horses, cows, farm implements, tractor, automobile, household furniture, savings stamps and bonds of the total value of about $4,000.00 and said farm was at said time of the value of $25,000.00, and the north 80 of same of the value of $13,000.00.
“17. That since the repudiation of said contract, the defendant, Cameron Smith, has planted and growing on said farm, 70 acres of wheat, 20 acres of oats and 24 acres of corn.
“18. That at the time of the repudiation of the contract the plaintiff was about 65 years old and her expectancy of life 11 years.
“19. At about the time or after the bringing of this suit, the plaintiff, Esther M. Smith, moyed into a little house on the farm in question and situated or located nearby the dwelling house thereon, theretofore occupied by herself and the defendant. And that she now lives in said house on said farm.”
As conclusions of law the court found—
“1. The plaintiff is not entitled to have the contract in question canceled or rescinded.
“2. The court should not compel the specific performance of the contract in question by the parties thereto. That the equities in the property, real and personal, should be adjusted between said parties on the basis of the time that said contract was performed as compared with the expectancy of the life of Esther M. Smith at the time of her breach or abandonment of said contract.
“3. That the defendant, Cameron Smith, be allowed 17/28 of the value of the south 80 of the farm in question and amounting to $7,892.85 and the same be made a lien upon the same and due and payable at the death of Esther M. Smith.
“4. If the contract in question had been fully performed to the death of Esther M. Smith, Cameron Smith would be entitled to whatever personal property she then owned, subject to the payment of her debts as to the amount'and value of the same at the time. We have no way of knowing if the contract had not been breached and Cameron Smith had continued in the farming and managing of the farm in question to the death of Esther M. Smith, and in view of the crops and the proceeds from the same prior to the breach of the same, there is good reason to believe that the amount and value of such personal property would not be less than the amount and value at the present time, to-wit: $4,000.00, and that Cameron Smith should be allowed 17/28 of said value, or $2,428.57, same to be due and payable out of the estate of Esther M.. Smith after her death.
“5. That the crops plantéd on the farm in question by Cameron Smith since the breach of the contract in question, should be settled for on the basis of rents or share of said- crops when gathered or harvested. That Cameron have half of said crops and that he deliver the other half of said crops to Esther M. Smith and that Cameron Smith be allowed to retain the possession of the farm in question for the purpose of harvesting, cultivating and gathering said crops and to date not longer than January 1st, 1921, at which time his right to the possession of said farm or any part thereof is to cease and determine and to be surrendered to Esther Mi. Smith, together with the possession, all personal property of every nature and kind owned by Esther M. Smith.”
The defendants appeal and while no criticism of the findings of fact is made, the conclusions of law are met with the claim that they are not equitable, and counsel suggest various changes which they think should be made therein.
The plaintiff argues that the court found that on account of bad blood the parties could not live together on the farm for the purpose of carrying out the contract and that the amount awarded the son by the court is sufficient to compensate him for the work and services performed under the terms of the written contract, It is suggested that as long as she is living the mother is entitled to her homestead and that no court can deprive her of this constitutional right.
The findings of fact show that for seventeen years Cameron Smith faithfully carried out the terms of the contract he had made with his parents, and later modified by agreement with his mother, and that not until her hospital experience did she turn against him. There is nothing to indicate that she was in anywise justified in the charges she made against him, but on the contrary it is expressly found that such charges were without foundation; hence, in all these matters he was without fault, and the mutual bad blood and recriminations which rendered it, as the court found, impossible for the parties to live together seem to have been on account of the mother’s changed disposition towards the son and her unfounded charges against him.
We do not perceive that the homestead question is involved, for the land in controversy is as much the' homestead of the defendants as of the plaintiff and has been for many years.
The unfortunate change of disposition wrought upon the mother, evidently by her sickness and operation, while lamentable in the extreme, does not make a just ground for depriving the son of his rights under the contract or of the proceeds of his industry during the long term of years he has been in charge of the farm. We are unable to agree with the trial court as to the equitable requirements of the situation, but upon the findings of fact we have after due consideration reached the conclusion that a different decree should be rendered.
The decree is reversed and the cause remanded with directions to enter a decree to the effect: First, that the defendant be permitted to remain in possession of the farm, and operate it in accordance with the terms of the contract heretofore entered into between the defendant, Cameron M. Smith, and his parents, as later modified by the contract with his mother; should the plaintiff prefer to live apart from the defendants, that she be permitted to live elsewhere on the farm or at any other reasonable place selected by her. Second, that upon the death of the plaintiff the south 80 of the quarter section involved and the personal property shall go to Cameron Smith, or in case he should not be living at that time, such real and personal property to go to his children subject to a life estate to his wife, Amelia A. Smith, such life estate to cease in case she should marry again. Third, that the trial court retain jurisdiction of the cause and of the parties thereto with power to modify the decree from time to time as circumstances may require. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the cancellation of an oil and gas lease was adjudged and the defendant appeals.
The lease covered 509' acres and was executed by P. M. and Ida Wescott to B. E. LaDow, on February 27, 1904, and subse quently assigned to the defendant, A. W. Bailey. The lease stipulated that the lessee should “have the exclusive right for twenty years from this date to enter upon and operate for oil and gas on that certain tract of land,” etc., describing it. It provided for the payment of consideration in the sum of $117.25, payable semi-annually, being a rental of fifty cents per acre, during the continuance of the lease. It was stipulated that the lessee should deliver to the lessor one-eighth of the oil produced on the premises or at the option of the lessor should pay $100 per year for each gas well of sufficient capacity to use, except one well which was then on the premises, for which the lessee was to pay fifty dollars per year. It contained the provision that if oil or gas is found in paying quantities in any well drilled, .the privilege of operating should continue so long as oil or gas is so produced and when abandoned the grant should cease. It contained the further stipulation that the rental should be paid—
“During the continuance, of this lease providing however that a producing well on any forty acres of land should stop the payment of rental on that 40 acres; said rental should be deposited to the credit of said P. M. Wescott in the Neodesha National Bank at Neodesha, Kansas, or if said bank shall discontinue business, then in any other bank in Neodesha or be paid to P. M. Wescott or his heirs or assignees; and if not paid when due, each forty acres on which there shall be no producing wells shall be released, and this lease shall become null and void as to such land. A failure to carry out any of the conditions herein contained shall also render this lease null and void.”
The plaintiff purchased forty acres of this tract of land on May 15, 1918. Several, years before the purchase a well had been drilled on the forty-acre tract, and eight other wells had been drilled on the entire farm. When plaintiff purchased the land defendant was pumping the well on this tract, but oil in paying quantities was not produced, and in November, 1918, the defendant recognized that the well was not a producer and he stated that he only got enough oil to color the water pumped from the well. In the seventeen months prior to the trial plaintiff never received any royalty for oil or gas nor was any rent paid to him. The plaintiff claime.d that as there was no producing well on the tract the rent became due on the 9th day of December, 1918, for a period of six months, and no rent having been paid defendant had forfeited his rights in that part of the leased land. After this action was commenced and on June 7, 1919, the defendant tendered to plaintiff $10 as rent for the six-months period, but the plaintiff refused to accept the same.
The court found that the defendant had failed to comply with the conditions of the lease and ordered a cancellation as to the forty owned by the plaintiff.
Defendant contends that the lease was for a period of twenty years, that the drilling of one well on the whole tract was sufficient to preserve the lessee’s right to every part of it, and that there could be no forfeiture because of the nonpayment of rent on the forty acres in question. While the general limit of the lease was twenty years, it was provided that under certain circumstances the life of the lease might be shortened as to all or a part of the land. To determine the intention of the parties and the effect of the lease, consideration must be given to all of its terms. The parties specifically provided for the segregation of the land leased into units of forty acres, each unit to be treated separately and independently as to the rental to be paid by the lessee and also as to the forfeiture of such units in case of noncompliance with specified conditions. After providing for the payment of rentals it was agreed that the bringing in of a producing well on a forty-acre tract would stop the payment of rentals upon that forty acres, and if no producing well was sunk and the rent on it was not paid when due, the rights of the defendant in that part of the leased land would be' forfeited. The evidence satisfactorily shows that there was no producing well on the land and that the rent was not paid when due, in fact no rent was paid to plaintiff during his ownership of the tract. The only way the defendant could be relieved from the payment of rent was the sinking of a producing well upon each of the forty-acre tracts. It was competent for the parties to make the subdivision of the leased land that was made and to provide for the cancellation of the lease as to each unit upon which there was no production and no payment of rent. It appears that defendant had given a practical construction to this provision of the lease as he treated each forty acres of the tract as a unit and had released and cancelled all of the 509 acres except three forties upon which there were wells.
We are of the opinion that the proper construction was given to the lease by the trial court, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An eighty-acre oil and gas lease executed by D. B. Weaver passed into the hands of the Kansas Natural Gas Company. Thereafter the company made an assignment of the lease to Weaver, who assigned it to Edward Graham and others. Later Weaver brought this action against Graham and his coassigneés asking a cancellation of the lease on the ground that they had not met its requirements. The defendants by way of a cross-petition pleaded that in negotiating the purchase of the lease from the Kansas Natural Gas Company the plaintiff was acting in their behalf as their agent, and that by falsely representing to them that the price paid was $14,000 when it was, in fact, only $12,500 he had defrauded them of $1,500, for which amount they asked a recovery. The defendants were given judgment for the amount of their claim. The plaintiff was denied relief, and appeals.
The lease provided: “If gas be found in any well or wells first party [the lessor] is- to have on demand sufficient gas for domestic purposes on said premises free; the said second party [the lessee] is to have the remainder together with all gas from oil wells.” The plaintiff contends that this provision was violated by the failure of the defendants to' supply him with gas for domestic purposes, although gas was found in wells drilled on the land. There was evidence that casing-head gas had been produced — that some gas was found in producing oil wells; but there was no evidence of the bringing in of a gas well as such or of the production of gas in marketable quantity. A witness called by the plaintiff testified that there wasn’t any gas on the land in question in large quantities; that it never was a gas proposition — just the gas that came from the oil wells. The first clause of the provision quoted, if read literally, might seem to support the plaintiff’s view that if any gas whatever was produced from any source he was to be supplied with enough for domestic purposes. But it must be read in connection with the second clause, which provides that the lessee is to have “the remainder together with all gas from oil wells.” The fair meaning of the whole provision appears to be that if gas were produced in gas wells the lessor was to have enough of it for domestic purposes and the lessee the rest; and that all gas from oil. wells should belong to the lessee alone. This interpretation is fatal to the plaintiff’s demand for cancellation, even if a failure to comply with a requirement for the furnishing of gas for domestic purposes would in any event be a sufficient basis for ■that relief.
The lease also contains a separate paragraph reading — “If gas is found in the neighborhood said second party shall pipe it to within fifty feet of residence on above described premises.” The plaintiff states in his brief that the receiver of the Kansas Natural Gas Company laid a pipe line to his house, and the receiver testified that gas was furnished “independent of the lease” out of the gas line which went through the country, produced from wells in the neighborhood. Whatever obligation the paragraph quoted may have imposed we do not think that the failure to furnish gas from other property was a sufficient ground for a cancellation of the lease, and the evidence was not such as to compel a judgment for the plaintiff for relief in any other form. ■
The plaintiff also contends that he should have been given some relief because of the failure of the defendants to perform oral agreements for the development of the lease. The making of these agreements was denied and it must be assumed that the trial court was not persuaded of their existence.
Complaint is made of the refusal of the court to allow the plaintiff to introduce evidence to show that there was gas in the oil wells being operated on the lease. Under the construction of the lease which we have adopted proof of this fact would have been unavailing and the.evidence was therefore properly rejected.
Complaint is also made that witnesses were permitted, over proper, objections, to testify to conclusions instead of facts. For instance, a witness stated that his “understanding” was to a certain effect; that the time of a certain occurrence “must have been” at about a date mentioned; that on learning of a certain fact he “suspicioned” that he had been deceived; that he had never agreed to do certain things. No jury was present, and if the freedom of expression allowed would, under any circumstances, have been objectionable we think it clear that no prejudice could have resulted in the situation presented.
With respect to the recovery of the $1,500 the issue was purely one of fact. The plaintiff testified that he bought the lease on his own account and sold it to the defendants. Evidence was introduced in behalf of the defendants tending to show that he bought it for the defendants, acting as their agent. The trial court found generally in favor of the defendants and we cannot say that there was no evidence to support that decision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of assault with intent to kill, and appeals.
On July 7, 1919, the defendant was driving his automobile at an unlawful rate of speed about the streets of the city of Fredonia. The defendant was a stranger to the city marshal, and the officer, in a polite and respectful manner, called the defendant’s attention to the speed limit. The defendant said he would observe it, but immediately proceeded to violate it, and the marshal undertook to speak to him again by telephoning to his residence. The defendant denied he was the person with whom the marshal had conversed, became enraged, and the marshal discontinued the telephone conversation. The marshal then decided he would go to the defendant’s residence and talk with him. While on his way, the marshal saw the defendant driving, bareheaded, in the direction of the city hall, and himself returned to the city hall in a Mr. Benefield’s automobile. The marshal’s account of what then occurred follows:
“I had my star here, and started across to him, and showed him I was city marshal. He says, ‘Yes, I want to see you, too.’ And we started across to the city building. Of course I can’t recall everything that was said by either of us, but when we got over in front of the city building he wanted me to go in and prefer my charges against him, and I told him the city commissioners were in session, he would have to go before the police judge; and he told me again, and I says, T don’t take orders from you.’ I says, ‘You can’t tell me what to do.’ He says, ‘If you don’t go in and'prefer charges against me I will blow your damn head off,’ and immediately put both hands on his hips.
“I grabbed his wrists, and in the .struggle' — I didn’t know if he had a gun or not — but in the struggle, when he went down, there was a gun in his right hand. I turned his left hand loose and kept hold of his wrist with my left hand and ahold of the gun, this way, and ahold of the gun with the right, to keep it away from me. And we scuffled there a little while, and Mr. Spencer came, and Mr. Spencer took hold of his left hand, and told him to drop the gun. He says, ‘I won’t do it.’ And Mr. Spencer says, ‘If you don’t I will twist your arm off,’ and he — -I don’t know what he done, but anyway he loosened up on the gun; and I had the gun then, and I don’t remember who I gave the gun to, whether to Mr. Spencer or Mr. Brewster, but when he got up he was — he says ‘You won’t live till morning.’ I made some remark to him, I don’t know what, and we took him back and put him in the jail. He says, ‘You won’t live the week out,’ and he made some remarks, and I went off and left him.
“Q. What was the character of his language? A. Well, he was curs ing, and seemed to be in a rage all of the time. It has always been a puzzle to me.
“Q. What was his appearance after your getting out of the Benefield car? A. Well, he was just simply — looked like a wild man, almost.”
Spencer testified as follows:
“Mr. Coats told him that he couldn’t tell him what to do, that he wouldn’t take orders from him, or something of the kind, he says, Mr. Coats says, ‘No, I will not,’ and he says, T will blow your damned head off,’ and throwed both hands back to his hip, and I run across, and when I got there both gentlemen were on their knees, but I didn’t see the gun drawn. . . .
“When I got to them I immediately grabbed Mr. Boyd by the left hand and twisted his arm, and told him to drop the gun, and he didn’t do it for a second or two, and I gave him considerable of a twist. He was talking all the time, and cursing and mumbling and gritting his teeth, as though he did all he could to keep from dropping the gun, and I was twisting his arm all the time. (Objected to.) I finally twisted hia arm and threw it across my knee and told him if he didn’t drop the gun I would break his arm. He says, ‘All right, I will drop it,’ or T will,’ or something. As soon as he dropped the gun he got on his feet. Mr. Coats handed me the gun and I kept it awhile, and Mr. Boyd raised his hands over his head and attempted to say things to Mr. Coats, but found it very difficult to talk. He stood there shaking his hands .and trying to curse and talk, and finally managed to say, ‘You will not live until morning,’ or ‘I will kill you before morning,’ or something to that effect, or ‘You will not live” until morning.’ Mr. Coats says, ‘If I don’t, I will die trying to do my duty, then.’ And at that point the sheriff came up, and together they took Mr. Boyd into the city building. I followed right behind them carrying the gun, and after they had put Mr. Boyd behind — in the jail part, he again told Mr. Coats he would kill him, or words to that effect, he would kill him as soon as he got out.”
The assignments of error are numerous, but they are so unsubstantial it is difficult to find anything with which to construct a judicial opinion of any value.
. The defendant waived a preliminary examination, and an information was filed which omitted an essential allegation. An amended information was filed long before the trial occurred. It is said the defendant should have been given a preliminary examination for the offense stated in the amended information. There are two answers. The record does not disclose that the subject was brought to the attention of the trial court, and if it had been, the contention would have been unsound.
In the instructions to the jury and in the verdict the “information” was referred to, and it is contended that, since the “information” was confessedly defective, the defendant has not had a trial such as the law guarantees. The contention is paltry.
It is said the court erred in overruling the defendant’s motion to quash the information. There is no motion to quash in the abstract, and presumably the one filed was without merit. One súbject is discussed as if embraced in the motion to quash. The amended information charged a willful and malicious assault with a deadly weapon with intent to kill the marshal “by threatening and attempting to shoot and kill the said Simon Coats, with a small gun,” etc. It is said nothing but a threatened attempt was charged. Instead of that, the extent to which the assault proceeded was described, and not only was Coats threatened with a loaded revolver, but accomplishment of the intended killing was entered upon.
The defendant waived arraignment, and pleaded not guilty, and those features of the proceeding are not assigned as error. It is said, however, that the defendant should have been discharged on the county attorney’s opening statement to the jury. In his opening statement the county attorney read the amended information, and he made no admission which destroyed the state’s case.
It is said in effect the evidence should have been limited to what was said and done at the city hall entrance. All the incidents which led to the meeting at the city hall entrance were explanatory of the defendant’s conduct and intention during the meeting. The city prison was in the rear portion of the city building. The defendant was taken directly to the prison as soon as he was overpowered. Evidence not quoted was that he was cursing Mr. Coats, calling him vile names, and threatening to kill him, continuously until after he was incarcerated. Apparently the defendant did not consider the incident as closed, and his language indicated persistence of the frame of mind he was in when he drew his revolver. His appearance was a proper subject of inquiry, and was appropriately described, and it did not constitute prejudicial error to permit the marshal to say that when he saw the defendant in the evening after his arrest, his appearance was normal.
An instruction to the jury authorized it to determine intent from the defendant’s actions, whatever they were, in the matter of the alleged perpetration of the offense complained of. It is said that under this instruction the jury was permitted to consider, to the defendant’s prejudice, his violation of the state and city speed laws. Violation of those laws was not complained of. It is said further that the instruction permitted the jury to consider the defendant’s maudlin statements, excitement, and wild condition — which is to say, to consider the evidence.
The court properly instructed the jury that all men are presumed to be sane until the contrary appears; and a requested instruction that the verdict should be “not guilty” if the defendant, at the time of the assault, was suffering from “any disability” which deprived him of rational thought and action, was properly refused. If the defendant’s mental state were brought about by drugs, voluntarily taken, the same rule would apply as in cases of drunkenness.
Instructions relating to degrees of crime inferior to that of assault with intent to kill, are not now important. However, the instructions given relating to inferior degrees were in proper form, and were not confusing.
The defendant submitted the following definition of the word “assault,” which was not given:
“You are instructed that the' word assault as used in the information is a legal term, and is defined as an attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, under such circumstances as denote at the time an intention to do it, coupled with a present ability to carry such intention into effect.”
The lowest grade of offense submitted to the jury was assault and battery, and no complaint is made of the instruction given on that subject. There was no request for an instruction permitting the defendant to be found guilty of simple assault only. Whether or not the evidence warranted such an instruction is not now important, because giving it was waived. The defendant did not testify, and assault was proved beyond all doubt. The only debatable matter was intent, and the evidence clearly disclosed existence of felonious intent. The defendant made a peremptory demand, which was to be complied with or the marshal was to be killed, and made ready to execute his intention by drawing his revolver from his pocket. The marshal did not comply with the demand, and prudently took quick action to protect himself from the con sequences of noncompliance. If the defendant had' then desisted, this case would not be here. He did not desist, but continued to demonstrate his intention by use of physical force. Under these circumstances, the proposed technical definition of assault, or any technical definition of the term, could not have been of the slightest assistance to the jury.
The defendant requested an instruction that an assault can not be committed unless the person committing it has present power and ability to commit it. According to the defendant’s own definition of assault, the instruction was bad. The defendant requested several instructions framed on the theory that, if the marshal was able, by himself or with the help of others, to prevent discharge of the weapon, and was not injured, then nothing wrong happened, and the defendant should be acquitted. The requests were properly denied.
A long instruction relating to self-defense was tendered which, however, was properly qualified as follows: “providing the defendant had not first assaulted the said Simon Coats, and thereby brought the threatened danger upon himself.” The first sentence of the proviso was the only part of the instruction which could be referred to the evidence, and the instruction was properly refused.
In support of the motion for a new trial, an affidavit was filed stating that after the trial it was discovered the defendant was addicted to the use of chloral to such an extent that he was irresponsible. The affidavit was supported by depositions, which failed to show that the addiction existed on July 7, 1919, and there was no proof that the defendant’s condition, whatever it was, either on July 7 or at the time of the trial on November 10, could not have been disclosed to the court at the trial.
An argument that the court should have stopped the trial as soon as the marshal gave his testimony, and should have remanded the defendant to the probate court for examination for feeble-mindedness, is frivolous. Other contentions of the defendant are not deemed to be of sufficient importance to require a reversal.
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The opinion of the court was delivered by '
Burch, J.:
The action was one for damages resulting from fraud and deceit of I. W. Morris, practiced in his lifetime. The plaintiff recovered, and the administrator appeals, other-defendants having been dismissed at the trial.
The petition alleged that Morris induced the plaintiff to-marry him by falsely and fraudulently representing himself to-be a single man. Following the marriage Morris and the plaintiff lived together as husband and wife for about two years, when Morris died. About that time the plaintiff discovered Morris had been married to a woman who was still living, and from whom he had not been divorced. The administrator demurred to the petition, on the ground the cause-of action did not survive. The demurrer was overruled, and evidence was introduced sustaining the allegations of the petition. The administrator demurred to the evidence, on the-ground the cause of action did not survive, and stood on the demurrer when it was overruled.
There is no doubt that the cause of action was one for fraud and deceit, and might have been made the basis of an. action against Morris had he lived: (Sears v. Wegner, 150 Mich. 388, 14 L. R. A., n. s.,_ 819, and authorities cited in the opinion; Payne’s Appeal from Com’rs., 65 Conn. 397, 33 L. R. A. 418; People v. Chadwick, 143 Cal. 116.) The statute reads as follows:. '
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.” (Gen. Stat. 1915, § 7321.)
A companion statute reads as follows:
“No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.” (Gen. Stat. 1915, § 7322.)
Some references have been made to the statute in other decisions of this court, but they afford no assistance in interpreting the provision relating to causes of action for deceit or fraud. In the case of Stewart v. Balderston, 10 Kan. 131, the question was whether a cause of action for money tortiously obtained, was assignable. In holding the cause of action was assignable, the court said all causes of action which affect the estate of the person injured survive under the statute, and generally survivorship and assignability go hand in hand. It was not intimated that common-law nonassignability of a cause of action would defeat the statute. In Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97, the question was whether an action by a wife for alienation of her husband’s affections abated on death of the plaintiff. It was held the action did not abate, because of section 7322, saving all actions from abatement except those specified, and an action for alienation of affections is not among the exceptions. It was argued that the action was saved by section 7321, because the injury to the plaintiff was an injury to the person; but the court said the injuries to person referred to are physical injuries. Injury occasioned by deceit or fraud was not considered.
The defendant cites many authorities discussing the principles on which common-law survivorship is founded, and applies those principles to the plaintiff’s cause of action. It is not necessary to review the authorities. The statute by its terms is an innovation on the common law, and it is to be liberally construed. (Gen. Stat. 1915, § 11829.) Some of the authorities cited by the defendant recognize the fact that a cause of action for deceit in procuring a void marriage may survive by virtue of a statute, and no authority holds that such a cause of action does not survive under a statute such as the statute of this state.
' The ejusdem generis rule of interpretation plainly has no application, because of the diverse kinds of causes of action embraced in the statute. If the action had been commenced against Morris in his lifetime, it would not have abated on his death, and damages are not more difficult of proof against his administrator than they would have been against him. The language of the statute is that a cause of action for “any deceit or fraud” shall survive, and as indicated, the plaintiff’s cause of action is one for deceit.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on some promissory notes. The defense was a plea of settlement of matters in dispute between the parties and payment pursuant to such settlement.
It appears that in 1911 the defendant and his father and brother contracted with the Advance-Rumely Thresher Company to buy a second-hand engine and new threshing machine. They gave promissory notes in payment therefor. The threshing machine delivered was an old one rebuilt and repainted and it was not satisfactory. In 1912 the vendor’s business was taken over by the Rumely Products Company, and the vendor’s sales agent remained with the new company; and this agent made a new contract with defendant, in which it was agreed that a new engine should be supplied to the defendant and likewise a new separator.- Additional notes were given for these by defendant. A new engine was supplied but it was defective. The promised new separator was not delivered. Certain payments were made on the notes. In 1914, demand for further payments on the notes was refused until the engine should be repaired and a new threshing machine supplied. The defendant and his father and brother had given chattel mortgages on the property, in which it was provided that if default was made in the payment of the notes, or if the mortgagee should'deem itself insecure, the mortgagee or its successors, assigns or authorized agents could take possession of the property and sell it upon ten days’ notice. .While the collector for the Rumely Products Company, in the winter of 1914-1915, was pressing the defendants for payment of the notes, he was informed that no further payments would be made until the defects in the engine were corrected and a new separator supplied ; and the collector and defendant’s brother John, who was a comaker of the notes and chattel mortgages, made an agreement to settle all matters between the parties. The agreement was that the property would be surrendered and $400 cash would be paid by defendant, and that the notes would be returned to the makers. Until that agreement was made, the defendant and his comakers of the notes and mortgages had declined to turn over the property. About the time of these negotiations, the Rumely Products Company was subjected to a receivership, but the collector was continued in the service of the receiver, and he caused the chattel mortgage to be foreclosed and the property sold. This occurred on January 25, 1915, but owing to the character of the property no physical change in its situs was made by virtue of any exercise of the mortgagee’s right of possession. The collector sold the property where it had stood for some time, some three or four miles southeast of the town of Alexander. Pursuant to the agreement of the collector and John Zimmerman, if such agreement was made, the plaintiff which acquired the notes from the receiver of the Rumely Products Company received the agreed sum, $400, on February 23, 1915, from defendant, but did not return the notes. On the contrary, the matter remained in abeyance until August, 1918, when this action was begun to collect on the balances alleged to be still due on the notes, the plaintiff giving credit for all payments thereon including the payment of $400 made in February, 1915.
The cause was tried by the court, a jury being waived; and judgment was entered for defendants.
The principal errors assigned chiefly relate to the question of the collector’s authority to make a binding settlement of all matters in controversy between the parties, but if the points sought to be made by plaintiff should be conceded, yet they cannot avail to disturb the result. Defendant’s answer setting up the compromise and settlement with the collector and the payment of $400 pursuant .thereto was filed on November 30, 1918. If the collector had no authority to make such a settlement and if theretofore the plaintiff and its assignors of the notes had no notice of the compromise .and settlement, the facts pleaded in the answer fully apprised them thereof. The action was not tried until March 6, 1920, some fifteen months after plaintiff was informed of the collector’s unauthorized conduct. But during those fifteen months plaintiff did not disavow the action of the collector, did not tender back the $400 and did not signify its. willingness to adjust or settle the matters which had caused the makers of the notes to resist further payments on them — the required repairing of .the engine and the furnishing of a new separator. By reason of this agreement also, and not otherwise, the makers of the notes waived their disputed right to the possession of the property. The plaintiff could not ignore the compromise agreement and settlement and retain its benefits. (Hartwell v. Manufacturing Co., 78 Kan. 259, 97 Pac. 432; Wagon Co. v. Wilson, 79 Kan. 633, 101 Pac. 4; Isaacs v. Motor Co., 108 Kan. 17, 19, 193 Pac. 1081.)
On being advised by the defendant’s answer, the plaintiff principal was bound to disavow the act of the collector and to restore the benefits received. Since this was not done, the plaintiff must be held to have adopted and ratified the compromise and settlement made by the collector. (2 C. J. 467, 468, 493, 496, 509.) There was no lack of evidence to prove the alleged agreement, and the fact that the $400 was not paid until some time after the collector took possession of the property and had sold it under the formality of a chattel-mortgage sale is just a jury argument and no more.
Plaintiff’s contention that the agreement was without consideration cannot be entertained. The defendant and his comakers had at least a partial defense to the notes as against the payees and those who acquired them with notice. The threshing equipment given for the notes was not satisfactory. The makers were promised a new threshing machine; they ■only got a renewed one. They gave additional notes upon the ■payee’s reiterated promise of a new separator and a new en gine. The new engine did not work well. Repairs for it were promised but never furnished, and the promised new separator was never furnished. These considerations were abundantly sufficient to validate the compromise between the makers and the payees and likewise those in privity with the payees. There does not seem to be any contention in this case that the plaintiff who acquired the notes after maturity took them from some prior holder in due course and freed of defenses.
Nothing further can be discerned in this case which requires discussion; the record contains no error; and 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 ruling refusing to retax costs and exclusively relating to costs which arose in a case and became a part of a judgment that was entered on April 3, 19.13. An appeal was taken to this court from that judgment August 13, 1915, and it was affirmed here. After-wards an execution was issued upon the judgment and on May 1, 1919, the costs were paid into court. No objection was made as to the costs assessed upon the first appeal nor for more than six years after they were adjudged. In-May, 1919, defendants moved for a retaxation of the costs allowed an expert witness, amounting to $109.58, which amount it appears was still in the hands of the clerk of the court. When the motion to retax the costs was denied, the court directed the clerk to hold the money pending an appeal from the decision which defendants announced they would take.
Aside from the fact that no objection was made to the assessment of costs which constituted a part of the judgment which was affirmed upon appeal; and apart from the fact that six years have elapsed and many terms of court have intervened without complaint as to these costs; and notwithstanding the voluntary payment of the same, all of which afforded grounds for holding that the defendants had waived their right to a retaxation of the costs by reason of lapse of time and their own laches, the present appeal must be disposed of upon another ground. A proceeding to retax costs after the affirmance of the judgment, involves nothing but costs. A ruling relating exclusively to costs is not open to review here although the amount questioned may exceed $100. (Mo. Pac. Rly. Co. v. Yawger, 52 Kan. 691, 35 Pac. 814; Asbell v. Aldrich, 95 Kan. 313, 147 Pac. 1126; Cramer v. Bank, 98 Kan. 641, 158 Pac. 1111.)
The appeal is therefore dismissed. | [
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The opinion of. the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against her granting a divorce to the plaintiff on the ground that the defendant was pregnant by another man at the time she married the plaintiff. The defense was condonation.
The plaintiff and the defendant, were married on February 8,1919, and a child was born to the defendant on July 5, 1919. The defendant admitted that the child had been begotten, by another man. An abstract and brief has been filed by the defendant; the plaintiff has filed neither. For want of an abstract and brief by the plaintiff the transcript of the evidence has been used.
On the question of condonation the evidence was conflicting. The defendant, after the birth of the child, which occurred at the home of the parties, was taken to a hospital and later was returned to the home, where for some weeks the plaintiff assisted in caring for the defendant and the child; the defendant was then sent to her people in Oklahoma. This action was commenced a few days thereafter. The plaintiff admitted that he forgave the defendant, but denied doing those things that would have amounted to • condonation of the offense and denied that he consented to live with her again as her husband. He admitted that he loved his wife, and even after the child was born, he treated her with consideration and tenderness. The court specifically found that the offense of the defendant had not been condoned. The evidence was such that the court could have found either that there was or was not a condonation on the part of the plaintiff, and the finding would have been supported by ample evidence. The finding of the trial court cannot be set aside, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
A motor truck owned by the defendant, C. J. Eriksen, and driven by Vernon Pettit, his employee, was driven upon a sidewalk, running down and severely injuring the plaintiff, M. A. Snyder, who was walking upon the sidewalk. She recovered a judgment for $500 and the defendant appeals.
Defendant was a dealer in household goods in Lawrence, and had several employees, among whom was Pettit who was principally engaged in blacking stoves and assisting other employees in the delivery of goods. On the day of the accident the employees of defendant were engaged in assembling and setting up an exhibit of defendant’s goods at the fairgrounds near the city. For that purpose they used two trucks. One of them was driven by an employee, Crossgrove, and the other by McPherson. Pettit went but to the fairgrounds in the truck driven by McPherson, and after working for a short time, McPherson and Pettit returned to the city for other goods, McPherson driving the truck. When they arrived at the store McPherson found customers waiting for attention and he directed Pettit to drive the truck loaded with exhibits back to the fairgrounds, and this was. done. When the noon hour arrived, Crossgrove, who was then in charge of the exhibits, said to Pettit, “as you have a long distance to go to dinner, you had better take the truck so you will get back to work sooner.” He took the truck and while on the way to dinner he had difficulty with the steering gear and was unable to guide or control the truck. He ran the truck against a wagon and then over the curb and up on the sidewalk, knocking down and running upon the plaintiff who happened to be walking there.
The charges of negligence were the driving of the truck at a dangerous rate of speed on the wrong side of the street, in failing to stop the truck when it approached the wagon in the street, and the sidewalk, and the further negligence of providing and using a truck with a defective steering gear which rendered it uncontrollable at times. There was abundant evidence to sustain the charge of the negligent handling of the car, but the principal contention of the defendant is that the evidence failed to show that the defendant was responsible for the acts of Pettit while driving the truck. The claim is that Pettit was not acting within the scope of his employment in taking and driving the truck to dinner, but was acting for himself and in pursuit of his own purposes. The contention is that the evidence does not show that the defendant ever authorized him to use the truck for any purpose at any time or under any circumstances, and that any direction given Pettit by Crossgrove or McPherson was without authority, and that no liability could arise against him for the negligent acts of Pettit. The turning point in the case is whether Pettit was acting within the scope of his employment while driving the car at the time of the accident or, in other words, was he acting in furtherance of his master’s business as distinguished- from his own private business or pleasure. Where one person is injured by the negligence of another he ordinarily seeks and is entitled to indemnity from the one whose negligence caused the injury. Where the one who directly inflicted the injury is the servant of another and was at the time acting under the directions of the master or engaged in his business and in'furtherance of his interests, the injured person may look beyond the direct author of the wrong and require the master to respond for the damages sustained. It is fundamental that the owner of an automobile is not required to respond in damages for injuries caused by the negligence of the driver unless the driver was the servant or agent of the owner, and was at the time acting within the line of his duty and in furtherance of the master’s business. (Halverson v. Blosser, 101 Kan. 683, 168 Pac, 863.) Here Pettit was the employee and servant of the defendant. He was in the line of duty when he went out to the fairgrounds to assist Crossgrove in placing the exhibit, and when under the direction of McPherson he drove the truck loaded with goods from the store to the fairgrounds. He was within the scope of his employment when he assisted Crossgrove in setting up. the exhibit. When the noon hour arrived a somewhat different situation arose. If in going to and getting his dinner he was using his own time to accomplish his own ends and was not acting under the direction of the master or in furtherance of his business, the defendant was not responsible for the negligence of Pettit. If he had taken the truck without permission and had occasioned the injury to plaintiff while on a mission to get his dinner or on an errand purely personal to himself, the defendant would have been free from liability. It cannot be said, however, that Pettit was acting for himself and exclusively pursuing his private and personal ends. Neither can it be said that his use of the truck on the occasion had no connection with his master’s business. In the first place he was directed by Crossgrove to take the truck on the trip during which the injury was inflicted. Crossgrove was in charge of the work and Pettit was acting under his direction. It was as much his duty to observe the order of Crossgrove as if it had been given by the defendant himself. The authority to take the truck was not given wholly for the convenience and personal benefit of Pettit, but he was directed to take it in order to expedite the work at the fairgrounds. The direction was given and the truck used not only upon an express order but also in order that there might be-an earlier return to defendant’s service and in furtherance of his interests. It therefore had a close connection with the defendant’s business and was done to facilitate the work of setting up the exhibit. True, it was in part to accommodate the servant but the truck was taken and used in part at least for the accommodation of the defendant and the promotion of his business. Defendant cites and relies on Steffen v. McNaughton, 142 Wis. 49. The action was brought to recover for injuries negligently inflicted by a chauffeur, while driving the car of his employer to his home to get dinner, carelessly colliding with and injuring a pedestrian at a street crossing. Under his employment the chauffeur was to provide his own meals and usually walked to his home to get dinner. He was employed to care for and operate the car under the direction of the owner or any member of his family. In going to his dinner he took the car without the permission of the owner and while he had used it for that purpose on other occasions, it had always been done without the knowledge or consent of the owner. It was contended that as the chauffeur had been given general control of the car and as the use he made of it tended to reduce the time necessary to get his dinner and to that extent facilitated his labor for the owner, he should be regarded as having acted within the scope of his employment and that the owner was liable for his negligent act. This contention was rejected on the ground that the owner never by words, act or conduct gave the chauffeur permission to use the car for the purpose named, that he was not only using it at the time without consent but for his own private purpose and during a period when the relation of master and servant was suspended. The court held that there was nothing in the evidence to warrant the inference that the car was used to shorten the time taken for the midday meal or to facilitate the owner’s business. The opinion indicates that if the car had been used by the chauffeur to go to his dinner as an aid to an early return to labor or in obedience to an order of the owner, or a member of 'his family, or had been done with their implied consent, a different result would have been reached. The instant case is distinguished from that one because here the servant was acting in obedience to an express direction and in furtherance of the defendant’s business. The law relating to a master’s liability is embodied in the following brief and comprehensive statement:
“For all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master’s business, within the scope of his employment, and for acts in any sense warranted by the express or implied authority conferred upon him, considering the nature of the services required, the ■ instructions given, and the circumstances under which the act is done, the master is responsible.” (Ritchie v. Waller, 63 Conn. 155, 160.)
The sixth instruction of which complaint is made is in accord with the views stated and fairly presented the questions of fact to the jury. Attention is also called to the seventh instruction wherein the court told the jury that, “if the young lnan was using this truck in his own private matter, of his own volition, to go to his dinner, I think perhaps Mr. Ericksen would not be responsible. If, however, his immediate superior that day, Mr. Crossgrove, directed him to take that truck and use it to go to his dinner in order that he might get back to his work sooner, then its use would be right in line with his em ployment and if he was negligent while using the truck under such directions Mr. Eriksen would be responsible for the negligence of the young man.” There is reason to criticize the use of the word “perhaps” where the court referred to the defendant’s lack of responsibility if Pettit was using the truck for his own private purposes. A more positive statement should have been made, but in other parts of the charge the court distinctly stated that the defendant would not be liable for the negligence of Pettit if the latter took and used the truck without permission for his own purposes. It was made plain to the jury that, if he was directed to take the truck in order to get his dinner so that he might return to his work earlier and in that way further the business of the defendant, the latter would be responsible. It is clear that there could have been no prejudice by the use of the objectionable word. It appears beyond cavil that Crossgrove was the immediate superior of Pettit and there was no error in the statement to that effect by the court.
Other criticisms are made of the instructions, but we find nothing substantial in them.
An attack is made on the action of the court in reforming and explaining twentymine special questions that were presented for submission to the jury. Some of these were stricken out because they were repetitions and others because they were not proper or material. Some that involved several propositions were properly subdivided and reformed so that each should relate to a single ultimate fact. The most complaint is made of the action of the court in explaining the questions to the jury. As an example of the action taken, the first question asked was: “In what capacity was Vernon Pettit employed by the defendant, Eriksen, on the day of the injury?” As to that the court said: “Well, the undisputed evidence, gentlemen, that day he was employed as an assistant to Mr. Crossgrove. Nobody disputes that. He was helping Mr. Crossgrove.” The second question was: “At the time of the accident and the injury to the plaintiff, was said Vernon Pettit engaged in the business of Eriksen?” The court stated: “Now, that’s at the time of the accident down here on the street. Well, I told you that, gentlemen. If he was pursuing his owin business, he would not be. If he was acting under the directions of Mr. Crossgrove, who had been assigned to that particular business, then he was in the employ of Mr. Eriksen, engaged in his business at that time.” Other questions involving the same inquiry iin different forms were given a like- explanation. One question was: “Did the defendant Eriksen know that said Vernon Pettit was driving said truck before the accident happened?” As to thát the court remarked : “I think there is no question about that, that he did not know.” The question: “What items of damages do you allow plaintiff and the amounts thereof?” was reformed and divided into five questions, asking how much was allowed on each separate element of- the damages claimed, the court stating that it was not suggesting that anything be allowed for any of them and leaving the matter of allowance wholly to .the jury. There can be no good ground of complaint of the action of the court in shaping and making definite the special questions submitted. No question should be submitted except those which can be fairly and definitely answered, and so far as practicable they should be so framed as to admit of categorical'answers. It is the function and duty of the court to shape and supervise the questions, eliminating those that may be immaterial and submitting only inquiries as to ultimate facts on controverted issues. (Mo. Pac. Rly. Co. v. Holley, 30 Kan. 465, 1 Pac. 130, 554; Evans v. Moseley, 84 Kan. 322, 114 Pac. 374.) The explanation of the special questions and the comments on them, although an unusual practice, is not one to be condemned unless the court in some way invades the province of the jury. Here the comments of the court were in the nature of instructions and may be regarded as an addition to its general charge. It is proper for the court to aid the jury by pointing out the vital issues and the material questions in the case, stating the rules of law applicable to them, but of course it should be careful to avoid any expression of opinion as to controverted facts. The answers to be returned should not be indicated by the court and while several answers were suggested here they related to matters that were not in fact in dispute and such inquiries might well have been rejected from the list of questions submitted. While the court explained the special questions at considerable length and commented freely on them, it was manifestly done with a view of aiding the jury to understand the questions. We think the court did not intimate to the jurors its own opinion on the disputed facts nor trench on the functions of the jury. There was no attempt to color or control their findings on disputed issues and ,we think no prejudicial error-resulted from the action taken.
After the jury returned their answers, the court examined them and, finding some of them to be indefinite and incomplete, required the jury to retire and make more explicit and complete answers. To the fourth question: “At the time of the accident and injury to plaintiff, was said Vernon Pettit, the agent, servant o!r employee of Eriksen for the purpose of running and operating said truck?” the answer first returned was: “Under orders.” The answer finally returned was: “Yes.” In answer to question ten: “Was the injury of plaintiff caused by an unavoidable accident?” the first answer was: “Yes, by a capable driver.” This was an obvious misunderstanding of the question. The court after reminding them that an unavoidable accident was one where no one was to blame, gave them an opportunity to make a correction of an error which the jury readily recognized and the answer was changed to “No.” To the question: “Had Crossgrove any authority from Eriksen to employ Pettit to run or operate said truck or to allow him to use it?” the answer was: “No testimony as to that.” Their attention was drawn to the misconception and inconsistency, by the court, and after calling their attention to the declaration of law that had been made respecting the relationship between the defendant, Crossgrove and Pettit, the jury changed the answer to “Yes.”
Where special findings are indefinite and incomplete or there has been a manifest. misunderstanding of . questions asked, it is proper and indeed it is the duty of the court to require the jury to make more definite answers or to correct answers where there has been obvious misinterpretation of the questions. It is not proper for the court to change findings understandingly made, merely to make them consistent with the general verdict. It has been determined to be the duty of the court upon motion of either party to require the jury to make their answers responsive to the questions asked and where they are indefinite or incomplete, to make them definite and complete. (Francis v. Brock, 80 Kan. 100, 102 Pac. 472; Garvin v. Garvin, 87 Kan. 97, 123 Pac. 717; Stewart v. Produce Co., 88 Kan. 521, 129 Pac. 181.) That which may be done in this respect upon the motion of a party may certainly be done on the court’s own motion, in order to avoid an abortive result.
At the close of defendant’s evidence the court on the application of plaintiff permitted her to amend her petition so as to allege in more detail that the truck was driven in violation of an ordinance of the city, which was produced. The original petition had alleged in general terms that it 'had been driven in violation of the laws of the state and the ordinances of the city. No error was committed in allowing the amendment.
In view of the evidence as to the extent of the injuries the claim that the damages awarded ($500) is excessive, cannot be sustained. While the injuries are not permanent in their nature, the extent of the injuries and the suffering that resulted from them leads us to think that the award is not unreasonable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
These were actions in the nature of ejectment, to recover eight lots situate in Kansas City, in this state. Kersey Coates, as assignee of the Mastin Bank, claims the original title to all these lots through conveyances from the government. J. C. Stout bases his title and right of possession to lot 248 on "Wood street, lot 241 on James street, and lots 246, 248, 250, 252 and 260 on Armstrong street, upon seven tax deeds executed by the county clerk of Wyandotte county on September 7, 1881, and recorded the same day in the office of the register of deeds of that county. These lots were sold for taxes on September 4, 1878, for the delinquent taxes of the year 1877. F. Kirlcbride bases his title and right of possession to lot 245 on Wood street upon two certain tax deeds executed by the county clerk of Wyandotte county. One of the tax deeds, for the north three-fourths of said lot, is dated September 18, 1880, and was recorded September 25, 1880. The tax sale upon which this deed is based was made September 6, 1877, for the delinquent taxes of the year 1876. The other tax deed, for the south one-fourth of saidslot, is dated September 26, 1882, and was recorded the same day. The sale upon which this tax deed is based was made September 2, 1879, for the delinquent taxes of the year 1878. Trials had before the court, juries being waived.
The court filed in each case its conclusions of fact, and thereon its conclusions of law. It decided that there were such errors in the tax proceedings that all the tax deeds were invalid, and rendered judgment in favor of Coates, as assignee, for the recovery of the premises in controversy, saving to the defeated claimants under the tax title the taxes with all interest and costs as allowed by law, and also all their rights as occupying claimants. They excepted, and bring the cases here.
The cases involve the same questions. All the tax deeds appear to be valid upon their faces, and having been duly acknowledged, are prima faoie evidence of the regularity of all the tax proceedings. It is claimed, however, that certain alleged fatal defects appear in the tax proceedings, and that thereby the holders have no title to the premises therein described. We will notice, in their order, these supposed defects.
First, it is claimed that the tax lists and accompanying notices for publication, as required by § 106, of chapter 107, Comp. Laws of 1879, were not made out between the first and tenth of July in each year. This is only a mere irregularity, aud is cured by § 139 of said chapter 107, which provides, among other things, that—
“No mere irregularity of any kind in any of the proceedings shall invalidate any such proceeding or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned him or them, upon the day specified, work an invalidation of any such proceedings or of said deed.”
The tax lists were dated July 25, 1877, July 25, 1878, and July 23, 1879. The findings are that these lists and accompanying notices “were published in a newspaper published and of general circulation iu Wyandotte county, the requisite length of time before the sales.” The statute, therefore, was substantially complied with.
The second irregularity alleged in the tax proceedings is that the treasurers did not file affidavits of the printing of the lists of delinquent taxes in addition to those made by the printers, which were filed as required by § 108 of said chapter 107. This section reads:
“Every printer who shall publish such list and notice shall, immediately after the last publication thereof, transmit to the treasurer of the proper county an affidavit of such publication, made by such person to whom the fact of publication shall be known; and no printer shall be paid for such, publi cation who shall fail to transmit such affidavit within fourteen days after the last publication. The c uinty treasurer shall also make, or cause to be made, an affidavit or affidavits of the printing of such list and notice as above required; all of which shall be carefully preserved by him, and deposited as ■hereinafter specified.”
The court’s findings show that not only were the lists and notices properly published, but they also show that the printers publishing the same made affidavits thereof, and that the same are on file in the proper office. The omission of the treasurers to file the additional affidavits of ' the printing of such lists and notices, as required by said § 108, under these circumstances, we do not regard as such an irregularity as to affect the validity of the tax deeds.
The third alleged irregularity is that the tax-sale certificates recite too short a time within which the purchasers at the tax sa^es would be entitled to tax deeds. These £ax cer(;ifieates COuld not have misled anyone. Such certificates go to the purchaser—not to the original owner; and if three years expired before the issuance of the tax deeds, the irregularity in the tax certificates will not invalidate the tax deeds.
The other defect claimed in the tax proceedings is that the redemption notices were not posted, as required by § 137 of said chapter 107. Said section, among other things, provides that the county treasurer, four months before the expiration of the time limited for redeeming lands sold for taxes, shall cause to be published in some paper of general circulation in his county, once a "week for four consecutive weeks, a list of all unredeemed lauds and town lots. He shall also cause to be posted, for the same length of time, such list and notice in at least four public places in the county, one of which shall be in some conspicuous place in his office. The court specially found as a fact, that copies of the redemption notices and lists were posted in the office of the county treasurer of Wyandotte county prior to the execution of the tax deeds as required by law, but further found that copies of said notices and lists were not posted up at the other public places in said county, as prescribed by the statute. A motion was filed to set aside this finding, upon the ground that it was wholly unsupported by the evidence. The tax deeds being regular upon their faces, are prima faoie evidence of the regularity of all proceedings, from the valuation of the land by the assessor inclusive, up to the execution of the deeds, and therefore are prima faoie evidence that the redemption lists and notices were properly posted up. It Avas incumbent upon Coates, as holding the affirmative of the issue, to prove that the statute had not been complied with; and unless it affirmatively appeared from the evidence that the notices were not posted, the presumptions are that they Avere posted. The special finding that the redemption notices and lists Avere not posted embraces all the lots. There is in the record some slight evidence that the redemption list and notice of the north three-fourths of lot 245 on Wood street were not properly posted up in 1880; but as to the redemption notices for 1881 and 1882, the evidence does not sustain the finding of the court. William Albright Avas the county treasurer in 1881 and 1882 of Wyandotte county. He testified that the redemption lists and notices Avere sent out to be posted, as required by the statute; that his ‘deputy at the time attended to sending out these notices; and that he knows, as a matter of fact, the notices were sent out. His deputy was not called to give any testimony. As the laAv makes the tax deeds prima faoie evidence that the notices Avere posted, the evidence is insufficient to shoAV they were not posted in 1881 and 1882. If there had been a separate special finding that the redemption notice and list were not posted up in 1880, we might, perhaps, permit the finding to stand so as to overturn the tax deed of September 18,1880; but as the finding of the year 1880 includes also other years, and as there is no evidence whatever to support such a finding taken as a Avhole, we must decide that the finding is erroneous and without support. Upon another trial, we suppose the matters herein re ferred to will be more carefully aad fully investigated, and all the facts thereof clearly developed.
In conclusion, we should say that the posting up of the redemption list and notice required by the provisions of § 137 sa^ °^apfer 107 cannot be omitted, and if omitted, the failure to comply with the provisi0ns of the statute in that regard will be fatal to the tax deed, if challenged before the statute of limitations has full operation thereon. (Long v. Wolf, 25 Kas. 522.)
As the facts in these cases have not been agreed to by the parties, and as certain findings of fact of the trial court are against the evidence, we cannot direct judgment to be entered in the premises. (Civil Code, § 559.)
The judgments of the district court will be reversed in both cases, and the causes remanded for new trials.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case has once before been in this court. (U. P. Rly. Co. v. Fray, 31 Kas. 739; same case, 15 Am. & Eng. Rld. Cases, 158.) After the former decision, the case was returned to the district court, where it was again tried before the court and a jury, and the jury found a general verdict in' favor of Fray, who was the plaintiff below, and against the railroad company, which was the defendant below, and assessed the damages at $4,000, and ¿Iso made several special findings of fact; and upon this general' verdict and these special findings of fact the district court rendered judgment in favor of Fray and against the railroad company for the amount of the general verdict and costs, and the railroad company,' as plaintiff in error, again brings the case to this court and again seeks a reversal of the judgment of the court below.
The evidence introduced on the second trial is very similar to that introduced on the first trial. There are some differences, however, which we may mention as we proceed with this opinion.
The foundation of the plaintiff’s action is the alleged negligence of the defendant railroad company in failing to provide and maintain a safe and sufficient derrick, with sufficient ropes and other appliances, for the safe handling of stone in building a culvert for the defendant on its line of railroad in Wyandotte county, Kansas, at a point known as “Deep Hollow Bridge,” near a station on the line of the company’s railroad, called “Tiblow.” Samuel Mallison was the railroad company’s general superintendent in building the culvert, William Ulrich was the overseer or foreman of the work under Mallison, and John Nelson and the plaintiff Fray ■ were laborers, handling the derrick and performing such other duties as might be assigned to them by either Mallison or Ulrich. This derrick was used in removing stone from a platform near the derrick to a place about forty feet below, where the stone was used in constructing the, culvert. In operating this derrick, a rope, usually called a brake-rope, was used, a portion of which was wound around a pinion-shaft. This pinion-shaft, from friction produced in some manner not shown by the record, would become heated^ whenever it was used unless water at such times was constantly poured upon it, and when allowed to become heated it would burn or char the brake-rope so as to render it frail, weak, and unsafe. If, however, water was poured upon the brake-rope and pinion-shaft while the derrick was being operated, and if occasionally, when the brake-rope became worn, a new one was put in its place, there was no danger in operating the derrick. In the present case there seems to have been negligence in not keeping the brake-rope and pinion-shaft wet, and in allowing the brake-rope to become burnt or charred, and partially worn before removal, so as to render it unsafe, whereby it broke and caused portions of the derrick to break, and thereby caused the injuries of which the plaintiff complains, and for which he seeks damages in this action.
It seems to be admitted by both parties that there was negligence in this respect, but the parties differ as to who Avas guilty of the negligence. The plaintiff claims that it was principally, if not entirely, the negligence of Ulrich, while the defendant claims that it was wholly the negligence of Fray and Nelson, and principally the negligence of Fray himself: In all probability Ulrich, Fray and Nelson were about equally guilty of the negligence that caused the injuries complained of. The plaintiff claims that the defendant is liable for the negligence of Nelson as well as of Ulrich, as Nelson was one of the defendants’ servants; but the defendant claims that the plaintiff is liable for the negligence' of Nelson for the following reasons: The railroad company claims that the duty of keeping the brake-rope and pinion-shaft wet, and of seeing that the brake-rope was at all times safe and in proper condition, was imposed particularly upon the plaintiff and Nelson jointly and severally; that they worked together at and near the derrick, and that it was their duty, jointly as well as severally, to watch the derrick, the brake-rope and the pinion-shaft, and to see that at all times the brake-rope was safe and in good condition. On the second trial an effort was made by the plaintiff to show that the brake-rope became unsafe from wear alone, and that it did not burn or char, but we think the effort was a failure. There was also an effort made on the part of the plaintiff to show that although the duty of keeping the brake-rope and pinion-shaft wet was at one time imposed upon the plaintiff, or the plaintiff and Nelson, by Mallison or Ulrich, or both, yet that the plaintiff was afterward relieved from such duty and assigned to another by Ulrich. Whether this was so, or . iii n i , not, 1S probably one oí the principal questions, if not the main question, in the case; and this question under the evidence is one of fact, and not one of law. On the part of the defendant, an attempt was made to show that the duty of keeping the brake-rope and pinion-shaft wet was imposed upon Fray and Nelson by Mallison, and that Ulrich not only did not attempt to relieve them from such duty, but that he had no power to do so if he had so attempted. As Ulrich, however, was the foreman of the work, and as Fray and Nelson worked under him5 we would think that the attempt to show that Fray and Nelson had the right to work independently of him or to violate his orders was a failure. As between Fray and the railroad company, we would think from the evidence that Ulrich had the power to assign Fray and Nelson to other and different duties, and to relieve them from the duty of keeping the brake-rope and pinion-shaft wet. The only question then, in this regard is, whether he did in fact relieve Fray from the duty of keeping the brake-rope and pinion-shaft wet. He did not expressly so relieve him, but whether he did so impliedly is the question to be considered. This, as before stated, we think is the main question involved in the case, and under the evidence is purely a question of fact and not one of law, and therefore we do not think that we can decide it as a question of law. Really the only question which we can determine is, whether this question and the other questions of fact involved in the case were fairly submitted to the jury and fairly tried by them. The defendant claims that they were not. It claims that improper evidence was admitted; that improper instructions were given; that proper instructions were refused; that the jury refused to answer proper questions of fact which had previously been submitted to them, and that the court below refused to require the j ury to answer such questions. Whether the foregoing errors were in fact committed or not, we shall now proceed to consider.
The first claim of error is, that the district court erred in permitting testimony of a conversation had on the next day after the accident, between John Nelson and Samuel Mallison, to be introduced in evidence. This conversation was concerning matters which occurred on the day of the accident, and which tended to prove negligence on the part of Ulrich. It was concerning past events, and although it occurred between persons in the employment of the defendant, still it was pure and simple hearsay testimony, and not admissible under any rule of law. The authorities cited by the defendant in error are not applicable. It is possible, however, under the other facts and circumstances of the case, that this error is immaterial; but whether it is or not we need not now determine.
It is next claimed that the court below erred in refusing to give certain instructions and in giving certain other instructions. We think the court below did so err. We shall now assume that Ulrich and Nelson were guilty of negligence for which the railway company is responsible, and that their negligence was so clearly and conclusively shown by the evidence that auy errors of the court with respect thereto are wholly immaterial. But still, the principal question presented to the court below was, whether the plaintiff was guilty of contributory negligence or not, which question was one of fact for the jury; and the principal question now to be determined by this court is, whether that question was fairly submitted to the jury or not, for their determination. We hardly think it was. From the evidence introduced, the duty of keeping the brake-rope wet was at one time imposed upon the plaintiff, among others ; and also from the evidence it is probable that if the brake-rope had been kept wet it would not have broken as it did, and the accident would not have occurred. It is also in evidence that the' further duty of giving and receiving signals was also imposed upon the plaintiff, and in giving and receiving such signals it was necessary for the plaintiff to stand on the edge of the platform, a few feet from the derrick, but so far away from the derrick that he could not while there pour water on the brake-rope. Neither could he give nor receive signals while pouring water on the brake-rope. In other words, he could not perform both duties at the same time. This we think has at all times been conceded by the parties, and at no time has any question with reference thereto been raised by either party. This accident occurred while the plaintiff was on the edge of the platform for the purpose of giving and receiving signals.
But although the defendant concedes that both duties could not have been performed precisely at the same time, yet it claims that the plaintiff could have easily performed both duties by first attending to one, and then to the other, alternately; that is, he could have first wet the brake-rope, and then attended to the other duty, and then wet the brake-rope again, and so on, without any difficulty. The defendant claims that even after the employés had commenced to move a stone for the purpose of letting it down to the place where it was to be put in the culvert, the plaintiff could have stepped to the derrick and poured water on the brake-rope, and then have stepped back to the edge of the platform, to receive and give signals; that the performance of one of these duties would not at all have interfered with the performance of the other; and considerable evidence to this effect was introduced on the trial; but it it does not appear that the court below charged the jury sufficiently with respect to this aspect of the case. The court refused all the instructions asked for by the defendant upon this subject, and indeed upon every other subject, and gave only its own instructions. Among these instructions given are the following:
“20. . . . But if the jury further find and believe from the evidence that after said order [to keep the brake-rope wet] was given by- said Mallison to said plaintiff, that one Ulrich became foreman, with authority to superintend and direct work for defendant, and that said Ulrich had assigned other duties to the plaintiff, and at the time of the alleged injury occasioned by the breaking of the said brake-rope, and prior to and at the time of said alleged injury, the plaintiff, in obedience to orders of Ulrich, was in the discharge of other duties than wetting said rope, he was bound to discharge such other duties, (if the jury find he was assigned to other duties); and if it appears the plaintiff received the alleged injuries in the discharge of such other duties under the direction of the foreman, then the defendant would properly be charged with negligence.”
“24. If the jury believe from the evidence that Samuel Mallison was superintendent of the work, and William Ulrich was overseer or foreman of the work, and that John Nelson and the plaintiff were laborers handling the derrick when the accident occurred, and if the jury further find and believe that William Ulrich, overseer, prior to the time of said accident, assigned and directed plaintiff the work and duty of giving signals to other workmen while lowering rock from the derrick platform into the pit below, and if the jury further find that at the time the accident occurred the plaintiff, in. obedience to previous directions given by the overseer, was at his proper place ready and waiting to give the required signals, or in the act of giving such signals, then plaintiff was in the line of his duty under the orders of the overseer of the work at the time of the accident.”
“28. If the jury find and believe from the evidence that plaintiff was charged by both Mallison and Ulrich with keep-. ing the brake-rope wet while lowering rocks, and also charged by Ulrich to give signals to the workmen in lowering the rocks, and if the jury further find and believe that neither of these orders was revoked when the accident happened, then the jury will consider whether the plaintiff at the time of the accident was occupied in giving signals or pouring water on the rope, and they will further fin'd and consider whether he could perform both duties at the same time. And if the jury find that both duties could not be' performed at one and the same time, and if they believe that both could not be performed at the same time, then the jury will find from the evidence to which of these duties he was assigned at and immediately prior to the accident that caused the injury, and if the jury find and believe that at that time he was assigned to and directed to pour water on the rope, and the rope broke, and he was injured on account of his failure to keep the rope wet, then and in that ease the plaintiff is not entitled to. recover; but if the jury find and believe that at the time of the accident the plaintiff' was engaged in giving signals or other duties pertaining to the giving of such signals, and m the line of his duty pertaining to such orders, then he could not be charged with negligence in failing to pour water on the brake-rape in lowering the rock.”
Now these instructions are in substance that if the plaintiff had two duties to perform, one in pouring water on the brake-i’ope at the derrick and the other in giving signals at the edge of the platform, and if he could not perform both of these duties at the-same time—and he certainly could not — and if at the time of the accident he was propeidy at the edge of the platform for the purpose of giving signals — and probably he was properly at that place at that time—then that he performed his whole duty, and he could not be charged with negligence, although he may have had ample time to have poured water on the brake-rope immediately before he took his position on the edge of the platform. In other words, that if he -was performing his duty at the edge of the platform at the very time of the accident—and perhaps the defer,c]ant admit that he was—then that his prior negligence immediately preceding the accident in not pouring water on the brake-rope, if he was guilty of such negligence, could not affect his right to recover. This cannot be the law. If the rope broke because of his negligence in not pouring water on it a few moments before the accident occurred, it could not make any difference that he was properly performing another duty at the precise time of the accident. If it was the duty of the plaintiff to pour water on the brake-rope prior to his taking position on the edge of the platform, and if the rope broke because he failed to perform this duty, then he cannot recover. The foregoing instructions probably misled the jury.
It is also claimed that the court below erred in giving the following instruction to the-jury with regard to the special questions of fact submitted to them for their answers, to wit: “ In case no evidence can be found bearing upon the question required to be answered, the jury will say: ‘ Don’t know/ or 1 Cannot answer from the evidence.’ ” We think the court below erred as is claimed. (K. P. Rly. v. Peavey, 34 Kas. 474, 486.) It is also claimed that the court below erred in refusing to require the jury to answer in an intelligent manner the following special questions submitted to them at the request of the defendant. The following are the questions, with the answers of the jury:
“Ques. %: Was the plaintiff instructed by Mallison, acting for the defendant, that there was danger of the brake-rope burning, in letting the rock down into place, if the rope was not kept wet? Ans.: Don’t know.”
“ Q,. 5. If the brake-rope had been kept wet where it wound around the shaft, and the friction occurred, would it have burned? A. Don’t know.
“ Q,. 6. Did the plaintiff" observe and obey the directions of Samuel Mallison in respect to keeping the rope wet? A. Don’t know.
“ Q,. 7. Was not the plaintiff repeatedly warned by Samuel Mallison and William Ulrich, the foreman upon the work, to be careful to attend and see that the brake-rope was kept wet while rock was being lowered by the derrick to the work below? A. Don’t know.” ■.
“Q,. 9. Would the brake-rope have burned if it had been kept wet as directed by Mallison? A. Don’t kuow.
“Q,. 10. Did anyone for the defendant direct the plaintiff not to observe the directions given him by Mallison in respect to keeping the rope wet? If so, name the person, and state what was said. A. Don’t know.
“Q. 11. Was not the plaintiff provided with a bucket for the water which he was to use in wetting the brake-rope, and a proper vessel for applying water to the rope? and was not water flowing near by, which the plaintiff could get to wet the rope? A. Don’t know, as to the first paragraph; yes, as to the second.
“Q,. 12. Was not the brake-rope put on new the day of the accident or the day before, and was it not of size and strength sufficient for the purpose of controlling the lowering of the rock by the derrick, and was not the only thing needed to make it safe to keep it wet as directed by Mallison? A. Don’t know.”
We think the court below erred in refusing to require the JU1T to answer these questions in a proper manner> questi0ns are material, and there was some evidence introduced applicable to every one of them.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Houton, C. J.:
On April 13, 1886, Budgett filed his petition before the probate judge .of Meade county—a county organized November 4, 1884—to purchase a quarter-section of land in that county, under the provisions of article 14, ch. 122, Laws of 1876.
It appears in the record that when Budgett filed his petition, he had resided upon the land, only two months, and that prior to filing his petition he had taken a quarter-section of school land under the provisions ‘of the act of 1876. On February 19, 1886, ch. 152 of the Laws of 1886 took effect. This act amended §4 of article 14, ch. 122 of the Laws of 1876, and required the petitioner, before being permitted to purchase school land at the appraised value thereof, to have settled and actually resided upon .the land continuously for the period of six months. The act further provides—
“ That any person who has purchased school land to the amount of one quarter-section under the provisions of the act of which this act is amendatory, or who may hereafter purchase school land to the amount of one quarter-section under the provisions of this act, shall not again be permitted to purchase school land under the provisions of this act.”
Budgett claims the land in controversy upon his compliance with the provisions of the law as it stood at the time of his settlement; this upon the theory that he obtained a vested right by this settlement and improvements prior to the passage of ch. 152, Laws of 1886.
The trial court decided that the amendment of ch. .122,-Laws of 1876, by the legislature of 1886, did not affect the petitioner. In this view we cannot concur. The settlement of Budgett was made only six days before the act of 1886 was approved. His petition, stating that he had settled upon and improved the land, was filed nearly two months after the act of 1886 took effect. Mere settlement and improvement of school land give no vested right, as against the subsequent legislation of the legislature. Such settlement and improvement, if the petitioner is otherwise qualified, give him a privilege or preference as against the purchase by others, but confer no right against the state. (Wilkie v. Howe, 27 Kas. 521; The State v. Stringfellow, 2 id. 263; Frisbie v. Whitney, 9 Wall. 187; People v. Shearer, 30 Cal. 645; Phelps v. Kellogg, 15 Ill. 131; Company v. Bryan, 8 Smed. & M. 234.)
The only way of making the lands granted by the congress of the United States to the state for school purposes available, is by their sale. To accomplish this, certain rules and regulations are necessary. The people, who are the beneficiaries, acting through their legislature, adopted certain terms for the purchase of these school lands in the act of 1876, but these terms have been changed by the act of 1886. Budgett paid no money, nor tendered any money for the land he now claims, prior to the passage of the act of 1886, and he filed no petition to purchase the land until after the act was iu full force. Pie has never received any receipt or certificate of purchase, and bis claim rests solely upon his settlement and improvements on the land, consisting of a sod house and five acres of breaking. There is nothing in these acts of his to confer a vested right, or any kind of claim to the land, against the state. If he wishes to purchase the land settled upon by him. for the appraised value thereof, exclusive of the value of the improvements, he must comply with all the prerequisites of the law in force at the time he presents his petition to the probate court.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Per Owriam:
The judgment of the court below in this case will be affirmed, upon the authority of the case of Barker v. Critzer, just decided. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff, passing along the south side of Commercial street, near Sixth street, in Atchison, was injured by a bill or show-board, which, having been placed on a lot adjoining the south side of the sidewalk, had been blown down by- a strong wind and fell upon him. Upon the trial, a demurrer to plaintiff’s evidence was sustained, the jury dis charged, and judgment rendered for the defendant. A motion for a new trial was made by the plaintiff, and overruled.
The record is before us for review, and the questions presented are—-first, as to the liability of the city of Atchison to the plaintiff, if he was without fault, for the injuries inflicted upon him, as disclosed in the evidence; and second, whether, upon the facts proved, it can be said, as a matter of law, that the plaintiff was guilty of such contributory negligence as to bar him from the recovery of damages. The show or billboard, extending east and west upon Commercial street forty-five feet, and twelve feet high, stood upon an old foundation from which a building had been burned, and was built on private property close to and adjoining the south side of the sidewalk of the street. At the back of the structure were braces, and these were nailed to stakes driven into the ground, covered with bricks and ashes where the building had been burned. The braces were nailed against the stakes, and the stakes were three or four feet lower than the bottom of the bill-board. To further support the structure, there were several places or notches cut in the sidewalk about three inches in size, and studding slipped in and nailed. Some of the witnesses testified that uprights assisted to support the structure and were spiked into the stringers of the sidewalk; and others, that parts of the structure were actually upon the south edge of the sidewalk. There was evidence introduced tending to show that the structure was negligently and imperfectly constructed, and that before and at the time of its fall it was in such a weak and insecure condition as to be unsafe for persons passing in front of it upon the sidewalk. There was also evidence tending to show that the officers of the city knew that the structure was not put up in a safe and proper manner, and that before its fall it was in a condition to endanger persons passing on the sidewalk.
The contention on the part of counsel for the city is that the bill-board was private property, on private pi’operty, and used for private purposes only; and that if it were in close proximity to or even upon the edge of the sidewalk, the city would not be liable for injuries resulting from its negligent construction or its unsafe condition at the time of its fall.
We do not concur with this view. The decisions in this state are numerous that cities having the powers ordinarily conferred upon them respecting streets and sidewalks within their limits, owe to the public the duty of keeping them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for injuries resulting from the neglect to perform this duty. (Jansen v. City of Atchison, 16 Kas. 358, and cases there cited; City of Salina v. Trosper, 27 Kas. 544.) The injury occurred to plaintiff in September, 1881; at the time, Atchison was as now a city of the first class. Under chapter 37, Laws of 1881, entitled “An act to incorporate and regulate cities of the first class,” etc., among other things the following duties and powers of the mayor and council of such cities are stated:
“To adopt all such measures as they may deem necessary .for the protection of strangers and the traveling public, in person or property.” (Art. 3, § 11, subdiv. 7.)
“ To make regulations .... to prevent and remove nuisances.” (Art. 3, §11, subdiv. 11.) -
“ To compel owners of property adjacent to walks and ways where dangerous, to erect and maintain railings, safeguards and barriers along the same.” (Art. 3, § 11, subdiv. 15.)
“ To enter into and examine all dwelling houses, lots, yards, inclosures and buildings of every description and other places, in order to ascertain whether any of them are in a dangerous state; aud to take down or remove buildings, Avails and superstructures that may become insecure or dangerous, and to require the OAvner of insecure and dangerous buildings, Avails, and other erections to remove or render the same secure and safe, at the cost of the owner or oAvners of such property.” (Art. 3, § 11, subdiv. 18.)
“To require and regulate the planting and protection of shade trees in the streets and on public grounds of the city; the building of bulkheads, cellar and basement-Avays, stairways, railings, window and doorways, awnings, hitching-posts and rails, lamp-posts, awning-posts, and all other structures projecting upon or over or adjoining the street or sidewalk, and all excavations through and under the sideAvalks of the city.” (Art. 3, § 11, subdiv. 27.)
“To cause to be constructed all sidewalks, determine tbe material, plans and specifications of the same, and to levy and collect special taxes for the payfnent thereof.” (Art. 3, § 11, subdiv. 43.)
“To compel owners or occupants of real property to keep in good order and proper place any of the improvements of any sidewalks, gutters, and also to clean and remove from sidewalks and gutters, ice, snow, or other substances.” (Art. 3, §26.)
Under the powers conferred upon the corporate authorities of cities of the first class by the provisions quoted, and other provisions of the statute, it is their duty to keep the streets and sidewalks in such a condition that persons passing over or along them may do so with safety and convenience. It is also the duty of the mayor, as the executive officer of the city, to see that all laws and ordinances are enforced, and that all subordinate officers perform their duties. That the streets and sidewalks may be in a reasonably safe condition, it is the duty of the corporate authorities to remove or abate any nuisance from the streets or sidewalks. We think, in this case, that the city, especially under its power to prevent and remove nuisances and to regulate all structures projecting upon or over or adjoining the street or sidewalk, was bound to remove or protect the sidewalk from the imperfectly constructed and insecure bill-board standing so near the sidewalk as to fall upon it. It was so close to or upon the edge of the sidewalk that it could not fall in that direction without falling upon it.' .Having failed to take the necessary ° , steps to remove the bill-board, or to protect the sidewalk therefrom, the city is liable for the damages caused by the falling of the board upon any person passing in front thereof along the sidewalk, if such person was injured without fault on his part. We do not think it is very material whether the bill-board was so close to and adjoining the sidewalk as to be dangerously contiguous thereto, or was actually supported by braces or uprights resting upon the south edge of the walk. The liability of the city would be the same in either case. (Grove v. City of Ft. Wayne, 45 Ind. 429; Parker v. The Mayor &c. of Macon, 39 Ga. 725; Daffy v. City of Dubuque, 18 N.W. Rep. 900; 2 Dillon on Mun. Corp., §§ 789, 794, 795; Jones v. New Haven, 34 Conn. 1; Kiley v. City of Kansas, 69 Mo. 102; Wood on Nuisances, § 744; Bassett v. City of St. Joseph, 53 Mo. 290.) As announcing a contrary doctrine, we are referred by counsel of tbe city of Atchison, with apparently great confidence, to the cases of Taylor v. Peckham, 8 R. I. 349; Hickson v. Lowell, 79 Mass. 59; Jones v. Boston, 104 id. 75.
In Taylor v. Peckham, the town officials had not the same authority to enter upon or control the uses of property adjoining the street or highway as have the officials of cities of the first class in this state, and in that case the alleged liability was one created by statute alone; and it was decided that the courts could not enlarge the liability beyond the scope and intention of the statute.
In Hickson v. Lowell, the statute relating to the liability of towns was construed, and it was held that a town has discharged its duty under the statute when it has made the surface of the ground over which the traveler passes sufficiently smooth, level and guarded by railings to enable him to travel with safety and convenience, by the exercise of ordinary care.on his part; and therefore that an injury resulting to a person on a sidewalk, by the falling of an overhanging mass of snow and ice from the roof of a building not owned by the city, did not constitute a defect or want of repair in the way or street for which the town would be responsible.
The decision in Jones v. Boston, followed Hickson v. Lowell, and the court there held that an insecure sign suspended over the sidewalk on an iron rod fastened to a building, was of the same character as overhanging ice. These and other like decisions cannot be held as controlling under the statutes of our state, and the general principles of law which have already been announced by this court as to the liability of cities concerning streets and sidewalks. However, in Drake v. Lowell, 13 Metc. 292, and Day v. Milford, 5 Allen, 98, the city of Lowell in the one case, and the town of Milford in the other, were held liable for the injuries received by reason of defective áwnings projecting over and across sidewalks, and the decisions do not appear to have been made upon the ground that the awnings or posts upon which they were supported were of themselves obstructions in the street; but those decisions are put exclusively on the ground of the insufficient strength or defective condition of the awnings, whereby persons passing upon the sidewalks were exposed to danger.
As to the alleged negligence of plaintiff, we think the trial court should have committed the case to the decision of the jury, because, under the circumstances, we do not think as a matter of law that the plaintiff was guilty of such contributory negligence as to bar any recovery. The question of contributory negligence is one for the jury to determine from the circumstances of the case, unless the facts raise such a presumption of negligence on the part of the injured person that the court is bound, as a matter of law, to instruct that no recovery can be had. “The fact that a person attempts to travel on a street or sidewalk after he has notice that it is unsafe or out of repair is not necessarily negligence.” (Corlett v. City of Leavenworth, 27 Kas. 673.) The mere fact that a person knows the sidewalk is defective will not prevent him from using it; and ordinarily, a person is not obliged to forsake the sidewalk and travel in the street or take another way because he has knowledge of its defects. “The reasonableness of his action depends upon the distance of the surrounding way and the urgency of his need. And all this presents a question of fact for the consideration and determination of a jury.” (Maultby v. City of Leavenworth, 28 Kas. 745; Lyman v. Inhabitants of Hampshire Township, [Supreme Court of Mass.,] 3 N. E. Rep., p. 211; City of Emporia v. Schmidling, 33 Kas. 485.) Of course a person having knowledge that a sidewalk is defective or somewhat dangerous, must ,. _ _ «in use ordinary care and prudence to avoid danger. j l o (Hunger v. City of Marshalltown, [Sup. Ct. of Iowa,] 13 N. W. Rep. 642; Corlett v. City of Leavenworth, supra; Schaefler v. City, 33 Ohio St. 246.) If the jury, upon the evidence in .the record, had made a finding or returned a verdict that the plaintiff was guilty of contributory negligence, the finding or verdict would not be disturbed by this court, because there is testimony in the record tending to show that the plaintiff did not exercise ordinary care and prudence to avoid the danger; but the case stands in a different attitude before us from what it would occupy if the jury had passed upon the testimony. Then every conflict in the evidence and all the inferences therefrom would be resolved in favor of the result below; now they are against it.
The evidence shows that the plaintiff had knowledge of the defective construction of the bill-board; that it was liable to be blown down by the wind; and that a strong wind was blowing the day he was injured. It was also shown that there was another walk on the north side of the street, which was about eighty feet wide, by taking which he would have avoided the danger from the bill-board. On the other hand, as tending somewhat to qualify or rebut the alleged negligence of plaintiff, we cite the following facts: The bill or show-board had been constructed several months, perhaps a year or more, and the sidewalk in front of it was much traveled during all of this time; ever since it had been constructed the plaintiff had traveled over the sidewalk, once or twice every day; the day before he was injured he had opened a boarding house; that day he had been in the house most of the time, and out of the house only a few minutes before the injury occurred; the day was rainy and stormy, with a strong wind from the south; at the time of his injury he was going down the sidewalk to a printing office to get some business cards;' by going upon the sidewalk where he was injured, he was sheltered from the rain and storm for quite a distance; he did not see the bill-board shake, or hear it crack, until it fell upon him.
In conclusion, it seems to us that here was testimony which ought to have gone to the jury. We do not mean to intimate that the jury ought to have found from gjj 0f the testimony that the plaintiff used ordinary care and prudence to avoid the danger, but we do say that, as a matter of law, the court had no right to say that the plaintiff was guilty of such contributory negligence as to bar him from any recovery.
The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
On November 24,1884, the plaintiff brought suit against the defendants upon a promissory note executed by them for $1,050. At the same time, he filed an affidavit upon which an order of attachment was obtained, which was levied upon a valuable herd of cattle belonging to the defendants. On December 5, 1884, the defendants in an affidavit denied the grounds laid for attachment, and moved to discharge the same. A hearing was had before the judge of the district court at chambers, whereat both written and oral testimony was offered, which resulted in an order discharging the property. The plaintiff excepted, and brought this proceeding to review that order.
It has been made to appear here on a motion to dismiss this proceeding, that since the petition in error was filed in this court, the sheriff who had the custody of the attached property, at the instance of the plaintiff, proposed to John &. Goodwin to release the cattle from the attachment and deliver them to Goodwin, provided he would release a claim which he held for feed furnished for the cattle while they were in the possession of the sheriff. This proposition was accepted^ and the sheriff states that on March 31, 1885, he released the cattle, and unconditionally delivered them to the defendant John S. Goodwin. Goodwin immediately took possession of the cattle, and has ever since managed and controlled the same as his own, and has advertised for sale and sold the greater number of them without objection from the sheriff or the plaintiff.
The motion to dismiss the proceeding must be sustained. By voluntarily surrendering and delivering the property to-the defendants, the plaintiff has acquiesced in the order of the district judge which was brought up for review. The only question presented to the district judge, and the only one pending here, was as to whether the property should be retained under the process of the court to await the final determination of the action between the parties, or whether it should be released from the attachment and delivered to the defendant. The plaintiff has elected to end the controversy, and by his voluntary act has yielded all that was sought in the application for a dissolution of the attachment. He has ratified and affirmed the order of the district judge. The thing commanded to be done in the order made by the judge has since been voluntarily done by the plaintiff, and thus he has confessed that the order was rightfully made, and has thereby waived any error that may have occurred. It has been stated by this court that “a party who complains of a judgment must be consistent in his conduct with reference Jo it. If he recognizes its validity he will not be heard to say that it is invalid.” (Babbitt v. Corby, 13 Kas, 612.) The case cited applies here. There a party claimed title to a tract of land under two tax deeds. The court found against his title, but also found that he was entitled to the payment of the taxes paid upon the land, with interest. After commencing proceedings to reverse the decree of the court, he voluntarily accepted the money adjudged to be paid to him; and it was'held, that by voluntarily accepting the proceeds of the judgment he waived any errors, if there were any. And here the release of the attached property not only operates as a waiver, but it disposes of the question pending between the parties, and leaves no actual controversy for our determination.
The motion to dismiss will therefore be allowed.
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are as follows: The court below granted to plaintiff a divorce on account of the fault of defendant on the charge of habitual drv/nkenness, but awarded the defendant the care, custody, nurture and education of the two minor children of the said plaintiff and defendant, one, as appears by the allegations of the petition, three-and-a-half years old, and the other only one year old. The court further decreed that the defendant should have and retain the possession of the homestead of the plaintiff during her natural life, and that plaintiff should forthwith deliver possession of said premises to said defendant. The court further adjudged that plaintiff should pay as further alimony $25 per month, and that there should be allowed, assigned and set off to the defendant, to her own sole and separate property, all the clothing of herself and said two minor children, and all the household and kitchen furniture in said house, excepting two medium-sized bedsteads, and the bedding thereof, to be retained by the plaintiff; and then ad judged that the defendant have and recover of and from plaintiff the costs taxed at $204.97.
Upon this record two questions are presented. It is insisted in the first place, that “ the court could not lawfully decree possession of the homestead to defendant during her natural life, and require plaintiff to vacate it.” It appears that the title to the homestead was in plaintiff; and the argument is, that the defendant’s interest in the homestead arises from her relation as wife to plaintiff; that when that relationship ceased, as it did by the decree of divorce, her rights and interest therein ceased, and the property remained as the absolute property of the husband; that it was his homestead, he remaining the head of a family, and that being his homestead he could not under the constitutional provisions be in this way forced to surrender it to any one. The argument is ingenious, and forcibly put by counsel in his brief; but we are constrained to say is not sound. The divorce, and the adjustment of property-interests, are not to be regarded as transpiring at different times, but as cotemporaneous. The homestead of the plaintiff is not given to a stranger, destitute of all interest and right therein, but the homestead of the husband and wife (for it is equally the homestead of each,) is, upon their separation, assigned to one of them. There would be manifest impropriety in attempting ■ to continue it as the homestead of each after the divorce; and in awarding it to the wife the court is but choosing between conflicting interests. The fact that the title to the homestead-property is in the husband, does not give to him any greater interest in it as a homestead. His deed of it conveys no more than hers. He can no more incumber or alienate it by a direct proceeding than she. Perhaps by contracting for improvements thereon he may have more power than she to make it liable to judicial sale, though thus only indirectly does he affect it. That he has even this power greater than she, we do not now positively decide, leaving the question to be examined and decided whenever it is fairly before us. But whatever he may do, directly or indirectly, affecting the title, in so far as it is a homestead it is the homestead of each, and upon a divorce the court has power to assign it to either. The statute expressly gives to the court the power in case of a divorce, whether granted for the fault of the wife or the husband, to give to her such share of her husband’s real or personal estate as shall be just and reasonable. Laws of 1870, p. 180, § 27. The assignment of the homestead to the wife, is within the terms of this power. And if it be said that the protection of the constitution is placed around a homestead, it may also be said that the power to grant divorces is also by the constitution expressly given to the district courts. Const., art. 2, §18. And the constitutional grant of power to divorce,, is broad enough to include the power to determine the subordinate and dependent questions of the family property, and the care and custody of the children. In this case we have only the question of power, to determine; for as the testimony is not before us we are unable to form any opinion as to the propriety of the assignment of the homestead to the wife.
As a second question in this case, it is asserted that it was error to award the custody of the children to one found to be an habitual drunkard. Here also we labor under the disadvantage of having none of the testimony bearing on this question before us. We cannot say that the court erred, because we do not know what facts were before it. The character of the husband, the associations by which he was surrounded, his constant absence from home, may all have been so shown in evidence as to make it apparent that it was unwise to give him the custody, and it may have been awarded to her as the least of two evils. We do not mean to say that any such testimony was introduced, for the record is silent thereon; but we do hold that unless it affirmatively appears in the record that there was'none such, or similar, we cannot say that it was error to award the custody to the mother, rather than the father. The children were of tender years, and needed a mother’s care, and if she was at all suitable she ought to have the care of them during their infancy. The court reserved in the order, as it had the right to do, the power to change the custody; and if after the children pass that age which especially demands a mother’s care, her habits of drunkenness should continue, and the father appear to be a proper person to have the charge of them, we cannot doubt that the court will modify its order and give him the custody.
So far as the amount of alimony is concerned we suppose it was intended for the benefit of the children rather than of the wife. The law does not intend that a woman unfit to remain the wife, shall be supported in idleness by the toil of the husband. We however are not prepared to say that it was exorbitant when the custody and care of the children are taken into the account.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The action below' was replevin. The plaintiff there (defendant in error here,) obtained possession of the property by the writ, and then when the case was called for trial moved the court to dismiss the action without prejudice. This motion was sustained, and of this ruling plaintiff in error complains. The court at the.same time that it sustained the motion to dismiss ordered that the property replevied be returned to the defendant, and that the plaintiff pay the costs of the action. We see no error in the ruling of the court. In all cases an action may be dismissed by the plaintiff without prejudice at any time before the final submission. Civil code, § 397. If a counterclaim or set-off has been presented, the defendant may proceed to the trial of his claim, notwithstanding the dismissal. Code, § 398. In a replevin action, “if the property has been delivered to the plaintiff, and judgment rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, proceed to inquire into the right of property and right of possession of the defendant to the property taken.” Code, §184. And the court in such action, “before or after judgment, may compel the delivery of the property to the officer or party'entitled thereto, by attachment.” Code, §188. These sections afford ample protection to a defendant in such an action, when the plaintiff elects to dismiss his suit without prejudice. In this case the record discloses no formal application under these sections. Perhaps none was made. But the court ordered the return of the property. If that order has been obeyed, surely the defendant below has no cause of complaint. If not, let him apply to that court under §188, or bring his action on the bond, in which, notwithstanding the form of the judgment in this case, he can recover full compensation. Marix v. Franke, 9 Kas., 132.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is: Are the provisions of the statute entitled, “Proceedings in Aid of Execution,” and found on pages 724, 725, 726, 727, and 728 of the General Statutes of the State of Kansas, constitutional and valid in so far as they attempt or purport to confer upon the probate judge power, authority or jurisdiction to issue the process, entertain such proceedings, make'the orders, and punish their disobedience, as is provided for in the sections of the statutes found on the pages above mentioned ? Can a probate judge be invested with judicial functions as to cases pending in the district court? This really separates itself into two questions: Can a probate judge receive other judicial powers than those granted by the constitution to the probate court? and can judicial functions, as to cases pending in the district court, be granted to any person other than the duly-elected judge thereof? The first question is no longer an open one in this court, but has been already answered in the affirmative. In re Johnson, 12 Kas., 102, and cases cited in opinion. The second question must also be answered in the affirmative. The jurisdiction of the district court is not defined by the constitution. It is left to the legislature to prescribe its limits, and the manner of its exercise. While it may be that, under § 5 of article 3 of the constitution, it is impossible for the legislature to provide for more than one judge of a district court, and while it may be that no legislation could be upheld which excluded such single judge from a supervisory control of all the proceedings of that court, yet, within this limit, we think it competent for the legislature to provide that other persons may exercise some judicial functions in cases pending therein. Thus, the legislature has authorized the trial of certain cases before referees. No question has been, none can well be made, as to the validity of such legislation. Yet here is an officer other than the judge who is exercising judicial functions in cases in that court. So also, at common law the sheriff exercised judicial functions. The sheriff’s jury, to assess damages, was an every-day occurrence. And in proceedings before such jury the sheriff acted as a quasi judge. In our own proceedings under the occupying-claimant act may be found something of the same nature. To require of the judge the performance of all these duties, because judicial in their nature, would so burden him as to work a great hindrance to the dispatch of business, and the trial of cases. Now, these proceedings in aid of execution are of this same subordinate nature. It has been claimed that they were a substitute for and equivalent to the old creditor’s bill. While in many respects they resemble, yet they are far from being exactly similar. See opinion of Denio, J., in the case of Hayner v. James, 17 N. Y., 316. They are based upon a judgment already obtained. They are proceedings to aid in its collection, proceedings resulting from the inability of the sheriff to accomplish such collection by means of ordinary execution. They are simply means to reach all the property of the debtor, and apply the same to payment of a debt whose existence has been already judicially determined. It needs but a little reflection to perceive, that, no matter how wide may be the scope of these proceedings, they are of a subordinate nature. Judicial functions in such matters may, it seems to us, be granted by the legislature to officers other than the regularly-elected judge, subject of course to his supervisory control. This determines the case, and the judgment of the district court must be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Three errors are alleged, first, that the verdict is contrary to the evidence. As the certificate of the judge to the bill of exceptions is only that “it presents nearly all of the testimony introduced by the parties,” it is impossible for us to say that the verdict was not sufficiently supported by the evidence.
The second error alleged is in refusing a new trial on the ground of newly-discovered evidence. The newly-discovered testimony consists of two letters written by Sanford, the plaintiff, to the defendant. But no diligence is shown, no reason given why they were not produced at the trial. True, the affiant swears that he could not with reasonable diligence have discovered and produced them •on the trial; but this is insufficient. The facts which show ■diligence must be disclosed. The court is to decide, and not the party, whether reasonable diligence has been used. Smith v. Williams, 11 Kas., 104.
The defendant below, plaintiff in error here, also filed a ■second motion for a new trial, on the ground of misconduct of the plaintiff, and accident or surprise which ordinary prudence could not have guarded against. The facts are these: The action was for professional services. That the services were rendered does not appear to have been questioned, nor was their value seriously contested. Defendant claimed that after they had been rendered plaintiff agreed to take a certain sum, to-wit, fifty dollars, in full payment; •that he had paid part thereof, and tendered the balance. He testified on the trial that he had received a letter making such .a proposition, but had lost it. Another witness testified to having seen the letter, and that such were its contents. The bill of exceptions does not show that plaintiff testified at all concerning the letter, or the proposition. But Boyd’s affidavit filed on the motion states that the plaintiff on the trial “denied the contents of said letter, and testified that said letter stated ‘ if defendant would send him fifty dollars by a certain time, to-wit, the 'Tuesday after the writing thereof, he (plaintiff) would give defendant a full receipt.’ This affiant also alleges that the letter was lost and could not be produced on the trial, and has since been found.” But he does not disclose what if any efforts were made to find and produce it at the trial, or how it happens to have been found within two days thereafter. Under these circumstances we cannot say that the court erred in overruling the motion. There is not enough fo warrant the court in imputing willful false-swearing to the plaintiff — nothing to show reasonable diligence on the part of the defendant. Laithe v. McDonald, 7 Kas.; 254.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal if not the only question involved in this case, is, whether a judgment of a justice of the peace rendered upon a service of summons made only two days prior to the time of rendering such judgment is to be deemed valid and binding, when attacked collaterally, or whether such a judgment must be deemed void in all cases. We think that such a judgment is never void, but only voidable, and must be held valid and binding in all cases until reversed, vacated, or set aside by some direct proceeding instituted for that purpose. It is not like a judgment rendered upon no service. The service was good, except that it was made only two days before the time set for trial, while it should have been at least three days before that time. (Gen. Stat., 777, Justices Act, § 12.) The service was merely irregular; it was not no service, or a void service. And a judgment rendered thereon was not void, but at most was only voidable. Ballinger v. Tarbell, 16 Iowa, 491; Freeman on Judgments, § 126. See also in this connection Dutton v. Hobson, 7 Kas., 196; Armstrong v. Grant, 7 Kas., 285; Claypoole v. Houston, 12 Kas., 324, 327; Meisse v. McCoy’s Adm’r, 17 Ohio St., 225.
In the present case the facts are these: One C. W- Donaldson sued one Wm. Hoy, before a justice of the peace, and obtained an order of attachment. The summons and order of attachment were issued on October 14th 1872. Both were made returnable on October 25th. The order was served on the same day that it was issued by levying the same on some corn standing in a field. The summons was served, as appears from the record, on October 25th, but from the brief of the defendant in error we suppose it was served October 23d. It probably however makes but little difference whether it was served on the 23d or 25th, as it was served and returned before the case was called for trial. The summons and the order of attachment were both returned on October 25th. The plaintiff appeared for trial, but the defendant did not appear. The justice then, upon the evidence of the plaintiff, rendered judgment for the plaintiff and against the defendant. The attached property was afterward sold at constable’s sale to satisfy this judgment, and Nelson, the plaintiff in error in this case, defendant below, bought it. Nelson afterward took the corn away. Becker, the defendant in error (plaintiff below,) also claimed to own the corn. He claimed that he purchased it direct from the said ¥m. Hoy, the judgment-debtor, before said suit was commenced against Hoy. He also claimed that he had possession and control of the ground on which said corn stood. He therefore commenced this action against Nelson for entering the premises and taking away said corn. It was shown on the trial of this case that Hoy did in fact at one time own the corn. He had a lease of the ground, and raised the corn, and was to pay one-half of the corn raised for the use of the premises. Nelson did not take away more than one-half of the corn. It was also shown on the trial that Becker, subsequent to the time when he claims to have purchased said corn from Hoy, admitted and stated to various witnesses, and at different times, that Hoy owned the corn. Nelson then offered to introduce a transcript of judgment, and the proceedings connected therewith, for the purpose of showing that he, Nelson, had obtained all the interest in said corn that Hoy ever had; but the court below excluded the evidence, and afterward, on the other evidence, rendered judgment in favor of Becker and against Nelson. Me think the court below erred in excluding said evidence. It was competent and material, and should have been received. The only ground for excluding it, seems, from the brief of defendant in error, to have been said irregular service of summons, which we have already discussed.
•The judgment of the court below is reversed, and a new trial ordered. *
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The opinion of the court was delivered by
Brewer, J.:
It appears from the petition filed in this case, that one J. P. Taggart contracted in writing with defendant in error to erect and complete certain buildings within a stipulated time; that said Taggart and plaintiffs in error entered into a written undertaking with defendant in error, obligating that said Taggart should fully perform all the terms and conditions of said contract. The condition of such undertaking was as follows:
“The condition of this undertaking is such, that whereas, said J. P. Taggart has entered into a written contract with said Mark W. Delahay, dated the 12th of May, 1873, but actually executed on the day of the date of this undertaking, for the erection of three dwelling-houses in the said city of Leavenworth: Now, therefore, if the said J. P. Taggart shall fully perform all the terms and conditions of said con-, tract, to be by him performed, and according to the plans and specifications attached to said contract, then this undertaking shall become null and void, otherwise the same shall be and remain in full force and effect,” etc.
The petition sets out both the contract and the undertaking, alleging that Taggart failed to comply with his contract, and asks a judgment against all the signers of the undertaking for the damages sustained by this failure. To this petition Houston and Larimer • separately demurred, first, upon the ground that there is an improper joinder of causes of action, one being a cause of action to recover damages for breach of contract, and another being upon a written undertaking to answer for the default of Taggart; second, that the petition does not state facts sufficient to constitute a cause of action against Houston and Larimer. The demurrers were overruled, and this ruling presents the only question in the ease.
The proposition of counsel is that the “ obligation of Taggart is primary and absolute, and that of the other defendants secondary and conditional;” that they are created by separate instruments, that of Taggart by the contract, and that of the others by the undertaking, and that these separate causes of action do-not affect all the parties. We are disposed to think this is not the correct view to be taken of this case. The pleader, it is true, in setting out the contract and the breach of it, sets out a cause of action against Taggart, and against Taggart alone- — a cause of action not limited in amount by the penalty of the undertaking, but extending to the full damages resulting from such breach. But this statement, it seems to us, is preliminary, and for the purpose of showing a default in the condition of the undertaking. All signed the undertaking, and all therefore assumed the obligations created by ih The condition of the undertaking is the performance by Taggart of his contract. Without default in this, no one is liable on the undertaking. With it, all are. This default was alleged in the petition, and it matters not that in alleging it a cause of action is shown against Taggart for breach of his separate contract. Indeed, it could not be otherwise, for if Taggart defaulted in his contract, he was liable to an action for damages caused thereby. If he did not default, there was no liability on the undertaking. No liability could be shown on the undertaking without showing the default of Taggart, and the default of Taggart could not be shown without showing a cause of action against him. All that is claimed in the prayer of the petition is, the amount of the undertaking, while the damages alleged to have been sustained by the different breaches of the contract greatly exceed that amount. It is true that the pleader, in commencing the several statements of the different breaches, and of the execution of the undertaking, says, “and for a further cause of action,” etc.; but we must have regard more to the substance of the petition than to the mere form of statement. Suppose the demurrer had been sustained: under § 92 of the code, the court would have been compelled to permit the plaintiff to have filed a petition with one count, and showing a cause of action on the undertaking. To accomplish this, the only change necessary would have been to omit these preliminary words which introduce, as it were, the several statements of the breaches, and of the execution of the undertaking. That this was not done, cannot have wrought any injury to the substantial rights of the plaintiffs in error; so that, though the court might have, strictly speaking, erred in its construction of the pleading, the judgment would have to be affirmed.
The judgment will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court, brought by plaintiff in error against Augustine, on a promissory note signed by him as surety. Plaintiff was the payee of the note. The answer, as it finally stood, contained three separate defenses: 1st, usury; 2d, payment; and 3d, an extension of time to the principal, whereby ’ the surety was discharged. Plaintiff claimed that these defenses were inconsistent, and moved the court to require defendant to elect upon which he would stand. This motion the court overruled, and properly so. All three defenses might be true.. The contract might in its inception have been usurious, and to that extent have been modified thereby ^accordance with the laws of the state where the contract was made. Extension of time might also, after the making of the usurious contract, have been given to the principal, whereby the surety would have been discharged from all liability thereon; and after such extension had released the surety, the principal might have paid the note, and thus destroyed all liability on the instrument. As all these defenses might in fact have existed, they were not inconsistent, and the motion was properly overruled.
No proof was made as to the laws of the of state of Illinois, the state in which this note was executed. Notwithstanding this omission the court charged the jury as to ^e effect of usury upon the contract, according the laws of that state. This was manifest error. The courts of one state do not take judicial notice of the laws of another. They must be proved as other facts in the case. Counsel for defendant in error does not dispute this, but contends that under the evidence the jury could not have found against the plaintiff on the question of usury, but must have found against her on the question of extension of time to the principal, and that therefore the error is immaterial. We do not think this, is clear. There was no eviden ce upon the plea of payment; but there was evidence tending to show an agreement to pay anc[ a payment of twenty per cent, interest, and a payment of interest at that rate for four-and-a-half years. The court charged the jury that ten per cent, was the extent of legal interest in Illinois, and that a party taking usurious interest forfeited three times the amount of such interest, and ■could recover for the remainder of the note only. Upon this the jury might well have found for the defendant. True, this instruction seems to have been qualified by one given subsequently, which told the jury that usurious interest voluntarily paid could not be applied on the principal, but must be applied on “the interest accruing from the time of executing the said note at the rate of ten per cent, per annum.” But the jury may have understood that the extra and usurious interest was to be carried forward and treated as an advance payment of subsequently-accruing legal interest, and, in addition, that the party forfeited three times the amount of such usurious interest. In this case three times the usurious interest upon the basis heretofore indicated would have exhausted the principal. We cannot say therefore that the error was immaterial. Indeed, it seems to us full as likely that the jury found for the defendant upon the question of usury, as upon the question of extension of time. The judgment must therefore be reversed, and the case remanded for' another trial. In reference to the question of extension of time no objection is made to the instructions given, but it is insisted that the testimony fails to show any extension. We will not anticipate what may be shown on a subsequent trial, but would simply remark that, to make the proposed defense good in law, there must appear to have been a distinct agreement, without the consent of the surety, to give to the principal debtor an extension, and a valid consideration therefor, a consideration which must be other than the payment of interest at the rate and in the manner required by the original contract for the use of the money.
Judgment reversed.
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The opinion of the court was delivered by
Smith, J.:
One John McAllister, on the complaint of the appellee, was arrested and tried before a justice of the peace of Jackson county on the charge of assault and battery. In such trial he was found guilty, and appealed to the district court. In the latter court he was tried to a jury, which returned a verdict of not guilty, and also returned a separate verdict finding that the prosecution had been instituted without probable cause and from malicious motives -by the appellee. On the motion of the appellee the district court set aside this second verdict, or finding, and adjudged the costs of the prosecution against the state. To this ruling proper exceptions were taken, and the question was reserved for appeal to this court.
It is contended by the state that the court had no power or legal right to set aside the finding of the jury, and the following cases are cited as authority for this contention: The State v. Zimmerman, 31 Kan. 85, The State v. Forney, 31 Kan. 635, and In re Lowe, Appellant, 46 Kan. 255. The Zimmerman and Lowe cases were each prosecutions for criminal libel, in which, by express provision of statute, the jury are made the judges of the law and the fact. The decisions in those cases were expressly based upon this provision of the statute, and it was held that in such a case the court has no power to set aside such a finding by the jury. The Forney case is not in point. It was therein simply held that when the jury find a defendant in a criminal action not guilty, and find that the prosecution was instituted without probable cause and from malicious motives, the court is empowered to render a judgment against the prosecuting witness for costs.
The pertinent provision of statute is section 326 of the criminal code, which reads:
“Whenever it shall appear to the court or jury trying the case that the prosecution has been instituted without probable cause and from malicious motives, the name of the prosecutor shall be ascertained, and stated in the finding; and such prosecutor shall be adjudged to pay the costs, and may be committed to the county jail until the same are paid or secured to be paid.”
The clause “whenever it shall appear to the court or jury trying the case” evidently was used to make the provision applicable to such cases as may be tried to the ■court without a jury and also to cases tried to a jury, and not for the purpose of making the finding of the jury more conclusive than other findings by a jury. Had it been intended to devest the courts of their usual control over, and responsibility for, the findings of juries, language would undoubtedly have been used which would clearly indicate such legislative intent. Findings of juries are not usually effective until sanctioned by the court, and it is generally within the province of the court to set them aside. This general rule •should not be abrogated by construction.
A verdict of acquittal could not be set aside to any purpose, by reason of the provisions of section 10 of the bill of rights and section 2798 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 31, §298). Because of the constitutional and statutory rule forbidding a second jeopardy, the defendant in a criminal case is entitled to a final discharge upon a finding of not guilty. Subject to this exception, the verdict of a jury is without effect until it has been approved by the trial judge. In Capital Traction Company v. Hof, 174 U. S. 1, it was said:
“ ‘Trial by jury,’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the_ law or the evidence.” (p. 13.)
Even under a system permitting the jury to decide the law as well as the facts in criminal cases it has been held that a finding against the prosecutor can be set aside, notwithstanding the statute makes no express provision therefor, the court saying:
“A decision of a jury, contrary to the direction of the court, and not subject to its revision, is not a verdict. The jury have the power to name the prosecutor; but if they name one against whom there is not a particle of evidence, one who was not the prosecutor, and who had no notice whatever of the proceedings, the injustice would be so monstrous that it seems impossible to doubt in regard to the power and the duty of the court to grant redress. So, if the jury should name as prosecutor the justice who issued the warrant, the constable who executed it, or the district attorney who sent up. the indictment and prosecuted it, without any other evidence against them except proof of the performance of their official duties, the demand for a prompt and efficient remedy would be equally imperative. No man can suppose for a moment that the legislature intended to place it in the power of the jury to impose severe penalties upon public officers for the faithful performance of their duties.” (Guffy v. The Commonwealth, 2 Grant’s Cases [Pa.] 66, 68.)
The case of Jacobs v. The State, 20 Ga. 839, has a contrary tendency, but the decision seems to have been influenced by the peculiar language of the statute.
What is called the second verdict is simply findings of fact, and we know of no reason why the court can not set them aside; and in the absence of any limi-. tation upon the power of. the court with reference, thereto it seems that the general rule should apply, and; that the court has power to set such findings aside.
The judgment is affirmed. | [
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Per Curiam:
In a petition for a rehearing the defendant exonerates his attorney from any blame for the imperfections of the abstract, which he, being a lawyer, prepared himself. He now suggests that the brief, read in connection with the abstract, furnished all the information necessary to a consideration of the case upon the merits, and insists that the court ought so to have considered it.
While the brief, treated as an abstract, does not meet the requirements of the rule as applied in the Conlon case (Railway Co. v. Conlon, 77 Kan. 324) and other cases, in this court, still, in view of the reasons given for failure to comply with the rule, and a desire to dispose of eases upon their merits when it can be done consistently with good practice, we have reexamined the record and again carefully considered all the evidence, and upon such review we find that the evidence was sufficient to sustain the verdict. The same conclusion was reached upon an examination of the record made before the opinion was written, but it was not then stated, the opinion being based upon the presumption that in the absence of a proper abstract it would be presumed that the evidence sustained the verdict. (Ante, p. 212.) We now add that a careful examination of the record shows that such evidence was duly received, and that no error appears in the proceedings.
The motion for a rehearmg is denied. | [
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Per Curiam:
The petitioner was committed to jail by an order of the district court for contempt, and seeks release from such imprisonment. In an action against him for divorce, wherein he was personally served with summons, the petitioner was adjudged to pay the sum of $16.66 per month for the support of his minor child. He neglected to comply with this order. After several payments had become due an attachment was issued against him. When arrested and brought before the court an accusation was presented and an answer filed, and he was regularly tried, found to be in contempt, and sentenced to confinement in jail for thirty days and until he should comply with the order of the court by making the specified payments.
The petitioner contends that the court had no jurisdiction to enforce its order by attachment. In this he is mistaken. (Code 1909, §§ 669-673; Scott v. Scott, 80 Kan. 489.)
He also insists that because there is no special finding of his financial ability the order can not be upheld. The general finding against him upon the issues tried upon the accusation, the answer and the evidence is sufficient. He did not ask for findings of fact, and he does not present the evidence. We must therefore presume that it was sufficient.
He further contends that there is no authority to imprison for failure to pay the costs. If this were true he still could not be discharged, for he has not complied with the order requiring him to pay the installments due. It is probable, however, that the authority to require the payment of costs is incidental to the power to punish for contempt in such a case. It has been so held in proceedings supplementary to execution. (In re Burrows, Petitioner, 33 Kan. 675.)
Having considered the three specifications upon which the discharge is asked and found them insufficient, the petitioner is remanded to the custody of the sheriff of Graham county. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action D. M. Circle undertook to foreclose a mortgage given by Amanda J. Potter-on a section of land in Barber county to secure the payment of a promissory note for $6500 which she.had. given. An .interest coupon of $408.23 was due when the action was brought. In her answer Amanda J. Potter alleged that the note and mortgage were given in a trade of a drug store owned by her in Missouri, worth about $6000, for a section of land belonging to Circle which was worth only about $4000, and that she was fraudulently induced to make the trade and give the 6500-dollar note and mortgage, in addition to the drug store, for the land. She set up, first, that when the note and mortgage, as well as the drug store, were obtained by Circle from her in exchange for the land Circle falsely and fraudulently represented the land to be worth $13,500, and that it had been rented annually for such a sum as would pay seven per cent per annum on that valuation, over and above the taxes. She alleged that he falsely and fraudulently represented that the land had been renting for approximately $950 per year, when in fact it had never rented for more than $300 per year. She averred further that, to accomplish the deception, he proposed to rent the land for two years at an annual rental of $950, and gave her two notes, each of which was for $950, but that these were not given in good faith nor with the intention of paying the same but only for the temporary purpose of obtaining possession of her stock of drugs, which of itself w'as worth $6000, and that these notes so given her were subsequently obtained from her by a cunning deception on the part of Circle. She further. averred that Circle subsequently gave her a note for $1500, and she asked a recovery of the amount due thereon. She also prayed for a decree declaring the mortgage and note to be fraudulent and void and not a lien on the premises, and for judgment in the sum of $1500.
The findings of the jury were in favor of Mrs. Potter, and were based upon testimony that is strong and convincing. It appears on this appeal of Circle’s that he falsely and fraudulently represented the land to be worth $13,500, when in fact it was worth but $3200, and that he had been receiving as rent for the land ap proximately $950 per year, when in fact he had received not more than $300 per year, and that for this land he obtained from her a stock of drugs in Missouri worth $4500 and also her note for $6500, as well as a mortgage on the land to secure the payment of the note. In that connection it appears that he went through the form of renting the land from her for a period of years at a rental of $950 per year, and as payment-gave her two notes for $950 each. To obtain the possession and cancellation of these notes he caused a faked offer to be made to her to purchase the land at a large price, and when she came on from Missouri she found that there was in fact no purchaser, but was then told that there was a party who would give her $1600 a year for the use of the land. A party who proposed to rent the land at that price appeared, but declined to enter into a contract unless Circle would surrender his lease. Circle, who was conveniently close, agreed to surrender the lease if Mrs. Potter would surrender the rental notes which he had given her. The new party advanced $100 on the rent, but declined to complete the contract or pay more until the lease with Circle was canceled. She was induced to return the notes, and the lease with Circle was canceled. The new renter, however, did not return to complete the contract, but the purpose of Circle to obtain his notes had been accomplished. It turned out that the new party was a stool pigeon of Circle’s, to whom Circle gave the $100 advanced to Mrs. Potter, and he also gave him $25 for assistance in the trick by which he obtained possession of his notes.
It is first argued that the averments of appellee’s answer do not sufficiently allege, and her evidence did not establish, the essential elements of fraud, or deceit. The contention is that she did not specifically state that she relied upon the false representations made by Circle, nor that he used any means to cause her to forbear inquiry as to the value of the land or as to whether his representations were true or false. He argues that mere assertions by a seller as to the value of the land or as to its quality will not give a right of action for deceit when the property sold is equally open to inspection by both parties and nothing is done by the seller to prevent the buyer from making inquiry or acquiring knowledge in regard to the property sold. The averments of the answer appear to be sufficient. As a general rule it may be said that if one person dealing with another intentionally deceives him he is responsible for the consequences. If the averments of the answer show that Circle knowingly made false representations in respect to the land which were material, that they were made with the intention to deceive Mrs. Potter and that she should act on them, and that she did act in reliance upon them to her injury, a cause of actionable fraud has been stated. The representation that the annual rental of the land had been sufficient to equal seven per cent per annum on that value, over and above taxes, was material and was alleged to be false. While the pleader did not in set phrase state that each representation was made with the intention to deceive and that it did deceive Mrs. Potter, the answer did state that she was fraudulently and illegally, induced to execute the note and mortgage by the false and fraudulent representations of Circle, and that these were made for the purpose of obtaining the note and mortgage. In another part of the answer it was alleged that representations with reference to the rental value of the land were made by him to deceive her with reference to its real value. She further alleged that she was ignorant of the real value of the land, as well as the annual rental value, and that by reason of his representations she was induced to and did make the exchange of properties and complete the transaction. She further averred that she did not learn of the falsity of the representations or of the real rental value of the land until some months after the giving of the note and mortgage, and until after the drug stock had been de liveréd to plaintiff and the greater part of it disposed of. The averments, when taken together, sufficiently state that the representations were material, that they were false and known to be false by Circle, that they were made to be acted on by Mrs. Potter, and that she did act on them and thereby suffered injury. These are the essential elements of actionable fraud. (20 Cyc. 12.)
Complaint is made that the court in its instructions in effect relieved Mrs. Potter of the consequences of her own negligence in the transaction, and held Circle to be liable for his representations even if Mrs. Potter acted upon an independent investigation and on her own judgment. It is true that Mrs. Potter did see the land before the contract of exchange was made, and there is testimony, too, that by a thorough investigation she might have learned the character of the land, as well as its rental value. The court advised the jury that if Mrs. Potter knew the value of the land and its past and present rental value, and with such knowledge proceeded to complete the trade, she would be deemed to have acted on her own judgment and be bound by the contract. The court, however, did not hold her to have acted on her own judgment because she had made a bare inspection of the land, if she did not in fact learn its value and did rely on the representations of Circle as to the nature of the land and of its past and present values. The trial court followed and applied the doctrine of Speed v. Hollingsworth, 54 Kan. 436, wherein it was held that if the seller misrepresented the character of the land sold and its rental values, and the buyer could not learn the facts from a bare inspection of the land, the seller can not successfully defend upon the theory that the buyer might by careful inquiry have discovered the falsity of the representations, where the buyer in fact relies on the representations. In holding that the party committing the fraud could not insist on a searching inquiry to discover the falsity of his own representations the court quoted from page 524 of Bigelow on Fraud as follows:
“It matters not that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should be permitted to say to him, ‘You ought not to have believed or trusted me;’ or ‘You were yourself guilty of negligence.’ ” (54 Kan. 440.)
The statements of Circle, especially as to the rents which had been received for the lands, were something more than expressions of opinion. They were extrinsic facts lying peculiarly within his knowledge, and as to such matters she had a right to rely upon his assurances; and if in fact she did rely on them-, she is entitled to relief. In Elkins v. Tresham, 1 Lev. (Eng. K. B. 1663) *102, the action was a case for falsely affirming a messuage to be let for so much, when in fact it was let for a lesser sum. The court said:
“Though an action will not lie for saying that a thing is of greater value than it is, yet to affirm that a thing is demised for more than it is is a falsity in his own knowledge, and the party who is deceived may, for such deceit, have an action, for perhaps the lease is by parol, or the tenant will not .inform the purchaser what rent he gave.”
(See, also, Claggett v. Crall, 12 Kan. 393; McKee v. Eaton, 26 Kan. 226; Stevens v. Matthewson, 45 Kan. 594; Davis v. Jenkins, 46 Kan. 19; Carpenter v. Wright, 52 Kan. 221.)
Error is assigned upon the rulings of the court in respect to the findings and verdict of the jury. In answer to special questions the jury found that Mrs. Potter sustained damages because of the false representations in the sum of $7000. This, it was specially found, did not include the 1500-dollar note given to her by Circle for the rent of the land. In response to another question the jury stated that her damages arising from the entire transaction were $8500, which amount was manifestly made up of the two preceding items. The jury brought in a general verdict as follows:
“We, the jury empaneled and sworn in the above-entitled case, do upon our oath find for the defendant, Amanda J. Potter, in the sum of $1500, and the cancellation of the $6500 mortgage and the $408.23 interest note and accrued interest on the $6500 principal note, and plaintiff to pay the costs of this action.”
The court, not being satisfied with the verdict, directed the jury to retire again for further deliberation. This was done, with the following verdict:
“We, the jury duly empaneled and sworn in the above-entitled cause, do upon our oaths find for the defendant, Amanda J. Potter, $7000.”
An attack was made upon the special findings and verdict, and counsel for Mrs. Potter subsequently remitted all of the award of the jury except the sum of $1033.75, and for that amount judgment in her favor was given. It is contended that the court had no authority to send the jury back for further deliberation, and had no alternative except to set the verdict aside and grant a new trial. Although the verdict was informal, and although that part of it which provided for the cancellation of the notes and mortgage trenched upon the functions of the court, it was in fact an equitable and just disposition of the case. In effect the jury found that the damages suffered by the fraud of Circle equalled the amount of the notes and mortgage which she had given to Circle, and therefore found that these should be canceled. Then there was an award of $1500 against Circle on the note which he had given Mrs. Potter in the settlement of the rent of the land. If the court had rejected so much of the verdict as related to the cancellation of thé notes and mortgage, and treated and approved the verdict as an award of $1500, it might have been difficult to obtain a reversal of the judgment. That verdict, when taken in connection: with the special findings, which the court approved, made the purpose of the jury reasonably clear. The verdict, however, was informal, and it was competent for the court to ask the jury to give the case further consideration and bring in a verdict in proper form and in accordance with the instructions of the court. It is evident from the amounts awarded in the second verdict that the jury did not fully understand the direction of the court. Manifestly they understood that their first verdict was too broad, and that they were to have nothing to do with the setting off of damages against the 6500-dollar mortgage debt and interest. They therefore gave a verdict for $7000, the amount named in the second finding as the damages resulting from the false representations of Circle, leaving the disposition of the mortgage lien to the court. The verdict, it is plain, was excessive, but the court had the special findings of the jury to aid in interpreting it, and when the prevailing party offered to remit all of the award except $1033.75 the court, it would seem, was fully justified in acting upon this offer and rendering judgment for that amount. Mrs. Potter might very well have insisted on a judgment for $1500, but when the offer to remit down to a smaller sum was made the court undoubtedly did not feel warranted in suggesting that the findings warranted a larger amount, or in giving her more than she offered to take. A reading of the special findings of the jury and the evidence brought up in the counter abstract leads to the opinion that the findings are not evasive, partial or unfair, and disclose no reason why they may not be a proper basis for the final determination of the legal and equitable issues of the case.. They explain the error of the jury in fixing the amount of damages in the second verdict, and support the judgment of 'the court as to the recovery of damages and in decreeing the cancellation of the mortgage.
There is a contention that in accepting the 1500-dol-lar note Mrs. Potter condoned the fraud, if any was practiced upon her by Circle in the exchange of properties. The 1500-dollar note was given to her in settle ment of the fraud in obtaining the two notes given her by Circle for rent. He had rented the property for a period of two years, and had given her two notes amounting to $1900 as payment of the rent, and had also by a flagrant fraud tricked her into the surrender of these notes. When she learned of this deception reparation was demanded, and Circle gave her the 1500-dollar note as a substitute for the notes so fraudulently obtained and as a settlement of what the jury termed the “lease fraud.” Evidently this fraud was treated as one wholly distinct from the original fraud practiced on her when the contract of exchange was made. Indeed, it appears that she had not then learned that the representations made by Circle when the trade was made and the mortgage executed were false and fraudulent, and did not in fact discover it until about the time this action was brought. Before a defrauded party will be held to have condoned or waived the fraud by some subsequent action it must appear that he acted with full knowledge of the fraud, and with the intention of abiding by the contract notwithstanding the .deception practiced. The 1500-dollar payment of rent by which Circle undertook to make good the pretended agreement of his accomplice in the trick of securing the return of his notes did, according to the findings, settle that fraud, and also his obligation of rent after the trade, but it did not affect the fraud which she had not then discovered.
The objections to the rulings of the court that appellant was not allowed to open and close in the trial of the case, and that appellee was allowed to amend her answer, are not deemed to be material.
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The opinion of the court was delivered by
Burch, J.:
The appellant was charged with assaulting and shooting Bert Graham on purpose, with malice aforethought and with intent to kill, under section 38 of the crimes act. He was convicted of assault with intent to commit manslaughter, under section 41 of the crimes act, and appeals. There are ninety-seven assignments of error, few of which are worthy of notice.
The appellant, who is a physician, became .suspicious of his wife. He went away leaving her under the impression that he would be gone several days, came home the same night, saw Graham enter the house by the kitchen door, rushed in, but was unable to effect a capture. His wife confessed in detail to a long siege Graham had made of her affections and her chastity, which, however, she had not surrendered. The appellant suffered the most poignant mental distress throughout the night, in the course of which he drank considerable whisky. The next morning he went to his office, but could not free his mind of the night’s occurrences. Graham was a liveryman who made it a practice to meet incoming trains. Leaving his office and taking a revolver with him, the appellant went to the Rock Island depot, where a number of persons were waiting for the arrival of a south-bound train. Seeing Graham, the appellant began shooting. Graham seized a bystander, whom he attempted to hold between himself and the appellant. The appellant called to the bystander two or three times to get out of the way, and in the meantime refrained from shooting. Graham and the bystander struggled together and fell to the ground. Finally Graham ran, the appellant shooting at him and calling to him to stop. Altogether the appellant fired four shots, one of which caused a flesh wound in Graham’s arm. The defense to the action was that the appellant acted under the influence of an insane and uncontrollable impulse which relieved him of criminal responsibility.
The state’s evidence was quite brief, and consisted of the testimony of several witnesses who saw the encounter and of the doctor who dressed Graham’s arm. Graham’s- name was indorsed on the information as a witness, but he was not called. A motion by the appellant to require the state to examine Graham was properly denied. Every fact and circumstance necessary to establish the charges of the information was presented, and whatever the rule may be in some states it is not the law in this state that all witnesses whose names appear on the information must be called.
The appellant placed his wife, Rebecca Murray, on the witness stand in his defense. She gave a complete history of her relations with Graham, and of the occurrences of the night before the shooting, including the story she told her husband, and its effect upon his mind and conduct. There are numerous assignments of error relating to her examination and cross-examination which seem quite trivial. For example: One even ing while the appellant was in Texas, Graham met Mrs. Murray on the street and asked to call that night. She said: “Oh, I’m scared to.” He said he thought it would be all right. She went home, and after reflecting on the matter made up her mind the meeting ought not to occur. Her testimony was that she thought: “He must not come here. This must not happen. I must do something to stop it.” Therefore she ordered a livery team and drove to her brother’s in the country. . After all this she was asked why she went to her brother’s that night. An objection to the question was sustained, and it is now argued that the verdict and judgment ought to be overturned because of the ruling. Again: She testified to salacious suggestions Graham made to her on a certain occasion. She was asked if she assented to them. An objection was properly sustained, because the question to be tried was the state of the appellant’s mind, and not her chastity. Afterward she testified fully to the fact that she had never yielded to Graham’s advances. Yet the appellant harks back to this question, irrelevant when asked and utterly immaterial now, and asks that the verdict and judgment be overturned because it was not answered.
The appellant was a witness in his own behalf. He was permitted to testify that he knew Graham was possessed of a licentious character. He said he had received information from Graham personally, and from others, respecting licentious conduct on the part of Graham with women other than the appellant’s wife, and he described fully the effect this information had upon his mind, in connection with the events of the night before the shooting. When he was asked to give the details of what Graham told him an objection was interposed and sustained. The ruling was clearly correct. The testimony he was allowed to give accounted fully for the state of his mind, the only matter at issue. It was enough, under the circumstances, that he possessed definite information from a reliable source that Graham was a seducer of women. To have gone further woüld have introduced a brood of collateral issues wholly foreign to the. one under investigation. An offer to show by a woman that Graham had attempted to seduce her was properly excluded for the same reason.
The position of the state was that the appellant was altogether too deliberate, self-controlled and discriminating in his shooting to be under the influence of an insane passion, and in order to discredit the appellant’s account of what shattered his mental integrity the .state attempted to create a suspicion of an alibi for Graham. The appellant and his wife testified that Graham came at a certain time of the night. The appellant said the moon was shining, and he was corroborated by other testimony. In rebuttal the state offered in evidence an almanac showing the time the moon set. The almanac stated that its calculations were given in solar time. The almanac was properly admitted in evidence, but it is said the difference between solar time and the standard time in general use was not explained to the jury. The matter was one of common knowledge, and the appellant might have explained it to the jury himself, even in the argument of the case, had he thought about it at the trial.
Two witnesses, Isaac Mulford and Effie Mulford, gave accounts of Graham’s whereabouts until after ten o’clock of the night before the shooting. On cross-examination Mulford was asked concerning a subsequent conversation he had with Ellen Brewer. He admitted having the conversation, and admitted he might have said he saw Graham that night and might have talked about sitting on the porch at his home that night, but he would not declare he did so. Ellen Brewer was called by the appellant and asked to state all she remembered of the conversation with Mulford, which she did. The appellant then undertook to cross-examine her by means of leading questions, the answers to which would not have impeached Mulford in view of the nature of his answers. Objections to such questions were properly sustained under well-known rules.
In the course of her testimony for the appellant Mrs. Murray stated that on a certain occasion she met Graham, by appointment, in North Topeka. Proceeding, she said:
“In the conversation that followed he asked me why I did not go to South Dakota and stay six months. I told him I had no reason to do that and he said he could give me a reason to do so. He stated that he knew some reasons and things about the doctor that would change my mind. I do not remember whether I said ‘Don’t tell me’ or- ‘Do tell me.’ He said, T do not know whether I should tell you, as it would be betraying the doctor, but I will tell you anyway. I am telling it all — between the doctor and the Fultzes. That the doctor had had trouble with Fultz’s wife and had to pay over some money and that he and Fenske had fixed > — had helped to fix it up; that Fenske had fixed it up; that he was a go-between.”
The appellant seemed to feel the need of clearing up the Fultz matter before the jury, and so volunteered the testimony that since his marriage he had not committed adultery with any woman whomsoever. Not content with this, he placed Fenske on the stand and caused him to tell all about the settlement of the Fultz affair, and Fenske produced and read to the jury the Fultz receipt for the money the appellant had paid to repress scandal. The state, of course, walked briskly in at the open door and proved by Mrs. Fultz that the appellant had sexual intercourse with her in his office, whither she had gone for medical treatment, and that she did not understand the terms of the receipt for money which she had signed. Many errors are assigned relating to the trial of this separate and independent Fultz case. None of them, if any were committed, bore any sort of relation to the only matter in dispute — the state of the appellant’s mind when he was engaged in shooting at Graham — and they need not be noticed further.
Doctor Roby, a witness for the state in rebuttal, testified that he heard the appellant’s testimony. He was then asked as a medical expert for an opinion respecting the appellant’s sanity, “based wholly upon his testimony.” It is argued that the witness was left free to weigh the truth or falsity of the appellant’s testimony, and to accept or reject such portions of it as he saw fit. The natural import of the question is that the witness should accept the testimony just as the appellant gave it and make it the foundation of the witness’s opinion.
Other objections to medical expert testimony which was given are unsubstantial, and other assignments of error respecting the admission and exclusion of evidence are without merit.
One matter of importance, arising upon the instructions, is presented. The verdict reads as follows:
“We, the jury empanelled and sworn in the above-entitled case, do upon our oath find the defendant, J. W. Murray, guilty of an assault with intent to commit manslaughter, under section 41 of the crimes act, as charged in the amended information.”
Section 41 of the crimes act reads as follows:
“Every person who shall be convicted of an assault with an intent to commit any robbery, rape, burglary, manslaughter, or other felony, the punishment for which assault is not hereinbefore prescribed, shall be, punished by confinement and hard labor not exceeding five years, or by imprisonment in the county jail not less than six months.” (Gen. Stat. 1909, §2529.)
This section of the crimes act was applied to the evidence by means of the following instruction:
“ (15) If you find from the evidence in this case that defendant, at the time and place charged in the amended information, unlawfully assaulted and wounded said Bert Graham, with a deadly weapon, as charged in the amended information, and further find that said assault was made upon reasonable provocation, in heat of blood, but without malice and without legal excuse, and with intent to kill, then you will be justified in finding defendant guilty of an assault with intent to commit manslaughter.”
In order that the conviction may be sustained it must be held that there may be an assault with a deadly weapon, upon reasonable provocation, in heat of blood, without malice and without legal excuse, and with an intent to kill; and it must be held that such an act constitutes an assault with intent to commit manslaughter within the meaning of section 41 of the crimes act. The appellant argues that such a ruling would involve an impossibility of fact and of law. The court is of a contrary opinion.
In the preparation of the crimes act the legislature segregated certain homicides, committed under specified conditions, and called them justifiable. It did the same with certain other homicides, committed under specified conditions, and called them excusable. By this means certain specific killings are exempt from punishment. Conceiving that there may be other killings which ought not to be punished, the legislature then exempted all other homicides which were justifiable or excusable under the common law. (Crimes act, § 11, Gen. Stat. 1909, § 2499.) While all these exemptions are statutory, they may, for convenience, be classified as statutory and common-law exemptions.
The legislative intention was to punish all homicides which are not justifiable or excusable, either under the statute or under the common law. In providing a scheme of punishments the same method was adopted as in the case of exemptions. A homicide committed under certain specifically enumerated conditions was made punishable as murder in the first degree. Another kind of killing under certain other specific conditions was made punishable as murder in the second degree. Various kinds of homicides, the elements of which are all named, constitute manslaughter in the first degree, and so with manslaughter in the second, third and fourth degrees. Understanding very well that it had not, in two degrees of murder and four degrees of manslaughter, provided for all punishable killings, the legislature then undertook by section 27 of the crimes act to cover all those which had not been specifically provided for. That section reads as follows:
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.” (Gen. Stat. 1909, §2515.)
It may be that the statement preceding the quotation is too broad, and that if there should be a homicide of some kind not covered by the statute which would be murder and not manslaughter at the common law it could not be punished; but it is possible that in such a case the manifest purpose of the section to include all homicides not justifiable or excusable and not otherwise specifically covered would control the phraseology.
By section 27 common-law manslaughters not already provided for by the crimes act are imported into the act and so become statutory crimes, but here again, for convenience of reference, the terms “statutory” and “common law” may be applied as manslaughters fall without or within section 27. Turning to the statutory manslaughters, it is discovered that several of them include an intent to kill — the willful killing of an unborn quick child by an injury to the mother which would be murder if her death should result (§ 14, Gen. Stat. 1909, § 2502) ; the administration of medicines, drugs, or other substances to a woman quick with child, with the intent to destroy the child, if the death of the child or of the mother ensue (§ 15, Gen. Stat. 1909, § 2503) ; the unnecessary killing of another, either while resisting an attempt by the other to commit a felony or other unlawful act, or after the attempt has failed (§ 17,. Gen. Stat. 1909, § 2505). In these cases there may be an assault with intent to commit statutory manslaughter, involving an intent to kill.
In the case of The State. v. Tankersley, post, p. 165, the opinion reads:
“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), and under section 17 of this chapter, which defines one of tne instances of manslaughter in the second degree, it is entirely possible to commit the offense with a specific intent to kill.”
The compilation called General Statutes of 1897, referred to in the foregoing opinion, is the Webb edition. Section 40 of chapter 100 of its classification is section. 41 of the crimes act, and section 17 is section 17 of the: crimes act.
There are no statutory manslaughters involving an. intent to kill except those referred to in sections 14, 15' and 17. None of them will fit all the facts set forth in the fifteenth instruction, and if there be a manslaughter involving ■ the elements there enumerated it must be found in the common-law group. Turning to the common law, one of the established classes of manslaughter,, that termed voluntary, is found to involve the intent to kill. Besides this, in the case of voluntary manslaughter at common law the killing must have been done in the heat of passion, upon sufficient provocation and without malice, and must have been unlawful— that is, without legal justification or excuse. (2 Cooley’s Black, p. *191.) This is the precise state of facts submitted to the jury in the fifteenth instruction. The crimes act may be searched in vain for any statutory degree of murder or manslaughter under which such a killing is punishable. Here, then, is a common-law manslaughter which the legislature must have intended to cover by section 27. If the intent to kill should fail of accomplishment and death should not ensue, there remains an assault with an intent to do that which, completed, is manslaughter, and which, therefore, must be punishable under section 41.
It is argued that an intent to kill, where the killing is not justifiable or excusable, is an intent to do a wrongful act, and that, under the definition of malice as the state of mind denoted by the intentional doing of a wrongful act, it is impossible that there should be an intent to kill and no malice. The supposed difficulty thus presented is one of words onlv, and arises from an attempt to make a convenient expression, good for all general purposes, cover a particular case which the common law has always carefully discriminated! At the common law homicides were of two classes only— those done with malice and called murder, and those done without malice and called manslaughter. This malice, or its absence, was inferred from facts and circumstances. Given a killing done voluntarily — that is, with the intent to kill, but in hot blood and upon some sudden and sufficiently violent provocation, and the inference of malice was not drawn. Going beyond these facts there might be malice — -as, if the provocation were resented in a brutal and ferocious manner, indicating that the conduct exhibited was the dictate of a wicked, depraved or malignant heart. But, without circumstances of some kind showing such malevolence, due provocation and hot blood alleviated the crime into the nonmalicious one of manslaughter. (4 Cooley’s Black, p. *201). When the legislature imported common-law manslaughter into the crimes act this characteristic came with it.
In applying the general definition of malice the court, in its instructions, maintained fairly well the distinction between conduct proceeding from a sedate and deliberate mind or malignant heart and conduct proceeding from a sudden impulse of passion under circumstances giving provocation. Some faulty expressions occur, probably through an effort to make a large subject clear in a few words, but on the whole there is no reason to believe the jury were misled.
It will be observed that the crime of which the appellant was convicted is included with a number of others requiring a specific intent — as, to rob, rape, or burglarize. Consequently it is argued that a deliberate intent to commit the specific crime of manslaughter must have been entertained, and that such deliberation is incompatible with manslaughter. The case of People v. Lilley, 43 Mich. 521, sustains this view. The opinion reads:
“In cases of assault with intent to commit a felony a specific intent must be found to exist, and it is very difficult to imagine how such a specific intent can be found to exist in the absence of reflection and deliberation. When once it appears that the assault was made with intent to take life, under circumstances where the killing would not be lawful or excusable, then, if under such circumstances death should ensue, the party would be guilty of murder. It seems like a contradiction of terms to say that a person can assault another with intent to commit manslaughter.” (p. 529.)
To apply this reasoning to section 41 would be to stick in the bark of the letter of the statute and not to penetrate to the heart of the legislative meaning. What the statute does in reference to the particular subject under discussion is to declare that if a person assault another under such circumstances that if death- should ensue the crime would be manslaughter at the common law, he shall be punished in a prescribed way. In the case of The State v. O’Shea, 59 Kan. 593, the opinion reads:
“The essential difference between sections 39 and 40-is that section 39 requires that the assault be made on purpose and of malice aforethought, with intent to kill, while section 40 defines a lower grade of offense, in which the element of malice aforethought is not included. In order to sustain a conviction under section 40 it is only necessary to prove that the assault was made under such circumstances as would have constituted manslaughter if death had ensued.” (p. 595.)
The references in this quotation are to sections 39 and 40 of chapter 100 of the 1897 compilation of the-statutes, which are sections 38 and 41 of the crimes act.
The matter under consideration was much clarified by the supreme court of Maine in the case of State v. Herson, 90 Maine, 273. The-syllabus reads:
“The statutory term of assault with intent to commit, manslaughter means an assault with an intent to commit an act which, if. committed, would constitute the-offense of manslaughter.”
In the opinion it was said:
“It is urged that the terms, an assault with intent to-commit murder, or to commit manslaughter, are illogical and not intelligible to common minds. But we think the difficulty disappears when accompanied with the explanation that an assault of that kind means with the intention to commit such criminal acts as would, when committed, amount to the one crime or the other. It is not to be supposed that any criminal really appreciates in his own mind, when meditating the commission of crime, the exact degree of the offense he may be guilty of, whether murder in the first or second degree or manslaughter, and that can only be determined by-the result of his criminal act.” (p. 275.)
The appellant cites the case of The State v. White, 41 Iowa, 316, in which it was held that an indictment for an assault with intent to commit murder will not sustain a conviction for an assault with intent to commit, manslaughter. The opinion in this case was inadver tently published, contrary to a rule of the court, while a petition for a rehearing was pending. On the rehearing an opposite conclusion was reached. (The State v. White, 45 Iowa, 325.)
In the case of The State v. Moran, 46 Kan. 318, 321, the broad general statement was made, upon the authority of People v. Lilley, 43 Mich. 521, and The State v. White, 41 Iowa, 316, that “where an assault is made by a person with intent to take the life of another, and the killing is not lawful or excusable, if death should ensue, the party would be guilty of murder.” (p. 321.) From what has been said it is perfectly clear that this statement is not true. In the sentence succeeding the one quoted from Moran’s case it was said that if the assault be made with intent to commit murder there can be no conviction of assault with intent to commit manslaughter. Considered as an application of the law to a given state of facts, the statement is true, because there must be malice in murder and can not be malice in manslaughter.
In the case of Williams v. State, 41 Fla. 295, the opinion reads:
“It will readily be perceived by an analysis of the language of these statutes that there is nothing in the definition of manslaughter to exclude from its provisions all intentional homicides, or to include within the definition of murder all intentional killings, unless the intention is so deliberate as to amount to a premeditated design. The ordinary case of a sudden combat, where the passions are aroused by sufficient provocation, will furnish a pertinent illustration. Here there may be an intent to take life, accompanied by an assault with a deadly weapon to carry out that intent. If the intent does not rise to the degree of a premeditated design, the killing will not be murder, but manslaughter. If the act does not result in death, why will not the party be guilty of an assault with intent to commit a felony, to wit, manslaughter? We think he will be, and in this conclusion we are sustained by the following authorities. [Citing cases.]” (p. 299.)
In the case of The State v. Brock, post, p. 167, the opinion reads:
“Andy Brock was charged with assault with a deadly weapon with intent to commit manslaughter, under section 38 of the crimes act, and convicted of assault with intent to commit manslaughter, under section 41 of that act. In his appeal he contends that the judgment of conviction was not warranted by the information, evidence or verdict. The crimes act provides that upon a trial the accused may be found guilty of an offense included in the one charged. Assault with intent to commit manslaughter is included in the charge made against the defendant, and, as to the intent to kill stated in the information, it may be said that there are degrees of manslaughter where an intent to kill may exist. Assault with intent to commit manslaughter, of which the defendant was convicted, is not necessarily inconsistent with the charge of assault with intent to kill.”
The statement that there are degrees of manslaughter where an intent to kill may exist is not entirely adequate. Degrees of manslaughter are statutory only, and not only are there statutory degrees of manslaughter where an intent to kill may exist, but there is also voluntary manslaughter at the common law, which includes such an intent, and which is incorporated in the crimes act by section 27.
The appellant argues that if he were not mentally responsible he was guilty of no crime whatever, and if he were mentally responsible he was guilty of assault with intent to kill, as charged in the information. It is clear that the jury believed he was able to distinguish right from wrong, and so, under the repeated decision of this court, had mental capacity to commit crime; but the jury apparently accepted his testimony that he acted in a transport of passion, caused by seeing Graham invade his home at night and hearing his wife’s story, and apparently accepted his testimony that he was held in the grip of such passion continuously from the time Graham entered the house until the shooting took place. If the jury took this view of the evidence it was very lenient to the appellant, and he is not in a position to complain.
The jury were properly instructed respecting the presumption of innocence and upon the subject of intoxication. Errors in the giving or refusing of instructions relating to other offenses or other degrees included within the main charge are not now material. The uncontrollable-impulse excuse for crime has been rejected so often by this court that it will not be discussed here. Instructions are to be considered together, and the seventeenth instruction does not eliminate the question of the appellant’s sanity. Other errors assigned relating to the giving and refusing of instructions are not of sufficient merit to require a reversal. The finding of the trial court is conclusive upon the question of misconduct on the part of the jury.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
H. A. Paul, of Muskogee, Okla., sent out a circular soliciting business as a shipper of potatoes. The Central Mercantile Company, of Hutchinson, Kan., receiving a copy, wired Paul asking him to quote price on a car. In the course of resulting correspondence he reported in effect that he had two cars of choice stock, and asked for a bank guaranty. Thereupon, at the request of the company, the Citizens’ Bank of Hutchinson, on June 17, 1908, sent a telegram to the Oklahoma State Bank, of Muskogee, reading: “We guarantee draft bill of lading attached, two cars choice potatoes for Central Mercantile Company, H. A. Paul, shipper.” Two days later Paul shipped two cars of potatoes to Hutchinson, and drew upon the company for the agreed price, making two drafts, payable to the Oklahoma State Bank, which he delivered to that bank, with the bill of lading attached. The Oklahoma bank sent the drafts and bill of lading to the Citizens’ bank, with directions to collect and remit. The mercantile company paid the drafts to the Citizens’ bank and received the potatoes. Before the money was remitted the company sued Paul, principally on account of the quantity of dirt found in the potatoes, and served a garnishment summons on the Citizens’ bank. The bank filed an answer, as garnishee, setting out that it still had the proceeds of the drafts, but did not know whether they belonged to Paul or to the Oklahoma bank. The Oklahoma bank was made a party and claimed the fund. The plaintiff, in a reply, maintained that the Oklahoma bank had acted only as the agent of Paul, and also that its conduct made it a guarantor of the quality of the potatoes. Upon the trial the plaintiff was given judgment for $308.42, which was ordered paid out of the proceeds of the drafts. The Oklahoma bank appeals.
Paul testified in substance that in his business of marketing potatoes, not having sufficient capital to make purchases outright himself, he found it necessary for the buyer either to advance him the. money or to furnish him with a bank guaranty by means of which he could procure it, inasmuch as the grower always required payment before shipment; that in the present. instance the Oklahoma bank paid the price of the potatoes to the grower and received in return the two drafts on the mercantile company, with the bill of lading attached; that the bank was the sole owner of the drafts, Paul retaining no interest in them. The testimony of an officer of the Oklahoma bank was to the same effect. There was no evidence to the contrary. Therefore the transaction must be treated as what it appears to have been on its face. The contention that the bank was acting merely as the agent of Paul, and that the proceeds of the drafts belonged in whole or in part to him, is not substantiated. Consequently the plaintiff’s attempt to enforce its claim against Paul by garnishment has failed.
In behalf of the plaintiff the argument is made that the telegram it caused to be sent amounted to a conditional acceptance of the drafts, the condition being that the potatoes covered by the bill of lading should be “choice”; that the rights of the Oklahoma bank are the same as though it were seeking to collect the drafts; that the use of the word “choice” in the telegram prevented it from being an innocent purchaser of them, and that the mercantile company can recover against the Oklahoma bank whatever amount it could have recouped had Paul sued it for the agreed price of the potatoes. 'Whatever effect the word “choice” might have in an action founded upon the telegram, it can have none here. The Oklahoma bank is not suing the Citizens’ bank upon its guarantee or the mercantile company upon an acceptance of the drafts. The drafts have been paid by the mercantile company, the drawee, to the Citizens’ bank as agent for the Oklahoma bank, the payee. No occasion arose to look to the guarantor. The act of the drawee in paying the drafts placed the payee in at least as good a position as though there had been an unqualified acceptance. The situation is the same as though payment had been made to the Oklahoma bank directly. The proceeds of the drafts have become its property as- effectually as though it had their actual possession. The plaintiff can not hold any part of them unless upon a showing that it had a valid cause of action against the Oklahoma bank. Unless the Oklahoma bank was in collusion with Paul, and of that there is no evidence, it conducted an ordinary business transaction in an ordinary way, not being in fault in any respect. We perceive no ground of liability on its part, unless one who purchases and collects a draft with a bill of lading attached is deemed to guarantee the character or quality of the goods shipped. A few cases have so held, but two of the principal ones (Landa v. Lattin Bros., 19 Tex. Civ. App. 246, and Finch v. Gregg, 126 N. C. 176) have been recently overruled. (Blaidsell Co. v. National Bank, 96 Tex. 626; Mason v. Cotton Co., 148 N. C. 492.) The general doctrine to the contrary is well settled. (See notes in 49 L. R. A. 679; 1 L. R. A., n. s., 242; 18 L. R. A., n. s., 1221; 91 Am. St. Rep. 212.) In Hall v. Keller, 64 Kan. 211, it was said:
“If banks in whose favor such bills are drawn are made liable for damage on account of the defective quality of the property shipped, and covered by the bill of lading, ... a serious impediment would be placed in the way of shippers who need a part or all of the price of the commodity sold before its arrival in the market to which it is consigned.” (pp. 215, 216.)
In the plaintiff’s brief it is suggested that because the Oklahoma bank has come into this case and litigated its rights to the money held by the garnishee its situation is the same as though it were suing the mercantile company for the value of the potatoes. We can not agree to this. The bank is not seeking to collect the drafts, but to hold the proceeds which have already been paid to its agent for its benefit. The statute (Code 1909, § 241) provides that where the answer of a garnishee discloses that any other person than the ■defendant claims the indebtedness or property in his hands the court may order the claimant to be made a defendant, and notice to be served upon him. Here the plaintiff made the Oklahoma bank a defendant by so designating it in an amended petition. If the bank entered an appearance without waiting to be served with summons its rights were in no way prejudiced thereby.
The judgment is reversed and the cause remanded, with direction to order the money paid to the Oklahoma State Bank. | [
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The opinion of the court was delivered by
. Benson, J.:
Earl Worth, the plaintiff, alleging that he owned an undivided one-sixth of 200 acres of land by inheritance from his deceased grandmother, Barbara E. Butler, sued for partition. J. T. Butler, one of the defendants, claimed one-half of the land as the surviving husband of Barbara E. Butler. The other defendants, George E. Butler and Minnie Higbee, her sole surviving children, claim to own the land in fee as grantees in instruments which they allege convey 160 acres of the land to George E. Butler and 40 acres thereof to Minnie Higbee. These instruments are dated November 25,1907. Barbara E. Butler died on May 19, 1908. The plaintiff and J. T. Butler are entitled to partition unless the instruments referred to operate as valid conveyances.
Two objections are made to these instruments: (1) That they were never delivered to the grantees, and (2) that they conveyed no interest. The latter objection is based upon the following clause appearing in each deed, after the description and preceding the habendum:
“This deed is executed upon the express agreement and' understanding between the said first and second party that the said first party reserves the right to possession of said premises during her lifetime, also a life lease to said real property, and with the further understanding that if the said grantor, B. E. Butler, desires or requests a reconveyance of the above-described real property from the said grantee, his heirs or assigns, to the said grantor, B. E. Butler, then and in that event the said grantee agrees to reconvey upon notice from said grantor.”
Otherwise the instruments are in the ordinary form of warranty deeds. The argument to sustain the objection is that no estate in preesenti was intended, and. any future estate depended on the will of the grantor, who reserved possession for life and the power to revoke at pleasure. On the other hand, it is contended that the reservation of a life estate does not prevent the immediate vesting of the remainder, subject to the exercise of the right to a reconveyance in the lifetime of the grantor. The question thus presented, in some of its phases, has been the subject of much judicial consideration; but, as delivery must appear before interpretation becomes necessary, that matter will be first considered.
A jury found that the instruments had been delivered to the grantees, and the court, holding that they were valid conveyances, refused partition. The appellants, however, contend that there was no evidence of delivery, and that all the evidence on the subject proves that Barbara E. Butler retained them in her possession and control until her death. Motions to set aside the findings and for a new trial were denied.
Preliminary to a review of the evidence it should be stated that in an action for divorce, brought by Barbara E. Butler against her husband, a judgment was rendered in November, 1906, refusing a divorce but awarding to her the lands in question as her separate property, and ordering her husband to join her in conveyances thereof as she might request. She then occupied the premises as her home, and continued to do so until her death. Her son George and his wife shared the occupancy with her and remain in possession. The instruments in question contain the names of Barbara E. Butler and J. T. Butler as grantors and warrantors, and were drawn in form for execution by both. After they were signed by Mrs. Butler her husband, although requested by letter, refused to execute them, and returned them to her by mail, sometime in the early winter of 1907. In March, 1908, George E. Butler, who was present when his mother signed the deeds, saw them in her possession. Concerning this he testified:
“Ques. Who had them at that time? Ans. Well, they were there in the house.
“Q. Answer the question. A. Did n’t anyone have them when I saw them.
“Q. Where were they? A. In a drawer in the machine — sewing machine.
“Q. Your mother’s machine? A. My wife’s machine.
“Q. They were in the drawer? A. Yes, sir.
“Q. Who called your attention to them? A. My mother.”
Eeferring to the same matter, he testified that he came home from Oklahoma in March, 1908, and further:
“Ques. She kept them and said nothing to you about them from the 4th day of. December, 1907, until sometime in March, 1908? Ans. She wrote to me about them.
“Q. Have you got the letter she wrote to you? A. No, sir; I have n’t.
“Q. You have not? A. No, sir.
“Q. Then from March she kept the deeds up to the 2d of May, 1908, when she gave them to you? A. She showed them to me when I first came home.
“Q. And she gave them to you on the 2d of May, and told you to see an attorney and bring an action to have Mr. .Butler sign them? A. Yes, sir.
“Q. And when did you see an attorney? A. On the same day I went to Belleville and seen Mr. Alexander.
“Q. She gave you these deeds for the purpose of having you go to an attorney for her and have this matter brought up in court? A. Yes, sir.
“Q. She did n’t give them to you for any other purpose? A. She did n’t say-so; she gave them to me and only told me to go and see an attorney.
“Q. For her, or for you ? A. For her.
“Q. For her? A. Yes, sir.
“Q. In this matter you were simply acting as her agent; is that right? A. Yes, sir.’-’
The witness then testified that he took the deeds to Lebanon, where his father then was, and gave them to a notary to be presented for his father’s signature; that the notary returned the deeds unsigned, and the witness then gave them back to his mother. He further testified:
“Ques. She was buried on the 20th day of May? Ans. Yes, sir.
“Q. At the time she was taken sick in her last illness, who was at home at that time? Were you? A. Yes, sir.
“Q. Who else? A. My wife and family.
“Q. You were living in the same house with her? A. Yes, sir.
“Q. After your mother’s death, did you find these papers among her effects? A. Found them in a box in the bedroom.
“Q. And gave them to your attorney, Mr. Alexander? A. Yes, sir.”
Mrs. Higbee, grantee in one of the instruments, testi fied.that she never saw the deeds until after the death of her mother, when she saw them in the possession of her brother, George, but that she had heard her mother say about two weeks before her death that she had sent them to Mr. J. T. Butler and that he would not sign them.
Mrs. George E. Butler testified:
“Ques. Was there a sewing machine at your house? Ans. Yes, sir.
“Q. Who owned it? A. It was mine.
“Q. Where was it kept? A. In the bedroom; in my room.
“Q. At any time did you see Barbara E. Butler put .some deeds in the drawer of this machine, or did she have you put them? A. She had me put them in the drawer of the machine.
“Q. What did she say at the time? A. She said for. me to take care of them; that they were deeds.
“Q. Did you find them there' after her death? A. Yes, sir.
“Q. What did you do after you found them? A. I gave them to Mr. Butler.
“Q. That is, your husband? A. Yes, sir.
“Q. What was done at the time she gave you those deeds and told you to take care of them? A. You mean she told me to put them in the machine drawer?
“Q. Yes. A. Well, she brought the deeds in from the mail, and they were in an envelope, and she says ‘these are the deeds,’ and she told me to put them in the machine drawer.
“Q. And you put them in the machine drawer? A. Yes, sir.
“Q. And that was all that was said and all that was done? A. Yes, sir.
“Q. And that is all that you know about them being-in there? A. Yes, sir.
“Q. You don’t know whether it was after she died or before? A. No.
“Q. What is your best recollection? Was it before or after? A. Before, I believe.
“Q. You say now you went to the sewing machine and got them before her death? A. I said I did n’t say it was before, but I think it was.
“Q. How long before? A. Well, I don’t know how long.”
It will be noticed that George E. Butler testified that he found the deeds in a box in his mother’s room after her death, and that his wife at first testified that she took them from the machine drawer after the mother’s death, but afterward said that she believed it was before the mother’s death. No irreconcilable conflict appears here, for George E. Butler said that in March his mother showed him the deeds and that they were then in the machine drawer. It appears that they were taken by him to Lebanon early in May, and then returned to his mother. This is consistent with the fact that they were found in her box after her death.
The testimony of neither witness proves or tends to prove a delivery. That of George E. Butler clearly indicates that his mother at all times had the control and dominion of the papers and was giving directions with a view of procuring her husband’s signature, evidently considering them incomplete without it. The son caused an attachment to issue against his father to compel him to sign the papers, commencing the proceeding six days after his mother’s.death. This would indicate that such proceeding was contemplated by her, resulting from the legal advice she had, as he testified, directed him to obtain. She died rather suddenly, leaving the instruments still incomplete. The testimony of Mrs. George E. Butler fails to show any delivery or attempted delivery. The papers came in from the mail; mother and daughter-in-law were members of the same household; the younger woman was asked to put them away, and the machine drawer was made the receptacle. She was given no order, direction or authority as custodian. If she took them out before the mother’s death and gave them to her husband, it was not a valid delivery, for the consent of the grantor had not been given. If she took them out after the grantor’s death, she had no authority to deliver them to the grantees.
There is some additional evidence that it is claimed bears upon this question of delivery. The assessor testified that in the spring of 1908 Barbara E. Butler told him to assess the place — referring to this land — to her or in her name. Neighbors testified that shortly before her death she told them that she had deeded the place to her son and daughter; 160 acres to the former, and 40 acres to the latter. It is true she had signed and acknowledged the instruments, and upon some issues the testimony might be important; but here the facts are stated by one of the grantees himself and by his wife, relating just what the grantor did, and showing the disposition made of the instruments, from which it clearly appears that no delivery was made.
The appellees rely on Wuester v. Folin, 60 Kan. 334. In that case it was held:
“Before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor.” (Syllabus.)
It is true that it was also said that “an unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to devest himself of the title and to part with all control over the instrument, is ordinarily a sufficient delivery” (syllabus) , but here there is no evidence of any delivery to a third person for the use or benefit of the grantees. Mrs. George E. Butler, when told to put the papers in the drawer, was not made a custodian for the grantees, nor given any charge concerning the papers except to put them away as directed. There is no evidence that George E. Butler was given any custody or other authority over them except to consult an attorney and have them executed by his father. That he so understood it is shown by the fact that he returned them to his mother.
While delivery is largely a matter of intention, still it must appear, as stated in Wuester v. Folin, supra, that the deeds have passed beyond the control of the grantor. In this casé it distinctly appears that they had not. The grantor was exercising an active control over them a few days before her death, and they were still under her dominion and in her possession when 'death came. Whether she would- have delivered them had she lived and been finally convinced that her husband would not join or could not be made to join in their execution we may never know: The fact that her purpose was to deliver the instruments if he signed them does not prove that she would have done so if his signature could not have been obtained. And if it should be supposed that she intended to deliver the deeds in the future, whether he united with her or not, that would not prevent her from changing her purpose at any time before the delivery was made. But all this is elementary. It would be a dangerous precedent to hold that a delivery is shown by the' evidence in this case. As there was no delivery of the instruments, an interpretation of their terms will not be attempted..
A question of practice is presented. There is no dispute concerning the interests of the respective parties, if the alleged conveyances are held inoperative. The question of delivery has been fully tried. .Upon undisputed» facts, appearing from the evidence given principally by the parties claiming under the instruments, they are inoperative for want of delivery. There was no accident or surprise, nor any ruling that led the parties opposing partition to withhold evidence; all facts appear to be' fully presented, leaving only a question of law to be decided. Section 581 of the code of 1909. provides that the supreme court shall “render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to tech nical errors and irregularities in the proceedings of the-trial court.” The former code (§ 559) provided:
“In cases decided by the supreme court, when the facts are agreed to by" the parties, or found by the-court below or a referee, and when it does not appear by exception or otherwise that such findings are against, the evidence in the case, the supreme court shall send a mandate to the court below directing it to render such judgment in the premises as it should have rendered on the facts agreed to or found in the case.”' (Gen. Stat. 1901, § 5045.)
It was generally held that under this provision judgments could be ordered by this court only when the facts had been agreed to or found. The omission in section 594 of the code of 1909 of that part of the old section quoted above indicates _an intention to give the-court power to order the proper judgment when it can be done in furtherance of justice and without the denial of legal rights. Section 307 of the code of 1909, providing for new trials upon the order of a district court,, directs that “a new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion -for a new trial the court shall be of the opinion that the verdict, or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such-issues are separable.” The provisions of the revised code to which reference has been made indicate the-legislative purpose to expedite procedure, and avoid' new trials of an issue once fairly tried after a sufficient opportunity to present the case, where a proper-judgment has been rendered or may be ordered. No-reason appears why an issue fully and fairly tried should be retried when the facts clearly appear upon the hearing in this court, although shown by evidence-instead of findings.
The judgment is reversed, with directions to enter judgment for partition among the parties according to their respective interests, unaffected by the instruments referred to, which are held to be inoperative for lack of delivery. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action for damages. It comes here by appeal from the district court of Cowley county. It has been here before. (Latham, v. Harrod, 71 Kan. 565, Harrod v. Latham, 77 Kan. 466.) The Latham Mercantile and Commercial Company, located at Latham, Butler county, desired insurance upon its stock, of merchandise in the sum of $2000. It applied to the: appellants, who were insurance agents located at Win-field, in Cowley county, and employed them to procure such insurance in a “number one” company, which they undertook to do. Afterward they obtained a policy for the desired amount from the Mercantile Fire. Insurance-Company of Chicago and delivered it to the appellee, which paid the premium therefor believing the company to be safe and sound. Within, a month thereáfter the-insured property was destroyed by fire, and the policy was not paid. Afterward the insured obtained a judgment against the company, but it proved to be insolvent and no part of the judgment was collected. Th& insured relied upon its agents to secure a policy in a. good company, and did not know the condition of the company from which its policy had been obtained. Being unable to collect from the insurance- company, the insured commenced this action against the' agents to recover damages for their failure and negligence in the procurement of the policy.
Upon the trial in the district court the damages awarded by the jury were the value of the goods destroyed, less the amount of concurrent insurance thereon. The damages so awarded amounted to $1200, with interest thereon in the sum of $504. These amounts were found by the jury separately. The appellants requested the court to enter judgment for the value of the property alone, and not include interest, as the claim was for unliquidated damages, which under the law of this state could not bear interest. The court, however, denied this request and directed the jury to allow interest in addition to the value of the property destroyed. To this refusal of the court the appellants excepted, and assign it as error.
The court’s decision is not without authority. ' In fact it is claimed that the majority of the cases sustain its ruling. (22 Cyc. 1500; 16 A. & E. Encycl. of L. 1027; see, also, note in 1 A. & E. Ann. Cas. 763.) This court, however, more than twenty-five years ago, in the case of A. T. & S. F. Rld. Co. v. Gabbert, 34 Kan. 132, held that interest was not recoverable in a case for damages where not provided by statute. This decision has been followed ever since. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176; U. P. Rld. Co. v. Holmes, 68 Kan. 810; Telephone Co. v. Vandervort, 71 Kan. 101. See, also, Lester v. Mining Co., 27 Utah, 470, in 1 A. & E. Ann. Cas. 761, where in a note the cases generally are collated upon this subject.) Since this rule has been the settled law of this state for so many years, we deem it best to follow it until the legislature otherwise directs by statute.
The judgment of the district court is modified, and the court is directed to enter a judgment in favor of the ■ appellee for the value of the property, $1200, and costs, ■omitting the amount of interest, $504.
The costs in this court are divided. | [
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The opinion of the court was delivered by
Mason, J.:
The city of Kansas City, Kan., was about to issue bonds to the amount of $100,000 for the purpose of improving its waterworks, and to the amount of $83,000 for the erection of a city hall, when an injunction was asked in the name of the state restraining such issuance as being forbidden by the statute (Laws 1909, ch. 62, § 6, Gen. Stat. 1909, § 1069) limiting the city’s bonded debt to five per cent of the assessed value of the property subject to taxation. An injunction was refused, and the state appeals.
The statute cited, so far as here important, reads:
“At no time shall the bonded indebtedness of any city of the first class having a population of fifty thousand or more, except for bonds issued for special improvements and for sewers, for which a special tax is levied upon the property improved, exceed five per cent of the • assessed value of all the taxable property within said city, as shown by the assessment books of the previous year.”
The value of the city assessment roll for 1909 was $71,341,895, so that the limit of the general bonded indebtedness is $3,567,094.75. The amount of bonds outstanding is already slightly in excess of this, being $3,569,970.43. The waterworks bonds, however, are sought to be issued under a statute which contains this provision:
“None of the restrictions and limitations respecting the amount of city indebtedness contained in any of the statutes of the state of Kansas shall apply to or in any way affect the issuance of the bonds authorized by this act.” (Laws 1908, ch. 33, § 16, Gen. Stat. 1909, § 1204.)
The appellant argues that this section should not control because it was enacted in 1908, while the statute imposing the limitation was passed in 1909. The act of 1909, however, was merely an amendment of an earlier act, which it changed in no respect except by reducing the percentage named- — a change plainly occasioned by the adoption of a new method of assessment by which assessed values were expected to be, and in fact were, greatly increased. Obviously the legislature had no intention of applying the limitation to any class of bonds that had previously been exempt from its operation.
“The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. 1868, ch. 104, § 1, subdiv. 1, Gen. Stat. 1909, § 9037, subdiv. 1.)
“In case a statute is reenacted and some of the provisions of the old law are omitted from, the new, this constitutes a repeal of the omitted provisions, but the reenacted provisions are to be read as part of the earlier statute and not of the reenacted one, if they conflict with another statute passed after the first but before the last act; and therefore they do not repeal by implication the intermediate act.” (26 A. & E. Encycl. of L. 735.)
“A later law, which is merely a reenactment of a former, does not repeal an intermediate act which qualifies or limits the first one, but such intermediate act will be deemed to remain in force, and to qualify or modify the new act in the same manner as it did the first.” (Gaston v. Merriam, 33 Minn. 271, 283.)
Inasmuch as the statute is still in force which permits waterworks bonds to be issued regardless of the amount of bonded debt already outstanding, no objection appears to the issuance of further bonds of that character.
The question whether the city may rightfully issue new bonds for the erection of a city hall is more difficult. According to the letter of the statute such action is forbidden, for the total bonded debt now outstanding already exceeds five per cent of the assessment roll. But it is claimed that in ascertaining whether the statutory limit has been reached waterworks bonds should be excluded. The statute does not say this in terms, but such is claimed to be the combined effect of the two acts. The argument is that the legislature, having opened a way for the city to issue bonds for waterworks after having created a bonded debt amounting to five per cent of the value of the taxable property, must have intended to give it a uniform capacity to incur an indebtedness of that amount for other purposes. Essentially similar provisions have been given that construction. (Los Angeles v. Hance, 137 Cal. 490; Stone v. City of Chicago, 207 Ill. 492; Austin v. Seattle, 2 Wash. 667; Faulkner v. Seattle, 19 Wash. 320; Graham v. Spokane, 19 Wash. 447.) In the California case cited the city charter provided that:
“The indebtedness of said city must not exceed, in the aggregate, the sum of $2,000,000; . . . provided, that for the purpose of acquiring and establishing a system of waterworks . . . or of . . . sewage . ' . . a further indebtedness may be incurred.” (p. 491.)
The court said:
“We think it clear that under this section the limitation of indebtedness to $2,000,000 includes only indebtedness for general purposes other than for acquiring and constructing waterworks and a system of sewerage ; and that when, at any time, the question of such limitation is to be determined no former indebtedness for water or sewage is to be considered.” (p. 491.)
In a note by Mr. Farnham on a related subject it is said:
“The limitations are put upon municipal indebtedness as a check upon the enthusiasm often excited by an aggressive campaign for public improvements, or to protect the taxpayer against the effect of his apathy in failing to protest against a proposed contract about to be entered into by the municipal authorities. The limitation . . . should be strictly construed, so as not to impose any more restriction than is necessary. And such has been the policy of the courts.” (59 L. R. A. 607.)
The contrary view is taken in State ex rel. v. Wilder, 197 Mo. 1, and in Adams v. East River Savings Institution, 65 Hun [72 N. Y. Supr. Ct.] 145. In the Missouri case the court held that notwithstanding an amendment permitting a city, for the purpose of procuring waterworks, to become indebted beyond the limit imposed by the constitution, such indebtedness should be counted in ascertaining whether such limit had been reached. Three of the seven justices, however, dissented, saying:
“The purpose — the main purpose — the only purpose of the amendment . . . was to increase the taxing power of the cities embraced in its terms to enable them to own their waterworks and lighting plants; that is what the general assembly had in mind when it proposed the amendment and it is what the people had in mind when they adopted it. The conferring of taxing power was the dominant thought in the amendment, the order in which the city might incur its obligations was overlooked, was not thought of, it was of no importance and at most it can now be deemed as an acci dent of only secondary consideration, yet if we should adopt the strict literal construction conténded for by the respondent we would allow the altogether unimportant accidental fact to defeat the main purpose of the amendment. This would be misconstruction.” (p. 13.)
It is not necessary at this time to decide whether ordinarily waterworks bonds should be counted in estimating the debt of Kansas City for the purpose of applying the five per cent limitation of the act of 1909. Because of the special circumstances out of which the present case has arisen it may be decided without determining that question. On November 2, 1909, at an election held for that purpose, .thirty-year bonds to the amount of $200,000 were voted for the erection of a city hall. On July 1, 1910, an ordinance was passed for their issuance, which provided that they should bear that date and draw interest from that time. Under this authority bonds have already been issued to the amount of $117,000, and it is the remainder of $83,000 which is now in controversy. ' When this ordinance was passed the total bonded debt was $3,052,970.43, or $514,124.32 less than five per cent of the value of the property subject to taxation, so that the power of the city to create the new debt was then unassailable, and if the bonds had been at once executed and sold no point could have been made against them. But' on July 14, 1910, another ordinance was passed authorizing a $500,000 issue of waterworks bonds, in accordance with an election which had been held on March 10, 1910, such bonds also to be-dated July 1, 1910, and to run thirty years. Of this amount $400,000 has already been executed, and this, if it is to be counted for that purpose, when added to the $117,000 of city-hall bonds bearing the same date, exhausts the debt-making capacity of the city, thereby preventing it from issuing any more bonds excepting for waterworks. This statement of the situation makes it clear that, whatever the general rule may be, these particular waterworks bonds ought not to be taken into account in determining the power of the city to sell these particular citydiall bonds. The city-hall bonds were the first voted and the first authorized by ordinance. No question could have arisen concerning them had it not been for the circumstance that in the actual marketing of the securities those subsequently authorized were disposed of a little more rapidly than the others. Possibly the bonds may be-deemed to have been “issued,” for the purposes of the statute involved, on the first of July. Such a construction accords with one of the recognized uses of the term. (Gage v. McCord, 5 Ariz. 227, 233; Yesler v. Seattle, 1 Wash. 308, 322.) But even treating the bonds as issued only when they are executed and sold, we think the right of the city to complete the transaction it has undertaken is clear. It had the unquestioned power on July 1 to issue both the $500,000 of waterworks bonds and the $200,000 of city-hall bonds, by making the latter prior in time. In this situation, if both sets of bonds had been issued upon the same day the spirit of the law would not have been violated, and all would have been valid. Only by an unwarrantable adherence to the bare letter of the statute could any objection have been made to them. Inasmuch as the city-hall bonds were first voted and first authorized, and were presumably sold in the ordinary course of business as the funds were needed in the progress of the improvement to pay for which they were issued, under a fair and reasonable interpretation of the statute their issuance must be regarded as legal, because it was practically contemporaneous with that of the waterworks bonds, which bore the same date and matured at the same time.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is an original proceeding in this, c.ourt for a writ of mandamus to compel the state-auditor to issue a warrant in favor of the Ingleside Association for Aged Women, in the sum of $400, that, amount having been appropriated by section 2 of' chapter 1 of the Laws of 1909 for the benefit of such. association. An alternative writ was issued, from which the following facts are taken:
The Ingleside Association is and has been an eleemosynary corporation, duly created under the laws of this state, and has been engaged in conducting a charitable institution at Topeka. The special line of charitable work which this association does is to furnish a permanent Christian home for homeless and aged women, and a temporary home for women seeking employment. To enter this home as a permanent resident, the woman must be not less than sixty-five years of age, and pay an admission fee of $300, which is the total amount required during her life.
It is estimated that such women may be expected to live between eleven and twelve years, or until seventy-six or seventy-seven years of age. Should they live ten years the sum of $300, paid for admission, would amount to less than fifty-eight cents each per week toward paying their expenses. From this it will be seen that the home is not maintained for the profit derived therefrom.
All the appointments and conveniences of a modern home are supplied to the inmates. Needy women are supplied with temporary homes when necessary. It is managed by a board of directors, composed of women who belong to the association and give their time and labor without compensation. The association depends to some extent upon contributions from persons who are charitably inclined. Shawnee county contributes the sum of $35.53 monthly. One of the conditions of admission as an inmate is that the applicant must not have relatives legally liable for her maintenance who are able to provide for her. The admission fee is not always required.
The principal objection urged by the auditor against the payment of this appropriation is that it is using public money provided by taxation for a purpose not public. To define what constitutes a public purpose for which a tax may be lawfully imposed is a task of some difficulty. In the case of State ex rel. New Richmond v. Davidson, 114 Wis. 563, the supreme court of Wisconsin approved the following quotation:
“To justify a court in declaring a tax void, and arresting proceedings for its collection, the absence of all possible public interest in the purposes for which the funds are raised must be so clear and palpable as to be immediately perceptible to every mind. Claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax. Broadhead et al. v. The City of Milwaukee et al., 19 Wis. 624, syllabus.” (p. 578.)
This rule is in harmony with the decisions of this court as to when and under what circumstances a legislative enactment of this character should be declared unconstitutional. (State of Kansas, ex rel. Crawford, v. Robinson and others, 1 Kan. 17; Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148; The State, ex rel., v. Hunter, 38 Kan. 578.) Applying this rule to the act in question, we are unable to say that it is invalid. It seems to us that the protection and comfort of aged women who are homeless and without means or near relatives able to provide them with subsistence is a matter of general public concern — a charity which will be regarded with universal favor.
The inmates are not received from any specified territory. The association is in no sense local. It is open to the state, so far as its capacity will permit. It is recognized by the state as a deserving charitable institution and worthy of public support, and the state board of control has issued a certificate to that effect. The inmates can be much better cared for in such an association than in one large enough to accommodate the entire state, and where employees are supplied by the state. This association is cared for and supplied and managed by women who devote their time and attention thereto without compensation, and solely for the sake of bestowing charity upon worthy and appre dative people, for whom they entertain a lively and kindly sympathy. It is not contemplated by the policy of this state that its charities shall be directly administered by the state itself, but, on the contrary, section 1 of article 7 of the constitution provides that charitable institutions shall be fostered and supported by the state, etc. The section reads:
“Institutions for the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by law. Trustees of such benevolent institutions as may be hereafter created shall be appointed by the governor, by and with the advice and consent of the senate.”
To make the appropriation in question conform fully to this constitutional provision, the same legislature in the same law provided as follows:
“All private institutions of the state of a charitable nature, which shall receive state aid, shall be subject to the same visitation, inspection and supervision by the board of control of state charitable institutions as are the public charitable institutions of this state. And it shall be the duty of the said board of control to pass annually upon the fitness of every such institution, and every such institution shall annually, at such time as said board of control shall direct, make report thereto, showing its condition, management and competency to adequately care for its inmates or patients, and such other facts as said board may require.” (Laws 1909, ch. 1, § 1, Gen. Stat. 1909, § 7978.)
Under these laws this association is recognized as a charitable institution worthy of the fostering care of' the state; and the small sum provided by this appropriation is not entitled to be dignified by a suggestion that the state is supporting this association, but it is sufficient to denominate it as a small sum given to' foster and aid a worthy charitable enterprise. We are unable to see wherein this appropriation can be fairly criticized. It carries out the constitutional provision. that the state shall foster such benevolent institutions as the public good may require. The state has investigated, through its proper officials, and found the association to be worthy of assistance. The appropriation is one which seems to be proper and commendable.The auditor should issue the warrant.
The writ is allowed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
O. B. Stovall brought an action against the appellant to recover damages for running an engine upon and killing a mare, of his which had escaped from his pasture and gone upon the track of the railway company. The negligence alleged was that the railway company failed to inclose its road with a. lawful fence, and upon that ground a recovery was had. The following diagram illustrates the situation at appellee’s farm, through which the railroad runs:
At the south end of the lane there was water for •appellee’s stock. On the north end was a private crossing leading to his land on the other side of the track. Upon the left side of the lane was his pasture, and on the right his alfalfa field. As the diagram shows, there is a slight divergence of the railroad fence at the north end of the lane, with three gates, arranged for the convenience of the landowner and furnishing a passageway from one field to another and from the lane to either field, as well as to the private crossing. "The fence on the south side of the railroad, except where the divergence occurs, is legal and sufficient, and the bend in the fence at the end of the lane is only fifteen feet south of the right of way of the railroad, but it returns to the true line of the right of way after passing a distance of about thirty feet. With the gates ■closed the fence is complete on the south side of the “track, and except for this slight departure from the right of way is such a fence as the law requires. The appellant does not know who originally built the fence ■and erected the gates around this irregular piece of ground, but it had been there about nine years, and it was clear from the testimony that it was built and maintained in this way for the convenience and benefit of the landowner and to enable him to use this short strip of land, about fifteen feet wide, as a passageway to his fields and to the crossing. Now, the only wrong that is ■ attributed to the railroad company by the appellee is its failure to perform its statutory duty of fencing its road through appellee’s farm, through which the mare entered upon the road. A gate was found to be open, through which the mare probably passed, but no attempt was made to prove that the railway company was responsible for the opening of the gate. These gates, too, come up to the requirements of the law and are provided with secure fastenings: The act which makes the railway company liable for animals killed or wounded by the operation of its engines or cars specifically provides that it shall not apply to a railway company whose railroad is inclosed with a good and lawful fence. In this instance there was a practical inclosure of the railroad by a good and lawful fence. Ordinarily a railway company would have .no right to put its fence upon the land of an adjoining owner, but if it deviates a little from the line of the right of way and builds its fence there, with the consent of the landowner, it could hardly be said that the road was unfenced; and where, for the convenience of such owner, there is a slight departure of the fence from the true line, and it is built and connected with that of the railway company, so that it forms a continuous fence, as in this case, the landowner at least can not well insist that the railway company has violated its statutory duty or make that alone the basis of a charge of negligence. No other ground of negligence having been alleged or proved, appellee was not entitled to recover.
The judgment is therefore reversed, and the cause remanded with directions to sustain appellant’s demurrer to the evidence of appellee. | [
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Per Curiam:
The sole ground of this appeal from a conviction for selling intoxicating liquor in violation of law is that the evidence does not sustain the verdict. After reading the evidence set out in the abstracts, it is found to be sufficient. It is unnecessary to repeat it here.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by R. C. Johnston to recover damages for the encroachment upon his land, and the removal of the lateral support thereto. caused by the digging of a ditch on his own land by the defendant, Charles Hyre, near the boundary line of two quarter sections of land owned respectively by each party. The two sections have been owned as above stated continuously since before the digging of the ditch complained of. Tracts 1, 2, 3 and 4 have been owned by. the plaintiff, and tract 5 by the defendant, as shown upon the subj oined plat:
To the southward of tract 4 is a range of hills, from which for forty years and more, in times of heavy rains or melting snows, there has been discharged quite a large volume of water, through a high-banked watercourse, upon tract 4. At such times the water spreads out considerably over tract 4, the corner of tract 3, to a greater extent upon tract 5, and to some extent upon the southern part of tract 1, where it joins a water course flowing across the western part of tract 5, across tract 1, and finally emptying into the Wakarusa river.
It is contended by the plaintiff that there was a well-defined watercourse across each of these tracts. The court found that this was not true as to a portion of tract 4 and the greater part of tract 5. .But we regard this as rather immaterial. It is undisputed that the water in flood times passed across the lands as above indicated. It is also true that portions of the four tracts of land were marshy, and the water at times spread out over such portions.
Sometime between 1890 and 1893 Hyre dug on his own land the ditches marked A and B. About 1893 or 1894 he dug the ditches marked C and D, extending parallel to and about ten feet distant from his east and north lines, respectively, and closed up ditches A and B.
When first dug, ditches C and D were about three feet deep and six or seven feet wide at the top. At the commencement of this action the ditch along the east line of Hyre’s land was six or seven feet deep, and at places forty to fifty feet wide. Some of the plaintiff’s land had caved in and was washed away by reason of this ditch, and a portion also of the hedge along the plaintiff’s west line was undermined.
Tract 3 is considerably higher than tract 5, to which it gradually slopes.
Next to the hedge, and parallel to ditch 'C, the plaintiff had a roadway. The water falling upon tract 3, upon which furrows had been plowed east and west, evidently to facilitate the drainage thereof, followed the furrows to the roadway, and then down the roadway, to the injury thereof, finally escaping over the roadway and through the hedge into the ditch. To remedy this the plaintiff caused a tiling to be placed under and across the roadway.
Sometime after the digging of ditches C and D the plaintiff and the defendant joined in constructing ditch E, on tract 1 of the plaintiff’s land. This ditch had the effect of giving greater rapidity to the flow of water from ditches C and D, and of. discharging it more rapidly into the watercourse leading to the Wakarusa.
The court also found that a year or two before the bringing of the action the plaintiff constructed on his. tracts 3 and 4 ditch F, which had the effect of gathering up the water which theretofore had spread out to a considerable extent on these lands and of throwing it into ditch C.
The foregoing is an abstract of the findings made by the court, as to some of which the evidence is conflicting, and as to others of which there is little evidence, except that the lay of the land as described by all of the witnesses corroborates the findings of the court.
The case was tried in 1908, and the court found that the evidence showed no damage to the plaintiff’s land by the water flowing through ditch C until about four years before the trial, and that altogether the plaintiff had been damaged in the sum of $250; that about one-half of the damage had occurred within two years prior to the filing of the petition; that the plaintiff would have been entitled to recover $125 damages for the maintenance of ditch C, which had become a nuisance, had not the plaintiff by his conduct contributed to the injury; and it also found that it was impossible to apportion the amount of injury caused by the action of the defendant and that caused by the plaintiff; that by reason thereof the plaintiff was entitled to recover nothing, and judgment was rendered against him for costs.
It being undisputed that the flood waters spread out over a considerable portion of tract 4, the corner of tract 3, across tract 5, and somewhat upon tract 1, and that portions of those tracts were marshy and wet, it seems quite immaterial, even if the evidence was undisputed, that there was originally something of a .marked watercourse across all of these tracts. It is unquestioned that Hyre had the right to dig ditches A and B on his own land, even if there was a watercourse, provided he returned the water to the natural channel upon his own land, as it is undisputed that he did.
It is also unquestioned that he had the right to close up ditches A and B and dig ditches C and D upon his ■own land, so long as it did no damage to the land of the plaintiff; and it is likewise unquestioned that in time ditch C resulted in considerable damage to the plaintiff and became a nuisance.
If the defendant alone was responsible for this injury the plaintiff was entitled to recover for the damages occurring from the continuing trespass within two years prior to the beginning of the action. It is equally clear that if the plaintiff materially contributed to the injury which resulted to his land, and that the resulting damage from his acts and those of the defendant were impossible of apportionment, he is entitled to recover nothing. The plaintiff had a right to maintain this roadway upon his own land, and to .furrow his land for the purpose of draining it, unless in so doing he accumulated the surface water and cast it in a volume into the ditch, which resulted, as the -evidence shows it did, in carrying away a V-shaped block of his own land and casting it into the ditch.
The injury caused by the action of the water flowing through ditches C and D is proportionate in some degree to the volume of water and the rapidity of the flow thereof through those ditches, and it is evident that the opening of ditch E, which was done by the plaintiff and the defendant jointly, permitted the freer escape of the water from ditch D, and increased the rapidity of the flow through both ditches C and D. It is also apparent that the making of ditch F, which the plaintiff had a right to make upon his own land, assembled or gathered up the water which naturally spread out over these lands, cast it into ditch C, and contributed to the injury complained of.
It is said that the water from ditch F was discharged into the old watercourse, but, as shown by the plat, ditch C had extended southward from the old watercourse, and of course carried the water northward along that ditch. The effect must have been apparent to the plaintiff when ditch F was dug; and it is also apparent that if ditch C had not been constructed prior to the digging of ditch F the water assembled therein would have been cast upon the defendant’s land in a volume, and the plaintiff would have been responsible to the defendant for any injury caused thereby. The plaintiff evidently constructed ditch F with full understanding as to where the,-water assembled thereby would go, and he can not complain if it injured his own land instead of the land of the defendant.
There seems to be no controverted proposition of law in the case, and little conflict in the evidence. The propositions of law have been so uniformly decided in accordance with the views of the court below that we have deemed it unnecessary to cite even the authorities suggested.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The only question presented for consideration is whether the failure of appellant to have the lease in question recorded within ninety days after its execution and to have the property listed for taxation renders the lease null and void. The trial ■court, it is stated, held that the lease was void for noncompliance with section 1 of chapter 244 of the Laws •of 1897 (Gen. Stat. 1909, § 9334), which reads:
• “That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or ■artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves; provided, that when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.”
This provision has been interpreted and its validity upheld. (Mining Co. v. Crawford County, 71 Kan. 276; Gas Co. v. Neosho County, 75 Kan. 335.) It is argued that the act was only intended to apply to solid minerals, such as coal, lead and zinc, and that because' of their peculiar attributes oil and gas are not capable of ownership in place and can not have been within the-legislative purpose. The terms of the act are broad enough to embrace minerals of every kind, and it is well settled that oil and gas, although fugitive fluids, are minerals. (Zinc Co. v. Freeman, 68 Kan. 691; Murray v. Allred, 100 Tenn. 100.) It has also been determined that although oil and gas in place are a part of the realty, the stratum in which they are found is capable of severance, and by an appropriate writing the owner of the land may.transfer the stratum containing oil and gas to another. Such party acquires an estate in and title to the stratum of oil ,and gas, and thereafter it becomes the subject of taxation, encumbrance or conveyance. (Kurt v. Lanyon, 72 Kan. 60; Moore v. Griffin, 72 Kan. 164; Barrett v. Coal Co., 70 Kan. 649; Chartiers Block Coal Co., Appellant, v. Mellon, 152 Pa. St. 286.)
It being competent for an owner of land, by contract or conveyance, to sever an underlying layer or stratum of oil or gas from other parts of the land and thus vest, the title of the layer in another, there remains the question whether the writing executed by Henry Carbon is. sufficient to accomplish a severance of the mineral from the remainder of the land. The ordinary agreement, giving the lessee the right to enter and explore for oil and gas and to sever and own any that may be found* paying a royalty to the owner of the land, is a license* which does not operate as a severance of the minerals. In Gas Co. v. Neosho County, 75 Kan. 335, the act providing for taxing separate mineral interests in lands, was considered, and it was there pointed out that a. lease of the type just mentioned grants no estate, gives, no title, does not operate to sever the oil and gas from the land, and is therefore not separately taxable to the lessee. On the other hand, attention is called to an other class of writings which do transfer an estate in the mineral and operate to sever the ownership of the oil and gas from the ownership of the surface. It will be observed that the lease in question gives more than a license, more than an incorporeal hereditament. It “grants, conveys and warrants unto Robert Fleming, second party, his heirs, successors and assigns, all the oil, coal and gas in and under the following described premises.” In connection with the grant the right is given to enter and use the surface so far as may be necessary for the second party to avail himself of the use and benefit of the part conveyed. The consideration was a certain quantity of the coal and oil produced and a certain amount annually for each gas well used, together with gas sufficient to supply the residence of the grantor. In another paragraph of the instrument provision is made for the reconveyance of the premises by the second party, it being stipulated that if no well is drilled within ten years he shall reconvey the property to the first party, and when this is done the instrument first made shall be null and void. There is also a provision that the first party reserves to himself oil and gas for his own use on the premises for domestic purposes. The language of the instrument is manifestly that of a grant, and not of a license. It purports to convey all of the coal, oil and gas underneath the tract of land, instead of a privilege, or license, to prospect for and to sever and own so much of it as the lessee might find. It transfers at once, and makes him the owner of, the minerals under this tract of land- — a very different thing from giving him the right to prospect and to own only that which he finds and brings to the surface. The character of the instrument is indicated to some extent by the fact that the grant, together with the accompanying rights and privileges, was extended to the heirs, successors and assigns of the grantee. Then there is the reservation of oil and gas for domestic purposes, by which the grantor proceeds on the theory that he is taking back something out of that which was granted and which would have passed to the grantee but for the reservation. The name by which the writing is designated is not a matter of great consequence, as what is called a lease may as effectually transfer the minerals underneath a tract of land as a more formal instrument of conveyance. A severance, such as the statute in question contemplates, may be made by an exception or reservation in a deed, or by an express grant in any other instrument.
In Sanderson v. Scranton, 105 Pa. St. 469, where there was an agreement by an owner leasing all of the coal under the surface of land and providing that a certain quantity should be mined by the lessee each year, that monthly payments should be made by the lessee in proportion to the quantity mined, and extending the rights and privileges conferred by the lease to the heirs, executors, administrators and assigns, it was held “that this agreement was not merely a license or lease to mine coal to become the lessee’s when mined, but it operated as such a severance of the surface and subjacent strata, and a sale or assignment of the coal in place, as would relieve the owner of the surface from responsibility for taxes levied upon the coal.” (Syllabus. See, also, Peterson v. Hall, 57 W. Va. 535.)
We see no difference in applying the act to cases such as this, where the underlying strata of land have become vested in different owners. Counsel for appellant say the lease or reserve must be taxed, if at all, as personal property, and suggest difficulties in determining the situs of such property. It is the interests or estates severed and created which are to be taxed, and not the instrument creating the separate interests. In Gas Co. v. Neosho County, 75 Kan. 335, it was demonstrated that the mineral rights carved out and made subject to taxation were to be treated as realty, and not as personal property. It was said:
“It is contemplated that there shall be an estate con sisting of what is left after the mineral rights have been carved out, and that there shall be an estate consisting of the mineral rights which have been segregated. The statute further contemplates that each estate must vest in a separate person. The respective proprietors are called ‘owners,’ and the estate in the. minerals is nothing short of the right or title to the minerals themselves as they lie in the ground.” (p. 338.)
In Mining Co. v. Crawford County, 71 Kan. 276, it was suggested that there would be difficulty in enforcing the act and in the assessment of such segregated property, but the suggestion was met by saying that the value of such property might be ascertained and the assessment made under the general rules governing the assessment of real property. As it is the interest in the land and not the instrument which transfers the interest that is taxed, the indefiniteness which counsel see in the act largely disappears. The lease does not become void by the mere failure to record it, but only when there is the additional delinquency of omitting to list it for taxation. If it is recorded as the statute enjoins, the taxing officer has an opportunity to find and assessjthe property conveyed by it; and if the owners omit to record the lease and also omit to list it, and thus bring it to the attention of the taxing officials within the time fixed for listing property, the lease then becomes void, and may be so declared by the court at the instance of any interested party. As the owner of the interest in question failed to record the lease within the prescribed time, and also failed to list the property for taxation, the lease was a nullity, and the judgment of the trial court deciding that it was void is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The Supreme Lodge of the Knights of Pythias, a fraternal insurance corporation, commenced this action and in its petition alleged that one George Ferrell, deceased, was at the time of his death a member in good standing of the organization; that he had a benefit certificate for $3000; that the amount was due upon the certificate, and that the corporation was ready to pay, but that there was a dispute as to who among the parties whom it made defendants in the action, namely,. Lloyd B. Ferrell, Edith M. Stanley (formerly Ferrell), Adele C. Ferrell and Paul H. Ferrell, was entitled to-receive payment. Lloyd B. Ferrell answered and alleged that he was entitled to the entire sum of $3000' under the certificate. Edith M. Stanley answered and alleged that she was entitled to the sum of $1000 of the amount of the certificate. Defendants Adele C. Ferrell and Paul H. Ferrell did not appear.
The undisputed facts are that about May, 1885, George Ferrell became a member of the association and took out a certificate for $3000, payable to his wife, Mary E. Ferrell; that sometime prior to the 14th day of June, 1899, Mary E. Ferrell died, leaving two children, Adele C. Ferrell and Paul H. Ferrell; that on> June 14, 1899, George Ferrell surrendered the certificate and took out a new one, naming his two children. as the beneficiaries; that on the 10th day of January, 1901, he surrendered the second certificate and took out a new one for the same amount, payable to Edith M. Ferrell, his then wife, and to his two children, in the sum of $1000 to each; that the last-named certificate remained in force until about the 5th of December, 1907, when George Ferrell surrendered it and took out a new certificate for the same amount, making Lloyd B. Ferrell, his brother, the sole beneficiary; and that shortly thereafter, and before the commencement of this action, George Ferrell died.
In her answer Edith M. Stanley alleged that prior to her marriage to George Ferrell, and at a time when his two children stood as the beneficiaries of the certificate, George Ferrell proposed to her that if she would marry him and care for his children he would provide her a home and care for her, and would have the certificate changed so that she should receive $1000 from the benefit certificate and each of the children $1000 in case of his death before her death; that in consideration of such promise she consented to marry him, and did marry him, and that he executed the antenuptial contract by surrendering the old certificate and procuring a new one to be issued in accordance with the terms of his agreement; and that the subsequent change of the certificate, making it payable entirely to Lloyd B. Ferrell, was without her consent and in violation of her rights under the contract:
This claim Lloyd B. Ferrell denied, and a trial of the issue thus formed was had to the court and a jury until Edith M. Stanley had offered her evidence, Lloyd B. Ferrell had demurred thereto and the court had overruled the demurrer, whereupon the parties agreed that the jury should be discharged and the case decided by the court, Lloyd B. Ferrell reserving his exceptions to the ruling on the demurrer to the evidence. The court rendered judgment in favor of Edith M. Stanley as to the amount claimed. To reverse this judgment Lloyd B. Ferrell brings the case here.
Edith M. Stanley, being called as a witness in her own behalf, was asked to relate the conversation by which the alleged antenuptial contract was made. An objection was made thereto on the grounds that the contract, not being in writing, was void. The objection was overruled, and the ruling is assigned as an error. Section 3838 of the General Statutes of 1909 (Laws 1905, ch. 266, § 1), being a portion of the statutes to prevent frauds and perjuries, reads in part: “No action shall be brought whereby ... to charge any person upon any agreement made upon consideration of marriage, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” It is urged that this provision makes the contract absolutely void, and for that reason proof of it should not be allowed. The statute does not render the contract void; but to prevent the perpetration of frauds and perjuries, to which the nature of the transaction lends great inducement and facility, it is provided that no action shall be maintained on such a contract unless it is in writing. The reason that the statutory provision fails where the antenuptial contract has been fully executed is that proof of the rights of the parties under the contract no longer rests upon the testimony of the party asserting it, or upon the statement of others who may have heard it or claimed to have heard it. Where the contract has been fully executed, as this antenuptial agreement is claimed to have been, the action is not upon the original contract, but is usually to retain the benefits which have accrued therefrom. The original contract in such an action is immaterial, except to explain the consideration for which the benefits were received. In some states it has been held that an antenuptial contract is no consideration for a marriage, but that has never been held by this court. (Hafer v. Hafer, 33 Kan. 449; Neddo v. Neddo, 56 Kan. 507.)
In Weld v. Weld, 71 Kan. 622, it was said:
“An oral agreement, made in consideration of marriage, that after the marriage a debt of one of the contracting parties to the other shall be mutually regarded as paid is fully performed when the marriage takes place, and is-not thereafter affected by the statute of frauds.” (Syllabus.)
In the opinion it was said:
“The statute of frauds does not render void the verbal contracts to which it refers. They are valid for all purposes except that of suit. (Stout v. Ennis, 28 Kan. 706.) The parties may perform them if they desire, and when performed the statute has no application to. them. (29 A. & E. Encycl. of L. 829, 941.)” (p. 624.)
The objection was properly overruled.
It is contended that the court erred in permitting this witness to testify, referring to her husband and the policy, that “he gave it to me.” It is contended that this was a transaction between the witness and her husband during the time that the marriage relation existed, and that the opposing party, Lloyd B. Ferrell,, was the legal representative of the deceased. The provision of the statute invoked to sustain this objection is. a part of section 320 of the code of 1909, and reads:
“No party shall be allowed to testify in his own behalf in regard to any transaction or communication had personally by such party with a deceased person, when, the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title' to the cause of action immediately from such deceased', person.”
On the other hand, it is contended that Lloyd B.. Ferrell did not acquire title to the cause of action immediately from the deceased; that the deceased had no. title to the certificate, and could derive no benefit therefrom; that he had only the naked power under the certificate of designating or appointing the beneficiary, under the rules of the corporation; that the certificate •did not pass from the deceased to Lloyd B. Ferrell by •assignment or for any consideration paid or agreed to ■be paid therefor by Lloyd B. Ferrell.
We are inclined in favor of the latter contention, but regard this controversy as quite immaterial.
The objection that the witness should not have been •allowed to testify to this statement on the ground that she was the wife of the deceased at the time it is said to have been made should probably have been sustained; but if it was erroneous to allow the statement, it was likewise immaterial.
If the deceased contracted in consideration of marriage to change the certificate, as claimed, and Edith M. Stanley performed her part of the contract relying upon such agreement, and thereafter her husband performed his part of the contract by having the certificate changed as he agreed to do, the contract thereby became fully executed, and the wife had a vested interest in that policy, of which her husband could not devest her without her consent. (Stronge v. Knights of Pythias, 189 N. Y. 346, 12 L. R. A., n. s., 1206, case note; Bunnell v. Shilling, 17 Can. L. T. 121.) It is immaterial whether lie gave her the policy or whether she ever saw it. Probably three-fourths of the beneficiaries in insurance policies never even see, much' less have in their possession, the policies which are made for their benefit. Indeed, under the circumstances of that case, it was held in Weld v. Weld, 71 Kan. 622, in substance, that where an antenuptial contract is made, and the marriage is celebrated in reliance thereon, the marriage ipso facto discharges the previously existing indebtedness between the contracting parties in accordance with the ante-nuptial agreement. In this case Edith M. Stanley produced in court and introduced in evidence the certificate which she claimed was made in execution of the contract, and which designated her and the two children as beneficiaries. How she came by that certificate is quite immaterial. The presumption would probably be that she came by it lawfully. But, as before stated, the material fact in determining whether George Ferrell executed the antenuptial contract on his part is whether he procured the issuance of the certificate in accordance with the terms of the contract. The marriage on her part and the procuring of the certificate in accordance with the terms of the agreement by him executed the contract entirely.
The order of the court overruling the demurrer to the evidence of Edith M. Stanley is also assigned as error, but it follows from what we have said that no error can be predicated thereon.
We find no prejudicial error in the proceedings, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appellant was convicted of selling bread weighing neither eight ounces nor sixteen ounces, but thirteen and one-half ounces, which did not bear a label showing its true weight. The statute governing the subject is chapter 264 of the Laws of 1909, relating to weights and measures, section 13 of which reads as follows:
“A loaf of bread for sale shall be two pounds in weight. Bread, unless composed in chief part of rye or maize, shall lie sold only in whole, half and quarter loaves and not otherwise. Bread, when sold, shall, upon the request of the buyer, be weighed in his presence, and if found deficient in weight additional bread shall be delivered to make up the legal weight, except that this section shall not apply to rolls or to fancy bread weighing less than one-quarter of a pound. Every loaf, half loaf or quarter loaf of bread which does not weigh the full weight required by this section shall be plainly labeled with the exact weight.” (Gen. Stat. 1909, § 9750.)
This statute fixes the weights at which bread may be sold. What may be called the standard is the “loaf” weighing two pounds. The sale of “jumbo” loaves weighing multiples of the standard is prohibited, and the sale of loaves or portions of loaves smaller than the standard is prohibited unless they are one pound or one-half pound in weight. Allowance is to be made for usual and ordinary evaporation between the time the bread is- placed on sale and the time it is sold, and common-sense allowance is to be made for slight variations in weight as often above as below the standard (§ 15, Gen. Stat. 1909, § 9752) ; but after these allowances are made bread must be sold only in the prescribed weights, and not otherwise, unless it be composed in chief part of rye or maize. In order to prevent the accidental or surreptitious sale of underweight loaves such loaves shall be labeled with their exact weight. A buyer may require his bread to be weighed. If it be not up to the standard he is entitled to a quantity of bread sufficient to make up the legal weight, and any sale of other than a statutory weight is unlawful. This intention of the legislature is made clear by comparing section 13 with section 14 (Gen. Stat. 1909, § 9851), relating to the sale of butter. A print or package of butter weighing less than standard may be sold as such if the net weight be disclosed to the buyer or shown by a label.
The appellant argues that this statute is an arbitrary, unreasonable and meddlesome interference with the conduct of a legitimate private business, in which the public welfare is not involved, and consequently that it is unconstitutional and void.
It is a matter of common knowledge that the bakery is an institution quite indispensable to every city and town. Practically every housewife is compelled to resort to it on frequent occasions, and many constantly depend upon it for that most necessary article of food, bread. Bread is sold by the loaf. The size of a loaf is fairly well established by trade custom, and the price is generally a common price per loaf of the popularly understood size. There are among us to-day persons like those who in the .time of Amos made the ephah small and the shekel great, and falsified the balances by deceit. Some of them make and deal in bread, and by shrinking the size of their loaves or by other devices they cheat the uncritical and unsuspecting public, which relies upon the prevailing customs. The legislature found such practices to be sufficiently extensive in this state to need correcting. Therefore every condition essential to a valid exercise of the police power exists. (People v. Wagner, 86 Mich. 594; City of Chicago v. Schmidinger, 243 Ill. 167.)
The regulations were designed to reach, and do reach, the very evil to be remedied. Price is unregulated. That will regulate itself. But if a child be sent to the bakery for a loaf of bread it will return with a loaf of bread.
If fraud were to be circumvented at all it was necessary that the measures taken should be effective, but the regulations adopted are in no sense harsh or oppressive. Rye bread, corn bread, fancy bread and rolls of the usual size are not within the statute. Loaves of bread may be in three sizes — certainly enough to satisfy the demands of any trade. Unavoidable variation’s in size are not taken into account, and with these out of consideration the loss to any honest baker from mishaps resulting in unsalable short-weight loaves will be infinitesimal. To allow short-weight loaves to be sold would lead to the-baking of short-weight and odd-weight loaves for a purpose, and would open the door to the very practices which the legislature sought to thwart.
Other objections to the statute are not well taken, and the judgment of the district court is affirmed. | [
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Per Curiam:
C. Brice-Nash was injured while in the employ of the Barton Salt Company. He sued his employer, alleging his injury to have been occasioned by its negligence. At the first trial a demurrer to his evidence was sustained upon the ground that the negligence shown, if any, was that of a fellow servant. This ruling was reversed on appeal. (Brice-Nash v. Salt Co., 79 Kan. 110.) A subsequent trial resulted in a verdict against the plaintiff. The court, however, granted a new trial, and the defendant appeals.
The appellant argues the case upon the theory that the verdict was set aside because a juror testified that he had not agreed to it. This testimony was obviously incompetent under the rule forbidding a juror to impeach his verdict by describing his mental operations. (Perry v. Bailey, 12 Kan. 539.) The appellee, however, asserts that the ruling was based upon the ground of error in the instructions, and this must be assumed to be the case, as there is nothing in the record to indicate the contrary.
While standing near a mass of salt, the face of which had already been considerably undermined, the plaintiff was injured by the fall of a part of it, which he claims was caused by a workman striking it with a pick. Instructions were given to the effect that he could not recover if he knew the salt was undermined, and therefore liable to fall at any time, and with this knowledge he stood where he knew he wo'uld be in danger if it fell. These instructions were open to criticism because they treated the matter as though the salt had fallen by reason of conditions already existing, and made no reference to the act of the workman in picking at it and causing a fall without giving the plaintiff warning — the conduct chiefly relied upon as constituting negligence. The plaintiff, by standing near the salt, knowing its condition, may well be deemed to have voluntarily incurred any danger of its falling of its own weight, but he can not be said thereby to have taken the risk of its being dislodged by the blow of a pick, which he had no reason to anticipate. This defect in the charge justified the trial court in setting aside the verdict. The order granting a new trial 'is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The testimony and findings disclose that since the bridge in question was built the river has changed its course, and that it is the declared purpose of the commissioners to remove and rebuild the bridge over the river in its new channel, instead of leaving it over the channel through which the stream formerly flowed. Appellant contends that there is a lack of power in the commissioners to effect their purpose. It is first contended that the bridge was located and built under the authority of a special statute, and that therefore special legislative authority is a prerequisite to the rights of removal. Nothing in the abstract shows that the bridge was built under the authority of a special statute, but even if it was constructed under chapter 102 of the Laws of 1903, as appellant contends, it' would not follow that special authority was essential to the removal of the bridge. That act did not purport to fix the location of the bridge proposed to be built, but left the question of the building of the bridge as well as the selection of the location to the discretion of the commissioners. To meet an emergency the commissioners were authorized to provide means at once for building a bridge, but nothing in the statute indicated that the bridge when built should not be controlled and maintained the same as other county bridges which had been constructed under general authority. There is nothing in it suggesting that this particular bridge was to be excepted from the operation of the general laws or that it should be in a class by itself, subject to no control except that exercised directly by the legislature.
The next contention is that the city of Concordia contributed money to complete the building of the bridge and that it can not be removed without the consent of that municipality. In the first place the finding of the court was that the bridge “was wholly built by Cloud county.” Instead of there being a joint interest or ownership by two municipalities, as in the cited case of Greeley Township v. Comm’rs of Saline Co., 26 Kan. 510, this bridge was recognized by all as a county bridge, and the court found that it was not only built but that it was kept and maintained by the county. There is a finding that the city contributed money toward the repair of the highway and approach‘running from the bridge toward the city of Concordia, but it is expressly found that the county alone constructed the bridge. Even if the city had some interest in the bridge, it.is not here complaining. Nothing in the record indicates that appellant is authorized to complain for the city nor that he has been constituted as a guardian of its rights. An infringement of the rights of the city even, if it had occurred, would afford appellant no right to an injunction.
Another ground of injunction urged is that the contract for the construction of the bridge involves a greater sum than $4000, and that the appropriation •has not been sanctioned by a vote of the electors. A. statutory limitation which applies to Cloud county provides that the commissioners may make an appropriation for the rebuilding or repairing of a bridge to the extent of $4000, but where it is to cost a greater sum the commissioners can not make an appropriation to exceed $4000 until the question has been submitted to the qualified voters of the county and a majority vote is given in favor of the appropriation. (Laws 1909, ch. 63, § 1, Gen. Stat. 1909, § 655.) It is true that the total cost of the bridge to be built exceeds the sum of $4000, but it is not to cost the county more than that sum. The limitation is on the appropriation to be made for the particular bridge, and not upon the contributions which others may make toward the construction of it or on the value of the property which the county may acquire for an expenditure of less than $4000. The purpose of the legislature manifestly was to prohibit the expenditure of more than $4000 of county money upon a single bridge without the authority of the electors. While the act speaks of the cost of the bridge, a reading of the entire provision indicates clearly enough that it refers to the cost to the county and only undertakes to limit the appropriation which the county may expend upon the bridge. In the agreement with the construction company which undertook to build the bridge it was expressly stipulated that no more than $4000 of county money should be paid for the removal and rebuilding of the bridge, and that the remainder should be contributed by the township of Sibley and the Concordia Commercial Club. The contracting company agreed to be bound by this condition. So far as the record shows, the commissioners were acting in good faith in the steps taken to restrict the expenditure by the county on the bridge to $4000, and the agreement which they made seems to be sufficient to effectuate their purpose. There was nothing improper in their accepting from interested parties contributions toward the rebuilding of the bridge. The policy by which municipalities cooperate in public enterprises and of private parties sharing in the expense of such enterprises has been approved. (Plaster Co. v. Blue Rapids Township, 77 Kan. 580.) The material question here is, Did the contract and proposed action •of the commissioners involve an appropriation of county-money in excess of $4000? The findings of the trial court, which are not questioned, make it reasonably clear that it did not, and, that being so, an approving vote of the electors was not essential.
The objections to the notice and other steps preliminary to the awarding of the contract are without merit, as there is a finding by the court that all of these steps were regular and sufficient.
It is finally contended that the action of the commissioners renders the highway impassable and operates to vacate it, whereas the law makes it their duty to keep the highways in a safe and passable condition. The evidence and findings do not show a purpose to vacate the highway or to deprive appellant or others of its use. It is expressly found that the board did not undertake to vacate the highway and is proceeding to remove the bridge without attempting a vacation. It is to be noted that the bridge does not touch appellant’s land but is a short distance north of it. The highway leading south from the bridge does pass through his land, but the court finds that ingress and egress to and from his premises are afforded by other public roads which touch his land and that they furnish free access to and from his premises. However, as we have seen, the commissioners do not prdpose to close the highway by the removal of the bridge. No reason is seen why they may not substitute an inexpensive one which will serve the purpose. They are not compelled to maintain a $10,000 bridge over the old bed of the river when perhaps a small bridge or culvert costing no more'than $200 or $300 would complete the highway and make it passable. It is said that if the bridge had been washed'out by a flood the commissioners could have been compelled to build another bridge and to make the highway passable, if sufficient funds were on hand for that purpose; but, granting the contention, it does not follow that the commissioners are required to build the kind of a bridge that was washed out. It would not be their duty to provide an expensive bridge' if an inexpensive culvert would equally well accommodate the public. It may be assumed here that if a necessity for the continuance of that part of the highway exists the commissioners will, upon a removal of this bridge, do their duty in the premises and put the highway in a reasonable and suitable condition for travel.. At any rate, appellant can not tie the hands of the commissioners and prevent the placing of the bridge over-the river in its new channel because of his fear that the commissioners will not properly restore the highway by substituting an adequate culvert or bridge for the one removed.
Appellant did not show a right to the injunction, and hence the judgment of the district court is affirmed. | [
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Per Curiam:
This is an action to recover damages for a personal injury. The defendant is a telephone company whose telephone line occupied a part of the public highway. It had an employee whose duty consisted of traveling along the line with a team of horses and keeping the line in repair. This employee, upon the occasion of the alleged injury, tied his team to one of the telephone poles and climbed up to inspect the wire. The team broke loose and ran away, running into and injuring the plaintiff, who was traveling upon the highway in a buggy drawn by one horse. Upon a trial in the district court the jury returned a verdict for the plaintiff for $500, in which amount judgment was entered against the defendant, and it appeals.
It is alleged that the defendant was negligent and careless in allowing its team. to stand in the public highway without being securely fastened. Upon the trial the jury returned seventy-one special findings of fact with the general verdict, as follow:
“(1) Ques. How long .had defendant been the owner of the team of horses in question at the time of the accident to the plaintiff of October 3, 1908? Ans. On or about two years.
“(2) Q. How long had Jesse Schilling been in the employment of the defendant previous to the third day of October, 1908? A. Four years.
“(4) Q. Did Jesse Schilling exercise the care usually exercised by an ordinarily prudent man in the discharging of his duties while acting as a servant of the defendant on the third day of October, 1908? A. No.
“(5) Q. Do you find from the evidence that the team of horses owned by the defendant were by the said Jesse Schilling tied or hitched at the point where he left them while he climbed the pole to repair the-line? A. Yes.
“ (6) Q. In tying said team (if he did tie them) did Jesse Schilling exercise that degree of care ordinarily exercised by a reasonably prudent man in the discharge of his duties and under the circumstances and surioundings as they existed? A. No.
“(7) Q. Do you find that the defendant’s servant, Jesse Schilling, was guilty of negligence in the tying of the team of the defendant? A. Yes.
“(8) Q. If you answer the last preceding question in the affirmative, please state what his negligence consisted of. A. The opinion prevails that the horse became untied and it would have been better if both had been tied, knowing that the team was a runaway team.
“(11) Q. Could the plaintiff by the exercise and use of his eyes and ears have seen the team of the defendant approaching him from the rear, had he been looking and listening, in time to have avoided the accident? A. No.
“(12) Q. Did the plaintiff take any steps of precaution to avoid the accident?. A. No.
“ (13) Q. Could the plaintiff by the exercise of reasonable care have discovered the team approaching him in time to have avoided the accident or collision? A. No.
“(14) Q. Could the plaintiff in the exercise of reasonable care and caution have heard the defendant’s team approaching him from the rear in time to have avoided being run down by it? A. No; not being in the habit of being run down by a team, he was not looking for it.
“(15) Q. What steps, if any, did the plaintiff take or what did he do, if anything, to avoid being run down by the defendant’s team ? A. None.
“(17) Q. What, if anything, was there to prevent the plaintiff in the exercise of reasonable care from hearing the defendant’s team approaching him from the rear? A. The hard condition of the road and the rattle of his own buggy and the possible noise of the water wagon.
“(18) Q. What, if anything, was there to prevent the plaintiff in the exercise of reasonable care from seeing the defendant’s team approaching him? A.. The buggy top being raised and the curtain down and the direction that he was going.
“(19) Q. Could the plaintiff by the use of his faculties and the exercise of reasonable care have heard the defendant’s team approaching him from the rear? A. No.
“(20) Q. Could the plaintiff in the exercise of his faculties and reasonable care have seen the defendant’s team approaching him from the rear? A. Yes, if he had been looking backward.
“(21) Q. How far from where the accident oecurred is it to the point where the defendant’s team came in sight of the plaintiff? A. Eighty or ninety feet.
“ (23) Q. Could not the plaintiff in the exercise of reasonable care have heard the defendant’s team as it came downhill and approached him? A. No.
“ (28) Q. Could the plaintiff have seen or heard the defendant’s team approaching him had he exercised ordinary care and prudence? A. It was possible for him to have seen it, but not of heard it.
“(29) Q. If you answer the last preceding question in the negative, state what it was that prevented plaintiff from hearing or seeing defendant’s team approaching him. A. There was nothing to prevent him from seeing had he been looking backward; the noise prevented him from hearing.
“ (30) Q. What was the condition of the top of the plaintiff’s buggy with reference to being raised or lowered at the time of the accident? A. The top was raised.
“(31) Q. If you find that the top of the plaintiff’s buggy was raised at the time of the accident, how was it with reference to the rear curtain being up or down ? A. It was down.
“(34) Q. Were the harness, lines and hitch reins used by defendant on its said team of horses in ordinary safe condition ? A. Yes.
“(35) Q. Did Jesse Schilling, the servant of the defendant, hitch said team of horses at the point where he stopped to repair defendant’s line? A. Yes.
“•(37) Q. State, if you can, what caused the defendant’s team to break its fastenings and run away? A. We do not know.
“(38) Q. Is it not a fact that under all of the cir cumstances and surroundings of this case that the plaintiff was injured by an accident that was practically unavoidable? A. No."
“(39) Q. If you find that the defendant was negligent in any way, state in what the negligence consisted. A. Not tying the team properly.
“ (40) Q. If you find for the plaintiff, what amount do you allow him for medical attention? A. $4. (Four dollars.)
“(41) Q. If you find for the plaintiff, what amount do you allow him for medicine? A. Nothing.
“(42) Q. If you find for the plaintiff, what do you allow him for damages to his buggy? A. $35. (Thirty-five dollars.)
“(42-3-) Q- What amount (if anything) do you allow plaintiff for his pain, suffering and mental anguish? A. $461. (Four hundred and sixty-one dollars.)
“(43) Q. How long had Jesse Schilling been using the defendant’s team previous to the accident on October 3, 1908 ? A. Two months.
“ (44) Q. Is it not a fact that the defendant’s team was on the day of this accident hitched -in the same manner as was the custom of defendant’s servants to do for more than a year previous to this accident? A. The custom and manner of tying the horses was apparently the same, but on this particular occasion there seemed to be a defect somewhere.
“ (45) ' Q. Is it not.a fact that it was ordinarily safe for defendant’s servants to hitch its team in the manner that it was hitched on the day of the accident ? A. Yes.
“(46) Q. Was the defendant’s team accustomed to the use to which it was put on the 3d day of October, 1908? A. Yes.
“ (47) Q. Was not the defendant’s team accustomed to being hitched along the public highway in the manner that it was by the said Schilling on October'3,1908? A. Yes.
“(48) Q. Was it not the habit of the servants of the defendant while repairing its lines along the public highway to hitch' the team in question as was done by the said Schilling on the third day of October, 1908? A. Yes.
“ (49) Q. Was it negligent in the servants of the defendant to hitch its team as it was hitched by the said Schilling on October 3, 1908 ? A. Yes.
“(50) Q. Had the defendant’s team, while being used on the public highways as it was on October 3, 1908, ever broken the straps by which it was fastened and run away? A. No.
“(51) Q. Had the defendant’s servants by reason of the surroundings at the place where the team was tied any cause or reason to believe that the team would become frightened and run away? A. Yes, the schoolhouse being near, the largeness of the telephone pole, and the uneveness of the ground are all unfavorable conditions for the hitching of horses there.
“ (52) Q. Do you find that there was anything unusual at the point where the defendant’s team was hitched to cause its servants to believe that it was unsafe to hitch the team in the manner in which it was hitched by the said Schilling? A. Answer to No. 51 applies to 52.
“ (55) Q. Did the horse which plaintiff was driving suddenly start and increase its gait a little prior to the accident? A. Yes.
“(56) Q. Was there anything out of the ordinary in front of-the plaintiff to attract his attention? A. Yes.
“(57) Q. If the plaintiff’s horse made an effort to increase its speed and pulled on the lines was not such conduct on the part of plaintiff’s horse sufficient to admonish plaintiff that something was approaching him from the rear? A. Yes.
“ (58) Q. Could not the plaintiff after his horse had suddenly increased its speed have discovered the approach of defendant’s team in time to have avoided the accident? A. No.
“ (60) Q. Was not the action and conduct of plaintiff’s horse sufficient to inform the plaintiff that something was approaching him from the rear? A. Yes.
“(61) Q. Was not the road at the time and place where this accident occurred hard and dry? A. Yes.
“(63) Q. Was the plaintiff an experienced horseman and well acquainted with the habits of horses when being approached from the rear by other horses? A. Yes.
“ (67) Q. Was not this what might be termed an unfortunate accident for which no one is really chargeable with negligence? A. No.
“(68) Q. Was there anything in the surroundings at the place where defendant’s team was tied from which an inference can be drawn that a man of ordinary prudence could reasonably believe that injury might result from his act? A. Yes.
“(69) Q.' If you answer question No. 68 in the affirmative, state what there was from which defendant’s servant could reasonably infer that injury would result. A. Answer to 51 applies to 69.
“(70) Q. Was the place where defendant’s team was hitched free from the presence of anything which could be supposed to frighten a team accustomed to be left in that condition on the public highway? A. Anwer to 51 applies to 70.
“(71) Q. Was the plaintiff guilty of contributory negligence? A. No.”
It is contended that these special findings of fact are so inconsistent with the general verdict and with themselves as to be insufficient to sustain the verdict, and that the verdict should have been set aside and a new trial granted. We agree with this contention. The special findings of fact show that the team was tied in an ordinarily safe manner on the day in question, and this, together with other answers, is inconsistent with the finding of negligence. Upon these facts no verdict for the plaintiff would be proper. (Harvester Works Co. v. Cummings, 26 Kan. 367; St. L. & S. F. Rly. Co. v. Shoemaker, 38 Kan. 723; Kansas City v. Brady, 52 Kan. 297, 53 Kan. 312; Anderson v. Pierce, 62 Kan. 756; Railway Co. v. Williams, 59 Kan. 700; Stanley v. Railway Co., 78 Kan. 87.)
The j udgment is reversed and a new trial awarded. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought to restrain the collection of a portion of the taxes levied against the personal property of the plaintiffs for the year 1907. The court rendered judgment permanently' enjoining the collection of so much of the taxes as were adjudged to be invalid. The defendants appeal.
The petition alleged that real estate in Lyon county for the year 1907 was assessed at twenty-five per cent of its cash value — that being the valuation placed thereon in the year 1906, which, under the law, remained the same for two years — while personal property, by an agreement entered into by the township and city assessors, was assessed at forty per cent of its cash value. The evidence fully established these averments, and, in addition, showed that the assessors at their annual meeting in March, 1907, agreed to, and afterward did, assess all cattle, horses, live stock, farming implements and household furniture at certain fixed and arbitrary values, without reference to their actual cash value, so that these classes of personal property were assessed at less than thirty per cent of their actual value. There were, therefore, in the year 1907, three different rates employed in the valuation of property in Lyon county for the purposes of taxation. Real estate was assessed at twenty-five per cent, personal property other than real estate and for the most part owned by farmers at about thirty per cent, and all other personal property, including the capital and surplus of the plaintiff banks, at forty per cent of the cash value. These different rates of valuation were fixed and agreed upon by resolutions adopted by the township and city assessors.
It is apparent that the resulting differences in the valuations of the different kinds of property can not be .said to have arisen from mere differences of opinion of the taxing officers as to the actual value of the different classes of property, but, on the contrary, they were the result of an arbitrary and unlawful agreement by the assessors to list for taxation different classes of property at different rates of valuation. There is, therefore, no force in the contention of the defendants that courts of equity will afford no relief against the kind of discrimination alleged, or that the petition failed to state a cause of action because it failed to show fraud or corruption on the part of the officers, within the doctrine of Symns v. Graves, 65 Kan. 628, and Finney County v. Bullard, 77 Kan. 349. The cases relied on differ very materially in their facts from the case under consideration.
This court has always adhered to the rule that it will not enjoin the collection of taxes upon the sole ground that the taxes áre excessive or unequal, where the inequality arises from mere errors of judgment. Equity will grant no relief for errors and inequalities in assessments arising out of the accidental omission of property from the tax rolls or the accidental differences in valuations resulting from errors of judgment, however unjust or excessive the result may appear, if no fraud is shown on the part of the taxing officers or the statutory board of review. This is the doctrine of Symns v. Graves, 65 Kan. 628, and Finney County v. Bullard, 77 Kan. 349. In the latter case the first paragraph of the syllabus reads:
“Injunction will not be awarded to prevent the collection of a tax on the ground of an irregular or excessive assessment unless the case comes clearly under some acknowledged head of equity jurisdiction.”
In Symns v. Graves, supra, it was said:
“The district court could not substitute its judgment for that of the board of equalization, and this court can not impose its notion of value on either.” (p. 636.)
(See, also, Bank of Garnett v. Ferris, 55 Kan. 120, and Electric Co. v. Jackson County, 81 Kan. 6.)
On the other hand, it was held in Symns v. Graves, supra, that courts have power to relieve against injustice resulting from fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud. Again, it was said in Salt Co. v. Ellsworth County, 82 Kan. 203:
“If they assessed another salt plant at $45,000, knowing that it was of greater value than that of appellant, which was placed at $260,000, it was an intentional dis■crimination and a fraud upon appellant, and if the assessment against appellant is excessive it affords good .grounds for the interposition of a court of equity.” (p. 205.)
The situation here presents stronger grounds for the interference of a court of equity than the case just ■cited. The action of the officers in assessing one class ■of personal property at forty per cent, another at thirty per cent and real estate at twenty-five per cent ■of its cash value was the result of deliberation and intention, and was so arbitrary and capricious as to constitute fraud on the rights of the plaintiffs. The ■constitution declares that “the legislature shall provide for a uniform and equal rate of assessment and tax;ation” (art. 11, § 1), and s.ection 2 of the same article reads:
“The legislature shall provide for taxing the notes .and bills discounted or purchased, moneys loaned, and •other property, effects, or dues of every description (without deduction), of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to .that imposed upon the property of individuals.”
The legislature of 1876, in furtherance of these constitutional requirements, while providing how bank stock shall be assessed and taxed, expressly declared .as follows: “That banking stock or capital shall not be assessed at any higher rate than other property.”' (Laws 1876, ch. 34, art. 6, § 22; see, also, Laws 1891, ch. 84, § 1, Gen. Stat. 1909, § 9298.)
We have no hesitation in arriving at the conclusion that the petition stated a cause of action. The case falls clearly within the doctrine of C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781. There the-state board of railroad assessors valued all railroad property in Atchison county at its true value, and the-city and township assessors, by an agreement among' themselves, assessed all other property at twenty-five, per cent of its true value. It was held that the collection of the illegal excess could be enjoined. In the-opinion it was said:
“This unequal valuation was not the result of an accidental omission of property from the assessment list, or an accidental valuation of property at more or less than its true value.” (p. 787.)
In the opinion the case is distinguished from the-older one of Adams v. Beman, 10 Kan. 37, where personal property of the plaintiff was assessed at full value-while other personal property was assessed at one-third, and an injunction was denied for the reason that the party seeking to enjoin the taxes made no offer to-pay any portion thereof, but was seeking to obtain a judgment holding all taxes in the county invalid. The-distinction between Adams v. Beman and the present, case is equally apparent.
It is urged by the plaintiffs that the action of the taxing officers of Lyon county is in direct conflict with the provisions of section 5219 of the Revised Statutes of' the United States, which authorizes the legislature of' each state to determine the manner of taxing shares of national banking associations located within the-state, and which expressly provides that such taxation, shall not be at a greater rate than is assessed upon, other moneyed capital in the hands of individual citizens of such state. It is true, as contended, that the: state of Kansas and its taxing officers would be wholly without power to levy any taxes, either direct or in-direct, upon the national banks within the state, were it not for this permissive legislation of - congress. (Citizens’ Savings Bank v. Owensboro, 173 U. S. 636.) But we have not seen fit to rest our decision on the ground of any conflict between the action of the taxing officers «of Lyon- county and section 5219 of the Revised Statutes of the United States, for the reason that the action of the defendants is a clear violation of the taxing laws of the state, and is such, in our opinion, as to entitle the plaintiffs to the relief sought without reference to the ■provisions of the national banking act.
The defendants insist that the action can not be maintained because the plaintiffs admit that their property was not assessed at its full value, as provided by law. Brior to the adoption of the tax-commission law the provision requiring that all property shall be taxed at its actual cash value was universally ignored in this estate. If all property in Lyon county had been assessed at forty per cent of its full value, the plaintiffs would have had no cause to complain. The fraud upon "their rights results from the arbitrary distinction made Between their property and other property. In the opinion in Finney County v. Bullard, 77 Kan. 349, citing Challiss v. Rigg, 49 Kan. 119, it was said that '“the mere fact, too, that the taxing officers made a fractional instead of the full value of the property the Basis of assessment does not authorize the granting of an injunction to restrain the collection of taxes” (p. "355), the reason being that no injustice could result where all property was valued upon the same basis. .And where, as in this case, a clear showing is made otherwise entitling the plaintiff to equitable relief the .remedy will not be denied merely because the taxing officers have used a fractional instead of the full value Basis of assessment.
There is no merit in the contention that the action can not be maintained because it appears from the: record that the plaintiffs own real estate in Lyon county which is assessed at the same rate that other real estate is valued. The validity of the assessment of real estate is in no sense involved here. By illegally valuing the personal property of the plaintiffs at a higher rate than other personal property in the county an inequitable discrimination was made between the plaintiffs and those taxpayers who own no real estate and who pay only upon personal property.
There is a further contention that the action can not be maintained because of the character of the tender made by the plaintiffs before commencing suit.- The first half of the taxes of 1907 was paid. When the second half fell due the plaintiffs tendered to the county treasurer a sum of money equal to the full amount of the state taxes and what they claimed was due the county for county taxes, based upon the proper valuation; and in their petition they aver a willingness to pay whatever sum the court shall determine to be their valid share of taxes. It is contended by the defendants that the action must fail because the amount of taxes due the state was not separated in the tender from the amount claimed to be due the county. The tender, coupled with the offer to do equity, was sufficient. As was said in Bank of Garnett v. Ferris, 55 Kan. 120:
“If the parties had paid that portion of the tax about which there was no question and such part of the remainder as could be readily ascertained to be a just tax upon a fair valuation, they would have been entitled to an injunction to prevent the collection of the illegal excess.” (p. 123.)
This is exactly what the plaintiffs attempted to do, and the fact that the portion due the state was not separately tendered can not be held to defeat their right to equitable relief.
The judgment relieved the plaintiffs from the payment of all taxes except so much as would result from the assessment of its property at thirty per cent of its real value. It is not shown how this percentage was arrived at. The plaintiffs should have been required to-pay such proportion of the total amount to be raised as. the actual value of their own property bore to the actual value of all the property subject to taxation. That is. the plain requirement of fairness and equality. The-amount can be easily ascertainéd when it is known what proportion of the property in Lyon county was assessed at twenty-five, thirty and forty per cent. The record, however, does not furnish these data, and the case is remanded in order that the final judgment may be-modified to accord with the view herein expressed. | [
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The opinion of the court was delivered by
Smith, J:
To the opinion filed on the former hearing of this case (Robertson v. Howard, 82 Kan. 588) is appended a copy of the findings of fact and conclusions of law of the court below. The time of the commencement of the action, with reference to the discharge of the trustee in bankruptcy and the discharge of the bankrupt from his debts, was not called to the attention of the court and was overlooked in the décision. This fact seems to be very important; indeed, determinative of the case.
A transfer of the certificates was attempted to be made by Henry Frauman, the purchaser of the certificates at the trustee’s sale, on July 19, 1905. This sale was held to be invalid and to convey to Frauman no interest in the real estate in Kansas, hence his attempted assignments of the certificates was invalid, and we adhere to that view.
On June 19, 1907, the bankrupt (Hagenér) and his wife executed to one of the appellees a quitclaim deed to the land, and an assignment of the certificates and of their rights to the rents and profits. This grantee, about the same time, assigned a one-half interest therein to his co-appellee.
This action to recover possession of the land was commenced July 12,1907, while the trustee in the bankruptcy proceedings was in full control of the estate of the bankrupt, including this land, and continued so to be until November 20, 1907, when he was discharged. On this date the bankrupt was also discharged from all of his debts. A trial was had sometime after the last-mentioned date, but no supplemental pleadings were filed.
It was said in Reynolds v. Thomas, 28 Kan. 810:
“But the rights of the parties in the absence of supplemental pleadings are fixed as of the time of the commencement of the actions.” (Syllabus, ¶ 3.)
(See, also, 1 A. & E. Ene. L. & P. 1079, art. 12.)
This rule seems especially applicable to this case. In the matter of the computation of interest on a debt sued on we believe it is the general rule to allow interest, in case of recovery, to the time of trial. There are probably other exceptional cases where equity would adjust subsequently accruing rights; also where the parties to an action have, without objection, tried out and thereby submitted to the court subsequently accruing claims for adjudication. In this case, however, no reason appears for departing from the general rule.
Section 70 of the federal bankruptcy act of 1898 (3 U. S. Comp. Stat. 1901, p. 3451, § 70) provides, in substance, that the trustee of the estate of a bankrupt, upon his appointment and qualification, shall be vested by operation of law with the title to the property of the bankrupt as -of the date he was adjudged a bankrupt, except as to property which is exempt. Hence the title and right of possession to this property was in the trustee at the time of the execution of the quitclaim deed and assignment to the appellees, and also at the time of the beginning of this action, and the trustee had the power for more than four months thereafter, under the orders of the court, to §ell the property and convey the right of possession thereof. It follows that neither the bankrupt nor the appellees had any right to the possession of the property at the time of the commencement of this action. If, therefore, the appellees’ rights are to be determined, as we hold they should be, upon the facts existing at the time of the commencement of the action, they were not entitled to recover the possession of the property, even against one who had simply the naked possession thereof. As between two parties neither of whom has a right to the possession of real estate, of which one is in possession, the other can not oust him therefrom.
The proposition of law stated in the fifth paragraph of the syllabus in the former decision is seriously questioned, and it is also contended that Bird v. Philpott, 69 L. J., n. s., Ch. Div. 487, and In re Evelyn, 63 L. J., n. s., Q. B. Div. 658, which were followed in the former decision, were based upon the English bankruptcy act of 1883, and not upon the common law as in force in this country. While we are inclined to believe the proposition correct as stated in the syllabus, it can only be so regarded with this limitation, at least: that the grantee of the bankrupt can not make his acquired right the basis of a cause of action until after the trustee in bankruptcy is discharged, the bankrupt is discharged of his debts, and the bankruptcy proceedings are closed. It would be an intolerable interference with the administration of justice in a bankruptcy court to allow the bankrupt, who had devested himself of the title to his property, to be dickering in regard to a possible reversionary interest in such a manner as to embarrass the trustee in selling the property and conveying the right of possession thereto.
For the reasons stated, the judgment of the court below is reversed and the case is remanded, with directions to render judgment in favor of the appellants. | [
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Per Curiam:
Only those portions of the petition for a rehearing which undertake to bring upon the record new federal questions need be noticed here. So far as those matters are concerned the petition is founded quite largely upon supposed rulings the court did not make and upon supposed attitudes the court did not assume. For example, it is said that the court concedes that Caspar was guilty of contributory negligence. There is nothing whatever in the syllabus or opinion to warrant the statement. For further example, it is repeatedly posited that Caspar disobeyed an express command of the foreman not to use the ladder. Nowhere does the syllabus or the opinion recognize the existence of any such fact. It is very plain that the jury, as they had the right to do, disbelieved the testimony of the foreman on that subject, and consequently the assumed fact is not in the case and does not exist. A statement of what the court decided appears in the nine paragraphs of the syllabus, but the judgment of the district court is affirmed irrespective of the rulings contained in paragraphs six and seven.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
Ella M. Powers sued the defendant for damages for the alienation of her husband’s affections. There was a trial by a jury and a verdict and judgment in favor of the defendant. While the action was pending here on appeal the plaintiff died, and the action has been revived in the name of her personal representatives. The defendant has filed a motion to dismiss on the ground that the action, being in tort, is not one which survives. The motion to dismiss must be- denied. The code provision which controls reads in part:
“No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution for a nuisance, or against a justice of the peace for misconduct in office.” (Civ. Code, § 421, Gen. Stat. 1901, § 4870; Code 1909, § 418.)
There is a claim that the action survives because it is “for an injury to the person,” within the meaning of section 420 of the old code (Code 1909, § 417), providing that in addition to the causes of action which survive at common law those “for an injury to the person” survive, but this contention can not be sustained, for the reason that the language used in that section refers to physical injuries. The cause of action survives, however, under the provisions of section 418 of the code of 1909, because it was pending in court at the time of the death of the plaintiff. The only actions which abate by the death of either or both of the parties when the action is pending are those which are specifically mentioned in section 418.
During the progress of the trial the plaintiff offered in evidence a letter or fragment of a letter which she claimed was written by the defendant to the plaintiff’s husband. She testified that she found the paper in her husband’s suit case, and that she knew it to be in the handwriting of the defendant. It was not addressed to any person nor signed by anyone, and the trial judge stated that he was unable to read it intelligently. The objection to its introduction was sustained partly on that ground and partly on the ground that the plaintiff had failed to comply with a demand made by the defendant before the trial for an inspection and permission to make copies of any letters or other written communications which purported to have been written by the defendant to the plaintiff’s husband. The notice was a formal one, obviously given under the provisions of section. 369 of the old code (Code 1909, § 366), which reads as follows:
“Either party or his attorney if required shall deliver to the other party or his attorney a copy of any deed, instrument or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not be permitted to give in evidence at the trial the original of which a copy has been refused.”
The plaintiff claims that it was error to exclude the evidence, because no order was obtained from the court or judge requiring compliance by the plaintiff with the demand. Where the party desiring the inspection of a paper or permission to take a copy proceeds under section 368 of the old code (Code 1909, § 365) and obtains an order of the court requiring compliance with the demand the trial court or judge may, upon refusal to produce, exclude the paper or document from being given in evidence, or, if the party applying for the order desires to use it as evidence, may direct the jury to presume it to be such as the party applying for the order by affidavit alleges it to be. The procedure in this case was not under that section, but under the section following, and the evidence was not admissible because of the failure of the plaintiff to comply with the demand, which in every respect followed the statute and was sufficiently definite and certain.
The plaintiff asked an instruction to the effect that it was unnecessary to find that the alleged misconduct of the defendant was the sole cause of the plaintiff’s husband leaving her, but that it would be sufficient if the jury believed from the evidence that the defendant’s acts and conduct constituted one of the causes. This instruction does not state the law correctly. It omits the qualification that the defendant must have acted intentionally or knowingly. (Nevins v. Nevins, 68 Kan. 410; 3 Ell. Ev. §§ 1643, 1644.) In the Nevins case the action was against a parent, and it is contended that a different rule obtains where the action is against a stranger. The difference, however, is only that which arises from the natural presumptions indulged in favor of a parent. It is well established that to recover in such an action against a parent stronger evidence of improper motives is required than where the actioh is against a stranger, because parents have the natural right to manifest affection and give advice and protection to a child, unless they act with malice or improper motives which amount to malice. (Eagon v. Eagon, 60 Kan. 697, 705; Brown v. Brown, 124 N. C. 19; Reed v. Reed, 6 Ind. App. 317; Clow v. Chapman, 125 Mo. 101; 15 A. & E. Encycl. of L. 866.)
In his work on Evidence Mr. Elliott says:
“In actions against parents of either the husband or wife of the plaintiff, a much stronger rule prevails concerning the burden of proof, and plaintiff must not only show improper motives of the parent, but that the alienation was, in a sense, maliciously brought about. Where the action is against a stranger, the plaintiff need only show that it was wrongfully brought about.” (3 Ell. Ev. § 1643.)
Besides, the court correctly charged the jury that in order for the plaintiff to recover it was necessary to show that it was the efforts of the defendant which were the controlling cause that destroyed the affection which the plaintiff’s husband had for her and caused their separation, and that the acts of the defendant were done knowingly and intentionally, for the purpose of alienating the husband’s affections.
Another instruction asked by the plaintiff and refused was that, even if the defendant was in no way responsible for the alienation of the affections of the plaintiff’s husband, yet if the jury believed that the defendant committed adultery with the husband while the plaintiff and her husband were living together and consorting as husband and wife they should find for the plaintiff. It is sufficient answer to this complaint of error that the petition nowhere alleges adultery, and the instruction was therefore properly refused. It is true, the word “seduce” is used in the- petition, but it is used synonymously with the words “entice” or “influence,” the language being that the defendant “wrongfully, wickedly and maliciously, and for the purpose of separating plaintiff’s husband from her and depriving plaintiff of all her rights,” began and pursued a systematic course of conduct “to seduce, entice and influence plaintiff’s said husband to leave and abandon” the plaintiff. From the context it is obvious that “seduce” was employed as a word synonymous with “entice” or “influence.”
Adultery is not charged in the petition, either as one of the means of alienation or as a basis for damages. In this class of cases some courts have ruled that evidence of adultery is not admissible in the absence of an averment in the petition. In a recent case (Scott v. O’Brien [Ky. 1908], 130 Am. St. Rep. 419, 110 S. W. 260) the court of appeals of Kentucky held that there is no ground for an action on the mere proof of abandonment and that the husband or wife maintains improper relations with the defendant, in the absence of any proof to show that the defendant wrongfully alienated the affections of the plaintiff. In that case, as in this, the wife sued another woman for alienating the affections of the husband, and the action was not based on adultery.
We find no error in the instructions nor in the admission of testimony. The cross-examination of the defendant’s witnesses was not unduly restricted. They admitted in answer to numerous other questions that they were friendly to the defendant and unfriendly to the plaintiff. Upon a conflict of testimony the jury found for the defendant, and upon the record the judgment must be affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
In the year 1889 one Aaron Bowers •obtained a patent to the land in question from the Unitéd States, executed one mortgage thereon for $250 and another for $15, and was also indebted to one Egan on account for $25. Soon thereafter Bowers left the state of Kansas and removed to the state of Colorado, where he has ever since resided, although he was per sonally present in the locality of the land during a portion of the years 1894 and 1896.
In October, 1890, Egan brought suit to recover on the account for $25, attached the land, and attempted to get service on Bowers by publication. The publication notice, although fatally defective, was approved by the court, judgment was rendered in favor of the plaintiff, and the land was sold to Jessie A. Egan to pay the judgment and costs. The sale was confirmed and a sheriff’s deed to the purchaser was duly issued and recorded. In 1894 Jessie A. Egan and her husband, Thomas F. Egan, conveyed the land to the appellee by warranty deed. There appears to have been no buildings on the land, but the land had been rented by Egan and the appellee to tenants (except for some two or three years) from the time of the recording of the sheriff’s deed until the filing of the appellants’ motion to vacate the judgment.
In November, 1896, Bowers and wife conveyed the land by quitclaim deed to one Hotchkiss, and Hotchkiss conveyed the same by warranty deed to the appellants, and soon thereafter the appellants filed a motion, which was really the commencement of this action, to vacate the judgment and set aside the sheriff’s deed issued thereon to Jessie A. Egan. The appellee, by leave of court, filed an answer to the motion, set forth therein the facts substantially as above stated, and claimed title by adverse possession for more than fifteen years. A trial was had to the court, without a jury, on these pleadings. Judgment was rendered setting-aside the judgment and vacating the sheriff’s deed, but the court adjudged that the appellee was equitably'a mortgagee in possession, and allowed a lien on the land for the amount of the mortgages paid by the appellee, and interest, and also for the taxes paid by him, with interest thereon, and awarded him the possession of the land until the amount of the lien so adjudged should be paid.
The appellee has filed a cross-petition in error, in which he claims that the court erred in not adjudging that he had title to the land by prescription under the fifteen-year statute. An answer to this is that the court found, on sufficient evidence, that the appellee had not been in continuous possession of the land for fifteen years.
The proceeding was, of course, very irregular in allowing one not a party to a suit to attack a judgment by a motion to vacate, especially after the lapse of more than three years from the date of the rendition thereof; and also in permitting an answer-and cross-, petition to be filed to such motion, to which the appellants made proper objection.
The appellants contend that, regarded as a mortgagee in possession, the appellee was not entitled to recover on the mortgages and for taxes paid without accounting for rents received. While a mortgagee in possession is held to account for rents actually received, or which should have been received by fair management of the property, yet we do not understand that such mortgagee is estopped from claiming the amount due on his mortgages and amounts paid for taxes by reason of the failure to set forth the amount of rents, if any, received, or which should have been received. In such a case rents are in the nature of a counter claim, and it devolved upon the appellants to make the claim in a reply.
It may fairly be said that the evidence discloses that •the mortgagee in possession received little, if any, rents other than the payment of taxes on the land, and it does not appear that he claimed any taxes which were paid by the renters. It therefore appears that justice was done in the case, and the evidence fully sustains the judgment of the court.
The judgment is therefore affirmed. | [
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Per Curiam:
This case is in all respects like Gibson v. Wilkins, ante, p. 812, and is reversed for the reasons stated in the opinion filed therein. | [
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The opinion of the court was delivered by
Graves, J.:
This is an application for a writ of habeas corpus by George E. Moran, who is imprisoned in Atchison county for contempt of court. He claims that the order of imprisonment,, is void. It appears that the petitioner was called to Atchison by his brother, John H. Moran, who was seriously sick at that place. While the petitioner was there his brother died. The latter left his property, or a part of it, in the possession of the petitioner. The widow, who had separated from her husband, being apprehensive as to the safety of the property belonging to the estate of her deceased husband, began a proceeding against the petitioner under sections 3632 and 3636 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 37, §§ 19.6, 200), which read:
“Upon complaint made to the probate court by the executor, administrator, creditor, devisee, legatee, heir, or other person interested in the estate of any deceased person, against any person suspected of having concealed, embezzled or conveyed away any money, goods, chattels, things in action, or effects of such deceased, the said court shall cite the person suspected forthwith to appear before it and to be examined on oath or affirmation touching the matters of the said complaint.
“If upon such examination the probate court shall be of opinion that the person accused is guilty of either having concealed, embezzled or conveyed away any moneys, goods, chattels, things in action, or effects of the deceased, as aforesaid, the court may compel the delivery thereof, by attachment, to the executor or administrator or other person entitled to receive the same.”
The court held an examination and found that the accused was guilty as charged, and ordered him to return the concealed property to the administrator of John H. Moran. Failing to comply with the command, an order of attachment was. issued and the accused was committed for contempt until the order should be obeyed. Thereupon this application for a writ of habeas corpus was made, it being contended that the order of the court was without jurisdiction and void.
It is claimed that under the statute the probate court may hold an examination as to the concealment of property, but has no power to enforce its production and return by attachment. We do not so regard the law. The primary and principal purpose of this statute is to protect and preserve the property of estates, that it may not be lost. The probate court is required, when property is withheld from the administrator or other' proper custodian, to cause it to be restored to such person. This is a convenient and appropriate tribunal for such purpose, and it has been clearly and expressly authorized to perform this duty. It does not seem reasonable that such a duty would be imposed upon the probate court without power to enforce the necessary orders to accomplish that end. Without such power, the statute would be useless. What effect other than the return of the property the decision of the court in such proceeding would have as to the title to the property — whether the order would be conclusive or not or how the rights of the parties in other respects might be affected — need not be determined here. The scope of this statute has been to some extent stated in Humbarger v. Humbarger, 72 Kan. 412, and Hartwig v. Flynn, 79 Kan. 595. The statute positively authorizes the use of an attachment with which to enforce the order, and this is what the court did. It seems that the court pursued the remedy prescribed by statute, and nothing more. If the law is valid the court was right. The law is not assailed as invalid, and we do not know of any reason why it should be so held. We are unable to find that the court committed error in issuing the writ of attachment, and do not feel authorized to issue the writ of habeas corpus as requested. The writ is denied. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for libel, brought by the appellant against the appellees. The following is a copy of the petition, so far as is necessary to the consideration of the errors complained of:
“Plaintiff says that the defendants in the above-entitled action are, and have been for some time past, the editors, owners and publishers of The Erie Sentinel, a newspaper published in Erie, Neosho county, Kansas, and of general circulation in said county; that on the 27th day of August, A. D. 1909, said, defendants caused and procured to be published, and published, in said newspaper an article in terms and words as follows, to wit:
“ ‘TRIED TO MURDER HIS ENTIRE FAMILY.
• “ ‘JOHN STINTZEN ASSAULTED WIFE AND CHILDREN SATURDAY.
" 'BEAT THEM OVER THE HEAD AND FACE.
“ ‘Wife Sought Protection from Husband at the Hands op “ ‘Strangers — Departed for Parts Unknown.
“ ‘Saturday evening, John Stintzen, living east of town, became possessed of a'fit of criminal insanity and assaulted his family, threatening to kill them.
“ ‘The cries of his wife were heard by persons returning from the St. Paul reunion, who interfered. Stintzen was found cursing and threatening his wife and had ’ struck her several times, and in addition had vowed that he would kill her with an ax.
“ ‘The terrified woman ran out into the road, where a passing ' buggy load of reunionists were standing, attracted by the woman’s cries, and begged them to protect her from her husband, who she said was trying to kill her family with a hatchet.
“ ‘Bob Short, one of the party, telephoned to the sheriff, who in company with the deputy, Carwile, started for the scene of the trouble. When they arrived they found that Stintzen had taken to the brush, and had left no clue as to his whereabouts. A search failed to locate him and the officers returned to town.
“ ‘After the officers had left the man returned, apologized to his family, said he was sorry he did it, took all the loose cash that he could find, bade his family good-by “forever,” and departed for parts unknown.
" ‘Stintzen lives on the Jim Phelps property, near Four Mile bridge, south of the county farm. He was subject to these kind of fits about once a month. A neighbor who knows him well says that it is nothing more than downright cussedness coming to the surface.
“ ‘He has several brothers living in this vicinity who are also noted for “fits,” but most of these are the result of too much alcohol. Stintzen’s family consists of two girls about thirteen years of age, a boy six years old, and a two-months-old baby. The family bear very little marks of Stintzen’s violence, but if the persons returning from St. Paul had not happened to be passing at the time there is no doubt but that the man’s violence would have resulted in something more serious than a few bruises and scratches.
“Plaintiff says that defendants in publishing the aforesaid article, in referring to John Stintzen, meant and intended to refer to William Stinson; that at the time of the publication of the aforesaid article by said defendants, and for some time prior thereto, said William Stinson lived and resided on the property known as the Jim Phelps property, near Four Mile bridge, south of the county farm; that the neighbors of the said William Stinson, and the people generally of said Neosho county, understood and believed and still understand and believe that said defendants in publishing the aforesaid article, in referring to John Stintzen, meant and intended to refer to William Stinson; that plaintiff is a brother of said William Stinson, and at the time of publication of the above set out article by said defendants, and for some time prior thereto, resided in Erie, Neosho county, Kansas, and still resides in said city; that prior to and up- until the time of the publication of the above set out article by said defendants this plaintiff was of good name, credit and reputation, and of good social standing in said city of Erie, and in the'vicinity thereof, and enjoyed the fellowship, esteem, confidence and good opinion of the people generally in said community; that at the time of said publication plaintiff was known and recognized as a sober, honest and law-abiding-citizen; that these defendants, as editors, owners and publishers of the said The Erie Sentinel, wickedly and maliciously intending to injure the plaintiff in his good name, fame and credit, and to bring him into public scandal, infamy and disgrace among his neighbors and all other good and worthy citizens of said county, and to cause it to be suspected and believed that plaintiff had been and was guilty of an inordinate and overindulgent use of alcoholic liquors, and had by such overindulgence become subject to fits of criminal insanity, and, with the further intent to vex, harass and annoy this plaintiff, did, in publishing the afore-setout article, and in referring therein to plaintiff as a brother of the said William Stinson, make false, scandalous, defamatory and libelous accusations of and concerning this plaintiff, which, with the innuendoes explanatory thereof, was as follows, to wit:
“ ‘He (meaning thereby William Stinson) has several brothers (one of whom is this plaintiff) living in this vicinity (meaning in or near Erie, Neosho county, Kansas) who (meaning the brothers, of whom this plaintiff is one) are also noted for “fits” (meaning fits of criminal insanity), but most of these are the result of too much alcohol (meaning thereby that this plaintiff had indulged in the use of alcohol until he had made himself subject to fits of criminal insanity.) ’ ”
To this petition the appellees filed a general demurrer, which was sustained by the court, and judgment was rendered in favor of the appellees for costs. The order sustaining the demurrer and the judgment are the errors complained of.
The appellees contended, in substance, that the libelous article should be interpreted by the court, and ■it should be determined from its contents whether it was libelous upon the appellant; that if' so construed it can constitute no libel against the appellant, unless it be in the first six paragraphs of the published article, and the appellant does not claim that he was libeled thereby; that the appellant can not be injured by the first sentence of the seventh paragraph, as the pronoun “he,” the first word of that sentence, refers to John Stinson, and that the appellant can not be his own brother and can not be injured by the statement contained in the sentence. The court also seems to have taken this view of the article.
Besides the Christian name, however, the article itself identifies the Stinson referred to, as follows: “Stintzen lives on the Jim Phelps property, near Four Mile bridge, south of the county farm.” The appellant alleges in his petition that the “Stintzen” named in the article meant and was intended to refer to William Stinson; that William Stinson lived on the Jim Phelps property, near Four Mile bridge, south of the county farm, and that the appellant resided at and prior to the publication of the article in the city of Erie, Neosho county, Kansas; that the people of the county of Neosho generally understood and believed and still understand and believe that the appellees, in publishing the article, meant and intended to refer to William Stinson; that the appellant is a brother of William Stinson, and is one of the several brothers referred to in the first sentence of the. seventh paragraph of the publication.
While it is the province of the court generally to interpret written contracts and instruments which are offered in evidence, and to tell the jury what they mean,'in actions for libel the article is to be judged by its effect upon the person alleged to be libeled, as the article is understood by the community or persons to whom the alleged libelous article comes. This is a question of fact, to be determined by a jury in case of a jury trial, and as against a demurrer to a petition charging libel the facts alleged in the petition are, as in all other cases, to be taken as true. This includes the innuendo used in actions for slander or libel to assert a meaning which, from the circumstances, those who heard or read the alleged slanderous or libelous matter understood therefrom. We think it fairly appears from the petition that the word “he,” being the first word in the seventh paragraph of the article, meant and was understood to mean William Stinson and not John Stinson. The petition therefore states a cause of action.
The order sustaining the demurrer is set aside, the judgment is reversed, and the case is remanded for further proceedings in accordance with .the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
M. S. Bryan, who was the administrator of the estate of Jasper King, deceased, brought this action to recover on a promissory note for $50.0, executed by N. A. Palmer, as principal, and E. Palmer, as surety. The defense of the Palmers was that the note had been paid during the lifetime of King. On the trial it was shown that N. A. Palmer, had moved to New Mexico, and that he had there undertaken to transmit money to Kansas for the payment of the note. There was testimony that he had inclosed currency amounting to $515 in an envelope, and with it was inclosed a form of a receipt for King to sign. Palmer undertook to have the letter registered, but for some reason the postmaster omitted the registration. There was proof that a letter of this kind was received by King in Kansas, and that he signed the receipt acknowledging payment of the note. A receipt signed by King and received by Palmer was introduced in evidence. The jury, upon what appears to be sufficient testimony, found that- payment had been made. The principal question on this appeal is upon the admission of Palmer’s testimony in regard to inclosing the bills in the envelope, the taking of it to the postmaster, and his attempt, as well as failure, to have it registered, and also the receipt of King acknowledging payment. It is contended that the testimony falls within the provisions of section 320 of the code of 1909 forbidding a party from testifying in his own behalf against an administrator in respect to any transaction or communication had personally with the decedent. This objection was not made when the testimony was introduced, but after it had been received a motion was made to strike it out because it violated the limitation mentioned.
The steps taken by Palmer at the post office in New Mexico, when he was hundreds of miles from King, in placing bills in the envelope, the statements made by him at the post office and his attempt to register the letter were not personal transactions or communications with King within the meaning of the code provision. King was hot an immediate party to any of the transactions respecting which testimony was given. He had no personal knowledge of what was said or done by Palmer at the post office in New Mexico, and if he were living could have given no testimony in contradiction of them. The code prohibits only such communications and transactions as are personal— those of which both parties have knowledge'. As to these the law places the parties on a level, and in effect says that since the deceased person can not testify to those conversations and transactions the lips of the living party will be sealed as to them. The theory of the prohibition is that it would not be safe to allow a party to testify to personal conversations or dealings with another when that other has since died, and where, as in many cases, there are no other witnesses to them nor any means of disputing or contradicting them if untrue. Things said or done by Palmer to which objection was made were not in the presence of King,, and were not strictly personal. King, if living, could not from personal knowledge have denied or contradicted them. The court is not inclined to extend limitations of this character by interpretation. Palmer was a competent witness in the case as to all material facts, except as to personal conversations or dealings with the deceased. Where these have been directly and personally participated in by both parties the testimony is, under the statute, excluded, but as to all other material facts the surviving party is a competent witness. (Clifton v. Meuser, 79 Kan. 655; Heery v. Reed, 80 Kan. 380.)
Under a similar statute the supreme court of Wisconsin held that testimony by the survivor as to the receipt of a letter written by the other party before his death was admissible. In the opinion it Was said:
“The deceased party could not, from the nature of the transaction, have made any directly contradictory statement. He was a party to the transaction, but not an immediate party, at least to that part of it concerning which the proof is offered. The fact to be proved is not one of which he had any positive knowledge, or which he could, if living, have positively denied. He could deny it indirectly or by inference only, by denying that he ever wrote the letter. But this would be testimony to another fact or point, as to which it is not proposed to examine the living party, and of which he had no positive knowledge.” (Daniels, executor, v. Foster and others, 26 Wis. 686, 691.)
In Dysart v. Furrow, 90 Iowa, 59, the supreme court of Iowa had before it the meaning and purpose of a provision similar to our own, and said:
“When by death, insanity or lunacy the lips of one party are closed, section 3639 wisely closes the mouth of his adversary as to personal transactions and communications which the silent party might from personal knowledge deny, were he able to speak. Personal transactions and communications, as contemplated in the statute, are transactions and communications between the parties, of which both must have had personal knowledge.” (p. 61.)
(See, also, Sykes v. Bates, 26 Iowa, 521; Sankey v. Cook, 82 Iowa, 125; Stewart and others v. Stewart and another, 41 Wis. 624; Williston v. Williston, 41 Barb. [N. Y.] 635.)
Some of the testimony relating to the preparations made for transmitting the money and also to obtaining possession of the receipt closely approached the border line of incompetency, but, considering the spirit and intent of the statute, substantially all of the testimony objected to was admissible. The witness, it is true, spoke of sending a letter to, and receiving one from, King, and also stated that the letter received had been destroyed, but there was no attempt to'show the contents of the letters. It may be said, too, that most of the challenged testimony was well supported by other testimony.
Complaint is made that in the testimony as to the sending of the money and the attempt to register the letter remarks of a hearsay character were made to and by the postmaster. These remarks were mainly explanatory of accompanying acts, and in none of them do we find anything prejudicially erroneous.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
There is no question as to the sufficiency of the pleadings in the case, and the undisputed evidence shows that the board of the appellant school district entered into a written contract with the appellee by the terms of which the appellee was to teach the public school in such school district for a term of seven school months, commencing on the 9th day of September, 1907, for the sum of $45 per month. The contract was in the usual form, and was signed by two members of the board and the teacher.
The appellee entered upon her duties'as such teacher and continued thereafter to teach until the 25th day of November, 1907, when she was served with a notice, signed by all the members of the school board and the county superintendent, to close the school, and that she was dismissed on charges of incompetency and negligence, and the schoolhouse was'.closed against her. She was paid full wages, according to the terms of the contract, for the time she taught the school. After the full expiration of the term for which she was employed she brought this action to recover the amount of the wages unpaid, at the rate prescribed in the contract. A trial was had to the court and a jury, and a verdict was returned in favor of the teacher for the full amount claimed. A motion for a new trial was denied, and judgment was rendered accordingly. There is no conflicting evidence in the case.
Practically the only question presented is whether the steps taken by the school-district board and county superintendent to dismiss the teacher complied with section 7468 of the General Statutes of 1909. (Laws 1876, ch. 122, art. 4, § 24.) The notice introduced in evidence reads:'
“Sterling, Kan., November 20, 1907.
“We, the school board of district No. 8, county of Reno, state of Kansas, do hereby notify Laura Duncan, teacher of said school, to close and vacate said school.
“Charges of dismissal are incompetency and negligence. John Nusser, Treasurer.
I. E. Deadmond, Director.
C. C. Johnson, Clerk.
“Above approved November 23, 1907. By A. W. Hamilton.”
Charles Johnson testified, in substance, that he was the clerk of the school district; that the district board met and considered the question of the teacher’s competency; that he could not go down to see the county superintendent; that it was understood and agreed that the treasurer and the director should go the next day to see the county superintendent, which they did; and that he afterward signed the dismissal notice.
John Nusser testified that he was present at a meeting of the board at which the conduct of the school by the teacher was talked about; that the board met and talked the matter over three times; that he and Mr. Deadmond went to Hutchinson and talked the matter over with the county superintendent; and that all members of the board, after the meeting at the county superintendent’s office, signed the notice of dismissal.
Mr. Deadmond testified that two weeks before the dismissal notice was prepared he visited the school; that all members of the board met thereafter and decided to go down to Hutchinson to see about the dismissal of the teacher; that Mr. Johnson, the clerk, had business which prevented him from going, and authorized Mr. Nusser and himself to go; that Nusser and he did go, and talked with the county superintendent about the school; that he told what he had observed as a visitor to the school, and the county superintendent told what he had observed when he visited the school; that the county superintendent, Mr. Nusser and himself came to the conclusion that they should dismiss the teacher; that in two or three days thereafter the school board had another meeting, at which all were present; that they wrote out and all signed the notice of dismissal and authorized the director to take it to the county superintendent to indorse it, which was done, and the director then took the paper back and served it on Miss Duncan.
Testifying in regard to the meeting with the two members of the board, the county superintendent said, in substance, that they wanted her to quit and she was unwilling to do so, and he told them they could not dismiss her without his consent; that they made complaint that she did not keep order, and that the children were not learning anything; that he told them he was ready to pass his judgment, and there was only one way to do it, and that was by acting as they thought it should be done; that they said she should quit; that he and the two members of the board agreed in every respect; that afterward Mr. Deadmond brought the notice of dismissal to his office and he approved and signed it; that he had visited the school and talked with the teacher. Among the things referred to in relation to his visit to the school, he said the discipline was so bad that the teaching was of no consequence.
The teacher herself testified that the last week of school she had only two scholars, and that the week before she had twenty-three scholars.
As before stated, there was no evidence contradicting these statements. It is not contended but that the evidence of the plaintiff was sufficient to justify the verdict and judgment, if she was not legally dismissed. At the conclusion of the evidence the court was requested in writing to instruct the jury to return a verdict in favor- of the defendant, and we see no reason why this instruction should not have been given.
The instructions of the court generally were correct, arid told the jury, in substance, that no formality was requisite in the proceedings of the school-district board and county superintendent; that if the school board and county superintendent had considered the matter and decided, however informally, to dismiss her, such acts would be sufficient to constitute a valid dismissal of the plaintiff under the law, and that their verdict should be for the defendant.
The fifth instruction, however, seems to submit the question of fact to the jury whether the school-district board and county superintendent did act in conjunction in dismissing the teacher. And it was undoubtedly argued there to the jury, as it is here, that to act in conjunction the school-district board must meet and organize as a tribunal, and that the action taken was not sufficient. Upon no other theory can we account for the second and fifth findings of fact, which follow:
“(2.) Did they [the two members of the board] together consider with the county superintendent the competency and negligence of the teacher? A. .No.
“(5.) Did the two members of, the board and the county superintendent agree that plaintiff should be dismissed? A. No.”
Not only is there no evidence to support these findings, but they are directly opposed to all the evidence relating thereto. These findings should have been set aside or disregarded.
Other findings were as follow:
“(1.) Did two members of the board meet the county superintendent at his office a few days before the dismissal ? A. Yes.
“(4.) Did Johnson, the clerk, know the time and place that the other two members of the board were going to meet and consult the county superintendent? A. Yes.
“(6.) Did Johnson, the other member, subsequently meet with the said two members and sign the order of dismissal? A. Yes.”
The request for an instruction to return a verdict for the defendant should have been allowed, and the motion for a new trial, on the ground that the verdict was not sustained by the evidence, should have been sustained. The judgment is therefore reversed, and the case is remanded with instructions to render judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
A compromise tax deed which had been ■of record more than five years and under which the appellant claimed title was held to be void on its face.
The objection to the deed is that it includes several ■separate and disconnected tracts of land which were not sold at the same tax sale. In support of the judgment of the district court the appellee contends that there is nothing in the statutes to authorize the county •clerk to include in a compromise tax deed several tracts of land unless all the tracts were sold at one sale. Section 9480 of the General Statutes of 1909 (Laws 1889, ch. 248) provides:
“In any case where any purchaser at any tax sale shall purchase more than one parcel or tract of land or lots, he may require the county clerk to include all such lands or lots in one deed, stating the amount-of tax, interest and penalty for which each separate tract is sold and conveyed, the sum of which separate amounts shall be the gross or aggregate consideration of the deed.”
The appellee’s contention is that this section has no application to compromise tax deeds; that the grantee of a compromise deed is not a “purchaser at any tax sale.” The appellant agrees to this contention, but, on the other hand, argues that the county clerk always, had authority to include in one tax deed separate tracts of land sold to the same purchaser; that prior to the enactment of the statute it was optional with the clerk whether to make one or more deeds; and that the only purpose of the statute was to authorize the purchaser to require the clerk to do so in cases of ordinary tax deeds. The appellant therefore concedes that he could not have required the clerk to include more than one tract in this deed, because it is a compromise deed, but claims that, no statute being necessary to authorize separate tracts to be included, the deed is valid.
In our opinion both parties are in error with respect to the application of section 9480, as well as to the definition of a “purchaser at any tax sale.” Lands bid in by the county at a tax sale are sold as much as though they were bid in by an individual. The compromise statute speaks of the transaction as a sale for taxes of lands which are bought in by the county. The assignee takes from the county a tax-sale certificate. In Hoffman v. Groll, 35 Kan. 652, where the notice of the tax sale was defective, it was contended that the tax deed was not based on a sale made pursuant to the defective notice, but wholly on the authority of the compromise statute. In overruling this contention the court said that “the tax-sale certificate executed by the-county treasurer and assigned by the county clerk under this statute is based upon the anterior tax proceedings, and upon the sale which was made when the land was bid in by the county” (p. 658), and it was therefore held that a legal notice of the sale was a prerequisite to the validity of the deed. It is apparent therefore that the assignee of a tax-sale certificate of lands bid in by the county for delinquent taxes who-takes out a compromise tax deed is as much a purchaser at a tax sale as though he had purchased at a. regular sale for taxes.
The provision authorizing a purchaser to require the clerk to include separate tracts in one tax deed was-first enacted in 1868. (Gen. Stat. 1868, ch. 107, § 115.) At the general revision of the tax law in 1876 the section was omitted. It was reenacted in 1889 as a separate act, the title of which is, “An act concerning tax deeds.” (Laws 1889, ch. 248, Gen. Stat. 1909, § 9480.) In the meantime the compromise tax law had been adopted (Laws 1879, ch. 43; see Gen. Stat. 1909, § 9475), so that the act clearly applies to all tax deeds, whether .based upon an ordinary tax sale or a compromise. The title of the act is as broad as language can make it. It concerns tax deeds.
There is the further contention of the appellee that the word “any,” as used in this section, has a restrictive, or singular, sense, and that the statute means, the same as though it read “where any one purchaser at any one tax sale,” etc. We see no reason for giving the statute this restricted meaning. No rights of the owner of lands are in any way prejudiced by the inclusion in one deed of several tracts of land sold at different sales. The owner can easily ascertain from the description of each tract of land the date when the same was sold, the amount it was sold for, and the amount for which the tax was compromised. The legislature obviously intended to avoid the unnecessary expense of executing and recording separate conveyances where one would answer the same purpose.
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
Benson, J.;
This is an action to recover damages for personal injuries. The plaintiff, Iliff, was employed as a janitor in the packing house of the defendant company. His duties were to keep the floors clean and to clear out the refuse from the elevator pit. He was directed to notify the elevator operator whenever he entered the pit for the purpose of cleaning it, and was told that the operator would warn him when the ele vator was about to come down. The plaintiff performed this duty for two months or more before he was injured, giving the notice and receiving the warning as indicated. At the time of the injury he had entered the elevator pit, after giving notice to the operator as usual, and was using a scraper and shovel in cleaning out the refuse and filth therein, when, without warning, the elevator descended upon him while thus at work, inflicting the injuries of which he complains. The operator had received the notice, but neglected to give the warning.
It was claimed by the defendant that the plaintiff was ordered to clean out the pit only when the elevator was locked at noon or after the close of the regular work of the day, but the general verdict for the plaintiff determines the issues in his favor, and evidence having been given to prove the facts as above stated, they must be taken as true.
Errors are assigned upon the order overruling the demurrer to the evidence and in the instructions given. In support of the demurrer it is contended that the plaintiff and the operator of the elevator were fellow servants, and as the injury was caused solely by the negligence of the operator the plaintiff can not recover, under the rule relating to fellow servants. On the other hand, the plaintiff insists that where the negligent act of one fellow servant which injures another violates a nondelegable duty which the master owes to the injured servant, the rule that a master'is not liable to one servant for the negligence of a fellow servant has no application. In Kelley v. Ryus, 48 Kan. 120, it was said:
“It is the duty of an employer in all cases to furnish his employees with a reasonably safe place at which to work, and with reasonably safe instruments or tools with which to work; and if he delegates these duties to another, such other becomes a vice principal, for whose acts the principal is responsible.” (Syllabus.)
It was said in Crist v. Light Co., 72 Kan. 135:
“If the master sends a servant to work in a place of danger, however temporary, and the danger arises from acts or omissions of other servants against which the servant has no means of protecting himself, it is the duty of the master to provide such warnings or to take such other steps as may be reasonably necessary to safeguard the servant so employed; and if another servant of higher or lower degree is delegated by the master to attend to such safeguarding he is performing the functions of the master, and if guilty of negligence the master is responsible.” (p. 139.)
The defendant concedes the rule but urges that while ordinarily a master can not delegate the performance of the personal duties which he owes to his employee so as to relieve himself from liability, yet this rule is subject to the exception that where the duty relates to a mere detail of the work it may be delegated to a fellow servant and the master be relieved from the negligence of the latter. It is urged that this claim is supported by the opinion in Brick Co. v. Shanks, 69 Kan. 306. But in that case it was held that shovelers in a mine were not required to watch for shale thrown down by the drillers, of which warning was required but was negligently omitted. It was said that “the shovelers Were hired to work — not to dodge the drillers.” (p. 310.) It was also said:
“But whenever a negligent act violates any duty which the master himself owes to the servant, as, for example, the duty to make the service and the place in which it is performed reasonably safe, that fact controls, irrespective of the rank or grade of service between employees, and notwithstanding the circumstance that they are engaged in a common employment directed to a common end; and if, in the discharge of the master’s duty, • a warning be necessary, it is not enough for him to say that he has provided a competent person to give it; the warning must be given.” (p. 310.)
In Brice-Nash v. Salt Co., 79 Kan. 110, where the method of carrying on the work involved the occasional dislodgement of masses of salt with such force as to expose employees to danger, and it became necessary to give warning of such dislodgement, it was held that the giving of such warning was a nondelegable duty of the master and that its omission imposed liability for consequent injuries, regardless of the question of coservice.
It is argued that the danger to which the plaintiff was exposed was not permanent or constantly recurring, and that for this reason the rule requiring the company to make the place reasonably safe for the service does not apply. It will be observed from the quotation given that this view was not approved in this court in the Crist case. It was also said in that case, in immediate connection with the language quoted, that the rule “has no iron-bound limitations as to whether the place be a permanent or a temporary one.” (72 Kan. 135, 139. Authorities on this and other closely related subjects are collated in a note in 26 L. R. A., n. s., 624-651.)
The assurance given to the plaintiff that he would be warned when the elevator was about to descend implied that he was expected to continue at his work until the warning was given. It was therefore not only his right but his duty to give attention to that work. While doing this he was injured, without his fault, through the failure of the company to give the warning it had undertaken to give. These facts afforded a cause of action.
It is also contended that the plaintiff should be held guilty of contributory negligence, because his work in the elevator pit was so instrinsically and plainly dangerous that he ought not to have undertaken it at all while the elevator was in use. The service, however, must be regarded in the light of . the provisions for safety promised by the company — -that is, upon the supposition that the warning would be given. When so considered, it can not be said as a matter of law that the work was so glaringly dangerous that none but a reckless person would have undertaken it. The question of contributory negligence was for the jury.
The instructions complained of are in harmony with the interpretation of law as given in this opinion, and are not deemed erroneous.
Finally, it is urged that the verdict, which was for $2000, is so excessive as to show passion and prejudice on the part of the jury. After reading the evidence it is found sufficient to warrant the award.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
A point of controversy in an action of ejectment between the appellee and the appellants is the validity of an administrator’s deed. In an earlier appeal it was determined that a preliminary order of the probate judge requiring notice of the time and place of hearing an application to sell land and prescribing the length of time and the manner in which notice should be given is essential to the validity of the notice, and that as the record of the probate court failed to show such an order the notice and the deed based thereon could not be upheld. (Graden v. Mais, 77 Kan. 702.) Some time after the case had been remanded for a new trial steps were taken in the probate court to have the order mentioned entered nunc pro tunc, it being claimed that the order had actually been made at the proper time and that there was a failure to make it a matter of record. When this cause came up for a new trial appellants undertook to prove the nunc pro tunc entry of the order, and while it was shown that a hearing for that purpose had been had in the probate court, the probate judge had not at that time actually made an entry of the order. He appeared to be satisfied by the testimony taken at the hearing that the entry should be made if the notice of the proposed correction of the record had been given, but deferred the making of the entry until satisfied that a certain notice had reached the appellee. The trial court excluded the testimony of the proceedings in the probate court, but made his ruling on the assumption that the probate judge had made his decision and had actually made a nunc pro tunc entry of the required order. It appeared on the motion for a new trial that in the meantime the probate judge had completed the record and made a nunc pro tune entry of the order. Proceeding on the theory that the record could not be corrected or completed at that late date by parol testimony, the court held the administrator’s deed to be invalid.
If the trial court had made its ruling excluding testimony on the ground that there was no proof of the necessary order, and not on the assumption that the probate court had entered the order, the ruling must have been upheld, upon the ground that there was not at that time a record entry of the required order. The fact that the court decided the case on the assumption that the probate court had entered the order may have prevented the appellants from procuring a postponement of the trial long enough to enable them to obtain the completion and correction of the record in the probate court. Counsel for appellants appears to have understood that the probate court had already decided in their favor, and, as we have seen, that officer did com píete the record and make a nunc pro tunc entry of the order before the motion for a new trial was heard. Assuming, then, as the district court did, that the entry had been made in the records of the probate court, its decision excluding parol proof of the entry can not be upheld. The contention is that if there is no written order among the files of the probate court and no written evidence that such an order was made there is no basis for a nunc pro tunc entry, and that a correction can not be made on parol proof. While there are authorities holding that evidence to justify the entry of a judgment or order nunc pro tunc must be record, or written evidence (23 Cyc. 835), it is not the rule in this and many other states. In Aydelotte v. Brittain & Co., 29 Kan. 98, the testimony of a former judge was accepted as a basis for a nunc pro tunc entry of an order. In Martindale v. Battey, 73 Kan. 92, it was held that an entry may be supplied or corrected and made to conform to the order or judgment actually rendered after the expiration of the term at which it was rendered, and upon any satisfactory evidence, parol as well as written. It is important that in all such cases the court shall be well assured that the ruling proposed to be entered is one that was actually made. In the case last cited it was said:
“The change should be allowed only where the proof in support of the application is clear and convincing. But where it is satisfactorily established that the requisite facts exist we think relief should not be denied merely because the evidence rests entirely in parol.” (p. 98.)
In making the entry the court does not review or rectify an order previously made, but only places on the record some ruling or act of the court which through accident, mistake or neglect was not carried into the record. The probate court, which made the order, is a court of record, and it retained jurisdiction over its records, with power to complete or correct them.
“A court of record has an inherent power over its own records which includes the authority to require the correction of any errors that may creep into them. This power is not lost by lapse of time or the expiration of a term of court.” (Christisen v. Bartlett, 73 Kan. 401, 406.)
Lapse of time may call for closer scrutiny and stronger testimony showing that the order was in fact made and as to the nature and extent of the ruling, and also as to the effect the belated entry may have upon third parties; but when it is made by a court having the power to do so it must be respected and enforced the same as if it had been entered when it was made. Treating the order as having been entered by the probate court, it, as well as the notice and the administrator’s deed, was competent evidence which should have been received; and as this entry practically settled the controverted question in the case the ruling here is that the judgment of the district court be reversed and the cause remanded, with directions to enter judgment in favor of the appellants. | [
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Per Curiam:
In October, 1909, William Dill was appointed judge of the district court to fill a vacancy, and continues to act in that capacity, claiming that the appointment holds good until the election of 1912. J. H. Wendorff claims title to the office under the election of November 8, 1910, and brings action for its possession. The legal question involved has been presented upon both sides with the utmost fairness and courtesy. The court sustains the view of the plaintiff, and announces that conclusion now, inasmuch as an early decision is desirable upon public grounds, and is asked by the parties. The reasons therefor will be stated in an opinion to be filed later. To give opportunity for the settlement of any unfinished business pending before Judge Dill, the order of this court will be made effective December 24, 1910. His acts as a de facto officer are of course as valid as though he held by a perfect title, and that status will continue until the date named. | [
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Per Curiam:
Upon the authority of The State, ex rel., v. Malo, just decided, the application for the peremptory writ of mandamus will be denied, and judgment rendered in favor of the defendant for costs. | [
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Opinion by
Clogston, C.:
The plaintiff in error now complains that the conclusions of law are not supported by the findings of fact made by the court. The findings of fact show that Eogle was the original owner of the property, and that the mortgage, the subject of his action, was for the purchase-money of the property. Marcoux transferred the property to Towle, subject to this lien for the purchase-money, and subject to Eogle’s mortgage. Towle had actual knowledge of the existence of that mortgage, and assumed it, or took the property subject to it. He executed the mortgage now set up by Short, and informed Robbins of the exact condition of affairs. Towle at this time had but an equitable title to the property. He had what Marcoux could transfer to him — an equitable title only; and at the time of the execution of the mortgage to Robbins he could give Robbins no better title than he himself had. When Robbins transferred his note and mortgage to Short, he could give Short nothing better than he himself had. He told Short, however, that there was another mortgage upon the property. Short made no inquiry to ascertain its standing or condition. He received under the notice whatever title and right Robbins had, and no greater. He stands in the same place that Robbins would have stood had he set up the mortgage instead of Short. We therefore fail to see what legal or equitable right the plaintiff in error has to insist upon a first lien upon this property.
The judgment of the court below is correct, and we therefore recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The bill of exceptions allowed by the justice of the peace did not-contain all the pleadings, and none of the evidence. We are therefore unable to learn definitely from the transcript what issues were tried in the justice’s court at the second trial. The defendants’ original answer was evidently set forth in full, but after the verdict of the jury in their favor it is stated that it was “amended so as to conform to the verdict.” ' What that amendment was, is not shown. It is in the transcript, however, that the second trial was had before the court without a jury, on the bill of particulars of plaintiff and the general denial and plea of offset of defendants, when the .court rendered a judgment for the defendants for $22.14.
The original pleadings in the justice’s court should have been" set forth in full in the transcript, with all the amendments thereto that were allowed. Section 1126 of civil procedure before justices provides:
“In all bills of exception it shall be competent for the party preparing the same to set out the pleadings, motions and decisions oí the justice of the peace thereon, and the whole of the evidence given, or so much' as may be necessary to preserve the point or points decided on the trial, and the ruling and decisions of the court and the exceptions made thereto on the trial.”
The word “competent” in this section evidently means sufficient. There is no provision in this section for setting out a part of the pleadings, as there is concerning the evidence, and it is fairly inferred that the pleadings should be set forth in full in the transcript.
We think the bill of exceptions signed by the justice was insufficient for this reason, and the case should have been dismissed by the district court. The reasonableness of this rule is illustrated in this case. The decision of the district court was evidently based upon the plea of tender set forth in the transcript. That may have been stricken out when the defendants’ answer was amended so as to conform to the verdict of the jury in the first trial. It is not mentioned as being a part of the pleadings in the second trial before the justice. From the imperfect record brought here it was shown that that trial was had upon the bill of particulars of plaintiff and the general denial and plea of offset of the defendants. Nothing is said of the plea of tender which was originally filed by the defendants. It should be presumed, to uphold the judgment of the justice, that the defendants’ answer had been amended by striking out that plea. It was within the power of the justice’s court to allow such amendment. We call attention as bearing upon this point: Baird v. Truitt, 18 Kas. 120; Reilly v. Ringland, 39 Iowa, 106; Reynolds v. West, 32 Ark. 244.
We recommend that the judgment be reversed^and the district court ordered to dismiss the petition in error.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The appellants were prosecuted for malicious trespass. They were charged with willfully and maliciously pulling down and destroying a gate and fence, not their own, which were upon the land of W. B. Williams, the prosecuting witness. The taking down and removal of the fence were admitted by the appellants, and they claimed in justification that the gate and fence were standing on and obstructing a highway, and, desiring to pass over the highway, they removed the obstruction. At the trial, which was had without a jury, at the February term, 1889, they were found guilty, and each was sentenced to pay a fine of $1, and the'costs of the prosecution..
The only question to be determined upon this appeal is the existence of a highway at the place where the alleged trespass was committed. It is conceded that no road existed there by prescription nor through condemnation proceedings, but it is claimed that one was established through the acts and acquiescence of the owners of the land and the public. There was no express dedication, and in our view the facts proven do not establish an implied dedication of a highway. ' To constitute a dedication there must be an intention to dedicate on the part of the owner clearly and unequivocally shown, and an acceptance by the public. In 1875 an ineffectual attempt was made to establish a statutory road along the section line, where the trespass was committed. A petition was presented to the county commissioners for the laying out of a road on November 5,1875, and on the following day the petition was granted, without any notice, assessment of damages, or any of the steps necessary in a condemnation proceeding. It seemed to be the opinion of some of the people in that locality that a road might be opened upon the section line upon the mere presentation of a petition. It was claimed by some and disputed by others, that a road had been established, and on two different years work was done on the line-under the supervision of the road overseer, it being supposed by the parties that a statutory road had been laid out. Some travel passed over the line, but as it was open country most of the time the travel was not closely confined to the section line. When it was learned that a statutory road had not been established, no further work was done on the way, and the complainant and other property-owners fenced it up, but gates were put in, and parties who found it necessary could go over the line by opening these gates. The line had been so fenced for four or five years prior to the commencement of this proceeding. In 1886 the board of county commissioners, recognizing that no road existed on the line, granted a petition for a highway thereon, and ordered a view and survey of the proposed highway, but these proceedings failed for non-compliance with the statute.
It is clear from the evidence that the court correctly held that there was no dedication. There was manifestly no intent on the part of the owners to give the land for the use and purpose of a highway. No particular form of grant or assent is required, but before a dedication can be inferred the purpose of the owner to make the gift of the land for a highway must be clearly and satisfactorily shown. The proof fails to establish any such intention by either the former or the present owner. It is true that W. B. Williams, who purchased the land in 1877, was a road overseer in 1878, or 1880, and some work was done on the line under his direction; but he had been informed and then supposed that a highway had been condemned. At a later time, work was done under the supervision of another overseer! Any steps looking toward the recognition of a highway taken by the parties, were taken upon the mistaken notion that a highway had been laid out in the manner authorized by law. At no time did the owner entertain a purpose of surrendering or dedicating to the public a part of his land for a highway. Dedication is founded upon intent, which is not to be presumed upon slight or inconclusive evidence. (5 Am. and Eng. Enc. of Law, 400, and cases cited.) The fact that the line had been closed since 1883 without opposition from the public, and that in 1886 the preliminary steps for the opening of a highway upon this line were taken, indicate that the owners and officers alike entertained the opinion that no dedication had been made, and no highway existed. We are of the same opinion, and hence the judgment of the district court must be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendant complains that there was no return of the machine and no written notice given the company at Springfield, Ohio, as provided for in the warranty. The plaintiffs’ excuse for not returning the machine to St. Joseph, Missouri, was, that Quigley said he would not accept it if it should be returned. Upon conflicting evidence the jury found that Mann offered to return the machine, and Quigley refused to accept it. We are unwilling to disturb that finding. It would have been an idle and fruitless thing to have taken the machine to Quigley at St. Joseph, after the statement he had made to Mann. His declaration that he would not accept it, and that plaintiffs must keep it, was sufficient to. excuse them from returning it. (Ritchie v. Huntington, 7 Kas. 250; Raper v. Harrison, 37 id. 243; Bogle v. Gordon, 39 id. 31.)
It is a conceded fact that no written notice was sent to the company at Springfield, Ohio. It is shown beyond any question, that Quigley, who testified himself that he is the manager of the branch office at St. Joseph, was present at two trials of the machine; and it also appears in evidence that a Mr. Pence, from Springfield, Ohio, came to St. Joseph and was sent out by Quigley to see the machine work. It is not proven that he was sent from the home office for this purpose, or whaj; his authority or power might have been in the matter, except it is stated that he was the manufacturer of the cord binder, which gave a great deal of trouble in binding the grain. He attempted to fix the machine, and did make it work better temporarily. The plaintiffs claim, however, that the knowledge of Quigley of the fact that the machine failed to do good •work, and that the second trial was made under his direction, answers substantially all the stipulations of the warranty in regard to notice of the defendant at Springfield, Ohio. The court evidently took this view of the case, and in its instructions to the jury called their attention to this warranty, and said:
“It was also provided in the contract of warranty that if the machine did not perform properly, then immediate notice should be given to the Champion Machine Company, Springfield, Ohio, subject to a second trial in their presence and under their direction, when, if the failure should be found not to have arisen from any defect in the machine when properly adjusted and used, and the machine filled the warranty, then it should be kept by the purchasers. If, however, you find that the machine was set up and operated under the directions of J. P. Quigley, the general agent and manager of the defendant’s branch house in St. Joseph, and the workmen whom he sent, and that the same failed to do good work, or was defective as charged in the petition of the plaintiffs, and that the said J. P. Quigley and his workmen knew of said failure, and the plaintiff's expressed dissatisfaction with the machine, and that said J. P. Quigley and his workmen continued to direct the operations of the machine until its use was abandoned by the plaintiffs, this would be sufficient notice to the defendant of the plaintiffs’ claim that the machine did not comply with the terms of said warranty.”
The defendant’s objection to this instruction is, that notice to Quigley was not equivalent to a notice on defendant at Springfield, Ohio. The general rule is, when a third party is concerned, that notice to the agent is notice to the principal, if the agent receives notice while he is acting for the principal in the particular business in which notice is necessary. The defendant claims that this rule does not apply in this case, by reason of the express stipulation in the warranty that the notice shall be given to the home office of the defendant at Springfield, Ohio; and it relies upon Furneaux v. Esterly, 36 Kas. 530. In that case, as in this, a machine was sold upon a conditional warranty, which provided that the purchaser should have time to test the machine, and if it did not do good work, to notify in writing the agent, and also Esterly & Son, Whitewater, Wisconsin. In that case Furneaux purchased the machine of the local agent, who stated that he never had any correspondence with Esterly & Son, but did his business with Mr. Leffingwell, a distributing agent at Kansas City, Mo. In the written warranty there was this stipulation: “No agent has any authority to change this warranty.” Leffingwell himself testified that though he termed himself a general agent, he had no authority to change the terms of the warranty or contract, but on the contrary, he had instructions not to change it. Furneaux kept the machine through two harvests before he returned it. In this case Quigley was the manager of the branch office at St. Joseph, and had such general authority to act for the company that he hired and discharged hands without consultation with the home office. There was no testimony, either from Quigley himself or from the officers of the company, that there was any limitation of his authority as manager. As such manager of the branch office he had full power to sell machines and receive those which should be returned to him as unsatisfactory, and refund what might have been paid upon them. It naturally follows that he would have the authority to test them and determine whether they would do good work when properly adjusted and operated. The only possible limitation on his authority arising from the evidence is the provision in the conditional warranty, that “Immediate notice must be given to the Champion Machine Company, Springfield, Ohio, subject to a second trial in their presence and under their direction” if the machine failed to operate properly. As we have stated before, no such notice was sent by plaintiffs to Springfield, but Quigley repeatedly sent out men employed by him for the company, from the branch office at St. Joseph, Mo., and also one who came from the home office, to adjust the machine and see how it did its work. Two trials were had before Quigley and under his personal supervision. He evidently believed that he had authority to determine whether it filled the warranty. We believe all these circumstances and his repeated assumptions of authority indicate that he could test the machine, examine its work, and decide for the company whether he should receive it when it might be returned to him as unsatisfactory. Having this authority impliedly from the company, his voluntary and repeated appearances in the field to see it operate made any notice to the company either at Springfield or elsewhere unnecessary.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The plaintiffs complain of the instructions refused and given, and that certain of the findings of fact are not supported by the evidence. The court's instructions are sufficiently full and definite, and correctly state the law applicable to the evidence. The instructions refused were substantially incorporated in the charge of the court. The assignee, of course, had the same rights, no better, than Bonham, and if this action could have been successfully maintained against Bonham in case no assignment had been made, it can also be successfully maintained against the assignee. The record does not contain all the evidence introduced at the trial, but the case-made shows that findings 3, 5, 6, 9, and 11, are made wholly on evidence introduced by depositions. Any objection made to the other findings will not be con sidered, as they may have been supported by testimony not brought here.
The plaintiffs say, “ that by reason of the fact that all the testimony referring to said findings being in writing and here before this court in the same manner that it was before the jury, this court is in a condition to determine with accuracy whether the findings of the jury are such as ought to have been made under the evidence.” The only evidence of the statements made by Bonham in April is given by George G. Place, the agent of plaintiffs. Testifying of what Bonham told him, he says:
“He stated that in the fall of 1884 he started in business with some seven hundred and odd dollars; that he did not take an inventory in January, 1885, but did in January, 1886, fourteen months after starting; that he found that he had made a trifle over $1,700 during that fourteen months; that he had been very conservative in giving credit, and had lost only a few dollars; that he sold on time only to those who settled their bills every thirty days; that he owed nothing except regular merchandise bills not yet due, and that his business was in a flourishing condition. On the strength of the above statement I gave him sixty days’ credit. He made the statement in April, 1886; never altered the statement, and failed in October of that year.”
Bonham himself testified in his deposition, speaking of what he told Place at the time of the purchase in September:
“I stated to Mr. Place that I was doing business on a small capital, and that I was endeavoring, by watching my purchases and collections, to meet my bills promptly at maturity. . . . There was no statement made regarding solvency or insolvency, or ability or inability to pay, except as I have before stated; that I was doing business on a small capital, and was endeavoring to hold my purchases down as close as possible that I might meet my obligations promptly.”
On cross-examination, in answer to a question, he said:
“I did not tell him [Place] how much capital I had invested in the business; the only thing that I ever did tell him in regard to capital was that I was doing business on a small capital; no amount of capital was ever mentioned. . . . I never told him whether I was making or losing money. ... I did make some money a part of the time I was in business; during the summer and early part of the fall of 1886, my trade dropped off; to such an extent did it drop off that I did not pay expenses.”
It is shown in the depositions that Place urged Bonham to buy a large bill, because of the Soldiers’ reunion about to be held at Emporia; there came a week of rain, and but few people attended the reunion. The depositions of Place and Bonham were taken about the same time — one at Boston, Massachusetts, and the other at Wichita, Kansas. Neither of the parties testifying could have seen the deposition of the other, and hence there was no categorical denial of the facts stated in one deposition by the person giving his evidence in the other. The testimony of Place related more especially to the conversation he had with Bonham in April, 1886; the deposition of Bonham more to the details of the sale of the coffee in September, and yet there is enough in the statement of Bonham to show that he denied ever having a conversation like the one testified to by Place in April, 1886. The burden of proof rested upon the plaintiffs to establish their claim by a preponderance of evidence. The testimony of Place was sufficient, if undisputed, to have fully satisfied the requirements of this rule; but it is contradicted by Bonham, not explicitly and minutely, for the reason that his attention was not called to it directly, yet substantially and fully. Place said that he told him the exact amount of capital he had invested in the business; Bonham testified that he never told him the amount of capital he had invested, only that it was small; Place said also that he said he had made $1,700 in the business; trusted those only who settled every thirty days; owed nothing except for merchandise on bills not yet due, and that his business was prospering. Bonham testified that he never told him whether he was making or losing money; whether he was solyent or insolvent, and never spoke of his ability or inability to pay, except that he said he was doing business on a small capital and ran small bills so that he could meet them -promptly. .Under this evidence, even by the rule contended for by plaintiffs, the judgment is correct: we recommend that if be affirmed.
By the Court: It is so ordered.
All the Justices concurring. . | [
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Opinion by
Simpson, C.:
This case was submitted and argued in connection with the Cuylcendall ease, just decided, and is an action for damages by the owner of the south half of lots 9, 10, 11 and 12, in block 76, in the city of Garnett. The action was instituted against two railroad companies, alleging obstruction to the ingress to and egress from the property by both railroad tracks. It was tried upon an agreed statement of facts, which is as follows:
“It is agreed by the parties hereto that the following am the facts in this case:
“That the defendants were on March 1, 1886, since have been and now are railway corporations doing business in the state of Kansas; that the city of Garnett, a city of the third class situated in Anderson county, Kansas, did enact the ordinance hereto attached, granting to the defendant Kansas, Nebraska & Dakota Railway Company the right-of-way through certain streets in said city on the terms and conditions of said ordinance, which ordinance was valid and in force at the time of the construction of the railway hereafter set forth. Said ordinance is attached hereto, marked ‘A,’ and made a part hereof; that on or about the 1st day of July, 1886, the defendant Kansas, Nebraska & Dakota Railway Company constructed a line of railway through Anderson county, Kansas. A portion of said railway so constructed was through the city of Garnett, on Main street, and the entire length of said Main street; and a photograph of said railway and said Main street as it is in front of plaintiff’s property hereafter described is hereto attached, marked ‘B,’ and made a part hereof; that plaintiff was at the time of the passage of said ordinance and construction of said railway the owner of the following-described property, viz.: The south half of lots 9, 10, 11 and 12, in and of block 76, in said city of Garnett, on which property was at the said time aforesaid a two-story frame building owned by plaintiff, and occupied as and for a boarding-house or hotel, which property is more fully shown in said photograph hereto attached. (Taken March 1, 1889.)
“Said property so described is at the southern limit or line of said city, having no road, street, alley or highway on its east, south or north, and fronting on Main street, at the south end of said street, as shown by map marked ‘Exhibit C.’ Said street was and is 120 feet wide.
“The railway known as the Southern Kansas Railway had some years ago constructed its railway through said city, on Main street, on the west side thereof, as shown in said photograph. That the K. N. & D. Rly. Co. constructed its line as aforesaid, on the eastern side of said Main street. That the distance from the east rail on the Southern Kansas Railroad to the west rail of the K. N. & D. Railroad, on Main street in front of plaintiff’s property, is fifty-six feet and six inches. The height of the embankment of the Southern Kansas Railroad, in front of plaintiff’s property, and in Main street, is four feet and five inches. The height of the K. N. & D. Rly. embankment in front of plaintiff’s property, and in Main street, is five feet three and one-half inches. From the southwest corner of the house of plaintiff to the embankment of the K. N. & D. Rly. is 30 feet. From the southwest corner of plaintiff’s house to the east rail of switch laid on Main street in front of plaintiff’s property by defendant Missouri Pacific Railway is eighteen feet and six inches. The distance from the fence on west line of plaintiff’s property, and in front of plaintiff’s property on Main street, to the east rail of said switch, is seven feet and two inches. The distance from the center of track of Southern Kansas Railroad to center of main track of K. N. & D. Rly., on Main street, in front of plaintiff’s property, is sixty-one feet and six inches.
“On or about April, 1887, the defendant Missouri Pacific Rly. constructed a ‘Y,’ or- another railway track, on said Main street, in front of plaintiff’s property, and east of the main track of the K. N. & D. Rly., to connect and connecting the Missouri Pacific Railroad with the K. N. & D. Rly., as shown on map. The only authority for such construction of said ‘ Y,’ or railway track, by said Missouri Pacific Railroad, was by virtue of a leíase from the K. N. & D. Rly. to the Missouri Pacific Railroad to operate said K. N.&D. Rly., and the ordinance of the city of Garnett to the K. N. & D. Rly., referred to herein and herewith attached, marked ‘A.’ Said ‘Y,’ or railway, is also shown oh photograph attached.
“Said Main street, at and before the building of the line of the K. N. & D. thereon, was partially occupied by the tracks of the Southern Kansas Railroad and Missouri Pacific Railroad, as shown by the map herewith. No official grade had been established by the city at the points opposite the plaintiff’s property, or other place; and the height of embankments and fills on Main street, was and are such as to make crossings at grade with the track of said Southern Kansas and Missouri Pacific railroads theretofore constructed, which roads are constructed at the same grade at such crossings. Such embankments and fills, and the construction of said road, as constructed, never have been objected to by the city authorities of the city of Garnett, and no suit has ever been commenced concerning them by the city or public officers. The track of the K. N. & D. Railway was constructed of good material and in a workmanlike manner, planked-at crossings. No intentional injury or damage was done by defendant to plaintiff’s property.
“ The admissions made- by the pleadings, together with this agreed statement, and a copy of the ordinance and map hereto attached, are hereby made (by agreement) the total and exclusive evidence in this case, arid are to be taken and deemed as non-amendable; except that either party may make and attach hereto as evidence in the case, such photographs of the locus in quo as they may desire; and if appellate proceedings are taken to the supreme court of the state, that the supreme court shall finally decide the controversy.
“If the foregoing facts entitle the plaintiff to judgment, he shall be awarded as against the K. N. & D. Rly. the sum of $167, and against the Missouri Pacific Rly. the sum of $333.”
For the reasons given in the Cuykendall ease, we are of the opinion that no recovery can be had against the Kansas, Nebraska & Dakota Eailway Company. As to the Missouri Pacific Eailway Company, which has constructed a switch, or “Y,” so near the sidewalk as to practically prevent access to the street, and has done this without any authority from the city, we think a recovery can be had. The lots owned by the defendant in error do not front on any other street, avenue, or alley, and the only access to them is by Main street. The embankment of this switch, or “Y,” constructed by the Missouri Pacific Eailway Company on Main street, in front of the lots owned and occupied by the defendant in error, is four feet and five inches high. The distance from the fence on the line of the lots fronting Main street to the east rail of said switch is seven feet and two inches, and this includes the sidewalk and the eastern slope of the embankment on which the rails are located. This practically obstructs the whole street in front of the lots, and prevents access to and egress from them. Under such circumstances, he is entitled to recover.
It is recommended that the judgment be affirmed as to the Missouri Pacific Eailway Company, and a judgment rendered in favor of the Kansas, Nebraska & Dakota Eailway Company. The costs of this court will be divided.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The court, in its third conclusion of law, stated that equity demanded that the amount paid plaintiffs on the chattel mortgages should have been applied in liquidation of the partnership debts. The mortgages were executed by Sutton several months after the dissolution of the partnership, and upon his stock of merchandise as it then existed ; how much of that stock had formerly belonged to the firm, is not stated. It is certain, from the findings, that Sutton had made additions to it by purchases of goods after the dissolution in September. Of the firm’s debts, $256 which was due at the time of the execution of the mortgages was secured by the first mortgage, and the balance of the indebtedness by the second. The first one was paid in full by the 20 per cent, paid by Sutton while running the store as the agent of the creditors, and the $247.37, which was credited by the plaintiffs on that account, when the property was sold to the purchaser whom Sutton had found. The question is fairly presented to us, whether the indebtedness of the firm, secured by the second mortgage, must be paid before the individual indebtedness of Sutton, secured in like manner.
' We think the rule is well settled, that a debtor making voluntary payment may direct to which account or debt — if there be more than one — the credit may be applied; if he makes no such direction, then the creditor" may; if both fail to do so, then the law will apply payment according to its notions of justice. (Shallabarger v. Binns, 18 Kas. 345; United States v. Kirkpatrick, 9 Wheat. 737; Wooten v. Buchanan, 49 Miss. 386; National Bank v. National Bank, 94 U. S. 439; National Bank v. Bigler, 83 N. Y. 53; Whitaker v. Groover, 54 Ga. 174; Jones v. Williams, 39 Wis. 300; Moore v. Kiff, 78 Pa. St. 97; Hersey v. Bennett, 28 Minn. 86, 9 N. W. Rep. 590.)
The plaintiffs did appropriate $347 of the amount received to the payment of the individual debt of Sutton. If there was nothing in the agreement of dissolution of Sutton and Lusk, or if the creditors of the firm had no lien upon the partnership property, or nothing specified in the mortgages to the contrary, then the plaintiffs would have had full power to make this appropriation. (Shallabarger v. Binns, 18 Kas. 345.) And this rule would not be different although the debt was contracted subsequent to the partnership debt of Sutton & Lusk.
The goods mortgaged by Sutton to secure hi's own indebtedness and that of the firm, were his own property. In a bona fide dissolution of the partnership it was agreed between the partners that Sutton should take all the property of the firm, except the store building, and pay all the debts. The creditors had no lien upon the firm’s property to secure the payment of their claims; neither did Lusk have any lien, equitable or otherwise, upon the goods for the payment of the partnership liabilities, that could be enforced in any court. (Parker v. Merritt, 105 Ill. 293; Mortley v. Flanagan, 38 Ohio St. 401; Giddings v. Palmer, 107 Mass. 269; Story on Partn., §§ 358, 359, and note.) This rule does not conflict with the well-established doctrine that partnership debts may be primarily enforced against the partnership property, rather than the property of the individuals of the firm. While the firm is in existence its property may be sold by either partner, and will be followed by no claim, in law or equity, by the creditors of the firm if sold to the purchaser in good faith. When the firm is solvent the partners are free to dispose of its property, so far as the creditors are concerned, just the same as though it were the property of the individuals; and one of them, under such circumstances, may become its separate owner. The law does not provide that partnership debts may be first enforced against the joint property of the firm in preference to the individual debts of the partners, on the ground of any equity held by the creditors, but this relief is granted to the creditor on account of the equities of the partners, each one of them having the right to demand that the firm property shall be devoted to the payment of the firm debt, and shall be first exhausted before the individual estates are taken. (City of Maquoketa v. Willey, 35 Iowa, 323.)
Lusk could have had no equity in this matter, for he had voluntarily parted with his interest in the partnership property; this left the creditors of Sutton, or of Sutton & Lusk, full liberty so far as Lusk was concerned, to make appropriation of the proceeds received as they saw fit, either out of Sutton’s or the firm’s property. We believe that the court erred in its third conclusion of law, and that plaintiffs having made appropriation of the amount paid to them, the court ought to have allowed it to remain. It follows, therefore, that the fourth conclusion of law is erroneous, and under the findings of fact the judgment, instead of being for $293.97 for plaintiffs, should have been for $638.97.
We recommend that the judgment be modified in accordance with this opinion.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The evidence and findings of the court leave the question of the location and boundaries of lot 1 in block 111 in great doubt. The railroad company claims that the plat and dedication are so indefinite and incomplete as to the blocks, lots and street along the river-front as to be invalid. The town-site was platted in 1855, but the certificate of dedication explicitly declared that the width of the levee street was not fully settled upon, and that the blocks and lots on the river and levee were not fully measured and marked out. The lot in question was located on the levee, and although the exterior lines of the lot and block were shown on the plat filed, no figures showing the dimensions or extent of these were given. The dimensions of the other blocks and lots and the width of the streets were indicated upon the plat filed' by figures placed thereon, but as to the levee and the lots fronting thereon the town company reserved the right to change and fix their width, boundaries and extent as it might thereafter determine. No alteration was ever made in the plat,'nor was any amended plat filed. A distribution of lots was made among the shareholders of the town company in 1859, and the lot in controversy was apportioned and conveyed to a stockholder named Fairchild, through whom the defendant in error claims. The railroad company claims under a conveyance from the town company executed in 1869, purporting to convey a strip of land- along the west bank of the river 100 feet wide, and also under an ordinance of the city of Atchison, enacted in 1869, granting the company a right-of-way over the levee or street, which it asserts was a public highway established in 1865.
We think the judgment is not supported by the evidence and the findings. Without determining the effect of the original dedication, it i§ clear that ejectment will not lie. It is found upon sufficient testimony that a public highway was established along the west side of'the river in 1865. This highway was laid upon what is called the “levee street,” and covered the ground now occupied by the railroad company. And it is the possession of a part of this that Manley now seeks to recover. It was established as a state road under the authority of an act of the legislature which provided that it should not be less than 66 feet in width. (Laws of 1861, ch. 70.) The road record introduced in evidence showed the report that the commissioners appointed under this act made to the county commissioners on April 15, 1865, the approval thereof, and the establishment thereon of a state road along the west bank of the Missouri river, from Atchison street in the city of Atchison to the north limits of the city, and so on to the Doniphan county line. The road thus established was used as a highway by the public from that time on, and was so used when the railroad track was constructed thereon. A precipitous bluff about 100 feet high, extended to within about 56 feet of the river at the point in question, and in some places much closer, so that the highway was made with great difficulty by excavating from the bluff and filling into the river, and in places it was so difficult to make a road that it was only improved and widened to the extent of about eight or nine feet, until the railroad was built. The railroad was surveyed. in 1868, and constructed in 1869 and 1870 along this narrow roadway, and it has been occupied with several tracks and used by the company ever since. The testimony introduced by Manley shows that the distance from the center of the main track to the river is 38 feet, and that only about 15 feet west of this track was in use by the railroad company, and that opposite to the lot in controversy the railroad company only occupied 55J feet, which was all the territory lying between the bluff and the river. Thus it appears that the entire space occupied by the company at this point is less than the width of the highway which was established, and over which the company was authorized to build. Having procured from the city the right to build and maintain its road, it is rightfully in possession if the highway was legally established. No objection is made to the legality of this highway, unless it is found in the suggestion made in the 7th finding of fact, where the court states that “ It does not appear that said town company was notified or took any part in the proceedings locating said road.” But no notice to the town company was essential to the laying-out of the highway. The lots had been distributed and conveyed in 1859, six years prior to the time that the road was established, and it is not stated or claimed that notice was not given to Fairchild or other lot-owners, nor that any of the statutory requirements were not complied with. From the facts disclosed in the record, it must be held that a street 66 feet in width was legally established upon the levee. While the fee of the street was in the county, the control of the same was in the city, and it was within the power of the city to grant to the railroad company the right to construct and operate its road over this levee or street. (Garside v. A. & N. Rld. Co., 10 Kas. 552.) There is no claim that the road was not constructed in a legal and proper manner, as the ordinance of the city provided; but this being an ejectment, the right to recover damages for such failure is not involved. According to the testimony and findings, the railroad is laid uPon an established street within the city, in pursuance of ample power conferred upon the company by the city to occupy and use the street for this public purpose, and as this occupancy and use have never been abandoned, it follows that Manley cannot maintain an action to dispossess or eject the company from the street so occupied; and hence we need not examine and decide the other questions presented in the case.
The judgment of the district court will be reversed, and the cause remanded, with instructions to render judgment in favor of the plaintiffs in error.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
Plaintiff in error now complains of the judgment of the court below upon the appeal from the award of damages. A great number of errors are alleged and complained of, many of which we deem not well taken, while others are not of sufficient importance to require a reversal of the action. The principal error we find in the record, and which in our judgment requires a reversal of the action, is as follows: At the trial of the cause the plaintiff produced one Donahue as a witness, who among other things was asked and answered the following questions:
“ Q. Are you acquainted with the construction of the barn as it stands there? A. Yes, sir.
“ Q,. What would you say as to whether it could be removed or not? A. I think it would be totally wrecked to remove it, or to undertake to remove it; it would have to be torn down.
“Q. Is it constructed on foundations ? A. No, sir.
“Q. Do you know what the cost would be on the construction of a barn of the same dimensions as that, and adequate for the use of that farm ? A. Built in the same manner as that is ?
“Q. Yes, sir. A. Well, no, sir; I would say nobody could build a barn like that.
“ Q,. I want to know what would be the cost of a barn of these dimensions, which seems to be adequate for the use of the farm; I don’t care whether it is exactly like that one or not. A. I think I could make a rough estimate of it.
“Q,. What would it cost to build ? A. You mean built on a frame ?
“Q,. Built as you would build a barn adequate in size, taking the same dimensions as this barn, but supposing a new barn was to be built. A. That was fourteen feet, I believe, and eight feet high; I want the dimensions; I don’t remember how long it is. Besides, Mr. Mason is asking for a different kind of a barn.
“Q,. You have said it would be a total wreck to move it, and I don’t see how you can build a barn out of a total wreck, so of course I want a different kind of a barn. Taking the same dimensions and building a barn adequate in size to the uses of the farm, what would be the cost? A. About $400.”
These questions and answers were objected to by the defendant, and overruled by the court. We think this evidence was entirely incompetent. It was evidence tending to show what it would cost to build a barn adequate for the use of the farm. It threw no light upon the value of the barn already upon the premises, and if this barn that was on the premises had become useless by reason of the proximity of the railway to it, that fact could be shown to the jury; but it would in no wise aid in determining that fact to determine what a new barn adequate to the uses of the farm would cost. It might have been shown what it would cost to move this barn and place it at a point where it would be of use to the farm, or its value where it stood, and its value as it stood before and after the road was constructed. These would have been elements of damage, and proper to go to the jury.
As this case must go back for a new trial, in addition to what we have said it may be well to say that in determining the damage to a farm it is proper to take into consideration every element of damages that can be reasonably anticipated before the building of the road, and which are reasonably apparent after the construction. This includes inconvenience in crossing, the raising of embankments, the digging of ditchesj pools of stagnant water, the obstruction of surface-water by throwing it into channels or by damming it up. These are all proper elements to be considered in determining the damages to land. And finally, the measure of damage is the difference in the market value of the farm before and after the construction of the road.
Plaintiff in error also insists that the court erred in permitting the husband of the plaintiff below to testify as to the location, situation and purposes for which the farm was used, the amount of stock" kept thereon, the things tending to show damage by reason of the construction of the road. Much of this testimony we think was incompetent. The husband of a plaintiff could only testify as to things about which he acted as the agent of his wife. Things that he did, and had a peculiar knowledge of, by reason of the agency would be competent. The evidence admitted, however, was cumulative only, and not perhaps of itself sufficient to require a reversal. Care should be taken, however, in this class of cases to confine the inquiry of such witnesses within the limits prescribed by statute.
It is therefore recommended that the cause be reversed, and remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to condemn land for railroad purposes. The commissioners appointed for that purpose condemned a right-of-way through the land of Wilkinson, on February 14, 1887, and the report of the award was filed with the county clerk on the following day. Wilkinson was dissatisfied with the award, and on February 23, 1887, he executed and filed an appeal bond with the county clerk, which was approved on the same day. On the next day the transcript and bond were filed in the district court. The first day of the following term of that court was March 7, 1887, at which time the railroad company moved to require the plaintiff to file a petition setting forth the amount and items of damages claimed by him. This motion was sustained, and on March 14, 1887, a petition was filed. The railroad company then asked for a continuance of the cause until the next term, but this application was denied, and leave to answer instanter was granted. On March 15th the case was tried with a jury, resulting in an award of $800.
Error is predicated on the refusal of the court to continue the cause. It is contended that under §§313 and 315 of the code the docket is to be made out twelve days before the term, and to make the action triable the issues must be closed ten days before the first day of the term, and that this action was not therefore triable at the March term, and hence the order of the court requiring a trial of this cause the day following the filing of the answer, was prejudicial error. This claim cannot be sustained. The statute prescribes that such appeals are triable at the next term, the first day of which occurs ten days or more after the appeal is perfected; and the appeal is complete upon the filing and approval of the appeal bond. (Gen. Stat., ch. 23, § 86; id. ch. 81, §§ 121,122, 124.) In the. present case the appeal was perfected February 23, 1887, eleven days prior to the beginning of the term at which the trial was had; and hence the case was clearly triable at that term. It is true that the pleadings were closed only one day preceding the trial; but formal pleadings are not absolutely essential in such appeals, although they may be required in the discretion of the court. It is the better practice for the land-owner to set out in his petition the amount claimed by him, and the items constituting the same, and in most instances pleadings should be required; but the issues are not thereby enlarged or changed; nor does the filing of pleadings change the rule of the statute prescribing when appeals are triable. The disclosures made in the pleadings may in some instances make a continuance necessary, but the necessity mtist be shown as in other applications for delay. (Rice v. Hodge, 26 Kas. 164.) No affidavit was made in this case, nor any showing that additional time was necessary to enable the plaintiff to properly present its defense, and therefore the court did not abuse its discretion in denying the motion.
The other errors assigned, not being insisted on by plaintiff in error in its brief and argument, will not be considered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was a criminal prosecution under § 47 of the erimes-and-punishments act. This section reads:
“Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, shall upon conviction be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months.”
The principal facts in the case are undisputed. On the 8th day of March, 1889, W.,B- Willis resided in Elk county, in this state, with his family, consisting of his wife and five children, the youngest of which was about two years old, and is the child described in the information. Upon that date Mrs. Etta Willis, the wife of W. B. Willis, left her husband, and with the assistance of the defendant was driven to the Indian Territory. She took with her to the Indian Territory her child, and the child has continued to be in her custody and under her control. She is its mother. The father and mother are the natural guardians of the persons of their minor children, and each parent equally so with the other. (Const., art. 15, § 6; The State v. Jones, 16 Kas. 608.)
As Mrs. Willis, the mother of the child, had the equal right with her husband, the father, to the actual care and control of the child, it is clear that she could not be punished under the provisions of said § 47, for taking and carrying the child away from the father. If it be true that James Angel, the defendant, assisted her to leave her husband and in so doing assisted her in taking her child, he cannot be convicted under § 47, because he only assisted the mother of the child, who had the same right to the care and control of the child as the father. The mother had the lawful charge of the child all of the time, and neither the mother nor Angel is guilty of any criminal violation of said § 47.
The judgment of the district court' must be reversed, and as the facts are undisputed the defendant will be discharged.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This is an action brought originally in this court for the purpose of compelling Lewis W. Fulton, clerk of the district court, to hold his office at the town of Eminence, in Garfield county. After the return of the writ by the defendant, by stipulation Clarence Van Patten, E. W. Dunn, J. L. Bennett, J. E. T. Kephart and N. A. Johnson were made defendants, and afterward an issue was joined-between all of the defendants by their answer and return. The first election for permanent county seat and for county officers was held on November 8,1887; and after this election, and on November 15, 1887, an alternative writ of mandamus was issued, commanding the defendant Fulton to forthwith hold his office and transact the county business at the town of Eminence. The question now involves the validity of the election for permanent county seat. The plaintiff alleges and claims that at said election so held in Garfield county for the purpose of designating the permanent location of the county seat the town of Eminenc'e received a majority of all the legal, votes cast thereat, and that by the fraud, of the election board of Center township a larger number of votes was returned as hav iug been cast at that township than there were legal voters who voted at said election, and that by the fraudulent return of said votes and the canvass of the same the town of Ravanna was declared to have received a majority of the votes at said election for the permanent county seat. The returns from Garfield county as canvassed show, for county seat, Ravanna, 467 votes; for Eminence, 422 votes.
Several charges and counter-charges of fraud and corruption have been made by the plaintiff and defendants, but at the final hearing of the action by agreement of the parties the matter was left to be determined upon the validity of the election in Center township alone. The plaintiff now contends that the election board at Center township fraudulently and wrongfully conducted the election, and fraudulently and wrongfully put tickets in the box in excess of the number of persons who voted at that election to the number of 86, and forged the poll-books to the extent of 86 names, and that the county clerk falsely and fraudulently added to the registration books the names of 86 persons so alleged to have voted at said election. The plaintiff also charges that the election board refused to allow a representative of the town of Eminence on the election board, and during the time of the voting refused to permit a representative of the town of Eminence in the polling-room, and also refused to allow or permit a candidate on the Eminence ticket to be present in the polling-room during the time of the reception or counting of the ballots, and at the close of the polls fraudulently neglected to post the number of votes cast on the outside of the door of the polling-room, as provided by law, and fraudulently continued the counting of the ballots until after the full returns from the remainder of the county had been known, and then falsely and fraudulently stuffed the ballot-box to the extent of 86 ballots, and forged the poll-book to make it correspond to the 86 ballots so fraudulently placed in the ballot-box.
It is not denied by the defendants but that the charge in relation to the manner in which the election board was formed and the polls opened is true, that representation was denied to the Eminence people on the board, and that no Eminence man or candidate, or any of their friends, were permitted in the polling-room during the reception of the ballots. It is admitted that all the Eminence men were excluded from the window at the polling-place shortly after the polls were organized, except Dr. Crow; and it is also not denied but that they refused to allow any friend of Eminence, or on behalf of .any candidate on the Eminence ticket, to be in the room during the canvassing of the vote, other than Dr. Crow; neither is it denied but that the county clerk, prior to the election and afterward, refused to allow friends of Eminence to inspect the registration books, or the poll-books after the election, or to have copies of either, and that the first time the friends of Eminence were able to see the registration list or the poll-books was when they were brought in at the taking of the testimony before the commissioner in obedience to a subpena issued by him. It is further admitted that Dr. Crow, during the time of the counting of the ballots, was not permitted to inspect or see the poll-books to ascertain the number of names of the voters; and it is further admitted that after 260 ballots had been counted out, Dr. Crow challenged the honesty of the election and charged the board with fraud in stuffing the ballot-box; and at the close of the election and at the canvass, it was charged by Crow and friends of Eminence that the ballot-box had been stuffed to the extent of at least 86 votes; and it is also admitted that no notice was posted on the door of the polling-room at the close of the election, of the number of votes cast at the election; and it is also admitted that a wire fence was constructed around the polling-place, about 50 feet from the building, and that entrances were left through which voters could go in, one at a time, and a place'of exit, and that armed guards were placed at this entrance to prevent more than one from entering the inclosure at a time; and that at the time the polls were opened the Eminence people were allowed three persons at the window where the tickets were received, to challenge voters and to make a tally-list of persons who voted, but at about 10 o’clock twp of these persons were removed by the guard .or deputy sheriffs, and Dr. Crow was alone, permitted at the-window to challenge or make a list, and. after the close of. the polls he was permitted to remain in the polling-room during the-counting of the votes. The.evidence further, shows that he, together with the other two men, kept a record of the number of persons voting, their names and voting numbers.
The evidence produced by the plaintiff upon the question of fraud■ presents substantially the following facts: At the close of-the polls, Dr. Crow’s record or tally showed 259 votes by number, and it was there by him announced that the total vote at the close of the polls was 259. It was afterward discovered that Crow’s list contained 260 names. It was then announced from the polling-room by some member of the board, and by other, persons, that the tally-sheets and poll-books showed 260 persous voting at that election, and it was generally conceded and known that evening that the total number of votes was 260. The evidence further discloses the fact that dui’ing the day a person when voting would ask the board what his number was, and they would give him his number as appearing upon the poll-book, and these numbers agree with the numbers Crow had on his list, made on the outside. At other times a dispute would arise between the clerks as to the number of voters, and they would make the correction and announce such correction, and also ascertain the number Crow had on his book, kept on the outside of the window, .and thus during the day at several intervals these records were compared and known. In support of the record kept by- Crow, and for the purpose of impeaching the returns made by the board, thirteen witnesses were introduced who testified that they voted at that election, and gave the name of the person who voted immediately before or immediately after them, and several also gave their number when voting, and by a comparison of their testimony with Crow’s record it is shown that his record corresponds with the statements of these witnesses,, but does not correspond with the poll-books and return by the board. . -
Again, for the purpose of contradicting and impeaching the returns, Thomas Patterson was called as a witness, and testified that one Peter Parker was a legaL voter at the town of Ravanna; that he was a barber and worked in a barber shop, and was there on election day, and acted as deputy sheriff; that during the day a photograph was taken of a group of people in the street, and that Parker held a child in his arms when said picture was taken. The photograph is also in evidence. Ur. Crow was called as a witness, and testified positively that Peter Parker voted that day. Crow’s record shows that Parker voted No. 34m, while the poll-books returned by the board do not contain the name of Peter Parker.
Again,'to contradict this return, one J. D. Montgomery was presented by the plaintiff as a witness, who testified that he was a voter at said election, and voted, and that he did not vote for Eminence or Ravanna for the county seat. James Cross, one of the judges of election, testified that he failed to erase from his ticket either Ravanna or Eminence, and that his vote was not cast for either of those places for county seat, and was not counted for either place, while the return made by the board shows that all the voters returned as having voted at the election voted either for Ravanna or Eminence for the county seat.
Again, for the purpose of impeaching said return, plaintiff placed upon the witness stand 96 persons who show themselves to have been qualified electors, and who testified that they voted at that election, and that they cast their ballots for Eminence for county seat, while the returns show but 83 votes for Eminence. Plaintiff also caused a subpena to be issued and placed in the hands of the marshal, appointed by the court to serve process, for the 86 persons claimed by the defendants to have voted at said election, in excess of the 260 as shown by Crow’s list. This subpena was returned by the officer with the showing that said persons could not be found in Garfield county.
The plaintiff also produced one F. M. Francis, who testified that he was a resident of Ravanna, a deputy sheriff on the day of the election, and was present and voted at the election, and voted for Ravanna for county seat; that the board of election continued in session all night during the night of the 8th and until 4 o’clock of the evening of the 9th before making a final canvass of the votes, and that on the morning of the 9th full returns from the entire county had been received, and the majority ascertained outside of the township of Center to be a majority in favor of Eminence for the county seat. He also testified that on the evening of the 9th, after the canvass had been made and declared, the board, or the clerks and judges of election, met at the store building of one Crow for the purpose of fixing up the returns and poll-books; that witness looked in at the back window of the store and there saw the judges and clerks engaged in writing what seemed to be poll-books and tally-sheets; that he also saw a book that looked like a registration list, and papers that looked like tickets. He also testified that Cross told him in the evening while at supper that he was going up to town to fix up the papers, referring to the election returns.
Plaintiff also produced one "W. A. Shirley, who in a deposition testified that he was a lawyer by profession, and lived at the time of the election at Ravanna; that he was present at the election, and that tickets were prepared in his office during the day of the election to put in the ballot-box, and that the same were delivered to one of the judges of the election and by him placed in the ballot-box during the time the votes were being counted, and that these 86 ballots were fraudulently placed in the ballot-box; that on the night of the 9th, the night after the canvass of the votes of Center township was made, the board and clerks met at Crow’s store, and afterward for better security came to his office, being the law office of McAliney and this witness, and there the board proceeded to make out new poll-books, so as to place the 86 names to correspond with the 86 tickets that had been by the board fraudulently placed in the ballot-box during the election and counting; he also states that it was generally talked over between the persons interested in the location of the county seat at Ravanna as to the manner of securing the majority of votes by falsely placing ballots in the ballot-box, and by forging returns to correspond therewith.
The defendants denied the fraud alleged by the plaintiff, and they also produced the election board and other persons connected with the election, and friends of Ravanna, who testified that there was no fraud perpetrated by the board, and that the election was fair in every respect. They also offered evidence tending to contradict the evidence given by the plaintiff not admitted, and evidence tending to impeach the statements made by Francis and by Shirley; and also evidence tending to show that Shirley was intoxicated at the time, and did not know what took place at his office on the evening of the 9th. They also produced a large number of witnesses and attempted to account for the 86 names that the plaintiff alleged were fraudulent, but of these 86 names not one of the persons is produced as a witness to testify that he was present and voted at that election, although there was a large number of witnesses who testified that they were acquainted with some of the 86 persons, that they had formerly lived at Ravanna, or had been stopping there, some transient, some a number of months, and .that they were seen there at Ravanna at the time of the election, and some on election day, and some on days after the election; but no one is able to say from personal knowledge that these 86, or any of them, voted at that electipn. There was strong evidence, however, tending to show that a number of these persons actually did vote at that election, but as to the greater part of these 86 there is no evidence to show that they were residents and electors of Garfield county, or that they were present or voted at that election; and as to a number of them the defendants admit that they were not there — one being in Colorado at the time, and another in Texas, and a few others whom they do not claim were present in person to vote at that election, but the claim made by the board and friends of Ravanna is that each ballot so recorded and tbe name appearing upon the poll-book represent an actual person who appeared and voted and gave the name appearing upon the poll-book, and that if any of these 86 persons were not actually present, then some'one representing those persons voted in their names, and that this was done without knowledge on the- part of the election board. ■
The evidence to establish these facts-runs through more than 4,000 pages of record. The record ■ contains a large amount of evidence not pertinent to the issues as now narrowed down. From this testimony and admissions it is clear: First, that the county clerk refused to permit-an inspection of the registration books, or to give a copy of the same to the -friends of the town of Eminence. Second, that the county clerk refused to permit an inspection of the poll-books after the canvass by the board of county commissioners, or to furnish a copy of the same. Third, that the board was organized without any representation on the part- of the friends of Eminence, and that after its organization the board wrongfully refused admission to the polling-room during the reception of the votes of a representative of Eminence, or on behalf of any candidate for office on the Eminence ticket. Fourth, that at the close of the polls they wrongfully failed and refused to post the number of votes cast on- the outside of the door of the polling-room. Fifth, that the board wrongfully and fraudulently continued to count until after the returns from the remaining five precincts were brought in and the majority in favor of Eminence in such townships-was ascertained. Sixth, that the board fraudulently concealed the fact that the poll-books contained the names of 346 voters until after-the entire count-was made. Seventh, that the board fraudulently counted all the votes cast in favor of either Ravanna or Eminence,- when they well knew that at least two ballots contained uo name for permanent county seat. On these points there- can be no controversy. It is not even fairly denied in the evidence by the defendants or the election board.
The remaining question is: Is there a preponderance of the evidence with the plaintiff to establish the fact that the poll-books were forged and the ballot-box stuffed ? The direct evidence of this fact is somewhat meager, and did we have to determine upon that testimony alone'' we would hesitate be fore finding a preponderance for the plaintiff. In the first place, the evidence of Francis is not of itself satisfactory, and in many respects inconsistent, and his testimony is strongly denied by the board and by the circumstances. Again, as to the direct evidence of Shirley, it must be remembered that his evidence at best is only the testimony of an accomplice in the crime, for whatever fraud was perpetrated he was as guilty as any of the others. His testimony was taken without cross-examination, and .while it corroborated that of Francis, it is denied by the board and many other persons, and as we said before, had we to determine this question upon the testimony of Francis and Shirley alone, we would hesitate before finding for the plaintiff; but when all the evidence that tends to impeach the returns from this township is considered, and the evidence tending to support and bolster up the evidence of Francis and Shirley is weighed, we are no longer left in doubt as to what the result should be. It is admitted that at least a part of the election board were at Crow’s store on the evening of the 9th; it is admitted that they were all at the office of McAliney & Shirley later in the evening, and these, coupled with the fact of the suppression of the number of votes pretended to have been cast; the fraudulently preventing any inspection of the poll-books and registration books; the refusal to post upon the door of the polling-room, at.the close of the election, the number of votes cast; the refusal to admit into the polling-room the friends of the opposing candidates and place; the refusal to permit Dr. Crow to see the number of votes on the poll-books when he charged the board with having stuffed the ballot-box, when it was found that the box contained more than 260 ballots; the fact that Dr. Crow kept a tally at the door, which was admitted by the board to have been kept correctly, during the day, and that the, board corrected its tallies from it; the fact that the poll-books contained 86 more names than Crow’s list;, — -all these .tend to establish the fact that on the part of the Ravanna partisans no-pretensions to fairness or honesty were indulged in by the, election board or the friends'of.Ravanna, and.all this tends to corroborate the testi mony of Francis and Shirley as to the manner in which the fraud, was perpetrated, and it all fairly establishes the fact that fraud was perpetrated, the ballot-box stuffed, and that the poll-books were a forgery. Whether Shirley’s and Francis’ testimony is true or not, as to the time when this forgery was made, is not material; the fact that it was done is established outside of and beyond their testimony, and while they may have been mistaken as to the time when it was done, the evidence fairly establishes it as a fact. When the evidence is admitted that at least two tickets did not contain the name of either Ravanna or Eminence, yet with that knowledge the board counted those tickets for either one or the other of those places, its returns are impeached. When it is shown that at the close of the polls Dr. Crow’s statement in answer to an inquiry was that 259 or 260 votes were polled, and upon inquiry of the board it confirmed the statement, it is a strong presumption against the return that was afterward made, showing 346 votes instead of 260.
Again, it is shown by the plaintiff that ninety-six voters testified that they voted at that election, their names appearing upon the registration list and upon the poll-books and upon Crow’s list, and they testified that they voted for Eminence, while the poll-books returned by the election board show but 83 so voting. These facts are strong circumstances tending to establish a corrupt purpose on the part of the election board and managers of the election to defeat the honest will of the majority of the voters of Garfield county. The defendants, however, insist that they have by a preponderance of the testimony established the fact that Dr. Crow’s list is not correct, and that the return by the board is correct; and in their argument they say they have shown that before the election, on the day of the election, and afterward, these 86 persons lived in Ravanna; that they were there and had registered, and were legal voters; and they say when they have done that, that it is not necessary for them to go farther and show that they voted at the election; that the interest in the county-seat election at Ravanna was of such a character that it would have brought to the polls every person who was entitled to a vote, and if they have shown that these men were all residents of Ravanna on the day of the election, then the presumption must be that they voted, and the returns'correct. There is . force in this argument, but their conclusions are not supported by the evidence. • In the first place, they account for but a few of these people being present on the day of the election, and the evidence as to their having been present on that day is in many instances not positive. Persons testified that the man was there before election, and the witness thinks he saw him on election day. Others, that there were such men there about election-time, and before and after. It is true as to a few of these names that there was strong evidence showing them to have been present on the day of the election, but it must be remembered that of the 86 persons so sought to be accounted for, not one was produced to testify that he was present and voted at that election; in fact, very few of them were accounted for. No one was able to tell where they came from nor where they went. They were here a few days after election, or they were not seen after the election, or they moved away directly after the election: these are the answers to the inquiry as to what became of those persons; and we think it a singular proposition for the defendants to make, that out of the population of a village of a few hundred people 86 men who had lived in Kansas for six months and in the county of Garfield for thirty days prior to the 8th day of November could all go away and leave behind them no trace by which they might have been found and at least some of them produced at the trial of this case, when it is remembered that the-taking of the testimony extended over a period from the 19th of January, 1888, to the September following. No expense or pains seems to have been spared by either the plaintiff or the defendants to produce all the testimony possible tending to destroy or sustain the election in Center township; in fact, the permanent location of the county seat depended upon this testimony; the title of the several county officers to the places to which they were returned elected also depended upon this testimony, and yet with all this expenditure of time and money, and the interests at stake, no person is produced to testify that he was one of the 86 persons and voted at that election, and no positive testimony was given that any of the 86 actually voted on the day of the election. In the face of this showing it is hardly consistent for the defendants to claim that there was a fair election, or fair returns made from Center township.
Again, no attempt is made by the defendants to prove the number of votes actually cast in favor of Eavanna in Center township for the permanent county seat; it therefore must follow that the returns from Center township must be disregarded so far as the defendants are concerned, and the actual votes proven for Eminence be counted. So, placing it upon the basis of the actual votes cast at the election, it can fairly be said that of all the votes actually cast, Eminence received a majority of such votes.
It is therefore recommended that the peremptory writ of mandamus be allowed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This is an appeal from a judgment of the district court affirming an order of the probate court denying approval of the final report of the administratrix of an estate and ordering real estate sold to pay debts.
The proceedings occurred in the administration of the estate of Lester Schroeder who died November 12, 1941. Maisie Schroeder, his wife, was appointed administratrix December 6, 1941, in the probate court of Barton county. One of the allegations of the petition for her appointment was as follows:
“Comes now Maisie Schroeder, whose residence and post-office address is 2520 Twelfth Street, Great Bend, Kansas, widow of Lester Schroeder, also known as William L. Schroeder, deceased, and represents that Lester Schroeder, also known as William L. Schroeder, late of the County of Barton and State of Kansas, died November 12, 1941.”
Inventory of the estate was filed January 3, 1942. Amongst the assets reported was a quarter section of land in Rush county, Kan sas, subject to a mortgage of $3,500. On February 17, 1942, the probate court of Barton county set aside the above quarter section for the benefit of the widow and the three minor children of deceased as their homestead. This order was made without notice and without evidence.
The claim of Agnes Pascoe on a promissory note was filed December 13, 1941. This claim was allowed on April 13, 1942, with no contest.
On February 4,1943, the administratrix filed her petition for final settlement. Due notice of the hearing on this petition was given all interested parties. Agnes Pascoe filed an answer toThis petition in which she set out the allowance of her claim; .that it had not been paid; that at the time of his death Sehroeder was the owner of the land in question subject to oil and gas lease; that oil was being produced thereon; that there was property of the estate which had not been sold for the purpose of paying the debts; that the real estate in question was not the homestead of decedent and his family at the time of his death; that the widow and children of decedent did not occupy the premises in question at the time of the death of decedent and had not occupied it since but had lived in Barton county; that no notice was given .of the hearing to set aside the land in question as a homestead and the court did not have jurisdiction to set it aside as a homestead.
The prayer of the answer was that the administratrix be ordered to make an accounting of the proceeds of the royalty from the oil lease; that she be ordered to sell the real estate and to use the proceeds for the payment of debts of the decedent and that approval of her final accounting be refused.
The probate court found that the demand had been duly allowed against the estate; that the decedent was a resident of Barton county at the time of his death; that the order of February 17 setting aside the land in question as a homestead should be vacated for the reason that the court was without jurisdiction to set apart as a homestead real estate in a county other than the county of residence of the decedent; that all of the real estate was subject to the payment of the debt and that the administratrix should be ordered to collect the royalties and pay the debts and to sell the real estate if it was necessary. The court further found that the final accounting of the administratrix should not be approved and that she should be directed to proceed further with the administra tion of the estate. An order was made accordingly. The administratrix appealed to the district court. Upon a hearing that court found the issues in favor of Agnes Pascoe and against the administratrix and that the real property was not the homestead of the decedent at the time of his death nor the homestead of the administratrix. It was ordered that the appeal of the administratrix be denied and the judgment of the probate court be affirmed. A motion for a new trial was denied, hence this appeal.
Appellant first directs our attention to the fact that the order of February 17, 1942, setting the real estate in question apart as a homestead was an appealable order (see G. 'S. 1943 Supp. 59-2401), and argues that since no appeal was taken it had become final at the time the petition of administratrix for approval of her first accounting was filed. Appellant admits that this order was made without notice, but points out the provisions of G. S. 1943 Supp. 59-2235, which are to the effect that the petition to set apart land as a homestead may be heard with or without notice. She argues that pursuant to that provision the probate court concluded to hear it without notice and after hearing set the real estate in question apart as a homestead. She further argues that the above order was valid, was appealable and no appeal was taken, hence it determined all the issues in this case.
This argument sends us to a consideration of G. S. 1943 Supp. 59-2235, as it applies to this proceeding. The claim of Agnes Pascoe was filed December 13, 1941. The order setting apart the land as a homestead was made February 17, 1942; the inventory showed personal property of the value of $500 and this farm as the only real property, so that at the time this order was made all parties knew that there was a claimant who. would require payment at least in part out of the real estate if her claim should be allowed in full.
Under such circumstances the creditor had an interest in the question of whether this land was to be set aside as a homestead and thus placed beyond the reach of creditors. It is true the statute in question provides that the petition to set aside land as a homestead may be heard with or without notice. There is another section which refers to what notice shall be given when notice is required by law or deemed necessary by the court. See G. S. 1943 Supp. 59-2208.
It is not clear, however, that these sections confer power on a probate court to have a hearing without notice of a matter wherein the result of the hearing would be to deprive an interested party of a valuable right. To so hold would be to confer power on the probate court which is not conferred on any other tribunal that we know of. Certainly the framers of the probate code had no such intention. See 12 Kansas Judicial Council Bulletin, 102 (July, 1938); also 2 Bartlett’s Kansas Probate Law and Practice, 1015. There are many authorities holding that a judgment entered without notice is void. See Schott v. Linscott, 80 Kan. 536, 103 Pac. 997; also Union Central Life Ins. Co. v. Irrigation L. & T. Co., 146 Kan. 550, 73 P. 2d 72. Swayze, Adm'x, v. Wade, 25 Kan. 551, was a case where property had been set off to the administratrix who was the widow of decedent. A creditor appealed from the order. The .district court held in favor of the creditor. On appeal this court said:
“As no notice of the hearing of the application for exemption was given to the creditors, or other parties, of course an order ex parte would have bound no one interested adversely thereto, but as defendant in error appeared voluntarily at the hearing thereon, and gave notice in open court of his appeal, and thereafter perfected the appeal, the question of the jurisdiction of the probate court for want of notice is not before us.”
In re Estate of Hoover, 155 Kan. 647, 127 P. 2d 460, was a case where a probate court made an order admitting a will to probaté and made an order covering a matter that was not mentioned in the petition to probate the will nor in the notice. On appeal we held that so much of the order of the probate court as related to matters not mentioned in the petition and the notice was void. (See, also, Opinion on Rehearing, 156 Kan. 31, 131 P. 2d 917, and In re Estate of Grove, 158 Kan. 444, 148 P. 2d 497.)
The order of February 17, 1942, setting apart the real estate in question as a homestead was made without notice to the creditor, an interested party, and hence was void as to the creditor.
When the petition for final settlement was filed due notice was given pursuant to the statute. The creditor whose claim had been allowed filed the objections to which reference has been made. In this answer the creditor tendered the issue, amongst others, that this farm was not the homestead of decedent and the administratrix at the time of his death. The appellant argues that there was no evidence introduced at this hearing. It is clear, however, that there was a hearing, the parties appeared in person and by 'counsel and briefs were filed., Regardless of whether witnesses- were ex amined the court had before it the record wherein the administratrix had said under oath when she filed her petition to be appointed that at the time of his death decedent was a resident of Barton county. There was also the finding of the probate court that decedent was a resident of Barton county at the time of his death. This seems to have carried some weight with the court because in its order the court stated that the probate court of Barton county was without jurisdiction to set apart as a homestead real estate located and situated in a county other than the county of which decedent was a resident at the time of his death.
At any rate, the administratrix appealed and in district court the question was fully tried.
The constitution provided that the homestead shall in the case of farming land be one hundred and sixty acres occupied as a residence by the family of the owner. See article 15, section 9 of the constitution of Kansas. The statute making a homestead exempt from forced sale refers to one hundred sixty acres of land occupied as a residence. (See G. S. 1935, 60-3501.)
The question of fact submitted to the trial court was whether this farm was occupied as a residence by decedent or his family at the time of his death. There was the evidence of the petition of the administratrix, wherein she stated that he was a resident of Barton county at the time of his death. There were other circumstances, the setting out of which would add nothing to this opinion. The trial court keard the evidence and made a finding as to the facts. There was substantial evidence to sustain this finding and we cannot disturb it on appeal. Once the finding of fact was made that this land was not properly set apart as a homstead it was the duty of the court to order sold as much of it as was necessary to pay debts.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This action -was instituted by the beneficiary under a life insurance contract to enforce full payment of the amount described in such policy of insurance as payable on the death of the person insured by its provisions. At the trial defendant moved for judgment on the pleadings. The motion was overruled and the appeal is from that ruling.
So far as they pertain to issues raised by the appeal pertinent allegations of the plaintiff’s amended petition are as follows:
“1. That she is a resident of Wyandotte County, Kansas, and her correct post office address is 4104 Francis, Kansas City, Kansas; that defendant is a corporation organized and existing under and by virtue of the laws of the State of Kansas with its principal office at Topeka, Kansas; that at all times hereinafter mentioned plaintiff was a resident of Johnson County, Kansas, and her correct address was 550 West Park, Olathe, Kansas.
“2. That the defendant, pursuant to written application of Minnie Ann Ewing therefor, on or about September 4, 1928, executed and issued its policy of insurance on the life of the said Minnie Ann Ewing, and the said Minnie Ann Ewing paid the first premium required to be paid thereon.
“3. That the defendant by its said contract of insurance, insured the life of Minnie Ann Ewing in the sum of Five Thousand Dollars ($5,000.00), and in consideration of the premiums agreed to be paid by the insured and the agreements and covenants set forth in said contract, agreed to pay said sum to the beneficiary named in said policy upon receipt and approval of proofs of death of the insured, subject to the terms and conditions of said policjr; that a true and correct copy of said application and life insurance policy is hereto attached marked Exhibit A and made a part hereof by reference.
“4. That on or about October 3, 1941, the said Minnie Ann E'wing died at her home in Olathe, Johnson County, Kansas; that at the time of her death, she had fully complied with all the terms and conditions of said policy and had paid all premiums required to be paid thereon, and said policy was not in default.
“5. That plaintiff is advised and therefore states upon information and belief that on or about October 1, 1941, the said Minnie Ann Ewing attempted to cancel said policy for its cash surrender value, and in accordance therewith surrendered possession of the original policy to the defendant. Plaintiff states, however, that at the time of surrender of said policy, Minnie Ann Ewing was of unsound mind and was not competent to transact business, or make a contract, or appreciate the nature and effect of her acts; that the attempt of Minnie Ann Ewing to cancel said policy was therefore ineffective, and said policy of insurance was in full force and effect at the time of her death.
“6. That defendant tendered to Ruth Lane Ewing, administratrix of the estate of Minnie Ann Ewing, the cash surrender value of the policy in the amount of nine hundred thirty-seven dollars and fifty cents ($937.50), in full release of its liability under said policy, but said administratrix and the plaintiff, on or about December 24, 1941, disaffirmed the purported agreement between Minnie Ann Ewing and defendant for the cancellation of said policy by returning said sum to the defendant and demanding the full amount of the policy.
“7. That plaintiff is the sole beneficiary under said policy of insurance and is entitled to the proceeds of said policy; that plaintiff on or about December 6, 1941, caused proofs of death of the insured to be filed with defendant, and that plaintiff has in all respects complied with the terms, and conditions of said policy, but defendant denies any liability on account of said policy, except for the cash surrender value thereof and has failed and refused to pay said policy.
“8. That under and by virtue of the provisions of said policy, the defendant is indebted to plaintiff in the amount of five thousand dollars ($5,000.00), less the amount of a premium lien existing against the policy in the approximate amount of eight hundred seventy-seven dollars and fifty cents ($877.50), together with interest at the rate of Six per cent (6%) per annum from December 24, 1941, until paid.”
The defendant’s amended answer covers more than twelve pages of the abstract exclusive of seven exhibits which are attached to and made a part thereof. Briefly, it denies generally the allegations of the petition, alleges the individual insured by the policy was mentally competent at all times during the negotiations leading up to and including the moment of the surrender of the policy for its cash surrender value and expressly denies there had been any valid disaffirmance of the action taken by the insured in respect to that transaction. Numerous other defenses are pleaded by defendant in such answer but the allegations pertaining thereto are not important to a determination of the issues here involved and will not be here related. As to them it will suffice to say that unless such pleading contained allegations of new matter, which if undenied by the plaintiff would amount to an absolute bar to the cause of action set forth in her petition, they are of no consequence in determining the propriety of the trial court’s action in overruling a motion for judgment on the pleadings although they may be important to defendant in making its defense to the plaintiff’s action.
At this point it should be stated there is some controversy between the parties as to the status of the reply at the time defendant’s motion for judgment was ruled upon by the trial court. It is unnecessary to relate the circumstances under which that controversy arose or detail the reasons for its existence. In fairness it should be stated our examination of the record discloses there is justification for the position assumed by each of the parties to the controversy and that their contentions with respect thereto were advanced in the utmost good faith. .We have, however, determined from what we can glean from the record and statements made by the parties in their briefs that sometime during the argument before the trial court on the motion that court granted the plaintiff permission to file a reply out of time, heard arguments of counsel and rendered its decision on such motion as though a reply containing a general denial of all allegations of new matter to be found in defendant’s amended •answer was actually on file. Certain it is that a reply was filed on September 10, 1943, within three days from the date of the hearing on the motion and seventeen days prior to the date on which the trial court rendered its judgment. Under such circumstances we feel it would not be fair to either the trial court or the plaintiff to do other than consider the reply as a part of the pleadings and treat it as having been so considered at the hearing. So treated, it must be con ceded, there is nothing in the amended answer which could be held as a matter of law to require the rendition of judgment on the pleadings, the reply having denied all allegations of new matter contained therein.
Throughout this entire proceeding, from the time of the filing of the motion for judgment on the pleadings up to and including its submission for appellate review, it would seem that all parties to this lawsuit have proceeded on the assumption such a motion is all-inclusive and that irrespective of vital questions of fact which are in dispute under the issues framed by the pleadings, the trial court and this court on appeal must determine their respective contentions, regardless of whether they should have been raised on a demurrer to the petition, might have been determined on a demurrer to the evidence, finally disposed of by the trial court when the entire cause was submitted to it for determination or otherwise disposed of during the course of the trial. We do not so understand it.
Ordinarily a motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the pleaded and conceded facts. Under those circumstances this court has repeatedly held a motion for judgment is tantamount to a demurrer and that the ruling thereon depends upon the sufficiency of the pleadings against which the motion is leveled. Because motions for judgments are usually filed and considered under conditions where the facts are conceded, our decisions dealing with the effect of and the construction to be placed upon them when vital issues of fact are in dispute under the pleadings, are not numerous. That, however, does not mean courts are. limited in all cases to questions pertaining to the sufficiency of pleadings in their rulings on motions for judgment. The general rule as to the construction to be placed upon such motions, where material issues of fact are joined by the pleadings upon which a valid judgment might be based, is well stated in 1 Bancroft’s Code Pleading, which reads:
“A judgment on the pleadings is rendered, not because of the lack of evidence or proof, but because of a lack of issue of fact. If there is no issue of material fact presented by the pleadings, then it becomes a question of law as to which party is entitled to judgment. But if a material issue of fact is presented, and remains undetermined, a judgment on the pleadings is improper. This rule is not altered merely because the issue is offered or joined by pleading defective in form.” (p. 924.)
“Where an issue has been joined by the filing of a complaint, answer and replication and the defendant moves for judgment on the pleadings, the motion should not be sustained, unless the defendant will be entitled to a judgment, no difference what the findings might be upon the issues of fact joined.” (p. 926.)
See, also, Bates’ Pleading, Practice, Parties and Forms, 4th ed., 352, § 412; 41 Am. Jur. 521, § 336; 49 C. J. 670, § 948; Childers v. New York Life Ins. Co., 117 Okla. 7, 245 Pac. 59; Smith v. Hughes, 135 Okla. 296, 275 Pac. 628; 65 A. L. R. 573, and Rhoades v. McDowell, 24 Ohio App. 94, 156 N. E. 526.
Our decisions in line with the general proposition just stated are to the effect that a judgment upon the pleadings cannot be rendered when issues are joined by such pleadings upon material questions of fact. This is the rule, irrespective of whether the issues are joined by pleadings which are insufficient in form or what the findings of the trial court may eventually be on the issues raised by them. (See Chamberlain Co. v. Bank, 98 Kan. 611, 160 Pac. 1138; Thompson v. Downes, 114 Kan. 205, 210, 216 Pac. 824; Ludwig v. Macy, 112 Kan. 18, 20, 209 Pac. 657, McCready v. Dennis, 73 Kan. 778, 85 Pac. 513, and Lesem v. Harris, 102 Kan. 222, 169 Pac. 959.)
Measured by the doctrine announced in the foregoing treatises and decisions, what is to be said for appellant’s contention the trial court erred in overruling its motion for judgment on the pleadings? Without filing a motion to make more definite and certain or a demurrer appellant, confronted with the petition herein set forth, proceeded to make up the issues in the instant action by filing its amended answer, allegations of which among other things in defense of the cause of action set up by the plaintiff, were to the effect that the insured surrendered the contract of insurance with full comprehension of her act and at. a time when she was sane and mentally competent to take such action and denied there had been disaffirmance by the parties alleged in the amended petition to have made such disaffirmance. By that action appellant joined issue on the vital and material question of fact as to whether insured was insane at the time she took the action which it claimed resulted in divesting the appellee of any rights under the contract sued on. It joined the further issue, material to a determination of the rights of the parties, of whether, if insured was insane at such time, there had been a disaffirmance of her action. Having chosen to join issue on these material propositions of fact, it is our opinion there can be no question, but that under the rule heretofore announced and to which we adhere, the appellant was precluded from obtaining judgment on its motion and the trial court’s ruling must be approved.
Many interesting questions With respect to the rights of the parties under the issues raised by the pleadings have been raised in the briefs and discussed by counsel for both appellant and appellee. Having concluded the trial court properly overruled the motion for judgment on the pleadings their determination is neither necessary nor proper on this appeal.
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The opinion of the court was delivered by
Thiele, J.:
The actions in this appeal were brought to recover alleged damages to real estate. The substance of the actions is the same and they are treated together. Demurrers were sustained to second amended petitions, and plaintiffs appeal.
Omitting formal parts, it is alleged that Stonehouse Drainage District No. 1 of Jefferson county is a duly organized corporation under Laws 1905, ch. 215, and acts amendatory thereto, and that defendants, Sturm, Baker and Hoekstra, were presuming to act as officers 'for and on behalf of the drainage'district on July 3, 1939, but that they were exceeding their authority and actually acting as individuals because their acts were illegal and void as a drainage district as shown by the decision of the Supreme Court of Kansas in State, ex rel., v. Stonehouse Drainage Dist., 154 Kan. 422; that on the above date in the name of the drainage district they entered into a contract with defendant Marsh, pursuant to certain preliminary steps, consisting of notice to contractors, proposal and specifications, copies of which, with the contract, were attached as exhibits. It is further alleged that sometime between June 27,1941, and November 30, 1941, defendant Sturm was replaced on the drainage district board by defendant Roelofsz, and that defendants, Roelofsz, Baker and Hoekstra, as individuals, but assuming to act for the board, through its and their employee, defendant Marsh, and Marsh individually, wrongfully and without authority did enter upon the described real estate of plaintiff in Jefferson county and start the. digging of a ditch diverting the water of Stonehouse creek on the lands of plaintiff, the details of which are pleaded but need not be repeated here; that because of the wrongful entry upon her lands and the digging of the ditch plaintiff has been irreparably damaged; that her lands are now subject to overflow and to washing and that the ditch will grow wider and deeper. It is further alleged that defendant Marsh entered upon a bond in favor of the Stonehouse Drainage District conditioned upon faithful performance of his contract, a copy of the bond being attached as an exhibit; that the bond was given pursuant to G. S. 1935, 24-426; that under the contract the specifications are made part thereof and reference is made to a provision of the specifications requiring observance -of all state laws, and that the contractor shall indemnify and hold harmless the board and its officers, agents and servants against any claim or liability based on any violation of such laws, and that the law was clearly violated by entry upon plaintiff’s lands and the digging of the ditch, since the drainage district proceedings were void and illegal, ’and that defendant Holt was the surety on the bond. It is further alleged that plaintiff had demanded of the drainage board members and of the contractor that the dirt removed be replaced and had made additional efforts to have the same done so as to reduce her damages, but without success. She prayed for damages in a stated sum.
The defendants demurred on two grounds — that several causes of action were improperly joined, and that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained generally and plaintiff appeals.
The briefs filed cover many contentions and determination of some of them renders others immaterial. In support of the trial court’s ruling appellee directs attention, among other things, to the rule stated in Grentner v. Fehrenschield, 64 Kan. 764, syl. ¶ 1, 68 Pac. 619, and followed in later cases, that if the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient, and. argues that the petition under consideration presents a confusion of theories and a failure to plead upon a single and definite theory. The appellant insists that his action is one in trespass and to recover against the defendants in their individual capacities, this because of alleged illegal acts as directors of the' Stone-house Drainage District, by defendants Sturm, Baker, Hoekstra and Roelofsz, and by defendant Marsh under an unlawful contract, and for our purposes we shall so consider it. Assuming sufficiency otherwise, the action for trespass sounds in tort, and denies legality of the acts performed. Assuming any. cause of action is stated against defendant Holt, it is based on his liability on the bond of Marsh, and assumes legality of the contract. Even though these two actions based upon these inconsistent positions could otherwise be joined, it is quite apparent that all of the defendants are not interested in or affected by each cause of action and the actions may not be joined (G.S. 1935, 60-601).
We next examine the petition to determine whether it states a cause of action in trespass against the defendants or any of them. The substance of the allegations of the petition is that Stonehouse Drainage District is a corporation under Laws 1905, ch. 215 (G. S. 1935, 24-401 et seq.) and that on July 3, 1939, defendants, Sturm, Baker and Hoekstra, presuming to act as officers of and on behalf of the drainage district let a contract to Marsh for digging a ditch, it being held in State, ex rel., v. Stonehouse Drainage Dist., 154 Kan. 422, 118 P. 2d 587, the contract was illegal and void (perhaps the citation is in error for the digging of the ditch is alleged to have occurred before the above case was decided on November 8, 1941. In a case of the same title, reported in 152 Kan. 188,102 P. 2d 1017, decided June 8, 1940, performance of the above-mentioned contract was enjoined, it being held the proceedings on which it was based were void for failure to procure the requisite approval of the chief engineer of the division of water resources); that between June 27, 1941, and November 30, 1941, defendant Sturm was replaced on the drainage board by Roelofsz and he with Baker and Hoekstra, assuming to act for the board did, through their employee Marsh, dig the ditch complained of. There is no allegation that the members of the board of directors were not exercising in good faith the judgment and discretion vested in them under the statute under which the drainage district was organized or that they were guilty of bad faith or abuse of discretion in any manner, or that they maliciously caused any injury to plaintiff or her real estate.
As to the defendant Sturm there is no allegation he did anything subsequent to the letting of the contract, and without more it may be said no cause of action was stated as to him.
As to the defendants, Baker, Hoekstra and Roelofsz, it is clear that plaintiff seeks to hold them individually liable for acts performed by them as the Board of Directors of the Drainage District. In Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649, plaintiff brought suit against individual members of the state highway commission and against a contractor and others to recover damages for alleged injury to land caused by diversion of water from a creek in connection with highway improvements. In ruling on a demurrer to the petition this court said:
“It is the general rule of law that state or municipal officials, performing the duties imposed upon them by statutes creating their respective offices and prescribing their duties, and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799; Construction Co. v. Sedgwick County, 106 Kan. 410, 186 Pac. 492; 46 C. J. 1045; 22 R. C. L. 487; Mechem, Public Offices and Officers, §§ 612, 613.) Hence, insofar as plaintiffs seek to recover from appellants as individuals the petition failed to state facts sufficient to constitute a cause of action, and appellant’s demurrers thereto should have been sustained.” (1. c. 65.)
Appellant contends the rule of that case, and others of like import, may not be followed here and that the rule of Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489, applies. In the latter case the board of county commissioners, who were not charged with the collection of taxes, and who had no jurisdiction to take possession of real estate until after a certain waiting period as provided in a statute therein referred to, had nevertheless taken possession of real estáte and had leased the same to third persons. The owner, whose rights were.adjudicated in a previous suit brought an action to recover his damages from the three county commissioners and their bondsmen. For our purposes here it may be said their defense was that they were acting as, the board of county commissioners and were not individually liable. This court made an extensive review of the law applicable and held:
“The general rule is that immunity from liability to persons who may be injured" as the result of quasi-judicial acts performed by public officers does not attach to acts performed wholly outside their jurisdiction.
“Where a public officer performs, without jurisdiction, a quasi-judicial act, he is not exempt from liability to persons injured thereby, at least unless the subject matter of such act belongs to a class over which he has jurisdiction and the act is performed under color of jurisdiction.” (Syl. ¶¶ 6, 7.)
We shall not make an extensive review of the law covering organization of the Stonehouse Drainage District, or of its powers (G! S. 1935, 24-401 et seq.). The petition alleges the district is a corporation. Under the statute it is a “body politic and corporate” with power to sue and be sued, and to take charge of and exercise control of watercourses, to construct ditches, drains and levees, to levy assessments and special taxes to defray costs of improvements, to levy and collect a general tax to create a general fund, and other powers as set out in the statute (24-407). The affairs of such a district are managed by a board of three directors (24-409) elected by the taxpayers of the district (24-411.) In addition there is full authorization for making improvements. That the three defendants last referred to were operating as directors of the drainage district under color of statute and law and dealing with a matter over which they had jurisdiction is clearly deducible from the allegations of the petition, and from those allegations it is likewise clear that plaintiff seeks to hold them individually responsible because through a mistake of the law applicable, they failed to procure approval of the chief engineer of the division of water resources which we held to be a condition precedent to the making of the proposed improvement.. (See State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 102 P. 2d 1017.) It is clear from the statute and from allegations of the petition the board of directors was acting within its jurisdiction, and not outside of it as was -the board of county commissioners in Cunningham v. Blythe, supra. It would appear that any action the plaintiff may have because of construction of the ditch would be against the district as a body corporate, and politic, and not against the individuals who constituted its board of directors. It may be noted that such an action would have to be brought in Jefferson county, where the district is located (G. S. 1935, 60-503 [2]) and could not be maintained in Shawnee county, where service was obtained on another defendant.
As to defendant Marsh, it is alleged that under a void contract with the drainage district, he proceeded to dig a ditch on the plaintiff’s real estate. Under the circumstances the drainage district had no legal right to dig the ditch and Marsh was in no better position. Where two or more parties, by their concurrent wrongdoing, cause injury to the real estate of a third person, the injured party may institute an action against one or all contributing to his injury (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706). Without discussion it may be said that the state and its governmental subdivisions, while constructing public improvements in accordance with statute, are generally immune from' actions to recover damages arising therefrom. There is also a well-established rule that one who contracts with a public body for the performance of a public work is entitled to share the immunity of the public body for incidental injuries necessarily involved in the performance of the contract, where he is not guilty of negligence (see 69 A. L. R. 490), but neither rule has application here, for the reason that the damage complained of was not in performance of a legal contract, nor incidental to its performance, but because the work projected was never completed. The drainage district and possibly the contractor may have immunity as to incidental damage occurring without negligence in constructing a ditch, but the damage complained of is not of that type — it is damage occurring' because of the failure of the district to properly initiate and complete proceedings leading nip to the contract under which the ditch was partially dug and then abandoned without completion. Under the allegations of the petition, defendant Marsh participated with the drainage district in committing the damage and a cause of action was stated against him. The present appeal involves no question of respective rights and liabilities between the drainage district and Marsh.
It is not necessary that we treat at length whether a cause of action was stated against defendant Holt. It appears that he is surety on the bond of Marsh, given to secure faithful performance of the contract, which was enjoined, and the validity of which is denied.
The law is settled that a party may not both affirm and disaffirm a particular contract, and assert that it is void for certain purposes, and at the same time claim an advantage under it. (See Osborne v. Kington, 148 Kan. 314, 80 P. 2d 1063, and cases cited.) Plaintiff’s claim for damages is predicated on the proposition the contract between the drainage district and Marsh was void. She will not -be permitted to say it was valid so that she may state a cause of action against the contractor’s surety. No cause of action was stated against the defendant Holt.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to enforce a trust relating to land. Plaintiffs prevailed and defendants appeal.
The action was instituted by Katherine Staab, Julia Staab, Elizabeth Staab Berens, Marie Staab Dwyer, and Alois W. Staab, sisters and a brother of the defendants, Alex V. Staab and John C. Staab. The defendant, Christina Staab, is the wife of John C. Staab.
The petition was originally framed as one count but was later separated into two counts over appellees’ objection and as a result of motions filed by appellants to require appellees to elect or separately state and number their respective causes of action. The appeal is from orders overruling defendants’ separate demurrers to each count of the second amended petition. The demurrers were all based on four identical grounds. Only two of such grounds are urged by appellants now and it is to them that we shall direct our attention. They are that the facts alleged in each count are insufficient to constitute a cause of action and that each cause of action, if one existed, is barred by the two year statute of limitations. (G. S. 1935, 60-306, third.)
The material allegations contained in the first count, in substance, are:
Plaintiffs and defendants, John C. and Alex V. Staab, are the only children of Carl Staab, who died May 21, 1937; Carl Staab was an uneducated person; he could not read or write; he could not even sign his own name and orally had granted to John C. Staab the privilege of signing his name to all necessary documents; he placed the utmost confidence and trust in his son, John, in all matters of business where written instruments were required and sought the advice of John on all such matters; the son, Alex, worked with John and enjoyed the same confidence from his father except in the handling of written instruments; in July, 1931, there was considerable oil activity in Ellis county where the land in question was located; John and Alex orally suggested to their father that since it was necessary for them to transact his business by reason of his age, failing health and inability it would be more convenient and to his interest and to the interests of all the children if he executed deeds to John and Alex covering the lands described in the petition; John and Alex advised the father that if he would convey such lands to them they would hold the property in trust for him during his lifetime, account to him for all proceeds received therefrom and at his death they would make an equal division of the property among all of his children; the father had absolute confidence in his sons and orally agreed'to that arrangement; on July 24, 1931, he executed deeds to the defendant sons covering the land in question.
It was further, in substance, alleged:
The father died testate on or about May 21, 1937; in his will he left to the two defendant sons all the property which he owned at his death except certain nominal sums in cash which he bequeathed to each of the plaintiffs; the will is in the possession and control of the defendants and a copy thereof cannot be attached; immediately after the father’s funeral on May 23, 1937, plaintiffs and defendants had a family conference; at that time John stated he and Alex would give Katherine Staab and Julia Staab each $700 and would give Elizabeth, Marie and Alois Staab each $500 from the proceeds which had accumulated from the father’s life estate; such sums have been paid to all of the plaintiffs except Katherine and Julia Staab; John inquired whether any of the children desired to see the will but stated the will might cause some feeling; he, however, stated that each of the plaintiffs would receive his share of the father’s property which the father had deeded to him and Alex; later and on December 2,1937, John told Roy Dwyer that he and Alex would appreciate it if he, Roy Dwyer, would so advise the plaintiffs; in December, 1937, Roy Dwyer, husband of the plaintiff, Marie Staab Dwyer, advised all of the plaintiffs except Alois W. Staab that John and Alex were going to give plaintiffs their share of the property but that owing to the small production of oil, due to proration restrictions, they thought the division should be made at a later time; again in July, 1938, Alex informed Roy Dwyer that he was going to see that plaintiffs got their share of the father’s property; these statements were made by John and Alex for the purpose of deceiving the plaintiffs, giving them a feeling of security and delaying a definite controversy over the rights of plaintiffs until time had strengthened their wrongful purpose of acquiring the interests of plaintiffs in the property; plaintiffs at that time, however, had absolute confidence in their brothers and therefore raised no objection to their continued control over the property.
It was further, in substance, alleged:
During the year 1940 it became a matter of common knowledge that John and Alex Staab were receiving large sums of money from oil royalties from the lands in question; the confidence of plaintiffs in John and Alex began to weaken and on July 11, 1941, plaintiffs held a conference at Hays, Kansas; they appointed Roy Dwyer to speak to John and Alex in their behalf for the purpose of obtaining a definite settlement of their property rights; Roy Dwyer so advised John and Alex but they informed him they preferred to talk with the plaintiffs; during the evening of July 11, 1941, all of the plaintiffs, except Alois W. Staab who was not present, were informed by Alex and John that they had discussed the matter and had decided to keep the property conveyed to them by their father and would make no conveyance to plaintiffs or recognize their interests in the property other than to pay them a nominal sum in cash; on July 11, 1941, John and Alex repudiated the arrangement, agreement and trust which they had with their father at the time he conveyed the property to them for the benefit of himself and his children.
Paragraph XI alleged:
“By reason of the confidential relationship which existed between the defendants and Carl Staab and by reason of the oral agreement set out in para graph V hereof, a trust arises in. favor of the plaintiffs by implication of law, and the plaintiffs are each of them entitled to a one-seventh (1/7) interest in the property described in paragraphs III and V hereof, and are each entitled to a one-seventh (1/7) of all the rents and royalties derived from said property since the death of their father Carl Staab, May 21, 1937.”
The second count made all the averments contained in the first count except paragraph XI a part of the second count and, in substance, further alleged:
Defendants had no intention at the time of entering into the trust agreement for the benefit of the father and all of the children to keep the agreement but made the agreement for the wrongful purpose of obtaining a deed to the land in order that they might obtain the interest of plaintiffs on the death of their father; by reason of the trust agreement made with the father and by reason of the deceit practiced by defendants upon their father, Carl Staab, a trust has arisen in favor of plaintiffs by implication of law and plaintiffs, and each of them, are entitled to a one-seventh (1/7) interest in the land and in the rents and royalties derived therefrom since the father’s death.
Before considering the demurrers to each count we pause to note appellees’ contention that the facts pertaining to actual fraud, now alleged in count two and formerly pleaded as a part of count one, all actually constitute but one cause of action. Appellees believe they should not have been required to separately state and number the charge of actual fraud as a separate and distinct cause of action. The theory of their contention is the petition stated a cause of action on the doctrine of an implied trust and that such a trust may result from constructive or actual fraud. It has been held that if a petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories relief is sought, the petition is insufficient. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 854, 22 P. 2d 965; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772.) We assume it was probably on that basis that the trial court sustained appellants’ motion to require appellees to elect upon which theory they would rely or to separately state and number the respective causes of action. In view of the manner in which the trial court later, when ruling on the demurrers to the respective counts, considered the petition in its entirety we do not regard the former order requiring a separation of the precise theories as very important in this particular case. We also observe that all of the really essential elements contained in count one have been made a part of count two by reference. It follows count two now actually embraces the essential allegations formerly contained in the entire petition. In this particular case it is well to remember the relief sought in the entire petition, or in either count, is to impress the land with a trust. The form of the relief sought is therefore not inconsistent but identical and only one satisfaction can be had. It is not like cases in which, for example, it is impossible to ascertain from the petition whether a party seeks affirmance or rescission of a contract. The question of the statute o'f limitations as applied to the facts pleaded will be treated later.
But let us for the moment consider count one separately. Did it state a cause of action on any theory? The first count, in substance, alleged:
(1) The existence of a confidential relation between the aged and uneducated father and his sons; (2) a transaction induced by that relation; and (3) a breach by defendants of the confidence reposed. When those conditions exist the law implies a trust commonly known as a constructive trust. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996; Silvers v. Howard, 106 Kan. 762, 769, 190 Pac. 1.) We hold the first count stated a cause of action on the theory a trust arose by implication of law.
Did the second count state a cause of action? From what has been said it is clear actual fraud is not necessary to create a trust by implication of law. That fact, however, does not mean an implied trust cannot also arise from actual fraud. It often so arises although proof of such fraud is frequently difficult. A trust which the law implies from existing facts and circumstances, that is, a trust which arises by operation of law, may be established by either actual or constructive fraud. (Kahm v. Klaus, 64 Kan. 24, 26, 67 Pac. 542; Gemmel v. Fletcher, 76 Kan. 577, 586, 92 Pac. 713; Clester v. Clester, supra, Ballard v. Claude Drilling Co., 149 Kan. 506, 510, 88 P. 2d 1021.) On a demurrer the allegation of facts constituting actual fraud, being properly pleaded, are, of course, accepted as true. Here they were so pleaded. We hold the second count stated facts which constituted a constructive trust based on actual fraud and, with the essential allegations from count one incorporated in count two, also a constructive trust under which it was not necessary to prove actual fraud by appellants at the inception of the transaction with their father.
Appellants contend the petition discloses on its face the two-year statute of limitations had run against both causes of action. They argue the statute started to run on July 24, 1931, the date the deed was executed and delivered to them by their father. The instant action was filed February 17, 1942. Appellants concede it has been held the statute does not begin to run from the date a trustee obtains title to land if he subsequently recognizes the existence of the trust, or, in a case of fraud, the fraud is not and in the exercise of reasonable diligence could not have been discovered until later. (Kahm v. Klaus, 64 Kan. 24, 26, 67 Pac. 542; Hunnicutt v. Oren, 84 Kan. 460, 114 Pac. 1059; Bell v. Bank of Whitewater, 146 Kan. 901, 906, 73 P. 2d 1059.) Appellants, however, argue'the first count does not charge a later recognition of the trust by them. With that contention we do not agree. The petition was not motioned in that respect. While the petition does not expressly employ, the term recognition it alleges facts which are in harmony.with and disclose a later recognition of the trust by appellants. It discloses that between the father’s death in 1937 and July 11, 1941, the trustees recognized the trust agreement and made payments to some of the appellees from income derived from the father’s estate and made a promise of payments therefrom to the remaining appellees. They further recognized the trust between those dates by promises to give appellees their share of the property. The confidence of appellees in appellants did not begin to weaken until some time in the year 1940 when oil production increased, the exact date not being stated, and they did not learn until July 11, 1941, that appellants had considered and decided to breach the trust agreement. Touching appellants’ breach of trust and the discovery of the alleged fraud, the trial court stated:
"In the cases at bar, fraud did not necessarily enter into the transactions until the abuse of the alleged confidential relations, or, in other words, a breach‘of the confidence reposed. It is true that under the second counts of these petitions, plaintiffs allege actual fraud on the part of the defendants at the time the properties were conveyed to them, but it appears to me that from the entire petitions it must be inferred that the alleged fraud was not discovered by the plaintiffs until the defendants repudiated their trust on July 11, 1941.”
From the above quotation it will be observed the trial court. . referred to petitions. The court at that time was considering identical demurrers to a petition in a similar action between the samé parties. (Staab v. Staab, case No. 36,026, post.) With the above quoted interpretation of the instant petition by the trial court, we agree. It follows the first notice which appellees actually had, or in the exercise of reasonable prudence could have had, of appellant’s breach of trust was concurrent with the .discovery of the actual fraud alleged. That was on July 11, 1941. This action was filed February 17, 1942, and was in time on the theory of actual fraud alleged in count two under the provisions of G. S. 1935, 60-306, third, which bars an action based on fraud within two years after the discovery of the fraud. (Bell v. Bank of Whitewater, supra, p. 906.) The action was also in time on the theory of a constructive trust alleged in count one. That is true in the instant case whether, as frequently stated, the statute begins to run from the date the trust is repudiated, Flitch v. Boyle, 147 Kan. 600, 78 P. 2d 9; Allbert v. Allbert, 148 Kan. 527, 83 P. 2d 795, and cases therein cited, or whether the rule is as sometimes stated, namely, that the statute does not begin to run from the date of demand on the trustee and repudiation by him, but starts to run from the date the trustee commits a wrong or breach of his trust by which he becomes chargeable. (37 C. J., Limitation of Actions, §270, page 909; 34 Am. Jur., Limitation of Actions, §179.) In this case the first wrongful act or known breach of trust by the trustee was their repudiation of the trust on July 11, 1941, the daite the beneficiaries demanded settlement under the trust agreement. In passing we pause to note that appellant’s contention the cause of action arose in 1931, that is, on the date of the execution and delivery of the deed to them, is entirely unsound. The father lived until May, 1937. Manifestly, during his lifetime appellees had no interest in his property which they could assert against the trust he had created. Thereafter appellants recognized the trust and lulled appellees into a sense of confidence and security until the confidence reposed was breached. Equity and good conscience will not permit appellants to now take advantage of a' delay in filing suit occasioned by their own wrongdoing and that is true whether the wrong consisted in a breach of trust formerly recognized or in actual fraud and its successful concealment.
Appellants, in the district court and here, rely primarily upon the case of Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19, 119 A. L. R. 326, as authority for their contention the instant action is barred. The theory of plaintiff in that case was the statute of limitations had been tolled by reason of defendants’ nonresidence from the state at all times since the alleged fraudulent oral'Contract relied upon to create a constructive trust, was made. We held the action according to plaintiffs’ own theory was one in rem, namely, an action to impress the land with a trust, that defendants’ nonresidence did not prevent the filing of an action in rem and, hence, did not toll the statute of limitations. We also clearly stated the cause of action in that case, according to the theory of plaintiffs’ petition, had accrued at least six years prior to the commencement of the action and that the action, being based on fraud, was barred by the provisions of G. S. 1935, 60-306, third. The district court properly held the decision in the Herthel case was not controlling in the instant case.
It may be helpful to comment briefly concerning the fact that the petition in this case and in the case of Staab v. Staab, No. 36,026, post, is now framed in two counts. The fact the petitions are so framed simply serves to apprize appellants of the theories upon which appellees seek the same identical relief. The relief sought, irrespective of the theories alleged, is to impress the land with a trust. In actual practice each case will be tried as one cause of action. In each action all the available evidence on both theories of relief, of course, will be adduced and the relief sought will be granted, if established, on either theory.
The judgment overruling the demurrers is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
Appellant was prosecuted on two counts growing out of an automobile accident. Under the first count he was charged with manslaughter in the fourth degree; under the second count with leaving the scene of an accident “without giving his .name, address or motor registration number.” (G. S. 1941 Supp. 8-518, 8-520.) The state did not contend that the defendant intended to kill or injure anyone, the charge being based solely on “culpable negligence.” The trial court instructed the jury that if they did not find the defendant guilty of manslaughter in the fourth degree (G. S. 1935, 21-420) they should consider whether he was guilty under the first count of “negligent homicide”- — a crime of lesser degree defined in section 8-529, G. S. 1941 Supp.; that if they did not find the defendant guilty of “negligent homicide” they should consider whether he was guilty under the first count of “reckless driving” — an offense of lesser degree as defined in section 8-531, G. S. 1941 Supp. The jury acquitted on the first count and convicted on the second count. From the judgment and from the sentence of one year in jail on the second count this appeal is taken.
Appellant’s principal contentions are that count two did not state facts sufficient to constitute a crime under the statute and that the motion to quash should have been sustained; that the evidence was insufficient to establish a crime under the statute and that the motion to discharge should have been sustained; and that his rights were prejudiced by failure to give requested instructions covering his theory of the case.
This is the third appearance here for this case. The two former appeals (State v. Bowser, 154 Kan. 427, 118 P. 2d 1055; id., 155 Kan. 723, 129 P. 2d 268) were by the defendant, prior to trial upon the merits, and did not involve any issues now presented.
The accident occurred on the night of March 6, 1940, not far from Erie, Kan. Appellant was driving from Parsons to his home in Topeka, Kan. There was some conflict in the evidence concerning the weather, the appellant and some other witnesses testifying that it was raining and snowing. All agree that it was dark, the sky being overcast with clouds. Charles H. Moore, who lived a half mile or more from the intersection where the accident occurred, had gone to the mailbox to get his mail and presumably was standing near the box, having parked his car near by. ■ Appellant’s car, traveling westward, skidded and either struck Mr. Moore directly or hit the other car which in turn struck him, knocking him unconscious. Immediately after the accident another car, coming from the north, arrived at the intersection. The other car was oc cupied by two boys or young men, Harold Williams and Dewey Gearhart, the latter being the driver. The two boys and appellant got out of their cars and Harold Williams identified the injured and unconscious man, who was lying on a pile of chat or gravel, as his grandfather. They lifted him into the boy’s car. Appellant testified that he helped, but Gearhart testified that he was not sure whether appellant helped pick up the injured man, but that appellant started to raise the front seat — the car being a two-door sedan —so that Mr. Moore could be put in the back seat, but that he and Williams wanted him put in the front seat. Both boys testified that Bowser told them to take him to the hospital and he would follow, but that after they got into the car Williams said they would take him home, which was about three-quarters of a mile distant and that Bowser probably didn’t, hear that statement. They then drove to the home but Mr. Moore was dead when they arrived. Appellant testified that he told the young men that he was “Bowser from Topeka” but that they were much excited and “everything was in a rush” and he didn’t know whether they heard him. He testified that he did riot say he would follow them to the hospital but said that he was going on, meaning to Topeka. The boys testified that they didn’t hear Bowser say who he was, and that they didn’t ask him his name or address. They admitted that they were excited and said that Bowser was also excited — which was natural enough for all concerned, under the circumstances. What happened at the scene, following the accident, took place within a few minutes.
. Gearhart returned to the scene soon after the accident and gathered up some mail which was scattered on the ground. The appellant had gone. One of the boys had noticed that the Bowser car was a Pontiac and that it bore a county 3 license tag. This information was furnished' and peace officers of Coffey county caught up with appellant about fourteen miles north of Burlington and took him back to Burlington. There is some conflict of testimony concerning the conversation between the officers and appellant or as to the interpretation to be given to it. However, the issues here to be determined do not require further review of the evidence.
Appellant’s contentions, more specifically stated, are that the second count was insufficient because it failed to advise him in what respect he had violated the statute (§§ 8-518, 8-520); that Mr. Moore being unconscious, there was no one present to whom he was •under legal obligation, under the statute, to give his name, address and car tag number; that he attempted to disclose his identity to Williams and Gearhart; that when the boys drove away with the injured man he was left alone at the scene, on a dark and inclement night, and that he was under no obligation tó remain there and no purpose would have been served by doing so; that he was entitled to an instruction interpreting the statute in the light of the circumstances existing, and that under section 8-523, G. S. 1941 S'upp., he had -twenty-four hours in which to report the accident to the Highway Patrol but was taken into custody soon after the accident and before he had any opportunity to comply.
Before examining appellant’s contentions we note certain proceedings which took place after the jury had been given the instructions and had retired to consider its verdict. The jury returned to the jury box and the following transpired:
“Jury Foreman: There is one question we would like to be clear before us, and that is in regard to leaving the scene of the accident. I believe the defense stated he had twenty-four hours in which to report that. Is that correct?
“The Court: You will find it all in the instructions I gave. You will have to be guided by the instructions as to the law I gave you. If you will read those instructions—
“Jury Foreman: The reason we raised that’question is, it was given by the defense attorney and it wasn’t challenged by the state. It might have been an oversight of his whether he didn’t mean to.
“The Court: Beginning with the instruction 13 and following, you will find the instructions relating to the second count of the information. If you wish to deliberate further.this evening, I will let you retire, but if you think you should go home and take care of your work, I will excuse you now, as I know all of you are very busy during this war emergency.
“Jury Foreman: I believe we will retire and decide. The Court: You may retire.”
We cannot escape the conclusion that this left the jury in the dark about a matter that was disturbing them — the question of whether there is a statute providing for report of an accident to the highway patrol within twenty-four hours, and if so what bearing, if any, it had upon the case. Counsel had referred, during the trial, to the existence of such a statute and the jury was evidently perplexed . about it. The court simply said, “You will find it all in the instructions I gave.” It is true that the twenty-four hour statute was not involved in the issue to be determined, and accordingly no instruction relating to it had been given. But the court’s reply was readily ■ open to the interpretation that there is no such statute. Without overemphasizing the point we think the jury would have been less confused if they had been told there was such a statute but that it was not involved and should be given no weight in their deliberations.
We go to the main issue. What are the requirements of the statute, and was the information sufficient to charge an offense under it? Section 8-518, G. S. 1941 Supp., provides in part:
“(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 20 (8-520).”
Section 8-520 therein referred to is as follows:
“The driver of any vehicle involved -in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request and if available exhibit his operator’s or chauffeur’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall -render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”
Count two was as follows:
“That within the County of Neosho and State of Kansas, and on or about the sixth day of March, 1940, one S. Newton Bowser then and there being did then and there unlawfully and wilfully, being the driver of a motor vehicle involved in an accident, resulting in death, did then and there leave the scene of the accident without giving his name, address or motor registration number, all contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Kansas.”
The information simply recites that the defendant left the scene “without giving his name, address or motor registration number. Does that statement alone completely reflect the provisions of the statute? We think not. To hold that it does would immediately raise a most serious question as to the validity of the statute. Suppose the criminal statute, supra, were entirely silent as to the persons to whom the information should be given and had solely provided: “The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle which he is driving.” Clearly such a statute and an information or indictment based upon it would be open to serious attack for uncertainty, for indefiniteness. (State v. Blaser, 138 Kan. 447-449, 26 P. 2d 593; State v. Davidson, 152 Kan. 460, 105 P. 2d 876; State v. Ross, 152 Kan. 495, 105 P. 2d 879.) To whom would the information have to be given? Would it be sufficient for the driver to give it to some guest riding in his own car? Or to some hitch-hiker who happened by, who knew none of the parties and who went on his way unconcerned? Or if no other living person were present would the driver be compelled to wait at the scene indefinitely until some one appeared? Or if alone at the scene would he violate the statute if he left and went to get help? Fortunately we are not confronted with so barren a statute. In substance the pertinent part of the statute provides that the driver shall: (a) Give his name, address and car registration number, and (b) exhibit' his operator’s or chauffeur’s license — if the same is available and he is requested to do so, “to the person struck or the driver or occupant of or person attending any vehicle collided with,” etc.
We think that clearly the portion indicated in italics must be construed to apply both to (a) and (b). Otherwise the statute would be left wholly silent as to the persons to whom the driver’s name, address and car number are to be given and its validity thus made subject to gravest doubt. Moreover, if the words in italics are construed as applicable only to (b), the result would be wholly illogical. Such a construction would leave us with a statute having a provision to indicate persons to whom the driver’s license must be exhibited — if requested — but having no such provisions as to the far more important information concerning the driver’s name, address, and car-tag number.
We must conclude that appellant’s construction of the statute was correct, and that he was under no legal obligation to give the information to anyone — before leaving the scene — except “to the person struck or the driver . . . of or person attending any vehicle collided with.” No one but the injured man came within the classification and he was unconscious and unable to receive the information. Neither of the two boys who arrived at the scene was the “driver ... of or attendant upon any vehicle collided with.”
It may well be argued that the statute should require that the information be given to anyone who is present or who arrives at the scene of the accident. But ours is not a legislative function. And this fact applies with added force in the case of criminal statutes. It is elementary that such statutes must be strictly construed in favor of the accused; that if they are defective for lack of certainty the defect is not to be cured by judicial process, and that courts are not even at liberty to extend by intendment statutes creating and defining crimes. (14 Am. Jur. 773, 776.)
We conclude that the second count of the information did not allege facts sufficient in themselves to constitute an offense under the statute and that since the evidence disclosed that no persons were present to whom, under the statute, there was an obligation to give the information referred to in the statute, the motion to discharge should have been sustained as to the second count.
In view of the conclusions above stated, it is not necessary to determine questions relating to the instructions. It seems well to say, however, that those questions have been carefully considered and we would have been impelled to the view that instruction No. 17 was prejudicial to the defendant. Instruction 17 was as follows:
“The defendant among other things contends in this case that he stayed on the scene of the accident until the deceased, who was unconscious, was placed in the car of a relative and driven off, that when the relatives drove away with Mr. Moore, he found himself alone at the scene. In this respect, I instruct you that one of the purposes of the statute is to require a citizen in a collision such as defined by the above statutes to stop and give aid and not leave the wounded alone and helpless.”
The above language was taken bodily from an instruction requested by the defendant, but it constituted merely the preliminary part of the requested instruction which dealt, in the main, with appellant’s theory of the case. We do .not determine whether the instruction as requested correctly stated the law or whether it was error to refuse to give it. But the instruction as given ’by the court could leave only one impression — an impression that one issue to be considered by the jury was whether the defendant had failed to give aid to the injured man and had left him “alone and helpless.” There was no evidence whatever to elicit such an instruction. The state had not contended that the defendant had violated the statute in that regard. All the evidence was wholly to the contrary.
The judgment is reversed with directions to quash the second count of the information and to discharge the defendant.
Parker, J., not participating.
Harvey, J., dissents. • | [
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-101,
-97,
-108
] |
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