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The opinion of the court was delivered by
Porter, J.:
This action was brought by the Campbell Heating Company, á partnership, to recover the 'price of a heating plant placed in the building of defendants in error under a written contract. The answer set up (1) a general denial, (2) a breach of warranty, and (8) a subsequent oral contract between the parties, made after the plant was installed and found to be defective, by which plaintiffs agreed that if they were allowed to make certain alterations in the building and plant they would remove the plant provided it did not work satisfactorily and in accordance with the original warranty. It was alleged that these alterations were made and that the plant still proved defective. The court having overruled a demurrer to these defenses, a reply was filed denying the making of the oral contract, and alleging that if there was any breach of warranty defendants by their actions had made it impossible to comply with the warranties. The case was tried to the court and judgment rendered for defendants, which plaintiffs seek to reverse. The refusal of the court to sustain the demurrer to the second and third defenses of the answer is the principal ground relied upon as error.
By the written contract the purchase-price of the heating plant was $500, which defendants were to pay ?is follows: “Three hundred and fifty dollars when plant is completed and $150 February 1, 1904, provided heater fulfils its guaranty.” There was'also the following provision: “Guaranties herein are conditioned on payments being made according to contract.”
It is conceded that the allegations of the second defense of the answer were sufficient to set up a breach of the express warranty, but it is insisted that, by the terms of the contract, before defendants could avail themselves of the breach they must have paid the $350 when the plant was completed; that the payment of this sum was a condition precedent to the right to rely upon any warranty. It is said that the contract expressly conditioned- the enforcement of its guaranties upon payments being made as agreed, and that, the condition being a reasonable one, there are no valid reasons why it should not be upheld.
It is beyond question a principle of the law of contracts that the failure to comply with a condition precedent to the right to enforce a warranty will prevent the setting up of the breach, either as a defense or in an action upon the warranty. The general rule is stated as follows in volume 30 of the American and English Encyclopaedia of Law, at page 199:
“The contract of sale may, and frequently does, fix conditions precedent to the existence of any rights under the warranty, and a failure by the buyer to comply with such conditions, when they are not unreasonable, is fatal to his remedy for a breach of the warranty, whether he attempts to exercise it by an action on the warranty or by setting up the breach of warranty in defense to an action for the purchase-money.”
The rule was followed in Furneaux v. Esterly & Son, 36 Kan. 539, 13 Pac. 824, the syllabus of which reads:
“When a machine is sold upon a conditional warranty which expressly provides that the purchaser shall have a certain time in which to test the machine, and, if it fails to fulfil the warranty, the purchaser shall give the seller written notice stating wherein it fails, held, that to avail himself of the benefits of the warranty the purchaser must render substantial compliance with the agreement; and that if no written or actual notice was given, and there was no waiver of the condition, the warranty cannot be enforced against the seller.”
The same doctrine was affirmed in Aultman v. Wier, 67 Kan. 674, 74 Pac. 227. So in Windmill Co. v. Piercy, 41 Kan. 763, 21 Pac. 793, where the contract provided that if the mill failed to work properly the purchaser should give thirty days’ notice thereof, and the company was to have thirty days after receipt of the notice to remedy the defect, it was held that his failure to give the notice of the defects was an excuse for the failure of the company to' remedy them.
But it is not every condition of this kind which can be regarded as a condition precedent, although expressed as such in the contract. Some consideration must always be given to the nature of the condition and the effect non-compliance therewith will have upon the rights of the party in whose favor it is reserved. A party will not be estopped from setting up a breach of warranty by his failure to comply with an immaterial condition. The distinction between the requirement here and the condition in cases like that of Furneaux v. Esterly & Son, supra, is readily seen. There the natural consequence of the failure to give notice to the vendor was to hinder and prevent the vendor from remedying the defect. The condition was not only reasonable but it was material and necessary to protect the rights-of the vendor.
The failure to pay the first instalment upon the purchase-price. of the, heating plant, although .expressly declared to be a condition precedent .to the right to insist upon the guaranties, was not a condition which can be said to have affected materially the rights of plaintiffs or to have prevented or. hindered them from fulfilling the guaranties. The measure of damages for the failure to pay money when due is the interest on the money for the time payment is delayed, and it is apparent that the loss of the use of the $350 had no connection with the failure of plaintiffs to make the plant answer the warranties and thus avoid the breach. The defendants therefore were not precluded or es-topped from setting up the breach of warranty by the failure to pay the amount due when the plant was completed.
However, if it were conceded that the demurrer to this defense should have been sustained on the ground that it failed to allege payment of the first instalment, the cause should not for that reason be reversed, as the error, -if any, was cured by what occurred at the trial. No authority is needed for the proposition that such a condition may be waived by the party in whose favor it is reserved and that such waiver may be either express or implied.- The evidence which was not objected to shows that plaintiffs by their conduct waived this condition. No request was made for the payment until after defendants had demanded that the plant be removed, which was after it was found that the alterations and changes made had not removed the difficulty. Plaintiffs at the time the changes were agreed to conceded that the plant had not fulfilled their warranties, in view of which it is apparent that they either considered that the plant was as yet incomplete, and therefore no payment was due, or regarded it as useless to insist upon defendants making a payment under the circumstances.
It is contended that the demurrer to the third defense should have been sustained for the reason that it set up an oral contract which was void for want of consideration. It is alleged that after the piant was installed it was found to be defective, and that plaintiffs promised that if they were allowed to make certain changes in the plant and it then failed to comply with the warranties they would remove it at once. It was argued that the changes were simply the cutting of openings into certain flues in the chimneys and the changing of an air-pipe to conduct air from one of the principal rooms back to the heating plant, and that these were changes which plaintiffs were bound to make if found to be necessary and which defendants were bound to permit to be made under the original contract.
At first blush it would seem that there is much force in the contention; that plaintiffs havings contracted to put in a heating plant which would heat the building, it was their duty to use such a plan as would bring about the result, and that after the plant had been installed it was their duty to make it fulfil every warranty and equally the duty of defendants to grant them every reasonable opportunity to remove any defects that appeared. If this were true it would seem to follow that there was no consideration for either promise in the alleged oral contract. In the third defense, however, defendants make all the allegations contained in their second defense part of the third, as fully as if written out therein, and since we have found the second defense to be good the demurrer was properly overruled.
Upon the trial it was shown that after the changes and alterations in the plant had been made it was again tested and failed to furnish sufficient heat. Defendants then served notice upon plaintiffs demanding that the plant be at once removed. Plaintiffs refused to remove the plant and stood upon a clause of the contract which provided ;
“If said heating company fails to make heater fulfil its guaranty by the end of the second winter, they shall remove the plant and refund all money paid, with interest at eight per cent, per annum if not paid at maturity, and expense of collection if not paid within sixty days after due.”
Considerable correspondence took place between the parties, and plaintiffs called the attention of defendants to the failure to pay the $850, which they stated was a condition precedent. This appears to be the first time that a demand was made for the payment of the first instalment of the purchase-price. It is contended that under the foregoing provision of the contract plaintiffs were entitled to have until the second winter to make the heater fulfil the requirements and warranties of the contract. The answer of defendants to this contention is that under. the subsequent oral agreement plaintiffs were bound to remove the plant.
On the trial of the case defendants succeeded in showing what must be regarded as a consideration for the making of the subsequent oral agreement. The testimony was admitted without objection. Indeed, much of it was furnished by plaintiffs themselves, arid there is no dispute concerning any of the facts except that plaintiffs deny that they agreed to remove the plant in the event it failed to comply with the warranties after the changes and alterations were made. It appears from the evidence that plaintiffs undertook to install a heating apparatus in accordance with a well-understood- system for heating and ventilating buildings. The plant was designed to be operated by forcing heated air from the air-chamber of the furnace to the lodge-room by means of one pipe, and, in connection therewith, and as part of the same system, another pipe was designed to conduct the cold air from the room back to the air-chamber of the furnace, there to be mixed with fresh air, heated, and returned to the room. The plan contemplated a constant and continuous circulation of all the air in the room and economy in the amount of fuel used in.the furnace. That these were distinctive features of the system was abundantly established by the testimony of Mr. Campbell, manager of the plaintiffs’ business, and Mr. Lucas, their superintendent, who installed the plant. The latter testified that by using a return-pipe to take the cold air from a room in this manner less fuel is required to heat the room than would be required where that plan is not used. Indeed, this may be said to be a matter of common observation and experience. After the plant was installed and tested it proved to be unsatisfactory, and Mr. Campbell on the witness-stand conceded that it had at that time failed to comply with the warranties. He so stated to the trustees of the lodge .at a meeting held for the purpose pf deciding what should' be done. He expressed the opinion, in substance, that by changing the original scheme and plan of the system so as to use also the return-pipe to force heated air direct from the furnace to the room, and by cutting openings in three chimneys to carry the cold air outside instead of taking it back to the furnace, the room might be successfully heated. He frankly admitted to the trustees that these changes might not solve the difficulty, but he believed they would. The evidence of the trustees was that he was then asked what he would do if they consented to these alterations and the heater then failed to heat the room, and he replied that in that case he would at once remove' the plant.
It is, we think, very plain that in the making of the subsequent oral agreement defendants agreed to give up something of value which under the original contract they were entitled to insist upon receiving and for which they had bargained. They consented to allow plaintiffs to change the original plan and scheme of the apparatus and to dispense with some of the distinctive features of the system contracted for, and to accept in lieu thereof something different and likely to prove of much less value. Every one who is at all acquainted with th'e heating of houses by means of hot-air furnaces will readily recognize the well-known advantages of a system which combines the ventilating and heating of a house by pipes designed to draw the cold air out of rooms back to the air-chamber of the furnace over the crude system which was in use more than thirty years ago and which corresponds very closely to that attempted to be employed by the changes and alterations made by plaintiffs.. There was therefore a valid' and binding consideration for the subsequent oral agreement to remove the plant if it failed to comply with the warranties, and the judgment of the trial court is a finding that such an agreement was made and determines the controversy.
The judgment is -affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The defendant is a fraternal beneficiary association. It issued a certificate to Alpheus Wheatley, one of its members, entitling him to participate in the beneficiary fund of the association in a stated amount, which at his death should be paid to George W. Wheatley. Subsequently the membership of Alpheus Wheatley was suspended for non-payment of dues, and he was reinstated upon an application supported by a certificate in which he made certain declarations regarding the state of his health. Afterward he died. The association furnished a blank form satisfactory to itself upon which proof of death should be made, which included a certificate under seal by the president and secretary of the-local lodge, a statement by the attending physician, and an undertaker’s certificate.
A form duly filled out reached the association. There is some dispute in the evidence whether the beneficiary, George W. Wheatley, procured the document to be prepared and forwarded, but this question may be passed by, and it may be assumed that he furnished the proof' of death. In an action based upon the beneficiary certificate, brought by the beneficiary against the defendant, the answer charged that the health certificate upon which the member was reinstated was false, in that at the time it was made he was under medical treatment for the disease from which he died.
The physician’s statement forming part of the proof' of death contained facts not essential to proof of death which became known to him in a professional way only and which suppoi-ted the allegations of the answer. The defendant offered it in evidence, but it was excluded, and, judgment having gone for the plaintiff,, the defendant assigns error.
The defendant argues that notwithstanding the manner in which the physician’s information was acquired' his statement should have been received in evidence as-, an admission of the plaintiff made in connection with his proof of death. Upon this question the authorities áre divided, but it may be left wholly at one side.
The blank furnished by the defendant and actually used by the attending physician contained the following matter, immediately preceding the statement itself:
“MEDICAL PROOF AND CAUSE OF DEATH.
“Note to attending physician: The purpose of the following statement is twofold. First, to establish proof of death and the cause. Second, to give such information concerning the personal and family history of deceased, together with predisposing causes leading to last illness, as well as the various matters of importance necessary in tabulating vital statistics. Attending physicians are urged to give under general remarks any information which, in their judgment, tended to shorten the natural duration of life. You are assured that this statement will be used only for the purpose of gathering correct and accurate information, and will in no case be used as a basis for litigation.
“STATEMENT OF THE ATTENDING PHYSICIAN.”
The by-laws of the association simply required satisfactory proof of death. The printed note recognizes the fact that the plaintiff was under no obligation to do more than to show that the certificate which he held had matured by the death of the member, and that the attending physician, as the witness or agent of the plaintiff, was not required to break the seal of professional confidence and disclose his professional knowledge of his patient’s physical condition months before the latter’s death. By sending out the blank, by making the express appeal which the blank contains, and by warranting the use to be made of the information imparted if response should be made to the appeal, it is clear that the matter became one entirely between the association and the physician. The defendant directly intervened and procured, the physician’s statement in its own way for its own purposes, and the facts related were not supplied by the bene ficiary in connection with any effort or purpose of his own.
It may be assumed that the physician would not have violated the confidence of the deceased except, under the assurance of the defendant that any revelations made would be used for none but scientific purposes. The plaintiff had no occasion to intercept the communication of the physician to the defendant so long as it was made under a promise that it would not be used to his prejudice. The guaranty of the printed note ran to the plaintiff as much as to the physician, since the document must pass through the plaintiff’s hands, and even the bluntest conception of good faith would prevent the defendant from asserting that the plaintiff voluntarily propounded the disclosures to it as admissions of his own.
It is not entirely clear from the record how far the district court acted upon these considerations. In ruling out the evidence the trial judge said:
“I am of the opinion that in view of all the circumstances surrounding this piece of evidence it is my duty to sustain the objection. The article of the constitution and by-laws of the defendant that provides about this matter of the proof of death simply calls for satisfactory proof of the member’s death, and that is all, in cases where it is a death claim. Now, this proof is made by Mr. Baird, a medical gentleman who was on the stand this morning and who testified far enough to show the manner in which he acquired his knowledge with reference to the alleged cause of the death. . . . As I stated, this was made by a medical' gentleman who, so far as the case now stands, acquired his knowledge professionally; and, without enlarging the matter further, I think it is my duty to sustain the objection.”
Since, however, the ruling was correct, it is immaterial if an insufficient reason were given for it.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Hannah Lane was a resident of Douglas county from 1898 to 1902. During that time she was the owner of certain mortgages which she did not include in her statements of taxable property made to the assessor, and upon which she paid no taxes. On . October 27, 1903, the county clerk, upon notice to her, undertook to charge her with a tax, on account of her ownership of such mortgages, for each of the years 1898, 1899, 1900, 1901, and 1902, the amounts being fixed by estimating the value by the usual methods and applying the rate for the appropriate year. A tax warrant was issued, and to avoid the seizure and sale of her property Mrs. Lane paid the amount charged against her, and then brought an action against the county to recover it. The case was submitted upon an agreed statement of facts. Judgment was given for the plaintiff, and the defendant prosecutes error.
Only two questions are presented: (1) Had'the clerk statutory authority to impose the tax? (2) If not, was the plaintiff precluded from recovering by the fact that the amount wrongfully taken from her was only what would have been rightfully charged against her if she had in former years made correct returns of her property to the assessor? The authority of the county clerk must be found, if at all, in section 1669 or section 7599 of the General Statutes of 1901, reading respectively as follow:
“It shall be the duty of the county clerk to assess, at a fair value, the property of any person liable to pay taxes which the county assessor has failed to assess, and to place the same on the tax-roll, and the county treasurer shall collect the taxes on the same as in other cases; and it shall further be the duty of the county treasurer to notify the county clerk of any such property which may come to his knowledge, and the county clerk, for the purpose of assessing the same, is authorized to administer oaths to the owner of such property, or to any other person, touching the value of the same; but the county clerk is not required to see such property in person.”
“The county clerk, or board of county commissioners, if he or they shall have reason to believe that any person, company or corporation has given to the assessor a false statement or has made no statement whatever of his personal property, money, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, and that the assessor has not returned the full amount required to be listed in his city or township, or has omitted any personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, or has undervalued the same, which are by law subject to taxation, shall proceed at any time before the final settlement with the county treasurer to correct the returns of the assessor, and to charge such person, company or corporation on the tax-roll with the proper amount of taxes; to enable him to do which, he is hereby authorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the value of .such articles of personal property, moneys, credits, investments in bonds, stocks, joint-stock companies, corporations or otherwise, and examine such person or persons on oath or affirmation in relation to the statement or returns. And it shall be the duty of the said clerk in all such cases to give at least five days’ notice to such person, company or corporation by the sheriff leaving a copy of the notice with the person, if he resides in the county; and if the person does not reside in the county, then by putting a copy of said notice in the post-office, properly directed to said person, and, if a company or corporation, by leaving a copy of the notice at the nearest and usual place of business of said company or corporation, before entering the said increased valuation on the tax-roll, that the said person, company or corporation may have an opportunity of showing that the statement or return to the assessor was correct. And if any person who may be summoned to appear before the clerk for examination as provided in this section shall wilfully fail to appear, or, appearing, shall refuse to answer any question or questions propounded to him concerning the subject of such examination, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof before a court of competent jurisdiction shall be fined in a sum not exceeding fifty dollars, and by imprisonment in the county jail not exceeding ninety days, or by both such fine and imprisonment. And the county clerk shall in all such cases file in his office a statement of the facts or evidence on which he made the correction, but he shall in no case reduce the amount returned by the assessor.”
The plaintiff claims that section 1669 is obsolete, and that by reason of the words here italicized no action can be taken under section 7599 after the final settlement with the treasurer, which takes place at the October meeting of the board of county commissioners. (Gen. Stat. 1901, § 1684.) The defendant contends that the time limitation is not mandatory and does not prevent subsequent additions to the personal-property tax-roll; also, that section 1669 is still in force and by its very terms authorizes such additions to be made at any time. While the two sections quoted seem to cover essentially the same subject-matter, their history does not indicate that one was intended as a substitute for the other. Section 7599 is really the older, for it is substantially the same as section 49 of chapter 118 of the Laws of 1866, while section 1669 first appeared in 1868, and both were retained in the revision of that year. (Gen. Stat. 1868, ch. 25, § 53, and ch. 107, § 65.) However, section 7599 in its present form was enacted in 1876, when the entire chapter relating to taxation was revised; and the fact that section 1669 still retains a reference to the county assessorship, an office which was abolished in 1869, gives plausibility to the view that it is no longer in effect. But whether or not section 1669 is to be regarded as repealed by implication and superseded by section 7599, we do not regard it as conferring upon the clerk any more extensive power than that granted by the latter section. If both sections are in force they must be construed together. It cannot be thought that the power given by section 7599 to the clerk and to the county board, with limitations as to the time and manner of its exercise, is intended to be by section 1669 conferred upon the clerk alone, freed from all restrictions. No requirement for a notice to the property owner is mentioned in section 1669. Rather than suppose that the legislature meant to dispense with such a notice, or to leave the necessity for it to be established by inference and its character to be determined by the officers giving it, we conclude that the provisions of section 7599 in this regard were intended to apply to all cases where additions are sought to be made to the returns of the assessor. And as we must look to that section for a part of the procedure, it is natural to consider all the restrictions there found, including that as to time, to have the same universal application.
But, as already indicated, the further contention is made on behalf of the county that even under section 7599 the lapse of time is not material — that the provision that any changes in the assessor’s returns shall be made before the final settlement with the treasurer is directory only. It is true that ordinarily an official act is not required to be performed at the very time designated by a státute. Except as substantial rights are affected its performance at a later date is equally effective. But here the real question is not as to the consequence of action being taken on a day other than that named, but as to the general policy of the legislature with respect to personal property that has escaped taxation in former years. Two theories, and but two, are open for consideration. Either the limitation referred to is absolute and personal property not returned by the assessor can be reached for taxation only by adding it to the tax-roll of the current year before a final settlement is had with the treasurer with respect thereto, or there is no ¡limitation, whatever and taxes may be imposed at any time on account of personal property for which the owner has failed to make a due accounting — in substance, if not in form, such property may be placed upon the tax-roll of any subsequent year. To determine the actual legislative purpose it is important to consider other provisions of the tax laws. In the case of real estate it is expressly provided-that lands that have escaped taxation “for any former year or - years” shall be charged with the amount thereof on the tax-roll. (Gen. Stat. 1901, §§ 7579, 7580.) The omission from the sections quoted of all reference to the taxes of former years points unmistakably to an intention to pursue a different method in the case of personal property. • This inference is strengthened by the fact that personalty is required to be assessed at double its real value if it is found to have escaped taxation for the last preceding year, while no such penalty is imposed if it has been omitted from any earlier tax-roll. From these various provisions we conclude that the framers of the tax law had under consideration the matter of the escape of property from taxation in former years, and for reasons of the sufficiency of which they were the sole judges saw fit to place a time limit upon the effort to correct such omissions in the case of personal property, but not in the case of real estate. It results from this view that the tax charged against the plaintiff in 1903 on account of property which she owned but did not pay taxes upon in 1899 and the intervening years was wholly void.
It remains to decide whether other considerations prevent the plaintiff’s recovery. , An action for the recovery of the amount of an illegal tax involuntarily paid is governed by the same rule as a suit to enjoin its collection where the remedy by injunction is open. The usual statement is that the action may be maintained if the tax is void, but not if it is merely irregular. (2 Cooley, Taxation, 1487-1489; 27 A. & E. Encycl. of L. 757-759.) In a line of Wisconsin cases, of which Day and another v. Town of Pelican, 94 Wis. 503, 69 N. W. 368, is typical, a further requirement is insisted upon. It was there said:
“It is not enough to show that the tax proceedings are irregular or void, but it must also appear that they are inequitable. Proof of illegal and void additions to the assessment, which increased the taxes of the party bringing the action, may show a prima facie case, but the defendant is entitled, at least, to rebut it, and to show, by way of vindicating the tax in equity and justifying the retention of the money sued for, that, had the party made a fair and truthful return of his property, he would have been properly taxed for the entire .amount or a 'material part of the alleged illegal tax.* The plaintiff in such action cannot be allowed to take advantage of his own neglect or breach of duty under the law, so as to recover out of the treasury money he has paid into it under protest, and which it was in fact his duty, in equity and good conscience, to have thus paid in the first instance.” (Page 509.)
This decision was rendered under a statute which in terms forbade a recovery of money paid as taxes “unless it be made to appear to the court that the plaintiff has paid more than his equitable share of such taxes,” but the same rule had already been applied in injunction cases as one resulting from the application of equitable principles. (Hixon and others v. Oneida County and another, 82 Wis. 515, 531, 52 N. W. 445, and cases there cited.)
In Kansas injunctions have frequently been allowed where additions have been made to the assessor’s returns without notice to the persons affected, apparently without inquiry into the justice of the additions. (Water Supply Co. v. Roberts, 45 Kan. 363, 25 Pac. 855, and cases cited; Coal Co. v. Emlen, 44 Kan. 117, 24 Pac. 340.) The rule of the Wisconsin court certainly has much to commend it, but even if adopted here it would fail to reach the facts of the present case. Where a property owner fails to make a full disclosure to the assessor, and the public officials without notice to him add the omitted items to the assessment roll of that year, although the resulting tax is void it may with reason be said that he ought not to be permitted On that account to enjoin its collection or to recover it after an involuntary payment, because notwithstanding the jurisdictional defect the thing actually accomplished is what the law intended —all the property placed upon the roll belongs there, but it gets there by a wrong method. A very different situation is presented where charges are made on account of the failure to make a correct return in some previous year. The law, as here interpreted, does not contemplate that such charges shall get upon the tax-roll of the current year by any method. To place them there, and by this means to enforce their payment, is in a sense inequitable; it results in an unequal imposition of taxes for that year. That the person aggrieved thereby has at some time in the past been guilty of a wrong toward the public does not change the aspect of the case in this regard, since the wrong is one which the statute in effect condones by neglecting to provide any means by which it may be rectified. The moral obligation to make restitution is not one of which the courts can take notice.
No estoppel to maintain the present action arises out of the circumstance that the plaintiff has heretofore made untrue statements by means of which §he in former years avoided bearing her fair share of the public expense. Her action is not founded on that conduct. She is not now seeking to derive an advantage from that wrong. That she is enabled to retain the advantage she has already derived from it results from the statute. Her prior delinquency does not impose upon her a disability to invoke the protection of the law against illegal exactions made of her at this time.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On April 22, 1861, Bernhard Blou settled upon a quarter-section of “unoffered” government land, and on May 13 in the same year he.filed a declaratory statement claiming a right thereto under the preemption law.. He remained continuously in possession, but on September 5, 1865, he entered the land as a homestead. He proved it up as such December 8, 1870, receiving a patent March 15, 1872.
On July 1, 1862, congress passed an act (12 U. S. Stat. at L. p. 489) incorporating the Union Pacific Railroad Company, and giving to it and to the Leavenworth, Pawnee & Western Railroad Company, a Kansas corporation, a right of way 400 feet wide over “the public lands” for the construction of a railroad within certain limits and upon certain conditions. In con formity with this act and the amendments thereto a road was built by the Kansas company across the land above described prior to May 4, 1867. On January 20, 1873, Blou made the company a deed for a right of way lying fifty feet on each side of its track. Thereafter Blou’s title to the land south of the track passed to Morris Harris and others, and the Union Pacific Railroad Company succeeded to all the rights of the Kansas corporation. In August, 1902, the company placed a fence on the land 200 feet south of the track and parallel to it, and began the construction of side-tracks and yards on the strip so enclosed. Harris and his associates brought ejectment for all of the strip except the fifty feet next to the track and recovered judgment, from which the defendant prosecutes error.
The railroad company has no title uhless it obtained one by the following grant made to the Union Pacific company by section 2 of the act referred to, and extended to the Leavenworth company by section 9:
“That the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; and the right, power, and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber, and other materials for the construction thereof; said right of way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings,, workshops, and depots, machine-shops, switches, side-tracks, turntables, and water stations. The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants hereinafter made.” (12 U. S. Stat. at L. p. 491.)
A claimant under the preemption law acquired no vested right in the land he occupied until he had fully complied with the law, paid the purchase-money, and become entitled to a patent. (26 A. & E. Encycl. of L. 232.) Therefore congress had the unquestioned power in 1862 to grant a right of way across the quarter-section upon which Blou had settled, notwithstanding his occupancy was lawful and in connection with his filing insured him a preference when the land should be offered for sale. The question is whether the statute quoted is to be interpreted as evidencing an intention to do so. And this depends upon whether the phrase “public lands” was therein employed in such a sense as to make it inclusive of tracts in the situation of that occupied by Blou. In construing railroad land grants the words “public lands” are treated, not as designating all lands which are public in the sense that the government owns them and technically speaking may dispose of them as it sees fit, but as excluding at least every tract to which an individual has acquired under the settlement laws a valid claim that may ultimately ripen into a title, although no vested right has accrued to him at the time. This rule of construction has been definitely adopted by the federal supreme court. Thus, in Bardon v. Northern Pacific Railroad, 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806, it was said:
“It is thus seen that when the grant to the Northern Pacific Railroad Company was made, on the 2d of July, 1864, the premises in controversy had been taken up on the preemption claim of Robinson, and that the preemption entry made was uncanceled; that by such preemption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All l&nd to which any claims or rights of others have attached does not fall within the designation of public land.” (Page 538.)
And in Northern Pacific Railway v. De Lacey, 174 U. S. 622, 19 Sup. Ct. 791, 43 L. Ed. 1111: “If there had been a preemption claim at the time of the passage of the act of 1864, the land would not have passed under that grant.” (Page 626.) Of this expression it was said in United States v. Oregon & C. R. Co., 143 Fed. 765, 75 C. C. A. 66:
“We think the clause last quoted is in precise accord with the numerous decisions of the same court to the effect that no land is ‘public land,’ within the meaning of such grants, to which there is at the time of the making thereof a live claim on the part of an individual under the homestead or preemption law, which has been recognized by the officers of the government, and has not ceased to be an existing claim.” (Page 771.)
See, also, 6 Words & Phrases Jud. Def. 5793; B. K. & S. W. Rld. Co. v. Johnson, 38 Kan. 142, 150, 16 Pac. 125; Hastings etc. Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363; United States v. Union Pac. Ry. Co., 61 Fed. 143; United States v. Turner, 54 Fed. 228; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. Ed. 906; and Northern Lumber Co. v. O’Brien, 204 U. S. 190, 27 Sup. Ct. 249, 51 L. Ed. 438, affirming the same case in 139 Fed. 614, 71 C. C. A. 598, where it was said:
“The words ‘public land’ have long had a settled meaning in the legislation of congress, and, when a different intention is not clearly expressed, are used to designate such land as is subject to sale or other disposal under general laws, but not such as is reserved by competent authority for any purpose or in any manner, although no exception of it is made.” (Syllabus.)
But it is insisted that a different rule should obtain here, because the statute quoted grants a mere right of way. Such a grant, however, differs only in degree — not in kind — from a grant of land. Even although it may not in strictness carry the fee to the strip designated, its practical operation is the same as though it did; the right it confers is much greater than an ordinary easement. (26 A. & E. Encycl. of L. 336, ¶ 9.) It is true that land is ordinarily made more valuable by proximity- to a railroad, and in a particular case the owner or prospective owner of a tract may be benefited rather than injured by the building of a road directly across it. But it cannot be said that a right of occupancy is not to some extent invaded by such an act if done without compensation, or that the practical injurious effect of such invasion is necessarily slight and unsubstantial. It is noticeable that congress has often explicitly recognized the moral right of the settler to b¿ protected in this respect, and so far as our observation goes has never explicitly ignored it.
Nevertheless there is so great a difference between the entire loss of all claim to a tract and the yielding up to a railroad of a right of way across it that it might not be unreasonable to suppose that congress, having the power to impose either hardship upon the settler, was willing to compel him to bear the less but not the greater. If the Bardon case had been decided merely upon a presumption that congress did not intend that settlers should lose their lands the argument might well be made that the rule it announced does not apply where only a right of way is involved. But that case was not controlled solely by that consideration. If it had been the grant would have been held to relate to, and to be inclusive of, the lands already settled upon, but to be made in subjection to the prior rights of the settlers. And in any given instance where a filing had been in force' at the time the act was passed, but had been canceled before the road was definitely located, the right of the settler being thus disposed of, a complete title would have been held to have vested in the company when the conditions of the grant were met. But in the Bardon case it was decided that the grant did not pass title to a tract which was burdened with a preemption filing at the date of the enactment, notwithstanding its subsequent cancelation. This result was reached by so defining “public lands” as to exclude all lands to, which individual interests had attached. In the opinion it was further said: -
“As the land preempted then stood on the records of the land department, it was severed from the mass of the public lands, and the subsequent cancelation of the preemption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancelation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court. . . . Three justices, of whom the writer of this opinion was one, dissented from the majority of the court in the Leavenworth case; but the decision has been uniformly adhered to since its announcement, and this writer, after a much larger experience in the consideration of public-land grants since that time, now readily concedes that the rule of construction adopted, that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both to the government and to private parties, than the rule which would pass the property subject to the liens and claims of others.” (145 U. S. pp. 539, 543.)
While the phrase “public lands” is capable of a variety of meanings, and may be variously employed in ■different statutes, the presumption is reasonable that where used in a similar connection in contiguous sections of the same act it is intended to have the same force. Section 3 of the act of 1862 reads:
“And be it further enacted, that there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each 'side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed; provided, that all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to .said company. And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and preemption, like other-lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.” (12 U. S. Stat. at L. p. 492.)
This language is not essentially different, so far as concerns the question under consideration, from that interpreted in the Bardon case, which is as follows:
“That there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof, the United States have full title; not reserved, sold, granted or otherwise appropriated, and free from preemption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office.” (13 U. S. Stat. at L. p. 367.)
Manifestly, therefore, in the act of 1862 the section following that by which the right of way is granted uses the term “public lands” as excluding tracts occupied by settlers. It refers to lands to which preemption or homestead claims have attached, not as forming a separate class of public lands, but as lands which have been withdrawn from that category — have ceased to be public lands — by the fact of such claims having attached. Two conditions were necessary in order that land should pass by the grant there contained: it must have been free from preemption or other filing when the act was passed or the act would not have applied to it, because it would not have been public land at that' time; and it must have remained in that condition until the line of the railroad was definitely fixed, because a filing prior to that time would have taken it out of the operation of the act by bringing it within the exception there stated. This is necessarily the interpretation that results from the decisions cited. By attributing the same meaning to the expression “public lands” as used in section 2 a harmonious and consistent construction is reached. The right of way was granted upon but one condition — that the land should be public at the time the act was passed. The grant took effect at once upon all lands that were then public — that is, unoccupied. Any that were then occupied were not public and were not affected. Any that were then vacant but were filed upon later were taken in subjection to the right of way. Thus, in Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578, it was said:
“The act . . . makes two distinct grants: one of lands . . . the other of a right of way. . . . The lands consisted of alternate sections, designated by odd numbers, on each side of the line of the proposed road. The grant of them was subject to the condition that if, at the time the line of the road was definitely fixed, the United States had sold any section or a part thereof, or the right of preemption or homestead settlement had attached to it, or the same had been otherwise reserved by the United States for any purpose, the secretary of the interior should select an equal quantity of other lands nearest the' sections designated, in lieu of those appropriated, . . . but the grant of the right of way . . . contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designated.” (Pages 428, 429.)
It seems clear that this is the construction placed upon the act of 1862 by the ensuing congress. The original.act made no provision for condemnation proceedings. But in 1864 it was amended (13 U. S. Stat. at L. pp. 356, 357) by adding a provision for the exer cise of the right of eminent domain and for the compensation not only of “owners” but also of “claimants” of land taken. The word “claimants” had obvious reference to occupants under the homestead or preemption lawis (W. P. R. R. Co. v. Tevis, 41 Cal. 489, 494; Northern Pac. Ry. Co. v. M’Cormick, 94 Fed. 932, 36 C. C. A. 560; Nelson v. Northern Pacific Railway, 188 U. S. 108, 23 Sup. Ct. 307, 47 L. Ed. 406), and must have been intended to apply to occupants of lands filed upon before the first enactment, for, as already pointed out, those filed upon afterward were taken subject to the right of way thereby granted.
It follows from this view that the judgment of the trial court must be affirmed, on the theory that section 2 of the act of 1862 granted no right of way over the Blou tract, because it was not at the time “public land” within the meaning of the term as there used. We think this conclusion is not inconsistent with any controlling decision. Expressions are used in a number of cases to the effect that a difference is to be recognized between the grant of land and the grant of a right of way, but for the most part they relate to differences made by the statutes in express terms or by necessary implication, and have no direct bearing upon the question here involved. In two Instances this very act explicitly makes such a distinction. It makes two exceptions with respect to the grant of aid lands which do not apply to the grant of the right of way: one in favor of claims to be acquired before the definite location of the line of railroad, and the.other in favor of reservations already made to the United States for any purpose, such as for the use of an Indian tribe under a treaty. (Leavenworth, etc., R. R. Co. v. U. S., 92 U. S. 733, 746, 23 L. Ed. 634.) That the framers of the statute deemed it necessary to mention these differences in set terms militates against the suggestion that by mere implication growing out of the nature of the privilege given the words “public lands,” when used in connection with the grant of a strip of ground for the use of a railroad, are to be given a different meaning from that attached to them when applied to the grant of land to aid in its construction.
In the opinion in Union Pac. Ry. Co. v. Douglas Co., 31 Fed. 540, it was said that congress intended by the act of 1862 that a right of way should be given through all lands over which it had control, but the statement was broader than the occasion required. There the question presented was the right of the railroad company to occupy a right of way across school sections, and was determined upon a variety of considerations, not all of which are here applicable.
The case of Northern Pacific Railroad Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157, the authority of which the plaintiff in error invokes, turned upon exceptional circumstances. A 400-foot right of way over public lands was granted to the railroad company in 1864. It adopted a definite route, which was accepted by the government in 1873. But in 1872 it actually constructed its road along a somewhat different route, which also was afterward approved, or at least acquiesced in, by the federal authorities. The road as so constructed crossed a town site which had already been occupied but no plat of which had then been filed in the register’s office. Such occupancy did not date back to 1864. In 1879 a patent of the town site was made, to the town company, and thereafter Smith received a conveyance from the town company for lots lying within 200 feet of the track. He brought ejectment against the railroad company, whose title was ultimately sustained. It is evident that unless the railroad company lost some rights under the' statute by its change of route its title antedated Smith’s. The land was unquestionably public land when the act was passed. If, however, it did lose priority thereby, the entire situation was changed, and the determination of the rights of the parties under such circumstances would not necessarily affect the present case. Indeed, the decision involved so many different con siderations that it is difficult to evolve from it a principle of general application.
In Jamestown & Northern Rd. Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698, a different statute was considered — the general act (18 U. S. Stat. at L. p. 482) granting a right of way over public lands to any corporation upon certain conditions. In the federal court the only question discussed related to the time the grant took effect — whether upon the construction of the road or the filing of a map. In the state court, however (7 N. Dak. 619, 76 N. W. 227), it was held that although á grant was prevented from taking effect at once as to a particular tract by the existence of a preemption filing thereon it would become operative upon the cancelation of that filing. This holding is supported by reasoning not applicable to the statute here involved. The act of 1875 is prospective. It makes no present grant. It rather affords a means by which a right of way may be acquired than grants one. It expressly recognizes and protects the interest of the settler who has acquired no vested right. Moreover, by the use of the phrase “possessory claims on the public lands of the United States” in section 3, there is a recognition that the term “public lands” is there employed in its broader sense.
The supreme court of Utah has recently decidéd against the contention of -the railroad company a question entirely similar to that here presented. (Oregon Short Line R. R. Co. v. Fisher, et al., 26 Utah, 179, 72 Pac. 931.)
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The opinion of the court was delivered by
Porter, J.:
This is a proceeding in error from a judgment of the district court denying the probate of a will. On the 17th day of March, 1905, Thomas Keir, a resident of Jackson county, died, leaving an estate consisting of a farm and personal property. He left surviving him his wife, Bessie Keir, and a son, Frank O. Keir. Within a few days after his death a paper purporting to be his last will and testament was presented to the probate court and offered for probate. Written objections thereto were filed by Frank O. Keir. The subscribing witnesses came into court and were examined, and their testimony was reduced to writing in accordance with the provisions of the statute, from which it appears that the testator possessed testamentary capacity, was free from restraint, and that the will was executed, signed and witnessed in due form. The circumstances attending its execution were testified to by several persons present at the time. The opponent of the will also offered testimony in support of his objections.
The probate court held that the will was not entitled to probate and the proponents appealed to the district court, where there was a second, lengthy and formal trial in the nature of a contest of the will, the cause being tried to the court. At the conclusion of the testimony the court made findings of fact — in substance, that the deceased at the time the will was executed was not of sound mind, but was, and for a long time had been, under an insane delusion; that at the time the will was executed he did not know and never knew the contents of the paper purporting to be his will; and that at the time of its execution he was unduly influenced by his brother. Probate of the will was for these reasons denied.
There are numerous contentions in respect of error in the introduction of evidence, most of which become of slight importance from the view we have taken, which requires that the cause be reversed; but as this necessitates another trial we shall refer to some of the contentions urged.
Complaint is made that the court held the burden of proof to be upon the proponents. This ruling was right. The burden of proof rests, of course, upon the proponents to establish the validity of the will. (Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537; Wright v. Young, 75 Kan. 287, 89 Pac. 694.) The error did not consist in requiring the proponents to take the burden of proof but in overlooking the established rule that, only a prima facie showing is required to authorize a will to be admitted to probate, and was based upon a misconception of the nature of the proceedings for the probate of a will and the issues involved therein, which manifestly arose by reason of the enactment of chapter 526 of the Laws of 1905, which had not then been construed by this court. The amendment adopted by that statute provides that when a will is offered for probate “the court shall cause the witnesses to such will and such other witnesses as any person interested for or against having the same admitted to probate may desire to come before such court.” Since this cause was tried in the lower court we decided, in Wright v. Young, 75 Kan. 287, 89 Pac. 694, that the amendment above referred to did not enlarge the issues involved in such a proceeding or authorize a contest of the will in the probate court, nor abrogate the rule that only a prima facie showing is required to admit a will to probate. It was there said:
“The examination is still preliminary in its character.
“Each case depends to some extent upon its own facts and circumstances; but it rests largely in the discretion of the probate court, or the district court on appeal, to determine the extent of the inquiry which is proper in respect to such matters as undue influence when it is claimed by those who oppose the probate that the will was obtained by undue influence amounting to the restraint contemplated by section 15. (Gen. Stat. 1901, § 7952.)
“When the court can see from the character of the evidence offered in opposition that it involves matters which it is probable that either party will desire submitted to a jury, and belongs peculiarly to a regular contest of the will, and that, notwithstanding the evidence offered, it should not be allowed to overcome the prima facie showing made by the proponent, it lies in the discretion of the court to admit the will to probate and relegate the controversy to' a more formal field. Only a prima facie showing is required to admit" a will to probate, and this rule has not been abrogated by the act of 1905. A different rule of evidence obtains in the rejection of a will, and a court should not refuse to admit a will to probate unless, for some of the reasons mentioned in section 15, the court finds conclusively from the evidence that it should not be probated.” (Page 294.)
In the opinion the following language from Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 287, was approved:
“In both courts the procedure is of the most informal and perfunctory character, and when a prima facie case is made upon the several points as to validity of execution, testamentary capacity, and freedom from illegal restraint, the order of admission should be made, leaving for the moré formal and regular proceedings provided by section 20 of the wills act (Gen. Stat. 1901, § 7957) the contest of the nicer and more difficult questions, a contest in which issues are duly formed, evidence properly produced, [and] the machinery found for obtaining a jury should one be ordered.” (Page 619.)
It is a rule of general application that the burden of proof rests on those who offer a. will for probate to establish its validity; that is, that certain indispensable requirements have been complied, with, such as, in the case of a written will, that it was signed by the testator as his will, in the presence of the witnesses, and subscribed by them in his presence; that at the time of its execution he was qualified to make a’will— that is, was of lawful age and possessed of a sound mind, and, under some statutes, as in ours, “not under any restraint” (Gen. Stat. 1901, § 7952) at the time the will was executed. But it is also a rule of quite general application that a prima facie showing of these things is all that is required.
The law favors the natural inclination of men to dispose of property by will, and because certain presumptions are indulged in the prima facie showing is deemed sufficient to .admit a will to probate. It is necessary to' the validity of a will that the testator know the contents thereof at the time he signs it. But there is a presumption that he does know from the fact that he has signed it as his will. The statute requires a prima facie showing that he was of sound mind and free from restraint at the time the will was executed, but there is no presumption that because a man executes a will he is insane. The presumption is to the contrary, and some force is given to it, so that the testimony of the subscribing witnesses that he appeared to be sane and free from restraint is usually deemed a sufficient prima facie showing. Where there is no evidence of restraint at the time the will was executed and the testator appears to have been generally regarded as of sound mind, or where the claim that he lacked testamentary capacity is based upon remote instances of conduct from which it is sought to overcome the presumption of his sanity and the testimony of the subscribing witnesses, and involves an inquiry into his past life, it is the duty of the court to admit the will to probate .and leave these questions to the more formal procedure of a contest. (Hospital Co. v. Hale, 69 Kan. 616, 77 Pac. 537.)
The absurdity of the other view of the law of probate, which starts with the presumption that the testator was insane when he signed the will, and requires the proponents to be prepared at the preliminary offer of probate to explain every act of his life which it is claimed tends to show unsoundness of mind, is aptly illustrated by the record in this case and the result reached. The testator was a man of intelligence, a prosperous farmer, and had lived for fifty years on the same farm. He had accumulated property of the value of $16,000, and until the day of his death managed his business affairs himself. There was an absence of any evidence tending to show unlawful restraint at the time the will was executed. In addition to the subscribing witnesses, who.testified to his sanity, eight or nine of his neighbors, one of whom had known him forty-eight years and some of whom had an acquaintance with him which extended over forty years, testified that they supposed him to be as sane as other people. Some of them saw him during his last sickness, which was of short duration. Under the theory that the amendment of 1905 authorized what is practically another contest of a will in the proceedings for probate, the entire life of the testator was inquired into, including his religious and political opinions, and dozens of witnesses were examined for the purpose of proving that at some period or other in his life he had entertained delusions from which it was sought to raise an inference of his insanity. Much of the testimony offered related to matters which, however relevant in a contest proceeding, had no place in the preliminary inquiry which was before the court.
It is insisted, however, that the finding of the court that Thomas Keir did not know and never knew the contents of the paper he signed is supported by evidence and settles the controversy. The difficulty is that the case was tried as a contest instead of an offer of probate, and upon the mistaken theory that something more than a prima facie showing was necessary to entitle the will to be admitted. It is true, the evidence of the proponents was that the will was not read by the testator. The will was typewritten by T. C. McConnell, county clerk, who resided at Holton, and who testified that he made it from a memorandum taken to him by William Keiry (the testator’s brother, who also requested him in behalf of the testator to consent to act as executor) ; that he inserted his own name in the blank space left for the name of the executor, and at once, on the same day, took the typewritten copy to the residence of Thomas Keir. After the witnesses who had been sent for arrived, and before signing, Thomas Keir asked if the will had been typewritten and was told that it had been. - He then signed it without reading it. It appears that he signed the paper after assuring himself by inquiry that its contents were what he supposed them to be, and this was prima facie evidence that he did know the contents. There is no presumption that some one committed a fraud upon him. Moreover, the original paper, from which Mr. McConnell made the typewritten copy, was produced and appears to be substantially the same as the will. In Hess’s Appeal, 43 Pa. St. 73, 78, 82 Am. Dec. 551, the point was raised that because the testator did not read the will he was ignorant of its contents. The scrivener testified that the paper signed was written in accordance with the testator’s instructions. The will was held valid, and the court said: “When the testator trusts his scrivener, why should we distrust him, when there is no word or act that impeaches his honesty?” (Page 78. To the same effect see Beyer v. Hermann, 173 Mo. 295, 73 S. W. 164; King and others v. Kinsey, Ex’r, and others, 74 N. C. 261; Yoe v. McCord, 74 Ill. 33.)
It may be said that there was no witness who testified to the fact that the testator dictated the memo randum to his brother, but the circumstances surrounding the preparation of the will and its execution after the inquiry made by the testator constituted a sufficient prima facie showing that he knew its contents, and bring the case within the rule laid down in Sheer v. Sheer, 159 Ill. 591, 43 N. E. 334. There it was said:
“Where a will is shown to have been prepared at the request of a testator, even under general directions, and is afterward executed in the manner provided by law, it should not be set aside on the ground that he did not understand what it contained, except upon clear and satisfactory proof of that fact.” (Page 597.)
It is argued that the usual presumption of the testator’s knowledge of the contents is met by the fact that William Keiry, who assisted in its preparation, is a large beneficiary under the will. This, however, is not sufficient to overcome the presumption of knowledge, where there is no evidence of extreme weakness arising from the near approach of death or of lack of capacity on the part of the testator to know and understand what he is doing. The rule has been thus stated:
“A suspicion is justly entertained of .a will conferring large benefits on the person by whom or by whose agent it was prepared, . . . but it has been said that this 'suspicion goes no further than to necessitate somewhat stricter proof as to the testator’s capacity, though not as to his knowledge of the contents of the will. Such knowledge is of course requisite; but it will be presumed,if there is no evidence to the contrary, and if capacity is duly proved.” (1 Jar. Wills, 6th ed., *37.)
One other assignment of error deserves mention: The proponents offered in evidence the original will, to which were attached the written statements of the subscribing witnesses made under oath at the preliminary offer of probate. The court sustained an objection to these statements, and they were detached and the original will admitted without them. The contention of the opponent of the will is that these statements, being ex parte affidavits, were not admissible. While the ruling of the court may not have affected the substantial rights of the proponents, inasmuch as the subscribing witnesses were present in court and gave their testimony, we think the sworn statements were competent evidence in a preliminary proceeding of this kind. The statute provides that the testimony of the witnesses to a will shall be reduced to writing, subscribed by them, and filed. In Illinois,' as in some other states, it is provided by statute that these written statements taken on the preliminary offer of probate are admissible as evidence in a subsequent contest of the will in a chancery proceeding. Mr. Wigmore, in his work on Evidence, is inclined to doubt the competency of such statements as evidence in a subsequent'appeal from the probate court, at least without accounting for the absence of the subscribing witnesses, and regards the statutes referred to as “anomalous and accidental.” (2 Wig. Ev. § 1417.) Whether admissible as evidence in an action for contesting the will it is unnecessary to decide, but in a trial de novo, as this was, they were as competent as they would have been in the first instance in the probate court.
It follows from what has been said that the judgment must be reversed and the cause remanded for further proceedings in accordance with the views herein expressed: | [
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The opinion of the court was delivered by
Smith, J.:
This action was commenced in the city court of Topeka by the plaintiff filing an ordinary bill of particulars, with a verified copy of the account sued on attached. The defendants filed no bill of particulars or answer therein. After the appeal to the district court the defendants filed an answer, in which they did not dispute the account but did assert that the plaintiff was not the owner thereof, and set up the written assignment from plaintiff to Abram Troup. In other words, they answered that the plaintiff had for a valuable consideration sold, and, in writing, had assigned, the account to Troup and they had paid the same to Troup.
In reply the plaintiff admitted the execution of the assignment and the receipt of $166.76 therefor, but alleged that it had, at the time of assignment, two accounts against the defendants, one for $166.76 and the one sued on, for $268.25, the latter being an account which it did not know of at the time of the assignment and did not intend to include therein; that in fact Troup by the assignment acquired no interest in either of the accounts^ but in the transaction was acting for the defendants, who really paid the $166.76.
It will thus be observed that no fraud, concealment or deception in the making or procurement of the contract is claimed. On the other hand, the defense to the assignment is that the plaintiff was mistaken as to what claims it had which would be embraced in the language of the assignment, viz.: “all our right, title and interest in and to any and all claims we may have against the Spear Company of North. Topeka, Kan.” It is not suggested in defendants’ brief, but it occurs to us that this is an equitable defense, if any defense; that the facts stated in the reply entitled the plaintiff to a reformation of the contract, if such facts entitled it to any relief. But the court of Topeka has the same jurisdiction as a justice court, which has no equitable power, and the district court on appeal has only such jurisdiction as has the court from which the appeal is taken. If this be true, the court rendered the only judgment within its power — a judgment against the plaintiff for costs.
Be this as it may, we find no reversible error in the proceedings. The first and second assignments of error relate to the refusal to give instructions requested. Each of the requests is based upon an assumption of fact which is negatived by a special finding of the jury, and such finding is supported by some evidence. Hence the requested instructions, if correct and if allowed, would have become immaterial.
The third and fourth requests for instructions did not contain correct statements of the law. One party to a trade or deal is under no legal obligation to communicate all the facts within his knowledge which may influence the deal. He may not deceive, mislead or prevent investigation; he may, however, be silent and be safe.
The sixth and seventh assignments of error relate to the overruling of objections to evidence of defendants’ insolvency. The plaintiff had set up that Troup in procuring the assignment acted as the agent of the defendants — that the assignment was really a settlement by the defendants of their indebtedness by part payment. In response to this the defendants, by the evidence objected to, sought to show that they were really insolvent and that a settlement by part payment under such conditions would not be without a consideration. If there was anything within the jurisdiction of the court and under the pleadings as they were to try, and we are inclined to think there was not, this evidence was proper.
Other assignments of error are made which we do not deem it necessary to discuss. The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Austin W. Hall and Corolin F. Hall were husband and wife and resided at Trading Post, in Linn county. She died September 24, 1884, leaving personal property of the value of $4016.50. This property passed into the possession of her husband, who retained it until his death. After his death the defendant, Edith Hall, his surviving widow, was appointed administratrix of his estate. • The plaintiffs in error are the children of Austin W. Hall and Corolin F. Hall, and on July 2, 1908, they commenced this action in the district court of Linn county, to recover the value of the personal property left by their mother, claiming that before her death she gave the personal property to them, leaving it in the hands of a trustee for them; that their father obtained possession of it from such trustee and converted it to his own use. Judgment was rendered for the defendant and plaintiffs bring the case here for review.
The only questions presented here are whether or not the transaction relied upon by the plaintiffs as a gift from their mother constitutes a gift inter vivos or a gift causa mortis; and, if the former, for how much is the defendant liable. The facts which are claimed to constitute the gift, briefly stated, are these:
Prior to the transaction in controversy Corolin F. Hall received the personal property in question from her father, and for that reason she prized it very highly and guarded it with great anxiety. She refused to let her husband take charge of it or have it in his possession. She had a sister who resided at Montpelier, Vt., to whom she was deeply attached and in whom she had great confidence. This sister’s name was Marguerite Carlton, and she was familiarly known as “Marg.” In September, 1884, Corolin was sick, which sickness she believed would prove fatal. She sent for her sister “Marg” to come and visit her. On the 19th day of September her sister had started and was on her way to Trading Post. Mrs. Hall grew worse and feared that she would not live until “Marg” got there.
The personal property in question consisted of notes and mortgages, which were kept by Mrs. Hall in a tin box which fastened with a padlock. During her sickness she kept this box near her all the time, under her personal control. When she decided that death was near at hand her mind turned to her box and its contents. At this time Mrs. Noyes, a cousin of Mrs. Hall, was at the house assisting in caring for her; and Mrs. Thompson, who had for several years before her marriage been employed by Mrs. Hall and who was then her trusted friend, was also present, giving her assistance. Other.friends and neighbors were constantly present, also, to watch and wait upon her. Upon this 19th of September Austin W. Hall was also present.
Mrs. Hall feared that she might not live until “Marg” would come, or, if she did, might be unable to make known her wishes as to this property. She stated to those present, including her husband, that she wanted the property to go to her boys, the plaintiffs, who, at that time, were of the ages of eleven, six and four years, respectively. To cover contingencies, she prepared a written memorandum of her wishes, which reads:
“I want the contents of this trunk to be evenly divided evenly between my three boys and want their father and my sister, Mrs. Carlton, to be the ones to decide about the best way of dividing it for them and it is all mine from my father, but the mortgage is not on record at town clerk office for the Gibson farm but Austin says that shall be done immediately and other securities turned in satisfy the outstanding indebtedness on the place and I want Marg to use the interest as far as it will go for the children every year after the debts are all paid for the children until of age.
“Praying that what I have said is right an affectionate mother Corolin.”
When this paper was written she handed it to her husband, who read it and said, “There, that will do, I presume; I will see after it,” and returned it to Mrs. Hall. She placed this memorandum with the notes and mortgages in the box, and locked it. She then handed the locked box to Mrs. Noyes, and requested her to keep it until “Marg” came and then give it to her. The key to the box she delivered to Mrs. Thompson, likewise requesting her to keep it until “Marg” came and then give it to her.
Mrs. Noyes never allowed the box to be out of her possession after she received it. She carried it with her from room to room, and kept it at all times within her reach. Mrs. Thompson kept the key in the same way until “Marg” came, when both the box and the key were delivered to her in the presence and sight of Mrs. Hall, who was not yet in a seriously weakened condition either physically or mentally, although she died within five days thereafter.'
“Marg” kept possession of the box from the time she received it until after the death of Mrs. Hall. Nothing was said or done by Mrs. Hall after the box was delivered to Mrs. Noyes to indicate any desire to change the disposition of this property from that which she had made. After the burial of Mrs. Hall, and when Mrs. Carlton was about to return to her home at Montpelier, Vt., she had a talk with Austin W. Hall, who stated that it was his desire to carry out in every particular the wishes of his deceased wife with respect to the personal property which Mrs. Carlton then held, and that he would, to the best of his ability, work to that end. Mrs. Carlton thought Mr. Hall was in earnest and would conscientiously do as he said; she therefore concluded that the wishes of her deceased sister could be better carried out by him than by herself, and arranged to deliver the property to him as administrator of the estate of Corolin F. Hall. They together visited the probate judge of Linn county and presented the whole matter to him. Hall told the probate judge that he desired to carry out the wishes' of his wife in every particular; Mrs. Carlton stated that she believed that Mr. Hall would do so or she would not consent to let him have the property. There was no occasion for the judge to object, and Hall was then and there appointed administrator of the estate of Corolin F. Hall, deceased, and received from Mrs. Carlton the notes and mortgages from the tin box, and gave a receipt therefor, which receipt, with the memorandum made by Corolin F. Hall at the time she last locked the box, was placed therein. Mrs. Carlton retained possession of these and took them with her when she returned home.
Hall returned an inventory of the property of Corolin F. Hall received by him from Mrs. Carlton at the value of $4016.50. Afterward, and during the administration of the estate, which closed July 6, 1887, he received, as interest on the notes, the additional sum of $474.72, making the aggregate sum of $4491.22. Out of this he paid in taxes and in releasing a mortgage on real estate belonging to the plaintiffs the sum of $1418, leaving a balance due them on that date of $3078.22. On the same day, July 6, 1887, he was appointed guardian for the plaintiffs, who were minors, and, as such, received the funds remaining in his hands as administrator.
Upon the order of distribution made at the close of administration Austin W. Hall was recognized as an heir of Corolin F. Hall, and was awarded one-half of the estate in his hands. As the boys reached the age of majority each received the amount due him as shown by the guardian’s account. They owned a farm, from which rent was collected, and taxes were paid thereon and interest was collected on notes. All of these items were mingled in the account so that it is difficult to ascertain from the facts before us what the true state of the account is. Mr. Hall erected a monument to the memory of his wife, the expense of which was paid out of the personal property in controversy, as were the educational expenses of some of the boys.
The youngest son, John A. Hall, lived with his aunt, Mrs. Carlton, at Montpelier, and afterward at La Cygne, Kan. On August 9, 1901, Mrs. Carlton died. A few days prior thereto she told John the story of his mother’s death, and of the tin box, and then delivered to him the box, with his mother’s memorandum therein. The following December he informed his brothers. He at that time was attending school in Michigan, and his brothers were in Kansas. This was the first information any of the boys ever had concerning his mother’s dying solicitude for his welfare.
Corolin F. Hall left, in addition to the personal property in question, 250 acres of land, which Austin W. Hall conveyed by quitclaim deed to the plaintiffs.
From these facts we conclude ■ that Corolin F. Hall conveyed all of her title to the personal property in controversy to the plaintiffs; that the transaction constituted a gift inter vivos, being an absolute, unconditional delivery of personal property by the donor to a third person, as trustee for the donees, with the intent that such property should immediately and permanently vest in such donees. The only resemblance it bears to a gift causa mortis is that the donor realized that she was about to die, and probably if she had not believed that death was near at hand the gift would not have been made at that time. A person has the right to give away his property at any time while life lasts. Contemplation of the near approach of death is, no doubt-, very often the cause which induces gifts to be made inter vivos.
Austin W. Hall knew when he received this property that it belonged exclusively to the plaintiffs, and he held it as trustee for them. He or his estate is responsible therefor. The probate court had no jurisdiction to administer the property of these minors as the estate of Corolin F. Hall, and the action taken in such proceeding is not binding on the plaintiffs. •
The appointment of Austin W. Hall as guardian, however, was proper, and whatever of this property went into the guardian’s hands must be regarded as. accounted for;- but the guardian had no right to expend this trust fund for his own purposes, nor in payment of that for. which the plaintiffs were not liable. They may have been pleased as children to have an expensive monument erected at the grave of their mother, but they were not liable therefor. Money-paid to relieve their other property of liens and encumbrances would be equivalent to the payment of' so much money.
We have not been called upon to interpret the memorandum of Mrs. Hall, which accompanied the gift, 'as to how far its provisions might authorize expenses for educational purposes, and have not done so. We only decide that Mrs. Hall conveyed to these plaintiffs the property in controversy by a gift inter vivos, and it vested permanently in them before her death.
The judgment of the district court must therefore' be reversed. We are not sufficiently advised to direct the proper judgment in favor of the plaintiffs. The-judgment is reversed, with direction to enter judgment in favor of the plaintiffs for such amount as. may, upon inquiry, in accordance with the views herein expressed, be just and proper. | [
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The opinion of the court was delivered by
Graves, J.:
The district court has drawn a distinction between an act done with intent to defraud creditors and the same act when done merely with intent to hinder and delay creditors in the collection of their claims which we do not think applicable in this case.
The- affidavit for attachment charges -that the acts complained of on the part of the defendants were done “for the 'purpose and with the fraudulent intent to defraud their creditors.” No charge is made, unless it is contained in these words, that they were done with the intent to “hinder” and “delay” (Gen. Stat. 1901, § 4624) their creditors in the collection of their claims. The court finds that what the defendants did was done “for the purpose of, with the intent to, and to the effect of, hindering and delaying their creditors in the collection of their claims,” but as no specific intent to defraud their creditors was shown the court found the ground of the affidavit not sustained.
We suppose this finding and order were made upon the theory that the ground stated in the affidavit, and the one found to have been established by the evidence, were separate and distinct from each other. In the view we have taken this was erroneous. The language of the affidavit — “for the purpose and with the fraudulent intent to defraud” — is sufficiently broad and comprehensive to include the term “hinder or delay,” as the greater includes the less. In volume 2 of Words & Phrases Judicially Defined, at page 1949, it is said, on the authority of Weber v. Mick et al., 131 Ill. 520, 28 N. E. 646, that the word “ ‘defraud,’ as used in the phrase, ‘disturb, hinder, delay, or defraud creditors,’ is the most generic term of the four, and really includes all the others, since to ‘disturb, hinder, or delay’ a creditor in the collection of his debts are only different modes of ‘defrauding’ him of his rights, and these words are used merely as more specific statements of various forms of fraud.” (See, also, 14 A. & E. Encycl. of L. 244; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402; Armstrong v. Ames & Frost Co., 17 Tex. Civ. App. 46, 51, 43 S. W. 302; Petrovitzky v. Brigham, 14 Utah, 472, 47 Pac. 666; McBryan v. Trowbridge, 125 Mich. 542, 84 N. W. 1084.) The affidavit, therefore, covers the finding of the court, and the motion should have been denied.
If it was the purpose of the court to decide that an intent on the part of the defendants to defraud the plaintiff must be shown, we also think such a conclusion erroneous. An intent to defraud, hinder or delay the plaintiff or any creditor is sufficient to give any other creditor the right to an attachment. (Waples, Attach. & Gar., 2d ed., § 71; 3 A. & E. Encycl. of L. 201-244; Noyes, Norman & Co. v. Cunningham, 51 Mo. App. 194; McBryan v. Trowbridge, 125 Mich. 542, 84 N. W. 1084; Sherrill v. Bench & Bro., 37 Ark. 560.) In the last-named case an instruction was sustained which reads:
“It need not appear that the defendant had disposed' of his property with the fraudulent intent to cheat, hinder or delay the plaintiffs; but if it appear from the evidence that the defendant had sold or otherwise disposed of his property, with the fraudulent intent to cheat, hinder or delay any one of his creditors, this will be sufficient.” (Page 561.)
The judgment of the district court is reversed, with direction to deny the motion to dissolve the attachment and proceed with the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by G. H. Jackson and Belle Jackson to recover money alleged to have been fraudulently obtained and withheld by Deter & Jaillite, real-estate brokers, who had negotiated a sale of the Jackson farm. In thé original petition the Jack-sons alleged in effect that Deter & Jaillite undertook to sell the Jackson farm at a price of $4000, in which event they were to receive as commission $125, but if that price could not be obtained and it should have to be sold for $3900 their compensation for the sale would be $100. It was also alleged that they negotiated a sale to W. D. Houcke for $4000, but that they falsely and with the purpose of cheating and wronging the plaintiffs represented to them that they had sold the farm for only $3900, and to carry out the deception that sum, instead of $4000, was named as the consideration in the contract of sale and deed to Houcke, and that the defendants collected from Houcke $100 of the consideration and converted it to their own use and collected another $100 as commission from the plaintiffs on the false representation that they had sold the farm for only $3900, and further' that the fraud was not discovered until about a month after the transaction occurred. The petition closed with a prayer for judg•ment for $75. The defendants filed a general denial, and the trial which followed resulted in a verdict for plaintiffs, but for some reason this was set aside and a new trial granted.
Before the next trial the plaintiffs obtained permission to amend their petition, and alleged that by reason of their fraudulent conduct the defendants had forfeited any commission or.compensation whatsoever for the sale of the farm and that the plaintiffs were entitled to recover from the defendants $200, for which they asked judgment. In their answer to the amended petition the defendants denied the allegations of fraud and alleged that $3900 was the full consideration for the sale of the land. On a second trial the verdict was in favor of the plaintiffs, but this too was set aside, and on the third and final trial the plaintiffs recovered a verdict for $200, which included the $100 of the consideration wrongfully withheld and the $100 paid as commission and forfeited by the fraudulent conduct of the defendants. They complain and assign as error the ruling permitting plaintiffs to amend their petition and to ask for a forfeiture of the commission and the increased amount.
Under section 139 of the civil code (Gen. Stat. 1901, § 4573), which authorizes a court, in furtherance of justice, to allow the amendment of any pleading when it does not change substantially the claim or defense, the court was justified in permitting the amendment in this case. In fact the amendment was little more than a demand for a larger recovery. The facts justifying the increased demand were fully pleaded in the orig inal petition. The misrepresentations and fraud of defendants, which formed a basis of any recovery in the case, were set out in both petitions. The evidence to sustain a recovery under the original petition was competent and substantially the same kind of evidence as was required to establish the right of recovery and the larger demand under the amended petition. The matter of amending'pleadings rests largely in the discretion of the trial court, and unless there has been a clear abuse of discretion its rulings will not be disturbed. (Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732.) It cannot be said that the court’s discretion in permitting the amendment in this case was unwisely exercised. Nor did the act of the plaintiffs in asking for a judgment of $75 in the original petition ratify the fraudulent transactions of defendants, or prevent plaintiffs from finally asking for the full amount to which they were entitled under the facts pleaded.
The sufficiency of the evidence is questioned, but it abundantly shows misrepresentation of facts, concealment of the consideration actually received for the land, and the fraudulent retention of $100 of that amount. The defendants were bound to account to the Jacksons for the full amount received for the farm, and by their fraudulent representations -and conduct they forfeited the claim to any commission for the sale of the land. Having abused the confidence of their principals and committed fraud upon them, thé law justly deprives the agents. of any compensation for their services in negotiating the sale. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852.)
The instructions of the court fairly stated the law applicable to the facts brought out by the evidence, and no error is seen in any of the court’s rulings. The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This is a motion to vacate a judgment on the ground that it is void for want of jurisdiction .over defendants Davis and wife, who make the motion. The suit was one to quiet title to real estate situated in Finney county. The plaintiff was in possession by virtue of tax deeds, and defendants Davis and wife, among others, were the owners sought to be devested of title by the proceedings. They resided in Chase county. The plaintiff, in good faith, believing these defendants to be non-residents of the state, filed an affidavit as required by the statute in such cases, and gave notice by publication as the law provides. Davis and wife, knowing nothing of the proceeding, made default, and a decree was taken in favor of the plaintiff. More than five years afterward this motion was filed in the original case. No application was made for leave to defend, nor is it suggested that any defense exists. No equitable considerations, therefore, are presented. The sole contention is that the judgment is a nullity and may be set aside on motion at any time. The argument is made that the provisions of the statute relating to constructive service contemplate that the persons to be so served are in fact non-residents of the state, and therefore do not apply to persons who reside within the state; that the filing of the affidavit for service by publication cannot confer jurisdiction upon the court unless the facts therein stated are true; in other words, that the jurisdiction of the court depends upon the fact of non-residence, and not upon the evidence thereof furnished by the affidavit. This is the real point in the controversy.
In support of their contention the plaintiffs in er ror cite the case of German Nat. Bank v. Kautter, 55 Neb. 103, 75 N. W. 566, 70 Am. St. Rep. 371. In that case, however, the court found- the action of the plaintiff in obtaining service and judgment to be fraudulent, while nothing of that nature exists here. The fraudulent conduct of the plaintiff in the case cited fully justified the decision made, and we fully concur in the conclusion reached by the court for that reason. In the discussion of the case, however, the court does not seem to have regarded the question of fraud in procuring service as important, but places its decision flatly upon the ground that a false affidavit cannot confer jurisdiction. To this extent it supports the theory of the plaintiffs in error here: We think the opinion, when considered apart from the facts, too broad, and are not inclined to follow it.
The question of jurisdiction must be determined by the statute. If the plaintiffs in error were non-residents of the state, then service by publication was proper. Whether a defendant is a non-resident or not is a question of fact, which must be determined by testimony before constructive service can be completed; and the only evidence required by the statute to establish this fact is the affidavit prescribed by section 73 of the code. (Gen. Stat. 1901, § 4507.) When such an affidavit has been filed, and notice given as provided by section 74 of the code (Gen. Stat. 1901, §4508), and the proceeding has been examined and approved by the court as required by section 75 of the code (Gen. Stat. 1901, §4509), then jurisdiction exists. In some states the law requires the court to determine from prescribed proof presented that the defendants to be constructively served are non-residents, in advance of the publication of the notice. Our procedure requires that this fact shall be determined before the judgment is entered. (Code, § 75; Gen. Stat. 1901, § 4509.) But whenever done, the finding amounts to an adjudication that all the steps required by law to bring the defendant into court have been taken. This determination establishes prima facie the jurisdiction of the court, and its subsequent judgments cannot be overthrown except for the causes and within the limitations prescribed by law. The question whether the facts stated in the affidavit are true or not is immaterial until challenged in some recognized legal proceeding for the vacation of valid judgments. (Ogden v. Walters, 12 Kan. 282; Larimer v. Knoyle, 43 Kan. 338, 22 Pac. 487; Hammond v. Davenport et al., 16 Ohio St. 177.)
It is urged in argument that this motion, having been filed in the original case, constitutes a direct attack upon the jurisdiction of the court, and should not be held to the strict rule applicable where the question is presented collaterally. We see no room for this distinction here. Where, as in this case, a court having jurisdiction renders judgment, a collateral attack cannot be made thereon. A direct attack may be made for the causes and within the limitations provided by law, but not otherwise. (17 A. & E. Encycl. of L. 824.) All remedy against' this judgment had been lost by lapse of time when this motion was filed, except the one adopted, which rests upon the claim that the judgment is a nullity. - This makes it subject to the same rules which apply to a collateral attack.
The judgment is valid when assailed in this manner, and a demurrer to the evidence presented was properly sustained and the rejection of that offered was not erroneous.
The judgment is affirmed.
Johnston, C. J., Greene, Burch, Smith, Porter, JJ., concurring.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
John C. Douglass brought an action against Samuel Fitch and his wife for the possession of a teact of land. Fitch claimed ownership under a. tax deed which was found to be invalid. Fitch then asked to be reimbursed for the taxes he had paid, and also for improvements he had made upon the property. His claim with respect to taxes was allowed in part, but that regarding improvements was denied entirely. He acquiesced in the order holding his deed void as a conveyance of title, but prosecutes error from the judgment fixing the amount of his lien.
There was evidence that the taxes for which the property was sold included several items based upon illegal charges, and that the owner, Douglass, had tendered to the county treasurer payment of the amount lawfully due. The amount of Fitch’s lien was determined upon the assumption that this tender cut off interest and penalties from the time it was made. Since the judgment was rendered this court has held that under our statute, in a case like the present, such a tender is without effect. (Schiffer v. Douglass, 74 Kan. 231, 86 Pac. 132.) The plaintiff in error is therefore entitled to a reversal in order that his lien for taxes paid may be readjusted upon this basis.
The defendant in error seeks to justify the action of the trial court in denying to Fitch'the benefit of the occupying claimant’s act upon the ground that at the time he acquired the tax deed he was in possession of the property as the tenant of Douglass. It is not contended that he was under any obligation to pay taxes upon the leased property, and it is conceded that if the tax deed had been in all respects regular he might have maintained title and possession under it. But it is said that when the deed proved to be irregular, and inoperative as a conveyance, it ceased to afford him protection of any character. The argument made is this: A tenant may not dispute that his landlord at one time had title, but he may show a change of ownership ; he may attorn to the holder of a valid tax deed, because such an instrument necessarily destroys his landlord’s former title, under which he went into possession; but a tax deed irregularly issued does not destroy the landlord’s title or impair the landlord’s right of possession; therefore, notwithstanding its issuance, the tenant’s occupancy continues to be that of the landlord, whose title he is still bound to recognize. The reasoning is plausible but fails to meet the present situation, because the tenant has a right to assume that a tax deed fair upon its face was regularly issued and to act upon that assumption until an attack is made upon it. (Sheaff v. Husted, 60 Kan. 770, 57 Pac. 976.) Inasmuch as he may attorn to the holder of such an instrument without inquiring into the tax proceedings back of it, he may assert title under it himself; and notwithstanding it may afterward be set aside for latent defects he will be protected in expenditures made for lasting and valuable improvements. It is not necessary to determine what the effect might be if the deed proved to be invalid by reason of some defect apparent upon its face. The deed here involved appears to be sufficient in form and no patent irregularity has been pointed out.
After the judgment was rendered Fitch’s wife died. The action was revived in the name of her heirs. The defendant in error asserts that it should have been revived in the name of her personal representative, and that because this was not done there is a defect of parties in this court. Mrs. Fitch was made a defendant in the ejectment action, and joined with her husband in an answer, which consisted of a general denial of the allegations of the petition, but the tax deed ran to Fitch alone. His wife had no interest in the matters involved in the present proceeding and the absence of her executor or administrator is not material.
Objections relating to the making of the case have also upon examination been found to be not well taken.
For the reasons stated the judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Smith, J.:
The defendants in error insist that the plaintiff is not entitled to be heard here and that the case should be dismissed on the following grounds: (1) The judgment is an entirety, and one part thereof cannot be appealed from and the benefits of another part be accepted and not appealed from; (2) no notice of appeal, was given, and the appeal was not taken within four months after the rendition of the judgment.
Under the common-law procedure it must be conceded that the final adjudication of an action resulted in one judgment, which was an entirety, and on appeal it stood or fell as a whole. Under' the code system provision is made for joining parties and for uniting causes of action which the common-law procedure would not have permitted; also, for the rendition of judgments for and against the plaintiff in one action, and for some of the plaintiffs joined and against others; also, for and against defendants joined. In short, one adjudication may embrace several judgments. (Code, §§ 36, 37, 39, 41-43, 83, 396, and others; Gen. Stat. 1901, §§ 4464, et seq.)
The provisions for the correction of errors of the district courts are not so specific in terms as the provisions for the making of orders and the rendering of judgments therein, but, construed together, it must be apparent that provisions for the correction of an error should be as specific or as broad as the authority to decide erroneously. Jurisdiction being accorded, the authority of a court to decide erroneously is as complete as to decide correctly, and, until lawfully reversed, an erroneous order or judgment is as binding upon the parties thereto as a correct order or judgment. Since, then, there is authority in our code for numerous orders and judgments in one action, the appellate provisions found in sections 542 and 542a of the code (Gen. Stat. 1901, §§ 5019, 5020) should, if consistent with the language used, be so construed as to allow the correction of one of such judgments or orders that is erroneous and is so far distant and independent of the others that, without violence to sound reason and justice, it may be adjudicated on appeal without bringing up for review the entire decision.
Subdivision 3 of section 542 of our code (Gen. Stat. 1901, § 5019) seems to justify this construction, as applied to this case at least, when read in connection with the other provisions of the section. The section, after providing that “the supreme court may reverse, vacate and modify a judgment of a district court . . . for errors appearing on the record; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof,” reads further: “The supreme court may also reverse, vacate or modify any of the following orders of a district court . . . 1. A final order. ... 3. An order that involves the merits of an action or some part thereof.”
It will be seen that the words “judgment” and “order” are used somewhat indiscriminately in this section, as they are also in some other portions of the code; so much so as to suggest that any specific, independent part of a judgment is appealable, as is especially provided in the codes of "Wisconsin, Iowa, Missouri and some other code states. We do not, however, go to this extent herein. The determination of the division of the property in a suit for a divorce is denominated an order, in the code (§ 646; Gen. Stat. 1901, § 5139), and a decree for alimony was said to be a final order in In re Johnston, Appellant, 54 Kan. 726, 730, 39 Pac. 725. It may be said in this case that the appeal is from a part of the final judgment. If so, the distinction may be this: The order determines what portion of the property each litigant is to have; the judgment conveys the respective portions, so determined, to the respective litigants. If the order falls, as we hold it must, the portion of the judgment based thereon must of necessity fall with it.
As said, we suggest, but do not decide, that a specific, independent part of a judgment may be appealed from under our code.
Without citing any express provision of the code authorizing the decision, it was said in St. Paul Trust Co. v. Kittson, 84 Minn. 493, 87 N. W. 1012:
“An appeal may be taken from a part of a final order or judgment if the part whereby the appellant is aggrieved is so far distant and "independent that it may be adjudicated on appeal without bringing up for review the entire judgment or order.” (Syllabus. See, also, Hall v. M’Cormick, 31 Minn. 280, 17 N. W. 620; Golding v. Golding, 74 Mo. 123; Lake v. Lake, 17 Nev. 230, 30 Pac. 878; Martin v. Martin, 112 Wis. 314, 87 N. W. 232, 88 N. W. 215.)
Since, then, we hold that the appeal is not from “a judgment granting a divorce,” it follows that the plaintiff need not give the notice nor consummate her appeal within the time required by section 647 of the code (Gen. Stat. 1901, § 5140), but may proceed under the general provisions of section 556 (Gen. Stat. 1901, § 5042).
It is urged, however, that, if the proceeding in error be not dismissed, the award of the land to the defendant should be sustained, and it is said that the division of property between litigants in a divorce suit rests in the discretion of the court and it cannot be said that the decision of the court is inequitable or that it constitutes an abuse of such discretion. We could readily assent to this proposition if we could say the matter rested solely in the discretion of the court. It does not. If the land in question was the separate property of the plaintiff, the court was required by section 646 of the code (Gen. Stat. 1901, § 5139) to award it to her, and was inhibited from awarding it to the defendant. If, on the other hand, the land was “acquired.by the parties jointly during their marriage,” although plaintiff held the legal title thereto, the court was authorized to make such division thereof and of other property thus acquired as appeared to the court just and reasonable. The court does not find that the land in question was acquired by the parties jointly during their marriage; nor do we believe that the evidence would justify such a finding. The court does find that the equitable title to the land was in the plaintiff and the defendant equally. We do not think there is any evidence to support this finding.
The order awarding, and the judgment conveying, the land to the defendant is reversed and a new trial is granted.
Johnston, C. J., Greene, Burch, Mason, Porter, JJ., concurring.
Graves, J., dissenting.
(91 Pac. 45.)
ORDER DIRECTING JUDGMENT.
Per Curiam: Since the order awarding the land to the defendant was reversed in this case the parties have agreed that, as the record discloses all the facts, this court may accept them as agreed to and direct the judgment to be rendered. The case is therefore remanded with instructions to award the land in question to the plaintiff as her separate property, and to set aside the judgment in favor of the plaintiff against the defendant for $1250, which was made a lien on the land, and that in all other respects the judgment be the same as before. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The St. Louis Jewelry Company, a partnership, brought an action upon a writing signed by W. O. Disney, by which, it was alleged, he purchased a stock of jewelry from the plaintiffs that was delivered to him in accordance with the agreement, and for which he refused to settle or pay.
His answer contained three defenses: First, a general denial; second, that he was fraudulently induced to sign the writing without reading it, by the false representations of the plaintiffs’ agent that it contained stipulations previously agreed upon when in fact it did not; third, that the goods sent to him were not of a merchantable quality, nor of the quality described in the writing, and that he held the goods subject to the plaintiffs’ order, except a small quantity which had been sold and for which he was ready to account.
On motion by the plaintiffs, and over Disney’s objection, the court ruled that the second and third defenses were inconsistent with each other and required Disney to elect upon which he would rely. He then elected to stand on the second defense, and the court struck the third from the answer. The cause was then submitted to a jury, the court holding that the burden of proof was upon the defendant, and when the testimony in his behalf was introduced the plaintiffs’ demurrer to his testimony was sustained and the court gave judgment against him for the full amount of their claim.
Disney complains, and has reason to complain, of the holding that the second and third defenses were inconsistent, and of the order compelling the election of one and the rejection of the other. There was no irreconcilable repugnancy between the two defenses. In line with the general policy of the code there is an express provision that the defendant may set up in his answer as many defenses as he may have. (Code, § 94; Gen. Stat. 1901, § 4528.) Many defenses which would have been inappropriate under the old forms of pleading may be united under the code, and if the defendant omits to set them up they can never afterward be available in that or any other action. (Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459.) The defendant who has several defenses to a cause of action should not be hampered in pleading them by any mere technical rule. In Citizens’ Bank v. Closson, 29 Ohio St. 78, the court said:
“It certainly is not consistent with the spirit and intention of the code that a party having one or the other of two good defenses, without the means of knowing, otherwise than from the developments to be made upon the trial, which of the two, in fact or in law, is his true defense, shall, at his peril, be compelled to elect in advance on which he will rely, to the exclusion of the other. When, from the nature of the case, it is rendered uncertain which of two grounds of defense is the true and proper one, it is competent for the defendant, in his answer, to set them both up, provided they, will admit of being stated in such form that the answer can be sworn to without falsehood, and in good faith.” (Page 81.)
In Map Company v. Jones, 27 Kan. 177, a test was applied where it was stated that a “defendant can be required to elect between which of several defenses he will proceed to trial only where the facts stated therein are so inconsistent that if the portion of one defense be admitted it will necessarily disprove the other.” (Page 180.)
In Light Co. v. Waller, 65 Kan. 514, 70 Pac. 365, an action for damages, because of defendant’s negligence, it was contended that a general denial and an averment of contributory negligence were inconsistent defenses, but the court held them not to be inconsistent, saying in effect that while the defendant could not set up contradictory defenses he could adapt his pleading so as to meet the possible contingencies of the case as devel oped by the proof of his opponent and that defenses could not be deemed to be inconsistent unless the truth of one implied the falsity of the other. (See, also, Shed v. Augustine, 14 Kan. 282; Cole v. Woodson, 32 Kan. 272, 4 Pac. 321.)
In Minnesota the question arose, somewhat as it has here, in an action to recover the price of fruit-trees, and it was held that a defense that the order for the trees was obtained by fraud was not inconsistent with another that the trees were never delivered. (Roblee v. Secrest, 28 Minn. 43, 8 N. W. 904.) A great many of the cases on the pleading of inconsistent defenses are gathered and presented in a note in 48 L. R. A. 185, and in volume 39 of the Century Digest, section 189.
Within the authorities the defendant had a right to allege that the execution of the writing was procured by the plaintiffs’ fraud, and it was therefore not binding, and the further defense that the plaintiffs did not furnish the articles specified in the writing. The truth of one does not imply the falsity of the other. Both may be true, and either is a proper defense. The plaintiffs may have fraudulently procured the defendant’s signature to the writing by falsely representing that the goods were to be placed in the defendant’s hands for sale on commission and not as a purchase, and also may have failed to deliver the grade of goods to defendant which they agreed to deliver. Such defenses are not so incompatible that they cannot be joined in an answer or that the defendant should be required to elect between them.
Error was committed in sustaining the demurrer to defendant’s testimony. He offered proof tending to show that he entered into an agreement with the agent of the plaintiffs to the effect that they should place a certain lot of jewelry with him for sale on commission at invoice prices; that the agent prepared the writing and put into it stipulations for an outright sale, but when he presented it to defendant for signature he represented that it contained only the provisions agreed upon; and that, being in a hurry, and believing the agent’s representations as to the contents of the writing to be true, he attached- his signature to the paper without reading it. Taking his testimony to be true, he was not bound by the contract, although he took the agent at his word and signed the contract without reading it. (Deming v. Wallace, 73 Kan. 291, 85 Pac. 139; Shook v. Manufacturing Co., 75 Kan. 301, 89 Pac. 653; Redfield, v. Baird, 75 Kan. 837, 90 Pac. 782; Jewelry Co. v. Bennett, 75 Kan. 743, 90 Pac. 246.)
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in mandamus to compel defendant to obey an order of the board of railroad commissioners requiring' it to install and operate a separate passenger-train service on the Madison branch of its railway from the state line between Kansas and Missouri to Madison, Kan. The order of the board of railroad commissioners was made on the 7th day of December, 1905, after a regular hearing previously held at Blue Mound, Kan. The hearing was upon a written complaint filed with the board, to which defendant filed its answer: Defendant having refused to comply with the order, this proceeding- was brought and the alternative writ issued May 24, 1906.
What is known as the Madison branch of defendant’s railroad was originally the Interstate railroad, chartered in 1885 by the state as a common carrier, under the name of the Interstate Railroad Company. Afterward, in 1891, it was consolidated with eleven other roads, and became part of the Kansas, Colorado & Pacific Railway Company- It has been operated as a part of the Missouri Pacific Railway Company for a number of years.
To the alternative writ an answer was filed which denies that the company operated the Madison branch as a line of road wholly within the state of Kansas, and alleges that said branch is a part of the Missouri Pacific general system; that defendant maintains terminal facilities for the branch at Butler, Mo., twenty miles east of the Kansas state line, where the branch connects with the main line of defendant’s railroad; that the company has no terminal facilities near the state line within the state of Kansas, and that the branch road cannot be operated as a road within the state of Kansas without such terminal facilities, to maintain which would involve the company in ruinous expense. It also alleges that the order is unreasonable and confiscatory and that the company cannot comply with it without great financial loss; that the entire revenue of.the road within the state of Kansas, including passenger and freight business, is insufficient-to meet the expense and cost of operating the road within the state; that from July 1, 1903, to April 30, 1905, it maintained separate passenger-train service upon this branch, but was obliged to abandon the same and return to the mixed passenger and freight service because the total receipts of passenger and freight business during that period proved wholly insufficient to mefet the expenses of operation. It further alleges that compliance with’ the order of the board would, compel’ defendant to divert its revenues from other lines and parts of its system outside the state of Kansas to’ the maintenance Of separate passenger-tra'in service in the state, and that the extent of such' additional cost would amount to a confiscation' of its property. . . ..
After the issues were joined the Honorable T. F. Garver was appointed referee. His report was filed May 27, 1907, and embraced findings of fact and conclusions of law. The referee found as a conclusion of law that the peremptory writ should not be allowed. Special reference will be made to these findings in another part of the opinion.
We have not attempted to state the allegations and averments of the alternative writ or those of the answer, except in general terms. There is, however, no question arising on the pleadings except that the state contends that it is entitled to judgment thereon because it appears that the defendant railway company failed to commence an action' to vacate and set aside the order of the board within thirty days from the time such order was made, and that the order of the board thereby became a final order barring the railway company from all fight to any defense to the alternative writ.
To this contention we do not agree. Section 11 of chapter 340, Laws of 1905, amending the general railroad law, 'provides that certain determination's and orders of the board shall be prima fade evidence in any action where they aré offered as evidence — that is, prima fade evidence “of the reasonableness and justness of the classifications, rates and charges involved therein and of all othef matters therein found and determined.” It also provides that “after the lapse of thirty days from the time such determinations and orders shall be made, no suit then pending tó set the same aside, and they remaining in full force and effect,, such determinations' and orders sháll be fipld to' be coñclúsivé as to the matters involved therein.” We understánd these provisions to apply to certified copies of rates, rules, regulations and orders which section 11 authorizes the board to furnish upon the application of any person interested. The provision is a rule of evidence and not a limitation of the right of the railway company to be heard in an action brought under section 5998 of the General Statutes of 1901, as this action is brought.
Section 5998 makes it the duty of every railroad company to obey the reasonable orders of the board, and authorizes mandamus proceedings in the name of the state, on the relation of any person interested, to compel compliance and obedience to such order. This and the following section (5999) must be construed together as cheating the court procedure. The railroad company, if dissatisfied with any order or decision of the board, is given the right within thirty days thereafter to bring an action against the board in any court of competent jurisdiction, to have the same vacated. Section 5999 also provides that the institution of such action by the railroad company shall in no way interfere with or prejudice the rights of the party or parties in interest from availing themselves of the remedies provided in the preceding section, and that during these thirty days no penalties or forfeitures shall attach or accrue on account of the failure of the company to comply with the order until the validity of the order has been finally determined by the supreme court in any proceeding in which the railroad company is a party. When both actions are pending at the same time the supreme court is authorized to stay all proceedings in the district court until the final determination of the matter in the supreme court.
Had the legislature -intended to provide that the failure of the railroad company to institute proceedings to vacate an order should summarily cut off the right of the company to make any defense to the mandamus proceedings it certainly would have used language appropriate to manifest that intention.
We are aided in this construction by the fact that section 5998, which authorizes the mandamus proceeding, also provides that the orders and determinations of the board shall be prima facie evidence of the matters therein stated and found, and particularly by. the further provision that “the court may direct the railroad company affected thereby to comply with any part of any rule, order or regulation of the board, and may hold any part of the same unreasonable, and refuse to enforce such part, without affecting the part found to be reasonable and just.” It must be obvious that this provision contemplates a trial in the supreme court of the question of the reasonableness of the order, and that the provision subsequently adopted by the amendment of 1905 has no reference to this kind of an action.
The defendant railway company therefore was not estopped from offering proof of its defense in this action by its failure to avail itself of the right to commence an action to vacate the order of the board within thirty days.
Defendant attacks the constitutionality of the law creating the board of railroad commissioners upon the ground that it attempts to delegate to the board legislative authority. The exact question presented here has been decided so often by the courts of last resort, the subject has been so exhaustively discussed and elaborated, and the field for original comment or suggestion has been reduced to such narrow limits, that very little is left but to repeat what others have said. In a majority of the states of the Union the legislatures have created commissions and conferred upon them the power to regulate and control the operation of common carriers, to fix rates and schedules for the transportation of passengers and freight, to hear and determine complaints of the people against the carrier and to act thereon, and the power to create such agencies, and to confer upon them these powers, has been repeatedly recognized and Upheld by the supreme court of the United States.
Óur constitution contemplates the complete separatioíí of the three governmental powers as clearly as though it so declared in express terms. (In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135, 25 L. R. A. 110, 45 Am. St. Rep. 261; The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662; In re Davis, 58 Kan. 368, 49 Pac. 160.) The constitution vests all legislative power ih á legislature, consisting Of a senate and a house of representatives. It cannot be doubted that the legislature is not authorized to delegate this legislative pbwer. It may not confer upon any person, board of commission' the' power of determining what the law shall be. These pfopositions are' elementary. Notwithstanding these well-established maxims, the separation of the powers of government is complete only in theory. In In re Sims, supra, Mr. Justice Johnston, ih concurring, used this language:
“It is highly important to separate the legislative, judicial and executive functions, and that the officer of one department should not exercise the functions conferred upon another. Under our system, however, the absolute independence of the departments and the complete separation of the powers is impracticable, and was not intended.” (Page 11.)
As early as 1871, in Coleman v. Newby, 7 Kan. 82, Mr. Justice Valentine said:
“While the legislature possesses all of the legislative power of the state, and while it is true that they cannot delegate any portion of that power to any other body, tribunal, or person, yet it is generally found impracticable for them to exercise this power ih detail. They may do so' if they choose, or they may enact géneral provisions, and leave those who are to áct under these general pf ovisions. to use their discretion in filling up the details. They may. mark out the great outlines, and leave those who are.to act within these outlines' to .use their discretion in carrying out the minor regulation's.” (Page 88.)
And in Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 1 L. R. A. 744, Mr. Justice Brewer commented ás follows upon the distinction theoretically áhd as applied "to legislative acts conferring administrative powérs;
“Third. While, in a general sense, following the language of the supeme court; it must be conceded that, the power to fix rates is legislative, yet the line of demarcation between legislative .and administrative functions is not always easily discerned.,' The one runs into the other. The íaw-books are full of statutes un-; questionably valid in which the legislature has been content to simply establish rules and principles, leaving execution and details to other officers. Here it haS declared that rates shall be reasonable and just, and committed what is, partially at least; the mere administration of that law to the railroad commissioners.; Suppose, instead of á general declaration that rates should be reasonable and just, it had ordered that the rates should be so fixed as to secure to the cárrier above the cost of carriage three per cent, upon the money invested in the meáns of transportation,, and then committed to' the board of railroad commissioners the fixing of a schedule to carry this rule into effect, would not the functions thus vested in such a board be strictly administrative? While, of course, the cases are not exactly parallel, yet the illustration suggests how closely administrative functions press upon legislative power, and enforces the conviction that that which partakes so largely of mere administration ■ should not hastily be declared an unconstitutional delegation of legislative power. Fourth. The reasonableness of a rate changes with the changed, condition of circumstances. That which would be fair and reasonable to-day, six months or a year hence may be •either too high dr too low. The legislature convenes only at stated periods; in this state once in two years. Justice will be more likely done if this power of fixing ■rates is vested in a body of continual session than if left with one meeting only at stated and long intervals. Such a power can change rates at any time, and thus meet the changing conditions of circumstances. While, of course, the argument from inconvenience cannot be pushed too far, yet it is certainly a matter of inquiry whether in the increasing complexity of our civilization, our social and business relations, the power of the legislature to give increased extent to administrative functions must not be recognized.” (Page 874.)
In The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662, the act creating a court of visitation was held to be unconstitutional and void for the reason that in the powers conferred on that tribunal' legislative, judicial and administrative functions were so commingled and interwoven as to violate the constitutional requirement that the three departments of state be kept separate. It was said, however, in the' opinion:
“Legislative power to prescribe rates which railway-corporations may charge for carrying freight or passengers exists beyond question, and its exercise has been uniformly upheld by the courts. And this power the lawmakers may delegate to boards or commissioners, which has been frequently done. (Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636.) The extent of the power is curtailed only by limitations placed upon it by the courts in the application of certain constitutional guaranties prohibiting the destruction of property rights vested in the owners of the railway. (Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 970.)” (Page 816.)
The power conferred is uniformly held to be administrative in its character, though the term “executive” has been used by the supreme court of the United States in defining it. It has, however, no relation to, or dependence upon, the executive power spoken of as one of the three governmental powers, for its function is that of carrying into effect the legislative will, and in .its operation it is a part of the legislative act. This is the doctrine of the Railroad Commission Cases, 116 U. S. 307, 6 Sup. Ct. 334, 348, 349, 29 L. Ed. 636, which was approved in Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014. The language of Mr. Justice Brewer in the latter case is as follows:
“Such a commission is merely an administrative board created by the state for carrying into effect the will of the state as expressed by its legislation. Railroad Commission Cases, 116 U. S. 307, 6 Sup. Ct. 334, 348, 349, 29 L. Ed. 636. No valid, objection, therefore, can be made on account of the general features of this act; those by which the state has created the railroad commission and entrusted it with the duty of prescribing rates of fares and freights as well as other regulations for the management of the railroads of the state.” (Page 394.)
Commenting upon the same objections to a similar law the supreme court of Illinois, in the case of C., B. & Q. R. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247, 24 L. R. A. 141, 41 Am. St. Rep. 278, used the following language:
“The act of 1873 is said to be invalid because, instead of establishing reasonable maximum rates of charges, it is supposed to delegate the power to establish such rates to the railroad and warehouse commissioners. It has been held in a number of cases that statutes which create boards of commissioners and authorize them to make schedules of rates for railroad companies are not invalid for the reason here' urged. The doctrine of these cases is that the functions of such boards are administrative rather than legislative; that the authority conferred upon them relates merely to the execution of the law; that a grant of legislative power to do a certain thing carries with it the power to use all proper and necessary means to accomplish the end, and that, as the reasonableness of rates changes with circumstances and legislatures cannot be continuously in session, the requirement that the statute itself shall fix the charges might preclude the legislature from, the use of the agencies necessary to perform the 'duty imposed upon it by the constitution; in short, that the legislature may authorize others to do things which it might properly, but cannot conveniently or advantageously, do itself.” (Page 378.)
The supreme court of the United States, in a very recent case, has had occasion to pass upon the same question as applied to acts of congress conferring administrative functions upon individual officers. In Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523, the question arose over the validity of the river and harbor act of 1899, by which congress conferred upon the secretary of war the power to determine when any railroad or other bridge over a navigable stream constituted an obstruction to navigation, and to notify the owners thereof to alter or remove the same. The question to be determined was whether the act was a violation of the constitution of the United States as delegating legislative and judicial powers to the head of an executive department of the government. The opinion reviews the authorities and, at page 382, quotes from Field v. Clark, 143 U. S. 649, 693, 12 Sup. Ct. 495; 36 L. Ed. 294, as follows:
“ ‘The true distinction,’ as Judge Ranney, speaking for the supreme court of Ohio, has well said, -‘is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised, under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’ Cincinnati, Wilmington &c. Railroad v. Commissioners, 1 Ohio St. 77. In Moers v. City of Reading, 21 Pa. St. 188, 202, the language of the court was: ‘Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether' the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.’ So, in Locke’s Appeal, 72 Pa. St. 491, 498, 13 Am. Rep. 716: ‘To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob'the legislature of the ppwer to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.’ The proper distinction the ,court said was this: ‘The legislature cannot delegate 'its power to make a law'; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make,'its own ‘.action dépend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known tp the lawmaking power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.’ ”
Counsel for defendant calls particular attention to. the case of Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 702, 33 L. Ed. 970, where the. Minnesota law creating a railroad commission was held to be in conflict with the constitution of the United States. The particular reason why the Minnesota statute was held to be unconstitutional does not apply to this case. The Minnesota court construed the act tornean that the rates recommended by the commission should be not merely prima facie equal and reasonable, but final and conclusive as to what were reasonable- and equal charges, and held that the law neither contemplated nor allowed any issue to be made or inquiry to be had as to their equality or reasonableness in fact, and that in a proceeding for mandamus under the statute there was no fact to traverse except the violation of the law in not complying with the orders of the commission. The supreme court declared that it was bound by the construction which the Minnesota court had placed upon the statute, and that so construed the act. deprived the railroad company of its right to a judicial investigation by due process of law. No such objection can be urged to the Kansas act. In a specially concurring opinion in that case Mr. Justice Miller laid down certain fundamental propositions; among others,, the following:
“1. In regard to the business of common carriers, limited to points within a single state, that state has the legislative power to establish the rates of compensation for such carriage.
“2. The power which the legislature has to do this can be exercised through a commission which it may authorize to act in the matter, such as the one appointed by the legislature of Minnesota by the act now under consideration.” (Page 459.)
The following additional authorities, and many others that might be cited, sustain the doctrine that while the legislature may not delegate its strictly legislative powers it may delegate authority to perform certain functions which are administrative in character and which cannot well be performed by the legislature itself: C. W. & Z. Rail Road Co. v. Commissioners of Clinton County, 1 Ohio St. 77; Tilley v. The Railroad Commissioners, 4 Woods (U. S. C. C.) 427, 5 Fed. 641; Georgia Railroad et al. v. Smith et al., Railroad Commissioners, et al., 70 Ga. 694; Express Co. v. Railroad, 111 N. C. 463, 16 S. E. 393; State v. Chicago, Milwaukee & St. Paul Ry. Co., 38 Minn, 281, 37 N. W. 782; State v. F., E. & M. V. R. R. Co., 22 Neb. 313, 35 N. W. 118; Chicago, etc. R. R. Co. v. Iowa, 94 U. S. 155, 24 L. Ed. 94; Peik v. Chicago, etc. Railway Co., 94 U. S. 164, 24 L. Ed. 97; Chicago, etc. R. R. Co. v. Ackley, 94 U. S. 179, 24 L. Ed. 99; Winona & St. Peter R. R. Co. v. Blake, 94 U. S. 180, 24 L. Ed. 99; Stone v. Wisconsin, 94 U. S. 181, 24 L. Ed. 102; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. 832, 27 L. Ed. 812; Illinois Central R. R. Co. v. Illinois, 108 U. S. 541, 2 Sup. Ct. 839, 27 L. Ed. 818; Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. Ed. 636; Stone v. Illinois Central Railroad Co., 116 U. S. 347, 6 Sup. Ct. 348, 388, 1191, 29 L. Ed. 650; Stone v. N. O. &. N. E. Railroad Co., 116 U. S. 352, 6 Sup. Ct. 349, 391, 29 L. Ed. 651; Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. Ed. 841; Charlotte &c. Railroad v. Gibbes, 142 U. S. 386, 12 Sup. Ct. 255, 35 L. Ed. 1051; Chicago &c. Railway Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. 400, 36 L. Ed. 176; Pearsall v. Great Northern Railway, 161 U. S. 646, 665, 16 Sup. Ct. 705, 40 L. Ed. 838; Minneapolis & St. Louis R’D Co. v. Minnesota, 186 U. S. 257, 22 Sup. Ct. 900, 46 L. Ed. 1151; Minn. & St. Louis R. R. Co. v. Minnesota, 193 U. S. 53, 24 Sup. Ct. 396, 48 L. Ed. 614; C. B. & Q. Railway v. Drainage Comm’rs, 200 U. S. 561, 584, 26 Sup. Ct. 341, 50 L. Ed. 596; Atlantic Coast Line v. Florida, 203 U. S. 256, 27 Sup. Ct. 108, 51 L. Ed. 174; Seaboard Air Line v. Florida, 203 U. S. 261, 27 Sup. Ct. 109, 51 L. Ed. 261; Commissioners v. A. C. L. Ry., 71 S. C. 130, 50 S. E. 641.
In fact, the power of the legislature to delegate merely administrative functions in this manner has been so thoroughly established in the several states, and.so often held by the federal supreme court to apply to acts of congress, that the question is no longer an open one. The latest utterance of the United States supreme court upon the subject is in the case of Atlantic Coast Line v. N. Car. Corp. Com’n, 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933, in which Mr. Justice White, speaking for the court, used the following language:
“The elementary proposition that railroads from the public nature of the business by them carried on and the interest which the public have in their operation are subject, as to their state business, to state regulation, which may be exerted either directly by the legislative authority or by the administrative bodies endowed with power to that end, is. not and could not be successfully questioned in view of the long line of authorities sustaining that doctrine.” (Page 19.)
The next contention is that the act is void because it confers upon the board a combination of legislative, executive and judicial powers. It is sought to bring the case within the doctrine declared by this court in The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662. In construing the act we start with the elementary proposition which all courts recognize: that every statute is presumed to be constitutional, and that no act of the legislature should be held to be unconstitutional unless its vice is apparent.
It must be observed that none of the powers which the act confers upon the board is authorized by the constitution to be performed by any other person or officer or tribunal. In the absence of any limitation in the constitution the legislature has full power to make laws and create agencies to carry them into effect.
The particular objection to the statute is that section 5970 of the General Statutes of 1901, and sections 4 and 9 of chapter 340, Laws of 1905, combine executive, legislative and judicial power. The first clause of section 5970 reads as follows: “Whenever in the judgment of the railroad commissioners it shall appear that any railroad corporation or other transportation company fails in any respect or particular to comply with the terms of its charter or the laws of the state,” etc. In the same section it is provided that “said commis.sioners shall inform such corporation of the improvement and changes which they adjudge to be proper, by a notice thereof in writing, . . . and if such orders are not complied with, the said commissioners, upon complaint, shall proceed to enforce the same in accordance with the provisions of this act as in other cases.”
It must be apparent that the use of the words “judgment” and “adjudge” in this section does not contemplate a judicial judgment. The commissioners do not exercise judicial power within the meaning of that word as used in the constitution. ’When we come to consider this section with the other provisions of the act we find that after determining that “any change in the mode of operating its road and conducting its business is reasonable and expedient in order to promote the security, convenience and accommodation of the public,” the board has no power to enforce an order to that effect.. It may inform the company of the changes it desires made, but is powerless to compel any change until a hearing has been had “upon complaint,” which means a full hearing, of which the company has been notified and at which it may appear and participate; and even after this has been done the board can only order that changes shall be made. The order is not conclusive or binding upon the company, and the company, if it see fit, may ignore it until the reasonableness and lawfulness of the order have been solemnly adjudged by a court. • There is no commingling of legislative, executive and judicial powers, so apparent in the court of visitation act, which conferred upon that tribunal the power to hear and decide, and to render a judgment and enforce it as a court.
The finding and order of the board that a change in the operation of the road is expedient and reasonable, under section 5970, supra, partakes.of none of the characteristics of a judgment rendered by a court. As observed, the road may ignore it. When mandamus proceedings are brought to enforce it the order itself is only prima fade evidence of its reasonableness. Not being conclusive, it affects the railroad company only as a rule of evidence. The same may be said of sections 4 and 5 of chapter 340 of the Laws of 1905. Section 4, expressly, and section 5, by necessary inference, require a hearing upon complaint, and the order when made has the same force as the order provided for in section 5970, supra, and no other or greater effect. The functions of the board under this act are, as we have said, purely administrative, and the fact that in the performance of these functions the board must hear complaints and determine them does not make their acts judicial. It is not every act which requires the exercise of judgment and discretion which can be said to be judicial. Cooley, in volume 2 of the third edition of his work on Torts, at page 752, says:
“Official duties are supposed to be susceptible of classification under the three heads of legislative, executive, and judicial, corresponding to the three departments of government bearing the same designations; but the classification cannot be very exact and there are many officers whose duties cannot properly, or, at least, exclusively, be arranged under either of these heads.”
Where judgment or discretion is exercised as a mere.. incident to a ministerial power it has never been held to be the exercise of judicial power within the meaning of constitutions which, like ours, provide for the separation of the three departments of government. (Owners of Lands v. The People ex rel., 113 Ill. 296; Rich et al. v. City of Chicago, 59 Ill. 286, 295.) In fact, the cases we have quoted from sustaining the power of legislatures to create boards of this character, and to confer upon them power to regulate and control common carriers, afford a sufficient answer to the contention that' the power conferred is either legislative, executive or judicial.
A further objection to the validity of the act is because of the powers conferred upon this court. It is insisted, first, that it confers upon the court legislative powers, and, second, non-judicial powers, which it is urged fall within neither the original nor the appellate jurisdiction granted to the court by the constitution.
Section 5998 of the General Statutes of 1901 authorizes mandamus proceedings in the supreme court to enforce the orders of the board, and provides that the practice in such proceedings shall be as in other cases of mandamus. The particular objection upon which both of these claims are based is the provision that in such action “the court may direct the railroad company .affected thereby to comply with any part of any rule, order or regulation of the board, and may hold any part of the same unreasonable, and refuse to enforce such part, without affecting the part found to be reasonable and just.” It is said that when the court directs compliance with part of the original order it acts in a legislative capacity, or, if not in a legislative, at least in a non-judicial capacity.
A similar contention was raised in Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736. The act under consideration authorized the judge of the district court to make findings of fact upon the petition of the city council of a city of the second class desiring to add to the territory of such city. The judge was empowered to make findings as to the advisability •of adding such territory — that is, whether the addition would be to the interest of the' city, and also whether it would cause manifest injury to persons owning real estate within the territory sought to be added; whether it was advisable to add some portions of the territory and unadvisable to add other portions. It was held that, while the power to create and regulate municipal corporations and define their boundaries is purely legislative, as the act authorized cities to enlarge their boundaries on certain conditions, depending upon certain facts, the existence of those conditions was made by the act the subject of judicial inquiry and determination; that the city council in its discretion made the local regulation, but that the question whether that discretion had been exercised within the limitations of the power delegated “is a judicial question pure and simple.” (Page 683.) The doctrine, of the case quoted from has been followed in the cases of Huling v. The City of Topeka, 44 Kan. 577, 24 Pac. 1110, Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143, City of Emporia v. Randolph, 56 Kan. 117, 42 Pac. 376, Eskridge v. Emporia, 63 Kan. 368, 65 Pac. 694, Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384.
In the present case the legislature declares what the law shall be, and delegates to a commission the administrative power to carry the legislative will into effect on certain conditions depending upon facts, and the question whether the discretion of the administrative body has been exercised within the limitations of the power delegated is a judicial question. If the conditions exist, if the order of the board is reasonable and just, then the law declares that a duty rests upon the railroad company to obey the order. The action of mandamus lies to compel the performance of some official or corporate act by a public officer or corporation when no other adequate, specific remedy exists. (Smalley v. Yates, Mayor, 36 Kan. 519, 523, 13 Pac. 845.) The doctrine of the decided cases is that the inquiry by the courts as to the reasonableness of a schedule of rates or other regulation, whether made by the legislature or through a commission, is purely a judi- cial inquiry, and the legislature may expressly confer the power upon the courts. (Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819; St. L. & San Francisco Railway v. Gill, 156 U. S. 649, 657, 15 Sup. Ct. 484, 39 L. Ed. 567.)
In the statutes enacted by other states creating railroad commissions similar provisions are made for the purpose of furnishing to the railroad companies affected thereby due process of law. In the majority opinion by Mr. Justice Blatchford, in the Minnesota case (134 U. S. 418, 10 Sup. Ct. 702, 33 L. Ed. 970), it was said:
“The question of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination.” (Page 458. To the same effect see In re Canada Northern Ry., 7 Fed. 653.)
There is nothing substantial in the contention that the statute authorizes the court to try the whole controversy and make such orders as it may deem reasonable and just, and that the order when reviewed and revised becomes a judicial order. This court is, not given authority by the act to make any rule, order or regulation. Its authority is limited to the inquiry whether the order already issued is reasonable and just. The order may embrace separate and distinct things; it may seek to compel the doing of a number of things, some of which the evidence may show would not be reasonable or just. If the things ordered to be done are in their nature such that they can be segregated, the judgment of the court may direct that some of the things ordered shall be performed, and refuse the peremptory writ as to the other things. The power to do this is analogous to the powers courts possess, in passing upon the validity of an act of the legislature, to uphold certain parts of the act and to decide other portions to be invalid, where the several portions are not so associated and connected that the whole' must stand or fall together.
It is contended that the act deprives defendant of its property without due process of law. Section 5999 of the General Statutes of 1901 provides:
“Said board of railroad commissioners shall not make any regulation, order, finding or decision against any railroad company or enter into any investigation affecting any railroad company without giving such railroad company reasonable notice thereof and an opportunity to appear and be heard in respect to the same.”
And section 5970 especially provides: “The said commissioners, upon complaint, shall proceed to enforce the same in accordance with the provisions of this act as in other cases.” Defendant, having been notified, appeared before the board and contested the matter in the manner provided for by the statute. (Commissioners v. A. C. L. Ry., 71 S. C. 130, 50 S. E. 641; Louisville and Nashville Rd. Co. v. Schmidt, 177 U. S. 230, 20 Sup. Ct. 620, 44 L. Ed. 747.) In the latter case it was said:
“It is no longer open to contention that the due process clause of the fourteenth amendment to the constitution of the United States does not control mere forms of procedure in state courts or regulate practice therein. All its requirements are complied with provided in the proceedings which are claimed not to have been due process of law the person condemned has had sufficient notice and adequate opportunity has been afforded him to defend.” (Page 236.)
In the opinion declaring the Minnesota act void because of its failure to provide due process of law Mr. Justice Blatchford used this language:
“No hearing is provided for, no summons or notice to the company before the commission has found what it is to find and declared what it is to declare, no opportunity provided for the company to introduce witnesses before the commission, in fact, nothing which has the semblance of due process of law.” (Chicago &c. Railway Co. v. Minnesota, 134 U. S. 418, 457, 10 Sup. Ct. 702, 33 L. Ed. 970.)
We have already referred to the court procedure provided for in the act by which any railroad company affected by the order of the board is given an opportunity to contest the matter. These provisions make it plain that no property rights of any railroad company can be finally affected or disturbed until there has been a judicial determination of the reasonableness and justness of the order by a court of competent jurisdiction, and these provisions we think furnish due process of law.
It is further contended that the act is invalid because the constitution of the state does not grant to the legislature the power to create a board of railroad commissioners, and there is no reference in the constitution to such a board. The constitution of the United States does not mention a federal commission, but congress under the commerce clause has created one the validity of which has been repeatedly upheld by the federal supreme court. Where the constitution has imposed no limitations upon the power of the legislature to enact laws its power is absolute and plenary. (Leavenworth County v. Miller, 7 Kan. 479, 12 Am. Rep. 425; Harding v. Funk, 8 Kan. 315; Wadsworth v. Union Pacific Ry. Co., 18 Colo. 600, 33 Pac. 515, 23 L. R. A. 812, 36 Am. St. Rep. 309.) In the case of Leavenworth Co. v. Miller, supra, Mr. Justice Valentine said:
“As the'people have by the constitution clothed the legislature with all the legislative power of the state, . . . the state legislature have all the legislative power that the people of the state have power to give them.” (Pages 501, 508.)
Unless, therefore, it can be said that the act in question is not lawful for some other sufficient reason, the fact that the lawmaking power has enacted it into law is conclusive upon the courts; and where it does not appear to violate any express or implied provision of the constitution the courts have no authority to declare it invalid because the constitution does not in express terms declare that the legislature shall have the power to enact it. The subjects upon which the legislature may enact laws are not enumerated in the constitution. The legislature may legislate upon any and all subjects not prohibited by express words or by necessary implication. The courts look to the constitution to determine, not what it authorizes, but what it forbids. (Township of Pine Grove v. Talcott, 86 U. S. 666, 676, 22 L. Ed. 227; State of Iowa v. Forkner, 94 Iowa, 1, 62 N. W. 772, 28 L. R. A. 206; Cooley’s Const. Lim., 7th ed., 128.)
Finally, a general objection is urged that the act places the entire control and regulation of railroads upon a political commission and deprives the owners of the roads of all control and regulation except to'finance the companies to which the roads belong. The extent to which the legislature shall extend its'control and regulation of common carriers rests in the discretion of the legislature alone, except that it must of course be reasonable and just and must not deprive the owners of a fair and reasonable return upon their investment. (The State v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662.) The private right of ownership of the railroads differs from that of ordinary property. It is a right which coexists with the power of the state to regulate the business on account of its public nature,
“A railroad is á public highway, and none the less so because constructed and maintained through the agency of a corporation deriving its existence and powers from the state. Such a corporation was created for public purposes. It performs a function of the state. Its authority to exercise the right of eminent domain and to charge tolls was given primarily for the benefit of the public. It is under governmental control, though such control must be exercised with due regard to the constitutional guaranties for the protection of its property.” (Smyth v. Ames, 169 U. S. 466, 544, 18 Sup. Ct. 418, 42 L. Ed. 819.)
(See, also, Louisville and Nash. R’d Co. v. Kentucky, 183 U. S. 503, 22 Sup. Ct. 95, 46 L. Ed. 298; Railroad Connection Case, 137 N. C. 1, 49 S. E. 191, 115 Am. St. Rep. 636; Atlantic Coast Line v. N. Car. Corp. Com’n, 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933.)
But the extent of the powers conferred on the board by the entire act is not a subject of judicial inquiry in this proceeding. The particular order which defendant refuses to obey is one which clearly falls within the natural and legitimate scope of legislative control and regulation. It is therefore unnecessary to consider every provision of the act, or to inquire whether in some of them the legislature has exceeded its authority. “Objections to the constitutional validity of statutes can be made only by those to whom the enactment applies and against whom attempts to enforce it are made.” (The State v. Smiley, 65 Kan. 240 [syllabus], 69 Pac. 199, 67 L. R. A. 903.)
Since none of.the reasons urged against the validity of the act is such as to render it obnoxious to the constitution, there remains the question whether the order of the board is reasonable and just. It is claimed by counsel for defendant that the order is upon its face unreasonable. It is as follows:
“Now, on this 7th day of December, 1905, after hearing the evidence and argument of counsel in the above-entitled action, the board finds that during the years 1902 and 1903, when the respondent railway company operated a passenger-train on said Madison branch of its line, the said passenger-train was operated at a loss, and there was no testimony introduced at this hearing that the train, if put on as asked for by the petitioners, could be operated at a profit to the respondent company: The board believes that the people along the line of the Madison branch of said company are entitled to better passenger-train service than they are now receiving,- and it has been represented to the board by officers of said company that the respondent is constructing motor-cars for establishment on its branch lines that can be operated at a much less expense than steam service.”
The contention urged at length is that the finding that in 1902 and 1903 the operation of a passenger-train was at a loss, and the further finding that no showing had been made to the board that if put on again in compliance with the request and complaint it could be operated with a profit, amount to a finding of fact that the order is unreasonable. But we agree with the finding of the referee that this does not necessarily follow as a conclusion from the foregoing findings. There is no finding that in 1902 and 1903 any revenues except those derived from passenger traffic were considered; and it needs no citation of authorities to show that even though the receipts of revenues from passenger traffic alone are insufficient, yet if the combined revenues of freight and passenger traffic justify the expense of separate passenger-trains the company cannot claim that it is unreasonable to require separate passenger-trains to be operated.
We find it difficult, if pot quite impossible, to coosider the question whether this order was or was not reasonable upon its face, without to some extent at least considering the character of the order itself. Suppose the order had required something extraordinary of defendant, as, for instance, two passenger-trains daily each way, or that vestibule cars or reclining-chair cars be put on and operated: it will hardly be denied that much less evidence would be required to overcome the prima facie showing or presumption that the order was a reasonable one than would be required in a case where the order only directs the railway company to do that which every one naturally expects would be done, in view of the manner in which railroads have usually been operated. Since railroads were first introduced there has been much variation, and there always will be, in the character, kind and sufficiency of the service rendered the public, depending upon the public requirements, the location, surroundings and traffic of each particular railroad. What would be a reasonable kind of- service, and might be reasonably insisted upon by the public, under one set of circumstances would not be reasonable under other and different circumstances. On the other hand, it is usual and customary wherever railroads are operated to provide one kind of service for passenger traffic and another for freight.
There is considerable force in the contention of the plaintiff that a railroad chartered as this was fails to comply with its charter obligations if it only operates mixed trains and compels passengers to submit to the danger and inconvenience of that kind of service. The charter of the Interstate Railroad Company, the obligations of which were assumed by defendant, authorized it to construct, maintain and operate a standard gage railway. Section 1322 of the General Statutes of 1901 provides:
“Every railway corporation in this state which now is or may hereafter be engaged in the transportation of passengers . . . shall furnish sufficient accommodation for the transportation of all such passengers, baggage, mails and express freight as shall within a reasonable time previous thereto be offered for transportation at the place of starting, at the junction of other roads, and at the several stopping-places.”
The question was before the supreme court of Illinois in The People v. St. L., A. & T. H. R. R. Co., 176 Ill. 512, 52 N. E. 292, 35 L. R. A. 656. In the opinion it was said:
“The main question in this case is whether a railroad company can be compelled by mandamus to run a passenger-train. The appellee operates about fifty miles of railroad running from DuQuoin easterly to Eldorado, which it leased in 1880 for 985 years from the Belleville and Eldorado Railroad Company; and it is conceded that it runs no passenger-train, that is, no train for passenger service exclusively, over this distance of fifty miles between DuQuoin and Eldorado. . . . but the only train which runs the whole length of the branch road between DuQuoin and Eldorado is what is called a mixed train, consisting of coal-, stock- and freight-cars, to which are attached a combination car and passenger-coach.” (Page 517.)
The Illinois statute is no broader in its terms than ours, nor any more definite in stating what the duty of the railroad company is in respect to the kind of passenger service it shall furnish. It reads as follows:
“Every railroad corporation in the state shall furnish, start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroads and at the junctions of other railroads, and at such stopping-places as may be established for receiving and discharging way passengers and freights.” (2 Starr. & Cur. Stat., 2d ed., p. 3277.)
The opinion last quoted from further reads:
“It cannot be said that the carriage of passengers in a car attached to a freight-train is a suitable and proper operation of a railroad, so far as the carriage of passengers is concerned. The transportation of passengers on a freight-train, or on a mixed train, is subordinate to the transportation of freight, a mere incident to the business of carrying freight; To furnish such cars as are necessary for the suitable and proper carriage of passengers involves the necessity of adopting that mode of carrying passengers which is best adapted to secure their safety and convenience. . . . We are not unmindful of the fact that, within certain limits, a discretion may be exercised as to what rolling-stock and equipment are necessary for the suitable and proper operation of a railroad carrying passengers. When the mode of carrying passengers is separate from the mode of carrying freight the legitimate exercise of discretion may begin. What we hold is that there cannot be suitable and proper operation of the railroad as a carrier of passengers when the car in which it carries its passengers is part of a freight-train, because freight-trains are inferior to passenger-trains, and travel in them is attended with less comfort, convenience and safety than travel in passenger-trains. The inferiority of a freight-train to a passenger-train as a mode of carrying passengers is so obvious that no man of. ordinary understanding would regard the use of a freight-train for the purpose of hauling a passenger-car as a suitable and proper operation of a railroad in the matter of transporting passenger's.” (Pages 524, 526.)
Section 1316 of the General Statutes of 1901 provides :
“Every railway corporation shall, in addition to the powers hereinbefore conferred, have power . . .
“Eighth. To regulate the time and manner in which the passengers and property shall be transported, and the compensation to be paid therefor; said compensation not to exceed the rates fixed by law.”
Defendant contends that, this being the law when its charter was granted, it became a part of the contract between the company and the state. It is conceded that the legislature might lawfully repeal this provision, but it is claimed that as the provision never has been expressly repealed, and as repeals by implication are not favored, the railway company still has the' power conferred by the act.
The question of repeals by implication is not involved. Railroads still possess the power to regulate the time and manner in which passengers shall be transported, as conferred upon them by section 1316, supra, but this never meant that a railroad company has the right to furnish flat-cars, for instance, for the transportation of passengers. The construction which defendant asks us to place upon section 1316 is contrary to the rule that a construction will not be given which yields the power of the legislature to enact legislation upon the same subject. A railroad charter is taken and held subject to the power of the state to regulate and control the grant in the interest of the public. (Louisville and Nash. R’D Co. v. Kentucky, 183 U. S. 503, 22 Sup. Ct. 95, 46 L. Ed. 298.) But a stronger reason is that it must be construed with section 1322 of the same act, which requires railroad companies to furnish sufficient accommodation for the transportation of passengers. Exactly the same defense was set up in the case of The People v. St. L., A. & T. H. R. R. Co., 176 Ill. 512, 52 N. E. 292, 35 L. R. A. 656, but the court declared that “the discretionary power of railroad companies in this.respect is subject always to the condition that there is no statutory provision limiting and restricting such power, and that its exercise is not opposed to the terms of the charter. . . : This discretion is also subject to the condition that it must be exercised in good faith and with a due regard to the necessities and convenience of the public” (p. 523), citing The People ex rel. v. C. & A. R. R. Co., 130 Ill. 175, 22 N. E. 857; M. & O. R. R. Co. v. The People, 132 Ill. 559, 24 N. E. 643, 22 Am. St. Rep. 556; 2 Morawetz, Corp., 2d ed., § 1119. (See, also, Railroad Connection Case, 137 N. C. 1, 49 S. E. 191, 115 Am. St. Rep. 636.)
We have quoted at some length from the opinion in the Illinois case. The issue was not so much a question of the reasonableness of requiring separate passenger-trains as it was a question of the absolute right of the state to demand such service under statutory and charter provisions similar to ours. The reasons upon which the opinion is based apply with much force to the question under consideration here. It is unnecessary to decide the question involved directly in that case; but we hold that the order of the board under all the circumstances is not upon its fáce an unreasonable one.
The burden of proof was, therefore, on the defendant to show that the order is unreasonable. The referee, among other findings of fact, made the following:
“(2) The Madison line, as built and operated, extends from Moni&fch Junction, Mo., to Madison, Greenwood county, Kansas, a distance of 108 miles, 89 miles of which are within the state of Kansas; but trains have been run from Butler, Mo., on account of there being no terminal facilities at Montieth Junction. The distance from Montieth Junction to Butler is about three miles. At Monish Junction the Madison line connects with the Joplin line of the Missouri Pacific, giving connections to Kansas City, St. Louis and other points north, south and east.”
“(10) The evidence does not furnish data, made up in the same way, of earnings and expenses for the same periods of time in the operation of this line. Consequently, only an approximation can be made in a com parison of earnings and expenses. Part of the time the Madison line was an accounting division by itself and correct accounts of receipts and expenditures ought to be available. They have been furnished for j>art of the expenses, but not for the earnings, and the’latter, especially as to freights, are approximated by prorating on a mileage basis. Such approximation is inaccurate, and in some instances at least has been made up for this case by a method which is different from that ordinarily used by the company. In the matter of freight earnings it has been and still is the rule of the defendant company, in making a division of freight earnings between any particular line and the other lines, to apportion such earnings on a mileage basis, but the line on which the shipment originates or where it terminates is given a minimum mileage of fifty miles where there is a long haul on other lines and a short haul — twelve or twenty miles for example — on the line that receives or delivers, the shipment. This rule was disregarded in making up the tables in evidence in this case, so that they do not correctly show what freight earnings should be credited to the Madison line during any particular period.
“In the matter of the earnings of passenger-trains, the moneys received from express companies, for the carriage of express matter is an approximation based upon business done in 1889 and 1890, which cannot be said to be any proper standard of comparison for this case.
“(11) The passenger earnings above stated are ascertained, not including the estimate of the express business as stated in the tenth finding, almost wholly from actual accounts of the passenger-train business on this line. • The freight earnings are simply estimated by taking the earnings of the Kansas & Colorado system and apportioning to the Madison line its pro rata on a mileage basis. The actual freight earnings are probably considerably greater than stated.
“(12) The earnings of the Kansas & Colorado Pacific Railway Company for the time named in the last finding were $10,673,778.71, and the expenses of operation and maintenance $9,043,107.44, showing net earnings of $1,630,671.27. For the yeár ending April 1, 1906, the freight earnings and expenses on the Kan-' sas & Colorado Pacific line were, as approximated on mileage basis:
Earnings .................. $6,146,283.82
Expenses .................. 5,162,679.96
Net earnings.............•.. $983,603.86
“ (13) The total freight earnings from freight traffic which originated or terminated on the Madison line, or which passed over some part of that line, amounted to the sum of $125,947.79 from May 1, 1905, to April 1, 1906. Of this there has been apportioned to the Madison line, for the purpose of showing in this case the freight earnings thereof, the sum of $22,369.39. This amount is obtained by giving to the Madison line t'he proportion of the earnings which the haul on that line bears to the entire haul on all the Missouri Pacific lines. Such apportionment does not, however, make a true and just division of earnings to which this line is entitled, and the evidence furnishes no data by which a proper division of earnings can be determined.”
“(19) All the estimates made in the foregoing findings of earnings and expenses include both state and interstate traffic. No method of separation is possible on the evidence.”
“ (23) During the time the defendant company maintained separate passenger service on the Madison line it had the contract to carry the government mails thereon, for which it was paid the sum of $5000 yearly. Under the mixed-train service the government does not use the railroad for mail service to points on this line.”
Among his conclusions of law are the following:
“ (3) The finding of the board that during the years .1902 and 1903 the passenger-train was operated at a loss does not shift the burden of proof in this case upon the state, when the further finding is made that the people along the line of the road are entitled to a better service than that afforded by only a mixed train, and the defendant company is ordered to provide separate passenger service. It will be presumed that the order was based upon a consideration of the general traffic and revenues of this line of road.
“ (4)’ Since the defendant has combined this line of road, for operation, management and accounting, with the Kansas & Colorado Pacific Railway Company lines, so as practically to constitute the twelve lines embraced by that company a single unit for purposes of operation, and no definite ascertainment of the actual earnings of the Madison line can be made, a separate passenger service should be maintained if the net earnings of the Kansas & Colorado Pacific Railway justify such service.
“(5) The Madison line, if dependent upon its own traffic and not used as a feeder to other Missouri Pacific lines, would not pay the cost of maintaining separate passenger- and freight-trains, and an order for such service would not be reasonable. But considered as a part of the Missouri Pacific system, I think a requirement of such service would not be unreasonable.
“(6) The burden of proof being upon the defendant, it has failed to show that the traffic — passenger an,d freight — originating .or terminating on the Madison line does not contribute to the earnings of the other lines of the system operated by defendant company in sufficient amount to entitle the people along the line to a better service, and has failed to show that the order, for such service is not a reasonable requirement.
“(7) The Madison line is interstate in construction, connections and operation, the running of trains from Madison to Monteith Junction or Butler being necessary in order to give the operating company any reasonable opportunity to meet expenses of such operation. It would be unreasonable to require a separate passenger-train to be operated on this line only within this state.”
The referee found that defendant, upon whom xested the burden of proof, had failed to produce evidence which ought to have been available — evidence which from its nature defendant must have had in its possession or control; that portions of the estimates were approximations which he finds “inaccurate and in some instances at least . . . made up for this case by a method which is different from that ordinarily used by the company”; that the rule in force by the company for ascertaining the true proportion of freight earnings between any particular line and other lines was disregarded in making up the tables in evidence, so that they do not correctly show what freight earnings should be credited to the Madison line during any particular period; that the figures presented to show the express earnings were “based upon business done in 1889 and 1890”; and further that the amount of freight earnings apportioned to the Madison line is obtained by a method of accounting which does not' “make a true and just division of earnings to which this line is entitled, and the evidence furnishes no data by which a proper division of earnings can be determined.”
In the face of these findings we are unable to concur in some of the conclusions of law reached by the referee. The fifth conclusion of law, to the effect that the Madison line would not pay the cost of separate passenger-trains, is not supported by the facts in evidence as established by the previous findings. It appears to rest solely upon the theory that as the evidence showed that the road is operated as a continuous line from Monteith Junction, and is interstate in its connections, and because no data was furnished to; show its earnings within the state, therefore it follows that its revenues can only be determined by considering its proportion as a part of the Missouri Pacific system. No matter how much evidence was introduced showing that this line is operated as a continuous line from Monteith Junction in Missouri to the end of the road in Kansas, and is interstate in its connections, still the matter is not thereby necessarily concluded. The order might still be reasonable, dependent upon its earnings derived from that part of the line wholly within the state of Kansas. Findings had already been made showing that this road extends for eighty-nine miles into the state of Kansas and twelve miles east into Missouri; that in Kansas it crosses four counties, the least populous of which contains over 13,000 people; that it is the only railroad at Mound City, the county-seat of Linn county; that it intersects in Kansas eight other roads, six of which are no part of the Missouri Pacific system. Some of its traffic is, of course, interstate, but some, how much does not appear, must necessarily be domestic, arising and terminating wholly within the state. If from either of the six roads it intersects in which the Missouri Pacific system has no interest freight arising wholly in Kansas should be received by it to be hauled to Mound City or to any other points in Kansas, it would be entitled to receive its proportionate share of the charges. It is inconceivable that its earnings can only be determined by treating it as a part of the Missouri Pacific system.
Defendant had the opportunity given it to prove, and may have been able to prove, that its earnings from business arising wholly within the state are much less than the expenses properly chargeable to that portion of its. line, but instead of doing so it failed; and the only inference that can be drawn from the referee’s findings of fact is that it made no honest effort to do this, but, on the contrary, introduced approximate estimates prepared for the occasion, contrary to the ordinary rules for proportioning the earnings and expenses between other roads and a line of road operated as this was. The effect of this class of evidence was to deprive this branch line of the credit to which it is entitled by the findings of the referee, and the utmost that can be said for the evidence as a whole is that it left the controversy in doubt and conj ecture. The prima facie effect of an order of this kind should not be overcome by evidence so unsatisfactory, as that furnished from estimates of this character and from figures showing the earnings from express charges in 1889 and 1890, with no attempt to procure more recent data or to explain the reasons why it was not available, and with no attempt to show the earnings or expenses of the road properly chargeable to that portion lying within the state.
There is, by the way, in all the voluminous briefs of defendant no suggestion or intimation that the evidence produced overcame the prima facie case. Defendant relies upon three propositions: the unconstitutionality of the law, the unreasonableness of the order on its face, and the claim that, the Madison line being interstate in its connections and operation, any order of this character is an unjust interference with interstate commerce.
This is an original proceeding in mandamus. We are not bound by the referee’s conclusions, either of fact or of law, as would be the case were the facts found by another court or a jury or referee of another court. We conclude, as a matter of law, from the evidence and findings of fact of the referee, that the prima facie effect of the order is not overcome by the evidence offered by defendant. The 'nature and character of the order itself are such as to require, in our opinion, some substantial showing upon the part of defendant to rebut the presumption that it is reasonable and just. • To require of defendant that separate passenger-trains should be operated over that portion of its line within the state is, under all the circumstances of the case, so reasonable that it requires something more than mere inferences and doubts to prevail against the theory that it is just and reasonable. Nor do we think that defendant has produced or offered to produce the evidence which must have been within its power for the purpose of showing either the earnings or expenses from the operation of that portion of its line within the state.
Moreover, the fact that an order requiring a railroad company to furnish additional facilities for the accommodation of the public will occasion expense to the company and even loss of profits does not necessarily make the order unreasonable. (Atlantic Coast Line v. N. Car. Corp. Com’n, 206 U. S. 1, 27 Sup. Ct. 585, 51 L. Ed. 933.) As was said by the court in Wisconsin &c. R’D Co. v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194:
“Although to carry out the judgment may require the exercise by the plaintiff in error of the power of eminent domain, and will also result in some, comparatively speaking, small expense, yet neither fact furnishes an answer to the application of defendant in error.” (Page 302.)
In Atlantic Coast Line v. N. Car. Corp. Com’n, supra, the order of the railroad commissioners of North Carolina required the company to change its schedule for the operation of its trains so as to furnish connections with through trains upon another road. In the opinion, after stating that a distinction necessarily exists between an order requiring additional facilities for the accommodation of the public and an order fixing rates, Mr. Justice White used this language:
“This is' so because, as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result. ... Of course, the fact that the furnishing of a necessary facility ordered may occasion an incidental pecuniary loss is an important criteria to be taken into view in determining the reasonableness of the order, but it is not the only one. As the duty to furnish necessary facilities is coterminous with the powers of the corporation, the obligation^ to discharge that duty must be considered in connection with the nature and productiveness of the corporate business as a whole, the character of the services required, and the public need for its performance.” (Page 26.)
The act creating the board of railroad commissioners does not, in our opinion, affect, nor was it designed to affect, interstate commerce. The order of the board requiring defendant to operate separate passenger service within the state is in the exercise of its police power to enforce local regulations necessary for the convenience, safety and comfort of the public, and is not an attempt to regulate interstate commerce, nor does it directly cast a burden upon such commerce, Defendant is at liberty to operate any kind of service elsewhere upon its line that it may deem advisable or suitable to its purposes. (The State v. Telegraph Co., 75 Kan. 609, 90 Pac. 299.) In the latter case Mr. Justice Burch, speaking for the court, said:
“It has been declared in a host of decisions that, in order to affect interstate commerce and government business in the legal sense of the expression, state regulations must impinge directly upon them. Consequences which áre indirect, remote and incidental only are not invalidating.” ' (Page 650.)
In Louisville &c. Railway Co. v. Mississippi, 133 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784, it was held that a statute of Mississippi requiring a railroad to furnish separate compartments for white and black passengers, when applied to that portion of an interstate road within the state, is not placing a burden upon interstate commerce, although it was conceded that it required the railroad company to go to the expense of providing separate accommodations for use within the state which, when the same road crossed into another state, were not required. In the opinion Mr. Justice Brewer used the following language:
“So far as the first section is concerned (and it is with that alone we have to do), its provisions are fully complied with when to trains within the state is attached a separate car for colored passengers. This may cause an extra expense to the railroad company; but not more so than state statutes requiring certain accommodations at depots, compelling trains to stop at crossings of other railroads, and a multitude of other matters confessedly within the power of the state.” (Page 991.)
In Louisville & Nashville R’D v. Kentucky, 161 U. S. 677, 16 Sup. Ct. 714, 40 L. Ed. 849, it was said :
“It has never been supposed that the dominant power of congress over interstate commerce took from the states the power of legislation with respect to the instruments of such commerce, so far as the legislation was within its ordinary police powers. Nearly all the railways in the country have been constructed under state authority, and it cannot be supposed that they intended to abandon their power over them as soon as they were finished. The power to construct thern involves necessarily the power to impose such regulations upon their operation as a sound regard for the interests of the public may seem to render desirable.” (Page 702.)
And in Louisville and Nash. R’D Co. v. Kentucky, 183 U. S. 503, 22 Sup. Ct. 95, 46 L. Ed. 298, the following language was used:
“It may be that the enforcement of the state regulation forbidding discrimination in rates in the case of articles of a like kind carried for different distances over the same line may somewhat affect commerce generally; but we have frequently held that such a result is too remote and indirect to be regarded as an interference with interstate commerce; that the interference with the commercial power of the general government to be unlawful must be direct, and not the merely incidental effect of enforcing the police powers of a state. New York, Lake Erie and Western Railroad v. Pennsylvania, 158 U. S. 431, 439, 15 Sup. Ct. 896, 39 L. Ed. 1043; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 17 Sup. Ct. 532, 41 L. Ed. 953.” (Page 518.)
The enforcement of the order in this case is a mere incident to the police powers of the state. If it touches interstate commerce it is. only in an incidental way, and no more than would an order compelling the railroad to fence its tracks, or regulate the speed of its trains, or conform to numerous other regulations which every one concedes the state may require without placing restrictions or burdens upon interstate commerce. It is said that the order cannot be complied with without forcing defendant to establish terminals at the state line. It is a matter of common observation that no elaborate system of terminals, roundhouses or shops is necessary to enable defendant to comply with an order of this character. It was expressly decided in Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819, that “the state cannot justify unreasonably low rates for domestic transportation, considered alone, upon the ground that the carrier is. earning large profits on its interstate business, over which; so far as rates are concerned, the state has no control; nor can the carrier justify unreasonably high rates on- domestic business upon the ground that it will be able only in that way to meet losses on its interstate business.” (Syllabus.) The doctrine thus declared is a two-edged sword. The-carrier in order to meet losses on its interstate business-cannot deprive the people along the line of its road within the state of reasonable facilities for travel; cannot oblige them, for instance, to travel upon freight-trains or flat-cars, or to be satisfied with what is unreasonably inadequate service.
One other matter deserves mention. The order is in the alternative, and requires defendant to adopt, motor-car service for passengers on its line, if that be found practicable, or to establish and maintain separate passenger-train service. It is objected that defendant cannot, without violating its charter, comply with that part of the order requiring it to operate' motor-cars, and that the board of railroad commissioners have no jurisdiction over any kind of a railroad except those operated by steam.
The part of the order requiring the establishment of motor-car service is a favor to defendant, intended as-a matter of grace. The order requires separate passenger service, and gives defendant the right to put on motor-cars if it' finds them practicable. The suggestion of the use of motor-cars came from defendant in the first place; and the answer sets up that defendant has been experimenting with that kind of cars, and that, although the practical utility of motor-cars'is problematical, it is defendant’s design to operate' them if it be found that they can be successfully and economically operated. The board possessed the power to order separate passenger-trains established, and we need not stop to inquire into its power to authorize motor-cars in lieu thereof. If that part of the order cannot be complied with by defendant because motorcars cannot be successfully and economically operated, or if the charter of defendant forbids it to change its-motive power and operate such cars, none of these-things can relieve it of the duty of obeying the other- part of the order. If the board had no power to order defendant to operate motor-cars, so much.of the order is merely surplusage. The rest is valid.
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The opinion of the court was delivered by
Porter, J.:
In a divorce proceeding, where both parties are found to be in the wrong and neither is entitled to a divorce, has the court power to award the custody of a minor child to some suitable person who resides outside of the judicial district where the suit is brought and who is a stranger to the suit?
The evidence in this case furnishes ample support for the finding of the court that neither party is entitled to a divorce, and that the plaintiff, who is the mother of the child, is not a fit and proper person to have its care and custody. The court awarded the custody of the child to Mrs. Margaret A. Collins, who is the mother of the defendant and resides on a farm near Belleville, in Republic, county. Since the separation of the husband and wife the child has been with its mother, who has been living with her parents in the city of Wichita. Plaintiff has no other home, and the court concluded from the evidence that the surroundings and influences were not suitable for the bringing up of the child, who is a little girl of seven years. Defendant, since the separation, has been making his home with his mother. The court found, and the evidence supports the finding, that the grandmother is willing and able to provide a suitable home for the little girl, where she will receive proper care and training. The decree provides that the mother may visit the child as often as twice in each month, but as she would be obliged to travel nearly 200 miles to reach Republic county it is urged that the decree deprives her of a reasonable opportunity to see and visit the child. The mother, who was plaintiff in the divorce proceedings, brings the cause here for review.
Section 5136 of the General Statutes of 1901 provides:
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children.”
It is insisted that the true meaning of this provision is that the court must give the custody of the children to one or the other of the parties to the suit. But there is no ambiguity in the statute; it is clear, and leaves no room for interpretation. In McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A., n. s., 726, it was held that this court was powerless to read into the statute of descents and distributions an exception in order to prevent a man who had murdered his wife from inheriting her estate. The legislature might have provided that the custody of children in divorce cases shall be awarded to one of the parties, but it failed to do this, and we are not at liberty to read such a provision into the statute. Moreover, it is plain that to do so would often defeat the purpose of the statute. It not infrequently happens in cases of this kind that the welfare and best interests of a child require that it be given into the custody of persons who reside beyond the jurisdiction of the court, and who may even reside in another state. This statute is broad enough in its terms to warrant the court in making, under proper restrictions, all necessary orders in such a case. If conditions afterward change, the courts of the state where the child is located have ample power to make all necessary orders and decrees for the child’s welfare. In Brown v. Brown, 71 Kan. 868, 81 Pac. 199, the exact question presented here was not involved, but it was there said by way of illustration :
“In proceedings of this kind the rights Of either parent to the custody and control of the children have small consideration at the hands of the courts, the welfare of the children being the prime and almost the only consideration. When necessary to promote the welfare of the children a court of equity will take their custody from either or both parents and award it to another.” (Pagé 869.)
If the construction contended for were correct (that the court is without authority to place the child outside the county or judicial district) it would often lead to absurd results. The child might have relatives with whom it had formerly lived and who are willing and better able to provide a suitable home for it than others could possibly do. Suppose these relatives lived across the county line, outside the district where the.suit for divorce was tried: must the court, in such a case, dis regard the best interests of the child and award its custody to a stranger? Suppose, also, after the order is made, that the person to whom the custody is given removes his residence and takes the child beyond the judicial district: would the law require him to surrender his charge, and must the court change the custody? If so, the same course would be required if the custodian removed across the road into another judicial district. The boundaries of judicial districts are subject to change whenever the legislature is in session ; but the welfare of a child, which is the consideration upon which the statute proceeds and should always govern the courts in dealing with the subject, is something more sacred than even the lines which mark the boundaries of states. Where the trial court has kept this consideration in view, and determined what the child’s best interests are and acted accordingly, its orders will not be disturbed except upon a clear showing that the court’s discretion has been abused. In the present case no abuse of discretion appears.
The hardship of requiring the mother to travel a long distance to visit the child is no greater than frequently results where the custody of the child is awarded to one of the parents, who may reside at á considerable distance from the other parent, and, as frequently happens, may reside in another state. The suggestion has been made by defendant that the acceptance of the child by Mrs. Collins will make her subject to the orders of the district court as to the child, and that the court will have the power at any time to cite her to appear in court with the child. But it is unnecessary to decide what the jurisdiction of the court in the future may or may not be. It acted within its authority in making the order complained of, and, as observed at the outset, there was sufficient evidence to warrant the judgment refusing both parties a divorce.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
On the trial in the district court the defendant contended that the plaintiffs were not the owners of the note and mortgage under which the goods had been taken from Levison, they having been assigned to a trustee for the benefit of creditors, and therefore the plaintiffs had no authority to maintain the action. This was the principal and controlling question litigated in the case. To establish this contention the defendant placed in evidence two deeds of trust, each being a conveyance to the same trustee, conferring power upon him to sell the property conveyed and out of the proceeds make payment of certain debts therein specified, when due, if not paid by the grantors. The description of the property conveyed reads:
“All of the stock of merchandise consisting of piece goods, clothing, trimmings, linings, etc.; also all store and office fixtures and furniture, including safe; also-all tools and implements, patterns and machinery used in the manufacture of clothing now located in the business house known as #425 North Seventh street in the city of St. Louis, Mo., and now occupied by the said B. Prinz & Co. in the conduct of a general wholesale clothing business; also all book-accounts payable to-said firm of B. Prinz & Co. as the same appear upon the books of said firm now in said building aforesaid.”
The plaintiffs duly objected and excepted to the introduction of these deeds in evidence. They were executed October 10, 1896, almost ten months after the execution of the note and mortgage, and more than nine months after the goods had been taken thereunder. It is clear that this note and mortgage are not covered by the description of the property given in the deed.
If by the words “also all book-accounts payable to said firm of B. Prinz & Co. as the same appear upon the books of said firm now in said building aforesaid” the parties intended to include this note and mortgage in Caney, Kan., such fact should be clearly shown. We are unable to find any evidence in the record which tends -to sustain such conclusion.
The jury could not have returned a general verdict for the defendant without finding that the plaintiffs did not own the note and mortgage under which the goods were taken, and upon this point the verdict is wholly unsupported by the evidence. This was an error for which a new trial should have been granted. The judgment of the district court is reversed, with direction to allow the plaintiffs’ motion for a new trial. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action brought by defendant in error to recover damages on account of injuries sustained by him while engaged as an employee of the plaintiff in error in the capacity of a. hostler helper at Newton.
When the action was called for trial the defendant objected to the introduction of any evidence under the petition, for the reason that it did not state facts sufficient to constitute a cause of action. This objection was sustained, upon the ground that the service of notice upon the defendant as required by chapter 393 of the Laws of 1903 was not alleged. The plaintiff amended his petition, for the purpose of showing this notice, by attaching thereto a report made by him to the company soon after his injury, which report was expressly made a part of the pleading and reads:
“ (1) State when and where you were injured. A ns. December 28, 1904. Newton, Kan.
“(2) State what, in your judgment, was the cause of your injury and what you were doing at the time it occurred. State fully. A. I got down out of engine I was taking out to throw switch, and another engine, I think it was 595, backed over me.
“ (3) In your opinion was there any defect in tracks, cars, engine, tools, machinery or other appliances or place where you were working, or any carelessness on the part of the company or any one in the company’s employ tending to cause the accident? If so, what or whom, and give your reasons. A. No defects that I know of. In my opinion the man that was handling the engine that backed over me was careless for the reason he did n’t see me. The weather was cloudy and foggy, and I had a cap pulled down over my ears.
“(4) Could you, by more care on your part, have prevented your injury? If so, how? A. I was paying no attention to the engine that backed over me, as I did not hear this engine at all, but if I had looked I could have seen this engine and this accident would not have happened.
“(5) Have you ever sustained an injury before? If so, when and where, and what was the cause and nature of such injury? A. No.
“ (6) How long have you been in the company’s employ? A. Nine months.
“ (7) State all other particulars that you may know relative to the accident. A. .1 was paying no attention to the engine that backed over me, as I did not hear this engine at all. If I had looked I could have seen this engine and this accident would not have happened, but I did not look, for I was looking at the engine I had got off from.
“(8) If married, of whom does your family consist?' A. Single.
“The above is a true statement, to the best of my knowledge and belief.”
This report was sworn to January 19, 1906. The defendant then renewed.its objection, upon the ground that the petition as amended showed that the plaintiff was guilty of contributory negligence which would prevent a recovery. The court intimated that the objection would be sustained, whereupon the plaintiff obtained leave to amend his petition again by adding thereto, as explanatory. of that part of the .report claimed to show contributory negligence, a statement which reads:
“That such answers are incomplete and do not state fully the manner in which said plaintiff sustained his injuries or what he was doing at such time; that at the time he received such injuries he could not have looked to see such engine, for the reason that he was occupied about his business as a hostler helper and did not have time to look to see whether such engine was coming up the track; and for the further reason that he did not at that time know that he was as close to the track known as the main track, upon which the engine ran and caused his injuries by running over him, as hereinbefore stated, and that consequently he did not at the time realize the necessity of looking.”
The defendant moved to strike this amendment out, on the grounds (1) that it is redundant, irrelevant and immaterial, and (2) that it attempts to contradict and vary the terms of “Exhibit A” attached to the petition.
This motion was denied, and the defendant then demurred to the petition as amended, on the grounds (1) that the causes of action were improperly joined and (2) that it did not state facts sufficient to constitute a caus,e of action against the defendant. The demurrer was overruled, and the defendant then filed an answer, consisting of (1) a general denial and (2) contributory negligence of plaintiff. The reply was in substance a general denial. Upon these issues the case was tried to a jury. The plaintiff, as a part of his evidence, introduced “Exhibit A,” attached to his petition. At the close of plaintiff’s evidence a demurrer thereto was filed by the defendant, which was overruled.
Upon the trial the court, among its instructions to the jury, gave one which reads:
“(18) The jury are instructed that the plaintiff, Ira Schroll, having pleaded the facts set forth in ‘Exhibit A’ attached to his petition in this case and relied on it as a notice under the statute, is bound by all the statements and answers contained therein .and they will be taken by you as true.”
No objection was made or exception taken to this instruction. The jury returned a verdict for the plaintiff for $5000.
It is insisted that the sworn statement made by the plaintiff and attached to his petition conclusively shows contributory negligence on his part at the time he was injured, and that the foregoing instruction of the court made it the duty of the jury to return a verdict for the defendant. This contention seems reasonable and in harmony with the law. It is a familiar and well-settled rule that a party is bound by the statements of his pleading. (Stone v. Young, 4 Kan. 17; Bell v. Wright, 31 Kan. 236, 1 Pac. 595; Losch v. Pickett, 36 Kan. 216, 12 Pac. 822; Frazier v. Baptist Church, 60 Kan. 404, 56 Pac. 752.) When the plaintiff discovered the defect in his petition he should have amended it without incorporating therein facts materially and vitally antagonistic to his right to recover.
When “Exhibit A” was adopted as a part of the petition the contributory negligence of the plaintiff, apparent upon the face of th*e pleading, was sufficient to bar a recovery. The jury were instructed by the court to accept the statements in “Exhibit A” as true. This instruction became the law of the case, and it was the duty of the jury to comply therewith. Instead of obeying the direction of the court, however, the jury disregarded it and returned a verdict in violation thereof. This was error for which the court should have set aside the verdict. (Howell v. Pugh, 25 Kan. 96; Irwin v. Thompson, 27 Kan. 643; Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797; U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312.) In the case of Irwin v. Thompson, supra, Mr. Justice Brewer said:
“Where a case is tried by a jury and the court gives them instructions, such instructions, if unquestioned and not excepted to, become the law of the case; and if the jury in their verdict plainly disregard such instructions, it is the duty of the trial court in the first instance, and of this court on review, to set aside such verdict and grant a new trial.” (Syllabus.)
The syllabus in the case of U. P. Rly. Co. v. Hutchinson, supra, reads:
“The instructions of the trial court to the jury are the law of the case, for the jury to obey and follow. If instructions of the trial court are wholly disregarded by the jury upon a material question of law, their verdict in defiance thereof ought not to be the foundation for any judgment.”
In the opinion of that case Mr. Chief Justice Horton said:
“This instruction seems to have been satisfactory to all parties. There is no exception to it in the record. Whether the instruction is correct or not is immaterial. It was the law of the case, by which the jury should have been guided. ... It was the duty of the jury to obey implicitly the instructions of the trial court, and having found a state of facts by their answers to the interrogatories constituting contributory negligence on the part of the injured party, and releasing the railway company from liability, their verdict should have followed their findings of fact.” (Page 52.)
These cases are controlling here, and require a reversal of the judgment in the district court. The case is remanded to the district court, with instructions to set aside and vacate the verdict and judgment in behalf of the plaintiff and enter .judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
Briefs have been filed and oral arguments made on behalf of the petitioner and by the attorney-general and Mr. Mikesell representing the state, and also by the county attorney of Wilson county on behalf of the board of county commissioners. The situation presented is anomalous, for the court has practically been importuned by those representing both sides of the controversy to find some way to order the petitioner’s discharge. The board of county commissioners apparently desires to be relieved of the responsibility of the situation and to obtain a decision which will in some manner have the effect to release the county from liability to Mr. Mikesell.
It is contended by the petitioner that section 2476 of the Géneral Statutes of 1901 is unconstitutional. This act authorizes the taxing of $25 as attorney’s fees' for each count upon which a conviction is had in this class of cases, and declares that the county shall be liable therefor to the attorney-general or his assistant where the same is not paid by the convicted person within one month after his release from jail. In this contention he is heartily joined by the attorney for the board of county commissioners. The petitioner is held for the payment of these costs, and manifestly can in this proceeding raise the question of whether they can be lawfully taxed against him; but whether the county can be compelled to pay them to Mr. Mike-sell after the petitioner’s release, if he should be released, is not involved here and is no concern of the petitioner. The board of county commissioners is not a party to this proceeding, nor is Mr. Mikesell.
The objection to the validity of the section is that the title of the act is too narrow to include the taxing of such costs. The section is an amendment to the prohibitory liquor law of 1885, and is section 5 of chapter 165 of the Laws of 1887 (Gen. Stat. 1901, § 2476). The title to this act was assailed upon practically the same grounds in The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, and upheld. In that case it was said: “A provision intended to insure the prosecution of offenses against an act is as plainly adapted to the enforcement of its purpose as is one prescribing a penalty.” (Page 177.) We must therefore hold against the petitioner’s claim that these costs are not lawfully taxed against him.
The. principal contention of the petitioner is that the refusal of the board to order his release unless he shall pay the costs, when his inability ever to pay has been established and conceded by the board, is in violation of section 9 of the bill of rights of the constitution, which provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” (Gen. Stat. 1901, § 91.)
It was decided in In re Boyd, Petitioner, 34 Kan. 570, 9 Pac. 240, that imprisonment for the non-payment of costs is no part of the punishment, and in the same case it was held that imprisonment under such circumstances is not imprisonment for debt. It is urged that the present case differs from that because the board has found that the petitioner is unable to pay the costs and has announced the intention of continuing the refusal to' release him although it will have the effect to keep him confined for the remainder of his life, and the case of Ex parte Tuicher, 69 Iowa, 393, 28 N. W. 655, is relied upon. In that case the supreme court of Iowa said:
“It is true that the imprisonment is but a mode of enforcing the payment of the fine and costs; but if the convicted person is unable to pay, then the imprisonment becomes punishment, and possibly within the prohibition of section 17 of article 1 of the constitution, which provides that cruel and unusual punishment shall not be inflicted.” (Page 396.)
Reliance is also placed upon some expressions in the opinion in the case of The State v. Looker, 54 Kan. 227, 38 Pac. 288, where the same question was raised, in respect, however, to the validity of the judgment and sentence. It was argued that the sentence was indefinite ; that if a person convicted is unable to pay the fine and costs he might be imprisoned during his natural life, and if there is no authority for his discharge there is no limitation of the duration of his imprisonment. It was insisted that if an indefinite sentence may not be imposed nor excessive nor unusual punishment inflicted, a law which has the effect to impose such penalty should be held to be void. The court in the opinion declared that chapter 199 of the Laws of 1889 was void, because, in attempting to amend chapter 117 of the. Laws of 1871, providing for the discharge of prisoners unable to pay the costs, the legislature in the title to the act provided for amending chapter 147 in place of 117. In the opinion it was said by Mr. Justice Johnston: “A plausible argument.to sustain this view was made in behalf of the defendant, and there would be great force' in his contention if chapter 199 of the Laws of 1889 could be treated as a valid law.” (Page 229.) As the case was decided expressly upon the proposition that the law was void, the expressions which are relied upon are obiter.
In The State v. White, 44 Kan. 514, 25 Pac. 33, the section of the bill of rights here involved was under consideration, and it was said by Mr. Justice Valentine that the provision “probably, however, relates to the kind of punishment to be inflicted, and not to its duration.” (Page 520.)
But it is unnecessary to decide whether imprisonment for the non-payment of costs, where the prisoner is unable to pay them, might not under some circumstances amount to cruel and unusual punishment, for, notwithstanding the threats of the board — if threats they can be termed — to keep the petitioner confined for the remainder of his life, we would have no right to assume that the present or some future board will not deal justly in the matter and order him released when satisfied of his inability to pay the costs. Some criticism of the present board has been indulged in by counsel for the state, and the members have been charged with a disregard of the claims of humanity and justice in their persistence in refusing to order the petitioner released.' The matter has been before the board a number of times, and numerous and various resolutions have been adopted to bring about an adjustment of the costs so that the same will not fall upon the county; but the members have placed themselves on record several times as recognizirig that justice and humanity require his release. . The difficulty appears to be that the board has never been able to see over and beyond the $1300. Doubtless it would not hesitate to order the expenditure of as large an amount to build'a bridge over a creek and save a few taxpayers some slight inconvenience in travel, but the expenditure of $1300 of the county’s money to uphold and enforce the criminal laws of the county seems to it to be money thrown away. In this era of law enforcement most people would regard the sum as insignificant when added to the taxes of a large and populous county and compared to the advantage which must accrue to the community in vindicating law and order and suppressing lawlessness.
The certificate of the honorable judge who has so long presided over the district court is a severe condemnation of the jail and its conditions and surroundings. Jails, are never desirable places in which to remain, but the dictates of humanity demand that some consideration should be given to the comfort, and especially to the health, of those compelled to occupy them. As communities become more enlightened and prosperous the tendency is in favor of bettering the condition of all classes of unfortunate persons who are-committed to the care of the public. It must be obvious, however, that we cannot order the petitioner released on account of the condition of the jail. To do so would require us on similar applications to order the release of all prisoners confined there.
The authority of the board to discharge the petitioner is conferred by section 5698 of the General Statutes of 1901, which reads as follows:
“Any person imprisoned for failure to pay any fine or costs may be discharged from imprisonment by the board of commissioners of the county where conviction took place, on satisfactory propf to them that said person is unable to pay the same.”
The act gives the board power in its discretion to discharge him, but it is not mandatory. An action of mandamus would not lie to compel the board to act.
Having decided that the costs taxed against the petitioner are authorized by law, that under the circumstances it cannot be said that his imprisonment for failure to pay.them amounts to a violation of the bill of rights and is cruel or unusual punishment, and that the condition of the county jail is not a ground upon which we may order his release, our responsibility ends. The board of county commissioners alone has authority to discharge the petitioner. The law and the official oaths of the members of the board impose duties and responsibilities upon them which can neither be avoided at will nor shared with others. The writ is denied. ' | [
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The opinion of the court was delivered by
Graves, J.:
The only controversy between the parties arises upon the proper interpretation to be given to subdivision six of the lease, which reads: “To pipe gas to the house for domestic purposes as soon as well is completed.”
The plaintiff insists that under this clause gas is to be delivered at his home free, and therefore the account presented by the gas company does not constitute any claim against him. On the other hand, the gas company claims that the word “free” is not used in this clause, and should not be arbitrarily jread into it. The trial court decided that, taking the whole instrument, the situation of the parties and the subject-matter of the contract together, it was apparent that the parties intended that gas should be furnished without charge.
It will be observed that this is one of the agreements on the part of the lessee which constitutes the consideration for the lease. This clause expressly limits the amount to be furnished to “domestic purposes.” Why this limitation’if all the gas furnished was to be paid for at its market value? No price is named in this clause or anywhere in the- lease for the gas furnished. This omission seems at least unusual, if it was intended that the gas should be paid for. The omission of the gas company to collect or demand payment for gas used prior to August, 1904, is also unusual, if payment therefor was expected.
We are unable to say that the district court erred in its interpretation of this clause.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit by Pate S. Jones to enjoin Wit Adair from interfering with the use . and enjoyment of a sewer that connects with a hotel which plaintiff claims to own. He alleged and offered proof to show that in 1890 Stephen F. Jones, who was an owner of a hotel in Strong City, desired to construct a sewer from the hotel to the Cottonwood river. To do so it was necessary to pass through the streets of Strong City and across the right of way of the Atchison, Topeka & Santa Fe Railway Company. Wit Adair, who was then an employee and agent of Stephen F. Jones, procured the consent of the city to lay a sewer along the streets, and contracted with the railway company for permission to lay it under the bracks of the railroad. Although these things were done for Stephen F. Jones, and in order that he might build his sewer, the privileges were taken and the contracts made in the name of Adair instead of that of his employer. Stephen F. Jones furnished the money and built the sewer, and it was thereafter used in connection with the hotel.
In 1903 Stephen F. Jones conveyed the hotel and its appurtenances to the plaintiff, Pate S. Jones, and some time later Adair, claiming to own the sewer, threatened to disconnect it from the hotel; and hence the present suit was brought. When plaintiff’s evidence was introduced the trial court sustained a demurrer to it, dissolved the temporary restraining order, and denied the permanent injunction sought by plaintiff.
The testimony fairly tended to sustain the plaintiff’s claim of ownership in the sewer and a right to its use, and hence the ruling of the court cannot be upheld. It was shown without contradiction that the sewer, which was an appurtenance of the hotel, was built for the owner, and that the cost of construction was paid by him. It was done, it is true, under the direction of Adair, but the evidence is that in doing so he was acting as the agent of the hotel proprietor. He could not, while acting for his principal and- investing his principal’s money in an improvement of the hotel, very well acquire ownership of it. The mere fact that the contract made and the privilege obtained in behalf of his principal were in his own name did not devest the principal of his property, nor give the agent an ownership which he could assert against the principal or one holding under him. (Butler v. Kaulback, 8 Kan. 668.)
So far as the agent is concerned the contracts, although made in his own name, are in law the contracts of his principal, and it does not appear that the railway company or the city, with whom the contracts were made, are disputing the rights of the plaintiff under them. The agent may have been entitled to be reimbursed for expenses incurred in the transactions, but not to the ownership of the property acquired for his principal and paid for by his principal’s money. The trial court may have discredited the testimony of the plaintiff, but the testimony offered in his behalf could not be disbelieved and disregarded on a demurrer to the evidence. On that test every part of the testimony favorable to the plaintiff is deemed to be true, and every conclusion which it tends to prove is deemed to be admitted. (Christie v. Barnes, 33 Kan. 317, 6 Pac. 599; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466.)
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
This was a suit by Council Grove township and Four Mile township, in Morris. county, to restrain Martha J. Bowman and S. A. Bowman from obstructing a public highway on the line between these townships. A temporary injunction ’was allowed at the commencement of the suit, but on the trial a demurrer to the evidence was sustained, the temporary injunction dissolved,, and judgment for costs entered against the plaintiffs. The plaintiff townships allege error in these rulings.
The petition alleged the existence of the road, and that the defendants threatened and were about to obstruct it by erecting a barbed-wire fence along or near the center thereof. The evidence tended to prove the following facts: The road was laid out in 1879, and was immediately opened and has ever since been used as a public highway. Culverts have been built, and the road graded and substantially improved. Soon after it was established, and more than fifteen years before the suit was commenced, the road was fenced and im provements were made thereon. The route was never surveyed, but the other proceedings to establish a road appear to have been taken. No controversy or question appears to have arisen concerning its location until shortly before this suit was commenced, when the defendants, who own a farm adjoining the township line where this road is located, caused a survey to be made of their lands, and pins, or stakes, were driven and stones set indicating the north boundary of their land — at one end thereof about twenty feet north of the center of the road, and at the other end about twelve feet north of such center. While this survey was being made the trustee of one of the townships and one of the defendants, Mr. Bowman, had a conversation about it, when Mr. Bowman said that he thought the road was occupying a part of his land, and that he wanted the township to make some settlement; he also stated that he “was going to fence down to the road according to that survey there.” The stones were already set, except one, where a peg was down for the purpose of putting a stone in its place. Just before the conversation ended Mr. Bowman said to the trustee: “So if you fellows don’t do something I intend to run my fence right down the middle' of this road right -away.” The other trustee went to the place, saw the survey in progress, and found rock for the foundation of the iron posts along the road. The defendants’ land extends for half a mile along the south line of the township.
The evidence further showed that the road was laid oút and worked on the township line, twenty feet on each side of that line. No notice of the proposed survey had been given to the townships. Whether the survey was being made under the statute, or was merely private or ex parte, the evidence does not disclose. •The evidence also shows that soon after the suit was commenced a fence-post was set twelve feet in the road on the east line of Mr. Bowman’s land, and his east boundary fence was connected with it, making a continuous fence to a point twelve feet in the road, as it had been used, improved and fenced.
It is manifest that a fence built along or near the center of such a road, worked and improved as .country roads usually are, would be a serious obstruction to travel. It is also manifest from the positive declarations of Mr. Bowman, above quoted, which the record shows were repeated to others, coupled with the presence of the materials, and preparations therefor, that the defendants intended to build such a fence and permanently to occupy nearly half of what is prima facie, at least, a public road. It is true that an accurate survey and proper proof might show that the true route is north pf where the road has been fenced and used, but when the plaintiffs rested there was no proof to that effect, and the evidence certainly was sufficient to make a prima facie case that the road as opened and used was on the township line. Thus Mr. Crippen, trustee of Council Grove township, testified: “The road is laid out and worked on the township line, twenty feet each side of the line.” The, evidence tended to show that the road had been worked for twenty years, and fenced on both sides for eighteen years.
The defendants argue that the threatened obstruction would only be a naked trespass, and that injunction is not the proper remedy, citing Gulf Railroad Co. v. Wheaton, 7 Kan. 232. The testimony. tended to prove more than a mere intention to commit a trespass. There are many torts in respect to which the legal remedy is inadequate. Among the wrongs which equity will prevent are the interference with, or disturbance of, easements, where the act complained of is continuous in its nature and would result in the destruction of the easement.
“In fact, every disturbance of an easement or servitude, existing or threatened, will be thus restrained, whenever from the essential nature of the injury, or from its continuous character, the legal remedy is inadequate.” (Pom. Eq. Jur. § 1351.)
An injunction will be allowed to restrain a public officer from removing fences and attempting to open a public highway through the premises of an owner where no legal highway has been established. (Poirier v. Fetter, 20 Kan. 47; Hanselman v. Born, 71 Kan. 573, 81 Pac. 192.) If the trustee, as in the cases cited, may be restrained from opening a highway at the suit of the landowner, the landowner may be restrained from obstructing a highway.
In a case involving the right to use a party wall, where such right was denied by the party in possession, this court said:
“The plaintiff for the time being was in the peaceful occupancy of the building, claiming such occupancy to be rightful. If the defendants desired to challenge that right it was incumbent upon them to assume the burden of instituting some legal proceeding to that end. They could not by forcibly seizing the debatable ground deprive the plaintiff of the advantage his possession gave him and compel him to become the moving party in an action to determine the true boundary of his lot.” (Mathis v. Strunk, 73 Kan. 595, 597, 85 Pac. 590.)
An injunction to prevent the obstruction and permanent occupation of a public street may be granted at the suit of the proper officers. (Smith et al. v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393.)
Upon a demurrer to the evidence all the evidence which tends to prove the allegations of the petition will be considered as true. (Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655.) As the evidence tended to show the existence and also the threatened permanent obstruction of the road, the demurrer thereto should have been overruled.
The suit was first brought in the names of the trustees. On a demurrer to the petition an amendment was made substituting the townships as plaintiffs. No question is made in this court as to the sufficiency or capacity of the parties.
A question of practice in this court is presented. The petition in error was filed July 17, 1906. A motion of Council Grove township to dismiss the petition in error was filed and presented to the court when the case was submitted — October 2, 1907. The motion is upon the ground that the proceedings were not authorized by that township. The proof offered on this motion shows that both townships authorized the proceedings in error, and that no directions were given to the contrary until about September 10, 1907, when notice of such motion to dismiss was given. The case was then properly in this court, and the principal costs incurred. The motion ought not to be allowed to the prejudice of the rights of the other township to have this case reviewed in thjs court, and to have a new trial in the district court with proper parties. In that court such proceedings may be had as to dismissal or change of parties as may be proper under the code; and, as no substantial benefit to the moving township could be gained by its allowance, the motion is denied.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
Several questions of practice are raised, growing out of a plea in abatement, motion for judgment, and demurrers, but we find nothing worthy of special notice except the demurrer to the answer. The answer purported to set up four defenses, and the plaintiff demurred generally to the entire answer and also to each separate defense, and finally to certain paragraphs of the third defense. A separate defense either does or does not state facts sufficient to constitute a complete or partial defense to the cause of action set forth in the petition, and each separate defense must be regarded as a whole, and subdivisions thereof cannot be attacked by demurrer. If redundant or irrelevant matter appears therein, it may be stricken out on motion.
Again, where a demurrer is filed to each of several separate defenses and is overruled as to some of them the plaintiff has his option to stand upon his demurrer and have the ruling reviewed or he can save his exceptions and proceed with his action, and, if defeated therein, thus preserve the questions for review. Where, however, as in this case, the court on the trial finds generally in favor of the defendants, without in dicating the grounds of its decision, it will be presumed the decision is based upon such defense or defenses as are sufficient and are sustained by the evidence. The burden of showing error is upon the plaintiff in error, and he can only demonstrate the particular grounds of a decision in such cases by requesting special findings of fact and conclusions of law.
The ordinance of 1882 was pleaded as a defense, which we find sufficient, and it therefore is to be presumed that the decision and judgment of the court was based thereon, and it becomes immaterial whether the court erred in overruling the demurrer to any other defense set forth in the answer.
Prior to July 7, 1882, the Atchison, Topeka & Santa Fe railroad was built and operated through the city of Larned, and the right of way thereof runs diagonally through the city from the northeast to the southwest. Fourth street runs east and west through the city, and Broadway runs north and south. The northern side of the right of way passes at the southeast corner of Broadway and Fourth street at an angle of about forty-five degrees, leaving a nearly equilateral triangular piece of Fourth street on the east side of Broadway, between it and the railroad right of way. On July 7, 1882, the mayor and council passed an ordinance the material portion of which reads as follows:
“Section 1. That Main, Broadway and Sixth streets in the said city be and the same are hereby declared public highways and ordered to be kept open and in proper condition for travel at the points where the same intersect and cut the right of way and depot grounds of the Atchison, Topeka & Santa Fe Railroad Company in city.
“Sec. 2. That all other streets and alleys or parts of streets or alleys in said city which intersect or cross or cut the right of way or depot grounds of said Atchison, Topeka & Santa Fe Railroad Company in said city be and the same are hereby vacated, so far as the same intersect, cross, cut or come in contact with the right of way or depot grounds of the Atchison, Topeka & Santa Fe Railroad Company in said city.”
The remainder of the ordinance purports to be a contract between the city and the railroad company for the maintaining of the crossings of the three streets named in section 1 by the railroad company on condition that the city should not in the future reopen any of the streets or alleys vacated by section 2 across the right of way or depot grounds.
This ordinance has ever since been in full force and effect, and if the provisions of section 2, fairly construed, vacated the triangular tract upon which the “hole-in-the-wall” is located, it determines this case without reference to the many other questions raised and discussed. We hold that the language of section 2, fairly construed, does include this cul-de-sac; indeed, without a specific description thereof, we do not see how language could have been adopted which would have been more applicable thereto. “All other streets . . . or parts of streets . . . which . . . come in contact with the right of way” includes this little part of a street, every foot of which, longitudinally of the street, comes in contact with the right of way. This language of the ordinance has no force or meaning whatever unless applied to such fractions of streets. And since this triangle is not and cannot in any sense of the word be a highway or thoroughfare, or any part thereof, since no possible points of travel can be reached by passing over it, it seems well to accredit the city officials with the wise intention of vacating it as a street and of allowing the same to revert to the abutting owners for some beneficent purpose.
Words and phrases in a statute (and an ordinance is a statute enacted by the legislative body of a city under a power delegated by the legislature) are to be construed according to the context and approved usage of the language. (Gen. Stat. 1901, § 7342.) Where the statute is plain and unambiguous there is no room for construction so as to change the language employed therein. (Ayers v. Comm’rs of Trego Co., 37 Kan. 240, 15 Pac. 229.) It is also a canon of construction of all written instruments that, if consistent with the general purpose thereof and the context, meaning is to be given to every word, phrase and sentence thereof.
Now, there is no dispute or doubt as to the meaning of the words in section 2 of the ordinance which provides for the vacation of “parts of streets . . . which intersect or cross” the right of way. On the part of the city it is contended that this was the whole purpose and effect of this section. On the other hand it is contended that something further was intended by the words “cut or come in contact with” the right of way. It is not to be presumed, unless the purpose and context of a law require it, that a' word or a phrase is used without any meaning whatever. If, as may or may not be the case, the right of way was so located in the city that it overlaid, so to speak, one-third or one-half of a street running in the same general direction, would this clause be effective to vacate all that part of the street a portion of which was so overlaid? We think so. We also think that where, as in this case, the street crossed the right of way at a sharp angle, the latter clause was effective in vacating that part of the street which longitudinally came in contact with the right of way.
Objection is made to the introduction of certain evidence, but we find no error therein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Wm. Deering & Co., a corporation, brought an action against F. J. Ayres upon a judgment previously rendered in Nebraska. It recovered, and the defendant prosecutes error.
Complaint is made of the admission in evidence of a copy of the foreign judgment, which the defendant claims was not properly authenticated. Whether the authentication was sufficient or not is immaterial, for the answer admitted that the judgment had been actually rendered, but denied its validity.
The essential facts are undisputed. The action in which the Nebraska judgment was rendered was brought against one Jackson as the maker, and Ayres as the guarantor, of a promissory note, in the county where Jackson resided. Service was made there upon Jackson, and a summons was sent to another county, where Ayres lived, and there served upon him. The Nebraska statute on the subject is like our own, and such service upon Ayres was permissible only in case the plaintiff had a right to proceed against the two de fendants jointly. (Marshall v. Mineral Co., 75 Kan. 445, 89 Pac. 905.) In the absence of a statute allowing it the maker and guarantor of a promissory note cannot be sued together. (14 Encyc. Pl. & Pr. 451.) While Kansas has such a statute (Gen. Stat. 1901, § 4467), it was shown that Nebraska has not. (1 Cobbey’s Ann. Stat. of Neb. 1903, § 1040.) It is therefore clear that the service made upon Ayres was unauthorized and could have been set aside upon motion. He made no appearance, and judgment was rendered against him by default. The serious question presented is whether the judgment was absolutely void. We think it was merely erroneous.
Ayres had notice of the pendency of the action, given in a way permitted by the statute, if he and Jackson could properly be sued in one action. The petition was sufficient to bring up for decision the question whether there was a misjoinder. True, it showed upon its face that in a correct view of the law the two causes of action could not properly be united, and therefore that a summons could not lawfully be served upon Jackson in another county; but whether the joinder was rightful was one of the very matters- to be determined. The fact that the record showed that it was wrongly decided does not render the resulting judgment open to collateral attack. A similar question was presented in National Bank v. Town Co., 51 Kan. 215, 32 Pac. 902. There an action was brought against a defendant in a foreign county, this course being colorably justified by making a resident of such county a defendant also. But no cause of action whatever was stated against the resident defendant. The petition, therefore, showed upon its face, as clearly as in the present instance, that the conditions which under the statute would authorize a summons to be sent to another county did not exist. Nevertheless it was held that the judgment could not be questioned on this account in any other court, except upon review, it being said in the opinion:
“The defendant in such a case ought to take advan tage of the defective service by a motion, plea, or otherwise. If the service or the jurisdiction of the court acquired by its process is not challenged in any way before or after judgment, in the court rendering the judgment, a defendant cannot avail himself of a review or correction of such judgment through some other court of the same jurisdiction but having no appellate power.” (See, also, Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001, and cases there cited.)
Objections are also made to the judgment on the grounds that it was rendered against Ayres while a demurrer by his codefendant remained undisposed of; that the joinder of Ayres and Jackson as defendants was collusive, the plaintiff uniting them solely in order to enable it to sue Ayres in a county where he did not reside; and that by the dismissal of the action as to Jackson after judgment had been rendered against Ayres jurisdiction over the latter was lost, if it had ever been obtained. These matters are covered by the principle already announced. However sufficient any of these objections might have been if urged in the original proceeding, none of them is available as a defense to an action on the judgment. It is contended that the law of Nebraska is otherwise — that the judgment would be held void there, and should be given no better treatment here. Various Nebraska decisions are cited to support this contention. Most of them deal with direct attacks made upon such a judgment and are therefore inapplicable. In Hobson v. Cummins, 57 Neb. 611, 78 N. W. 295, it was intimated, but not decided, that where the record shows on its face a wrongful service a judgment by default based thereon may be attacked collaterally. The commissioner’s opinion in Strowbridge v. Miller, 4 Neb. (unofficial) 449, 94 N. W. 825, seems to justify raising the question of a collusive misjoinder in that manner. But even if convinced that the Nebraska cases go to the full extent claimed, we should adhere to the conclusion announced. Their persuasive force is not such as to change our view of what the law is and should be in this state. And in order for the defendant to derive a benefit from a rule peculiar to Nebraska it would be necessary for him to plead and prove its existence. (Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462.) This was not done, and therefore the Nebraska adjudications have no controlling effect.
Although the judgment was valid when rendered, inasmuch as the action upon it was brought more than six years from that date it was necessary for the plaintiff to show that it had been kept alive by the issuance of an execution. For this purpose a copy of an execution was offered in evidence and was admitted over the defendant’s objection that it was not properly authenticated. It was not authenticated either in accordance with the federal statute relating to the judicial records of a sister state or with section 371 of the Kansas code (Gen. Stat. 1901, § 4819), which refers in-terms to court records of foreign countries but is held to apply as well to those of other states of the union. (Case v. Huey, Adm’r, 26 Kan. 553.) Its .admission is defended upon the ground that it was certified so as to meet the requirements of section 372 of the code (Gen. Stat. 1901, § 4820) with respect to copies of “papers authorized or reqúired by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office.” A similar section (Code, § 377; Gen. Stat. 1901, § 4825) regarding copies of proceedings had before a justice of the peace has been said to apply solely to domestic proceedings— those had before justices of the peace of this state. (Case v. Huey, Adm’r, supra.) We think the provisions of section 372 are intended to apply only to records kept under authority of the laws of Kansas or of the United States, and that the compliance therewith did not render the copy of the Nebraska execution admissible in evidence. For the error in admitting it the judgment must be reversed and a new trial awarded. | [
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The opinion of the court was delivered by
Porter, J.:
By a contract in writing Casper Brown purchased from J. B. Ehrsam & Sons, for use in his flouring-mill, two Wolf gyrators. The gyrators were shipped direct from Wolf Brothers, the manufacturers, at Chambersburg, Pa., to Brown at Oakley, Kan. He received them, paid the freight charges from St. Louis to Oakley, and set them up in his flouring-mill. A controversy arose over the quality of the machines and he refused to pay the balance of the purchase-price. The contract provided that the title to the machines should remain in the vendors until the purchase-money was paid, and Ehrsam & Sons, having filed á mechanic’s lien upon the mill property, brought this suit against Casper Brown to foreclose the lien. Defendant filed his answer and cross-petition, alleging that the gyrators were purchased upon an express warranty, as follows:
“That at the time of making said order, and in com sideration of the promises and agreements on the part of this defendant, and as a further inducement for placing said order with plaintiffs, said plaintiffs promised and agreed with defendant that said machines would be constructed of good material, of first-class workmanship, supplied with necessary and suitable fixtures, and in all respects suited for the work intended.”
He alleged a breach of this warranty, and asked damages resulting therefrom. On the trial the jury found that an express warranty had been made, awarded damages caused by unseasoned materials used in the construction of the machines, and gave a small judgment for plaintiffs. Proceedings in error in this court followed, with the result that the judgment was reversed and the cause remanded for a new trial. (Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 529.)
The contract of purchase, which consisted of the written order and' the letter of acceptance, is set out in full in the former opinion and need not be recited here. The former judgment was reversed for error in admitting parol evidence to show an express warranty, the contract being in writing and on its face complete.
After the case was remanded to the district court defendant filed an amended answer and counter-claim, and set up an implied instead of an express warranty. A second trial was had on the amended pleadings, in April, 1902, in which the jury returned a verdict in favor of defendant for the sum of $43.50, and made special findings. On motion of plaintiffs the verdict and findings were set aside, a new trial ordered, and the cause continued. Thereafter the defendant, Casper Brown, died, and the action was revived against his administratrix and heirs at law, who are defendants in error herein. At the April, 1905, term of the district court the cause was submitted to the court on a stipulation providing in substance that the court should determine which party was entitled to judgment upon the pleadings, the evidence introduced upon the second trial, and the special findings and verdict of the jury, reserving to each party the benefit of all 'objections and exceptions made during the progress of the cause. The findings of the jury referred to in the stipulation were numbered from 1 to 54, among which were the following:
“(1) Ques. Did the plaintiffs contract and agree with Casper Brown to furnish him two gyrators for use in his mill at Oakley, Kan.? Ans. Yes.
“(2) Q. Did plaintiffs, at the time of making such sale, know that the machines were to be used for a special purpose in and about defendant’s mill? A. Yes.
“(3) Q. Did plaintiffs, or their representatives, at the time of making said sale or taking the order from the defendant, examine the mill property of the defendant and know what would be required in the way of changes in and about said mill in order to install said gyrators in said mill? A. Yes.
“(4) Q. Did the said defendant, Casper Brown, have an opportunity to inspect said machines at the time of giving his order therefor? A. No.
“ (5) Q. Did the defendant, Brown, rely on the representations of the plaintiffs as to the character and quality of said machines and their fitness for use in his mill? A. Yes.
“(6) Q. Were the plaintiffs familiar with the construction and character of the machine described as Wolf gyrators, which they sold to the defendant? A. Yes.
“(7) Q. Were the machines ordered by the defendant from the plaintiffs constructed of good material, of good workmanship, and well'suited for the purpose intended? A. No.
“(8) Q. If you answer the last question ‘No,’ state what the defects were. .A. Defects caused by unseasoned lumber.
“(9) Q. What was the actual value of the machines? A. $375.
“ (10) Q. How much do you allow the defendant as general damages on account of plaintiffs’ failure to furnish the defendant with perfect machines? A. $500.”
“(15) Q. How much damage do you allow the defendant on account of loss of profits on the usual product of his mill? A. $200.”
“(19) Q. How much damage do you allow defendant for the injury to the grade of the flour referred to? A. $76.”
“(30) Q. Did the plaintiffs manufacture said gyrators? A. They did not.”
“(32) Q. Did the plaintiffs, or either of them, see said gyrators before they were delivered to the defendant? A. No.
“(33) Q. Where were said gyrators manufactured? A. Chambersburg, Pa.
“(34) Q. Where was the plaintiffs’ place of business at the time of the sale and delivery of said gyrators? A. Enterprise, Kan.
“(35) Q. When the gyrators were delivered to the defendant, did he examine them for the purpose of ascertaining the quality of material of which they were constructed? A. No.”
“ (37) Q. How much, if anything, do you allow the defendant for damage resulting directly or proximately from the use of unseasoned lumber in the manufacture of said gyrators? A. $893.50.”
“(42) Q. When‘gyrators like those in controversy were put upon the market by the manufacturers, were they intended to be a complete machine ready to be attached, by proper connections, and made a part of a flouring-mill? A. Yes.
“(43) Q. Leaving out all considerations of the quality of the machines, were said gyrators otherwise properly planned and constructed for the purposes for which they were sold ? A. Yes.”
“(50) Q. At the time the plaintiffs sold the gyrators to the defendant, or at any time before the defendant commenced using said gyrators, did the plaintiffs, or either of them, know that said gyrators were made of green or unseasoned lumber? A. No.”
“(53) Q. Were said gyrators of the kind ordered "by the defendant of the plaintiffs? A. No.
“(54) Q. If you answer ‘No’ to the last question, state in what respect and wherein said gyrators failed to be of the kind ordered by the defendant from the plaintiffs. A. Because they were not perfect machines on account of being constructed of unseasoned lumber, rendering them unfit to perform the work perfectly, for which they were put in the mill.”
Plaintiffs moved for judgment on the special findings. The court took the case under advisement and at a subsequent term gave judgment for defendants in error against plaintiffs for the sum of $43.50, in accordance with the verdict and findings. Plaintiffs bring the case here for review, and allege numerous errors. Many of these relate to rulings upon objec tions to the amended cross-petition, filed after the cause was remanded, and to objections to the evidence introduced by defendant in support of the cross-demand. From the view we have taken of the case its merits can'be disposed of by considering th„e action of the trial court upon'the motion for judgment on the findings.
It might be observed in passing to the main question that the jury beyond doubt allowed several items of alleged damages twice; and it is equally clear that their finding the value of the machines to be $375, in the face of the express terms of the written contract fixing the purchase-price at $875, was without warrant of law. It is well settled that a purchaser of goods who seeks to recover damages for a breach of a warranty must affirm the contract in all its terms, and is bound by the contract price. He cannot retain the goods and at the same time repudiate the contract. (Weybrich & Co. v. Harris, 31 Kan. 90, 1 Pac. 271.) Plaintiffs were entitled to a credit, to start with, of the $875, the price and value fixed by the contract, from which should be deducted the freight charges, of $25 paid by defendant, and any damages resulting from a breach of any warranty which the contract expressed or the law implied. That there was no express warranty was settled by the former decision. The main question, therefore, is this: From the facts in this case was there an implied warranty by plaintiffs that the machines would do the work for which they were purchased? The doctrine of implied warranties in the sale of manufactured articles was stated and applied in Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429. The syllabus reads as follows:
“While when an article is ordered from a manufacturer to be by him manufactured for a specific and understood purpose there is in some cases an implied warranty that the article when manufactured will be reasonably fit for the purpose intended, yet when a purchase is made from him of a specific and completed article he is to be regarded as a dealer and his liabil ity determined accordingly.” (See, also, Field v. Kinnear, 4 Kan. 476; Bigger v. Bovard, 20 Kan. 204; Duncan v. Baker, 21 Kan. 99.)
Mr. Justice Brewer in the opinion quotes in the following language from a well-recognized authority:
“After quite a review of the authorities in Smith’s Leading Cases, p. 251, the author sums up the result thus: ‘On the whole, therefore, it may be doubted whether there be any instance in which a knowledge of the object for which a specific chattel is bought will raise an implied warranty that it is fit for that purpose, although a failure to acquaint the vendee with its unfitness may be evidence of fraud, and thus render the vendor liable in action of tort.’ ” (Page 667.)
The same question was passed upon by this court in Safe and Lock Co. v. Huston, 55 Kan. 104, 39 Pac. 1035. It was there held that there was no implied warranty as to quality. The court said:
“There is nothing in this case indicating that the safe purchased by the plaintiffs was manufactured specially for them, but the fair inference is that it was one of a kind of safes which the defendant manufactured for sale to whomsoever would buy.” (Page 107.)
The doctrine of Lukens v. Freiund, 27 Kan. 664, 51 Am. Rep. 429, was expressly approved in Kinkel v. Winne, 67 Kan. 100, 72 Pac. 548, 62 L. R. A. 596, where the contract was for the sale and purchase of a fire-insurance business and it was sought to establish an implied warranty of the character and fitness of a certain register showing the expiration of policies. In the opinion the following statement of the general rule was quoted from page 404 of the second edition of Leake on Contracts:
“If an order be given for the manufacture or supply of an article to satisfy a required purpose, that purpose, and not any specific article, being the essential matter of the contract, the seller is then bound, as a condition of the contract, to supply an article reasonably fit for the purpose, and is considered as warranting that it is so. If an order be given for a specific article of a recognized kind or description, . . . and the article is supplied, there is no warranty that it will answer the purpose described or supposed, although intended and expected to do so.” (Page 103.)
It is interesting in this connection to note that by statute in England no such warranty as is contended for in this case can arise by implication. The English sale of goods act upon this subject is as follows:
“14. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows:
“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are .of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.” (62 L. J., n. s., 276.)
The scope of this proviso .is stated by Lord Chief Justice Russell in the following language:
“That obviously is intended to meet the case, not of the supply of what I may call for this purpose raw commodities or materials, but for the supply of manufactured articles — steam-plows, or any form of invention which has a known name, and is bought and sold under its known name, patented or otherwise.” (Gillespie Brothers & Co. v. Cheney, Eggar & Co. (1896), 2 Q. B. 59, 64.)
The common-law rules on the subject of implied conditions or warranties’ as to quality or fitness are referred to and the cases classified in Jones v. Just, L. R. 3 Q. B. 197, 37 L. J. 89, where the particular warranty under consideration was spoken of in the following language:
“Thirdly, where a known, described and defined ar tide is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399.” (Page 202.)
The English statute on this subject is discussed and the leading cases under the statute, which is declaratory of the common law, are cited at pages 622, 623 and 635 of the fifth edition of Benjamin on Sales.
In Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 C. C. A. 662, 69 L. R. A. 973, there was a written contract for the purchase of a drill described in the manufacturer’s catalogue. The purchaser relied upon assurances made before the contract was entered into to the effect that the drill would be suitable for drilling .through certain strata of rock in Lucas county, Iowa, and sought to recover damages upon the theory that because the manufacturer knew the special purpose for which the drill was purchased there was an implied warranty that it would be suitable for such purpose. It was held:
“An implied warranty that an article will .be fit for a particular purpose may be inferred from a contract to make or furnish it to accomplish that specific purpose, because the accomplishment of the purpose is the essence of this contract.
“But no implied warranty of such fitness arises out of a contract to make or supply a described and definite article, although the vendor knows that the vendee is purchasing it to accomplish the specific purpose, because the essence of this contract is the delivery of the specific article, and not the accomplishment of the purpose.” (Syllabus.)
So in Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510, 2 Sup. Ct. 46, 35 L. Ed. 837, the manufacturer was informed that plaintiff desired to dispense with the use of ice in cooling his brewery; that unless the proposed machine would cool 150,000 cubic feet of air to a certain degree it would be of no value. The manufacturer assured him that the machine would answer the purpose, and plaintiff entered into a written contract relying upon such representation. The contract was for the purchase of a certain, specific machine, which failed to answer the purpose for which it was purchased. The supreme court held that there was neither an express nor an implied warranty that the machine would answer the purpose.
As was said in Davis Calyx Drill Co. v. Mallory, 137 Fed. 332, 69 C. C. A. 662, 69 L. R. A. 973, “it is not the familiarity of the purchaser with the character and work of the machine ordered, but the identity of the thing described in the contract, which brings the latter within the rule” (p. 337) that there is no implied warranty of fitness where a known, definite and described thing is purchased.
A recent case in point is Lombard Co. v. Paper Co., 101 Me. 114, 63 Atl. 555, 6 L. R. A., n. s., 180. There, as here, the written contract consisted of a proposal to purchase and an acceptance. The things purchased were automatic water-wheel governors, described as “four (4) of our type ‘B’ governors, and four (4) of our ‘23’ balanced relief valves.” It was contended that the governors were not adapted to the purpose intended, and that there was an implied warranty that they would be suitable for the purpose of defendant’s plant. The court said in the opinion:
“It would be sufficient to say that the existence of this implied warranty as part of the contract is negatived by its explicit terms defining the guaranties of the plaintiff, by the fact that it contains express guaranties which by legal construction exclude all others, and by the fact that the goods sold were articles such as the vendor in the ordinary course of his business, manufactured for the general market. When a contract is in writing, an additional warranty, not expressed or implied by its terms, that the article is fit for the particular use, cannot be added by implication.” (Page 119.)
In addition to the foregoing, the following cases announce the same doctrine: Shear Co. v. Carbon Co., 75 Ohio St. 153, 78 N. E. 1009; Grand Avenue Hotel Co. v. Wharton, 79 Fed. 43, 24 C. C. A. 441; Storage Co. v. Woods & Zent, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631, 51 N. E. 587; Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210; Gossler v. Eagle Sugar Refinery, 103 Mass. 331; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 58 N. E. 232, 41 Am. St. Rep. 33; Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, 6 L. R. A. 392; Wheaton Roller-mill Co. v. John T. Noye Mnfg. Co., 66 Minn. 156, 68 N. W. 854; Whitmore & another v. The South Boston Iron Company, 82 Mass. 52; Ottawa Bottle & Flint-glass Co. v. Gunther, 31 Fed. 208.
In volume 15 of the American and English Encyclopedia of Law, at page 1235, note 6, the case of Smith v. McNair, 19 Kan. 330, 27 Am. Rep. 117, is cited as holding generally that a dealer is liable to a purchaser of goods upon an implied warranty as to fitness and quality. There the vendor sold certain papers, purporting on their face to be genuine school-district bonds, which turned' out to be forgeries. The vendor was held liable. The distinction between that case and this is that there the vendor did not deliver the thing purchased. In the opinion Mr. Chief Justice Horton stated the rule as follows:
“The rule is that if one person applies to another to purchase an article for a particular purpose, and the person so applied to sells him the article knowing that the purchaser relies upon his complying with his request, the law implies that the article is delivered with a warranty that it is the article called for.” -(Page 332.)
It will be readily seen that the case does not decide that there is an implied warranty on the part of the dealer that the thing sold will answer the purpose intended by the buyer, but that the implied warranty is that the thing called for by the contract of purchase shall be delivered.
Another case cited in the same note, where the ven dors were dealers and it was held that there was an implied contract as to quality, is that of Shaw v. Smith, 45 Kan. 334, 25 Pac. 886, 11 L. R. A. 681. Shaw & Co. were dealers in flaxseed, and Smith entered into a contract with them by which they were to furnish flax-seed for him to sow and raise a crop from. The dealers were to purchase the crop from him upon certain terms stated in the contract. The dealers did not have the flaxseed at the time the contract was made. They afterward furnished flaxseed which appeared to be good, and which both parties believed to be good. In fact it was worthless. It was held that there was an implied warranty that the seed should be sufficient for the purpose of sowing and raising a crop. It was said in the opinion:
“The entire contract when made was executory, and it was to be executed and performed afterward, and to be performed in parts and at different times. The seller was first to furnish the seed, and he did so in about ten days after the contract was made, and of course the seed was to be a kind of seed that would grow.” (Page 338.)
This was necessarily implied from the fact that Smith was to sow it and raise a crop therefrom, which the vendors of the seed were to purchase upon certain terms and conditions mentioned in the contract. It will be observed that warranty of quality was one which the particular facts and circumstances of that case necessarily raised by implication. The vendors did not deliver the kind of seed necessarily contemplated by the parties when the contract was made. The contract was executory, and it is well settled that a different rule obtains where goods are sold and delivered upon an executed contract, as in the present case. (15 A. & E. Encycl. of L. 1239.)
In volume 2 of Mechem on. Sales, section 1349, the author says:
“The implied warranty of fitness is not to be extended to cases which lack the necessary conditions upon which it depends. The essence of the rule is that the contract is executory; that the particular article is not designated by the buyer; that only his need is known; that he does not undertake or is not able to determine what will best supply his need, and therefore necessarily leaves the seller to make the determination and take the risk; and, if these elements are wanting, the rule does not apply.”
At the time the machinery in this case was purchased plaintiffs were engaged at Enterprise, Kan., in the business of manufacturing and selling mill machinery. The machines in controversy were not manufactured by them but were' made by Wolf Brothers, at Chambers-burg, Pa., and shipped direct to the purchaser from the manufacturers. Plaintiffs are dealers, and the findings are that they did not see the machines nor have an opportunity to do so until after they were in operation. There is a finding also that the machines turned out by the manufacturers and placed upon the market were complete in themselves and required only to be attached by suitable connections to be operated. It appears that the machines were described in the manufacturers’ catalogue, and that thirty-two similar machines had been sold in Kansas and were in operation when Casper Brown, after corresponding with some of the owners of mills where such machines were in use, made his purchase.
The contract relied upon by plaintiffs appears to be the same contract in every respect that it was when the case was here before. It was then held that the written contract comprised in the order and letter of acceptance could not be varied or extended by parol evidence to cover matters upon which the writings themselves were silent. It was also said:
“Nothing remained to complete the contract save the delivery of the machines in accordance with its terms. The terms of the contract, the extent of the obligation undertaken by the parties, are embodied in and limited to what is expressed in the writing, and, as no words of warranty are employed, it will be con clusively presumed that no warranty was intended or existed.” (Ehrsam v. Brown, 64 Kan. 467, 471.)
This language had reference to an attempt to prove an express warranty by evidence of an oral contemporaneous agreement. In the concluding paragraph of. the opinion Mr. Justice Pollock, speaking for the court, observed that numerous cases had been cited upon the law applicable to implied warranties, and that they were inapplicable to the case of an express warranty, and further remarked:
“Had the defendant based his action for affirmative relief upon the existence of an implied warranty, and had the trial court submitted this theory of the case to the jury, the argument so made would have been applicable to such a case, but cannot be given weight here.” (Page 473.)
After the case was remanded it was possibly assumed from the remark quoted that the same warranty could be established by parol evidence by merely amending the answer so as to call the warranty an implied instead of an express one. But nothing in the former opinion warrants the assumption. It appears, however, from the record that the testimony at the last trial differs but slightly from that introduced on the first trial. While defendant was not permitted in so many words to testify to an oral agreement as to quality and fitness, he was permitted to testify to conversations between plaintiffs and himself and representations to him by them with respect to the quality and fitness of the machines to do the work his mill required, and their advice and suggestions to him in reference to making changes in the mill to accomplish certain results, all of which occurred before the written contract was made. Thus, by parol evidence, much of which was the same as on the first trial, defendant was permitted to establish the identical defense which the former decision held could not be made, and extended by such proof the obligations of the contract to cover matters upon which the contract is silent. That. there is no such magic in words must be apparent. The case in this aspect presents many points of similarity to that of Storage Co. v. Woods & Zent, 99 Mich. 269, 58 N. W. 320, 41 Am. St. Rep. 599. The written contract in that cáse was for the sale and purchase of certain machinery for use in refrigeration, described as our “20 x 40 refrigerator.” The action was to recover the contract price, and the defense was an express warranty that the apparatus would preserve fresh meats from thirty to fifty days, and that it failed' to do so. The court instructed the jury that the written contract could not be varied by parol evidence and withdrew the defense of an express warranty, but gave an instruction that if they found from the evidence that defendants purchased the apparatus for a special purpose made known to plaintiff, and relied upon the judgment and knowledge of plaintiff and not on their own, then there was an implied warranty that the system furnished should be reasonably fit and suitable for that particular purpose. In the opinion the court said:
“The effect of these instructions, taken in connection with the first mentioned, was to permit the jury to find that there was no express warranty, but that there was an implied one, based on the very evidence relied on to show the express warranty; in effect - holding that, while parol evidence was inadmissible to show an express warranty, it might be received to establish an implied one. Implied warranties are not unknown, and they are by no means limited to parol contracts. Thus, there is ordinarily an implied warranty of title where there is a contract of sale of personal property. Again: Tf a thing be ordered of the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose.’ This principle, however, is limited to cases where a thing is ordered for a special purpose, and cannot be applied to cases where a special thing is ordered, although it be intended for a special purpose. 1 Par. Cont. 587. . . . But it is a rule of general application that warranties, whether express or implied, can only issue from the contract Itself; and it must be a legal deduction, and cannot depend upon extrinsic evidence, except as it may be necessary for the explanation of some latent ambiguity.....In the present case the defendants contracted for the purchase, and erection in their refrigerator, of an apparatus patented by the plaintiff, and called the ‘McCray Patent System of Refrigeration.’ Beyond its name, there is nothing to show that it was anything in the nature of a refrigerating process. The contract does not show that it was designed to preserve meats, or that the defendants had anything to do with meats. It does not appear what use it was intended for, or that the plaintiff had any information upon the subject. No warranty can be implied from this that it would preserve meat for any particular length of time.” (Pages 274, 275.)
In the case at bar the machines are described in the contractus “Wolf gyrators: 1 # 6-20 sieve 4 reduction machine. 1 # 6-30 sieve 6 reduction machine.” It also appears that with the machines the manufacturers were to furnish sieves to change the granulation of flour from coarse to fine, and that the machines were to be installed in a flouring-mill. The contract is silent as to any special purpose for which they were purchased, and since the contract was for the sale of a specific, definite article, manufactured and supplied to the trade generally by the manufacturers, there was no implied warranty that it would answer to, or be suitable for, a particular purpose. The following language from Johnson v. Powers, 65 Cal. 179, 3 Pac. 625, was quoted with approval in Rodgers v. Perrault, 41 Kan. 385, 21 Pac. 287:
“ ‘If the contract between the vendor and vendee be reduced to writing, nothing which is not found in the writing (except that which is presumed by law from that which is written) can be considered as a part of' the contract.’ ” (Page 386.)
But it is claimed that the defects which rendered the machines unsuitable were latent defects, caused by the use of unseasoned lumber in constructing them. The findings establish as facts that plaintiffs, who were dealers and not the manufacturers, had no opportunity to see the machines until after they were delivered, and had no knowledge of the latent defects. There was no implied contract on the part of plaintiffs that the materials of which the machines were constructed should be sound.
“Where the vendor is not the manufacturer, and the purchaser knows this fact, the former is not responsible for latent defects in the absence of proof of an express warranty or of fraud and deceit upon the part of the seller.” (15 A. & E. Encycl. of L. 1236.)
From these considerations it is apparent that upon the findings plaintiffs were entitled to judgment establishing and foreclosing their lien for the amount of the purchase-price of the machines, less the amount paid for freight. The cause is therefore reversed and remanded for further proceedings in accordance with these views. | [
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The opinion of the court was delivered by
Porter, J.:
This suit was for partition of lands, and the' construction of an antenuptial contract is the only question involved.
George W. Rouse died intestate in Miami county August 9, 1903, at the age of eighty-two years. He owned about two hundred acres of land at his death, and left surviving him, in addition to several children of a former marriage, his widow, Jane Rouse,- and one child by her. The controversy is between the children of the first marriage and Jane Rouse, the widow. He married Jane Rouse in 1874. Immediately before the marriage they entered into the following contract:
“Know all men that we, G. W. Rouse, of Miami county, state of Kansas, and Jane Sewel, of the same place, in consideration of mutual promises of marriage between made, have this day agreed, and we do by these presents agree, that in case said marriage takes place, that the property real and personal now owned by either, or which may hereafter be acquired by either, shall after the solemnization of said marriage be and remain the separate and distinct property of such owner, and neither shall have or exercise any rights, title or estate in the property of the other, and each may at his or her option dispose of, by will or otherwise, all or any part of his or her property in such manner as may to him or her seem fit, excepting, however, that said G. W. Rouse shall not during the lifetime of said Jane Sewel so dispose of his property as to jeopardize or render nugatory the provisions hereinafter mentioned, .viz.:
“It is agreed and provided that said G. W. Rouse shall and will furnish to said Jane Sewel a good, proper and comfortable support out of his said estate, so long as they shall live together as man and wife, and also, that in case said Jane Sewel shall survive said G. W. Rouse, then and in that case said Jane Sewel shall have a proper and sufficient support according to her station in life out of the estate of the said G. W. Rouse during the term of her natural life, or so long as she remains the widow of said G. W. Rouse.
“Witness our hands and seals this 23d day.of June, a.d 1874. G. W. Rouse (Seal).
Jane Sewel (Seal).”
The district court held that by the terms of the. agreement Jane Rouse took no interest in any of the real estate. Of this holding Mrs. Rouse complains.
It seems manifest that the first provision in the agreement would not be sufficient of itself to exclude the wife as an heir. A similar provision, in Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18, was held not to exclude the husband from his rights of inheritance. In that case the language of the antenuptial agreement provided that the wife “shall have, hold, keep and retain all of the property which she now has or may hereafter acquire, whether real, personal, or mixed, and wheresoever situate, as her sole, exclusive and absolute property, for her separate use and benefit, ■ free from all claims, rights and interest of her said intended husband, John Ernst, with the right on the part of the said Henrietta to, by gift, sale”, devise, or will, dispose of the same to such persons as she may desire, the said John Ernst hereby consenting to such disposition of all such property in all respects as if the same should be by will devised by said Henrietta after such marriage and the consent of said John Ernst indorsed in writing thereon.” (Page 245.)
In the present case the agreement, looking alone at the first provision, is that the property of each shall, after the marriage, be and remain the separate and distinct property of such owner, who is to have the right at his or her option to dispose of the same, by will or otherwise; and neither shall have nor exercise any right, title or interest in the property of the other. So far, the agreements are substantially alike. It is contended, however, that a construction must be given which would in some way alter the rights of the parties as they existed; that otherwise the agreement is rendered inoperative. The same contention was urged in Kistler v. Ernst, supra, where it was said in the opinion:
“The contract seems to have followed the law and conferred no greater rights on either party than were vouchsafed by the statute, with these limitations: Any conveyance, gift or sale of the property of one during coverture could not be challenged as being in fraud of the rights of the other. The antenuptial agreement worked an estoppel on both parties and silenced all complaint of one against alienation by the other, fraudulent or otherwise. It also gave to each the right to convey his or her real estate by separate deed and pass a merchantable title. It gave the power to bequeath and devise all the property of each by separate will. Thus the contract performed some service in respect to the property of both parties during cover ture, and its terms, to the extent stated, modified and changed rights secured by the statute.” (Page 246.)
In Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, speaking of the interest which the wife has in the husband’s real estate, it was said:
“It is true that this interest in the real estate of the husband is inchoate and uncertain, yet, according to the authorities, it possesses the element of property. It is an interest and right of which she can be devested only by her consent, or crime, or her dying before her husband. It is an interest which may be, in connection with the husband, the subject of contract and bargain, and is by many of the authorities denominated a contingent but valuable interest. It has been decided by this court that the wife has an estate in the homestead occupied by herself and husband, although the title to the same be in the husband, and that it is such a present and existing estate that it will be protected by the couits. (Helm v. Helm, 11 Kan. 19; Jenness v. Cutler, 12 Kan. 500.)” (Page 577.)
The main question, however, is whether the subsequent clause of the contract guaranteeing to the wife a sufficient support from the husband’s property after his death, in the event she survived him, distinguishes this from Kistler v. Ernst, supra, and compels a different construction to- be placed upon the agreement. Plaintiff in error contends that this clause is simply a further provision for the benefit of Mrs. Rouse, by which the husband agrees that, although he has the right without her consent to dispose by deed, or will of all his property during her lifetime, he will not so far dispose of it as to prejudice her rights to have out of his estate a sufficient support for the remainder of her life in case she survives him. It is argued that without this provision he might have conveyed by deed or devise every dollar he possessed, and, dying before her, leave her without any means of support, and the contention is that this safeguard of the wife’s right in any event to sufficient support has been employed by the trial court as a means to destroy her inherit anee; that by a fair construction of both provisions there is no implication even that she is to be deprived of her right to inherit from the husband. Manifestly, the court construed this clause, taken with the first, to constitute a substantive provision for the wife which excluded her from any other interest in his property after his death.
In Hart, &c. v. Soward, 53 Ky. 301, the contract provided that the wife “shall hold and possess, for her own separate and exclusive use and benefit, all the estate, real, personal, and mixed, now owned and possessed by her, and the future rents, issues, and profits thereof, free from the control or disposition of the said Alfred Soward — it being intended that the said Margaretta Gorsuch shall hold the said property as her separate.estate, and in the same manner as if she were sole and unmarried, she hereby retaining authority and power to dispose of the same in such manner as she may choose in her lifetime, by sale and conveyance, or by last will and testament.” (Page 302.) She died intestate, and the husband was given a husband’s interest in all her property notwithstanding the agreement. 'It was said:
“If this agreement contained any provisions on the subject of the right of succession to the property, after the death of the wife, this question could not arise; but, as it only secured to the wife the right to control and dispose of the property during the coverture as if she were unmarried, and as she made no disposition of it to take efféct after her death, the agreement, having accomplished the object of its existence, and the purpose contemplated by the parties in its execution, became, by her death, inoperative, according to its own nature, and left her estate to the disposition of the law.” (Page 302.)
It will be noticed that by the agreement in that case the wife retained the power to dispose of her property “as she may choose in her lifetime.” The words “in her lifetime” áre not used in the agreement we are considering, nor was the same or similar language used in the. agreement in Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18. Their absence is not important, for if either husband or wife desired to dispose of. property by deed, gift or devise it would necessarily be done during his or her lifetime, though effect might not be given until after death. As said by Mr. Justice Smith, in Kistler v. Ernst:
“There is no express agreement in the contract which excludes the husband from a right of inheritance on the death of the wife. She had the right to devise her property to whom she pleased, and the consent of her husband was given in advance. Under the position taken by plaintiff in error, a devise by will to the husband was necessary on the part of the wife, should she have desired that he take her property at her death. The law obviated all necessity for a will in such case, as we construe the contract. There is nothing in the contract that convinces us that Ernst, by the agreement, surrendered or released his right of inheritance as the survivor of his wife. . . . The counsel for plaintiff in error, by a refinement of reasoning, seeks' to read into the agreement provisions founded on implications and probabilities as to the intention of the parties, which cannot be justified under the language of the instrument. The wife had the right - of disposition, which she did not see fit to exercise. This failure to make disposition might have been induced by the affection she bore for her husband, knowing that upon her death the law would place her property in his hands as effectually as if a formal will had been made.” (Pages 247, 248.)
This contract is not free from doubt, but it is open to the construction contended for by plaintiff in error, and could well mean that by this subsequent provision nothing more was contemplated than to guarantee to the wife that, in case the husband saw fit to exercise the right to dispose of his entire estate, he would not do so without making ample provision for her support during the time she should survive him and remain his widow. It is by no means- clear to us that the intention was that she should not inherit a wife’s interest in all property of his which he did-no't see fit to dispose of separately by deed or will during his life.
We have frequently held that agreements of this character should be liberally construed to carry into effect the intention and purpose of the parties; nevertheless, their terms are not to be extended by mere implication to exclude the right of the .survivor to take by inheritance. The reasons are manifest. If such be the intent of the parties it can be readily expressed in appropriate language or in words from which the intention is necessarily implied. Nor are we impressed with the claim that the circumstances surrounding the parties to this agreement at the time it was entered into and the relations which existed between them are of a nature from which a different purpose may be implied or are such as to invoke a strained construction in favor of the heirs. It is true that at the time the agreement was made the husband possessed most of the land and the wife brought but little in the way of property or means to the marriage, and was at the time past middle life. However, they lived together for more than thirty years, during which she doubtless contributed her share to his further accumulation of property. Moreover, he had three minor children at the time of this marriage, and the evidence warrants the inference that Jane Rouse became a mother to them. The circumstances, it will be observed, are not similar to a case where an old man, in his declining years, having property of his own, enters the marriage relation with a woman younger than himself, neither expecting that the relation will extend beyond a few years at most, and a contract is made which the circumstances assist in construing as intended to provide that the wife at his death shall take a certain compensation in lieu of any interest the law might give her in his estate.
The agreement might have provided that in case the wife survived the husband she should take no share in his estate by inheritance, but the provision that the husband should have the option to dispose of his property by will or otherwise cannot by implication be said to mean that, in the event he failed to exercise such option, the laws of inheritance should be set aside and the wife be left in the same situation as though he had exercised the option. Notwithstanding the contract he could have devised all of his property to his wife. There was no will, no disposition by him in his lifetime, although she had agreed that he might make a will or other disposition. This is a contest between his widow and the other heirs. These heirs are not mentioned in the agreement ánd must take under the laws of descent — the same laws which give her one-half of the husband’s property where he dies intestate. The limitation of the husband’s power of disposition in the subsequent clause cannot be extended by implication beyond the plain import of its terms.
While we are not prepared to Say that an express provision must always appear in order to deprive the survivor of the rights of inheritance, there are authorities which go to that extent. (See Stewart v. Stewart, 7 Johns. Ch. [N. Y.] *229, cited and relied upon in Kistler v. Ernst, supra.) In the former case Chancellor Kent said:
“The court cannot take away the right of the husband to the personal estate of his wife, when it is not taken away by the settlement, or by the exercise of the power of appointment under it. When the settlement makes no disposition of the property, in the event of the wife’s death, and provides only for her dominion over it during coverture, the right of the husband, as survivor, is a fixed and stable right, over which the court has no control, and of which he cannot be devested. The settlement cannot be extended, by construction, beyond the just and fair import of its provisions; and, clearly, the court cannot create a settlement, or a disposition of property, in violation of the jus mariti, when none has been made by the party.” (Page *247.)
(See, also, Jones and White v. Brown, 1 Md. Ch. 191; Talbot v. Calvert, 24 Pa. St. 327; Brown’s Adm’rs, v. Brown’s Adm’rs, 25 Tenn. 127; Sutherland et al. v. Sutherland et al., 69 Ill. 481; Christy v. Marmon, 163 Ill. 225, 43 N. E. 150.)
In commenting upon an antenuptial agreement the supreme court of Iowa, in In re Est. of Peet, 79 Iowa, 185, 44 N. W. 354, said:
“It must be understood that contracts designed to devest the wife of the benefits of the statutes in her favor, after the death of her husband, . . . must not be of doubtful interpretation, but specific and certain as to such intent.” (Page 188.)
It follows from what has been said that the judgment must be reversed and remanded for further proceedings in accordance with these views. | [
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The opinion of the court was delivered by
Smith, J.;
George B. Stevens commenced this action for damages in the district court of Harper county, of which county he was a resident, and deposited fifteen dollars as security for costs. A motion was filed by the defendants for additional security, which motion was allowed, and in response the plaintiff filed the following affidavit:
“I, George B. Stevens, do solemnly swear that I am the plaintiff in the above-entitled cause and that I am now, and was at the time of the commencement of this action, a resident of this county and state; and I do further solemnly swear that the causes of action set forth in my original and amended petitions filed in this action are just and were just at the time said action was commenced; and I do further solemnly swear that by reason of my poverty I am unable to give additional security for costs.”
Thereupon the defendants called the court stenographer as a witness, and he read the evidence of the plaintiff given in court as to the ability of the latter to give security for costs. This evidence, if credible, proved that the plaintiff was in fact financially unable to give security for costs, and there was no evidence to the contrary.
The court found that the accrued costs in the action exceeded the deposit made as security therefor. The court also found that the action was being prosecuted by attorneys for the plaintiff upon an agreement between them and the plaintiff that they were to receive one-half of the amount of the judgment recovered in the action, contingent upon recovery, and that neither the attorneys nor any one for them had given any security for costs except the fifteen dollars deposited at the commencement of the action. The court also found that the plaintiff was not entitled to prosecute the action as a poor person upon an affidavit in forma pauperis. There was no finding, however, that the plaintiff was financially able to give security for costs, nor of any fact which indicated that he was not entitled to proceed under his poverty affidavit.
The court then ordered that the plaintiff, or some one in his behalf, should file a good and sufficient bond for all costs that might accrue in the action or in lieu thereof deposit $150 with the clerk of the court within ten days. More than ten days thereafter, no bond having been filed or money deposited, on motion of the defendants the case was dismissed.
The statute of this state (Code, §§ 581, 582; Gen. Stat. 1901, §§ 5067, 5068) provides that a plaintiff having a just cause of action against the defendant or defendants may file a certain affidavit, the form of which is prescribed, and no bond shall be required. Section 583 of the code (Gen. Stat. 1901, § 5069) provides a penalty for wilfully swearing falsely to such affidavit. Section 584 of the code (Gen. Stat. 1901, § 5070) provides that the defendant in any action pending in the district court may at any time before judgment, upon reasonable notice, move the court for additional security for costs, and if the court shall allow the motion the action may be dismissed within a reasonable time, to be fixed by the court, unless sufficient security be given by the party adjudged to give it.
Section 584 vests in the court a wide discretion, but this discretion should be exercised in furtherance of the wise and beneficent provision of our law — a provision similar to that found in the laws of the other states, and, indeed, in the laws of nearly every civilized nation of the globe — viz.: That no man who has suffered a wrong shall be denied redress in the courts of the land by reason of his poverty. It is probably unusual after the required affidavit has been filed that a hearing should be had and evidence heard as to the merits of the claim. The extreme penalty provided for wilful false-swearing therein is generally considered a sufficient safeguard. Upon reasonable apprehension, however, of a purpose on the part of a solvent plaintiff to abuse the beneficent exemption, there is no reason why the court should not make an examination, to the end that its officers who may be required gratuitously to perform their duties may not be imposed upon.
The findings of the court indicate that it did not, after investigation, find that the plaintiff was in fact able to give security for costs, but that, as he had ob tained lawyers who had contracted to attend to his case in court and take the chances of receiving compensation contingent upon the result, the court thought the lawyers were under obligation to give security for costs. It is neither a violation of law nor against good morals that a lawyer, if he believes a client or would-be client has been wronged and is unable to employ counsel to bring suit for the redress thereof, should undertake the business without any hope or promise of re'ward or upon a promise of reward- contingent upon the result Indeed, it is rather to be commended. It is in line with the clemency of the law that exempts the poor litigant from giving security- for costs. On the other hand, it is champertous and illegal for a lawyer to encourage litigation by agreeing to bear the costs of litigation and to receive compensation only in case of recovery.
It would have been culpable in the lawyers in this case had they given security for costs; at least it would have been ground for suspicion of champerty. In ordering the dismissal of the case it appears that the court abused its discretion, and the order is set aside.
The case is remanded, with instructions to reinstate the same and to proceed therewith. | [
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The opinion of the court was delivered by
Porter, J.:
This suit was brought by Jennie S. Martin against Esther Bruner and others to foreclose a mortgage on real estate. A judgment was rendered for the plaintiff, and the defendants bring these proceedings in error.
The sole question involves the construction of the statute of limitations. There was. a stipulation as to the facts, from which it appears that the plaintiff resides in New Jersey and has never been a resident of Kansas. She acquired the note and mortgage by purchase from another non-resident. The note and mort gage were executed in Kansas, July 2, 1888, by Charles, and Lucy B. Veatch, husband and wife, who were the owners-of the real estate. The note was payable five-years after date, at the city of New York, to the Kansas & New Jersey Loan Company, a Kansas corporation, and contained a clause providing that it should be construed in all respects according to the laws of Kansas.. The mortgage was duly recorded in Meade county, Kansas, where the land is situated. It contained the-usual conditions. In 1890, before the maturity of the-note, Charles Veatch and wife, makers of the note and mortgage, conveyed the real estate to Francis M. Bruner and removed to the state of Missouri, where they have since resided, and they have never since returned to or been within this state.
The note and mortgage were before maturity indorsed and transferred to a non-resident of Kansas, and by subsequent indorsement and transfer became the property of the plaintiff. The limitation laws of Missouri bar an action upon a promissory note ten years after the cause of action thereon accrues. The-principal defendants are the heirs of Francis. M. Bruner, who purchased the land from Charles Veatch, subject to the mortgage. They are all residents of the-state of Iowa and have resided there continuously. The defense relied upon is the statute of limitations. The answer alleged that the cause of action for the foreclosure of the mortgage arose at the time the note-became due and was therefore barred by the five-year-statute of limitation; that the cause of action upon the-note arose in Missouri, where the makers Resided at the time the note matured; and the provisions of the-Missouri statute of limitations were set out. Section 22 of the civil code, in so far as it is directly involved, reads as follows:
“Where the cause of action has arisen in another state or country, between non-residents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained' thereon by reason of lapse of time, no action [can be] maintained thereon in this state.” (Gen. Stat. 1901, § 4450.)
In its last analysis the case turns upon the meaning ■of the words “cause of action has arisen” and “cause of action arose,” as used in the foregoing section. The trial court construed the word “arisen” to mean “originate,” and upon this construction based its ruling; and it is the contention of the plaintiff that the cause of action in this case arose within the state of Kansas, where the contract was made, and that section 22 has no application, but that section 21 of the code applies. The latter section reads as follows:
“If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if after the cause of action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.” (Gen. Stat. 1901, § 4449.)
There is a conflict of authority upon the precise question involved, and it has never, we believe, been decided in this state. Some courts in construing statutes containing the exact language of ours, and others in construing statutes of almost identical language, have' held that a different meaning attaches to the words “cause of action has arisen” as used in section 22 and the words “cause of action accrues” as used in section 21. These courts have declared that a cause of action arises when and where the transaction occurs from which it originates; that is, where the contract is made. (See the following authorities: Chevrier v. Robert, 6 Mont. 319, 12 Pac. 702; John Shillito Co. v. Richardson, 102 Ky. 51, 42 S. W. 847; Powers Mercantile Co. v. Blethen, 91 Minn. 339, 97 N. W. 1056; Doughty, Receiver, v. Funk, 15 Okla. 643, 84 Pac. 485, 4 L. R. A., n. s., 1029.) The Oklahoma statute, construed in the last-named case, is copied literally from the Kansas statute, and the opinion which cites the cases upholding this view presents the reasons thereof as well as any to which our attention has been called.
The decisions referred to are against the better reasoning, in our opinion, and unquestionably opposed to the great weight of authority. The phrase “cause of action” has often been defined. It cannot exist without the concurrence of a right, a duty and a default, or, stated differently, an obligation must exist upon one party in favor of the other, the performance of which is refused. Bouvier defines it as a right to bring an action. To the same effect see Bucklin v. Ford, 5 Barb. (N. Y.) 393; Meyer v. Van Collem, 28 Barb. (N. Y.) 230; Lewis v. Hyams, 26 Nev. 68, 63 Pac. 126, 64 Pac. 817, 99 Am. St. Rep. 677. “Cause of action is the right to prosecute an action with effect.” (Douglas v. Forrest, 4 Bing. [Eng.] 686, 704.) In Veeder v. Baker, 83 N. Y. 156, the phrase was defined as follows:
“It may be said to be composed of the right of the plaintiff and the obligation, duty or wrong of the defendant; and these combined, it is sufficiently accurate to say, constitute the cause of action.” (Page 160.)
Pomeroy, in section 347 of the fourth edition of his Code Remedies, uses the following language:
“Every judicial action must therefore involve the following elements: a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term, and as it is used in the codes of the several states. They are the legal cause or foundation whence the right of action springs.”
Many other definitions by courts and text-writers which are substantially the same may be found collated in the able dissenting opinion of Mr. Justice Young in Mortgage Co. v. Northwest Thrasher Co., 14 N. Dak. 147, 164, 103 N. W. 915, 70 L. R. A. 814.
It would be difficult’ to find a better or more apt statement of where and when a cause of action arises than is found in the following extract from the opinion in Durham v. Spence, L. R. 6 Ex. (Eng.) *46:
“Now, the cause of action must have reference to some time as well as to some place; does then the consideration of the time when the cause of action arises give us any assistance in determining the place where it arises? I think it does. The cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done. But the time when the cause of action arises determines also the place where it arises; for when that occurs which is the cause of action, the place where it occurs is the place where the cause of action arises.” (Page 52.)
In Patterson v. Patterson, 59 N. Y. 574, 17 Am. Rep. 384, the court said:
“Nor is there room for difference as to whát is meant by the phrases ‘cause of action has accrued’ or ‘cause of action has arisen,’ since the death of the testator. They do not mean the contracting of the indebtedness, for a cause of action does not accrue or arise from the making of the contract of indebtedness alone, but out of the non-performance of it as well.” (Page 578.)
In Lewis v. Hyams, 26 Nev. 68, 63 Pac. 126, the same question was involved, and it. was there held that the phrase “when the cause of action has arisen” means exactly the same as if the statute had said “when a cause of action has accrued.” In a further opinion upon an application for a rehearing it was stated that after an exhaustive and careful reexamination the court was unable to reach a different conclusion. (Lewis v. Hyams, 26 Nev. 82, 64 Pac. 817.)
The New York code of civil procedure provides that an action may be maintained by one foreign corporation against another “where the cause of action arose within the state.” The words “where the cause of action arose within the state” were construed in Shelby Steel Tube Co. v. Burgess Gun Co., 8 N. Y. Supr. Ct., App Div., 444, 40 N. Y. Supp. 871. The goods were ordered by letter from Buffalo. The acceptance was in the state of Ohio. The court, after stating that the contract was actually made in Ohio, used the following language:
“It does not follow, however, that because the contract was not made within this state a cause of action could not arise here. No cause of action arose anywhere upon this contract until the defendant had made some default in the payment of the contract price of the goods purchased.” (Page 448.)
The statute of Washington is substantially the same as ours. It was construed in reference to these phrases in the case of Freundt v. Hahn, 24 Wash. 8, 63 Pac. 1107. The contention there was that the words “has arisen” and “arose” were used in the sense of originated and with a meaning entirely different from “accrued” as used in the other section. The court in a well-considered opinion construed the words to mean the same thing, and that the cause of action arose where and at the time it accrued. (To the same effect see the following cases: Osgood v. Artt, 10 Fed. 365; Hower v. Aultman, 27 Neb. 251, 42 N. W. 1039; Minneapolis Harvester Works v. Smith, 36 Neb. 616, 54 N. W. 973; Harrison v. The Union National Bank, 12 Neb. 499, 11 N. W. 752; Luce v. Clarke, 49 Minn. 356, 51 N. W. 1162; Drake v. Bigelow, 93 Minn. 112, 100 N. W. 664; Orr v. Wilmarth, 95 Mo. 212, 216, 8 S. W. 258; Zoll v. Carnahan, 83 Mo. 35; Scroggs v. Daugherty, 53 Mo. 497; Frost v. Witter, 132 Cal. 421, 64 Pac. 705, 84 Am. St. Rep. 53; Strong v. Lewis, 204 Ill. 35, 68 N. E. 556.)
The transaction by which a promissory note is exe cubed and delivered creates no cause of action, nor can a cause of action be said to originate thereby. If, as in the vast majority of instances, the note is promptly paid at maturity no cause of action exists. If there be a default when the note matures, and the payee is dead, no cause of action exists until an administrator is appointed, for the reason that before there can be a cause of action there must be a party entitled to enforce some obligation owing to him by some one who refuses to perform. In a case where the note is not paid when it matures, and the payee is .alive, or, if dead; there is a personal representative, a cause of action arises out of the failure of the payor to perform the obligation. The place where it arises is the place where 'some court has jurisdiction of the subject-matter and the party against whom the cause of action has arisen. The cases referred to holding that the cause of action arises where the contract was entered into ignore the true definition of a cause of action and confuse it with the subject of the action. The execution of the note is but a part of the transaction out of which the cause of action arises; the failure to keep the obligation and to perform the promise is the main thing which creates the cause of action, and unless there be such, a failure no cause of action ever arises.
“The true test, therefore, to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.” (25 Cyc. 1067.)
In the language of the court in Freundt v. Hahn, 24 Wash. 8, 63 Pac. 1107, “if the notes had been paid at maturity, no legal cause of action would have existed. It could neither have originated nor arisen until the breach of the contract to pay the money.” (Page 11.)
A cause of action cannot be said to have arisen until it actually exists. In other words, a cause of action has not arisen until it has accrued. The words are synonymous. The subject of the action in this case was the promissory note and mortgage. They were executed in Kansas. The subject of the action originated in Kansas, but there was no cause of action until the maker failed to. pay at maturity.
It is insisted that this construction destroys the effect of section 21; that the legislature by the use of different expressions in the two sections intended by section 21 to furnish protection to citizens of Kansas, and also to persons temporarily within the state with whom contracts should be executed in the state under Kansas laws; that by section 22 it was intended to provide protection for the citizens of this state who made contracts in another state with citizens of such other state upon which a cause of .action arose in the other state. The same reason is assigned by the court in Chevrier v. Robert, 6 Mont. 319, 12 Pac. 702, for the holding in that case, and the same contention was urged in many of the other cases cited where the courts construed the two sections as we construe these.
We find no difficulty in giving to section 21 the effect and operation given to it every day and which it has always had. It applies only to cases where the defendant resides in the state when the cause of action accrues but is either out of the state or has absconded or concealed himself. It provides that the time of his absence or concealment shall not be computed in his. favor.
In Orr v. Wilmarth, 95 Mo. 212, 8 S. W. 258, it was held that the provision of the Missouri statute, which is practically the same as our section 22, has ho application to cases where the defendant was a non-resident when the cause of action accrued, and that the section corresponding with our section 21 only applies to those cases where the defendant resided, in the state when the cause of action accrued, citing Thomas v. Black, 22 Mo. 330, Scroggs v. Daugherty, 53 Mo. 497, and Fike v. Clark, 55 Mo. 105.
We conclude, therefore, that as the action was barred by the statute of Missouri, where the cause of action arose, no action can be maintained thereon in this state by reason of the provisions of section 22 of the code of civil procedure. It is unnecessary to cite authorities to the effect that, the note being barred, no action can be maintained upon the mortgage.
For these reasons the judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
C. W. Carson commenced this action in the district court of Comanche county, October 4, 1904, to recover the possession of two eighty-acre-tracts of land to which he held the patent title. The defendant, Mortimer R. Platt, was then in possession of the land, and had been in such possession for more than five years, under a tax deed recorded September 6, 1897. This deed purported to convey 480 acres, including the lands in controversy. The descriptions were of eighty- and forty-acre subdivisions, all of which were contiguous, as shown upon the following plat:
The recitals in the deed show the sale of all these lands for taxes as one tract, and the court refused to receive evidence offered by the plaintiff to show that they were in fact patented as three separate tracts, and had been owned and conveyed as such up' to the date of the tax sale.
The plaintiff contends that this deed is void upon its face, and therefore insufficient to set the five-year limitation of the tax law in operation, because from the descriptions given it must be presumed that the lands were not patented, held or used as a single tract, but as several tracts. In support of this contention it is said: “In noting the outlines of this body of land, a single farm is not suggested, nor can it occur to one that it is used and occupied as a single tract of land.” It is urged that the outlines of this land, and its intersection by section-lines, suggest highways and division-lines between different holders and occupants. We can arrive at such a conclusion only by a presumption; but under the decisions of this court presumptions and inferences are not to be indulged in to defeat, but are to be indulged in to sustain, the validity of a tax deed after it has been of record five years. (Nagle v. Tieperman, 74 Kan. 53, 88 Pac. 969.) It is certainly not impossible that this body of land could have been owned and occupied as an entire tract. The exterior lines of farms may be such as will suit the convenience and purposes of the owner, and no presumption of separation of contiguous lands can be indulged in merely because of an unusual boundary. The presumption of regularity in the tax proceedings will overthrow any possible presumption from peculiarity of contour. (Gen. Stat. 1901, §§ 7676, 7680.)
In several of the cases in this court where similar questions have been considered the lands were referred to as comprising a compact body, but the tax deeds were upheld because of the presumption that the lands comprised an entire tract, and not because they were in compact form. (Cross v. Herman, 74 Kan. 554, 87 Pac. 686.)
The fact that the plaintiff sued for only a part of this land does not tend to show that it was not sold as one tract.
The plaintiff also insists that this deed is void upon its face because it does not show separately for each year the amount of taxes paid by the purchaser after the sale. The deed appears to be substantially in the statutory form in this respect, and is sufficient. (Ide, Receiver, v. Finneran, 29 Kan. 569.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
We are unable to agree with the construction of the written contract under which the pianos appear to have been consigned to Shillito in the written opinion filed in connection with the court’s instruction to the jury to return a verdict for the defendants. On the other hand we see nothing therein, unless it be the agreement in the fourth and fifth paragraphs to pay interest on the value of the pianos upon certain contingencies, to indicate that the contract is. other than the plaintiff claims for it — an arrangement under which the plaintiff could consign musical instruments to Shillito to be sold by him as the agent of the plaintiff. The provision requiring Shillito' to pay interest on the value of the instruments,, in certain contingencies, while perhaps unusual, is not sufficient to characterize the transaction as. a sale in opposition to the expressed intention to the contrary and to several other provisions, strongly indicating a contrary intention. The most, that could be claimed for this provision for interest is. that it rendered the contract ambiguous. It is evident, from the whole contract, and especially considering the fifth paragraph thereof, that the word “interest” in the fourth paragraph was not used in the sense of rent for the use of money but was used to designate a compensation for the deterioration in the value of the instruments incident to being kept in stock and exposed to sale.
Viewed in this light, the contract is not ambiguous. It did not create the relation of creditor and debtor ber tween the plaintiff and Shillito when the instruments were consigned and received under the contract, and no money indebtedness then existed as a principal upon which interest, in the ordinary meaning of the word, could be computed. Shillito, by the terms of the contract, was to send the cash (the cash received) for each instrument separately as soon as sold. This fairly im plies that the instruments were to be sold only in the usual course of trade, and for cash. That the contract does not prescribe the price at which the consigned instruments were to be sold is not unusual in a contract, of this character, which contemplates the consignment of numerous articles of different values. In short, we interpret the contract to be an unambiguous agreement, and to be for the consignment of musical instruments by the presumptive owner thereof to an agent to sell for cash only, at prices to be agreed upon.
Shillito then had no title under the contract in the pianos in question, and no right of possession thereto which was not terminable by the demand of the plaintiff therefor. The defendants derived all their claims of right thereto from Shillito, and the stream cannot rise higher than its source.
The judgment of the district court is therefore 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
Smith, J.:
E. S. Hughes and wife, owners of certain lands, executed a so-called oil-and-gas lease thereof to J. E. Davidson and others, which contained the following provision:
“The lessees agree to commence drilling a well on the land above described, one well in (3) months, 2 additional within one year from the above date. If said lessees fail to complete 3 wells within 12 months as above provided, then and in that case said lessees agree to pay $500 (as a forfeit) to said lessors at the expiration of that time.”
The lessors failed to do anything under the lease for more than twelve months, and Hughes and wife commenced this action to recover $500 under the provision.
Thereafter an answer was filed which admitted the execution of the lease and substantially all the allegations of. the petition, and set up the following defense thereto:
“That although the contract of lease mentioned in and filed with the petition herein contains the provisions set out in clause four' of the petition, and although defendants did not complete the three wells on the premises described in said lease within twelve months from and after its date, yet defendants say that said provisions and the failure of defendants to comply with its said terms do not give plaintiffs a right to recover of defendants the sum of five hundred dollars, or any other sum.
“Defendants further answering say that during the latter .part of the year 1904, and long before the expiration of the time for drilling said wells under the lease, the price of oil greatly declined, the market thereof declining more than half, and there became and was no market for oil in the Kansas field; that by reason of the decline in the price of oil, and the failure of the Prairie Oil and Gas Company, it being the only purchaser thereof in the Kansas field, to buy the same, drilling and development for oil in the Kansas field became and was practically ceased, and not only were plaintiffs not damaged by the failure of defendants to drill said wells as provided in said lease, but defendants allege that their failure so to drill was and is beneficial to plaintiffs, for the reason that the oil is more valuable in the ground than to be evaporating at the surface, by reason of there being no market for the same and the inability to sell the same at any reasonable price.
“Wherefore, plaintiffs having sustained no damages, by reason of defendants’ failure so to drill as aforesaid, the defendants pray that they be permitted to go hence-without day, and recover their costs herein expended.”
To this answer a demurrer was sustained, October 7, 1905. The defendants made no application to be allowed to file further pleadings, but stood upon their exceptions to the ruling, and the court rendered judgment in favor of the -plaintiffs in the sum of $500, as-prayed for. Time was given, presumably upon the application of defendants, to make a case for appeal to the supreme court.
Thereafter, on November 17, 1905, the defendants, on notice, presented to the judge of the district court at chambers their motion to set aside the judgment of' the court and for leave to. file an amended answer. This application, filed ten days after judgment and after the expiration of the term of court, was not made-in time. (See Code, § 308; Gen. Stat. 1901, § 4756.) If the defendants considered themselves entitled to any relief they should have filed a petition under the provisions of section 310 of the code. (Gen. Stat. 1901, § 4758.)
We have, then, only to consider whether the petition stated a cause of action, and whether the answer stated' any defense thereto. The petition is based on the provision of the lease above quoted, without any special' allegation of damages, and the answer states no defense except the affirmative allegation that the plaintiffs suffered no actual damages by reason of the failure of' the defendants to complete the wells provided for in the contract within the prescribed twelve months.
Is an allegation of actual damages essential to the-sufficiency of the petition ? Or, what is practically the- same question, does the answer of “no resulting damage” constitute a defense to the agreement to pay, in default of performance, $500? The language of the contract is that upon default the $500 is to be paid “as a forfeit,” and the question to be solved is whether under all the circumstances this forfeit was intended as a penalty or as liquidated damages. The language of the contract is, of itself, not conclusive. The consideration for the contract at its inception was only one dollar, and it is apparent, that the real inducement which led the owners of the land to make the grant was the promise of the grantees to do the stipulated things within the stipulated time. Performance thereof might result in great profit to the grantees, and failure to perform and the exclusion of all other prospectors from the premises who might desire to purchase the privileges may, under the circumstances, be presumed to have resulted in damage. The extent of such damage could only be conjectural, and would be difficult,' if not impossible, of specific pleading or specific proof.
In view of these evident considerations we think the parties agreed upon the payment of $500 as liquidated damages in case of default by the grantees, and it seems not an unreasonable, but a very reasonable, provision under the circumstances. (See 13 Cyc. 97 et seq.; Monmouth Park Asso. v. Wallis Iron Works, 55 N. J. Law, 132, 26 Atl. 140, 19 L. R. A. 456, 36 Am. St. Rep. 626; Oil Company v. Crawford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R. A. 67; Morse v. Rathburn, 42 Mo. 594, 97 Am. Dec. 359; Smith v. Smith, 4 Wend. [N. Y.] 468; Streeper v. Williams, 48 Pa. St. 450; Sutton v. Howard and others, 33 Ga. 536; Cheddick’s Ex’r v. Marsh, 21 N. J. Law, 463; Gibson v. Oliver, Appellant, 158 Pa. St. 277, 27 Atl. 961; Jaquith v. Hudson, 5 Mich. 123.)
We conclude that the petition stated a cause of action and that the demurrer thereto was properly overruled; that the answer stated no defense and that the demurrer thereto was properly sustained.
The judgment is affirmed. | [
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.The opinion of the court was delivered by
Johnson, P. J. :
This action was commenced by Elizabeth- Morrow against the Atchison, Topeka & Santa Fe Railroad Company to recover damages on account of personal injuries sustained by being thrown from a horse which became frightened by a hand-car, as she was about to cross the track of the railroad. The fright of the horse, she alleges, was caused by the agents and servants of the railroad company in negligently and carelessly placing the hand-car on the public highway by the side of the railroad in such a position as to cause her horse — which is a gentle and well-broken animal — to take fright and become unmanageable. The railroad company denied all the allegations of the petition, and charged the plaintiff below with negligence which contributed directly to the injury complained of. The reply deni< d negligence on the part of the plaintiff below. 1 he issues were tried before the court and a jury, and resulted in a verdict and judgment for the plaintiff below. The railroad company brings the case to this court, and asks a reversal of the judgment.
On the conclusion of the evidence of the plaintiff below, the railroad company interposed a demurrer to the evidence, which was overruled, and exceptions taken. This' ruling is the first error assigned for which the court is asked to reverse the judgment. It is contended by the plaintiff in error that there was no negligence shown on the part of the railroad company, and that the injuries received by the plaintiff below were the direct result of her own carelessness and negligence.
The evidence on the trial tended to prove that on the 10th day of June, 1890, the section-foreman on the Atchison, Topeka & Santa Fe railroad and his track-men were engaged in repairing the track of the railroad on the section between Cherryvale and Independence ; that the section-foreman had four men working with him, and they used a hand-car to carry the men, the tools and their dinner-buckets along the road to their work and return ; that when they arrived at the point at which they were to perform the labor pf repairing the road, the hand-car was removed from the track and placed by the side of the road ; that the men placed the tools and their dinner-buckets on the handcar, and when it was removed from the track they took from the car such tools as were req uired to do the work ; that the remainder of the tools, the dinner-buckets and men’s coats were left on the car; that they were at work in repairing the track at a point where the rail road crosses a public highway, between sections 161 and 162 ; that’on arriving at the crossing to be repaired the hand-c'ar was removed from the track and placed near the dump, on the right of way, on the west side of the crossing of the wagon road, and south of the railroad, about 18 feet from the center of the main travel of the wagon road; that the men commenced to work at the crossing about 8 c« 9 o’clock in 'the morning; that just as th'e men were about to remove the^ plank from the track, the plaintiff below came’ along on horseback, going south, and crossed over the track at the crossing; that the men worked on the crossing until they completed the work of repairs, and then worked during the remainder of the day along the track near the crossing ; that the hand-car remained, at the point where it was removed from the track in the morning until the men quit their work in the afternoon ; that at the point where the railroad-track crosses the public highway the railroad runs from the northeast to the southwest, and the highway north and south; that about 3 or 4 o’clock in the afternoon, as the plaintiff below was returning to her home on horseback, going north, and when near the railroad track, her horse was frightened at the hand-car standing by the side of the track and within the limits of the public highway, and she was thrown from her horse upon the ground and injured.
It is claiued that, before any negligence could be imputed to the railroad company on account of placing the hand-car on the side of the dump near the road, it was necessary to establish by evidence that the employees of the company knew that it would naturally and manifestly tend to frighten horses traveling upon the highway, when placed in that position-; otherwise their act in placing it there would not be negligent. The evidence shows the length of time the section-foreman had been engaged in working on the railroad as a section-foreman, his means of observation of a hand-car, his knowledge of its construction, its appearance with the tools, buckets, coats, etc., on the car, and the condition of the crossing. Being a man of intelligence, he must have taken notice of such ■objects as would necessarily produce fright in horses that are docile and well broken. The location of the hand-car, its proximity to the highway, the tools and dinner-buckets and other articles on the car were fully described in the evidence, and the circumstances attending the whole matter were in evidence before the jury, and the evidence tended strongly to sustain the allegations of the plaintiff's petition. There was no error in overruling the demurrer.
The trial court, among other instructions to the jury, gave the following:
“6. She is required to prove that the, employees and servants of the defendant placed a hand-car near said highway, and near the beaten track of the same ; that said hand-car was an object, placed in the position stated, naturally or manifestly calculated, from its appearance and situation, to frighten horses of ordinary gentleness, and broken to travel over the highway and traveling along the same ; that the horse the plaintiff was riding was frightened by said hand-car, and became unmanageable and threw the plaintiff to the ground, and injured her in the manner charged and alleged in her petition.
“7. Proof that the plaintiff sustained injuries as alleged will not alone authorize a verdicu in her favor. The plaintiff must prove that said injuries were caused by a wrongful act of the defendant, its employees or servants. A person who does an act that is not unlawful cannot be held responsible for any resulting injury, unless' he does it at a time, or in a manner, or under certain circumstances, which ren tiers him chargeable with a want of due care and regard for the rights of others, and the want of such care constituted the negligence'complained of. The placing of said hand-car near said highway was not of itself wrongful or unlawful on the part of the defendant, its employees or servants. The wrong, if any, in so placing the hand-car must be necessarily sought for in the time, manner and circumstances under which the act was" performed, and from them you must determine whether the act of placing the hand-car in such a position was negligence on the part of the defendant, its employees or servants.
“ 8. You will notice that the only negligence imputed to the defendant is the ‘needless, unnecessary, unlawful, negligent and careless placing of the hand-car in the public highway, and so near the traveled and beaten track as to naturally frighten horses of ordinary gentleness traveling along said highway.’ Negligence is defined to be the want of care. In this case it is ordinary negligence that is imputed to the defendant. Ordinary negligence is the want of ordinary care and prudence ; that is, such care as men of ordinary care and' prudence exercise in matters of like kind, under like circumstances and surroundings, to avoid injury to others.
“9. Negligence is not presumed; it is a fact to be proven by the plaintiff; and it is a question of fact to be determined by you, from all the evidence in this case, whether the defendant, its employees or servants, were guilty of any negligence in placing the handcar upon its right of way, and near or upon the highway.
“10. It is not every obstruction on a highway, irrespective of its character, that is illegal, even though it is not sanctioned by any expressed legislative authority. Adjoining landowners may use a portion of the public highway temporarily in making repairs, for the deposit of materials or tools necessary for use in making such repairs, and thus temporarily obstruct a portion of the highway, and if they do not unnecessarily obstruct or interfere with the lawful use of the highway by others, negligence or wrong is not to be imputed to them for so doing. If you find from the evidence that the placing of the hand-car in such position was naturally or manifestly calculated, by its appearance and position, to frighten horses of ordinary gentleness and well broken to travel along the highway and traveling along the same, and that the defendant or its employees at the- time were aware of such fact, you will be justified in finding such act to be negligence on the part of the defendant, its agents and servants. If you find that the defendant • was guilty of negligence in placing such hand-car on its right of way near to the highway, or upon the highway and near the traveled track of,the same, and that the plaintiff was riding along said highway on a horse ordinarily kind and gentle, and broken to travel on the public highway, and the plaintiff’s horse, without fault of the plaintiff, was frightened by the . appearance of said hand-car and became unmanageable and threw the plaintiff- to the ground, and she sustained the injuries or some of the injuries alleged by her, your verdict must be for the plaintiff.”
“12. And if you find that the hand-car, situated and placed on the right of way of the defendant and outside of the limits of the highway, was placed in such a position by the employees of the defendant that it would naturally or manifestly frighten horses of ordinary gentleness and broken to travel on the highway, traveling along, and such employees were aware of the fact that a hand-car so placed was an object naturally calculated, from its appearance, to frighten horses ordinarily gentle and' well broken to travel on public roads and traveling along the same, and you further find that the plaintiff was riding such a horse along the said public highway, and her horse, without fault on her part, became frightened at the appearance of such hand-car, and became unmanageable and threw her to the ground, and she thereby sustained the injuries complained of, you should find for the plaintiff, if you find such act of the employees of the defendant to have been negligence.”
“15. The defendant in its second cause of defense alleges that the plaintiff’s injuries, if she has sustained any, were caused b> her own negligence in riding on a horse which was easily frightened and unsafe to be ridden by her. This is an affirmative defense, and the burden of .proving the same (except it is shown •by the evidence offered by the plaintiff) rests upon the defendant. The jury are instructed that it is the duty of a'traveler on the public highway who is about to cross a railroad-track to make vigilant use of his senses, in order to ascertain whether there is present danger in crossing, and a traveler who fails to take this precaution is not using ordinary care; and although you may find from the evidence in this casé that the defendant was guiliy of negligence in placing the hand-car in the place in which it was, and that it would naturally tend to frighten horses, still if you find from the evidence that the, plaintiff knew this fact, and on approaching said crossing did not exercise ordinary care and caution for the purpose of ascertaining whether or not it was dangerous for her to cross said crossing, she would not be using ordinary care, and if the injuries resulted from said failure she would be guilty of contributory negligence and could not recover, and in such case your verdict should be in favor of the defendant. You are further instructed, that although you may find from the evidence in this case that it was negligence on the part of the company to leave-the car in such close proximity to the traveled portion of the highway, and that it would naturally tend to frighten horses, still that fact did not relieve the plaintiff from the necessity of taking ordinary precautions for her safety.”
Y/e think the instructions of the court were clear, full, and stated the law applicable to the evidence in this case. We have examined the authorities cited in the brief of counsel for plaintiff in error and do not think they are applicable to the facts in this case. Most of them relate to the care to be observed by a person traveling upon the highway and approaching a railroad-crossing, where they are liable to come in contact with the engines and cars used in the operation of the road. It has been repeatedly held by the. courts of this country that a railroad-track is of itself a warning of danger, and the traveler upon the highway approaching a known railroad-crossing must recognize the danger, and exercise great care and caution in approaching the same ; that he must use his senses to discover whether a train of cars is approaching, so as to avoid a collision therewith or to prevent injury by fright to his team. It was the duty of the plaintiff below, when approaching the railroad-crossing and seeing the hand-car standing beside the railroad and near the road she was traveling, to use care and caution in the management of her horse, so as to avoid injury by the fright of her horse. She was under no greater obligation to use care to prevent injury by fright of her horse than she would have been in passing any other object at any other point on the road that was liable to frighten her horse, whether put there by the railroad company or some individual.
It is insisted that before the plaintiff can recover she must prove by the evidence of witnesses that the employees of the railroad company, at the time they placed the hand-car with the tools, etc., by the side of the road, knew that it naturally and manifestly was caloulated to frighten horses that were gentle and well broken ; and that, as the evidence failed to prove knowledge on the part of the employees, no recovery could be had ; and, on the other hand, it insisted that it was the duty of the plaintiff below to take notice that the hand-car, in the condition and position in which-it was placed, was a warning of danger, and, because she did not take greater care than was observed by her, she was guilty of negligence which contributed directly to her injury; in other words, that the traveler on the. highway is bound, at his peril, to have greater means of observing the danger than the party who places a dangerous object near the road. If the hand-car, in the condition and position in which it was placed, was such that the plaintiff below must take notice of its liability to frighten her horse, it seems evident that the parties placing it there must necessarily have known that it would naturally and inevitably frighten gentle and well-broken horses in passing along the highway. It was the duty of the employees of the railroad company, when they went out to repair the railroad crossing and removed the hand-car from the track, to use reasonable care in placing it where it would not necessarily and manifestly frighten gentle and well-broken horses. The plaintiff below was under corresponding obligations to use such care and caution, and so to manage her horse as to avoid injury by fright to her horse; and if the plaintiff below used such care and caution in the management of her horse as a reasonably prudent, careful person would under like circumstances, and has not been guilty of any negligence that tended directly to produce the injury, and if the employees were guilty of negligence in placing the hand-car in such position on the margin of the public highway, and she was injured in consequence of such negligence, she was entitled to recover for such injuries. The whole questions of the negligence of the employees of the railroad company and of the contributory negligence of the plaintiff below, if any, were properly submitted to the jury and weré proper subjects for the consideration of a jury.
It is claimed by plaintiff in error that the court erred in refusing to instruct the jury as requested by the railroad company. .We do not think there was any error in the court’s refusing to instruct the jury as requested by the defendant below. The court had instructed the jury fully on all that was necessary for their information concerning the law applicable to this case, and the general instructions contained all of the matter set out in the instructions requested that was proper or applicable to the issues and evidence in this case ; and the court was not compelled thereafter to use the exact expression set.out in the written instructions requested. The court had a right .to use its own form of expression, so that it stated the general principles of law applicable to the case correctly.
It is insisted by plaintiff in error that the court erred in the admission of evidence during the trial — that the testimony of Baker and Wagner was improperly admitted because : (1) The question of whether or not the obstruction in question would, or would not, naturally and manifestly tend to frighten horses of ordinary gentleness was not a subject for opinion or expert testimony ; (2 ) because the competency of the witnesses was not shown. It is claimed that a given object will not frighten all gentle horses, and consequently is not the subject for opinions of witnesses as to whether certain objects in the margin of the road will naturally or manifestly frighten gentle horses. The court sustained most of the objections to questions asked the witnesses, as to whether handcars set off the railroad-track in or near the public highway would have a tendency to frighten ordinarily gentle and docile horses. But after witnesses stated their occupation, their familiarity with horses, from handling of different kinds of horses for many years as farmers and liverymen, and their observation of habits and disposition of horses to become frightened at ob jects along the road, they were permitted to state what the usual habits of ordinarily gentle, docile horses were with reference to becoming frightened at handcars set off on the margin of public highways. The testimony of these witnesses was directed to the natural tendency of horses of ordinary gentleness and docility, in general. These witnesses were accustomed to observe the habits of all classes of horses, and had been accustomed to driving and riding horses along public highways, and had observed their natural habit to take fright from objects in and along the road. Their testimony was based wholly upon their statements as to their experience and observation for learning the natural tendencies of horses of ordinary gentleness and docility. We think they were competent to give evidence of the natural habits and tendencies of horses of this class. (1 Greenl. Ev. § 440.) But if the testimony of these witnesses was not competent, the testimony is not of such character as to have resulted prejudicially to the plaintiff in error. The witness Baker did not give any opinion respecting the question as to whether a horse of ordinary gentleness would naturally become frightened at such an object as a hand-car placed beside the road. All he said in that regard was, “I do not know whether it would or not.” The witness Wagner said: “It 'vvould scare some horses, and some it would not,” and he added that it would naturally have a tendency to frighten a horse of ordinary gentleness and docility.
The final contention of plaintiff in error is, that the plaintiff below was not entitled to recover under the special findings of fact returned by the jury. think the special findings of fact are in harmony with the general verdict and are consistent with the verdict. There is no inconsistency in the findings of fact, and there was no error in overruling the motion of defendant below for judgment against the plaintiff below for costs on the special findings of fact.
The judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
This was an action by Michael O’Neil, as plaintiff, against D. M. Edgerton, as receiver of the Inter-state Consolidated Rapid Transit Railway Company, for an injury to said O’Neil caused by a collision of one of the trains of the said railroad company with a wagon in which O’Neil was seated, and which at the time was attempting to cross the tracks of the street-railway. The accident complained of occurred at the street crossing at Ninth and Central avenue in Kansas City, Kan., upon what is known as the “ River View ” line, a branch of the*main line, and connecting therewith at River View station in Kansas City, Kan., and running through said city to Grand View station, its terminus, a distance of about two miles. This is a double-track road operated through said city, the trains of which are drawn by small dummy engines, the round trip being made in about 20 minutes. On the return trip, that is, from Grand View east to River View, the trains are run backward, not being turned at the western terminus, although switches are pro vided at that point for that purpose. About 100 yards west of the Ninth street crossing is a power-house, or car barn; between it and the place of collision, and about 200 feet distant therefrom, is a curve in the track. The avenue slopes with considerable grade from Tenth street to Ninth street. The train which caxised the injury was at the time going east and was running backward. On the day of the accident the plaintiff, O’Neil, had been at work grading on Tenth street and Central avenue, and between 6 and 7 o’clock was returning from his work to his boarding-house, seated in the rear end of a two-horse wagon which was driven by one Frank Buchanan. They had proceeded down Central avenue, on the north side thereof, from Tenth street to Ninth street, and at Ninth street the driver attempted to cross the avenue. To do so, he was compelled to cross both tracks, and he had crossed the north track, and was in the act of crossing the south when the train was discovered close upon them. The team and wagon escaped, but O’Neil, jumping therefrom, was struck by the train and injured. The jury made special findings of fact as follows
“1. What was the speed of the train in question? Ans. About 20 miles per hour.
“2. At what distance could the approaching train have been seen by, at and before the actual crossing of the track? A. About 600 feet.
“3. Did or not the plaintiff look to see if a train was approaching at the time before crossing the track or right of way of the defendant, after leaving the road the plaintiff was on? A. Yes.
“4. If the plaintiff did look, at what distance from and before attempting to make the crossing ? A. About 20 feet.
“5. At what distance was train from plaintiff when he first saw it, and could he then have escaped in time to have avoided the accident? A. About 45 or 50 feet; to the best of our knowledge, no.
“6. Did the plaintiff at any time, before crossing the track of the defendant, stop and either look or listen for any approaching train? A. Stopped, no. Looked, yes.
“7. What time of day did the accident occur? A. Between 6 and 7 p. m.”
“ 11. Was plaintiff guilty of any negligence ; if so, in what respect? A. No.
“ 12. Was, or not, Key, the conductor of the train in question, on the platform at the east end of the car which approached and came in collision with plaintiff? A. No.
“ 13. If on the platform of the car first approaching the crossing in question, was he or not on the lookout to avoid danger to plaintiff or others. A. Was not on platform.
“ 14. While on said platform, was he or not in a position to be in the immediate command of the brakes of said car? A. He was not on platform.
“15. On said platform, was he in a position to immediately command and use the bell-rope? A. He was not on platform.
“ 16. Did, or not, said Key, while on said platform, as soon as he discovered the plaintiff, or wagon and team, make use of the bell-rope and of the brakes as' soon as he discovered that said team and wagon were about to cross the track? A. No.”
These were all the special findings asked for by the defendant. Our attention is directed to six assignments of error, which we will consider in the order in which they are presented.
In overruling the defendant’s demurrer to the testimony.
The allegations set out in the petition are"that the defendant ran and operated its road in a grossly negligent and careless manner by running the trains thereon backward (that is, with engines or locomotives attached to the rear end of the train ) ; that such backward running is unnecessary and highly danger ous to the public safety ; that it neglected its duty by not keeping a careful watch on the front end of the train to avoid collisions; that the train in question was running at a high rate of speed, and it failed to sound the whistle, ring the bell, or give any other signal of approach of danger. Upon all of these allegations, testimony was introduced by the plaintiff which not only tended to prove, but we think established, each and every one of them. In fact, we might say, they stood, for the purposes of demurrer, uncontradicted, and the only fact that could be said to be disputed, or upon which there was any conflict of testimony, is as to the negligence of the plaintiff in attempting to cross the'track. The rule is well established, that where there is a conflict of testimony reasonable men might differ about, then it becomes a question of fact for the jury. And upon this proposition the jury found that the plaintiff was not guilty of any negligence. And this finding is upheld by the testimony introduced by the plaintiff. And should we admit that the testimony upon this proposition was weak, we would not feel warranted in reversing the judgment in this case for that reason alone, when it is so conclusively shown that the employees of the defendant in charge of the train were' so grossly negligent in its management, and where the most that could possibly be said of the plaintiff’s conduct is that, if he was negligent at all, his negligence was very slight. The supreme court of this state has repeatedly held, that where the negligence of one party is gross and that of the other is slight, notwithstanding the slight negligence the party may recover. (Sawyer v. Sauer, 10 Kan. 466; Pacific Rid. Co. v. Houts, 12 id. 328 ; K. P. Rly. Co. v. Pointer, 14 id. 37; W.& W. Rld. Co. v. Davis, 37 id. 749.)
The admission of evidence of any other accident on this road than this one in question.
This needs but little comment. "We have examined the record very carefully in this connection and fail to find any such testimony admitted over the objection of the defendant. In fact, we find that, upon objection made, it was invariably sustained, or a motion-to strike out was granted. It is true some.testimony looking in this direction was admitted, but without objection. The question is raised for the first time in the brief of counsel, and we cannot, therefore, understand how the defendant was prejudiced thereby.
That the court erred in giving the following instruction :
“4. If you find that the plaintiff was on a public .street, and at a public crossing, when he was struck by the defendant's train, he will not be considered a trespasser upon the rights of defendant by' being on its track, the right of the plaintiff and defendant in said street being equal, and the defendant was bound to run its train with reference to the plaintiff and all other persons rightfully on said street, and it was bound to use ordinary care and diligence so as to avoid injuring him."
The petition alléges, and it is admitted in this action, that this line of road was operated upon the public highway and public street in the city of Kansas •City, .Kan., and that the accident occurred at a public crossing. This being true, the plaintiff cannot be considered such a trespasser as would relieve the railway company from exercising ordinary care and diligence toward him. In fact, he would not be a trespasser at all. The company would be bound to run its trains with reference to him, and to every other person who might be rightfully occupying the the street. Such persons would have the same right to be in the street as the railway company. If the plaintiff and the railway company each has the right to use said ground, then it was incumbent upon each alike to use ordinary care and diligence to prevent and avoid injuries. In commenting upon this proposition, Mr. Justice Valentine, in K. P. Rly. Co. v. Pointer, 9 Kan. 628, said: “In fact, in this case the legal right of the railway company and that of the public to use this ground as a street seems to be about equal. Both derive their right from a city ordinance.” And, from the record in this case, it must be taken for granted that the public used this ground for a street before the railroad was built.
“The railway and the streets are equally highways. A legitimate use of either is a public right, and this right rests on the same basis in both. Parties are bound to care and diligence in using either, so their use shall not work an injury to others with the same rights. Persons crossing a railroad on a street or public highway are only exercising an undoubted right; but, in so doing, they must use the same care and vigilance for their safety, and the safety of- persons running on the railway, that the operators of the train use. In most cases, as the traveler on the highway .can arrest his progress easier and quicker than a railway-train, it would be his duty to stop on the approach of danger; but this obligation does not arise from the superior right of the railroad, but from the condition of the parties.”
And we think the rule obtains in this state that “ the people have the same right to travel on the ordinary highway as the railroad companies to run trains on the railroad (A. T. & S. F. Rld. Co. v. Morgan, 43 Kan. 13), and that their rights and duties are equal.” And this 'rule is founded upon reason .and supported by the great weight of authorities. But it is contended by the defendant in error that it should not be applied to street-railways. We fail to see any good reason for this argument. A street-railway has not exclusive rights to the use of its tracks and ground covered by it, as in case of an ordinary railroad company, and the fact that a street-railway often occupies a large portion of crowded streets, and that it is constructed and operated on the theory that it is not an additional burden on the highway, but is merely an additional use contemplated when the street was laid out, necessitates a liberal construction in favor of the rights of the public, and the law is averse to concede any exclusive right to that portion of the street to railway companies, except where the necessities of the case demand. And the-great weight of authority that refers to street-railways holds that, at a crossing, neither party has any paramount right of way; in other words, the rights are equal. While it is true, as between a street-car and an ordinary vehicle moving along the track, the car would have the superior right of way, this superior right of the car does not authorize its owners wilfully or negligently to injure one who refuses to recognize it. In O’Neill v. Railway Co., 129 N. Y. 125, the court says:
“As the cars must run upon the tracks, and cannot turn out for vehicles drawn by horses, they must have the preference ; and such vehicles must, as they can, in a reasonable manner, keep off from the track, so as to permit the free and unobstructed passage of the cars. In no other way can street-railways be operated. As to. such vehicles, the railways have a paramount right to be exercised in a reasonable and prudent manner; but a railway crossing a street stands upon a different footing. The car has a right to cross and must cross the street; and the vehicle has the right to cross and. must cross the railroad track. Neither has a superior right to the other.”
As was said in Improvement Co. v. Stead, 95 U. S. 165 :
“The mistake of the defendant’s counsel consists in seeking to impose upon the wagon too exclusively the duty of avoiding collisions, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country on the same level. The people have the. same right to travel on the ordinary highway as the railroad companies have to run trains on the railroad.”
In giving the following instruction :
“If you find from the evidence that the plaintiff or his driver drove upon defendant’s track without looking back to see whether an approaching train was in sight, still-such carelessness of the plaintiff would be no excuse for the defendant, its officers or servants, recklessly or wantonly to injure him; and if you find from the evidence that,- after the plaintiff was upon defendant’s track, and after the defendant, its officers or servants, saw, or by the exercise of ordinary prudence could have seen, that the plaintiff was upon its track, or in the act of going upon it, then said defendant, its officers, servants, and employees, owed a duty to the plaintiff to use all reasonable means in their power to avert the accident; and if you find that the defendant, its officers, servants, and employees, did not attempt to stop the train as soon as plaintiff was by them seen to be about to cross the track, but allowed the train to run down upon the plaintiff, and only stopped the train when the collision of the train with the wagon in which plaintiff was was imminent; and such train could have been stopped before it collided with such wagon, by the exercise of ordinary care, then you will find for the plaintiff.”
We cannot accept the theory of the defendant that’ this instruction was erroneous because it submits to the jury a question not in this case. Upon one branch of the negligence charged it is an important question, proving the conduct of the employees operating this train, and we think there is ample testimony to b «.oo this instruction on. It is also urged that this instruction gave the jury the right to guess as to the distance in which a train, running at the high rate of speed testified to, could be stopped. This is. not well founded. It was for the jury to say from the testimony what rate of speed the train was running. They were at liberty to say what testimony had most weight; which they would accept — chat of the engineer, or the other witnesses. If they accepted that of the former, then they could find very readily from the testimony whether the train was attempted to be stopped, or could have been stopped in time to have averted the. accident. If they believed the other testimony as to the rate of speed, then we concede that they could not tell in what distance the train could have been stopped, as there is no testimony upon this proposition. Still, they could tell whether an attempt was made to stop the train as soon as the employees saw the plaintiff was about to cross the track ; but they evidently disregarded the testimony of the engineer, giving more weight to that of the other witnesses, and so found; and they did not find in reference to the distance in which the train could be stopped, but did find “ that no attempt was made to stop when the plaintiff was discovered on the track.” It is very clear that this instruction did not mislead the jury, nor was the defendant prejudiced thereby; and, even if the contention of the plaintiff in error was true, the giving of an instruction upon an abstract proposition of law, and which is irrelevant to the issues in the case, is not reversible error, unless it may fairly be inferred that che jury was misled thereby; nor will an inapplica ble, and therefore improper, instruction to the jury require or authorize a reversal of the judgment of the trial court, where such instruction could not have prejudiced any of the substantial rights of the complaining party. (Zimmerman v. Knox, 34 Kan. 245 ; Ft. S. W. & W. Rld. Co. v. Karracker, 46 id. 511.)
That instructions 10 and 16 are in direct conflict, and that the giving of both of them was certain to confuse the minds of the jury and mislead them. Instruction 10 is as follows :
“ If you find from the evidence that the plaintiff was placed in peril by the carelessnessmnd recklessness of the defendant, its officers, servants, and employees, the propriety of an attempt to escape a reasonably apprehended danger is not to be determined by what a person of ordinary prudence and care would have done under the circumstances.”
Instruction 16 is as follows :
“ And it is further the law, that if the jury believe from the evidence that the plaintiff contributed to said injury by leapiug or jumping from the place where, if he had remained, he would not have been injured, and in so leaping or jumping he did not act as a reasonable and prudent man would have done under the circumstances, then the plaintiff is guilty of contributory negligence, and the jury should find for the defendant ; but in determining whether or not the plaintiff acted with reasonable care and prudence in jumping as he did, you must take into consideration the situation in which the plaintiff was placed at the time — whether his position was one of great danger, what time he had for deliberation, and all the other conditions and circumstances immediately attending the accident.”
We fail to see anything misleading or confusing in these instructions, or where they conflict. That they ■did not confuse or mislead the jury is clearly shown by the special findings. We think that the trial judge lias very clearly, concisely and ably presented the law in these two instructions.
‘ ‘ When one acts erroneously through fright or excitement, induced by another’s negligence, or adopts a perilous alternative in the endeavor to avoid an injury threatened by such negligence, or when he aets mistakenly in endeavoring to avoid an unexpected danger negligently caused by the defendant, he is not guilty of contributory negligence as a matter of law.”
See Railroad Co. v. Cantrell, 37 Ark. 519 ; Railroad Co. v. McCurdy, 45 Ga. 288 ; Fowler v. Railroad Co., 18 W. Va. 579 ; Railroad Co. v. Aspell, 23 Pa. St. 147 ; Railroad Co. v. Randolph, 53 Ill. 510; Coal Co. v. Healer, 84 id. 126 ; Kelly v. Railroad Co., 70 Mo. 604 ; Railroad Co. v. Stout, 53 Ind. 143 ; Karr v. Parks, 48 Cal. 188 ; Delamatyr v. Railroad Co., 24 Wis. 578; Railroad Co. v. Manson, 30 Ohio St. 451.
“Even though the injured person might have escaped the injury brought upon him but for his hasty and mistaken conduct in the face of danger, yet defendant’s negligence is the sole juridical cause for the injury and the plaintiff’s error of judgment only its condition, when plaintiff was placed in the position of danger without previous negligence on his part. When the negligence of the defendant or its agent places a party in such a situation that the danger of remaining where he is at the time is apparently as great as would be encountered in jumping or leaving it, the right of compensation or recovery is not lost by doing the latter, and this rule holds good even where the event has shown that he might have remained where he was with more safety.” (Railroad Co. v. Aspell, supra; Stokes v. Saltonstall, 13 Pet. 181.)
That instruction 17 is erroneous as to the measure of damages, in that it told the jury they might allow plaintiff for loss of time, physical suffering up to the time of trial, and such further damages as appear to be the probable result of plaintiff’s injury — there being no allegation of damages in tlie petition for loss of time.
Instruction 17 is as follows:
“If you find that the plaintiff is entitled to recover, you will find for him such an .amount as you shall deem fair and just in view of the injuries sustained, without regard to the character of the parties or the ability of the defendant to pay. There is no exact rule for the computation of damages in the case of personal injuries ; but if the plaintiff is entitled to recover you may allow for loss of time and for physical pain which has resulted up to the present time, and, if the plaintiff is still disabled from such injury, such further damages as appear from the .evidence to be the natural and probable result of such injuries,”
The law aims to afford full redress for personal injuries as well as for'others. The sufferer is entitled to compensation from the person by whose fault the injury occurred for all damages sustained that are the necessary and proximate result of the act complained of, such as physical and mental pain, loss of time, injury to business, and diminished working capacity. The last three mentioned represent very often the chief pecuniary loss from personal injuries. None of these is shown for the purpose of affording or establishing the measure of damages, but to aid the jury in estimating a fair and just compensation for the injuries sustained. A personal injury from a single wrongful act or negligence is an entirety, and affords ground for only one action. In that action recovery may be had for all damages suffered up to the time of the trial, and for all which are shown to be reasonably certain or probable to be suffered in the future. And we understand the rule to be, that when these are the natural and proximate result of the act’ complained of they need not be specially averred, but are recoverable under the general allegation of damages. In other words, all damages which are not the necessary and proximate result of the act complained of are special and must be S23ecially alleged. In Shepard v. Pratt, 16 Kan. 215, the court says:
“ It is unnecessary in most cases, where the demand is unliquidated and sounds wholly in damages, and where there is but a single cause of action, to state specially and in amounts the different elements or items which go to make up the sum total of damages. It is enough to claim so much in gross as damages for the wrong done. In such a case, the only limitations upon the size of the verdict are, that it shall not exceed the gross amount claimed, and that the jury in arriving at it shall have had regard to the true measure of damages.”
And the rule has been laid down by our supreme court in City of Atchison v. King, 9 Kan. 551, as follows :
“The measure of recovery is for loss of time, for expenses, and for physical pain which had resulted from the injury U2? to the time of the commencement of the action; and if the plaintiff is still disabled from such injury, such further damages as ap2oear from the evidence to be the natural and probable result of such injuries.”
And in Townsend v. City of Paola, 41 Kan. 591, it was held:
“It is error to instruct the jury that the injured party can only recover for damages resulting from the injury up to the time of the commencement of the action. . . . The injured party is entitled to recover all damages resulting from the injury, whether present or prospective.”
In that case the instruction given was as follows :
“ If you find that the jfiaintiff is entitled to recover, tlie measure of damages is compensation for the loss of time, for the expenses, and for the physical pain which had resulted from the injury wp to the time of the commencement of this action; and if plaintiff is still disabled from such injury, such further damages as appear from the evidence to be the natural and probable result of such injuries.”
The court held that this instruction was erroneous, and prejudicial to the rights of the plaintiff, inasmuch as it told the jury to estimate the damages from the time the injury occurred, January 81, until the commencement of this action, February 10, which only covered about 10 days of the time, and under it the jury were not allowed to take into account the condition of the plaintiff in error at the time of the trial, in October of the same year, or at any time between the commencement of the action and the trial. In commenting upon this instruction, the court says :
‘ ‘ Elements of damages in cases of this character are loss of time from business or employment, loss of capacity to perform the kind of labor done before the injury or for which the person is fitted, the expenses incurred for medical services, purchase of medicine, the cost of nursing, etc., and the physical pain suffered. (City of Atchison v. King, 9 Kan. 551.) In estimating the amount of damages to be given for permanent injury, the elements to be considered are, the former occupation of the plaintiff, and the amount of money received from it, in addition to, the physical suffering, and some other elements that particular cases may warrant. [Citing numerous authorities.] These are rules by which the damages are measured, whether the injuries inflicted were temporary or permanent in their character. ... In actions for personal injuries, the plaintiff recovers for permanent loss of earning power, which include both pecuniary loss he has sustained, and that which he is likely to sustain during the remainder of his life.” [Citing numerous authorities.]
The test-writers on the law of damages all say: “ The injured party is entitled to recover in one action compensation for all damages resulting from the injury, whether present .or prospecthpe.”
The allegations of the petition are sufficient to warrant the admission of testimony upon all the elements of damages and the testimony admitted is sufficient tó base these instructions upon, and they direct the .attention of the jury to the proper items to be considered by them in estimating the amount to be returned in their verdict. If the allegations in the petition' were in any manner indefinite and uncertain, as alleged by counsel, application should have been made to require the plaintiff to make the petition more definite and certain by amendment.
,The judgment of the court belo^ will therefore be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Cole, J. :
On the 17th day of April, 1896, L. D. Roberts made application to Hon. W. A. Johnson, presiding judge of this court, for-the issuance of a writ of habeas corpus, and the hearing of the matter was continued until the 2d day of June, and was heard before the court in regular session at Fort Scott..
The petitioner alleges that he is unlawfully deprived of his liberty by Allen Wheeler, sheriff of Bourbon county; and the cause of his said restraint he alleges to be, that about February 28, 1896, one Fletcher Oliver filed in the justice’s court of C. F. Coryell a bill of particulars demanding judgment against said Roberts for $300, and that a judgment was afterward rendered for said amount, together with costs taxed at $3.50, and that, after the rendition of tlie judgment, the said Fletcher Oliver filed with the justice of the peace his affidavit, setting forth the fact that he had obtained judgment against said Roberts, and alleging that the said Roberts had property which he fraudulently concealed, and that he liad converted a part of his property into money for the purpose of defrauding his creditors, and that he fraudulently contracted the debt upon which the judgment was obtained, and as a statement of facts to support such allegations stated in said affidavit that Roberts had told him (Oliver) that he had so disposed of his property that Oliver could get none of it; that he had money, but would not pay Oliver; that thereupon the said justice of the peace issued an order of arrest for said Roberts, directed to B. F. Waters, constable of the city of Fort Scott, and commanding him, in case the amount of the judgment in question should not be paid to him or property of the defendant be found within his county whereon to levy execution sufficient to satisfy the same, to arrest the said defendant, L. D. Roberts, and deliver him to the sheriff of Bourbon county, to be by him committed to the jail of said county and kept in. custody until discharged by law; that upon said affidavit and order defendant was arrested by said constable and delivered over to said sheriff, who now deprives him of his liberty.
The answer of the sheriff to the writ admitted . the arrest of said Roberts in the manner stated in the petition, and alleged that after the arrest said Roberts entered into a recognizance to remain within prison bounds until discharged by law; that afterward the sureties upon said bond presented to him a copy of said bond, together with the person of L. D. Roberts, and demanded that he take said Roberts into custody, and release said bond; and that thereupon the said sheriff took him into custody but refused to release said bond. The sheriff further alleged in his answer that he was thereupon served with a writ of habeas corpus issued by the probate judge of Bourbon county, who afterward remanded said Roberts into his custody, and that afterward the said L. D. Roberts presented another prison-limit bond, and that he again afterward took him into nominal custody at the request of said bondsmen. He also sets forth in his answer that neither said Roberts nor any one for him has paid the amount of the said judgment stated in the order of arrest.
There seems to be no real dispute as to the facts in this case. As stated in the petition, Oliver brought a suit against Roberts in justice's court, and judgment was rendered therein against Roberts for $300. No affidavit for an order of arrest was made prior to the rendition of the judgment, and no hearing was had upon any facts alleged to constitute a fraud upon the part of Roberts, and no finding was made by the justice of the peace, save and except the entry of a money judgment. After judgment had been rendered, the plaintiff, Oliver, filed an affidavit in substance as stated in the petition in this case, and upon the filing of said affidavit, and without any hearing as to the question of fraud, the order of arrest was issued by the justice, and thereunder the said Roberts was committed to the custody of the sheriff. These proceedings were had under paragraphs 4872 and 4873 of the General Statutes of 1889, which are as follows:
“ 4872. On judgment against the defendant, in any civil action before a justice of the peace, when the defendant is in the custody of the officers, as hereinbefore provided, or if, after judgment against him, there is filed in the office of such justice an affidavit of the plaintiff, his authorized agent or attorney, made before any person competent to administer an oath, stating the amount of judgment remaining unpaid, and one or more of the particulars mentioned in section 18, said justice of the peace shall, unless otherwise ordered by the plaintiff, issue an execution, and accompany the same with an order for the arrest of the defendant.
4873. Said order of arrest shall be addressed and delivered, with a copy of the affidavit, to the constable having said execution, and shall state the names of the parties, be signed by the justice issuing it, and state the amount of the judgment and costs unpaid, and shall require the officer, in case the same shall not be paid, or an amount of property of the defendant whereon to levy execution sufficient to satisfy the same cannot be found in his county, to arrest the defendant, if not already in the custody of the officer, and deliver him to the sheriff of the proper county, to be committed by him to the jail of the county, and kept in custody until discharged by law.”
So far as the discussion of the proposition involved in this case is concerned, we consider that the subsequent steps are not material. The contention of the petitioner is, that he has'been deprived of his liberty without due process of law, and if this be true it is immaterial whether the petitioner is actually confined j-n the jail of Bourbon county, or compelled to remain within the prison limits of said county by reason of the bond set forth in the answer of the sheriff. It is admitted that no provision is made by the code for a hearing with regard to the question of fraud, where the affidavit is filed by the plaintiff after judgment is rendered, and that the only provisions for the discharge of a debtor so arrested are contained in paragraphs 4609, 4610, and 4613, General Statutes of 1889. The first of these paragraphs provides, in substance, that any person taken on execution, where the process is. issued from a justice of the peace, may obtain his release by setting off to the officer personal property sufficient to satisfy the judgment and costs ; ■ the second provides for the giving of a bond by the execution debtor to remain within prison bounds ; and the third provides for his release upon his showing to the satisfaction of the justice who issued the execution that he was unable to perform the act therein commanded or to endure the imprisonment, and such discharge is allowed upon terms that may seem just to the justice of the peace making the order.
Section 16 of the bill of rights provides : “No person shall be imprisoned for debt except in cases of fraud.” The obvious meaning of this is that there shall be no imprisonment for debt except in a case where fraud has. been established. Fraud is never presumed. It is something which must be proved, and proved before a court having jurisdiction to pass upon the question. Consequently, before one in this state may be imprisoned for fraud, there must have been a judicial finding, upon due process, of law. Section 1 of article 14 of the constitution of the United States provides that no state shall “deprive any person of life, liberty or property without due process of law.” In the famous Darmouth College case, Daniel Webster enunciated the following definition of what is meant by due process of law, which is copied approvingly by Judge Cooley in his work on Constitutional Limitations (Cooley, Const. Lim., p. 408, § 353):
"By the law of the land is most clearly intended the general law; a law which hears before it condemns ; which proceeds upon inquiry, and renders judgment only after trial.”
Taking this definition as a basis, we are forced to the conclusion that the sections in controversy are contrary to the letter and spirit of our bill of rights and the constitution of the United States. Nowhere is there any provision for a hearing and determination of the question of fraud where the affidavit of the plaintiff in an action is filed after judgment. No opportunity is given for an appeal from this portion of the judgment. Under this provision, a plaintiff might sue upon an ordinary promissory note to which the defendant admitted he had no defense and therefore made no appearance. An ordinary judgment might be rendered by the justice of the peace, and upon this ordinary judgment, if plaintiff should file an affidavit under the statute, the arrest and incarceration of the defendant would follow for fraud, without any hearing ever having been had, or any determination made, that fraud had been perpetrated by said defendant. It is argued by counsel for the respondent that if the affidavit is false the maker thereof may be punished for perjury, or the defendant may obtain his release by one of the .methods prescribed by statute. Neither of these arguments answers the objection to the statute. The plaintiff making the affidavit might not be guilty of perjury, for in his own mind he might honestly believe the statements contained in his affidavit to be true, and even if they were wilfully false the law never intended that one man should be imprisoned upon the affidavit of another, without a hearing and determination by a competent court of the truth of the grounds alleged which warrant such imprisonment. And sp far as the provisions of the statute with regard to the release of a defendant are concerned, they in no manner relieve him from the finding of fraud made by the court. In this case the record shows that the petitioner filed a counter-affidavit denying the grounds of fraud alleged by the plaintiff, and denying the facts set up as a basis for the allegations of fraud, but he was denied a hearing, for the reason that the statute nowhere provided for a hearing after judgment upon this question. In San Mateo v. Southern Pacific Rld. Co., 8 Am. & Eng. Rld. Cas. 27, the court uses the following language :
“ By due process is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary manner prescribed by the law; it must be adapted to the end to be attained; and it must give to the party to be affected an ojoportunity of being heard respecting the justice of the judgment sought. Without these conditions entering into the proceeding, it would be anything but due process of law. If it touched life or liberty, it would be wanton punishment, or rather wanton cruelty.”
We do not consider it necessary to cite a large number of cases or to continue a discussion of this question. The principle here enunciated is too well recognized at this date to demand it. We are forced to the conclusion that the sections in question, so far as they permit the arrest of a judgment debtor upon the affidavit of the plaintiff, his agent or attorney, and the incarceration of such debtor in the jail of tlio county without an opportunity of having a hearing upon the question of fraud, are contrary to the bill of rights and to the constitution of the United States.
The petitioner will therefore be discharged.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P.J.:
This suit was commenced originally in the district court of Sumner county by Harriet Bohanna against John A. Murray, Fannie C. Murray, C. Everest Elliott, Camilla Elliott, Mrs. W. J. Pace, Thomas A. Page, The Showaiter-Morigage Company, L. H. Everts & Co., J. D. Patterson. Frank D. Irland, administrator, Dustan Adams, Av thur L. Keyes, Thomas J. Ross, and The Loan and Guaranty Company, to recover upon a certain promissory note for $1,100, given by John A. Murray and C. Everest Elliott to Harriet Gatliff on the 20th day of August, 1887, and to foreclose a mortgage given by said Murray and wife and Elliott and wife to secure the payment of said note. The plaintiff below alleged in her petition that, at the time of the execution and delivery of the note and mortgage she was the wife of one J. B. Gatliff, and that afterward a divorce was granted to her, and that by the decree of said divorce proceedings she was restored to her former name, Harriet Bohanna; that the note sued on was given by said defendants John A. Murray and C. ^Everest Elliott to Harriet Gatliff, and that she has been and now is the lawful owner and holder thereof.
John A.(Murray and Fannie C. Murray, on the 28th day of January, 1890, filed their separate answers in said cause, containing a general denial, and alleging that said Harriet Bohanna was not the owner and holder of said note, and denying that she was the real party interested in said cause. The defendants C. Everest Elliott and Camilla Elliott filed their separate answers in said cause, containing a general denial, and alleging that, since the execution of the note set out in plaintiff’s petition, said defendants Elliott and Elliott had conveyed to their codefendant John A. Murray their interest in the premises covered by the mortgage given to secure the payment of said note, and that, at the time of executing the conveyance, John A. Murray agreed and assumed to pay the note and mortgage given to Harriet Gatliff. Harriet Bohanna filed replies to the separate answers of Murray and Murray and of Elliott and Elliott. The other defendants made no appearance and filed no answers in said action. The case was tried on the issues joined under the petition and the separate answers and replies, and judgment was rendered in favor of the plaintiff below against the defendants John A. Murrary and O. Everest Elliott for the principal and interest due on said note up to the time of the trial. John A. Murray and Fannie G. Murray filed motions for a new trial, which were overruled, and exceptions taken, and a case made was, filed in the supreme court.' After the case was filed in the supreme court John A. Murray departed this life, and Fannie G. Murray was appointed ad minis tratrix of his estate, and the action has since been revived in the name of the said Fannie O. Murray, and has been duly certified by the supreme court down to this court for review.
The case comes to this court on the petition in error of John A. Murray and Fannie C. Murray. None of the other parties defendant below is made a party in this court. We are met at the very threshold of this case with a motion to dismiss the petition in error for want of proper parties, and also by a motion on the part of the plaintiff in error to amend her petition by making G. Everest Elliott a party.
The judgment in this case was a joint judgment against John A. Murray and O. Everest Elliott for $1,516.90, bearing interest at the rate of 10 per cent, from the date of the rendition of said judgment, with a decree foreclosing the mortgage given to secure the j>ayment of. the sum of money for which judgment was rendered, and an order for the sale of the mortgaged property, and providing that, in case the mortgaged property should fail to satisfy the judgment, the plaintiff have execution against Murray and Elliott for the deficiency, and that execution issue against Murrav first.
" We do not think the plaintiff in error should be allowed to amend the petition in error and bring parties before the court more than one year after final judgment has been rendered. Section 556 of the code of civil procedure provides that “no proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition” thereof.
In the case of Paper Co. v. Hentig, 31 Kan. 317, Valentine, J., speaking for the court, says :
“We think that under no circumstances should a party be allowed to gain an advantage by' bringing the case to the supreme court and omitting, to make some of the interested parties parties in the supreme court; and in no case should a judgment be interfered with by the supreme court where one of the parties to the judgment is not a party in the supreme court.”
The motion to amend the petition in error and make O. Everest Elliott a party defendant is overruled.
The judgment brought before this court is a joint judgment against John A. Murray and G. Everest Elliott, and Elliott has at no time taken any exceptions to the judgment or the proceedings on the trial which resulted in the judgment, and at all times since has acquiesced therein, and takes no exceptions thereto, and has not been made a party or brought into this bourt. The judgment being joint against Murray and Elliott for the recovery of the amount of the note and interest sued upon, and so connected with the decree of foreclosure that a reversal of the same would affect all the parties thereto, the reversal of the judgment as to Murray would leave the judgment in full force as against Elliott. This court cannot reverse or modify a judgment unless all the parties to be injuriously affected thereby are brought befox-e the court. (Ex parte Polster, 10 Kan. 204; Armstrong v. Durland, 11 id. 15 ; Hodgson v. Billson, 11 id. 357 ; Bain v. Conn. M. Life Ins. Co., 3 Kan. App. 346; Paper Co. v. Hentig, 31 Kan. 322 ; McPherson v. Storch, 49 id. 313.)
The petition in error will therefore be dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
This was an action in replevin to recover the possesion of a certain stock of drugs, drug sundries, prescription case, show-case, and all the fixtures and articles used in connection with carrying on a drug-store, in a certain building in Osage City, Kan. The possession of this property was claimed under a certain chattel mortgage executed by J. V. Quinton-to M. L. Campbell, bearing date March 17, 1890. The property was described in the mortgage as follows :
“All the drug stock, drug sundries, prescription case, show case, and all fixtures and tools in said stock of drugs now in the building on the north end of lots 2, 4, and 6, block 17, Wetherall’s addition, known as the drug stock heretofore owned by M. L. Campbell, bought of L. V. D. Tosh, with all future purchases by the party of the first part and placed in said stock.”
This chattel mortgage was given to secure a note of $1,500 for the purchase of the drug stock, sundries, and all of the store fixtures. The purchase price of the stock and fixtures was $800, but at the request of ■the purchaser the note was given for $1,500, and the ■sum of $700 was indorsed on the note at the date of its execution. The mortgagor paid nothing on the purchase of the drugs, and the note was for the goods actually purchased, and was secured by chattel mortgage. The mortgage provided that the stock of goods might be removed to another room or building situated in the same town, just on the opposite side of the street from where the goods were situated at the time of the sale. The note was payable one year after date, with interest. The mortgage contained the following covenants:
“And it is hereby mutually covenanted and agreed between the parties hereto, that if default be made in the payment of said sum of money or any part thereof, or interest thereof, according to the terms and effect of said note, when the same become due and payable, or upon- a failure to conform to or comply with any of the conditions ór agreements herein mentioned, the whole sum of money secured shall, at the option of the legal holder or holders thereof, become due and payable at once without notice. And it is further agreed, that in case of a sale or disposal or attempt to sell or dispose of the goods and chattels hereby mortgaged, or a removal of or attempt to remove the same from the county aforesaid, or an unreasonable depreciation in value, or if from any cause the security shall become inadequate, or the party of the second part shall deem himself insecure, then and thenceforth it shall be lawful for said party of the second part, his legal representatives, executors, administrators, or assigns, to enter upon the premises of the said party of the first part, or any other place or places wherein said goods and chattels aforesaid may be, to take, remove and dispose of the same, and all equity of redemption of the said party of the first part, at public auction or private sale, to the person ■or persons who shall offer the highest price for the same.”
Within three days of the time the debt was due the plaintiff deemed himself insecure, and demanded of the defendant the possession of the stock,of drugs, etc., under his chattel mortgage, and the defendant refused either to pay the debt or deliver up possession of the mortgaged property, and this action was commenced to obtain possession. Under the order of delivery, the deputy sheriff seized the stock of drugs, fixtures, etc., and, after holding them 24 hours, delivered them over to the possession of the plaintiff. The stock still remains in the possession of the mortgagee, and the matters in dispute are between the original mortgagor and the mortgagee. The rights of other parties were not involved as to the validty of the mortgage or any rights thereunder, at the time of the commencement of the suit in replevin.
It was claimed on the trial that subsequently to the replevin the defendant had sold and assigned all of his right to the drug stock, and all claims of damages arising out of the replevin suit, and on the trial evidence was offered to prove this fact, which was ruled out, and exceptions were taken to the ruling of the court. This is the first error complained of by plaintiff in error. The plaintiff offered to prove, by questions properly propounded to a witness on the stand, that since the commencement of this action the defendant in this case had sold and disposed of all his interest in and to the property described in the plaintiff’s petition and in controversy in this action, and .had assigned to other parties his right for damages against this plaintiff for the taking of the property, and that these parties to whom these rights and claims were assigned then had an action pending in the district court of Osage county, Kansas, against this plaintiff for the value of the property in controversy. To the offer of the proof the defendant objected, as being incompetent, irrelevant, and immaterial. The objection was sustained by the court and the plaintiff saved an exception thereto. We think the court should have permitted plaintiff to prove, if such was the fact, that the defendant had, since the commencement of this action, parted with any or all interest he may have had in or to the property in controversy; so that if, for any cause, the defendant was entitled to the possession of the property, or any part thereof,' when the action was commenced, but for some reason his right to the possession had expired — been transferred, extinguished, or lost — at the time judgment is rendered, the defendant is not entitled to judgment for the return or for the value of the same.
In replevin, if the plaintiff fails to sustain his action, it becomes necessary to inquire into and determine whether or not the property shall be returned to the defendant, and this inquiry necessarily involves a determination of the title and right of possession as between the contending parties. If on a trial of the rights of property or the right of possession thereto in an action of replevin it is shown that the defendant is the owner of the property, or has a right of possession thereto by reason of some special fact, a return of the property will he ordered, or, in case a return cannot be had, a judgment for the value thereof, or the value of the interest of the defendant therein, or the value of his right to the possession thereof. It ie a well-settled rule of law that a return of the property replevied will not be ordered when it is shown that it would be inequitable to return it to the defendant.
It is sometimes the case at the commencement of an action in replevin, that the defendant'does not unlawfully detain the possession of the property, bu¡ owns it, or has some pecuniary interest therein, and sometimes it may occur that the defendant at the commencement of the replevin suit had some interest in the property, but for some reason before the trial of the case the interest has terminated or been lost in some manner. In actions of replevin, where the property and the parties are before the court, the court should as far as possible adjust all equities which arise between the parties respecting the disposition of the property, determine all matters between them in relation to or growing out of the property, and should hear all testimony respecting the ownership or right of possession thereto, so as to render such judgment as shall do justice between the parties, not only as to the ownership or right of possession at the commencement of the action, but that the property may be disposed of by the judgment of the court so as to do no injustice to either party. (City of Bath v. Miller, 53 Me. 316.)
The final contention of counsel for plaintiff is that the court erred in the instructions to the jury, where it took the position — and so instructed the jury — that the property subsequently purchased by the mortgagor and added to. and mingled with the mortgaged property by the mortgagor — even though the mortgage expressly provided that the mortgage lien should extend to and cover after-acquired property added to the stock of drugs, and that the mortgagee should be authorized to take possession of the same in case of condition broken in the mortgage, or in case lie should deem himself insecure — became in no way subject to the mortgage lien, or under the dominion or control of the mortgage.
At common law nothing can be mortgaged that does not belong to the mortgagor at the time when •the mortgage is made. (Pierce v. Emery, 32 N. H. 484; Cameron v. Marvin, 26 Kan. 628.) Parties may-make contracts with reference to future-acquired property to be added to and made a part of the property mortgaged, and the contract will be valid and binding between the parties, and if the future-acquired property is mingled with the property described in the mortgage, and is added to and becomes a part of the stock of goods mortgaged, and the rights of third persons have not intervened, it becomes a lien on all the property so intermingled and added to the mortgaged property. A mortgage of future additions to a stock of goods in a particular storeroom is a valid mortgage of such goods as fast as they are put into the storeroom by the mortgagor and become a part of the general stock covered by the mortgage.
The case of Leland v. Collver, 34 Mich. 421, was a suit in trover for the conversion of certain furniture •that had been the stock in trade of the plaintiff. The •defendant justified under a chattel mortgage which was given for the purchase-money of the stock of goods mentioned in it. The property mortgaged was set forth and described in the following terms :
“All the goods, wares, and merchandise, chattels •and effects, mentioned and described in the schedule hereto annexed, and marked ‘Schedule A,’ this day bought of Hienden & Collver, thereby intending to convey all the present stock in trade as enumerated in said schedule, also, all the stock I may have from time to time in trade, as security for the above-named consideration, said goods to remain and continue in possession of the party of the first part, in the village of Three Rivers, Mich., except as they are disposed of in the usual course of retail trade ; the party of the first part is to have the privilege of selling the goods for cash or on credit in the usual course of trade, and is to apply the proceeds of the sale in buying other goods to keep up the stock and to support his family. The party of the first part covenants to keep up a stock of like goods to the value of $3,000, as security to the party of the second part, until the above amount, with interest, is paid, and also covenants to keep the stock insured to the amount of $2,000 for the benefit of the party of the second part, and as collateral thereto, and a breach of the last two covenants shall cause the whole sum secured to become due and payable.”
.Campbell, J., delivering the opinion of the court, says:
‘ ‘ In the prese'nt case the - parties have seen fit to stipulate expressly that the body of the fund may be changed without losing its identity, and that the mortgage may deal with it as if unchanged. The various purchasers have made their purchases subject to this arrangement and are estopped from denying it. The mortgagees in taking the properly did only what Shnyder agreed they might do, and what the several purchasers also understood they were authorized to do.”
In the case of Dalton v. Laudahn, 27 Mich. 529, where the power was contained in a lease, it was further held that the agreement was valid and operative according to its terms. And no good reason occurs to show, and we think there is no satisfactory authority, why it should not be. Parties'can, if they choose, make contracts of agency, bailment or other authority as broadly as they choose, where no legal policy and no paramount right intervenes before their enforcement. And if those agreements contain a license or permission to take possession and sell, no court can deny the validity of the possession and sale, if the parties are capable of contracting, and no other rights intervene.
Story, J., in delivering the opinion in the case of Mitchell v. Winslow, 2 Story, 630, says :
“It seems to me a clear result of all the authorities, that wherever the parties by their contract intend to create a positive lien or charge either upon real or personal property, whether then owned by the assignor or contractor, or not, or if personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires title thereto, against the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy.”
The case of Gregg v. Stanford, 24 Ill. 20, was a bill in chancery by Hiram Stanford, in the Edgar circuit court, against William Snyder et al., upon which an injunction was obtained to restrain the defendant William Snyder, as sheriff of Edgar county, from proceeding to sell 150 head of hogs upon which he had levied an execution issued by the clerk of the circuit court, uxjon an attachment obtained in said court by defendant Jacob Gregg against one M. S. Edmiston. The hogs were levied upon as the property of David Edmiston. The bill set out that the defendant Edmiston was largely indebted to the complainant for interest due on a note for $11,000 given for the purchase-money of a tract of land and divers small sums, amounting to $1,758.24, money advanced by the complainant to David Edmiston to purchase hogs, and that the complainant was under obligation to advance to Edmiston further sums for that purpose, making in all the sum of $5,000 ; also, that the complainant was the security of said Edmiston on a contract with Messrs. Powell, McEwung & Co., of Madison, Ind., to deliver to them 1,000 corn-fatted hogs by the 20th of December next, to fill which contract the money advanced and furnished by the complainant was to be used for the purchase of hogs and corn and pasture to feed and fat the same ; and that, in order to secure the payment of said sums of money so advanced and said indebtedness of the said Edmiston, as well as to indemnify him as the security on said hog contract (which is filed as an exhibit with the bill) , the said David Edmiston made and executed to the complainant a mortgage, which is made, an exhibit and filed with the bill of complaint. The mortgage, as the consideration on which it is based, sets out the aforesaid indebtedness for the money advanced by the complainant to purchase hogs to fill the contract, and hie liability as security upon said contract. The mortgaged property includes some real estate, a large amount of chattel property, and among other things the corn and hogs which the said Edmiston may purchase with the money advanced ; and is conditioned that it shall become absolute if the said Edmiston shall refuse to pay the $5,000 so advanced, with 10 per cent, interest thereon, and save the complainant harmless as his security on said hog contract, by delivering the hogs in accordance with the terms of the contract, and also apply all profits, or enough of them, arising from the hog contract, to the payment of the interest due on the note of $11,000. It also stipulates that Edmiston may retain the possession of the hogs purchased until the 1st of March, 1860, and if default is made, then the complainant may take possession and sell the property by advertising for 10 days. Breese, J., delivering the opinion of the court, says: •
"We have examined with great care all the- cases to which reference has been made on both sides, and we are by no means satisfied that the party cannot mortgage property to be acquired after the execution of the mortgage, provided the mortgage deed is properly executed, acknowledged, and recorded, or possession taken of the property before any lien has attached ; and that a court of equity will protect the mortgagee where the transaction is fair and honest.”
In the case of Pennock v. Coe, 23 How. 117, the bill was filed by Coe, who was mortgagee of the Cleveland, Zanesville & Cincinnati Railroad Company, in the circuit court of the United States for the northern district of Ohio, to enjoin the execution of a judgment recovered at law against the company by Pennock and Plart. The Cleveland, Zanesville & Cincinnati Railroad Company issued bonds to the amount of $500,000, payable 10 years after date, with interest coupons attached payable semiannually on the 1st days of April and October of each year, and to secure the payment of the same executed a mortgage on the railroad and its equipments to the complainant, in trust for the bondholders, the description of which is in words as follows :
“All the present and future-to-be-acquired property of the parties of the first part; that is to say, their road, made or to be made, including the right of way and the land occupied thereby, together with the superstructure and tracks thereon, and all rails and other materials used therein, or procured therefor with the above-described bonds, or the money obtained therefor, bridges, viaducts, culverts, fences, depots, grounds and buildings thereon, engines, tenders, cars, tools, machinery, materials, contracts, and all other personal property, right thereto, or interest therein, together with the tolls, rents or income to be had or levied therefrom, and all franchises, rights and privileges of the parties of the first part in, to or concerning the same.”
Nelson, J., delivering the opinion of the' court, says :
“ The main argument urged against it is founded upon the maxim, that ‘a person cannot grant a thing which he has not,’ Ule non habet, non dut; and many authorities are referred to at law to prove the proposition, and many more might have been added from cases in equity, for equity, no more than law, can deny it. The thing itself is an impossibility. It may at once, therefore, be admitted, whenever a party undertakes, by deed or mortgage, to grant property, real or personal, in presentí which does not belong to him or has no existence, the deed or mortgage, as the case may be, is inoperative and void, and this either in a court of law or equity.
‘ ‘ But the principle has no application to the case before us. The mortgage here does not undertake to grant, in presentí, property of the company not belonging to them or not in existence at the date of it, but carefully distinguishes between present property and that to be afterwards acquired. Portions of the road had been acquired and finished, and were in operation when the mortgage was given, upon which-it is conceded it took effect; other portions were acquired afterwards, and especially the iron and other fixtures, besides the greater part of the rolling-stock.
“The terms of the grant or conveyance are: ‘All present and future-to-be-acquired property of the parties of the first part’; that is to say, ‘their road, made or to be made, and all rails and other materials, etc., including iron rails and equipments, procured, or to be procured/ etc. We have no occasion, therefore, of calling in' question, much less denying, the soundness of the maxim so strongly urged against the effect of the mortgage upon the property in question, as its force and operation depend upon a different state of facts, and to which different principles are applicable. The inquiry here is, not whether a person can grant in presentí property not belonging to him, and not in existence, but whether the law will permit the grant or conveyance to take . effect upon the property ■when it is brought into existence and belongs to the grantor, in fulfilment of an express agreement founded on a good and valuable consideration; and this when no rule of law is infringed or rights of a third party prejudiced. The locomotives-and cars were all placed upon the road as early as February, 1854, when, at the furthest, the mortgage attached to those in question, according to its terms, if at all, and the judgment of the defendant was not recovered till May, 185Q.”
In the case of Galveston Rld. Co. v. Cowdrey, 11 Wall. 473, Bradley, J., delivering the opinion of the court, says:
“ As to the first point, without attempting to review the many authorities on the subject, it is sufficient to state that, in our judgment, the first, second and third deeds of trust or mortgages given by the Galveston Railroad Company to the trustees estop the company, and all persons claiming under it and in privity with it, from asserting that those deeds do not cover all the property and rights which they profess to cover. Had there been hut one deed of trust, and had that been given before'a shovel had been put into the ground towards constructing the railroad, yet if it assumed to convey and mortgage the railroad which the company was authorized by law to build, together with Its superstructure, appurtenances, fixtures, and rolling-stock, these several items of property, as they came into existence, would become instantly attached to and covered by the deed, and would have fed the estoppel created thereby. No.other rational or equitable rule can be adopted for such cases. To hold otherwise would render it necessary for a railroad company to borrow money in small parcels as sections of the road were completed and trust deeds could safely be given thereon. The practice of the country and its necessities are in coincidence with the rule. The precise case arose in New Jersey 30 years ago. The Morris Canal Company mortgaged its canal, appurtenances and chartered rights to secure a loan. When the mortgage was given one section of the canal, that between Newark and Jersey City, although authorized, was not constructed. It was constructed after-.wards. Two other mortgages were given upon that part of the canal, one of which was held by the state of Indiana. A bill of foreclosure was filed on the firs! mortgage, and, after argument by very able counsel, Chancellor Pennington held that the first mortgage took priority. The objection was raised that the company did not own any of the land on which the contested portion was constructed when the mortgage was given. ‘ Can it be possible/ said he, ‘ that if on the line of the route at any place it should turn out that a deed was obtained for a piece of land since the execution of the mortgage, that such part of the canal is not embraced within it?' ”
In the case of Moody v. Wright, 13 Metc. 17, Dewey, J., delivering the opinion, says :
“A stipulation that future-acquired property shall be holden as security for some present engagement is an executory agreement of such character that the creditor with whom it is made may, under it, take the property into his possession when it comes into existence and is the subject of transfer by his debtor, and hold it for his security; and whenever he. does take it into his possession, before any attachment has been made of the same, or any alienation, such creditor, under his executory agreeanent, may hold the same ; but until such an act be done by him he has no title to the same; and that such an act being done, and the possession thus aquired — the executory agreement of the debtor authorizing it — it will then become holden by the virtue of a valid lien or pledge. The executory agreement of the owner in such a case is a continuing agreement, so that when the creditor does take possession under it he acts lawfully, under the agreement of one having the disposing power; and this makes the lien good. If, however, before taking possession, or doing such acts as are necessary to give validity to the mortgage, as to the subsequently acquire property, an attachment or assignment takes place, the opportunity for completing the lien is lost.”
In the case of Chapman v. Weimer, 4 Ohio St. 486, it was held that a duly recorded mortgage of personal property, which expresses that the mortgagee may himself take possession of newly acquired property, the mortgagee acquires a valid lien under his mort gage without having the property actually delivered to him by the mortgagor.
In the case of Cameron v. Marvin, supra, which was an action in replevin to recover certain grain, flour,, and other property, which had been levied upon by Marvin, as sheriff of Phillips county, plaintiffs claimed the right of possession under certain chattel mortgages. They took possession of the property under their chattel mortgages and also at the same time-took possession of some other property belonging to the mortgagor, consisting of grain, flour, etc., which was mixed with the mortgaged property, but which the mortgagors did not have or own at the time of the execution of the mortgages. Plaintiffs claimed that they took possession of all this property not only under their chattel mortgages,-but that they took possession of such additional property as additional security for their debt. Valentine, J., delivering the opinion of the court, says :
“ Of course this property was not included in the mortgages at the time of their execution. In fact, it could not have been included in the mortgages at that time, for it was not within the power of any person to mortgage property which does not exist or which does not belong to him. He cannot mortgage property which is afterward to be acquired, or purchased, or procured. He can only mortgage property which at the time is in existence and to which he has a title. Parties may make contracts with reference to future-acquired property, and contracts which will be legal • and valid and will be upheld ; but such contracts do not constitute chattel mortgages. They are simply executory contracts, to be performed in the future : and while they are binding upon the parties making them, they are void as to third persons who have no notice respecting them. They can never be treated as chattel mortgages affecting third persons. Such contracts, however, are always held valid as though they were chattel mortgages as against third, persons who have not in the meantime obtained any specific interest in the property, when the mortgagee has obtained possession of the property under the contracts.”
The evidence on the trial in this case shows that all of the property taken by the plaintiff which was not in the store and not owned by the defendant at' the time the mortgage was executed, and included therein and covered thereby, was subsequently purchased by the defendant and placed in said mortgaged stock; that the defendant had been selling out of the stock of drugs from the time he first bought them, and from time to time added new drugs to the stock of drugs and drug sundries, and that he was simply keeping up or adding to the stock that he had purchased of the plaintiff, for which he had never paid the plaintiff any part of the purchase-money.
We think the chattel mortgage was valid; that it is a lien on all the drug stock and drug sundries that were in the store and owned by the defendant at the date of its execution, and that it became alien on all of the subsequently acquired drugs, drug sundries, etc., as soon as they were purchased and added to the general stock in the store, and that plaintiff, on the breach of the conditions of the mortgage, or on his deeming himself insecure, had authority to take possession of the drug stock, drug sundries and fixtures then in the store, and to sell the same to pay his debt and cost of making such sale, and, bn refusal of defendant to deliver up the property to plaintiff on demand, he had the right of possession — that he could maintain replevin for the recovery thereof.
The judgment of the district court is reversed, and the case remanded, with direction to set the judgment aside and grant a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
We think the theory of this action adopted by the court below is correct — that it is an action between the guardian and his ward and not between the guardian and the Farmers and Drovers Bank- — and the only issue presented- by the pleadings, and the proof offered in support thereof, was whether or not the defendant Moser had or had not been negligent in the discharge of his duties. The petition charges a breach of the'condition of his bond, viz., ‘ ‘ that he did not faithfully discharge his duties as guardian.”
The answer alleges that
■“he had used due care and diligence in his attempt to collect the legacy sought to be recovered in this action, and without any fault or negligence on his part had failed to do so.”
The reply denies this, and the testimony offered by the plaintiff upon the trial was unquestionably for the purpose of showing-the negligence on the part of the defendant in not collecting this money from the parties the plaintiff claims were liable therefor, as well as want of diligence upon his part. But the plaintiff now contends that no question of negligence or diligence is in issue, yet he insists that the law of this case is, that “itis incumbent on a trustee to manage the trust estate in the same manner that a discreet man would manage his concerns, and he is accountable if ho neglects to perform his duty”; that “a trustee is bound to manage and employ the trust property for the benefit of the ceshd que trust with the care and diligence of a provident owner,” and cites authorities in support thereof. "We agree with him that such is the law and that it governs in this case. And it is also true that a guardian, who in good faith, and using reasonable care to select a proper agent, selects one of good repute to make a collection of a claim of his ward, and such agent collects the money due thereon and keeps it, is not liable to his ward for the loss. (Holman v. Blue, 10 Ill. App. 130.)
A rule which would subject a guardian to a sort of fine for mere error in judgment is inapplicable to the character of the office. (McElheny v. Musick, 63 Ill. 328; Landmessird’s Appeal, 126 Pa. St. 115.)
The jury passed upon this question of negligence and found in favor of the defendants, and these findings are supported by ample testimony.
“1. Did the defendant Moser use ordinary care and prudence in attempting to secure the legacy belonging to the plaintiff? Ans'. Yes.
'‘2. Did the defendant Moser ever receive the-amount of the legacy due to the plaintiff from the estate of A. I. Beach? A. No.
“ 3. Was the defendant Moser guilty of any negligence in attempting to secure the amount of the legacy due to the plaintiff? A. No.’
Under the rule so well established in this state, the verdict will not be disturbed so far as this question is concerned.
Again, it is urged that this guardian was also cashier of the Farmers and Drovers Bank, and, as such, forwarded this draft through the bank to the Ohio bank. We cannot agree with this contention. The testimony very clearly shows that the bank was not connected with it in any way. The guardian did not act as cashier but as guardian in this transaction, nor was it in any sense a commercial transaction. The fact that a draft was attached to the receipt would not make it one, if it was substantially something else ; the substance, not the form, determines the character of a transaction, contract, or document. The receipt was the essential document, and upon it the money was to be and was paid. The draft was merely ancillary. The draft was not intended as such — was not,>sent in the usual course of banking business, but direct to a bank convenient to the executor, and at his request. All these circumstances tend to uphold the defendant’s theory of this case, that he acted as guardian and not as cashier — never supposed or treated the transaction as a contract with his bank. We think the contention of the plaintiff, in error is-founded upon a misapplication of a rule of commercial law, prevailing in some, repudiated in many other states, and not adopted in Kansas, to the facts of the case at bar. If we were to concede that the defendant acted as cashier in this transaction, under the circumstances of this case, would his bank be liable to him as guardian? We think not. The Farmers and Drovers Bank would simply be the agent of the guardian to transmit the note to the Exchange Bank of Belleville, Ohio, and the latter bank would be the agent of the guardian for the collection thereof. (Bank of Lindsborg v. Ober, 31 Ran. 599.)
The Farmers and Drovers Bank was not only authorized to employ another agency,.but was directed and instructed as to the particular one to be employed. We think the law is well settled, that where the bank receiving the paper becomes an agent of the depositor, with authority to employ another bank to collect it, the second bank becomes the subagent of the customer of the first, for the reason' that the customer authorizes the employment of such an agent to make the collection. The paper remains the property of the customer, and is collected for him ; the party employed with his assent to make the collection must, therefore, be regarded as his agent. A subagent accountable, ordinarily, only to his superior agent, when employed without the assent or direction of the principal; but if he be employed with the express or implied assent of the principal the superior agent will not be responsible for his acts. There is in such a case a privity between the subagent and the principal, who must, therefore, seek a remedy directly against the subagent for his negligence or misconduct. (Story, Agency, §§217, 313.) These familiar rules of law applied to the case at bar relieve it of all doubt, even under the theory of the plaintiff in error.
While it must be admitted that there seems to be a variety of opinion among the very able courts that have had this question before them, yet we doubt whether, if the cases were all carefully studied, and the facts upon which each case' was decided were carefully considered, there would be as much conflict as at first seems. Undoubtedly the preponderance of the authorities supports the conclusions we have reached. The following, among others, are to this effect: Dorchester Bank v. N. E. Bank, 55 Mass. 177 ; Febens v. Mercantile Bank, 40 id. 330 ; Lawrence v. Stonington Bank, 6 Conn. 521; East Hadam Bank v. Scoril, 12 id. 303 ; Hyde v. Planters Bank, 17 La. 560 ; Ætna Ins. Co. v. Alton City Bank, 25 Ill. 243 ; Stacy v. Dane Co. Bank, 12 Mo. 629 ; Firman v. Commercial Bank, 7 How. (Miss.) 648 ; Agricultural Bank v. Commerce Bank, 7 Sm. & M. 592; Bowling v. Arthor, 34 Miss. 41; Jackson v. Union Bank, 6 How. & J. 146; Citizens Bank v. Howell, 8 Md. 530 ; Bank of Washington v. Triplett, 1 Pet. 25 ; Merchants Bank v. Earp, 4 Rowle, 384 ; Bellmure v. U. S. Bank, 4 Wheat. 105 ; Daily v. Drovers Bank, 56 Mo. 93 ; Smedes v. Bank of Utica, 20 Johns. 373 ; Gurlich v. National State Bank, 56 Iowa, 434.
It is contended that the court erred in giving certain instructions, to which the plaintiff excepted in the following manner : "To the giving of which said instructions the plaintiff then and there duly excepted and excepts.” This is insufficient. A general exception to a whole charge is not available unless the whole charge is erroneous, or unless the charge in its general scope or meaning is erroneous. (Sumner v. Blair, 9 Kan. 521; City of Atchison v. King, 9 id. 550 ; Ferguson v. Graves, 12 id. 39 ; Wheeler v. Joy, 15 id. 390 ; Hunt v. Haines, 25 id. 211; Yeamans v. James, 27 id. 195; Bard v. Elston, 31 id. 276; Fullenwider v. Ewing, 25 id. 69.) The charge in this case is not subject to any such objection. There are numerous assignments of error upon the admission of testimony. ¥e have carefully examined and considered them, but fail to find any reversible error therein.
The judgment of the court below will be affirmed
All the J udges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
The sole question in this case is as to the constitutionality of chapter 124 of the Laws of 1891. It is admitted by the briefs of both parties that, if this law is constitutional, the court erred in rendering judgment for the plaintiff below, but if the law is unconstitutional the judgment of the district court should be affirmed.
The title of the act is, “ An act regulating the fees and salaries of county treasurer, county clerk, county attorney, probate judge, register of deeds, clerk of the district court, surveyor, superintendent of public instruction, coroner and sheriff of Montgomery county, Kansas.” This is a special act to regulate the fees and salaries of the county officers' of Montgomery county, but its validity is not challenged on account of its being a special law where a general law could be made applicable. It is conceded that the supreme court of this state has irrevocably established the doctrine that the legislature must necessarily determine whether its purpose can or caiinot.be expeditiously accomplished by a general law ; and it is not now an open question as to whether the framers of the constitution intended to prohibit local laws where general laws could be made applicable.
The constitutionality of this act is challenged for the reason that it fails to fix a definite time when all of its provisions shall take effect and be in force, and therefore is in conflict with that clause of section 19 of article 2 of the constitution of the state which reads : “The legislature shall prescribe the time when its acts shall be in force.” Sections 2 to 15, both inclusive, designate the fees and salaries that the several county officers named in the title of the act shall receive for their services. Section 17 reads : •
‘ ‘ This act shall take effect and be in force from and after its publication in the statute-book, and after the present term of the officers hereinbefore named, respectively, shall have expired.”
The term of office of the several officers named in the act expired at three different times, and the contention is that this act, by the plain provisions of section 17, is intended to make the act take effect-as to ' each of the officers named at the expiration of the term of the officers, and thereby intending that the law shall take effect at three several times, as each office expires, and this question depends upon the fair construction of the language expressed by the author of the bill.
In order to ascertain the real meaning and sense of a statute, there should be an examination of the entire act, to gather the intention and meaning of each section, sentence and word employed by the legislature. From an examination of this statute, we find that it is intended to change the compensation thereafter to be paid to the county officers of Montgomery county, Kansas, and the act was not intended to interfere with the fees and salaries of the persons who then held the several offices in that county. Section 17 provides that the act shall take effect and be in force from and after its publication in the statute book, and after the present term of the officers herein-before named, respectively, shall have expired. It is insisted by counsel for plaintiff in error that the plain construction of this section means that the act shall take effect upon the expiration of the terms of all the officers named ; that it takes effect as an entirety. We do not think that the language used in this section is susceptible of this construction. We think the words, “and after the present term of the officers hereinbefore named, respectively, shall have expired,” refers to each officer as his term expires. 'Phe legislature intended this act to take effect at three different times, on the expiration of the term of each of the respective occupants thereof.
Potter’s Dwarris on Statutes and Constitutions, page 145, says:
‘ ‘ Whether courts are interpreting an agreement between parties, a statute, or a constitution, the thing to seek is the thought which it expresses. To ascertain this, the first resort in' all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which they stand. If, thus regarded, the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such case there is no room for construction. That which the words declare is the meaning of the instrument; and neither the courts nor the legislature have a right to add to or take away from that meaning.”
Tested by this rule, we must have due regard for the words employed by the author of this act, and give to the words used their plain, ordinary meaning in the order in which they occur in the sentence. The word “respectively,” as used in this statute, is intended to limit and qualify the words “ after the present term of the officers hereinbefore named shall have expired,” and applies to each of said officers singly, and, as thus construed, the act was to go into force as to each officer named as the term of his office expired, and for this reason this act is obnoxious to the constitutional provision requiring the legislature to fix a definite time for all of its acts to take effect.
In the case of Comm’rs of Miami Co. v. Hiner, 54 Kan. 334, Johnston, J., delivering the opinion of the court, says :
“The constitutional limitation referred to provides that ‘the legislature shall prescribe the time when its acts shall be in force.' This provision plainly requires that the legislature shall fix a single, definite time when its acts as an entirety shall become a law. According to the practice and legislative course in this state, the last section of every act fixes a definite time when the act as a whole shall go into effect. It is .sometimes by publication in a newspaper, in the statute-book, or at some time fixed after a publication has been made. It was not intended that one section or provision of an act should become a law while other sections or provisions of the same act were in an inchoate and embryonic stage. A legislative act, whether general or special, is passed as an entirety, approved as an entirety, and the generally accepted interpretaron of the constitutional limitation is that it must i. come a law as an entirety.”
This act being obnoxious to the plain provision of i he constitution, the district court did not err in overruling the demurrer of the defendant below and rendering judgment for the plaintiff below.
The judgment of the district court, is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
The court did not err in overruling the motion of plaintiffs below for judgment. This was an action for the recovery of money and the foreclosure of a mortgage in which the validity of both the note and mortgage was attacked. Either party was entitled to a jury trial as a matter of right, and the court must either render judgment upon the verdict of the jury or he must set it aside and grant a new trial.
In the remarks of the trial judge in passing upon the motion for a new trial the judge stated that his judgment did not coincide with that of the jury. The judge also said:
“I think this is a case in which the jury, through sympathy for the woman and children, returned a verdict that is not supported by the evidence; yet, notwithstanding the fact that my judgment does not approve the verdict of the jury, I think it my duty to overrule the motion for a new trial. . . . My judgment did not approve the verdict at the last term and I granted a new trial. Subsequent consideration of the evidence introduced at that trial and hearing the case tried at this term did not change my views, and it is not probable that upon the same evidence I will change my views in the future.”
If the trial judge does not approve of the verdict of the jury he must set it aside and grant a new trial. This requirement is so well established by the decisions of our supreme court that it leaves no discretion with the trial judge, but is a mandatory duty imposed upon him. (Richolson v. Freeman, 56 Kan. 468.)
In the case of K. C. W. & N. W. Rld. Gov. Ryan, 49 Kan. 12, Horton, C. J., in delivering the opinion, says:
“It has been the unvarying decision of this court to permit no verdict to stand unless both the jury and the court trying the cause could, within the rules prescribed, approve the same. When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the case is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury. , . . He must approve or disapprove the verdict. If he approves, he may overrule the motion for a new trial; if he disapproves, he should set it aside and permit another jury to pass upon the facts.”
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. :
The brief of plaintiff in error contains seven separate specifications of error to which it asks tlie consideration of this court. The first and second specifications of error complained of may be considered together, as they are both leveled at the amended petition of the plaintiff below — one, a motion to make it more definite and certain, and the other a demurrer. The amended petition alleges that the railroad company is a corporation owning and operating a line of railroad through Lyon county, Kansas, and is a common carrier of goods and live stock ; that on the 17th day of October, 1887, the plaintiff entered into a verbal contract with the station-agent of the railroad company at its station at Lang, Lyon county, Kansas, to transport 75 head 'of steers from said station of Lang to the city of Chicago, 111. ; that in pursuance of said agreement he delivered the cattle in the stock-yards of said railroad company at its station at Lang; that by reason of the defective and unsafe condition of the stock-yards 13 head of his cattle escaped from the yards and could not be recovered until the next day; that the shipment of the entire lot of cattle was delayed 24 hours, and that it cost him $15 to recover the cattle; that the railroad company and its agents had knowledge of the defective and unsafe • condition of the stock-yards, and that plaintiff had no means of knowing it; that by reason of the defective condition of the gates in the stock-yards two of his steers were injured; that the delay in the shipment of his cattle was occasioned by reason of the escape of the 13 head of cattle, and on account of the delay the cattle lost flesh and shrunk up, and he was damaged thereby; that, after the recovery of the cattle that had escaped from the stock-yards, and after they were all loaded on the cars for transportation over the road to Kansas City and Chicago, the cars were roughly handled and the cattle were damaged thereby; that, by negligence of the servants in charge of the train, it was unnecessarily delayed on the road, and the cattle did not arrive in Kansas City as soon as they should ; that, when they had arrived at Kansas City and liad been unloaded in the stock-yards and fed, the servants of the company intermingled his cattle with other cattle in the yards, and one steer was lost thereby, and that he was greatly damaged on account of the injury to the two steers and by the shrinkage of the cattle and by the loss of the one steer at Kansas City.
The petition states the facts constituting the cause of action in ordinary and concise language and without repetition, and the relief to which the plaintiff below supposed himself entitled, and the defendant below was thereby informed of the nature of the claim against it. There was nothing indefinite or ambiguous in it, nor were there any redundant or irrelevant allegations contained therein that could in any manner prejudice the rights of the defendant below upon the trial. In the construction of a pleading for the purpose of determining its effect its allegations are to be liberally construed, with a view to substantial justice between the parties, and where the petition contains a plain and concise statement of all the facts constituting a cause of action, the court will not on motion require it to be made more definite and certain, or order allegations stricken from the petition, unless they are such as not to be readily understood, or such that the adverse party should have some information of the facts that are in some manner within the knowledge of the other party and are not apparent to his adversary from the nature of the facts as shown by the pleadings, or where there are unnecessary allegations that would in some manner tend to prejudice the defendant. The motion to require the plaintiff below to make the amended petition more definite and certain was properly overruled. The facts stated in the amended petition being sufficient to constitute a cause of action in favor of the plaintiff below and against the defendant below, the demurrer was rightly overruled.
It is urged that the court erred in overruling the demurrer of the defendant below to the evidence. This brings us to a consideration of the evidence in connection with the written contract for the shipment of the cattle from Lang station, in Lyon county, Kansas, to Chicago, 111., and as to the legal effect of the contract. The execution of the contract is admitted by the pleadings, but the plaintiff below alleges that after the cattle had been loaded in the cars of the railroad company he was requested and required to sign a written and printed contract or agreement, the contents of which he was unable to give; that he was given a duplicate of it at the time, but afterward the conductor on the train took it up and retained it. He says that at the time he signed it he objected and pro tested against doing so, but was informed that it was a condition precedent to the forwarding of his cattle, and thereupon, under protest, he signed it. Said contract provided, among other things, that the railroad company would ship the cattle of plaintiff below to Chicago, in the state of Illinois. The contract is set out in full in the answer of the railroad company, and the reply admits its execution but alleges that it was signed as stated in the amended petition.
The contention on the part of the railroad company is that the written contract of October 17, 1887, en tered into by the defendant in error, is binding, and therefore controls. The contract provided :
“ Said party of the second part further agrees that, as a condition precedent to- his right to recoveridamages 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 the place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before such such stock is mingled with other stock.”
The railroad company claims that, as the evidence shows that no such notice was given, the plaintiff could not recover. The plaintiff below alleged that he was compelled to sign the contract as a condition precedent to the transportation of his cattle ; that be had entered into a verbal agreement for the shipment of his cattle from Lang station to Chicago, 111., and after the cattle were loaded upon the cars he was required to sign the written contract before the company would ship them out; that he objected and protested against signing the contract, and that therefore the contract was not binding or of any force.
The supreme court of this state has decided that a special contract for a notice in writing of damages or injuries, when reasonably and fairly made, is binding upon the parties. (Goggin v. K. P. Rly. Co., 12 Kan. 416; Sprague v. Mo. Pac. Rly. Co., 34 id. 347; W. & W. Rly. Co. v. Koch, 47 id. 753.) In the case of A. T. & S. F. Rld. Co. v. Dill, 48 Kan. 210, it is said :
“As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss or injury to stock, if there is no special contraci or acceptance ; but in all cases where the statute will permit, it is just and reasonable that a contract requiring written notice of the injury or damages claimed before the stock is removed from the place of désti nation or mingled with, other stock, when properly entered into, should be upheld. Such a contract, however, must be freely and fairly made with the railroad company — not exacted as a condition precedent of shipment. Railroad companies cannot arbitrarily fix a valuation on property of the shipper or arbitrarily demand or exact the execution of the contract limiting the common-law liability. (K. P. Rly. Co. v. Nichols, 9 Kan. 236.) If a railroad company has two rates for the transportation of goods or stock — one if the goods or stock are carried under the common-law liability, and the other if carried under a limited or special contract— the shipper must have real freedom of choice. He cannot be denied the right to have his goods carried by the carrier under its common-law liability ; but if he desires, and if the statute permits .and public policy does not forbid, lie may enter into a special contract with the carrier limiting the common-law liability. (K. P. Rly. Co. v. Reynolds, 17 Kan. 251; K. C. St. J. & C. B. Rld. Co. v. Simpson, 30 id. 645 ; Express Co. v. Foley, 46 id. 457; Railroad, Co. v. Lockwood, 17 Wall. 367 ; Hart v. Railroad Co., 112 U. S. 331.)”
On the trial of the case, the plaintiff below testified that on Sunday evening he drove his cattle from his pasture over to Lang statipn on the railroad and placed them in the stock-yards of the company, with the expectation of. shipping them out at 11 o’clock that night; that the cars in which to load them were then on the siding, and when he arrived'at the stock-yards with his cattle the station-agent of the company came out and unlocked the gates, and the cattle were put in the yards and the gates locked, and he and his hired help went to supper; that when they returned from supper he was informed that two of his steers had been injured by the falling of a gate and that part pf his cattle had escaped from the yards ; that he went immediately, with his hired help, in search of the cattle that had escaped, but was unable to recover them until some time the next day; that when his cattle were returned to the stock-yards and loaded on the cars ready to be taken out, the agent then requested him to sign the agreement for the transportation of the stock to Chicago; that he objected and protested against signing the same, and the agent told him that unless he signed the agreement the company would not ship his cattle ; that he then signed the agreement under protest. He also detailed the facts in relation to the handling of the cars, the delay in arriving at Kansas City, and unloading, feeding and reloading the cattle, and the loss of the one steer at Kansas City, and the time of the arrival of his stock at Chicago; the amount of shrinkage to each steer by reason of the delays and the value of the steer lost in the stock-yards at Kansas City, and the reasonable value of the cattle per pound if they had been shipped through without delays.
We think the evidence was such that the whole matter was proper to submit to the jury for their consideration. It was a question of fact for the jury to determine, under all the evidence and x>roper instructions, whether the contract in writing was voluntarily and freely signed by the shipper ; whether it was an unfair exaction of the railroad company after the cattle were delivered to it for shipment; whether it was an exaction as a condition precedent to the transportation of the cattle to Chicago, and whether the shipper was given his choice in the-matter.
It is claimed that the court erred in admitting testimony over the objection of the defendant below. The plaintiff below was sworn and’examined as a witness on his own behalf, and during his examination was permitted, over the objection of the defendant, to •■detail statements made to him by persons who claimed to be employees of the railroad company, but he did not know who they were or what position they held with the company. He was also allowed to state what he thought to be the value of'the services of the men employed to assist him in hunting up the cattle that had escaped from the stock-yards, but was not shown to have any knowledge as to what was reasonable and ordinary compensation for such services, and was permitted to give his opinion that two steers were injured by the falling of a gate in the stock-yards, and also an- opinion as to the shrinkage of cattle by delay in the shipment, and his opinion as to the value of the steer lost in the stock-yards at Kansas City. Other witnesses for the plaintiff below were also permitted, over the objection of the defendant below, to give their opinions as to the amount cattle would shrink by being held in the stock-yards and in pastures and in the shipment. None of these witnesses was shown to have any particular experience or knowledge of what the value of such services was, or what amount a steer under the circumstances would reasonably lose in flesh by the delays claimed. Ordinarily, witnesses must speak of facts within their own knowledge, and not what others have told them, or what they determine from appearances ; and where the facts to be established are to be determined from appearances and circumstances the witness must describe the appearances and circumstances and leave the conclusion to be drawn therefrom to the determination of the jury. Certain matters may "be the subject of opinion of witnesses who are competent to give an opinion on the subject under investigation. On a question of science, skill, or trade, persons of science, skill, or trade,, or others who have derived a knowledge of the facts under investigation by study or from actual observa tion and experience, may not only testify to facts but are permitted to give their opinions in evidence ; but before such persons can give opinions on the matter under inquiry it must be shown that they possess the necessary qualifications. Neither of the witnesses who testified in relation to' the shrinkage of the cattle was shown to be competent to give an opinion ; they were not shown to have been engaged in the business of shipping cattle themselves, or to possess observation and experience from frequently seeing cattle shipped, or from observing the weight of cattle before and after they were shipped. Men who have had experience as shippers and have observed the shrinkage of cattle in shipment, and have handled cattle under similar circumstances and observed the effect thereof on the' cattle, would be competent to give opinions as to how much they would shrink by handling and by confinement in stock-pens and in strange pastures, or in transportation ; but before they are competent to give an opinion on the subject their knowledge of the subject must be shown. The witnesses not having been shown to possess such knowledge as made them competent to give an opinion, their testimony should not have been permitted to go to the jury.
It is insisted by plaintiff in error that there was error in the instructions to the jury. We have carefully examined the instructions of the court" and find them quite full and complete, and do not find any error in them. The learned judge stated in his charge to the jury the issues fully and correctly, giving them the law that they should apply to the facts as they should be found by them.
There are other errors complained of by plaintiff in error in its brief and argument, but we do not deem them of sufficient importance to be noticed in this opinion, as the case must be reversed for the error in admitting incompetent testimony.
The judgment is reversed, and the case remanded to the district court, with direction to set aside the verdict of the jury and grant a new trial.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
At the December term, 1895, of the district court of Saline county, the defendant, William H. Nield, was convicted on five counts under an information filed against him charging violations of the prohibitory liquor law., The information was verified by W. H. Bishop, as assistant attorney general for said county. The first four counts charged the defendant with illegal sales of intoxicating liquor on certain named dates, while the fifth count charged him with maintaining a nuisance by keeping in the city of Salina a certain place, specifically described, where intoxicating liquors were sold and kept for sale in violation of law." A verdict was returned finding the defendant guilty on each of the five counts, upon each of which he was sentenced to pay a fine of $100 and to be imprisoned for 80 days.
To the information the defendant filed a plea in abatement, alleging
that the said district court of Saline county, Kansas, has acquired no jurisdiction to try and hear said'case, no information having been filed by the county or prosecuting attorney of said county of Saline, or the attorney general or assistant attorney general of the state of Kansas, there being no such officer known to the laws of Kansas as an assistant attorney general for Saline county, Kansas, the said county of Saline" now being and for about one year past having had a duly elected, qualified and acting county attorney, to wit, C. W. Banks, whose duty it is to prosecute all offenses committed in his said county, and who has been and now is in the full discharge of the duty of his office, and able, ready and willing to discharge all of his duties as such county attorney, -and not in any wise disqualified, and who has not neglected or refused to enforce the provisions of the prohibitory liquor law, which have been and still are being enforced in said county of Saline ; that said alleged information is signed by one W. H. Bishop, who is not the duly elected, qualified and acting'county attorney nor the prosecuting officer of said county, and is in no wise authorized or qualified or legalized to do and perform the matters and things required of the county attorney or prosecuting officer of said county of Saline ; that by reason of the said facts the said district court of Saline county has not acquired nor has any jurisdiction to hear and determine the cause and the matters and things in said alleged information set forth and contained and charged against said W. H. Nield.”
The state having replied to said plea by denying each allegation therein contained, the defendant demanded a trial by jury of the issue thus joined. This the court refused. Thereupon the defendant offered to show that, at the time of the filing of the information, C. W. Banks was the duly elected, qualified and acting county attorney for said county, in the full discharge of the duties of his office, able, ready and willing to discharge the same, and not in any way disqualified ; that he had not neglected or refused to enforce the provisions of the prohibitory liquor law; and that said law was enforced in said county by said county attorney. The court sustained the objection of the state to the introduction of any evidence in sup port of the plea, and refused to hear any evidence except such as would tend to show that W. PI. Bishop was not appointed assistant attorney general for Saline county. The defendant having announced that he had no evidence to offer on that proposition, the plea in abatement was overruled. Subsequently the same questions were again presented and passed upon in the same manner by the court on a motion filed by the defendant to quash the information.
It may be conceded that when a plea in abatement is filed in a criminal case alleging facts which, if established, would abate the action, the defendant is entitled to a trial of such issues by a jury. But when the matters alleged in the plea do not constitute a legal defense to the prosecution, or are not a proper subject of inquiry therein, the court is not required to submit such matters to a jury or to grant a hearing of an issue thus attempted to be made, even though the state has joined issue on the facts, instead of demurring to their sufficiency. (Oscanyan v. Arms Co., 103 U. S. 261.) As in our opinion no triable issue of fact was presented by the plea, the ruling of the court thereon was proper.
It is contended by counsel for defendant that paragraph 2546 of the General Statutes of 1889, which authorizes the attorney general, under the conditions therein named, to appoint an assistant attorney general for the purpose of enforcing the provisions of the prohibitory liquor law in any county, is, in this respect, unconstitutional, and that the claimed appointment thereunder of W. H. Bishop is therefore illegal and void. We think this question has been determined adversely to the defendant by the supreme court in In re Gilson, Petitioner, 34 Kan. 641. That was a case where Gilson had been convicted under this same law on an information filed against him in the district court of Anderson county by H. L. Poplin, as assistant attorney general for that county. The imprisonment which followed such conviction was claimed to be illegal on the same ground that objection is now made to the authority of "W. H. Bishop, viz., that the statute is unconstitutional and void so far as it attempts to confer upon the attorney general authority to appoint such assistants. What was said by Horton, C. J., in delivering the opinion of the court in that case is equally applicable in the case at bar, and renders unnecessary further discussion of the question.
By the plea, the defendant also attempted to inquire into the existence of the grounds upon which the appointment of Bishop was made, it being claimed that the county attorney of Saline county was not unable and had not neglected or refused to enforce the provisions of the prohibitory liquor law in his county, and that the same were being enforced at the time such appointment was made. We do not think such inquiry can be made in this case. Being an officer created at the will of the legislature, the legislature had a right -to prescribe the conditions upon which such officer might be appointed, and to name the appointing power. The attorney general being a part of the executive department of the government, the legislature had not only the right to confer upon him the authority to appoint assistants to aid in the enforcement of the laws of the state, but it was peculiarly proper that such power should be exercised by the chief law officer of the state. It was also within ■the constitutional powers of the legislature, in the creation of an office of this character, to make the judgment of the appointing officer final and conclusive as to the existence of the facts which rendered such appointment proper or necessary. The necessi i ies of the case require, when an officer may be appointed' only upon the existence of certain facts, for the performance of public duties, that the determination of the necessity for the appointment by the appointing power should be held to be conclusive .as against any collateral attack, and that the dealings of such officer with third persons and with the public should be accepted and recognized without further question. His usefulness would be destroyed and his discharge of public duties seriously impaired if an attack, such as was attempted in this case, could be made ; or if a reexamination could be had by the courts, in every case in which his acts were involved, to determine the existence of the facts necessary to justify his appointment. The determination of such question in tliis case would not necessarily be conclusive or binding in another case, in which an entirely different decision might be made. Thus we might have, by ]the different decisions, a public officer with recognized authority in one case and without authority in another and similar case. An inquiry into the right to occupy a public office cannot be made in this manner. (Lynch v. Chase, 55 Kan. 367 ; The People, ex rel., v. Cazneau, 20 Cal. 504; The People v. Martin, 19 Colo. 565 ; Board of Comm’rs v. Gould, 39 Pac. Rep. [Colo. App.] 895 ; Ohio, ex rel. Atty. Gen., v. Covington, 29 Ohio St. 102, 114 ; The State, ex rel. Atty. Gen., v. Doherty, 25 La. Ann. 119 ; Lask v. United States, 1 Pinney [Wis.] 77.)
In the case of Lynch v. Chase, supra, one of the questions was the conclusiveness of the decision of the governor as to the existence of sufficient grounds for the removal of Chase as warden of the penitentiary, and involved the same principle as the case* at bar.' In all such cases, the determination of the facts and the decision of the officer authorized to act in the removal or appointment, in the absence of fraud or other exceptional grounds, are conclusive.
We think the plea did not present any issue as to the fact of Bishop’s appointment. That question was, therefore, not before the court, notwithstanding it offered to permit the defendant to show that he had not, in fact, been appointed. It was not necessary for the state, in the first place, to prove his appointment. If he assumed the duties of the office, was'in the actual performance of the same, and was recognized by the court as such officer, he would be at least a defacto officer, whose acts were valid as to the public and third persons. As said by the court in the Gilson case:
“The statute authorizes the appointment of assistant attorneys general,; H. L. Poplin was acting in that capacity; the court recognized him as an assistant attorney general; his acts are valid, at least as an officer defacto. If the-legality of his appointment is to be inquired into, other proceedings must be instituted. The title to his office cannot be determined in this case.”
As a general rule it is sufficient prima facie proof of the authority of a public officer to show that he assumed to act in the discharge of the duties of the office. The court may presume that one thus in .the undisturbed exercise of a public office is acting therein by legal authority. The rule is thus stated by Mr. Greenleaf:
“Por the same reasons, and from the strong presumption arising from the undisturbed exercise of a public office that the appointment to it is valid, it is not, in general, necessary to prove the written appointments of public officers. All who are proved to have acted as such are presumed to have been duly appointed to the office until the contrary appears; and. it is not material how the question arises, whether in a civil or criminal case, or whether the officer is or is not a party to the record.” (1 Greenl. Ev. §92.)
See, also, The State v. Crowder, 41 Kan. 101, 112 Jones v. Gibson, 1 N. H. 266 ; Johnston v. Wilson, 2 id. 202 ; Jewell v. Gilbert, 64 id. 13 ; Choen v. The State, 85 Ind. 209 ; People v. Lyman, 2 Utah, 30 : Cary v. State,. 76 Ala. 78 ; Chapman Township v. Herrold, 58 Pa. St. 106 ; Commonwealth v. Kane, 108 Mass. 423 ; The State, ex rel., v. Ferguson, 31 N. J. Law, 107, 119 ; Lank of United States v. Dandridge, 12 Wheat. 64,,70 ; Potter v. Luther, 3 Johnson, 431.
Ordinarily the facts tending to show that one is an officer de facto must be established by extrinsic evidence. But when, as in this case, it appears from the proceedings then before the court, and from matters of which the court will take judicial notice, that a certain person is in the active performance of the duties of an office of which he has apparent undisturbed possession, the court is possessed of facts fro'm which it may presume legal authority, and may, at least in the absence of any showing to the contrary, recognize such one as having the authority which he assumes. This principle is fully sustained by the authorities above cited. In The State v. Ferguson, supra, it is said:
“ It is one of the exceptions to this- general rule which requires the best evidence of which the point is susceptible, that proof that an individual has acted openly in a public office is prima facie evidence of his official character without proving his election or producing his commission. (1 Greenl. Ev. § 83.) The plaintiff therefore was not obliged to produce the township book in order to prove the office of the defendant. It was enough for him to show that he had held himself out to the public as the incumbent o'f the office in question.”
In Commonwealth v. Kane, supra, it is held:
■ ‘ ‘ The foundation of the rule of evidence that a person acting as a public officer has been duly appointed to the office which he assumes to exercise is, that all acts done by what appears to be public authority are presumed to be rightly done until the contrary is proved.”
In Bank of United States v. Dandridge, supra, it is said:
“By the general rules of evidence, presumptions are continually made in cases of private persons of acts even of the most solemn nature when those acts are the natural result or necessary accompaniment of other circumstances. In aid of this salutary principle the law itself, for the purpose of strengthening the infirmity of evidence and upholding transactions inr timately connected with the public peace and ,the security of private property, indulges its own presumptions. It presumes that every man in his private and official character does his duty, until the contrary is proved. ... It will presume that all things are rightly done unless the circumstances of the case overturn this presumption according to the maxim, omnia presumunhor rite et solemnitur esse acta, donee prohetur in contrarium. Thus, it will presume that a man acting in a public office has been rightly appointed. . . .”
This rule applies not merely to the chief officers, but also to deputies and assistants who are specially provided for and recognized by law. As the law expressly recognizes such an officer as an assistant attorney general, to act for a particular county in the state, the court will take judicial notice of that fact, and accord to one so acting the benefit of the presumption which arises from his performance of the duties of the office. (Himmelmann v. Hoadley, 44 Cal. 213, 225 ; The People v. Johr, 22 Mich. 461; The People v. Lyman, 2 Utah, 30.)
It may be remarked also that "this presumption of law is aided in this case by the fact that, in making oath to the information, W. H. Bishop states that he is the duly appointed, qualified and acting assistant attorney general for said county.
Upon the trial’of the case upon its merits, the testimony of numerous witnesses was admitted tending to show various unlawful sales of intoxicating liquors other than those upon which the state, by direction of the court, elected to rely for conviction. The defendant requested the court to instruct the jury not to take into consideration the evidence as to such other sales in determining the guilt or innocence of the defendant as to the particular sales upon which the state elected to rely. This the court refused, and nothing upon the subject was given in the general instructions. In this, we think, the court erred. While it is proper, in the first place, for the state to introduce evidence concerning any unlawful sales made by the fendant, yet, when an election has been made of a particular transaction upon which the state relies for conviction, the evidence as to other illegal sales is practically eliminated from the case. It cannot be used or referred to merely for the purpose of bolstering up and strengthening the case made by the state upon the elected transaction; and the defendant is entitled to have the jury so instructed. There are cases in which the evidence as to other transactions is admissible for certain purposes; as, in The State v. Coulter, 40 Kan. 87, and The State v. Marshall, 2 Kan. App. 792, recently decided by this court, in which it was held that the evidence as tó other sales might be considered for the purpose of showing that the liquor sold by the defendant was intoxicating. But even then such evidence should be limited to that special purpose. Under the facts of this case we think the instruction asked should have been given-.
The court was further asked to instruct the jury that the defendant could not be convicted of an offense of which the assistant attorney general had not some knowledge or notice at the time the information was filed. This instruction was also refused. It is well settled by the decisions of the supreme court that although an information is sufficient which charges in general terms a violation of the prohibitory liquor law, yet that under such general charge the state cannot ask for a conviction of an offense which the person or persons preferring the charge did not have in contemplation and which was unknown at the time the prosecution was commenced. In law-, every complaint or information filed in a criminal case, however general its language, presents to the court a particular transaction as a violation of the criminal statutes of the state which is to be the subject of in vestigation, and upon which the case must stand or fall. The state has no right to charge one thing and upon the trial convict the defendant on an entirely different thing, and one which neither the prosecuting officer nor the prosecuting witness, if there was one, had in mind when the proceedings were commenced. In this case, the prosecuting officer alone made oath to the truth of the charges contained in the information. It is of course not necessary that he should have had personal knowledge or perhaps even definite notice of each particular transaction relied upon ; but it is essential that he should have had information or notice of such violations of the law by the defendant as might reasonably be said to have included the particular transactions relied upon for conviction. In The State v. Hescher, 46 Kan. 534, it was held to be error for the court to refuse an instruction almost identical with that asked by the defendant in this case under circumstances substantially similar. The application of the principle is not affected by the fact that, in most of the cases before the supreme court in which this question has been considered, the prosecuting attorney filed with the information the sworn statements of witnesses, previously examined by him, showing the particular sale or sales relied upon. Such statements merely furnished evidence of what particular transactions were in contemplation when the prosecution was commenced. In the absence of such statements it is proper to show these matters by evidence upon the trial, and to them the inquiry should be limited. (The State v. Brooks, 33 Kan. 708 ; The State v. Moseli, 49 id. 142.)
It is further contended that the fifth count of the information, which is the nusisance count, is bad, for the reason that it charges that the defendant did keep and maintain and assist in keeping and maintaining a common nuisance, by keeping and maintaining a place where intoxicating liquors were sold and kept for sale in violation of law. It is claimed that, by charging the defendant both with maintaining and with assisting in maintaining, there is such uncertainty as to. vitiate the entire count. The statute (Gen. Stat. 1889, ¶2533) provides:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of any of the provisions -of this act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in viola tion of this act, are hereby declared to be common nuisances, . . . and the owner or keeper thereof shall upon conviction be adjudged guilty of maintaining a common nuisance.”'
In misdemeanors all are principals. The one who aids and assists may be charged, tried and convicted in the same manner as if he were a principal. (Gen. Stat. 1889, ¶ 5180 ; The State v. Cassady, 12 Kan. 550 ; The State v. Shenkle, 36 id. 43.) The statement in the information that the defendant “assisted” in keeping and maintaining a common nuisance may be regarded as mere surplusage. It is, at most, pleading a legal conclusion. The facts alleged with certainty and directness are that the defendant did own, keep and maintain a place where intoxicating liquors were sold and kept for sale in violation of law. This was sufficient. In the case of The State v. Casiady, supra, in which the information charged the defendant, as principal, with the offense of burglary and larceny, the jury returned a verdict finding him guilty as an “accessory” to the offense of larceny. It was contended there that the verdict was invalid because of its variance from the charge in the information. The ■court held that there was no substantial variance, as, under the statute, the charge against the defendant, as a principal, included that of being an accessory, and the fact that the jury stated the defendant’s particular connection with the crime did not vitiate the verdict. PI ere the defendant is charged with owning and keeping a place where intoxicating liquors are illegally sold and kept for sale. The fact that the pleader also states that by so doing he kept and assisted in keeping a nuisance is unimportant. Paragraph 2536 of the General Statutes of 1889, to which we are referred, makes special mention of one who aids, assists and abets in keeping or maintaining a olubroom or other place in which intoxicating liquor is kept for use or sale as a beverage. But, in our opinion, that section has no application to this case. It does not relate to such places as are commonly known as “joints” ; but has reference to clubrooms, or other like places, which are conducted or maintained for the use and benefit of an association or company of individuals, who claim the right to- resort thereto by virtue of some particular or exclusive connection in the nature of a membership.
Objection is also made to the form of the verdict, it being contended that a separate verdict should be returned on each count. The verdict reads :
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find the defendant guilty as charged in the first count of the information and guilty; second count of the information and guilty; third count of the information and guilty; fourth count of the information and guilty; fifth count of the information and guilty.”
We do not think the objection is well taken. It is not necessary that there should be a separate verdict for each count of the information. It is necessary for a verdict definitely and clearly to show the finding of the jury upon each count; but such findings, separately stated, may be included in one verdict.
The verdict of the jury on the fifth count is sustained by the evidence, and the defendant was given a fair trial thereon. Some question is made whether the place as described by the information was proved by the evidence. We think the evidence was sufficient in this respect to sustain the verdict. For the reasons given in this opinion, the judgment of the court as to the first, second, third and fourth counts of the information, is reversed, and, as to the fifth count, it is affirmed.
The case will be remanded to the lower court for further proceedings in accordance with this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
A motio'n has been filed by the defendant in error asking us to dismiss this case for the reason that the record fails to show the presence of the defendant in error at the time the case made was settled, or that he had been served with notice, or had waived notice of the time and place of such settlement. Affidavits have been filed, which are uncontradicted, that the attorney for the defendant in error was present when the case made was settled and signed. This brings the case within the rule laid down in Bank of Claflin v. Rowlinson, 2 Kan. App. 82, and the motion to dismiss will be overruled.
This was an action to recover the amount of the last installment claimed to be due upon a contract of sale by which the town company sold to Berry four lots in Iuka, Kan. The defendant below demurred to the petition of the plaintiff below, which said demurrer was by the court overruled. Judgment was rendered against Berry, and he brings'the case here for review.
The. errors complained of may all be disposed of by a decision upon one legal question, viz. : Must the vendor allege and prove the execution and tender of a deed conveying title as a prerequisite to his right to maintain an action for the purchase price of the lots? The contract sued upon provides that, in consideration of the stipulations and payments provided for therein, the vendor will sell to the vendee and convey in fee simple, clear of all incumbrances whatsoever, by a good and sufficient warranty deed, the lots described therein. The petition filed in the court below set up the contract and the breach thereof, and alleged that the plaintiff below was and is ready and willing to execute and deliver a good and sufficient warranty deed upon compliance with the terms of the contract by the defendant below, but that said defendant has wholly failed and refused to pay said third installment, etc. No tender of conveyance was alleged in the petition. The answer was a general denial, except the execution of the contract. The plaintiff below moved for judgment upon the pleadings on October 22, 1890. Upon its hearing, on the 23d day of December, 1890, the town company filed with the clerk of the court its warranty deed to the lots, making the defendant below the grantee therein. Counsel for the town company contend that in equity this is an action for specific performance, and that the deed tendered on December 23, 1890, is sufficient.
We are of the opinion that the legal proposition embodied in this case has been settled by our supreme court. In the cases of Ilies v. Elledge, 18 Kan. 296 ; Close v. Dunn, 24 id. 372; Morrison v. Terrell, 27 id. 3,26 ; Sanford v. Bartholomew, 33 id. 38 ; Soper v. Gabe, 55 id. 646, it is held that the contracts are mutual, and that neither party can maintain an action for the completion of the contract until he ■ tenders performance upon his part. A caTeful review of these cases satisfies us that the court erred in overruling the demurrer of the defendant below to the petition of the plaintiff below. In Morrison v. Terrell, supra, the court says :,
“Before either party can justly summon the other into court and impose the expense and annoyance of a suit, he should at least tender performance on his part.”
In Soper v. Gabe, supra, (which was an action upon a contract almost identical with the one in this action, and, so far as this question is concerned, exactly similar,) the court says:
“It is well settled in this state that a vendor cannot enforce a contract like the One in question and collect the purchase price of the land which he has agreed to convey without alleging and proving that he has performed his own obligation by making and tendering a deed of conveyance. As the delivery and tender of a deed is a prerequisite to compel a performance, allegations of a tender or offer of performance in the petition were essential; and as the petition of the plaintiffs below wholly failed in this particular, no right o’f'action was shown, and the court committed error in overruling the demurrer.”
The judgment of the court of common pleas of Sedgwick county, Kansas, is reversed, and the case ordered sent to the district court of that county, with instructions to proceed in accordance with the views expressed in this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
This action was, on October 12,1895, revived by this court in the name of the heirs at law of John Rexroad, deceased. The defendant in error questions the right of the heirs of John Rexroad to have the action revived in their name. An exami nation of tlie record reveals the fact that this is an action in replevin, brought by Rexroad to recover the possession of specific personal property, alleged to have been wrongfully detained from him by the defendant in error, H. N. Johnson. Judgment was rendered in favor of the defendant Johnson, and Rex-road brought the case here for review. In determining in whose name the action should be revived, . we must determine who would have been the proper party to bring the suit if it had been commenced after the death of th¿ plaintiff. To whom do the rights ■of the decedent pass ? This is clearly provided for by paragraph 4527 of the General Statutes of 1889, which reads as follows:
“Upon the death of the plaintiff in an action, it may be z'evived in the names of his represezzatives, to whom "his right has passed. Where his right has passed to his personal represenatives, the revivor shall be in their names; where it has passed to his heirs or devisees,' who could support the action if brought anew, the revivor may be in their names.”
There can be no question but that the rights of the plaintiff in this case passed to the administrator. The subject-matter of this action is part of his personal estate, and will be subject to the payment of his debts if the replevin is sustained, and will be charged against his estate if the present judgment is affirmed. We must therefore hold that the attempted revivor in the name of the heirs of Rexroad is a nullity. The action , must be revived in the nazne of the administrator of the estate of John Rexroad. See Presbury v. Pickett, 1 Kan. App. 631. The defendant in err'or alsb contends that as John Rexroad died on or about January 9, 1895, this case' should be dismissed, becaizse more than one year has elapsed since his death and no legal revivor has been had. The statute which contz-ols in revivors of this nature is paragraph 4531 of the General Statutes of 1889, which reads as follows :
‘ ‘An order to revive an action in the name of the representatives or successor of a plaintiff maybe made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made. . . .”
It is evident that the action could not be revived in the name of the administrator until an administrator had been appointed. No showing has been made to us as to when the administrator was appointed. When it is shown to us that one year has elapsed since the action might. have been first revived in the name of the administrator, and that the opposite party does not consent to the revivor, the action will be dismissed in accordance with the terms of paragraph 4532 id. Or if, prior to the expiration of one year after the action might have been first revived in the name of the administrator, the defendant proceeds under paragraph 4533 id., the action must be either dismissed or revived.
This action will be continued until the October term of this court, to enable each party to protect his rights, in accordance with the views expressed in this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Garver, J. :
The township officers of Valley township, Osborne county, on February 17, 1888, entered into a contract with the King Iron Bridge and.Manufacturing Company for the construction by said company of an iron bridge on a public highway in said township where the same crosses "Wolf creek, for which said township was to pay $400. The bridge was subsequently constructed according to contract, being completed June 5, 1888. Thereafter, warrants for $400 were duly drawn on the treasurer of said township and delivered to the bridge company. Payment of the warrants having been refused, the present action was brought in the district court of Osborne county to recover the amount thereof. The place of trial was changed to Cloud county, and a trial there had, upon an agreed statement of facts, which resulted in a judgment in favor of the bridge company. Various irregularities existed in the mat ing of the contract, which, however, it is conceded were cured by the subsequent action of the township board, if such board had authority in the first place to make the contract.
It is contended that the township board was without power or authority to bind the township by any contract which it might enter into for the construction of a bridge costing more than $200 ; that, consequently, the action of the township board was illegal and void. This proposition, which is the only one we are called upon to consider, is stated in the brief of counsel thus: “Did the township board have the power, in any event, to bind the township by a contract to build a bridge, the cost of which is more than $200 ?' ’ The answer to this question determines the controversy. In support of this contention counsel cites Salt Creek Township v. Bridge Co., 51 Kan. 520, and Pleasant View Township v. Shawgo, 54 id. 742. At first blush those decisions seem to support the proposition contended for ; but they are, we think, on careful examination, distinguishable from this case, and are based upon facts entirely different from those now under consideration. In the case first cited the township board, as well as the bridge company, assumed to act under the authority conferred by a vote, of the electors of the township on a proposition submitted to them for the voting of bonds to build the bridge. The township records showed that the proposition had been defeated, and other public records of the county and township disclosed the fact that the township had already exceeded the limit fixed by statute for any bonded indebtedness to be created by it. Moreover, the contract relied upon in that case specially provided that the bridge should be paid for by township bonds. There was no claim that'the contract entered into was authorized by any other statute than the one providing for the voting and issuing of bridge bonds, and none other was considered by the court.
In Pleasant View Township v. Shawgo, the only general statute considered was chapter 16 of the General Statutes of 1889, and the court very properly held that it conferred no power upon the township board to bind the township by a contract for the construction of a bridge costing more than $200. The question seems to have been presented and determined without referencb to other statutes which authorized the construction of bridges by townships under certain conditions which evidently did not exist in that case.
In the case at bar, it may be conceded that, under said chapter 16, township officers are not authorized to contract for the building of a bridge the cost of which exceeds $200 ; not, however, because the statute prohibits the incurring such a liability by township officers, but rather for the reason that no such power is conferred, either expressly or by fair implication. Such officers, having only limited powers, can act only in the cases and under the circumstances prescribed by law. That act, as we view it, is a limitation upon the power of the county commissioners, putting upon them restrictions as to the kind of bridges for which the county money may be expended. There is nothing in its provisions which by any required or necessary construction makes the county officers in all cases the exclusive judges of what bridges shall be built, or which affirmatively places any prohibition upon the township officers. Other statutes pertaining to bridges show very clearly that no such exclusiveness was intended by the legislature. By subsequent acts the legislature authorized the voting of bonds by a township for the purpose of building bridges therein, without a limit as to cost, except that the bonded debt should not exceed a certain per cent, of the taxable property of the township. (Gen. Stat. 1889, ¶ ¶413-421.) Under their provisions, a township may vote bonds and construct bridges without regard to the action “bi the county commissioners.
At the same time, by another statute provision was made for levying and collecting a road tax on all the taxable property in the county or in any township. (If ¶5494, 7084.) Such tax may be levied for the benefit of any one township, independently of the rest of the county. How the tax so collected may be used is also specially provided for, as follows:
“The township treasurers shall receive from the county treasurers the road taxes paid within their respective townships, and the same shall be appropriated to the building of bridges and the repairing of roads, within their respective townships, and the’purchase of the requisite number of scrapers and plows for repairing the roads.” (Gen. Stat. 1889,11 5499.)
The township officers have the general care and charge of public roads in their respective townships. Necessary bridges are a part of the highway, their construction and repair, within the means provided, falling within the proper and legitimate duties of the township officers. (Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197.) The building of a bridge thereon may be an absolute necessity for public travel, and its absence be a virtual obstruction of the highway. Cer tainly, in such ca'se, if the township has funds deidved from road taxes or otherwise which may be appropriated to the building of a bridge, the township officers may so use them, although in so doing they expend more than $200. The only limit upon their authority to appropriate and expend money on a public highway is the amount of the fund provided for that purpose. ( Uhl v. Township of Douglass, 27 Kan. 80.)
It necessarily follows from what has been said that the question propounded by counsel for the township must be answered in the affirmative. The record in this case does not show-that the township board of Valley township was not acting-within its legitimate authority, as recognized in this opinion, at the time it contracted for the building of the bridge in question. In the absence of an affirmative showing, it will be presumed that the officers were in the rightful performance of duty, and that the conditions existed which authorized them to act as they did.
The judgment is affirmed.
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The opinion of the court Was delivered by
Johnson, P. J. :
This action was originally commenced before a justice of the peace of Hamilton county on a promissory note. The plaintiff below filed the following bill of particulars :
“The plaintiff, T. H. McHenry, alleges: (1) That the defendants, John W. Bishop and James Bishop, are indebted to him in the sum of $153.75, upon a promissory note executed and delivered by the defendants to Melissie Clauston, for the sum of $148.88, dated October 13, 1890, payable and due 60 days after date, drawing interest at the rate of 10 per cent, per annum from date, and that a copy of said note is hereto attached and made a part of this bill of particulars, marked ‘Exhibit A.’ (2) Plaintiff further alleges that said promissory note was assigned to him by the payee of said note, in writing, for a valuable consideration, on the 3d day of January, 1891, and tha,t no part of said sum named in said note has been paid, and that the sum of $153.75 is now justly due from defendants to plaintiff, and that no part thereof has been paid. Wherefore, plaintiff demands judgment for the sum of $153.75, and interest at the rate of 10 per cent, per annum from February 7, 1891, and for costs of suit. T. H. McHenry,
“ J. M. Johnson, and A. Cole, Plaintiff.
Attorneys for Plaintiff.”
“ EXHIBIT A.
“$148.88. Syracuse, Kan., October 13, 1890.
“Sixty days after date, for value received, we or either of us promise to pay to the order of Melissie Clauston the sum of one hundred and forty-eight and dollars, with 10 per cent, interest from date.
John W. Bishop.
James Bishop.”
Indorsed as follows: “I hereby assign the within note over to T. H. McHenry, January 3, 1891.
Melissie Clauston.”
The defendants below were duly notified of the filing of the bill of particulars and pendency of the suit by service of summons. They appeared before the justice at the time set for trial and made some motions to dismiss the action, which were overruled by the justice, and they thereupon withdrew from the court and refused to appear in the case. The trial before the justice resulted in a judgment for the plaintiff be low, and the defendants, within the time allowed by statute, appeared and took an appeal to the district court; and thereafter, upon leave of the district court, filed their separate answers, as follows:
“Gomes now the defendant, John W. Bishop, after having obtained permission of the court to file his answer herein, and for separate answer alleges that he denies each and every allegation contained in the plaintiff’s bill of particulars except that portion which is hereinafter specially admitted. Defendant admits that he executed the note for the amount specified in the plaintiff’s petition, and at the time therein set forth. Defendant for ground of defense alleges, that on the 28th day of December, 1888, one Melissie Claus-ton, the payee of the note set out in plaintiff’s bill of particulars, entered into a contract with this defendant, whereby this defendant executed his certain promissory note for the sum of $75, and was to and did pay the sum of 3 per cent, per month thereon for three months ; and that on the 18th day of May, 1889, the said Melissie Clauston as aforesaid, payee of said note sued on by said plaintiff, entered into a certain other contract.with this defendant, whereby defendant executed his certain promissory note for the sum of $350, and defendant was to and did pay 2 per cent, per month for three months; that the said $75 note was taken up and incorporated in the said note of $350, and that the said notes aforesaid were paid by defendant, except the amount sued on in this action, which was and is a part of the aforesaid notes ; and at divers times defendant paid usurious interest to the amount of $43.50 above legal interest, which said amount of usury was taken out of the principal in advance ; that the said note sued on in this action was assigned and transferred to the plaintiff after maturity.
“ Defendant alleges for a second ground of defense, that he is a regular practicing attorney, and was at the time hereinafter mentioned, and that the said note was assigned to the said plaintiff by the said Melissie Glauston after maturity, and that, at the time defend ant was notified of said assignment, the said Melissie Clauston was indebted to said defendant in the sum of $67.75 for services rendered as an attorney and other accounts, as per itemized statement hereunto attached, marked ‘Exhibit A,’ and made a part of this answer, all of which amounts are due and unpaid.
“Wherefore, defendant prays that the s'aid sum of $60.30 paid as usurious interest to the said Melissie Clauston be applied as part payment on the note sued on by the plaintiff in this action, and that the counterclaim and set-off set out in defendant's second cause of action, amounting to the sum of $67.25, be applied to the payment of said note, and interest at 6 per cent, from April 1, 1890.
John W. Bishop, Defendant.”
“State of Kansas, Hamilton County, ss.
“John W. Bishop, of lawful age, deposes and says, he is one of the defendants in the above-entitled action, and that he has read the foregoing answer, and that he knows the contents therein to be true.
John W. Bishop.
“Subscribed and sworn to before me, this 9th day of June, 1891. R. E. Bray, Clerk District Court.
EXHIBIT A.
Melissie Clauston, Dr. to John W. Bishop.
July 29, 1889, work done before land-office................., $2 00
September 1, 1889, collecting note $15 from J. N. Hall..... 1 50
December 1, 1889, to December 1st to newspaper.......... 1 50
January 1, 1891, securing exemption...................... 2 00
Attorney fees for services rendered commencing April 1, 1888, and ending April 1, 1890 .......................... 50 00
October 3, 1890, paying note in Hamilton County Bank____10 60
Answer of James Bishop :
“Comes now the defendant James Bishop, and after having permission of the court to file his answer herein, and for his separate answer alleges : That he denies each and every allegation set out in plaintiff's bill of particulars except that which is hereinafter specially admitted: Admits that he signed the note as surety; and for ground for defense alleges the sum of $110.75 has been paid as usurious interest and counter-claim by the said John W. Bishop, with interest thereon at the rate of 6 per cent, per annum from April 1, 1890. James Bishop.
“ By A. A. Howell, Ms Attorney.”
Upon the bill of particulars and the answers of defendants below the case was tried before the court without a jury, and resulted in a judgment for the plaintiff below. Defendants excepted, filed a motion for a new trial, which was overruled, and made a case and bring it here for review.
The plaintiffs in error in their brief state that there are but two questions for the court to consider: (1) Plaintiffs in error’s counter-claim; (2) the question of usury.
The plaintiffs in error contend that because the counter-claim was duly verified by affidavit, and the plaintiff below did not deny the same by verified reply, it should have been taken as true, and the whole amount claimed therein should have been allowed, and that judgment should not have been rendered for any greater sum than the balance due on the note after deducting the amount set forth in the counter-claim of the defendants below. This would be so under section 1, chapter 61, page 84, Laws of 1886 (Gen. Stat. 1889, ¶ 4191) ; but on the trial of the case the parties treated the answer as though the whole matter was denied by a verified reply, and no question was raised before the district court on account of the failure to file a verified reply, and the parties proceeded to offer their evidence the same as though every allegation and every item of the counterclaim was denied under o'ath. The question is raised for the first time in this court. Parties cannot proceed to the trial of a case in the lower court and treat it as though all necessary pleadings were before th • court to put each party on proof of his cause of action or defense, and, after judgment has been rendered and the case brought into this court, then, for the first time, raise a question under the pleadings that ought to have been raised before the trial court. If the question had been raised in the district court at the proper time, the court would have allowed the party to amend the defective pleading or file a new pleading, as the rights of the parties demanded.
So far as the question of usury is concerned the whole matter was before the court. The question of usury was set out in the pleadings, and each party gave its evidence respecting the transactions leading up to the giving of the note sued upon :. the original consideration, the renewal of notes from time to time, crediting all payments thereon, the loaning of additional sums of money, giving of bonds and notes to secure the same, and the various settlements between the parties respecting their dealings. While there was. considerable conflict in the evidence in respect to the matter of dealing between the parties, upon the whole evidence the court found the amount due upon the note, and rendered a general judgment for the amount so found to be due. We think the judgment of the court is sustained by sufficient evidence, and the motion for new trial was properly overruled.
There being no error in the trial of this case, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
The plaintiff in error sets out and assigns 10 separate grounds of error in its petition, but in its brief waives all the errors assigned except two, and relies upon the following, to which it calls the attention of this court: ’ *
“1. That the court erred in not sustaining the demurrer interposed by the plaintiff in error to the evidence of the defendant in error at the close thereof, upon the ground and for the reason that the evidence wholly fails to disclose any eause of action or ground of relief in favor of the plaintiff below, and that the court erred in refusing to instruct the jury at the close of all the testimony to find Tor the defendant below, for the same reason, and that the court erred in refusing to grant the defendant below a new trial.
“2. The court erred in permitting improper testimony to be given'to the jury, over the objection of the defendant below.” „
The first error relied upon involves two distinct propositions : (1) That the gourt erred in overruling the demurrer of defendant below to the evidence ; (2) that the court erred in refusing to instruct the jury at the close of all of the evidence to return a verdict for the defendant below. Plaintiff in error in its brief says: “Hence, we conclude that the only question in the first.assignment of error is whether the trial court erroneously overruled the demurrer to the evidence of plaintiff below.” Upon an examination of the record, we find that the cause of action of the plaintiff below was to recover for personal injuries which he received while in the employ of the Missouri, Kansas & Texas Railway Company in its shops at Parsons, Kan. The plaintiff below was employed as a carpenter in the shops, and while engaged in the performance of his work in the shops, and while placing a heavy engine tank-frame in position on the trucks by means of the use of what is known as a lifting-jack, the cogs in the jack slipped, and the handle of the jack struck him on the back of the head and neck and rendered him unconscious, and he remained in an unconscious condition for 46 days. The lifting-jack is a tool used by the workmen in the shops in raising and lowering heavy timbers and such objects as are required to be moved. It is operated by working the handle up and down, and it raised the tank-frame by means of a ratchet in which were cogs; as the handle was pressed down it would raise the ratchet upon which the tank-frame rested, and it was held in place by means of a pawl or spring catch, which slipped into the cogs in the ratchet; then the handle would raise and would catch the lever down in the cogs on the ratchet, and pressing down on the handle would raise the ratchet, causing the spring to slip down over the cogs ; as soon as pressure upon the handle would cease, the pawl, or spring catch, would slip under the cogs and hold them until the handle was again raised; by this means the tank was raised and held in place.
The evidence was conflicting as to the condition of the liftihg-jack, and as to whether the defective condition of the jack was the cause of the injury to the plaintiff below. Young testified to the length of time he had been employed in the'shops; that there were two lifting-jaclcs furnished the employees; that he had frequently used them, and described the jack that he was using at the time that he was injured. He testified to the manner in which he was using the jack, the position of the other persons who were assisting him, and the manner in which he received the injury, and that he did not Fnow the jack was defective ; that he had never examined it to ascertain its condition; that it was no part of his business to inspect the tools that were used in the shop where he worked; that there we^e foremen whose duty it was to inspect tools; that the ratchet, pawl, spring and cogs -were all inside of the jack, and could not be examined except by taking the jack apart; that he never took it apart or saw the inside works of it.
W. L. Hammack testified that he was employed in the shops at the same time that Young was, and was working there at the time of the injury. Pie was a carpenter ; had tfsed the lifting-jack ; had discovered that it was defective and that it was unsafe unless great care was exercised in tising it; that it slipped twice with him before the time Young was hurt; that the jack would not perform ¿is it should unless one was very careful in using it; that he would have to notice very particularly that the catch slipped into the proper place; that he took the jack apart and made an examination of it and found that the cogs in the brass catch were worn; that the worn condition of the cogs had such effect that the jack would not hold, and described the condition of the jack at length and why it would slip; that it was dangerous, and that the defective condition could not be .discovered without taking the jack apart and examining it. Taking the jack that was then before the jury and explaining to them, he said:
“ This pin, in drawing up, as I just said, on these cogs a little, you press down that way ; sometimes it would not do it at all; it would not do it all the time ; it would slip off; it done that way a couple of times ; of course when it happened I took it out and looked to see what was the matter with it, and what I discovered was the edge of these cogs had worn to some extent.
“ Ques. State whether or not you could ascertain that without an inspection and examination. A. No, sir, I could not.”
Peter Reinhart testified that he was an employee in the Missouri, Kansas & Texas shops at Parsons, Kan., at the same time plaintiff below worked there ; that he was a carpenter and.worked in the same shop with Young ; that he had used the lifting-jack ; had examined it before the injury to Young, and found that it was worn so much that it slipped' cogs; that it frequently slipped with him ; that he had to be very cautious in using it; that Jack Shook was foreman and manager of that department; that he had a conversation with Jack Shook on the same morning Young was hurt about the defective condition of the jack; that the conversation was about two hours before Young was hurt.
Other witnesses testified about the defective condition of the jack, and the jack was in evidence before the jury and was examined by witnesses in their presence, and the manner of operating it was shown. . The jury saw and examined it in court, and had an opportunity to inspect it and discover the worn and. defective parts described .by the witnesses. The injury to Young was fully described by the witnesses, the length of time he was unconscious, his impaired physical condition, the medical attendance, expense for medicine, and the time- lost while he was entirely 'unable to do any kind of business.
We think the evidence tended .to prove every material fact involved in the pleadings and was such that it should have been submitted to the jury, although there was great conflict in the evidence. This court cannot find that the court below erred in overruling the demurrer to the evidence unless there was no competent evidence given which tended to support the plaintiff’s cause of action, jtnd upon which the jury might, under the most favorable construction of the whole evidence, find- for the plaintiff below. The court will not weigh conflicting testimony, but if there is any competent testimony tending to support every material allegation in the plaintiff’s petition, the case should be submitted to the jury. This matter has been too often decided by the supreme court to admit of any further comment upon it.
It is contended by plaintiff in error that at the time of the injury to Young he wüs handling the jack, and for its operation at that time he was alone responsible ; that is to say, if the jack had -to be handled with due care — and that seems to have been the exact condition — then the plaintiff handling it alone without assistance was certainly guilty of a lack of necessary care or he would not have received the injury. It is a well-settled principle of laV that where a person seeks employment in any line of business where there is danger he assumes the risk, and -hazard ordinarily incident to such employment. By accepting the employment he represents himself competent to perform that kind of work, and that he will not be guilty of negligence in or about the performance of the same. He owes to his employer vigilance aiid care in the ex ecution of the undertaking. Where he has been guilty of negligence contributing to some injury to him personally he cannot recover for such injury. But the question of contributory negligence on the part of the employee is a matter of fact for .the consideration of the jury, under' all the evidence, on the trial of the case. In the first place it is the duty of the master to furnish his servant with a safe place to perform the work he undertakes to do, and to provide him with such tools or instruments with which to do the work as are reasonably safe. If the master performs all that is required of him under the law, and the servant is injured by accident or through lack of proper care on his part, the master is not liable for such injury ; but if the master fails to furnish the servant with a safe place to perform his work, or fails to furnish him with suitable and reasonably safe instruments with which'to perform his work, and the servant is injured by reason of the master’s failure, then the master is liable, unless the servant knowing the defective condition of the tools uses them without complaint; then he waives his right to damages.
Plaintiff in. error claims that Young used the jack almost daily for five years ; that if there was a cog broken on the ratchet, Young could see that fact as well as Shook ; that if the pawl slipped, Young would observe that quicker than Shook could possibly ascer-tain it by an inspection ; that the fact that Young had made no complaint to Shook of the imperfection of the jack, although using it almost daily for five years, and had never informed him that it was dangerous, had never protested against its use, but had continued to use it, is the strongest evidence that could be produced that; he assumed the j.ack to be absolutely safe ; or, if he did not consider it to be safe, that he assumed the risk of its imperfections, of which, he hacl full opportunity to know. The evidence: shows that this jack had been in constant use in the shops at Parsons for six or seven years, and that the cogs in the ratchet had become considerably worn, and for that reason it was liable to slip if great care was not taken in using it, and when it was used in raising or lowering heavy timbers, and the cogs slipped in the ratchet, the handle would fly up quickly, aid made it dangerous to the persons operating it.
It was not only the duty 0/ the railway company to furnish the employees with reasonably safe tools and implements with which to perform their work, but also to exercise reasonable diligence ancl care to see that the tools and instruments furnished by it to the employees were kept in such repair and condition as would be safe for the purposes for which the employees were required to use them. It was not sufficient that the railway company, in the first instance, furnish safe tools and implements, but the law requires of it the exercise of reasonable care and diligence to keep such tools and instruments in a reasonably safe condition and repair ; and if the company fails to discharge its duty in this respect, and injury thereby results to the employee, without his fault, the railway company is liable for such injury. Where the railway compan3 has furnished, in the first instance, such reasonably safe tools and'implements to the employee, to. be used in the performance of the work ue undertakes to do, and the tools become worn, or some latent defect exists of which the company has no knowledge, or by the exercise ^of ordinary care and diligence it could not have discovered, and the employee using them has the same means of knowing the condition of the tools that the company has, and the tools are by each considered reasonably safe, and the employee is injured by the use of them, it is a mere accident or misfortune, for which the company is not liable.
In the case of the A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 666, Valentine, J., delivering the opinion of the court, says:
"(1) An employee of a railroad company, by virtue of his employment, assumes all the ordinary and usual risks and hazards incident to his employment. (2) As between a railroad company and its'employees, a railroad company is not an insurer of the perfection of any of its machinery, appliances or instrumentalities for the operation of its railroad. (3) As between a railroad company and its employees, a'railroad company is required to exercise reasonable and ordinary care and diligence, and only such, in the furnishing to its employees reasonably safe machinery and instrumentalities for the operation of its railroad. (4) It will be presumed, in the absence of anything to the contrary, that the railroad- company has performed its duty in such cases, and the burden of proving otherwise will rest upon the party asserting that the railroad company has not performed its duty. (5) And where an employee seeks to recover damages for injuries resulting from insufficiency of any of the machinery or instrumentalities furnished by the railroad company, it will not only devolve upon such employee to prove such insufficiency, but it will also devolve upon him to show either that the railroad company had notice of the defects, imperfections or insufficiencies complained of, or that by the exercise of reasonable and ordinary care and diligence it might have obtained such notice. (6) And proof of a single defectivo or imperfect operation of any of such machinery or instrumentalities, resulting in injury, will not of itself be sufficient evidence, nor any evidence, that the company had previous knowledge or notice of any supposed or .alleged defect, imperfection or insufficiency in such machinery or instrumentalities. (7) As between- a railroa 1 company and its employees, the rail road company is not necessarily negligent in the use of defective machinery, not obviously defective, but if is negligent in such cases only where it has notice of the defects, or where it has failed to exercise reasonable and ordinary diligence in discovering them and in remedying them.”
The questions in relation to the condition of the jack, whether it was defective in the manner claimed, or whether it was in good condition, were all before the jury on conflicting testimony, and it was for the jury to determine whether the jack was defective, and if it was, whether the defendant below had any knowledge of its defective condition, or, if not, whether it could have discovered its condition by the use of ordinary diligence. These are all matters of fact for the jury, and the jury having passed upon the facts on conflicting testimony, their findings must be conclusive of the facts.
The final contention of counsel for plaintiff in error is that the court erred in permitting improper testimony to go to the jury. The evidence complained of by counsel all refers to the 'condition of the lifting-jack, by witnesses who were mechanics, and who had used the jack for a number of years, and were familiar with its construction, its operation, the frequency with which it. had been used, and its worn condition. The jack was produced in court before the jury, and the witnesses for both plaintiff and defendant explained fully the condition that it was in at the time of the injury. "We have examined the evidence with great care and do not think there was any substantial error committed by the court in permitting the same to go to the jury.
No error appearing in the record, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
This is an action of replevin brought in the court below by the Weir Plow Company, a corporation, to recover from Edward Marshall the possession of certain personal property, consisting principally of wagons, and agricultural implements, which were detained by the defendant as sheriff of Cloud county under and by virtue of certain attachments levied thereon at the instance of several creditors of one L. A. Bartlett, who was at that time engaged in the agricultural implement business at Concordia, in said county. The plaintiff claimed to be the absolute owner of the property in controversy, and that .Bartlett held it as its agent at the time of the levy of the attachments. The evidence shows that the plaintiff was a manufacturer and dealer in agricultural implements, and that on January 27, 1888, it entered into two contracts with Bartlett with reference to certain classes of that kind of property. The contracts as signed by Bartlett and the agent of the company are wholly in print, save the signatures thereto and as hereinafter stated. One of these contracts related solely to certain goods listed in what is in the record denominated " a blue-list book,” which goods were manufactured'by parties other'than the plaintiff, but which were handled by it. By the terms of this contract, the plaintiff agreed that it would deliver to Bartlett goods listed therein, to be by him sold on commission at the prices therein named, the proceeds thereof to be paid to the plaintiff in cash and purchaser’s notes, payments of the -latter to be guaranteed by him, the plaintiff reserving the right to revoke the contract at any time. The other contract related solely to goods listed in what is termed a ‘ ‘ red-covered book,” which was printed partly in red ink and partly in blue ink, and were goods manufactured by the plaintiff. On the opposite page to the one setting forth the printed contract appears the following written indorsement:
"All blue-list goods furnished L. A. Bartlett are to be settled for by his note due December 15, 1888, with interest at 8 per cent, from July 1, 1888, and this note to be secured by a deposit of farmers’ notes drawing 10 per cent, interest in First National Bank of Concordia, Kansas, receipts for said collaterals to be sent to the Weir Plow Company, and collections upon said collaterals to be indorsed upon Mr. Bartlett’s note. Contract on opposite page to govern settlement for all other goods than blue-list goods described herein.”
The evidence shows that some of the goods in controversy were of the same class as those described in the “blue-list book,” and also those printed in blue ink, as well as those printed in red-ink in the “red-covered book.” The plaintiff claimed that at the time these contracts viere executed certain manufacturers and 'wholesale dealers, including the plaintiff, had entered into a combination with each other for the purpose of regulating the manner in which certain classes of agricultural implements should be placed upon the market, and had organized what is termed a “plow association,” and that the plaintiff had agreed with such association that it would not dispose of the goods of its own manufacture, which were'listed in blue ink in the “red-covered book,” upon commission, or otherwise than upon an absolute sale, and that the written stipulation above referred to, which was entered on the page opposite the printed contract, was' there inserted solely for the purpose of misleading any member of that association should a claim be made that such goods were being delivered to Bartlett for sale upon commission, and that in fact that stipulation was not intended by either Bartlett or the plaintiff to be treated as a part of the agreement between them ; but that the actual agreement is -expressed in-the printed form of the contract by them executed. This the plaintiff attempted to establish upon the trial by the testimony of L. A. Starr, who signed the contract as agent for the plaintiff, but his testimony shows that he had no actual knowledge of the existence of the “plow association” ; that he did not insert this writing in the contract, and that it was all- prepared by the manager of the company at Kansas City. He testified, however, that it was his understanding that there was such an association, and that, this stipulation was inserted for the purpose of misleading the parties connected therewith should the plaintiff ever be called upon to show this contracts* and he also testified, in answer to a direct question of plaintiff’s attorney, that Bartlett knew that such was the purpose in inserting that stipulation.
This is all the evidence introduced bearing upon this question, and it was admitted over proper objections interposed by the defendant. These printed contracts evidenced an agreement between the parties, by the terms of which the plaintiff obligated itself to furnish to Bartlett certain goods which the latter should endeavor to sell to his customers, and to account to the plaintiff for the proceeds thereof; but by inserting the writing above set out, one of these contracts was so changed as to amount to an agreement on the part of the plaintiff to sell to Bartlett certain •goods therein described at certain fixed prices, the defendant, however, reserving the absolute light to revoke either or both contracts at any time it might deem it expedient to do so. No goods were ordered at the time they were executed, nor is there any competent evidence in the record that any goods were subsequently ordered from the plaintiff in pursuance of these contracts, but the record shows that some time after their execution Bartlett ordered goods from the plaintiff, but what goods were so ordered, or the value thereof, or whether the identical goods in con troversy were in fact delivered to Bartlett by the plaintiff, is mere speculation.
These contracts related solely to goods to be delivered during the year 1888. Starr testified that the last time he invoiced this stock was in December of that year. That invoice was not offered in evidence, nor is there anything to show that all of the goods in controversy were on hand at that time. The plaintiff introduced in evidence a letter written by Bartlett to the plaintiff in September, 1888, in which he made a statement of the stock then on hand. This list did not include some of the property now claimed by the plaintiff, of the value of $400, and the record does not show that any goods were ordered from the plaintiff after that statement was made, and Starr testified that he sent in no orders after that date. These contracts also provided that Bartlett might at any time become a purchaser of any or all of the goods shipped to him, upon payment therefor. The attachments were not levied until June, 1889, and there is nothing in the record tending to show that Bartlett did not in fact purchase these goods, or some of them at least, before the attachments were levied. It is true that Starr, in answer to plaintiff’s question as to whether or not Bartlett, between the dates of the contracts referred to and the date of the levying of the attachments, made any statements to him or informed him in any way as to who was the owner of the goods in controversy, testified that “ he always recognized them or treated them as the Weir Plow Company’s goods,” and to a further question as to whether Bartlett, between the dates named, made any claim that he was the owner of any of the goods described in the red-covered book, he answered, “ No, sir ; he always acknowledged the ownership in the Weir Plow Company.” But the i-ourt should have sustained the defendant’s motion to strike out the answers "as not being responsive to she questions asked, being conclusions of the witness, and incompetent.” Starr was the only witness examined at the trial, and, instead of detailing to the jury the facts relative to the matters in controversy and the circumstances surrounding the transactions between the parties, he was permitted, over the repeated objections of the defendant, to testify to his own conclusions as to what such facts and circumstances would tend to show, and also to answer several leading questions propounded to him which assumed the existence of certain facts which were in dispute, and which it was necessary for the plaintiff to establish in order.to entitle it to a verdict in its favor. In fact, the greater part of his testimony was incompetent.
Counsel for defendant in error say that "if the competent testimony proved the plaintiff’s case, then the questions attempted to be raised by the plaintiff in error as to the propriety of the rulings of the court as to the introduction of evidence are immaterial,” and that "no amount of incompetent testimony could have prejudiced the defendant if' the competent testimony which defendant did not attempt to contradict proved plaintiff’s title to the goods in controversy.” We cannot give our unqualified assent to these propositions. We do not think a trial court would commit reversible error in overruling a motion for a new trial which was based solely upon the ground that incompetent, irrelevant and immaterial testimony had been admitted in evidence where the same verdict must necessarily have been returned had such testimony been excluded. But where incompetent evidence is admitted at tlie instance of. the prevailing party, and different conclusions might reasonably be drawn from the competent evidence in the case, a new trial should be granted. And if upon an examination of the record by this court a fair presumption arises that, had the recognized rules governing the admission of evidence been adhered to the result might have been otherwise, and a motion for a new trial is overruled, which ruling is assigned for error in this court, a judgment rendered on the verdict returned by the jury should not be permitted to stand. In this case, had the verdict been in favor of the plaintiff in error, this court could not say that there was not sufficient evidence to support it. The burden of proof was on the plow company to establish its ownership of the property. Upon s.uch ownership rested its right of possession. The plaintiff in error was entitled to have that question fairly tried by a jury. Several of the special findings of fact are without support save this incompetent testimony, and its admission was highly prejudicial to the plaintiff’s rights. In view of what has been said, we do not deem it necessary to pass upon the other errors to which our attention has been called.
The judgment will be reversed, and a new trial awarded.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gar ver, J.:
This is an action to reform a deed of conveyance of real estate so as to make the same conform to the agreement of the parties. It is claimed that the plaintiffs in error sold and agreed to convey to the defendant in error a tract of one-half an acre of land, to be measured out of a larger tract owned by the plaintiffs in error in Norton county, and that when the deed was executed, by mutual mistake, said tract of land was described by such metes and bounds as actually embraced only one-half the quantity purchased and intended to be conveyed. The district court found in favor of the defendant in error, the plaintiff below, and decreed the reformation of the deed of conveyance as prayed for. Of this judgment and decree the plaintiffs in error complain.
This case has been heretofore in the supreme court for the review of a decision of the district court made upon the pleadings. (Duvall v. Simpson, 53 Kan. 291.) There is nothing in the record now before us to show that the value of the land over which these parties are having so much controversy exceeds $100. The only thing bearing upon value is the fact that when the purchase was made the price agreed upon for the one-half acre was $85.
We cannot presume that half the quantity of land is worth more than the original purchase. It is well settled that this court has no jurisdiction to review the judgment óf a district court unless the amount or value in controversy, exclusive of costs, shall exceed $100, or unless the case belongs to certain excepted classes. There is no certificate attached to the record in this case showing that it belongs to an excepted class. Jurisdiction must be affirmatively shown; otherwise, this court has no authority to review the judgment of the district court. (Packard v. Packard, 56 Kan. 132.)
Because of want of jurisdiction this case will be dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This case, being an action to set aside a will, was tried to the district court of Butler county, without a jury, on June 15, 1908, and after the evidence of each party had been introduced the records of the court show the following proceedings:
“Thereupon the court suggested that the cause be submitted on written briefs, and, the parties consenting thereto, the court gave the plaintiffs sixty days in which to submit their written brief and argument to the court or the judge thereof, and to serve a copy thereof on the attorneys for the defendants, and if the court so desired, after considering the brief of the plaintiffs, the defendants should have reasonable time thereafter in which to submit written briefs for the defendants in reply to the brief of the plaintiffs, and the further hearing of said cause was continued until the November, 1908, term of said court.
“On August 12, 1908, at an adjourned day of the June term of said court, an extension of time for filing-plaintiffs’ brief was granted, and they were given ‘until within a reasonable time prior to the November, 1908, term of said court to submit their written brief.’
“Now, on this 19th day of November, 1908, said plaintiffs, by their attorneys, filed their motion and moved the court to dismiss said action without prejudice to a new action, and said motion was passed to a later day in the term.
“Now, afterward, to wit, on this 27th day of November, 1908, comes on for hearing the motion of the plaintiffs to dismiss said action without prejudice to a future action. All the parties to said cause appearing by their respective counsel, and after argument by counsel, and the court, being fully advised, finds that said cause was finally submitted for decision and judgment on the written brief and argument of the counsel of the plaintiffs prior to the filing of said motion to dismiss without prejudice, and the court takes the matter under advisement and continues the further hearing of said cause until January 4, 1909, the same to be an adjourned day of said November, 1908, term of said court.
“Now, on this 4th day of January, 1909, being an adjourned day of the November, 1908, term of said court, comes on to be heard the motion of the plaintiffs to dismiss said cause without prejudice, and the court, being fully advised in the premises, finds that said cause was fully and finally submitted on its merits by said plaintiffs prior to the time said motion to dismiss was filed, and the court overruled said motion to dismiss without prejudice, to which ruling of the court the plaintiffs duly objected and excepted.
“Thereupon said cause came on for final judgment and decision on its merits, and the court, being fully advised in the premises, finds that the writing purporting to be the last will and testament of Filena Warner, deceased, as admitted to probate in the probate court of Butler county, Kansas, is the valid last will and testament of said Filena Warner, deceased, and that said plaintiffs should not recover in said action.
“It is therefore considered, ordered and adjudged by the court that the prayer of the said plaintiffs’ petition be and the same is hereby denied, and that said defendants have and recover judgment against said plaintiffs for their costs, taxed at $383.30. To each and all of the rulings, decisions and judgments of the' court the said plaintiffs objected and duly excepted.
“Whereupon the respective guardians ad litem each moved the court that an allowance be made by said court for fees for services as such, and asked the court to tax said fees up as costs in said action against said plaintiffs. And the court, being fully advised in the premises, allows the following amounts: To T. A. •Kramer, $185; to E. N. Smith, $35; to C. A. Leland, $35; to E. D. Stratford, $35.
“It is therefore considered, ordered and adjudged by the court that $35 of the sum allowed to T. A. Kramer be taxed to the plaintiffs as costs, and that $150 of the allowance to said T. A. Kramer be taxed against the estate of said Filena Warner, deceased, and that the sums allowed respectively to C. A. Leland, E. N. Smith and.E. D. Stratford, being $35 each, be taxed as costs against said plaintiffs; to which ruling of the court taxing said guardians ad litem fees as costs and against said plaintiffs and to each and all of said findings, rulings, orders and judgments said plaintiffs duly objected and excepted.
“And afterward, on the same day, the said plaintiffs filed and presented their motion to set aside the judgment and decision of the court herein rendered, and for a new trial, and the court, after hearing the argument of the counsel and being fully advised in the premises, overrules said motion; to the ruling and order of the court overruling said motion said plaintiffs duly objected and excepted.
“And afterward, to wit, on the same day, plaintiffs filed and presented their motion to the court to retax the costs allowed for the respective guardians ad litem, the hearing of which motion was continued to the March term of said court.”
The facts which determine whether a case is finally submitted to a trial court for determination are largely within the knowledge of the judge thereof, especially the fact whether or not he has considered all the claims and contentions of the parties, and whether or not it would be in furtherance of justice to allow a plaintiff to dismiss his action and begin anew. The case was heard below at one term of court, so far, at-least, as. the evidence -of the parties was concerned, and was. taken under advisement for decision until the next term, with ample provision for written briefs and arguments, to which the parties both consented. The motion to dismiss the action without prejudice was filed nine days after the beginning of the ensuing term, and We can not say from the facts presented in the record that the judge had not. fully examined all of the claims and contentions of the parties and arrived at a' full decision of the case in his mind. Indeed, at the very time the case was taken under advisement and continued the intimation of the court was that it was inclined to decide the case in favor of the defendants, and would not care to hear from them, unless the plaintiffs made some showing which caused his judgment to waver in this respect. With knowledge of this intima tion, the plaintiffs presented their brief to the court. It may fairly be said that the defendants also, under the agreement, submitted their case without any brief, and the decision of the court upon this question will not be reversed.
The appellees were by the judgment of the court awarded four allowances of $35 each, aggregating $140, as fees to the respective guardians ad litem, which allowances were taxed as costs in the case, and a motion to retax the costs was denied. Neither party to an action at common law could recover his costs, but each party was responsible for the costs he had made. It has, therefore, been frequently said that before costs can be awarded in an action under our code some warrant therefor must be found in the statute. Unless otherwise provided, costs in actions for money or for the recovery of specific real or personal property are to be adjudged in favor of the prevailing party; in other actions costs are to be taxed and apportioned as in its discretion the court thinks right and equitable. (Code 1909, §§ 613-615.) But these allowances to the guardians ad litem are not, properly speaking, costs. They seem rather to be in the nature of penalties imposed for bringing an unfounded action against minors. It was said in Prest v. Black, 63 Kan. 682:
“The fees of a guardian ad litem are not costs in the case, and therefore are not chargeable against the unsuccessful party.” (Syllabus.)
The allowances will therefore be set aside, and the judgment, so modified, is affirmed. | [
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Per Curiam:
The plaintiff recovered judgment against the defendant for $900 on account of injuries sustained by a fall from a sidewalk. There was sufficient evidence of negligence on the part of the city to sustain the verdict.
A number of the claims of error are based upon alleged defects in the petition. On the trial the petition was amended by leave of the court, and if there were any defective averments the amendment cured them.
In answer to a hypothetical question a physician was permitted to testify as to the probable effect upon a girl of the plaintiff’s age - in falling violently upon her knee a distance from ten to fifteen inches from a sidewalk. At the time the question was asked the plaintiff had not testified and there was no evidence that she had fallen. She so testified, however, within a short time afterward.
There was only one cause of action stated, and the motion to require the plaintiff to elect was properly denied.
The sixth assignment of error is an unfair statement of what an instruction contains. It omits the balance of the sentence in which the court used this language: “or that by the exercise of reasonable care and prudence upon the part of the plaintiff she could have known of the condition of said walk.” The use of the words “guards or barriers” in instruction No. 12 is complained of because the petition nowhere alleged as-negligence the omission to provide guards or barriers; but the petition- does allege that there Were no lights or other warnings to prevent the accident. Moreover, the instruction could not have been prejudicial, as there was abundant proof of other negligence upon which plaintiff was entitled to recover.
The instructions given fairly covered the issues and the instructions requested were properly refused. The judgment is. affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The Wyandotte County Gas Company, a domestic corporation having its principal office in Wyandotte county, sought to enjoin the collection of’ personal-property taxes assessed against it. A demurrer was sustained to its petition, and the plaintiff appeals. The chief contentions are that the board of tax commissioners, acting as an appellate board of equalization, pursued an illegal method and acted in an arbitrary and oppressive manner in increasing the valuation of the plaintiff’s capital stock.
Prior to November, 1908, a foreign corporation owned a gas plant in Wyandotte county. It held a franchise from the city of Kansas City to supply the city and its inhabitants with manufactured gas, and held another franchise to supply the city and its inhabitants with natural gas. In the month mentioned the plaintiff took over the property and franchises of the foreign company, and issued therefor its total capital stock, consisting of 10,000 shares of the par value •of $100 each. In the year 1908 the assessor assessed the entire plant as real estate, in the sum of $801,940. In 1909 there was added, by the assessor, extensions •of mains valued as real estate at $38,770", and personal property valued at $41,300, making a total property valuation of $882,010 for the year 1909. The petition alleges that this valuation took into account not only physical property but the plaintiff’s franchises, the •earning capacity of the plant, its good will and its value as a going concern. With its personal-property statement the plaintiff returned a statement of capital paid in, showing 10,000 shares of the total actual value in money of $825,000. The county board of equalization made an order increasing “the capital-stock assessment” in the sum of $600,000, making a total capital-stock valuation of $1,425,000. The real and personal property valuations were not changed. The plaintiff appealed to the state board of equalization. After a hearing this tribunal made the following findings:
“(1) The equalized assessed real-estate value of appellant in the sum of $862,970 is the correct and true value of the property assessed.
“ (2) The value of the personal property of the appellant for purposes of taxation as fixed by the deputy assessor, in the sum of $41,300, is the correct and true value of the property so assessed.
“(3) The value of the capital stock of the appellant is found by this board to be $1,400,000, from which must be deducted the assessed value of the real estate and personal property owned by and assessed to appellant.
“The assessed value of the real estate, in the sum of $862,970, and the assessed value of the personal property, in the sum- of $41,300, making a total of $904,270, must be deducted from the capital-stock value, as follows :
Total value of capital stock.............. $1,400,000
Total assessed value of real and personal property ........................... 904,270
$495,730
“This board finds therefrom that there is a capital-stock value subject to assessment in the sum of $495,-730. It is therefore ordered that the personal-property assessment of the Wyandotte County Gas Company for purposes of taxation for the year 1909 be equalized as follows: The tangible personal property is fixed at $41,300, and the capital-stock valuation of said corporation for assessment purposes at $495,730.
“The county clerk of the county of Wyandotte is directed to extend taxes against values owned by the Wyandotte County Gas Company as follows:
Against real estate..................... $862,970
Against personal property............... 41,300
Against capital stock................... 495,730
$1,400,000
The state board made a clerical error in its figures, but the merits of the controversy are not affected.
The law required the full amount of the plaintiff’s capital stock paid in and remaining as capital stock to be assessed as personal property, at its true value in money, from which the amount of stock invested in listed real or personal property must be deducted (Laws 1908, ch. 80, §1, Gen. Stat. 1909, §9229). Sections 9336 and 9337 of the General Statutes of 1909 (Laws 1905, ch. 503, §§ 1, 2) read as follow:
“That all fixed mains, flumes, aqueducts, reservoirs, receptacles, standpipes, purifiers, regulators, lamps, lamp-posts, meters, shackle rods, plugs, tanks, wires, and all other property, whether herein enumerated or not, used as part of a system and employed in leading, conducting or distributing heat, light, power, oil, gas, water or other commodity between the place of generation, production or supply to [and] the place of distribution, consumption, use, manufacture, market, or further shipment shall be listed and taxed by the city, town, school district, township or county in which said property or any part thereof is located, and in the same manner returned as is provided by law for real estate.
“If the property described in section 1 be that of any company, corporation or copartnership the assets of which is represented by shares of capital stock, the said property in section 1 shall be deducted at its true value from the total true value of all the stock of the said company, copartnership, or corporation.”
Real estate includes not only the land itself, but also all buildings, fixtures and improvements and rights and privileges appurtenant thereto. (Laws 1907, ch. 408, § 1, Gen. Stat.' 1909, § 9215.) No special provision is made for the listing, valuation and taxation of corporate franchises to occupy streets, supply the public with gas, and the like.
It is argued that the state board, in valuing the plaintiff’s real estate, was bound to regard as appurtenant thereto all of the intangible factors which give its capital stock value; that the assessor did this; that the valuation placed by the assessor upon the real and personal property, into which the plaintiff’s entire capital, with all its incidents, had gone, were approved by the state board; and consequently that there was no basis in law or in fact for an added “capital-stock value” of approximately a half million dollars.
When the state board undertook to value the plaintiff’s capital stock the question was, What was its usual selling price in money, if there were such a price? If there were no usual selling price, then the question was, What did the board believe could be obtained for it in money? (Laws 1876, ch. 34, § 15, Gen. Stat. 1909, § 9247.) Very lately a gas plant, with land and other tangible property, with franchises and with various intangible incidents, had been obtained for this very stock. Could $1,400,000 in money be obtained for it? If the board in good' faith believed so, as a fair business proposition, that was .the proper value to place upon it for purposes of taxation.
Why should the state board believe the plaintiff’s capital stock is worth so much money? In the first place, the corporation holds franchises which constitute property of which it can not be deprived without due process of law. Ordinarily franchise ordinances constitute contracts, the obligation of which can not be impaired. Franchises like those the plaintiff enj oys may be bought and sold for a price in money. The plaintiff bought them, and they constitute an asset which contributes to the value of its capital stock. If the plaintiff should be granted a new long-term franchise, giving it better privileges than those it now enjoys, its capital stock would rise in value at once. In the next place, the plaintiff’s capital stock is valuable on account of the advantages the corporation possesses as an established, going' concern, which not only has the capacity and the opportunity to earn money but which is in fact producing a revenue. Other intangible factors contributing to the money value of the plaintiff’s capital stock might be enumerated, but the two which have been mentioned are sufficient to illustrate the principle, and their value may be proved by a concrete example.
In the case of Water Co. v. Galena, 74 Kan. 644, 646, the city decided to take over the water works, as it had the right to do. The question was, What should the city pay? The referee found that the physical property alone was worth $60,185.27. He further found from the evidence presented that the unexpired franchise and going-concern value of the plant amounted to $15,214.73 more.. The city was required to pay this additional item. It can not be doubted that the value of the water company’s capital stock was augmented by this amount. If the assessor had called upon the company for its tax statement it would have .been obliged to return its capital stock at $75,400 (assuming it had no other assets than those under consideration). From this sum would have been deducted the amount invested in real and personal property, $60,185.27. The remainder, $15,214.73, would have constituted the capital-stock value assessable to the corporation as personal property.
From the foregoing the conclusion must be that in valuing capital stock for assessment it must be considered as the representative of all value-producing elements attending the corporate enterprise, including not only tangible assets but intangible rights, privileges and franchises, and good will and going-concern value as well. On the other hand, whatever reduces value must be taken into account, the question being, What sum is it believed can be obtained for the corporation’s capital stock in money?
For many purposes intangible interests like those discussed may be considered as appurtenant to tangible property. Whenever they can not be reached for purposes of taxation in any other way they will be .so considered, but the adoption of that method is not always essential. Take the common case' of a promoter’s company. The corporation is organized and some of its capital stock is paid in. It is granted valuable franchises which it can sell at once for a large sum of money, and which it can transfer by assignment or bill of sale. The assessable value of the company’s capital stock has been increased by the salable value of the franchises, although no portion of the capital stock has been invested in tangible property to which the franchise element of value may attach. In the Galena case the referee found from the testimony of witnesses an unexpired-franehise and going-concern value, separate and apart from the value of the physical property. As a simple business transaction between a buyer and a seller there was no difficulty whatever in distinguishing the items and stating the true value of each one in money. There is no reason why the matter should become involved in confusion and mystery if an impartial assessor or board of equalization should be placed in the shoes of the impartial referee.
In making its valuation the state board was not obliged to disintegrate the plaintiff’s capital stock into its various value-contributing elements and set opposite to each one a specific sum. Capital stock may be valued as an integral whole, much like an industrial plant, which represents a combination of elements whose very combination may be a considerable factor in creating value.
In order to arrive at the quantity of the plaintiff’s capital stock ultimately assessable as personalty it was necessary that the state board should deduct from the total value the amount of such stock invested in listed real and personal property. To make the deduction it was necessary to value the plaintiff’s listed real and personal property, and in doing this the intangible factors considered in connection with capital stock could not be considered again as factors in the value of tangible property. To do so would be to include and ultimately to tax them twice, once as capital stock and again as tangible property.
Double taxation is not so utterly vicious that it can. not be tolerated at all. Probably no revenue system can be devised which will be wholly free from such a result. Double taxation is avoided as a matter of legislative policy, and not because of any inflexible rule of law condemning it. Therefore all that can be said is that the tax laws are to be construed and administered to prevent double taxation as far as possible. In this case there is no occasion for duplication.
In valuing the plaintiff’s plant thé state board had the right to consider it as an organized whole, and to consider it with reference to its adequacy and its adaptability to subserve the purposes of a corporation in the plaintiff’s situation and enjoying its privileges and advantages. Such factors necessarily enter into the true money value of the physical property.
In valuing the listed real estate and personal property into which a portion of the plaintiff’s capital stock had gone the state board was not bound by the assessor’s figures of the year before. The.state board was not valuing the listed real estate and personal property for purposes of assessment. It was determining the net amount of capital stock assessable as personalty.
From what has been said it appears that the method adopted by the state board is not open to criticism, and the only remaining question is whether the petition contains sufficient allegations of arbitrary and capricious conduct and want of good faith in assigning values. With much reluctance the court holds that the petition makes a paper case for equitable relief. It is not necessary to analyze and review the allegations of the petition. Other subjects discussed in the briefs do not require special mention.
The judgment of the district court is reversed, and the cause is remanded with instruction to .overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Smith, J.:
A number of objections made to the complaint are argued in the briefs together, and are, in substance, that the complaint is not sufficiently definite and certain as to the facts constituting the alleged offense therein charged. It is especially urged that the statute establishes a certain weight for a print or package of butter, and that the complaint does not inform the accused whether it was a print or a package which is alleged to have been sold short of such weight. It is a matter of common knowledge that formerly butter was retailed in prints of about one pound weight each; that more recently, for cleanliness and attractiveness, butter has been put up and sold in packages of about the same weight; and that at and before the passage of the act both print and package were generally understood as a measure of the same amount in weight —one pound. The legislature, in passing the act of which the quoted sections are a part, .is presumed to have used the terms in accordance with common usage. In fact in the latter part of section 15 the word “package” is used in lieu of “print or package,” and the word “packages” in lieu of “prints or packages.”
The act is entitled “An act concerning weights and measures and the regulation thereof.” (Laws 1909, ch. 264.) Section 14 establishes the size of a measure of butter, whether the measure be called a print or a package. The words are used synonymously as to the quantity designated thereby. One measure was established under two well-recognized names. As in the sale of potatoes by measure, an abuse had arisen by the use of a measure of smaller content than was indicated to the public by the name of the measure used. To correct this abuse the statute in question was enacted. The objection is based upon the assumption that two different measures are designated by the act. The objection therefore is not tenable.
Several objections are urged which appear to be criticisms of the language of the complaint, even where it follows the exact language of the statute in defining the crime. These objections we will not discuss seriatim. Suffice it to say that the statute is not susceptible of some of the constructions attemped to be placed upon it, and while probably the crime is not defined therein as clearly as it might be, yet the definition seems to be intelligible, and the complaint follows closely the language thereof. It does not negative the proviso, or exception, in the last sentence, of the section, of which we will speak later.
The objection that the complaint is bad for duplicity is completely answered in the case of The State v. Sherman, 81 Kan. 874. The exposing for sale and selling, as charged, appears to have been simultaneous and each as a part of one act.
Again, it is contended that even if the statute recites facts which constitute the offense, and if, as has been repeatedly held by this court, the complaint is sufficient so far as it follows the language of the statute in describing the offense, still this complaint is bad in that it does not negative the exception or provision contained in the last sentence of section 15, which reads:
“A slight variation from the stated weight, measure or quantity for individual packages is permissible, provided this variation is as often above as below the weight, measure or quantity stated.” (Laws 1909, ch. 264, Gen. Stat. 1909, § 9752.)
This is in fact an independent sentence, although as punctuated in the statute it is separated only by a semicolon from the preceding sentence. It forms no part of the definition of the offense charged, but is a proviso, or, at most, an exception thereto. The provision simply excepts sales where the variation in weight is slight and is as frequently above as below the weight expressly stated or the weight implied in the absence of the required label. In such -case it is not necessary to negative the exception. (See The State of Kansas v. Thompson, 2 Kan. 432; City of Kansas City v. Garnier, 57 Kan. 412; The State v. Thurman, 65 Kan. 90; The State v. Buis, ante, p. 273.)
The more serious contentions in this case are: (1) That the statute in question is not in terms made applicable to corporations; (2) If intended to apply to ■corporations it is in violation of section 17 of article 2 of the constitution of Kansas, for the reason that it- ■ can not have a uniform operation throughout the state, the penalty prescribed being a fine or imprisonment in jail, or both, in the discretion of the court; (3) That the sections of the act in question are repugnant to the fourteenth amendment to the constitution of the United States in depriving persons of liberty and property without due process of law, etc., the defendant being a resident of Kansas and of the United States.
As to the first objection it is practically conceded by the appellee that if the statute in question had expressly or by clear intendment been made applicable to corporations and had provided for a fine only it would have been valid; also, that it devolves upon this court to determine what was the intention of the legislature in enacting the law — as to whether or not it was to ■apply to corporations. It was formerly held that a corporation could only be indicted for a failure to perform some duty, and not for malfeasance, but it is now generally held that corporations may be indicted for malfeasance or misfeasance, and may be civilly held responsible for the acts of their officers and agents. In some of the states this is as far as the law has progressed. In some other states it is held that a corporation may be held criminally responsible for an act denounced by the statute, which does not include, as a necessary ingredient, wrongful intent, it being in some cases remarked that a corporation, having no soul, can not have 'a criminal intent. As early as .1854 Mr. ■ Justice Bigelow, in the opinion in the case of Common wealth v. Proprietors of New Bedford Bridge, 68 Mass. 339, said:
“The indictment in the present case is for a nuisance. The defendants contend that it can not be maintained against them, on the ground that a corporation, although liable to indictment for nonfeasance, or an omission to perform a legal duty or obligation, are [is] not amenable in this form of prosecution for a misfeasance, or the doing of any act unlawful in itself and injurious to the rights of others. There are dicta in some of the early cases which-sanction this broad doctrine, and it has been thence copied into text-writers [textbooks], and adopted to its full extent in a few modern decisions. But, if it ever had any foundation, it had its origin at a time when corporations were few in number, and limited in their powers and in the purposes for which they were created. Experience has shown the necessity of essentially modifying it; and the tendency of the more recent cases in courts of the highest authority has been to extend the application of -all legal remedies to corporations, and assimilate them, as far as possible, in their legal duties and responsibilities, to individuals. To a certain extent the rule contended for is founded in good sense and sound principle. Corporations can not be indicted for offenses which ■derive their criminality from evil intention, o'r which consist in a violation of those social duties which appertain to men and subjects. ’ They can not be guilty ■of treason or felony; of perjury or offenses against the person. But, beyond this, there is no good reason for their exemption, from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them. Such a rule would, in many cases, preclude all adequate remedy, and render. reparation for an inj ury committed by a corporation impossible, because it would leave the only means of redress to be sought against irresponsible servants, instead of against those who truly committed the wrongful act by commanding it to be done. There is no principle of law which would thus furnish immunity to a corporation. If they commit a trespass on private property, or obstruct a way to the special injury and damage of an individual, no one can doubt their liability therefor. In like manner, and for the :same reason, if they do similar acts to the inconvenience and annoyance of the public, they are responsible in the form and mode appropriate to the prosecution and punishment of such offenses. .. . . If, therefore, the defendants have been guilty of a nuisance, by obstructing unlawfully a navigable stream, an indictment, may well be maintained against them.” (pp. 345, 346.)
Since the decision in that case the law has rapidly developed in favor of holding corporations criminally responsible for the commission of acts denounced as criminal by statutes, especially where a specific intent is. not an essential ingredient of the crime. This has been held in several federal decisions, and by decisions in the courts of last resort in several of the states. In United States v. New York Herald Co., 159 Fed. 296, it was held:
“A corporation has capacity to commit the crime of' mailing obscene, nonmailable matter, prohibited by Rev. St. § 3893, as amended (U. S. Comp. St. 1901, p.. 2658.” (Syllabus.)
A demurrer to the indictment in that case'was overruled, although the penalty prescribed by the statute-was a fine or imprisonment at hard labor, or both. It; was further held in that case:
“Rev. St. § 3893, as amended (U. S. Comp. St. 1901,. p. 2658), describes certain nonmailable matter, and provides that any person who shall knowingly deposit,, or cause to be deposited for mailing or delivery, anything declared by the section to be nonmailable, shall for each offense be fined, on conviction, or imprisoned at hard labor, or both, etc. Held, that such section was-applicable to a corporation organized for the purpose of' publishing a newspaper, and that proof of the mailing-by such corporation of its newspaper, containing obnoxious matter, was sufficient to show that the corporation had knowledge thereof.” (Syllabus.)
It was said in People v. Palermo Land and Water Co., 4 Cal. App. 717:
“There is no reasonable foundation in the nature of things or such intrinsic difference between corporations-, and natural persons, of which I am aware, that, requires the application of a measure'of jurisdiction over an offense committed by a corporation different from that to be invoked where an individual is charged with the same or similar crime.” (p. 721.)
It was said in, Southern Express Co. v. State, 1 Ga. App. 700:
“The responsibility of corporations for violation of penal laws, though developed by gradual evolution, is well settled and necessary.
“A corporation can be guilty of the offense of furnishing liquors to a minor, if such liquors be delivered to a minor by the agent of the corporation in the course of its business, or if such agent knowingly permits such delivery by another.” (Syllabus.)
Among the states upholding the doctrine that a corporation may be indicted for misfeasance and for a violation of acts prohibited by statute, cited in section 2138 of volume 12 of the Century Digest, are Illinois, Kentucky, New Jersey, New York, Ohio and Tennessee. Other states, notably Indiana and Maryland, hold to the ancient doctrine that a corporation can not be indicted for misfeasance. In several of the states cited there is a statutory provision that the word “person,” where used in the criminal, statute, includes corporations. There is no such provision in this state, and we do not find any decision in this state which so holds, although in the case of The State v. Williams, 74 Kan. 180, it was «aid that the word “person,” used in section 270 of the ■crimes act, referring to the person libeled, includes a ■corporation. The question may well be asked, If the word “person” used to designate one libeled includes a ■corporation, why it should not also include the corporation if the same word were used to designate the one ■guilty or supposed to be guilty of the libel? The statute in question (§15) by its language, “a person who, by himself, or his servant or agent, or as the servant or the agent of another, uses;” etc., seems almost to suggest that the word “person” was intended to include a ■corporation. The statute was enacted to prevent a particular abuse, and it is a matter of common knowledge in the state that large corporations as well as individuals were practicing the abuse of selling butter by print and package containing less weight than is required by the act, and, it may be said, of less weight than the public generally understood such prints or packages to contain. That an individual who after the passage of the act should expose for sale or sell a print or package of less than the prescribed weight should be guilty of a crime, and that a corporation might conduct the practice with impunity, seems revolting to all ideas of justice ; and we hold, in accordance with the general trend and development of the law, that the word “person,” being the second word in section 9752 of the General Statutes of 1909 (Laws 1909, ch. 264, § 15), as there used, includes a corporation.
As to the second objection, that the statute if applied to corporations can not have a uniform operation in the state, the question was involved in the New York Herald case, supra, but seems not to have been considered of sufficient importance to merit discussion. In W. H. Small & Co. v. Commonwealth, (Ky. 1909) 120 S. W. 361, it was said:
“That an individual guilty of an offense may be both fined and imprisoned, .and a corporation likewise guilty only fined, does not affect the validity of the statute. The apparent discrimination grows out of conditions that can not be avoided, and the corporation that is favored by the discrimination can not complain.” (p. 363.)
It is true only the penalty of a fine can be applied to a .corporation; whether the additional penalty of imprisonment in the jail should ever be applied to an individual is a matter that rests in the discretion of the court. There are many other instances where the same question will be raised; for instance, a corporation may be guilty of contempt of court and can only be fined, while an individual may be fined and imprisoned. (1 Clark & Marsh. Priv. Corp. § 257; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294.)
The third contention, that sections Í4 and 15 in question are void because in violation of the fourteenth amendment to the constitution of the United States, is. likewise untenable. They are upheld as police regulations, and such regulations of. weights and measures, have stood upon the statute books of this state practically during the entire existence of the state, and likewise in other states of the Union.
We conclude that the motion to quash the complaint, should not have been sustained. The judgment is therefore reversed, and the case is remanded with instructions to deny the motion and proceed in accordance.with the views herein expressed. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiff sued to recover a balance-claimed to be due for transporting oil from Bartlesville, Okla., to Longton, Kan., according to the rates; fixed in its freight tariffs on file at the time with the: interstate commerce commission and posted and published as required by the federal law. The plaintiff recovered.
The trial was upon an agreed statement, from which it appears that the plaintiff’s duly established and published rate for the transportation of oil from Bartlesville to Chanute, Humboldt, Erie, and Cherryvale, all on the plaintiff’s line of railroad, was seven cents per hundred pounds, while the rate so fixed and established for Longton was twenty-one cents per hundred pounds, although Longton was in the same general locality, where like conditions existed; and that the rate so fixed and established for Longton was unreasonable and excessive. The plaintiff’s authorized agent solicited the business, fixing the rate at seven cents per hundred pounds, which the defendant paid, and the latter now insists that it ought not to be compelled to pay the unreasonable excess sued for, although it would be due if the rates which were fixed and promulgated according to the requirements of the federal statute are to prevail. On the other hand, the plaintiff contends that the established rate governs, regardless of the contract and notwithstanding the fact that it is unreasonable; and that redress must be sought from the interstate commerce commission.
The decision must rest upon the interstate commerce law as interpreted by the supreme court of the United States. In Texas & Pacific Railway v. Mugg, 202 U. S. 242, it appeared that on an interstate shipment a rate was quoted to the shipper less than the lawful schedule rate. On arrival of the goods at their destination the schedule rate was exacted; the shipper insisted upon the quoted rate, but paid the excess under protest, and sued for its recovery. Reversing a judgment for the shipper given by the circuit court, it was held that the rate fixed in the schedule filed pursuant to the act to regulate interstate commerce was controlling, that it was beyond the power of the carrier to depart from such rates in favor of any shipper, and that the erroneous quotation of rates by the agent of the rrilroad company did not justify a recovery, since to do so would in effect enable the shipper, whose duty it was to ascertain the published rate, to secure a preference over other shippers, contrary to the act to regulate commerce. That decision is summarized and followed in Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, where it was held:
“The proposition that if the statute be construed as depriving courts generally, at the instance of shippers, of the power to grant redress upon the basis that an established rate was unreasonable, without previous action by the commission, great harm will result, is only an argument of inconvenience which assails the wisdom of the legislation or its efficiency and affords no justification for so interpreting the statute as to destroy it.”, (p. 447.)
• The opinion concludes with a statement to the effect that a shipper seeking reparation predicated upon the unreasonableness of the established rate must primarily invoke redress through the interstate commerce commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule. This was also the conclusion in Railway Co. v. Milling Co., 80 Kan. 141, where the rule that must govern this contract is stated. Other cases are there cited.
The principle of these decisions applies here, where suit is brought for the excess, the same as if the excess had been paid and an action had been brought to recover it. The established rate must prevail over the quoted rate, otherwise the statute would be ineffectual for the purpose for which it was enacted. The district court did not err in its judgment. Relief for the excessive charge can only be obtained through the proper federal tribunal.
The judgment is affirmed-. | [
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Per Curiam:
The only question here is the effect of a decree quieting title to lands in the case of Puckett against Andrew V. Johnson. It seems the title to the land appeared of record to be in Andrew U. Johnson at the time the appellant, Hungate, purchased the title from him. Before this conveyance to Hungate, Puckett had obtained a judgment quieting title in an action brought against Andrew V. Johnson. There can be no doubt that the name in the publication notice would naturally attract the attention of Andrew U. Johnson. There is so much similarity in the names, and the letters “U” and “V” when written, or even when printed, look very much the same. This is a collateral attack upon the judgment, and the notice must be held sufficient. (Caldwell v. Bigger, 76 Kan. 49; Doyle v. Hays, 80 Kan. 209.)
It is conceded that a mistake in a person’s middle name or middle initial is of no importance as between the parties to the action, and that the judgment quieting title was binding upon Andrew U. Johnson, al though sued in the name of Andrew V. Johnson.. But it is contended that a different rule applies to his grantee; that the appellant was an innocent purchaser, and that if he had examined the record of the judgment it would not have put him upon inquiry.
We think the ruling of the trial court holding the judgment binding against the appellant must be sustained. The appellant is in privity with his grantor, and, as said in Utley v. Fee, 33 Kan. 683, “any decree rendered against the grantor affecting the grantor’s title is also in effect a decree rendered against the grantee, and it equally affects his title.” (p. 689.) The appellant succeeded to whatever rights Andrew U. Johnson had in the real estate, being in privity with him, but he took no greater rights. (30 Cent. Dig. Judg. § 1202.)
“A privy in estate, so as to be bound by a judgment affecting real estate to which he was not a party, is one whose title must be derived from a party bound by the judgment.” (Coleman v. Davis [Tex. Civ. App. 1896], 36 S. W. 103, syllabus.)
The judgment is affirmed. | [
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Per Curiam:
Andy Brock was charged with assault ■ with a deadly weapon with intent to commit manslaughter, under section 38 of the crimes act (Gen. Stat. 1868, ch. 31, § 38, Gen. Stat. 1909, § 2526), and convicted of assault with intent to commit manslaughter, under section 41 of that act (Gen. Stat. 1868, ch. 31, §41, Gen. Stat. 1909, §2529). In his appeal he contends that the judgment of conviction was not warranted by the information, evidence or verdict.
The criminal 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 State v. Tankersley, ante, p. 165; The State v. O’Shea, 59 Kan. 593.)
The verdict does not specify the degree of manslaughter which the defendant intended to commit when the assault was made, but it would seem to be unnecessary in a conviction under section 41. In fixing the punishment no distinction is made as to the degree of manslaughter intended to be committed. The penalty is the same, whatever grade of manslaughter the defendant may have intended to commit. There is but one offense defined by that section, of which there are no degrees, and therefore there is no basis or reason for specifying degrees in the verdict.
We think there was no prejudicial error committed in the instruction to the jury and that no reason exists for overthrowing the verdict. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Albert M. Dowell brought this action against the Chicago, Rock Island & Pacific Railway Company and Ed Johnson to recover damages, for personal injuries alleged to have been sustained by him through the negligence of the railway company and of Johnson, an engineer of the company. Dowell was .a yardman at the station of Liberal, and on January 21, 1907, was engaged in removing cinders and other debris from a track of the company; and, while doing so, Johnson, it was alleged, negligently backed an engine against him, injuring him so that it became necessary to amputate his right leg above the knee and his left leg below the knee. It was alleged that the engine was backed upon him without warning or signal of any kind. There was an averment that Johnson was incompetent and unfit to act as engineer and was known to be so by the railway company, and it was also stated that the engine was old and defective and lacked the appliances necessary to control the starting and stopping of the engine, and that this, too, was well known to.the railway company. It was further alleged that the injury resulted from the incompetency of Johnson, and from his act in carelessly, needlessly and recklessly running upon and injuring Dowell; and that Johnson’s acts and that of the railway company concurred in inflicting the injury for which the action was brought.
Shortly after the filing of the petition, and before •answer was due, the railway company filed its petition for a removal to the federal court, which, after stating the nature of the controversy and that the amount claimed was $40,000, recited that Dowell is a citizen of Kansas and that the railway company is a corporation duly organized under the laws of Illinois and Iowa, and is a citizen of those states and not of Kansas. It was further alleged that the cause of action set up by Dowell against the railway company was a separable- controversy, capable of ' being finally determined between those parties without the presence of Johnson, and it was also charged that “Johnson was joined as defendant in this action by the plaintiff for the sole and fraudulent purpose of defeating and preventing this ■defendant, your petitioner, from removing this action from the state court in which it is now pending to the United States circuit court, . . . and for the sole and fraudulent purpose of defeating said jurisdiction ■of the said United States circuit court in this action.” Further along in the petition it was alleged that plaintiff did not have a cause of action against Johnson or any reasonable grounds upon which to base a recovery from him, and that there was no joint cause of action against both defendants. It was also alleged that Johnson is a man of small means, with little if any property from which a judgment against him could be satisfied, while the railway company is solvent, with a large amount of property within the jurisdiction of the court to meet any recovery that might be obtained against it: An adequate removal bond was offered, which the court approved, but the petition for removal was denied.
Afterward the railway company answered in the case, denying generally and alleging that the injury resulted from the want of ordinary care by Dowell. It was averred that in consideration of the payment of $922.45 he released the railway company from all liability because of the injury, and like averments were made by Johnson in his separate answer. In the reply the circumstances accompanying the signing of the release and a certain receipt were set forth, and it was alleged that the releases were without validity because they were signed when Dowell was mentally and physically incapable of making a contract. The jury made special findings and returned a general verdict against both defendants, awarding Dowell damages in the sum of $15,000. The defendants appeal, and-the first error assigned is upon the denial of the petition for removal.
The contention is that no cause of action was stated against Johnson and no joint cause of action alleged against both appellants, but that, as the petition did state a distinct and separable controversy between Dowell and the railway company, citizens of different states, the petition for removal should have been granted. It is argued that Johnson, being the agent and servant of the railway company, is not liable for mere acts of nonfeasance, and this appears to be based on the theory that agents are responsible only to their principals, and while they may be held for misfeasance, they are not Hable to third parties for mere omission of duty. This contention overlooks the theory-that a servant-owes duties to third persons as well as to his master. A servant or employee of a corporation can not well escape liability for the nonperformance of a duty which he owes to an injured third party. The distinctions between liabilities of agents and servants for acts of nonfeasance and misfeasance, as well as their liability for the omission of their duties to persons other than their principals and masters, are fully discussed and the authorities cited in case notes appended to Mayer v. Thompson-Hutchison Building Co., 28 L. R. A. 433, Ward v. Pullman Co., 25 L. R. A., n. s., 343, and Hagerty v. Montana Ore Pur. Co. et al., 25 L. R. A., n. s., 356.
If it were granted that Johnson was not liable for mere nonfeasance, he would nevertheless be liable for the negligence charged against him in appellee’s petition. The allegation is that he carelessly and recklessly ran down and injured appellee with an engine of which he was in charge. This amounts to a charge of violating his duty to appellee and of doing something to the latter’s injury. Johnson’s act was something more than a breach of contract with his master or an omission of duty to the railway company. It was a positive wrong to appellee — a misfeasance, and he can not be relieved from liability for it because of his contract relation with his master. (Mechem, Agency, § 572; 1 A. & E. Encycl. of L. 1132; 31 Cyc. 1359.)
The appellee’s petition sets up the negligence of the company and direct negligent acts of Johnson which concurred with that of the railway company in producing an injury for which a joint action may be brought. The removability of the case is to be determined from the pleadings and the record as they existed when the application to remove was made, independent of what is alleged in the petition for removal, unless it is made to appear that the defendants were fraudulently joined in order to- prevent a removal to the federal court. (Louisville, &c., Railroad Co. v. Wangelin, 132 U. S. 599.) There is some conflict in the authorities relating to the right of removal, but under the later decisions of the controlling authority on these questions it must be held that the denial of the petition for removal was not error. A person against whom a joint tort has been committed, as is alleged here, has the right to sue those who inflicted the injury jointly; and “a defendant has no right to say that an action shall be several which a plaintiff elects to make joint.” (Louisville, &c., Railroad Co. v. Ide, 114 U. S. 52, 56.) In Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, it was said that “a separate defense may defeat a joint recovery, but it can not deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.” (p. 97.) In Alabama Southern Ry. v. Thompson, 200 U. S. 206, it was said that “it has been too frequently decided to be now questioned that the plaintiff may elect his own method of attack, and the case which he makes in his declaration, bill or complaint, that being the only pleading in the case, is to determine the separable character of the controversy for the purpose of deciding the right of removal.” (p. 216.)
A case brought against a master and a servant for the joint negligence of both does not become a separable controversy because the plaintiff has misconceived his cause of action or because he may be unable to establish it, and his motive in joining them is not material if he is acting within his right. (Powers v. Chesapeake & Ohio Railway, 169 U. S. 92; Alabama Southern Ry. v. Thompson, 200 U. S. 206; Cincinnati & Texas Pacific Ry. v. Bohon, 200 U. S. 221; Chesapeake & Ohio R’y Co. v. Dixon, 179 U. S. 131; Jacobson v. Chicago, R. I. & P. Ry. Co., 176 Fed. 1004; Welch v. Cincinnati, N. O. & T. P. Ry. Co., 177 Fed. 760.) The fact that the liability of one of the joint tort-feasors was statutory and that of the other arose under the common law does not preclude the joinder of both as defendants or make the controversy separable, nor does the fact that different lines of proof may be necessary to establish the negligence of each have that effect. It is enough if the concurrent acts of negligence of each contributed to the injury inflicted upon the appellant. (Southern Ry. Co. v. Miller, 217 U. S. 209; Charman v. Lake Erie & W. R. Co., 105 Fed. 449; Painter v. Chicago, B. & Q. R. Co., 177 Fed. 517.)
In its petition for removal the railway company attacks the good faith of the joinder. Under some of the cases its averments, although general, would raise the issue of fraudulent joinder; and if it were properly raised the trial of the issue would be in the federal court. (Bank v. Fritzlen, 75 Kan. 479.) In the recent case of the Illinois Central R. R. Co. v. Sheegog, 215 U. S. 308, where several tort-feasors were joined as defendants, a nonresident defendant asking for removal alleged that the joinder of the defendants was made only for the purpose of preventing removal and was fraudulent and knowingly false. The supreme court of the United States, in an opinion against which there was a vigorous dissent, held the general averments to be insufficient to warrant removal. After stating that a removal could not be prevented where a showing of a fraudulent joinder was made, the court proceeded:
“On the other hand, the mere epithet ‘fraudulent’ in a petition does not end the matter. In the case of a tort which gives rise to a joint and several liability the plaintiff has an absolute right to elect, and to sue the tort-feasors jointly if he sees fit, no matter what his motive, and therefore an allegation that the joinder of one of the defendants was fraudulent, without other ground for the charge than that its only purpose was to prevent removal, would be bad on its face. (Alabama Great Southern Ry. v. Thompson, 200 U. S. 206; Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Bohon, 200 U. S. 221.) If the legal effect of the declaration in this case is that the Illinois Central Railroad Company was guilty of certain acts and omissions by reason of which a joint liability was imposed upon it and its. lessor, the joinder could not be fraudulent in a legal, sense on any ground except that the charge against the alleged immediate wrongdoer, the Illinois Central railroad itself, was fraudulent and false.” (p. 316.)
In Hukill v. Maysville & B. S. R. Co., 72 Fed. 745, it was held that if a person had a good cause of action for a joint tort against several defendants it could not be a. fraud to join them, although the plaintiff would not have brought in the resident defendant except to avoid, the jurisdiction of the federal court, and it was added:
“Where he has reasonable ground for a bona fide belief in the facts upon which the liability of all the defendants depends, his motive in joining them can not be-questioned. It is only where he has not, -in fact, a cause-of action against the defendants, and has no reasonable-ground for supposing that he has, and yet joins them, in order to evade the jurisdiction of the federal court, that the joinder can be said to be fraudulent, entitling the real defendant to a removal.” (p. 750.)
Under these rulings the facts stated in the petition did not warrant a removal for fraudulent joinder. A general allegation of fraudulent purpose, without averments of supporting facts, is insufficient. The joinder here could not well be fraudulent unless the charge-that Johnson himself was negligent was fraudulent and. false. If it were made to appear that Johnson was not in charge of the engine when it was run against appellee- or that he had no connection whatever with the tort, and that the appellee had joined him as defendant-knowing that he had no ground for an action against, him, but had included him for the purpose of defeating-jurisdiction, there would be ground for appellants’ contention. Here, however, the appellee stated a cause of action, and had reasonable grounds for believing that, he had a cause of action against both defendants; and whether both were negligent was one of the issues to be tried on the merits of the case. No attempt was made-to show that appellee’s statements of facts as to the participation of defendants in the wrongful injury were false and without foundation, and it has been often decided that a general averment of fraud, without stating' the facts upon which the charge is based, presents no issue for determination. (The State, ex rel., v. Williams, 39 Kan. 517; K. P. & W. Rld. Co. v. Quinn, 45 Kan. 477; Ladd v. Nystol, 63 Kan. 23; Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637; Offner v. Chicago & E. R. Co., 148 Fed. 201; Jacobson v. Chicago, R. I. & P. Ry. Co., 176 Fed. 1004.)
It was alleged, it is true, that Johnson is a man of small means and has little property subject to application upon a judgment obtained against him, but it has been decided that “a defendant who is legally liable together with another, and whose presence defeats the right of removal, is neither a nominal nor sham party merely because he is pecuniarily irresponsible, so that a judgment against him would be of no value.” (Deere, Wells & Co. v. Chicago, M. & St. P. Ry. Co., 85 Fed. 876, syllabus; see, also, Welch v. Cincinnati, N. O. & T. P. Ry. Co., 177 Fed. 760.)
The questions presented on the merits relate mostly to the sufficiency of the evidence to sustain the findings and judgment. It is contended that the demurrers to the evidence of appellee should have been sustained and a verdict for appellants directed. It is argued that the release .signed by appellee operated to discharge the railway company from any liability because of the injury to him. While he was in the hospital, and on March 7, 1907, appellee signed a paper, at the instance of an agent of the railway company, which purported to release the company from any liability for any loss or damage because of his injury, for a consideration of $800. After leaving the hospital, and on April 26,1907, he executed a receipt for $122.45, which recited that it was a completion of the former agreement of settlement, and it also purported to be a full release and discharge of the railway company for appellee’s injury. This amount is said to have been given to pay for a wheel chair and for transportation to bring appellee’s parents to him. Evidence was offered to prove that •appellee was mentally incapable of making contracts or of executing releases when the papers were signed. The jury made special findings that appellee was “mentally incompetent to understand the nature and character of his act when he signed the alleged release in question in this action,” and that he was “weak-minded •and incapable mentally of understanding or transacting ordinary business transactions at the time he signed the alleged release in question.” The sufficiency of the testimony to sustain these findings is challenged. Some of that offered was of little weight or force, because of the lack of opportunity that witnesses had for learning and judging of appellee’s mental condition, and also because of the lapse of time between the execution of the release and the examination of appellee by those witnesses. However, considerable testimony was offered which did tend to show incapacity and which is deemed to be sufficient to uphold the findings.
There were findings to the effect that appellee’s signatures to the release and receipt were obtained by fraudulent representations, and it is claimed that these findings, too, are unwarranted, but if appellee did not understand the nature of his acts and was mentally incapable of executing releases this feature of the case is not important.
It is further argued that if appellee was an imbecile and incapable of making a settlement or contract he necessarily lacked capacity to bring and maintain the action. The findings of the jury relate to the time the release was executed, and his capacity to maintain an action when it was begun or afterward was not involved. While there was testimony tending to show that he was weak-minded when the trial was had, the condition at thát time was not an issue, and the findings of the jury did not relate to that time.
Although contended for, it can not be held as a matter of law that appellee’s contributory negligence precludes a recovery. He was injured while working on a track in the daytime. When the engineer ran the-engine down the track appellee stepped aside to let it: pass. After going a short distance the engine stopped near a water tank, and appellee understood those on the-engine to say that they were going to take water. He stepped back on the track and resumed his work a few feet to the rear of the engine. The engine only stopped', a minute or so, when it was suddenly started backward,, one witness saying that the engineer appeared to throw it wide open, and he did run it against appellee without ringing the bell or the giving of any signal. The appellee, of course, knew the engine was likely to be moved again soon, but if his testimony was true he had some-reason to think that it would not be moved until water was taken, and he had some reason to expect that it would not be moved without ringing the bell, as that was the rule and practice of the yard. Those on the-engine either saw or should have seen appellee working-on the track as they approached him on the way to the-stopping place, and, knowing he was at work there, .ordinary prudence would seem to require a ringing of the bell or the giving of some signal before starting-the engine backward. While an employee working on the track is in a place of great danger and is required to take reasonable precautions for his safety, the degree-of care exacted of travelers or persons about to cross, a track is not required of one whose duty requires his-presence on the track. (Comstock v. U. P. Rly. Co., 56 Kan. 228; Railway Co. v. Bentley, 78 Kan. 221.) If he fail to take the precautions which the perils of the situation and reasonable prudence require his negligence would defeat a recovery. As appellee had reason to think that some time would be consumed in taking water, and that those in control of the engine-knew of his presence on the track and would give a. warning before moving the engine backward, the question whether he was guilty of contributory negligence was- for the jury, and could not be determined by the court as a matter of law.
• There is a contention that the railway company was not given the notice required by statute. (Laws 1905,' ch. 341; see Gen. Stat. 1909, §§ 6999, 7000.) A notice was served on the agent of the railway company in charge of the station at Liberal in due time. The claim is that the appellee was required to serve notice on the person designated by the company, in pursuance of the provisions of section 68a of the civil code (Gen. Stat. 1901, § 4499; see Code 1909, § 71), and that notice could not be made upon other representatives of the company unless the company had failed to designate or appoint a person in the county upon whom process should be served. Nothing in the record is found to show whether the railway company had made a designation or not. Section 2 of chapter 341 of the Laws of 1905 provides that notice may be served on the person designated by the company, and that if no one is designated then it may be served on a local superintendent, a freight agent, an agent to sell tickets or a station keeper. This alone might indicate that service on the superintendent or other agents would be unavailing unless it was made to appear that no one had been designated by the railway company in the county to accept such service, and that one relying on such a notice must show that the designation had not been made. In the latter part of the section, however, is a further provision that an effectual service may be made “by leaving a copy thereof at any depot or station of such company or corporation in such county, with the person in charge thereof or in the employ of such company or corporation.” (Laws 1905, ch. 341, § 2.) It appears that compliance was made with this alternative provision, as it was shown that a written notice was given to or left with the agent in charge of the station or depot at Liberal, and this was sufficient.
There were objections to testimony some of which may have been inadmissible, but in view of the special findings which fixed the cause and the time of the injury the objections are deemed to be immaterial and do not furnish any grounds of reversal.
Finding no prejudicial error, the judgment of the district court is affirmed. • | [
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The opinion of the court was delivered by
Benson, J.:
In a petition for a rehearing it is urged that a material fact was overlooked in the opinion. (Ante, p. 127.)
It appeared upon the trial that the assignment of the lease from Parsons to the Eagle Oil and Gas Company was recorded more than two years after the contract upon which the plaintiff sued had been entered into, and that the plaintiff had no notice of the terms of the assignment. The plaintiff now insists that he is not bound by the provision of the assignment by which the lease was to revert to Parsons, not only because it is repugnant to the grant — a matter discussed in the opinion — but also because Parsons, knowing the terms of the assignment, did not disclose them to the plaintiff when the contract for drilling was entered into.
An attachment creditor acquires no greater right in the property seized than the defendant in the attachment owned. (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152; Bank v. Fleming, 63 Kan. 139. See, also, Johnson v. Brant, 38 Kan. 754.) The attachment bound the interest of the defendant only, whether that interest was shown by the record or not. The attaching creditor is not a purchaser for value buying upon the strength of a record title. (Markley v. Investment Co., 67 Kan. 535.)
To the interplea setting up the assignment containing the .terms upon which Parsons claimed the reverter, the plaintiff demurred. The demurrer was overruled and there was no further pleading. This left nothing for the court to decide upon the interplea but the legal effect of the assignment. No issue of fraud or fraudulent concealment by Parsons was presented. .The only evidence referred to as sustaining the claim of fraudulent concealment is the fact that Parsons, while acting as agent for the Eagle Oil and Gas Company in making the contract with the plaintiff, did not disclose to him the terms of the assignment. It does not appear that any inquiries were made concerning that subject or that either party had it in mind. It is very doubtful whether the testimony would have supported an allegation of fraud, but, if it would, it was not a matter before the court for adjudication, for fraud was not pleaded and no issue of fact was made upon the interplea.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Benson, J.:
This is an original action to compel a. county treasurer to pay to officers of a school district money arising from taxation for the support of a high school.
The answer avers that the taxes in question were levied under the supposed authority of chapter 397 of' the Laws of 1905 (see Gen. Stat. 1909, § 7792 et seq.), known as the Barnes high-school law, that the law was. never adopted in the county, that other acts relating to-the same subject and under which the district claims the fund are unconstitutional, and that no authority exists for the disbursement of the fund.
The acts affecting this controversy are: (1) The Barnes law, passed in the year 1905 (Laws 1905, ch.. 397), which provided for a referendum and adoption by a majority of the voters voting in any county before it became operative therein. (2) Chapter 333 of the Laws of 1907 (Gen. Stat. 1909, § 7797), providing for a- levy to raise the necessary funds for schools-existing under the former act.' (3) Chapter 69 of the Laws of 1908 (Gen. Stat. 1909, §§7795, 7801), providing that the Barnes law should be operative in any county when a majority of the votes cast upon that, proposition should be for such adoption. (4) Chapter-210 of the Laws of 1909 (§ 1, Gen. Stat. 1909, § 7809),. providing “that in-all counties of this state in which, high schools have been established and maintained for. one year, and which said high schools have been established and maintained under the provisions of chapter •897 of the Laws of 1905, as amended by chapter 388 of the Laws of 1907 and chapter 69 of the Laws of 1908, by a majority of all the votes cast on said proposition, said chapter 397 of the Laws of 1905, as amended by chapter 333 of the Laws of 1907 and by chapter 69 of the Laws of 1908, shall be in full force and effect from and after the publication of this act in all such counties without again submitting the question to a vote of the electors; provided, however, this act shall not apply to counties where the proposition was resubmitted under chapter 69 of the Session Laws of 1908 and rejected.” (5) Chapter 215 of the Laws of 1909 (§1, Gen. Stat. 1909, § 7807), which declares that “it shall be the duty of the county treasurer of every county in the state of Kansas to promptly pay over and distribute on demand all moneys now in his hands or which may hereafter come into his hands by reason of any tax levy made by any county, city, township or school district, to the treasurer of the city, township or school district, for the use and benefit of which it was collected, under the provisions of chapter 397 of the Laws of 1905, as amended by chapter 333 of the Laws of 1907 and by •chapter 69 of the Laws of 1908.”
It is contended that the high school for the support of which this tax was levied was in existence before the passage of the Barnes law, and so was not established and maintained under the provisions of that act, as required to bring it within the terms of chapter 210 of the Laws of 1909. Concerning this matter the answer alleges:
“High schools were not being maintained in Marshall county under the provisions of said law at the time House Bill No. 313, entitled ‘An act concerning high schools,’ was enacted by the legislature of the state' of Kansas at the session of 1909, for the reason that said law was never adopted in said county.”
This allegation conveys an implication that while high schools may in fact have been maintained in ac cordance with the provisions of that law, they were not as a legal proposition maintained under it, because it was not in effect in that county. Referring to the agreed statement of facts (paragraphs 8 and 14), it appears that the county commissioners, assuming to act under and by virtue of the Barnes law, levied the taxes in question for the support of this high school, and that the district did máintain the school for one year prior to the passage of chapter 210 of the Laws of 1909, with courses of instruction as provided in the Barnes law. It is therefore found that this school, with others in that county named in the agreed statement, are within the purview of that chapter.
The question of adopting the provisions of the Barnes law was submitted to the voters of Marshall county at the general election of 1906, and a majority of the votes cast upon the proposition were for its adoption, but not a majority of all the votes cast at the election, and so the proposition failed. (Humboldt v. Klein, 79 Kan. 209.) The local authorities in that county, however, and in several other counties where the same result had occurred, supposing that the Barnes law had been adopted by such a vote, and assuming to act under its provisions, levied and collected taxes for high schools accordingly. In this situation, with the taxes in the treasury, and the schools in operation relying upon this revenue, the legislature at the session of 1909 passed the two acts, chapters 210 and 215 of that year. The purpose of these enactments is plain; it was to relieve the situation. They were curative in their nature, and were designed to make available the funds raised by taxation to support the schools established and maintained in reliance upon the Barnes law, upon the supposition that it had been adopted. That the authorities of Marshall county believed the Barnes law to be in force, and levied the taxes upon that assumption, appears, as we have seen, from the agreed statement, and it is a matter of common knowledge that by an erroneous interpretation of the section providing" for a vote upon the adoption of the law the same action was taken in other counties, which action, it appears, was supported by an opinion of the superintendent of instruction.
Two main questions are presented: (1) Whether' the legislature had power .to make the funds so levied for the support of high schools available for the use for which they were collected, and (2) whether chapters. 210 and 215 of the Laws of 1909 accomplish this purpose. The act of 1907, referred to in chapter 210, only amends, one section relating to the manner of making the levy,, and does not affect the questions. The act of 1908,. also referred to in chapter 210, provided that the vote of a majority voting upon the proposition should be-sufficient to adopt the Barnes law in any county. Now it is argued that as chapter 210 refers to action taken under the original act of 1905, as amended by the act of 1908, it is not in force in counties where an election had not been held under the last-named act. If this interpretation be correct, chapter 210 has no effect, for the act of 1908 secured the only end which it is claimed' chapter 210 accomplishes. Counsel for the defendant say that their interpretation “gives effect to chapter 210 and makes it a definite and validating act of any elections that might have been irregularly held after the amendment of the law in 1908,” but there is no suggestion that any such situation existed. On the other hand, the embarrassment arising from proceedings taken upon the supposition that the Barnes law had been adopted by a majority of those voting upon the proposition was generally known, and we are bound to suppose that it was this condition, rather than the supposition that an irregular election might possibly have been held under the act of 1908, which stimulated legislative action. This view is confirmed by the passage soon after, at the same session, of chapter . 215, which provides that moneys collected under the Barnes law, as amended in 1907 and 1908, shall be paid over to the districts for which it was collected. If this refers only to moneys collected for high schools in counties where the law had been adopted after the act of 1908 took effect it is also useless,, for in such case the duty of disbursement could not be doubted and further legislation was not needed. Chapters 210 and 215 relate to the same subject, arise out of the same general situation, were designed to reach the same general end, and should be construed together as one law. (In re Hall, Petitioner, 38 Kan. 670; Telegraph Co. v. Austin, 67 Kan. 208.)
The legislative purpose in the passage of chapters 210 and 215, to make the provisions of the Barnes law effective in the counties where a majority of those voting upon the proposition had voted for its adoption, is apparent. This intent, when ascertained, is the cardinal canon of construction to which all mere rules of interpretation are subordinate. (The State v. Bancroft, 22 Kan. 170.) The recital in these chapters of the later acts amending the original act of 1905 is descriptive, and does not limit the application of these laws to elections held subsequent to the last amendment. So to hold would defeat the clear and obvious legislative purpose in their enactment.
It is contended that chapter 210 violates section 17 of article 2 of the constitution, requiring the uniform operation of general laws and forbidding the enactment of a special law where a general íaw can be made applicable. The argument is that if the act be construed to apply to elections held before the amendment of 1908 it will result in an arbitrary and capricious classification. The act includes the counties wherein the Barnes law had been adopted by a majority of those voting upon the proposition, in which high schools had been maintained for one year. Counties which had adopted the law by a majority vote of all the electors are not within its terms, and counties which had rejected the proposition to adopt were excluded by the proviso. The conditions of this classification were the adoption of the Barnes law by a maj ority vote of those voting on the proposition and the maintenance of a high school for one year. These conditions applied to a large number of counties, resulting in the maintenance of high schools and the exercise of the power of taxation upon the county therefor upon the assumption that the law had been duly adopted. The conditions were real, and not ficitious, and the classification was not arbitrary, but reasonable.
It is competent for the legislature to adapt a law, general in its nature, to a class, but such classification must be natural and not an arbitrary or fictitious one. An act to have uniform operation throughout the state need not affect every individual, every class or every community alike. (Rambo v. Larrabee, 67 Kan. 634.) It is true that, construing chapter 210 as applying to counties where elections had already been held, other counties can not come into the class; and this it is said prevents the uniform operation required by the constitution. This objection, however, is met by the opinion in Cole v. Dorr, 80 Kan. 251, wherein was quoted with approval the language of the supreme court of Minnesota holding that when a statute is remedial or curative the classification is legal if it includes all the subjects which are affected by the condition which it is sought to remedy or -the evils it is sought to cure.
Curative legislation necessarily forms an exception tó the general rule that classifications can not be based solely on conditions already existing, for the object of such a statute is to effect a remedy for present conditions. (Leavenworth v. Water Co., 69 Kan. 82; Cole v. Dorr, supra.) A curative act of the legislature may validate any action of the voters of a county or of its authorities which the legislature had power under the constitution to authorize in the first instance. (Shepherd v. Kansas City, 81 Kan. 369.) If the conditions are such as to warrant legislative action, and the statute is made to apply wherever the conditions exist, the constitution interposes no barrier to the passage of a curative act, provided the action validated thereby might have been previously authorized by the legislature. (The Iowa Railroad Land Co. v. Soper, 39 Iowa, 112; Kimball v. The Town of Rosendale, 42 Wis. 407; The State, Bonney v. Collector of Bridgewater, 31 N. J. Law, 133; Hewitt’s Appeal, 88 Pa. St. 55.)
In State ex rel. v. Brown, 97 Minn. 402, it appeared that successive statutes had been passed at the same-legislative session legalizing the issuance of bonds for building schoolhouses. The original enabling act required a two-thirds majority of all the voters of the-city voting at the election. This maj ority was not given at the election, although there was a majority of two-thirds of the votes cast upon the proposition. The-■curative acts provided that the bonds should be issued and sold. In an action of mandamus to compel the-issuance of the bonds as provided in the curative acts, the court said:
“The legislature of 1905, influenced undoubtedly by the fact that the wishes of the people of Minneapolis has been clearly expressed in favor of the issuance of the bonds, and with full knowledge of the conditions which rendered the issue of such bonds desirable and necessary, removed the restriction imposed by the act of 1903, and legalized and authorized the issue of the-bonds without compliance with one of the conditions. imposed by the original enabling statute..... Neither upon principle nor precedent should these statutes be treated as special legislation. They are remedial, curative acts, and apply to all subjects of legislation which are within the conditions and subject to the evils: sought to be remedied.” (pp. 403, 404.)
It was within the power of the legislature to provide for high schools and their maintenance by taxes to be-levied in the various counties without submitting the question to a vote. (The State v. Freeman, 61 Kan. 90.) It also had the right to make the establishment. of such schools conditional upon a vote. (The State v. Bentley, 80 Kan. 227.) It could require a majority of all the votes cast at an election as a condition precedent •to the operation of the law in any county, or it could make it effective upon a different condition. Having the power in the first instance to establish such schools and to enforce taxation to maintain them, with or without such preliminary vote, the legislature could, within the principle already stated, by the enactment of curative statutes after such schools had been established require that they should be so maintained, although the majority of votes at the referendum was less than the ■original enabling act required.
It is also insisted that chapter 210 of the Laws of 1909 violates section 16 of article 2 of the constitution ■forbidding amendments unless the new act contain the section amended. It is said that the Barnes law was amended because the condition prescribed by its terms for its adoption in any county was changed by the new law. The purpose of this constitutional restriction was to prevent uncertainty and confusion which might arise from adding -or striking out words and making additions or substitutions without rewriting the section, as amended. (The State, ex. rel., v. Cross, 38 Kan. 696; 1 Lewis’ Suth. Stat. Const., 2d ed., § 230.) It does hot -apply to amendments by implication (Parker-Washington Co. v. Kansas City, 73 Kan. 722; Bank v. Pearce, 76 Kan. 408), nor where the later act declares the meaning of the earlier one, or where by reference a former act is extended to cover subjects not within its terms (The State v. Shawnee County, ante, p. 199). And it has no application when the new statute is complete in itself. The objection now made might have been urged with equal force to the curative act under consideration in Cole v. Dorr, 80 Kan. 251. The statute providing for a commission form of government had not been adopted in Wichita in the manner provided by .its terms, and yet it was held that the remedial statute was effective, and that the law was thereby in force. So in other cases where curative acts have been considered in this court. It is difficult to see how statutes of this nature, when designed to validate proceedings taken under the assumed authority of a statute, but where its provisions have not been followed, can be made effective if this contention is to prevail. Considering the nature and purpose of curative legislation, and the reason for the constitutional inhibition, it is held that it does not apply to statutes like those now under consideration. (1 Lewis’ Suth. Stat. Const., 2d ed., §§ 239, 240.)
The further claim is made that chapter 215 of the Laws of 1909 is unconstitutional because it confiscates the taxpayer’s money. It is said that payments of this tax were made without any authority of law for their collection; that some payments were made under protest; that the money remains that of the taxpayer; and that in this situation the attempted legislative appropriation is without due process of law. In considering this question it must be remembered, as before stated, that this chapter is only a part of the legislation, and is to be considered with chapter 210 of the same session as part of one act to accomplish a proper legislative purpose. If legislation is effective to legalize actions which might have been authorized in the first instance, the curative power may validate it afterward if vested rights are not disturbed. If the statute can be made operative to validate and enforce proceedings to compel the payment of taxes, it can be made effectual to distribute taxes already paid. In The Iowa Railroad Land Co. v. Soper, 39 Iowa, 112, it was held:
“But the legalizing of a tax, which but for the legalizing act was invalid and not capable of being enforced, does not interfere with any vested right of the taxpayer. It is argued that before the passage of the curative act the plaintiff had a right of action to recover back the illegal taxes paid, and that this is a vested right. It is no more a vested right than in case the plaintiff had not paid the taxes. He would in such case have as good grounds for resisting payment as, after payment, he could have to recover the money paid. . . . The statute has created a liability to pay where none existed before its passage, and this is so whether the act authorizing the tax levies be passed prior thereto or is an act legalizing a tax previously levied. In either case the power of the general assembly to pass the law is the same. If it has no power to legalize a tax already levied without authority it has no power to confer the authority in the first instance.” (p. 121.)
Reference is made in the brief of counsel to the opinion in A. T. & S. F. Rld. Co. v. Woodcock, Treasurer, 18 Kan. 20. That decision was based mainly upon the fact that the tax in question there had not been levied in pursuance to a law stating the object of the tax, as the constitution requires. (Const., art. 11, § 4.) It was said that the tax was sustained only by the curative act, which failed to state the object. No such infirmity appears here. The original act clearly states the object, chapter 210 declared the conditions upon which that act became effective in any county, and chapter 215 required the application of the taxes to the object specified. Some expressions in that opinion and in the opinion in A. & N. Rld. Co. v. Maquilkin, Sheriff, 12 Kan. 301, considered apart from the facts involved, indicate a possible view of legislative power in relation to curative statutes not apparent in recent decisions of this court, and not controlling in the situation now presented.
Other questions suggested in the briefs appear to be only incidental to the propositions decided herein and in Cole v. Dorr, 80 Kan. 251, and other opinions of this court which have been cited.
A peremptory writ of mandamus is allowed. | [
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The opinion of the court was delivered by
Graves, J.:
The appellant was convicted in the district court of Barton county of assaulting an officer, and of resisting such officer in the service of legal process. He appeals from such conviction to this court. There are two assignments of error: (1) The denial of a motion to quash the second count of the information, and (2) the admission of testimony.
In the case of The State v. Appleby, 66 Kan. 351, the information was substantially the same as in the one of which complaint is here made, and the objection made thereto was also practically the same. That case seems to end the controversy here so far as this point is concerned. The motion to quash was properly denied.
The admission of the evidence of James Clayton, police judge, concerning a case commenced before J. H. Jennison, a justice of the peace who was acting as police judge at the time the warrant was issued, was permitted, we assume, for the purpose of showing that the process which the marshal was attempting to serve when assaulted was valid and issued according to law. In the absence of a police judge a justice of the peace may act as such absent officer. (Laws 1872, ch. 100, § 77, Gen. Stat. 1909, § 1428.) We are unable, in view of this statute, to say that the admission of this evidence was-erroneous. For the same purpose it was proper to introduce the record showing what was done in the police court in the cause. Entries made by either the regular-police judge or the person properly acting as such are equally proper evidence of the proceedings had in a pending action, and are admissible. (In re Corum, 62 Kan. 271.)
Complaint is made of an instruction given by the court which reads:
“You are instructed that a city marshal has authority when acting with a warrant properly issued to arrest any person who commits a breach of the peace within his city, and, if the person sought to be arrested resists or flees, to use such force as may be reasonably necessary under the facts and circumstances to apprehend the offender; but before having a right to resort to such force such officer must use such language and so act as to make clear to the offender his intention then and there to take him into custody.”
- Just what occurred at the time of the attempted arrest is not clear. The evidence is conflicting. Under the evidence of the state the instruction is applicable and proper, and the jury seem to have taken that view of the case, and we can not, therefore, find that the instruction was erroneous.
Complaint is made of the refusal of the court to give certain instructions requested by the appellant, which read:
“You are instructed that an officer in making an arrest, with or without a warrant, has no right to resort to the use of a dangerous weapon in order to effect an arrest except in self-defense, even though the person sought to be arrested is resisting his authority.
“In case of resistance under such circumstances, the officer has the authority to call upon bystanders, and, unless acting in self-defense, it is his duty to call for assistance from bystanders, and if necessary to go in quest of assistance, rather than to resort to the use of a dangerous or deadly weapon, and if under such circumstances the officer resorts to the use of a dangerous weapon, without justifiable excuse, the party sought to be arrested by such means has the legal right to resist the use of such weapon upon him by the exercise of such force as appears reasonably necessary to make' such resistance effective and protect himself from harm.”
In place of these the court gave the following:
“The court instructs the jury that the law of this state defines the duties incumbent upon the several officers in the service of process and in making arrests, and provides that the officer in making an arrest must inform the person he is arresting that he acts under the authority of a warrant, and must show the warrant if required by such person; and if you find from the evidence in this case that, at the time the city marshal attempted to arrest the defendant, the defendant requested the marshal to read the warrant, which he refused to do, and at once began an assault upon the defendant, who had made no effort to resist him, then and in such case the defendant would have been justified in resisting such assault by the officer, and in doing so he was justified in using all of the force apparently necessary to protect himself from injury, and in making such resistance he would not be guilty of an assault upon the officer, nor of resisting him in his attempt to make service of such warrant in that manner.
“You are instructed that an officer of the law, whether sheriff, deputy sheriff, constable, deputy constable, city marshal or other peace officer, has no legal right to assault any person with a dangerous or deadly weapon while attempting to effect the arrest of such person, except in self-defense, and if any such officer, in seeking to make an arrest, either with or without a warrant, unnecessarily assaults the person sought to be arrested, by the use of a dangerous or deadly weapon, such person has a legal right, to resist such assault by the use of sufficient force to protect himself from injury, and in making such resistance he would be guilty of no crime under the law, unless he carried his resistance to-an unnecessary extent after such assault by the officer had ceased.”
We think the instructions given by the court sufficiently cover the question, and no error can be predicated upon the refusal to give those requested.
There are several other questions presented, but after a careful examination of them we are unable to find any material or prejudicial error. The appellant was fully notified by the marshal that he had a warrant and was there to make the arrest, and he requested the appellant to come along and not make any trouble. At this the appellant became violently angry and vigorously assaulted the marshal. The .rights of the appellant seem to have been well protected during the trial.
The judgment of the district court is affirmed. | [
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Per Curiam:
This action was an attack on the will of Catherine Gaston, because of a lack of testamentary capacity when she made the will, and also because she was procured to execute it by undue influence. The jury found that Mrs. Gaston was of sound mind and memory when the will was executed, and that its execution was not procured by fraud or undue influence; and these findings were adopted by the court. Although aged and feeble when the will was made, the testimony tends to show that she fully understood what she was then doing, and comprehended the nature and extent of her property and understood how she wished to distribute it among those entitled to her bounty. The evidence is sufficient to support the findings.
It is contended that one of the devisees under the will was permitted to testify in his own behalf in regard to a communication had with the deceased, in defiance of the statute. The testimony objected to was not a communication with the deceased, but was rather a statement that he had no communication with her. Such testimony does not trench upon the rule of the statute. (Murphy v. Hindman, 58 Kan. 184.)
Other rulings upon the admission of testimony are criticized, but no error is found in any of them, and the objections to the instructions are not entitled to serious consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
M. L. and' J. N. Roach were charged with the commission of a misdemeanor by keeping a. place where intoxicating liquors weré unlawfully sold. At the same time an action was brought against them in the name of the state to enjoin the maintenance of such place as a common nuisance. (Laws 1901,• ch. 232, § 1, Laws 1903, ch. 338, § 1, Gen. Stat. 1909,. §§ 4387, 4388.) They were acquitted on the criminal charge by the verdict of a jury. The injunction action, was afterward submitted to the court upon the same evidence, and a judgment was rendered for the defendants expressly upon the ground that the acquittal, constituted an adjudication of the controversy involved in the civil case. In order to obtain an injunction it was necessary for the state to prove that the defendants had committed the precise offense of which upon the same evidence they had been found not guilty. In the two actions the parties were the' same, and the acts complained of were the same and were made illegal by the same statute. There was-identity of parties and identity of issues. A final judgment in one was necessarily conclusive in the other unless this result is prevented by the fact that one action was criminal and the other civil. In order to’ procure a conviction on the criminal charge the state was required to establish beyond a reasonable doubt that the defendants had violated the law, while to^ obtain an injunction it needed only to show this by a. preponderance of the evidence. This difference in the degree of proof required has generally been thought sufficient to prevent the application of the doctrine of res judicata. (Cowdery v. The State, 71 Kan. 450; People v. Snyder, 90 N. Y. Supr. Ct., App. Div., 422 People v. Rohrs, 56 N. Y. Supr. Ct. [49 Hun] 150; United States v. Schneider, 35 Fed. 107; Micks v. Mason, 145 Mich. 212; State v. Corron, 73 N. H. 434; Myers v. Casualty Co., 123 Mo. App. 682, 690; Riker v. Hooper, 35 Vt. 457; State v. Sargood, 80 Vt. 415; State v. Weil, 83 S. C. 478; Busby v. The State, 51 Tex. Crim. Rep. 289, 307; Freeman, Judg., 4th ed., §§ 319, 319a; 2 Van Fleet’s For. Adjud. §488; 24 A. & E. Encycl. of L. 831, 832.) In the opinion in Coffey v. United States, 116 U. S. 436, 445, language was used seemingly of a contrary tendency, and some of the state courts have on that account refused to follow the decision. (People v. Snyder, 90 N. Y. Supr. Ct., App. Div., 422; Micks v. Mason, 145 Mich. 212.) What was there decided, however, was that after an acquittal upon a criminal charge the facts involved can not be again litigated between the same parties “as the basis of any statutory punishment denounced as a consequence of the existence of the facts.” (116 U. S. 445.) In Stone v. United States, 167 U. S. 178, it was pointed out that this was the controlling feature of the earlier case, the court saying:
“The judgment in that case was placed distinctly upon the ground that the facts ascertained in the criminal case, as between the United States and the claimant, could not be ‘again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts.’ In the Coffey case there was no claim of the United States to property, except as the result of forfeiture. In support of its conclusions, the court referred to United States v. McKee, 4 Dill. 128, observing that the decision in that case was put on the ground ‘that the defendant could not be twice punished for the same crime, and that the former conviction and judgment was a bar to the suit for the penalty.’ . . . The rule established in Coffey’s case can have no application in a civil case not involving any question of criminal intent or of forfeiture for prohibited acts, but turning wholly upon an issue as to the ownership of property. In the criminal case the government sought to punish a criminal offense, while in the civil case it only seeks in its capacity as owner of property, illegally converted, to recover its value. In the criminal case his acquittal may have been due to the fact that the government failed to show, beyond a reasonable doubt, the existence of some fact essential to establish the offense charged, while the same evidence in a civil action brought to recover the value of the property illegally converted might have been sufficient to entitle the government to a verdict.” (pp. 186, 188.)
The decision in the Coffey case seems to have been based rather upon the rule against a second jeopardy than upon the doctrine of res judicata, the court apparently treating a civil action to recover a penalty for a violation of the law as in effect a criminal prosecution, although the state courts have generally taken the other view. (17 A. & E. Encycl. of L. 582; 12 Cyc. 260.)
In State of Iowa v. Meek, 112 Iowa, 338, the rule was stated to be that after an acquittal the state can not maintain any proceeding against the defendant to enforce a punishment that might have been included in the judgment in the criminal case if a conviction had resulted. The court said:
“It is further contended by appellant that an acquittal in a criminal action is not a bar to a subsequent civil proceeding founded on the same facts. That is the general rule. ; . . One reason for this, even where the parties are the same, is the difference in the degree of proof necessary to make a case in the two instances. In the criminal proceeding the state can secure judgment only on proof which excludes all reasonable doubt, while in the civil action its case is made by a preponderance of the evidence. But to this rule there is one notable exception. Where the civil action is to secure a forfeiture, which would have been part of the penalty to be imposed in the criminal proceeding, and is between the same parties, the previous acquittal is a bar.” (p. 347.)
In State of Iowa v. Cobb, 123 Iowa, 626, and also in State v. Adams, Claimant, 72 Vt. 253, an acquittal on the charge of keeping liquors for unlawful sale was held to be a bar to a subsequent action to condemn the liquors, but the different degrees of proof required in the two proceedings was not discussed. The Vermont case may be accounted for by the rule existing in that jurisdiction, as in some others, that in penal actions, although civil in form, the defendant’s liability must be established beyond a reasonable doubt. (16 Encyc. Pl. & Pr. 295, 296.) In State v. Corron, 73 N. H. 434, it was said:
“It is only where the object of both proceedings is punishment that any well-considered authorities are to be found holding that a judgment in one case is an estoppel in the other.” (p. 448.)
Cases bearing upon various aspects of the matter are collected in a note in 11 L. R. A., n. s., 653. In a note in 103 Am. St. Rep. 21 it is said:
“A judgment in a civil case is not ordinarily res . judicata in a subsequent criminal prosecution..... When the previous judgment arose in a case in which the state or commonwealth was the prosecutor or plaintiff and the defendant in the case at bar was also the defendant, and the judgment was with reference to a subject which is material to the case at bar, the doctrine of res judicata applies.”
This can not be regarded as a denial by the editor of the force of the argument based on the heavier burden of proof borne by the state in a criminal action, for the note (p. 23) adopts this language from his work on “Judgments”:
“A judgment in a civil case must generally be excluded from evidence in a criminal prosecution, because the parties are not the same, and, were they the same, it would be improper to receive a judgment in a civil case as evidence of the commission of a crime of which the defendant is accused, for the reason that such judgment may be founded on a mere preponderance of evidence not sufficient to satisfy the jury beyond a reasonable doubt.” (1 Freeman, Judg., 4th ed., § 319a.)
In the preceding section the author indicated his view that on principle the rule should work both ways, saying:
“Even where the parties are the same, there seems to be an injustice in admitting an acquittal in a criminal prosecution in evidence in a civil action, because to procure a conviction in a criminal prosecution the jury must be convinced beyond a reasonable doubt, while in a civil action it is their duty to find according to the preponderance of evidence.” (1 Freeman, Judg., 4th ed., § 319.)
The cases cited in support of the second sentence quoted from the note, aside from a few that have already been commented upon, either involve the use in one criminal action of a judgment obtained in another or announce the doctrine, which this court has already repudiated (The State v. Bevill, 79 Kan. 524), that perjury can not be punished if committed by the defendant in a criminal action in a successful attempt to procure an acquittal.
The higher standard of proof required of the plaintiff in a criminal action is so frequently mentioned in discussions of the doctrine óf res judicata that its bearing on the subject may be said to be generally recognized. True, its mention is often associated with other matters that would alone be controlling. But this difference between civil and criminal litigation is either without any significance at all in this connection or it is decisive, and of itself prevents either party to an action from being concluded therein by a previous judgment obtained in a proceeding where the rule of evidence was less favorable to him. We think, upon principle and authority, an acquittal in a criminal case does not for all purposes amount to an adjudication-against the state that the defendant did not commit the acts charged against him. What a verdict of not guilty really decides is that the evidence does not exclude every reasonable doubt of the defendant’s guilt. If in the present case the injunction action had been tried first it would hardly be seriously contended that a judgment for the plaintiff would bar a defense in the criminal action. A sufficient reason why the defendant would not be concluded by the result in the civil case is that his guilt would not have been established beyond a reasonable doubt. The consideration that protects him against the plea of res judicata in the one case deprives him of its benefits in the other.
The purpose of the injunction action against the defendants is not to punish them for having violated the law, but to place them under an added obligation to refrain from its violation in the future. It is a civil, not a criminal or even quasi-criminal, proceeding. The state is entitled to a judgment if it establishes its case by a preponderance of the evidence. The acquittal in the criminal action is therefore not a bar.
The suggestion is made that the judgment appealed from is not subject to review, because the trial court found against the plaintiff on conflicting testimony. The decision, however, is expressly based upon the result of the criminal prosecution, and not upon the •court’s view of the weight of the evidence.
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
Johnston, C. J.:
The appellant contends that as the testimony on which the judgment in question rests was ■exactly the same as upon the earlier trial the decision ■on the former appeal necessarily determines the'result •of this appeal and requires judgment in its favor. If it be assumed that no new elements were brought into the case on the second trial it does not follow that the former decision, right or wrong, is conclusively binding upon this appeal. Ordinarily a question considered and decided on the first appeal is deemed to be settled, and,, except for very cogent reasons involving palpable error, will not be reexamined on a second appeal. Some courts hold that a decision, whether right or wrong, is conclusive in all subsequent appeals; but what is called the “law of the case” is not an inflexible rule which requires a court blindly to reiterate a rule of law that is. clearly erroneous. In C. B. U. P. Rld. Co. v. Shoup, 28. Kan. 394, the court, after stating generally the importance of stability and uniformity in the interpretation of the law, said:
“We do not understand that the rule that a decision, once made becomes the established law of the case is a. cast-iron rule, and incapable of relaxation in any event. Cases may arise in which it will be very clear that' the.' first decision was erroneous, that not only in the case at. bar will wrong result from adhering to the decision but also other interests through the state will be imperiled; hence we do not doubt the power of the court to reconsider and reverse a prior decision in the same case.”' (p. 395.)
In the late case of Railway Co. v. Merrill, 65 Kan. 436, it was insisted that a ruling on the first appeal, however incorrect, was conclusive on the second; but. the court again refused to sanction the theory that it was required to readopt and repeat a decision founded in serious error. Mr. Justice Smith answered the contention that a decision once announced by the supreme court must be adhered to by saying:
“This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of the former case is shattered by the pressing weight of opposing authority, and that reason is against it. In Ellison v. Georgia Railroad Co., 87 Ga. 691, the learned Chief Justice Bleckley used the following forcible language: ‘Some courts live by correcting the errors of others and adhering to their own. . . . Minor errors, even if quite obvious, or important errors, if their existence be fairly doubtful, may be adhered to and repeated indefinitely; but the only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is to correct it. When an error of this magnitude and which moves in so wide an orbit competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia ruat ccelum.’ ” (p. 451.)
This being the well-established rule in our own state, it is unnecessary to consider or review the rulings of other states upon the binding force of an erroneous decision on a prior appeal. On the first appeal in this case no account was taken of the distinction between mere neglect of the carrier and its willful wrong in refusing to deliver the goods twenty-four hours before the occurrence of the flood. The findings specifically show that the goods arrived at Kansas City on May 28, 1903, and that on-the following day Henry was notified to come and remove them from the freight depot. On the next day, and within an hour after receiving the notice, he went to the depot, tendered the amount of charges and demanded his goods, but the railway company refused to deliver them to him. It is true that May 30 was a legal holiday, but that is not a matter of consequence in this case, as the company did not recognize it as a holiday. Its place of business was open on that day, and it was transacting business as usual when the demand was made and refused. While the testimony is the same as on the former appeal, the findings in the last trial are more specific in regard to the fact that the freight depot was open for business on the day of the demand and as to the refusal of the demand. The wrongful withholding of the goods and its consequences were in the case, it is true, and might have entered into the decision on the first appeal, but the case was tried as one of mere negligence in the performance of a duty by the carrier, like neglect in the forwarding of freight, and, following Rodgers v. Railway Co., 75 Kan. 222, the case was decided on the theory “that for the negligent failure of a party to perform a duty imposed by his contract he is liable in damages to the other party for such loss as at the time of the omission would probably, or should reasonably, be expected to flow therefrom, and no other. If one owing a duty neglect to perform it, and a cause which could not have been reasonably apprehended intervene, and loss result, the latter cause, and not the omission of duty, is the proximate cause of the loss.” (Railway Co. v. Henry, 78 Kan. 490, 494.) Now there is directly presented the effect of the tortious detention of the goods before and up to the time of the flood which injured them. The goods were there, ready for delivery. • The owner was entitled to the possession of them when the demand was made. There was no excuse or justification for withholding them from him, and the refusal of the railway company to deliver them made it guilty of a willful wrong, but for which there would have been no loss. The wrongful detention of the goods is sometimes called a conversion, and while it is not a conversion in the sense that there was an intention of the company to convert the goods to its own use, yet upon the refusal plaintiff at once became entitled to maintain an action to recover the goods or their value, against which the company would have had no defense. In Watt v. Potter, 2 Mas. [U. S. C. C.] 77, Mr. Justice Story said:
“Whoever undertakes tortiously to deal with the property of another as his own, or tortiously detains it from the owner, is, in contemplation of law, guilty of a conversion of it.” (p. 81.)
The case of Rodgers v. Railway Co., supra, so much discussed by counsel, was well decided, and there is no intention to limit the rule there announced or weaken its force as an authority. Even in that case the difference between mere negligence in transporting goods subsequently injured by an act of God and some positive wrongdoing by the carrier was recognized. Referring to cases in which it was held that there was such a departure from the line of duty of the carrier and such misconduct as to make it liable for goods injured by an act of God which would not otherwise have been injured, it was said:
“That case was one of deviation, a positive misfeasance, which makes the carrier liable as for conversion. (6 Cyc. 383; Railway Co. v. Dunlap, 71 Kan. 67.) Mr. Chief Justice Tindal bases his argument upon the proposition that the wrong of the master in taking the barge out of its proper course was undoubtedly a ground of action. The rule first appears in the law of marine insurance, and was adopted to meet the spirit of dangerous adventure on the part of sea rovers which disregarded the safety of both property and life. Such a tort-feasor is held to take all risks, as if they were actually foreseen, and is not allowed to apportion or qualify his wrong.” (p. 236.)
In referring to an argument made in another case, in which a loss resulted from the wrongdoing of the defendant cooperating with an act of God, and where it was impossible to say how far the act of God contributed to the loss and wherein it was concluded that the act of God was not the sole or proximate .cause of the loss, it was said:
“No one will dispute the soundness of this argument. It has been decided that if a carrier undertake to transport freight in an unseaworthy ship it makes no difference that the storm which foundered it was of unusual severity. Hazard existed when the voyage began, and it is not possible to determine the effect of the delinquency upon the final event. (Bell v. Reed, 4 Binn. [Pa.] 127.) If baggage be put off in the rain without any protection it makes no difference that the rainfall is unprecedented. It is the carrier’s duty to protect property in its custody from exposure to rain. (Sonneborn v. Southern Railway, 65 S. C. 502.) In all such cases, and in cases of actual deviation from the usual route, it is proper to say that an act of God must not combine with human instrumentality, that if the car xier depart from the line of duty he is liable, though an act of God intervene, and that he must be free from fault in order to claim his exemption.” (p. 238.)
The flood was only the remote cause of the injury and loss in this instance. While it is true that the flood was one not to be anticipated, the railway company, by withholding the goods, became, as was stated, “a tortfeasor” and “is held to take all risks, as if they were actually foreseen.” The effect of the wrongful taking or withholding of possession of the property of another ■finally lost through the act of God is shown in Blaker v. Sands, 29 Kan. 551, where it was said:
“A party, not being the owner of personal property, who takes it out of the possession of the real owner, without his consent, holds it in his own wrong and at his own risk, and if subsequently judgment is rendered ■against him for the return of the property or its value Jhe can not be excused from satisfying the judgment under the plea that the property has been lost in his hands, even by the act of God.” (Syllabus.)
Another case of the same import is K. C., Ft. S. & G. Rld. Co. v. Morrison, 34 Kan. 502, where a passenger traveling with a trunk arrived at his destination and the check for the trunk was presented to the baggage-man and delivery of the same demanded, but he was told that the trunk had not arrived, when in fact it had. Shortly afterward the depot in which it was kept was broken into by burglars and the contents of the trunk were stolen, and one of the questions in the case was the effect of the refusal of the demand.' It was said:
“If plaintiff demanded his baggage, as testified to, and the company, having the trunk at its depot at Parsons, refused to deliver it, the company is responsible to the owner for its contents, although the trunk was ■subsequently broken open and robbed without its faült.” (p. 506.)
In U. P. Rly. Co. v. Moyer, 40 Kan. 184, the responsibility of the railway company for goods wrongfully withheld from the owner was determined. The goods were shipped from Ohio to Kansas, and after their arrival the owner demanded the delivery of them from the company and was informed by the agent of the company that they were not there. Two days later the depot was accidentally burned, and it was held that the wrongful withholding of the goods when they were demanded made the railway company liable for the loss.
It is argued that the flood was not only a concurring but that it was the proximate cause of the injury and loss. While the wrongful withholding of the goods had nothing to do with the occurrence of the flood, it did in fact cause the loss, as there would have been no loss if there had been no wrongful detention. The fact that the intervention of the flood concurred with defendant’s own wrong in the injury of the goods does not relieve it from responsibility for the loss. It was said in Davis v. Garrett, 6 Bing., n. c., [Eng.] 716, that “no wrongdoer can be allowed to apportion or qualify his own wrong.” (p. 724.) The effect of the wrongful withholding of goods from delivery after they have been received was a subject of comment in Louisville & Nashville Railroad Co. v. Lawson, 88 Ky. 496. There goods were shipped over a railroad, and when they reached their destination the railroad company notified the owner of their arrival. On the next day the owner demanded the goods, but was informed that they were not there. In the succeeding days several other demands were made and like answers given. The refusal, it was said, should be regarded as a tortious detention, or what is the same .thing, a wrongful withholding from the owner. It was said:
“We do not mean to decide that a mere delay, by a carrier, in delivering goods amounts to a conversion. He is not bound to deliver until a demand is made. But, when made, he must know whether the property is at hand; and if it be, and he wrongfully fails to deliver it, he can not escape the charge of conversion because he did .not, in express words, refuse to deliver it, but informs the consignee it has not come to hand, when he is bound by law to know otherwise. ■ Such conduct on his part should be regarded as a misfeasance, and not as a mere nonfeasance.” (p. 500.)
The case of R. & D. Railroad Co. v. Benson, 86 Ga. 203, was one where goods were directed to be shipped by a particular route, and instead of sending them directly the railroad company transported them in a roundabout way, thereby causing a delay of several days. Two days after the goods were received they were damaged by a flood. For several days before the flood the consignee sent every day to the depot of the railroad company and asked for the goods, but was informed that they had not arrived. The goods, however, were then in the possession of the railroad company, but the agent failed or refused to deliver them. The court held the refusal to deliver and the wrongful detention of the goods made the railroad company liable for the loss sustained. (See, also, Railway Co. v. Dunlap, 71 Kan. 67; Railroad v. Kelly, 91 Tenn. 699; Richmond Railroad Co. v. White, 88 Ga. 805; Williams v. Grant, 1 Conn. 487; New Brunswick Steamboat Company v. Tiers et al., 24 N. J. Law, 697; 1 Hutch. Car., 3d ed., § 313; 5 Thomp. Com. L. of Neg. § 6597; 6 Cyc. 385; 1 A. & E. Encycl. of L. 594; 1 Enc. L. & P. 1111.)
The findings of fact made by the trial court warranted its conclusion of law, and its judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff .sued the defendant for wages and recovered. On the trial an exemplification of the record of the circuit court of Jackson county, Missouri, was admitted in evidence on behalf of the defendant. This record consisted of a transcript from a justice of the peace purporting to show the proceedings in a garnishment action pending before him, terminating in a judgment against the railway company, as garnishee, in favor of a creditor of the plaintiff here, who was served by publication. • The court ignored this evidence in its instructions to the jury, and the defendant claims the full faith and credit clause of the federal constitution has been violated.
The courts of this state will take notice of the constitution of the state of Missouri providing for circuit courts as courts of record and of general jurisdiction. (Dodge v. Coffin, 15 Kan. 277.) Giving to the record of the circuit court of Jackson county its full effect, it shows that the judgment relied upon as an offset to the plaintiff’s demand is not a judgment of that court at all. The recitation is as follows:
“Be it remembered that on the 5th day of June, 1908, there was filed in the office of the clerk of the circuit court of Jackson county, Missouri, at Kansas City, the following transcript from the justice court of J. W. White, to wit,” etc.
If there is any law of the state of Missouri which makes the proceedings and judgment of the justice a proceeding and judgment of the circuit court it should have been proved, since the laws of other states are not judicially noticed. In the absence of such proof it may be presumed that the law of Missouri is like that of Kansas. In this state the only effect of filing in the district court a transcript of a judgment rendered by a justice of the peace is to obtain a lien upon real estate and the right to an execution from the district court. (Lindgren v. Gates, 26 Kan. 135, 137.) “All that is gained by transferring is additional means of enforcing payment.” (Treptow v. Buse, 10 Kan. 170, 177.) This being true, the proceedings and judgment relied on are those of a justice of the peace and not those of a circuit court having general jurisdiction.
The proceedings and judgment of the justice of the peace are not authenticated as such, either according to the act of congress (and, indeed, such a certificate is impossible) or according to the statute of this state. Not having been certified properly, the transcript was not admissible in evidence; but since no objection was interposed when the transcript was offered the decision will not be rested here. The proof did not extend far enough.
There is no doubt that the judgment of a justice of the peace of a foreign state may be brought within the protection of the full faith and credit clause of the federal constitution. (Case v. Huey, Adm’r, 26 Kan. 553.) But there are no presumptions in favor of the authority and jurisdiction of such an officer. Those facts must be established in some lawful way before it can be known to what faith and credit his acts and proceedings are entitled. (Wagner v. County Com’rs, 34 C. C. A. 147; Bick v. Lanham, 123 Mo. App. 268; Ellis, use &c., v. White, 25 Ala. 540; Smith v. Clausmeier, 136 Ind. 105; Louisville, New Albany and Chicago Railway Company v. Parish, 6 Ind. App. 89; Gay v. Lloyd, 1 G. Greene [Iowa] 78; Warren v. Flagg, 19 Mass. 448; Godfrey v. Myers, 23 N. J. 197.)
The defendant having stopped short of proving a valid offset to the plaintiff’s demand, the instructions are not open to the objections urged against them. The amount involved being less than $100, the federal question only can be considered.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action is brought to restrain the defendant from placing the names of candidates for district judge upon the primary ballots in Wyandotte county. The trial court refused an injunction, and the state appeals.
By chapter 112 of the Laws of 1909 (Gen. Stat. 1909, §§ 2445-2458) it is provided that in counties having a population exceeding 100,000 the district court shall consist of two or more divisions. Section 2 of the act follows:
“Upon the taking effect of this act the duly elected and presiding judge of the district court of each county which comes within the provisions hereof shall be the judge of the first division of the district court for the remainder of his regular term of office, and the governor shall appoint a judge for the second division óf the district court hereby created who shall hold his office until the next general election and until his successor is elected and qualified, but not for the third division, unless there is a vacancy in the office of judge of the court of common pleas. The judges of the different divisions appointed by the governor under the provisions of this act, prior to the general election in November, 1912, shall hold until such election and until their successors are elected and qualified, and thereafter their terms of office shall be the same as provided by law for judges of the district courts of this state. They shall receive as their salaries the amount now provided by law for judge of the district court in their respective counties, payable monthly by the state.”
Pursuant to the authority conferred by this statute the governor, on April 23, 1909, appointed the Honorable Lewis C. True judge of the second division of the district court of Wyandotte county. The question is presented whether the appointee will hold his office until the general election of the year 1912, or only until the general election of 1910. The constitution provides that “in case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” (Const, art. B, § 11.)
An existing office without an incumbent is vacant. After the legislature created the office it was vacant until the appointment was made. Therefore there was a vacancy in a judicial office when the governor acted, and the constitutional provision applies. The decisions are in practical harmony upon this proposition, and the parties do not disagree about it.
We must next consider the meaning of the phrase “the next regular election,” as used in the constitution. The purport of this expression has been considered in several cases. (The State ex rel. Watson v. Cobb, 2 Kan. 32; Matthews v. Comm’rs of Shawnee Co., 34 Kan. 606; Ward v. Clark, 35 Kan. 315; McIntyre v. Iliff, 64 Kan. 747.) In the case last cited it was held:
“The phrase ‘until the next regular election,’ as used in section 11 of article 3 of the. constitution, providing for appointments to fill vacancies in judicial offices, means until the next regular election held at the time fixed by law for the filling of the particular class of judicial offices to which' the appointment was made.” (Syllabus.)
Governed by the interpretation of the phrase “the next regular election” given in the above quotation, we must determine the class of offices to which the one held by the appointee belongs. The defendant contends that the class is that of district judges, and as part of these officers will be regularly chosen at the election this year (1910) that will be the next regular election at which a successor to the appointee should be elected. The plaintiff contends that the office should be classified with that of the judge of the first division, whose successor will be elected in the year 1912, and that therefore the next regular election of a judge for the second division to succeed the appointee will be that to be held in November, 1912.
Elections of district judges in eighteen of the judicial districts were held in the year 1906, and their successors will be chosen each fourth year thereafter. In the remaining sixteen districts (including the twenty-ninth district, comprising Wyandotte county) the judges were elected in the year 1908, and their successors will be elected in each fourth year after that date. All judges so elected for a full term hold their respective offices for four years. (Const, art. 3, § 5; The State ex rel Goodin, v. Thoman, 10 Kan. 191; Peters v. Board of State Canvassers, 17 Kan. 365.)
The legislature creates new districts by a two-thirds vote of both houses. When a district is so created the governor fills the vacancy caused thereby under the constitutional provision already quoted, until the next general election — that being the next regular election at which that class of officers may be chosen, and the person so elected holds his office for the regular term of four years as fixed by the constitution. (Smith v. Holt, 24 Kan. 771.) No good reason is perceived why this rule governing the election of judges when new districts are created should not apply to the choice of judges when divisions in existing districts are created, requiring the selection of additional judges.
The policy of this state as fixed in the constitution is that the judiciary are elective. Exceptions are to meet possible necessities, and should be so limited that the application of the principle will not be unnecessarily restricted. It was said in The State ex rel. Watson v. Cobb, 2 Kan. 32:
“The general principle is that the judiciary are elective. The exception made to meet possible necessities is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election that occurs more than thirty days after the vacancy shall have happened. Thus showing that it was the intention to limit the exceptional method of selecting the judiciary so far as was consistent with a deliberate exercise of the mode of filling the office by the usual mode of election.” (p. 53.)
This principle was again declared in the Thoman case, where it was said:
“The manifest purpose of the constitutional provisions is to secure, not merely a fixed term of office to judges, but also to the people at stated intervals the opportunity of changing the incumbents.” (10 Kan. 191, 197.)
The manifest purpose of the constitution referred to in the foregoing quotation is secured by holding, as we do, that the office in question should be classified with that of the district judges whose successors are to be chosen at the election to be held in November, 1910.
It is suggested by the defendant that the language of the act first above quoted may be construed so as to lead to the same result. On the other hand, it is insisted that the statute can not be so interpreted. The language is obscure, but, whatever its true meaning may be, the constitution governs.
Attention has been called to the opinions of this court in Wilson v. Clark, 63 Kan. 505, and in The State v. Andrews, 64 Kan. 474. These cases arose under the biennial election law providing for filling an interregnum in the office of certain district judges, caused by a change in the time of holding elections, and the decisions are not necessarily in conflict with the views herein expressed.
The proposed action of the clerk in placing the names of candidates for the office named upon the ballot is proper, and the judgment refusing an injunction is affirmed. | [
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The opinion of the court was delivered by
Gfaves, J.:
On October 17, 1905, M. M. Poole commenced an action in the district court of Cloud county against Louisa Ann Christensen, N. M. French, C. E. French and DeWitt C. Poole, to foreclose a mortgage' upon the real estate in controversy herein. On January 26, 1907, she commenced another action in the same court and against the same parties, in which she claimed, to be the legal owner of an undivided one-half of the same land, and prayed for partition thereof. On February 11, 1907, the plaintiff, in compliance with an. order of the court, filed a petition in which the foregoing cases were consolidated, and that pleading constitutes the plaintiff’s petition in this case.
The facts out of which the controversy arises may in part be stated as follow: W. A.- Poole, the husband of' the plaintiff, purchased the land from the State Normal School, under a ten-year contract, payments to. be made in equal yearly installments. ' This purchase was made in July, 1878. Defendant Louisa Ann Christensen is the daughter of W. A. Poole and the plaintiff. DeWitt C. Poole and Edward Poole are their sons. The land in controversy was not occupied by W. A. Poole or his family before the sale to the sons, DeWitt and Edward, herein mentioned. In 1890 W. A. Poole sold the land to his sons for the sum of $2916, which amount was paid with three promissory notes.’ executed by them and secured by a mortgage on the land. One of these notes was for the sum of $500,. which was shortly afterward paid; another was for $1000, due March 4, 1898, with interest from date— February 3, 1890 — at the rate of 6 per cent, payable annually; and the other was for $1416, due March 1, 1905, with interest from date at the rate of 6 per cent per annum, payable annually. The conveyance was made by an assignment of the contract of purchase which their father received from the state. The plaintiff did not join with her husband in this conveyance. She knew of it, however, and would have joined therein, but upon consultation among themselves it was thought to be unnecessary. The boys took immediate possession of the land, and used it for agricultural and pasturing- purposes, making their home with their parents, who resided on another place.
In January, 1895', DeWitt C. Poole was prosecuted for bastardy, and in September of that year was convicted and adjudged to pay $75, and the costs of the suit, amounting to'$249.25. He paid the judgment March 21,1896, but did not pay the costs. On February 15, 1901, an execution was issued, and the land in controversy was levied upon and sold as the property of defendant DeWitt C. Poole. The appellant, N. M. French, purchased it at the sheriff’s sale for $3500, which he paid at that time. At the end of eighteen months, the land not having been redeemed, the sale was confirmed and the sheriff was ordered to execute a deed to the purchaser, which he did. An action subsequently commenced to set aside this deed was appealed to this court and the deed was sustained. (Poole v. French, 71 Kan. 391.) In the bastardy prosecution DeWitt C. Poole employed as his attorney E. S. Ellis, who, prior to the commencement of the term of court at which the conviction occured, received as security for his fees an assignment of the contract which had been transferred to DeWitt C. Poole and Edward Poole when they purchased the land from their father. They both joined in the assignment to Ellis. They received a contract from Ellis in which he agreed to protect the land from taxes, interest and other expenses, and to reconvey to them when they paid his fees and reimbursed him for his expenses on the land. Nothing was paid by them to Ellis, and, after paying taxes and interest until November 13, 1899, he paid the state the whole amount remaining due on the contract and received a patent for the land.
On the 25th of October, 1899, Louisa Ann Christensen purchased the entire interest of her brothers in the land, subject to all liens and encumbrances thereon, which she assumed and agreed to pay. Pursuant to this arrangement she purchased the land from Ellis, who conveyed to her by a warranty deed. In payment for the land she executed to him her note for $2500, and secured it with a mortgage upon, the premises. She also, at the same time, borrowed $1000 from Mrs. Ellis, which was secured in the same manner. These transactions occurred February 10, 1900. On the same day she purchased the plaintiff’s interest in the notes and mortgage given by DeWitt C. Poole and Edward Poole as the purchase price of the land. In making this purchase she executed to her mother a promissory note of' that date, in the sum of $2207.23, and secured it by a mortgage upon the land. She purchased the note held by W. A. Poole in the same manner. In this transaction between Mrs. Christensen and her parents it was the intention of all the parties that Mrs. Christensen should assume the debt owed by DeWitt C. Poole and Edward Poole to their father and mother for the land, and that the time for payment should be extended to suit her. To carry out this purpose the note executed by her to the plaintiff and the mortgage given to secure its payment were given as a substitution for the notes and mortgage before given by the boys, and it was intended that the transaction should be in effect a continuation of that debt, instead of the creation of a new liability, and in that manner the priority of the purchase-money indebtedness should remain unchanged. In the mortgages executed by Mrs. Christensen in this transaction there was inserted, as evidence of such intent, a clause which reads:
“This grant is intended as a mortgage to secure the payment of the sum of two thousand two hundred and seven and twenty-three hundredths ($2207.23) dollars, with interest at the rate of 4 per cent per annum from the 21st day of July, 1900, in five years from date hereof; the said money being the whole of the second described note and part of the third described note mentioned in a certain mortgage given by D. C. Poole and E. B. Poole, February 3, 1890, to William A. Poole, and by him indorsed to the party of the second part herein, and which mortgage has been satisfied, the party of the first part herein having assumed the same- and this substituted according to the terms of one certain promissory note this day executed and delivered by the said Louisa Ann Poole [Christensen] to the said party of the second part.”
On April 1, 1901, at 2 o’clock P. M., the land was sold, to the appellant under an execution issued upon the judgment in the bastardy case. The sale was afterward confirmed, and a certificate of purchase issued, April 9, 1901. The deed was issued October 6, 1902. The new mortgage given by Mrs. Christensen to her mother was recorded April 1, 1901, at 8:45 A. M., and was therefore prior to the date of the sheriff’s sale. The $3500 paid by the appellant for the sheriff’s deed was $3104 more than the judgment lien for the collection of which the execution was issued. This excess was held by the clerk of the district court. On April 8, 1901, C. E. French, wife of the holder of the sheriff’s, deed, purchased from E. S. Ellis the note executed to him by Mrs. Christensen for $2500, and also the note held by Mrs. Ellis for $1000, and on May 2, 1901, she filed a motion in the bastardy case asking that the $3104 ■in the hands of the clerk be applied to the payment of the Louisa Ann Christensen notes which she had purchased from Ellis. This application was allowed January 23, 1903, and $2200 of this excess was credited upon the note for $2500, and $900 upon the note for $1000. The note for $2500 was payable February 10, 1905, with interest at 7 per cent, payable semiannually;the one for $1000 was payable at the same time, with interest at the same rate. The theory upon which Mrs.. French obtained the money in the clerk’s hands was that it, being the excess above the judgment lien for which the land was sold, belonged to whoever owned the land, and that Mrs. Christensen, having purchased the land, was the owner of the money; that, the notes having been given by her as the purchase price of the land, and the land being pledged by a mortgage for the payment of the notes, it would only be right to have this money applied upon the notes. The court seemed to agree with Mrs. French, for the order was made and the clerk was directed to make such application of it as she desired. Accordingly, $2200 was applied upon the note for $2500 and $900 upon the note for $1000. The fact that the notes were not payable until February 10,1905, and drew interest at 7 per cent, payable semiannually, does not seem to have been considered. No notice of the .aforementioned motion was given to Mrs. Christensen, .and she was not present and did not waive such notice, nor consent to the appropriation of the fund.
W. A. Poole died January 2, 1905, and defendant T. D. Troup was duly appointed administrator of his estate by the probate court of Cloud county, Kansas, on the 26th of January, 1907. He duly qualified and has ever since been acting as such.
These are the principal facts upon which this case was presented in the district court. Other facts explanatory of the contentions of the parties will appear in connection with each point discussed.
The first error of which the appellant complains is the order of the district court consolidating the two actions. Without considering whether or not this objection was well taken, we will merely state that, if it was, no prejudice was done by the court’s ruling. Considering the complicated and interwoven condition of the facts, it does not seem possible that the two cases could have been so clearly presented in any other manner. Counsel deserve great credit for the labor and ability bestowed in the presentation of the consolidated cases.
A motion to require the plaintiff to elect which cause of action she would rely upon was denied. This ruling is also assigned as error, but what has already been said of the order of consolidation applies to this objection also. No prejudice or error resulted from the denial of the motion.
The basis upon which the plaintiff claims to be the • owner of the undivided one-half of the land in contro versy is that she did not join with her husband in its transfer and has never since made any conveyance thereof, and at his death it became hers under section 8 of the statute of descents and distributions, which reads:
“One-half in value of all the real estate in which the husband,' at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of her husband, if she survives him; provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.” (Gen. Stat. 1868, ch. 33, § 8, Gen. Stat. 1909, § 2942.)
It is contended by the appellant that this right, if it existed, has been lost by the fifteen years statute of limitation, and also because of consent, acquiescence and estoppel. It is further claimed that this statute has no application to the property in controversy. In support of this view it is argued that a contract with the state for the purchase of such land is purely statutory, and the procedure prescribed by the statute for its sale must control; and when such procedure has been complied with and the patent has been issued the patentee receives the absolute title in fee, without reserve or contingency. It is also urged that the form of contract used, by the state, and the assignment thereof, both of which are prepared by the state, do not contemplate that the wife shall join with her husband in such transfer, but on the contrary the transaction indicates an intention to deal solely with the purchaser. It is urged that the state may 'choose the manner in which its real estate shall be disposed of, and when a conveyance is completed in such manner to any purchaser no private person may question such transfer. It is therefore claimed that Ellis received from the state the absolute title to the land, free from the claims of the plaintiff or anyone else, and his grantee received the same title from him.
The facts relied upon to constitute the bar of estoppel, acquiescence and consent on the part of the plaintiff may be stated as follow: The conveyance of the land by her husband to their sons was well known to her at the time, and fully consented to by her. She insisted upon having and receiving as her own the note for $1000 given as a part of the consideration for the land. She well knew that the sons were in the actual possession of the property, using it for pasturing and agricultural purposes, and that they erected permanent and valuable improvements thereon, believing they were the owners of the complete title thereto. She knew of the arrangement between the boys and Ellis. After Ellis had procured the patent to the land she urged and induced her daughter, Mrs. Christensen, to purchase the land from Ellis, and she knew that her daughter executed to Ellis as a part of such purchase a mortgage on the land to secure the payment of the purchase price. In 1889 the plaintiff , and her husband separated and had an equitable division of all their property, and each waived all future claims against the estate of the other. In fulfillment of that arrangement she received the property which by the agreement was to be hers, and kept it as her own, and as a part of such division she received a portion of the note for $1416 which was given by her sons as a part of the price paid for the land. She received of the purchase price paid by DeWitt C. Poole and Edward Poole notes in the aggregate sum of $2207.28, which she sold to her daughter' for that amount, taking the note sued upon herein therefor. The total purchase price received from DeWitt C. Poole and Edward Poole was $2916, of which $500 was paid soon after the purchase, leaving a re mainder of $2416. She therefore received as her own individual property within $709 of the whole price for which the land was sold.
It is claimed that this note is barred by the statute of limitations. The importance of this claim will be understood when it is remembered that the title of the appellant depends upon the sheriff’s deed, which rests upon the judgment against DeWitt C. Poole which was rendered in the bastardy action in September, 1895, and became a lien upon the land at that time. The notes given by DeWitt C. Poole and his brother when they purchased the land from their father were dated February 3, 1890, and the mortgage given at that date to secure their payment was of course prior to this judgment, but the mortgage by which the notes were secured contained a clause which reads:
“If said sum or sums of money or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes . . . which are . . . levied against the said premises or any part thereof are not paid when the same are by law made due and payable, then the whole of said sum or sums and interest thereon shall by .these presents become due and payable.”
It is contended that these notes became due.under the provisions of this clause prior to the date indicated upon their face and were barred by the statute of limitations when the note sued upon herein was executed, and that the debt represented by these barred notes lost its priority over the judgment in the bastardy case, and the priority, being lost, couid not be revived, even by agreement of the parties, to the detriment of the appellant. It is therefore urged that the transaction amounted simply to a payment of the notes and mortgage given by the boys at the time they purchased the land, that the new note and new mortgage evidenced a new transaction, and the second mortgage became a lien only at the time of its daté and was junior to the lien of the judgment in the bastardy case. Upon the other hand it is contended that when Mrs. Christensen bought the land from her brothers she agreed with them to assume and pay off all the liens and encumbrances existing against the land, including the purchase money due the plaintiff and her husband. Afterward, in compliance with this contract, she arranged with her mother for the payment of the debt which the latter held against the land, and for that purpose gave the note and mortgage upon which this action was commenced. It is argued that, as Mrs. •Christensen had assumed to pay this debt as a part of the consideration for the land, she and her mother were competent to make any agreement about the payment thereof that they deemed best, and, they having agreed that the note of Mrs. Christensen then executed should be substituted for the purchase-money notes given by DeWitt C. Poole and Edward Poole, and that the time should be extended for payment, such agreement should have that effect. The note upon which this action was commenced is dated February 10, 1900. Only one of the purchase-money notes was then past due, and neither of them was barred by the statute of limitations.
The facts upon the question of when the old notes became due and when barred are as follow: The old notes were dated February 3, 1890. There were three of them — one for $500, due March 1,1893, which was subsequently paid; one for $1000, due March 4, 1898, with interest from March 1, 1894, payable annually; one for $1416, due March 1, 1905. No interest was paid on either of them. Mere failure to pay interest does not •cause a note to become due under such a clause in the mortgage as the one hereinbefore quoted, but there must be a concurrence of default in both interest and taxes. (Lewis v. Lewis, 58 Kan. 563.) No such concurrence occurred as would cause either note to become barred by the statute of limitations before the execution of the note upon which this action is founded.
Upon these facts the district court held that the plaintiff was barred from any interest she might have had in the land under the statute of descent by the fifteen years statute of limitation, and also by estoppel, consent, ratification and acquiescence. In this decision the court followed the case of Jenkins v. Dewey, 49 Kan. 49. Counsel have criticised this decision to some extent, but an examination of the case shows that the same objections and the same arguments were made when that case was presented that have been made here, and the court was fully advised when that decision was written. It has stood for over twenty years, and we see no good reason for disturbing it now. This disposes of the partition feature of this case. The plaintiff has no interest in the land.
As to the note, we conclude that it is not barred by the statute of limitations. The debt which it represents was in full legal force when the note was executed by Mrs. Christensen to the plaintiff. At that time they were debtor and creditor as to that indebtedness, and were fully competent to make any arrangement for its payment that was satisfactory to themselves. No good reason exists why they should not be free to contract with reference thereto. They were the only persons interested. An extension of time simply prolonged the situation and did not affect the rights of other parties interested in the mortgaged property. It being their intention to preserve the status of the debt as to liens and priority, they should not be deprived of that privilege. Every reasonable interpretation should be given to their agreement to carry out their intention. We think the transaction between Mrs. Christensen and her mother at the time the note involved in this suit was executed amounted to a substitution of the new note for the then existing debt and an extension of the time in which it should be paid. The priority of liens was not changed or disturbed by this arrangement.
The action of the court in applying the excess of the money paid at the sheriff’s sale upon the note of Mrs. Christensen was without jurisdiction and void. Mrs. Christensen, being then the owner of the land, was also the owner of the money. There was no excuse for the court to use the money in the payment of her debt, not yet due nor payable for several years, without her knowledge or consent. The order was made in an action to which she was riot a party, and without notice, knowledge or consent on her part, which of course made it void. The trial court, in its judgment entered in February, 1908, adjusted this matter long after the notes became due, by rendering judgment against Mrs. Christensen in favor of Mrs. French for the amount then due and payable upon the notes, and offset this judgment by a credit for the amount of money received by Mrs. French upon the void order of the court, with interest thereon from the date of the order to the date of the judgment. • This left a small balance due from Mrs. Christensen. Whether this be denominated subrogation, or some other name be given to it, is of very little consequence. It resulted in an adjustment which was as just and fair to both parties as could have been. devised at that time. We think the action of the trial court in this matter should be commended and upheld.
These conclusions dispose of the case. There are several other questions discussed by counsel, but in the view the court has taken it will be unnecessary to consider them. We have carefully examined the voluminous abstract and the likewise extended briefs of counsel, and we are unable to find any material error on the part of the district court. The decree is affirmed. | [
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Per Curiam:
On January 25, 1910, in an action upon a promissory note, the Central National Bank of Carthage, Missouri, obtained a judgment against the. Guthrie Mountain Portland Cement Company, which included an order for the sale of attached property. On August 3 an execution was issued, under which other property was seized and advertised to be sold at ten o’clock on the morning of August 25. At that time a sale was made to W. C. Gunn, the validity of which is denied by the defendant on the ground that before it took place an appeal had been taken and a stay bond given. The appeal was perfected August 24, and a statutory stay bond was filed and approved by the clerk of the district court on August 25, but whether before or after ten o’clock is disputed. .
On August 26 a justice of this court, on application of the defendant, granted an order staying all proceedings in the district court pending the determination of the appeal. On September 19 the plaintiff filed in the district court a motion to confirm the sale, and the next day an order was made sustaining the motion and directing the disbursement of the proceeds. On September 30 a citation was issued from this court against the defendant and others to show cause why they should not be deemed to be in contempt for having proceeded with the litigation in the district court after the stay had been granted. Upon’ a hearing it developed that the proceedings had been taken in good faith, in the belief that they did not- contravene the stay order. The court, however, held that belief to be erroneous and the participants were adjudged to have been guilty of a technical contempt, from which they were purged upon their causing everything to be undone that had taken place after the granting of the stay order, thus restoring matters to the condition that existed on August 26.
The case now comes up for hearing on a motion of the plaintiff to set aside the stay order granted August 26, upon the ground that it was contrary to the statutes and without authority of law. As the only question raised concerns the power to make such an order under the circumstances, the motion must be denied. The statute provides that during the pendency of the appeal the supreme court “may make an order suspending further proceedings in the court below.” (Gen. Stat. 1868, ch. 27, § 1, Gen. Stat. 1909, § 2362.) And it is a necessary incident to the exercise of appellate jurisdiction that the reviewing court shall be able by appropriate action to preserve an existing status, so that when an appeal is decided the fruits of the decision shall not be lost because in the meantime conditions have changed. (See 2 Cyc. 891, 892; 20 Encyc. PI. & Pr. 1237, 1238, 1246.) If an appeal could be determined immediately upon being perfected no occasion would arise for any interlocutory order in this court. But, for reasons beyond the control of the court or the parties, an interval of several months must ordinarily elapse before the case can be considered on the merits. Whenever it appears probable that some intervening change of condition may render the final judgment ineffectual the practice is to make an order designed to prevent that result. Such orders are made by one or more justices as well as by the court, and occasionally, where immediate action seems necessary, without notice to the adverse party. Any injustice done by an ex parte order can readily be corrected upon a motion to set it aside, its effect being merely to suspend proceedings until a fuller inquiry can be had. In this case no application has been made to discharge the stay order on any ground except the want of authority to make it.
In the argument it was suggested that the order of this court has deprived the plaintiff of the right to invoke the statute (Code 1909, § 589) authorizing leave to be granted, in actions on a contract for the payment of money only, for the enforcement of a judgment notwithstanding a stay bond, upon the giving of security for restitution. Granting that this action was originally one to which that statute applied, a new question has now arisen — whether a valid sale of property on execution has already been made in satisfaction of the judgment, the plaintiff maintaining the affirmative. Until that question is settled it is manifest that a new execution ought not to issue. Inasmuch as the sale was made after appellate jurisdiction had attached by the perfecting of the appeal, the question whether a stay had already become operative through the giving of a bond by the defendant might under some circumstances be determined by this court in the first instance. The district court, however, affords a more convenient forum for the investigation of that matter. To the end that the entire controversy may be settled as speedily as practicable, the stay order heretofore granted is now modified so far as to allow motions to confirm and to set aside such sale to be presented and passed upon by the district court, the judgment rendered in that connection not to be carried out until further order of this court, provided any party, including the purchaser at such sale, shall within five days of its rendition appeal therefrom and give a bond, in an amount and with securities to be approved by this court or some justice thereof, conditioned for the payment of all damages that may be occasioned to the opposing party or to such purchaser by the delay if the decision is affirmed. If such an appeal is taken it will be consolidated with that now pending, and the hearing will be advanced to as early a time as conditions will permit. | [
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WHEREAS, heretofore a proceeding was conducted by the Kansas Board for Discipline of Attorneys to inquire into the complaint of alleged professional misconduct of D. V. Romine; and
WHEREAS, following a full hearing as to such complaint, the Board of Discipline found that D. V. Romine, of Abilene, Kansas, during a period of time from 1971 to 1979, while employed as city attorney of the City of Abilene, Kansas, entered into an agreement with certain bond counsel retained by the City to split certain legal fees for work of such bond counsel unknown to his client, the City of Abilene and simultaneously charged the City of Abilene for the same work without knowledge of the bond counsel; all in violation of DR 2-107(A), 225 Kan. xcix, and DR 5-107(A), 225 Kan. ciii; and by such actions and billings engaged in a form of misrepresentation in violation of DR 1-102(A), 225 Kan. xciii; and
WHEREAS, the Board of Discipline made a written report thereof which has been filed with this court wherein findings of fact and certain conclusions were made and a recommendation made to this court that the respondent, D. V. Romine, be disciplined by public censure; and
WHEREAS, such recommendation is advisory only and not binding upon the court; and
WHEREAS, respondent was duly notified of the findings and conclusions of the Board of Discipline and has not filed any exceptions thereto, but requested the opportunity to appear before the court on the matter of the discipline to be imposed; and
WHEREAS, on the 4th day of April, 1980, the matter came on for hearing before the Court, the State of Kansas appearing by Roger Walter, disciplinary counsel, and respondent appearing in person and by Edwin P. Carpenter, his attorney, and the Court, after consideration of the report and being fully advised in the premises, finds that the respondent D. V. Romine should be disciplined by the imposition of indefinite suspension.
BY ORDER OF THE COURT, dated this 28th day of April, 1980.
IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that D. V. Romine be, and he is hereby disciplined by indefinite suspension from the practice of law until the further order of the Court and that he pay the costs of the proceeding.
IT IS FURTHER ORDERED THAT this Order of Suspension be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an action by Clark Equipment Company (Clark) as a loss payee against the insurer, Hartford Accident and Indemnity Company (Hartford), to recover for an insured refrigerated semitrailer. A covered risk of the policy was “loss by reason of theft or larceny.” The trial court held that the trailer was missing, but that theft was but one of several equally possible explanations for its disappearance, and denied recovery. The trial court further held that attorney fees, in any event, should not be allowed against defendant. Clark appeals from both the denial of recovery and the determination relative to attorney fees.
The complicated factual situation will be summarized and simplified wherever possible. On February 6, 1970, plaintiff Clark sold the trailer to James Kelly, d/b/a Kelly Trucking Company, operating out of Wichita, Kansas. As a condition of the sale Kelly was required to insure the trailer and to designate Clark as loss payee thereon. This was done with the purchase of the Hartford policy. The trailer was used in interstate hauling. In 1972, Kelly experienced financial reverses and on August 23 of that year executed an operating contract with Kroblin Refrigerated Xpress, Inc. (third party defendant), of Waterloo, Iowa, whereby various trailers, including the one in question, were to be operated by Kroblin.
The trailer with which we are concerned was last pulled by a Kelly driver on October 21, 1972, when it was left in New Hampton, Iowa, for unloading. At this point the trailer no longer appears on Kelly logbooks and begins appearing on Kroblin logbooks, where it is designated as Kroblin 1245. Kroblin records indicate it was routinely used for various loads until November 22,1972, when it was in Magodore, Ohio. After that date, it never again appears on Kroblin’s logbooks. Kroblin speculates one of its drivers hauled the trailer to Mansfield, Ohio, and relayed with a Kroblin driver named Julius Wagner.
The next known event in the trailer odyssey is that on or about December 1, 1972, Kelly was telephoned by an Ohio highway patrol officer who advised that trailer 1245 had been parked along a highway for about a week and would be towed away. Kelly contacted the Kroblin dispatcher about the call and was advised that it would be taken care of. The trailer’s tags had been changed, but there is no question that it was Kroblin 1245. On December 2,1972, the same Kroblin driver previously referred to, Julius Wagner, paid the fine and towing charges in Ontario, Ohio, and presumably left town with the trailer. A truck stop owner in Van Wert County, Ohio, stated that a Kroblin driver unhitched a Kroblin trailer on his lot on December 3 to have the tractor repaired. Kroblin records indicate Julius Wagner had a tractor repaired on the same date at the same truck stop. In January of 1973 someone stating he was from Kroblin called the truck stop and asked whether trailer 1245 was there. The trailer was not there at that time.
Meanwhile, during the fall of 1972, Kelly’s financial problems had worsened and Clark started repossessing all the trailers Kelly had purchased from it — these were all in Kroblin’s custody. Kelly called to try and locate Kroblin 1245 and the disappearance of the trailer surfaced. On January 9, 1973, Kroblin reported to the Van Wert County, Ohio, sheriff s office that the trailer had been stolen from the truck stop. A claim was duly filed with Hartford. Kelly ultimately went into bankruptcy and this action was brought by Clark under the loss payable clause to recover the market value of the trailer ($9,500), which was less than the balance owed Clark. The trailer has never been recovered.
In the trial of the case herein no live testimony was presented. The evidence consisted solely of depositions and written documents. The proper standard of review in such instances is stated in Fourth Nat’l Bank & Trust Co. v. Mobil Oil Corp., 224 Kan. 347, Syl. ¶¶ 1 and 2, 582 P.2d 236 (1978), as follows:
“When a case is submitted to the trial court on an agreed stipulation of facts and documentary evidence, this court is afforded the same opportunity to consider the evidence as the trial court.”
“Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish. (Following American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 572, 545 P.2d 399 [1976].)”
Accord, Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 592 P.2d 74 (1979).
The assured has the burden of proving that the loss was of a type included in the general coverage provisions of the insurance contract. Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 900-901, 522 P.2d 401 (1974).
The semitrailer left Clark’s custody in 1970 and left Kelly’s custody on October 21, 1972. From that point it was in the lawful custody of Kroblin. There is not one scintilla of evidence that either Clark or Kelly asserted any control over the vehicle after it passed to Kroblin on October 21, 1972. Inasmuch as a Kroblin driver paid the fees and towing charges on the trailer on December 2, 1972, it is more probable than not that he hauled the trailer from the impoundment lot on that date. Likewise, it is more probable than not that he hauled it to the truck stop in Van Wert, Ohio. The one person who could testify positively as to whether this occurred is the Kroblin driver, Julius Wagner. For reasons unknown, no statement from him is in evidence.
Normally, an assured has greater knowledge of the facts surrounding a loss than does the insurance company. In this particular case this is not true. The events in question occurred in the State of Ohio while the trailer was in the lawful custody of a third party. The assureds have a duty to disclose all known facts to the insurance company, but under the circumstances herein this does not require the assureds to conduct a full scale investigation of what transpired. The insurance company had a duty to investigate and did conduct an investigation over a period of years. The evidence as to what happened is conflicting in some respects, particularly as to the content of some telephone conversations between Kelly and Kroblin, but does not conflict in any crucial respects. We really do not have two different versions of what happened to the trailer. We have only one rather sketchy set of facts with different inferences which may be drawn therefrom.
In determining which is the most probable inference we must consider the nature and characteristics of the property claimed to have been stolen. The missing trailer is a large refrigerated semitrailer — not an item easily mislaid. The missing trailer is an item required to be licensed and show appropriate current tags in order to be operated upon the highways. Further, its highway use involves detailed log-keeping. Under such circumstances, continued operation by one mistakenly believing the trailer to be his own would be highly improbable. Deliberate alteration of numbers or other acts of concealment of true identity would be necessary for continued on-the-road use. The trailer is an inanimate object incapable of straying away on its own. The length of time (seven years) which has elapsed from the disappearance of the trailer is inconsistent with an inference the item is lost or misplaced, or that it is in the honest possession of anyone. Sowden v. United States Fidelity & Guaranty Co., 122 Kan. 375, 378, 252 Pac. 208 (1927). Further, the fact this is a valuable piece of equipment lessens the likelihood of misplacement.
The assured is not required to identify or apprehend the thief in order to recover under the policy. As this court stated in Baugher v. Hartford Fire Ins. Co., 214 Kan. at 904:
“If the appellees were required to prove who stole the cattle to establish proof of loss under the policy, there would be no need for insurance. The appellees could pursue the cattle and recover them. The substantial premium paid for a policy of this type would have been for naught.”
We must conclude that the most probable inference from the evidence herein is that the lawful owners have been feloniously deprived of the possession of their property by another person or persons unknown, and that is a sufficient showing of theft within the meaning of the policy.
Before determining whether, judgment should be entered in favor of Clark by this court, or whether the case should be remanded to the district court for'further proceedings, we must consider whether the district court erred in denying attorney fees to Clark.
K.S.A. 40-256 provides:
“Attorney fees in actions on insurance policies; exception. That in all actions hereafter commenced, in which judgment is rendered against any insurance company . . . if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs: . . . .”
The trial court entered judgment in favor of the insurance company, which precluded the trial court from awarding attorney fees. However, the trial court felt strongly enough about the matter to conclude:
“That notwithstanding the Court’s conclusion as to liability, the Court specifically finds that defendant had just refusal not to pay under the policy of insurance, and plaintiff is not entitled to attorneys’ fees.”
Whether or not an insurance company has refused without just cause to pay a claim is a question of fact. Brown v. Combined Ins. Co. of America, 226 Kan. 223, Syl. ¶ 1, 597 P.2d 1080 (1979); Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, Syl. ¶ 1, 470 P.2d 756 (1970).
Whether attorney fees are awardable under K.S.A. 40-256 depends on the facts and circumstances of the particular case. Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973); Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P.2d 34 (1969). What constitutes refusal to pay “without just cause or excuse” varies with each case. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. at 565, held the above phrase to mean “frivolous and unfounded,” and that denial of liability must be patently without any reasonable foundation. Attorney fees must be denied when there existed a good faith legal controversy as to liability. Forrester, at 452. If there is a bona fide and reasonable factual ground for refusing to pay a claim, attorney fees are not awardable. Koch, at 565. Denial of payment where not arbitrary, capricious, or in bad faith will not give rise to an award of attorney fees. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 615, 549 P.2d 1354 (1976).
During Hartford’s investigation of the claim, a Kroblin official advised Hartford of his suspicions that Kelly had the trailer. Later, this was admitted to be a wholly unfounded comment, but presumably this comment had some effect on Hartford’s actions. The loss of the trailer occurred under mysterious circumstances at a time when Clark was trying to repossess it. The trial court had considerable opportunity through pretrial and trial to form an opinion as to whether Hartford refused to pay without just cause or excuse. We cannot say the trial court abused its discretion in concluding that attorney fees were not proper, even if it had found in favor of Clark.
Under the totality of the circumstances herein, there is no valid reason to remand the case for further proceedings. The judgment entered in favor of defendant Hartford is vacated; judgment is entered in favor of plaintiff Clark in the amount of $9,500 and its costs; and the judgment denying attorney fees is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendants-appellants, John Lomax and Danny Williams, were tried together and convicted by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated battery (K.S.A. 21-3414). A third defendant, Cashley Woods, was tried at the same time, but the district court declared a mistrial after the jury could not arrive at a verdict.
This prosecution arose out of a robbery which occurred at a Kansas City residence on December 9, 1978, at approximately 8:30 p.m. The owner of the house, Leon Smith, was watching television with a young neighbor girl, Mary Ellen Bagby. Smith testified that in response to a knock at the door, he looked out the window and saw the defendant, Lomax. Smith opened the door and three men rushed inside the house. He identified them as Lomax, Williams, and Woods. According to Smith, Woods was the last of the three to enter. He struck Smith in the forehead with a gun, knocking him to the floor. There was some dispute as to whether the other two robbers carried guns. Following their entry into the house, the robbers ransacked the residence, taking clothing, guns, and cash. The only real issue presented at the trial was the identity of the robbers. Lomax and Williams asserted the defense of alibi, claiming that at the time of the robbery they were playing cards at a friend’s house. In addition to Lomax and Williams, three other witnesses testified in support of their alibi. The defendant Woods likewise denied that he was one of the robbers and presented his separate alibi. The jury found both Lomax and Williams guilty as charged. Both defendants took a timely appeal to this court.
The defendants’ first point on the appeal is that the trial court erred in failing to instruct the jury on the lesser included offenses of robbery and battery. They contend the discrepancies in Smith’s testimony raised doubts as to whether or not a gun was used by the robbers, thus requiring the trial court to give lesser included offense instructions. Defense counsel requested such instructions but the request was denied by the trial court on the basis that the evidence was undisputed that a gun was used in the robbery. The trial court concluded that since the only defense was alibi the defendants were either guilty of armed robbery or innocent of all charges. We have concluded that the trial court correctly denied the requested instructions. The evidence was clear that at least one of the robbers had a gun; in fact, Smith identified the weapon as a .38-caliber pistol. In addition, the evidence was undisputed that the victim Smith was struck in the head causing severe bleeding to the extent it was necessary to take him to the hospital. Under K.S.A. 21-3427, aggravated robbery is defined as a robbery committed by a person who is armed with a dangerous weapon or where bodily harm is inflicted upon any person in the course of such robbery. Here it is undisputed that the victim Smith suffered bodily harm in the course of the robbery. Hence, the offense would be aggravated robbery whether or not one of the robbers actually possessed a firearm. It is also apparent that the nature of the assault upon Leon Smith was more serious than the offense of simple battery under K.S.A. 21-3412. Under that statute, battery is described as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Here the application of force was done in a manner whereby great bodily harm could have been inflicted. It follows that there was no reason to instruct on the lesser included offense of simple battery under K.S.A. 21-3412.
The defendants’ second point on the appeal is that the trial court erred in admitting evidence of a 1973 conviction of the defendant Lomax of aggravated robbery in order to prove identity under K.S.A. 60-455. Prior to trial, Lomax’s motion to suppress the prior crimes evidence was heard and denied. At the hearing on the motion, the State brought to the stand detective Parks of the Kansas City police department who testified that Lomax and two other men were involved in the armed robbery of the Prolerized Steel Company in Kansas City in September of 1973. According to Parks, Lomax was armed with a .32-caliber pistol. Lomax and his two confederates entered the business, ordered the employees to lie on the floor, threatened to kill anyone who did not, and proceeded to rifle the cash register. The court held this charge to be similar to the present case so as to tend to prove the identity of Lomax as one of the robbers in this case. At the trial, the State did not actually call detective Parks to testify but instead introduced the prior testimony of Lomax at the trial of a codefendant in the Prolerized Steel robbery. Lomax testified in substance that, while armed with a pistol, he entered the business, required the employees to lie on the floor, took cash, and left.
The rule is well established in this State that where a similar offense is offered for the purpose of proving identity, the evidence must disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the same person committed both of the offenses. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). There is a comprehensive discussion on the subject of the admissibility of other crimes evidence in the comment to PIK Crim. 52.06 (1980 Supp.) contained in the January, 1980, Kansas Judicial Council Bulletin. This court on several occasions has determined the sufficiency of similarities to justify admission of other crimes evidence to prove identity under K.S.A. 60-455. State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978); State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977); State v. Jackson, 222 Kan. 424, 565 P.2d 278 (1977); State v. Bly, 215 Kan. at 177. In each instance, where other crimes evidence was offered to prove identity, the test applied was whether the factual circumstances of the two crimes were sufficiently similar to raise a reasonable inference that the same person committed both crimes. In ruling that the two crimes were sufficiently similar in this case, the trial court reasoned as follows:
“There is no doubt that there is a similarity in the two offenses, the prior offense and the present offense. In each instance, there were three individuals involved in the armed robbery acting in concert. In each instance — I am looking at State’s evidence, and I am assuming that the State’s evidence will be substantially what it was at the preliminary hearing. In each instance, at least one of the persons committing the armed robbery were armed with a deadly weapon, to wit: a gun. In each instance, at least one or more of the victims were told to lie on the floor. And in each instance, there was property taken. Also in each instance, the act occurred in Kansas City, Wyandotte County, Kansas. So that there is no doubt that there is considerable similarity, I grant you that the place where the two crimes were committed are different and that one was commercial or wholesale operation and the other was a residence.”
We have concluded that the trial court erred in the admission of the evidence as to Lomax’s prior conviction of aggravated robbery in 1973. The 1973 offense involved the robbery of a place of business; the robbery in the case at bar involved a residence. In 1973, Lomax went into the Prolerized Steel Company with the pretense of filling out an application for employment and then committed the robbery. In the present case, the three robbers entered the premises forcibly by crashing through the door. The robbery committed in 1973 was committed in the Armourdale district, an industrial district in central Kansas City, Kansas. The present offense was committed in the far northern district of Kansas City, a residential area. In the 1973 offense, only money was taken. Here the house was ransacked and several items of clothing were taken by the robbers. Suffice it to say, the only similarity in the two robberies was that in both at least one of the persons committing the armed robbery had a gun and in each instance at least one or more of the victims was told to lie on the floor. We cannot accept the ruling of the trial court that the crimes were sufficiently similar to raise a reasonable inference that the person who committed one of the crimes committed the other. We hold that the trial court committed error in the admission of the 1973 conviction.
We have also concluded that the admission of the evidence of Lomax’s prior conviction cannot be held to be harmless error under the circumstances shown in this case. Leon Smith testified that he had poor eyesight and at times wavered in his testimony. We further note that five alibi witnesses, including Lomax and Williams, testified that the defendants were together at another place at the time the robbery occurred. We also must consider the fact that Mary Ellen Bagby, who was present at the scene, testified at the trial that she could not recall what happened and refused to identify the robbers. We also note that the jury was unable to agree on the guilt of defendant Woods, who had no prior convictions and relied on an entirely different alibi defense than did Lomax and Williams. In our judgment, the defendant Williams was also prejudiced by the admission of the prior conviction. Roth Williams and Lomax relied upon the same alibi defense and the same alibi witnesses. Their defenses had to stand or fall together. Any prejudice to Lomax resulting from the admission of Lomax’s prior conviction would necessarily prejudice the defense of Williams. Hence, we hold that the case must be reversed as to both defendants because of the improper admission of the prior conviction of the defendant Lomax in 1973.
The third point raised by the defendants on the appeal is that the trial court erred in not permitting defense counsel to cross-examine the State’s witness, Leon Smith, concerning a charge of first-degree murder then pending against him in Wyandotte County. Prior to trial, the State had filed a motion in limine seeking to restrain defense counsel from cross-examining Smith about the pending charge. At the time of trial, Smith had apparently agreed to plead guilty to voluntary manslaughter as the result of plea negotiations. The trial court sustained the State’s motion, holding evidence of the charge to be inadmissible to impeach Smith’s credibility, because Smith’s plea had not been accepted and there was no conviction as required by K.S.A. 60-421. We hold that the trial court was correct in ruling that the lack of a conviction rendered the evidence inadmissible to impeach Smith’s credibility. K.S.A. 60-421 specifically requires a conviction before evidence of a crime is admissible for that purpose. State v. Johnson, 219 Kan. 847, 852, 549 P.2d 1370 (1976). We find no error on this point.
As their final point on the appeal, the defendants complain that they were deprived of their constitutional right of confrontation by the State’s presentation of the testimony of Mary Ellen Bagby previously given under oath in open court at Cashley Woods’ preliminary hearing. That testimony was recorded on a tape recorder and later transcribed. Mary Ellen Bagby testified at Woods’ preliminary hearing that she was present in the Smith home on December 9 at the time the robbery occurred. The substance of her testimony was that three black males entered the premises, struck Smith in the head with a gun, and committed a robbery. It was her previous testimony that she knew all three of the robbers and identified them as Cashley Woods, John Lomax, and Danny Williams. Prior to the trial, the prosecution informed the trial judge that Mary Ellen Bagby, a subpoenaed prosecution witness, had stated that she was not going to testify because she could not remember anything that occurred. The prosecutor moved the court to declare Bagby a hostile witness and that the State be permitted to ask her leading questions as to her prior testimony. Lomax and Williams vigorously objected to the admission of Bagby’s prior testimony because they were not present and had no opportunity to cross-examine her at Woods’ preliminary hearing. They pointed out that Mary Ellen Bagby did not testify at their preliminary hearing but only at the preliminary hearing of Cashley Woods. The court ruled that the prosecutor could cross-examine the witness on her prior inconsistent statements, if it appeared during the course of the direct examination that she was a hostile witness. When Mary Ellen Bagby took the witness stand, she was evasive and in response to all questions as to what occurred on December 9, 1978, testified that she did not remember anything. The prosecutor then proceeded to question Bagby in regard to her Woods preliminary hearing testimony. The prosecutor would read the question and answer which Bagby gave at the preliminary hearing. Her response at the trial was always the same; she did not remember or recall either the question or the answer. When it came time for defense counsel to examine the witness, the witness again answered that she did not remember anything.
The record reflects that Bagby’s memory wás adequate as to other events but she claimed a complete loss of memory as to the identification of the three defendants and the happenings that occurred on December 9 at Leon Smith’s residence. It is the defendants’ contention that the introduction of Bagby’s prior statements into the trial violated their right of confrontation of witnesses under the United States and Kansas Constitutions. They rely on Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965); State v. Hill, 211 Kan. 287, 507 P.2d 342 (1973); and State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969).
In State v. Terry, 202 Kan. 599, this court recognized that, under both the United States and Kansas Constitutions, a defendant charged with crime is entitled to a right of confrontation. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. A similar provision in Section 10 of the Bill of Rights of the Kansas Constitution provides that in all prosecutions, the accused shall be allowed to meet the witnesses face to face. In Terry, we stated that the basic and primary reason underlying the constitutional “confrontation” rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him. Pointer v. Texas, 380 U.S. 400. It also should be noted that, under K.S.A. 60-460(a), a statement, previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, is admissible as an exception to the hearsay rule, provided the statement would be admissible if made by declarant while testifying as a witness.
In State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), K.S.A. 60-460(a) was considered in light of a criminal defendant’s constitutional right of confrontation. In Fisher, this court held that the admission of a witness’ out-of-court statement does not violate the right of confrontation, guaranteed by the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Bill of Rights, as long as the declarant has been called and testifies as a witness and is subject to full and effective cross-examination. We emphasized that, in a criminal proceeding, the declarant must testify at the trial before testimony of hearsay evidence can be admitted under 60-460(a). In Fisher, it was held to be an abuse of discretion for the district court to find Mrs. Fisher was a turncoat witness without her first testifying contrary to her prior statements.
An exception to the confrontation requirement is that where a witness is unavailable at the trial and has given testimony at a previous judicial proceeding against the same defendant which was subject to cross-examination by that defendant, the testimony of such witness may, upon a proper showing and foundation, be introduced at the subsequent proceeding. This exception has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded in the previous hearing provides substantial compliance with the purposes behind the confrontation requirement. State v. Terry, 202 Kan. 599, Syl. ¶4. This exception is not available, however, where the absent witness’ testimony was given at prior judicial proceedings involving other parties, where the accused was not a party to the prior trial and was thus given no opportunity to confront or cross-examine the witness either at the prior trial or at his own subsequent trial. Nilva v. United States, 352 U.S. 385, 1 L.Ed.2d 415, 77 S.Ct. 431, rehearing denied 353 U.S. 931 (1957). The Supreme Court of the United States has held that if a witness who testifies at a preliminary hearing is absent from the accused’s trial, it violates the accused’s right of confrontation to admit into evidence at the trial a transcript of the witness’ preliminary hearing testimony where the accused had not been provided an adequate opportunity to cross-examine the witness at the preliminary hearing. Pointer v. Texas, 380 U.S. 400.
In the case now before us, Mary Ellen Bagby did not testify at the preliminary hearing of the defendants, Lomax and Williams, so as to afford them an opportunity to subject her to cross-examination. Her transcribed testimony, used by the State in this case, was her testimony at the preliminary hearing of Cashley Woods in which counsel for defendants, Lomax and Williams, did not participate. In order for such hearsay testimony to be admitted under K.S.A. 60-460(a) in a criminal proceeding against Lomax and Williams and in order to preserve their right of confrontation, it was necessary for the trial court to find that Mary Ellen Bagby was present at the hearing and subject to cross-examination in regard to her prior statement and its subject matter. This leads to the question concerning when and under what circumstances a witness is “available.” There are a number of cases which provide a clear answer to this question.
In State v. Oliphant, 210 Kan. 451, 502 P.2d 626 (1972), it was held that where, at the trial, a declarant claims his privilege against self-incrimination, he is not available for cross-examina tion within the meaning of K.S.A. 60-460(a). In State v. Stewart, 85 Kan. 404, 116 Pac. 489 (1911), the witness, Stewart, was present at the trial but claimed his statutory privilege and declined to testify against his wife. He had voluntarily testified in the preliminary hearing in her presence. There the accused was given a full opportunity to cross-examine him and to test the accuracy and truth of his statements. His prior testimony at the defendant’s preliminary hearing was admissible only if the witness was unavailable to testify. The court held that, under the circumstances, the testimony of the witness, Stewart, was just as unavailable as if he had walked over the state line where process could not be served upon him. In Stewart, the court observed that the admissibility of former trial testimony does not depend so much on the presence of the witness as it does on the availability of the testimony. Where a witness actually testifies at the trial about the subject matter of his prior statement, he is obviously available for cross-examination as required by K.S.A. 60-460(a). See for example State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975).
In State v. Potts, 205 Kan. 47, 468 P.2d 78 (1970), a witness for the State, who had previously given a statement as to the circumstances of a robbery, took the stand. Most of his answers were extremely evasive. To some questions, he answered that he did not know, or that he could not remember. Counsel for the State requested permission to ask leading questions. The court declared the witness hostile and evasive and granted such permission. The defendant objected to the use of the witness’ prior statements to attack his credibility, contending that the reading of the questions and answers from the former statement denied the accused his constitutional right to confront a witness testifying against him. The State conceded that the prior statements could not be used as direct evidence against the defendant but took the position that the statements could be used to impeach the witness. The court looked carefully at the testimony of the witness Sanders and held that there was no error in using the statements on cross-examination because the witness’ testimony was at least in part affirmative, contradictory, and adverse to the State. In syllabus ¶3, in Potts it is stated as a principle of law that the mere fact that a witness has failed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what he was expected to testify, but the testimony given must be affirmative, contradictory, and adverse to the party calling him. The clear holding of Potts is that evidence of prior hearsay statements cannot be used to impeach a witness who simply refuses to testify or testifies that he cannot remember anything. In State v. Terry, 202 Kan. at 603, two witnesses, who had previously testified at Terry’s preliminary hearing flatly refused to testify at the trial although granted immunity. Under those circumstances, we held that the testimony of each witness was just as “unavailable” as though his physical presence could not have been procured.
Certain federal cases also hold that where a prosecution witness refuses to take an oath or refuses to give testimony of any sort or responds with answers such as, “I don’t recall” or “I don’t know,” his prior hearsay statements are not admissible under the constitutional confrontation rule. In United States v. Fiore, 443 F.2d 112 (2nd Cir. 1971), the court held that prior grand jury testimony of a witness who refused to testify at a subsequent trial was not admissible. Pointing out that the witness was not subject to cross-examination by the defendant because of his refusal to testify, the court stated that the admission of his grand jury testimony violated not only the hearsay rule but also the confrontation rule of the Sixth Amendment. In Fiore, the witness was placed on the stand by the prosecutor and, when asked if he had previously testified before the grand jury, answered, “I don’t remember.” There followed a protracted examination in which the prosecutor read portions of the grand jury testimony framed by the questions, “Were you asked the following questions and did you give the following answers?” The witness invariably gave such answers as, “I might have” or “I don’t know whether I did or not.” This line of questioning was held to be reversible error on the basis that the witness was not available for cross-examination as required by defendant’s constitutional right of confrontation.
In United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977), the court reversed a conviction for marijuana possession, holding that the grand jury testimony of a coconspirator who refused to testify at the trial was not admissible hearsay. The witness had already been convicted, was granted immunity, and was ultimately found in contempt when he refused to testify. The case was reversed on the basis that the witness was unavailable as a witness under Fed. R. Evid. 804(a). The court did not consider it necessary to consider the defendant’s argument that the introduction of such evidence violated his right to confrontation of witnesses. In the opinion in Gonzalez, reference is made to United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied 431 U.S. 914 (1977), where the court held admissible the grand jury testimony of a witness who refused to testify because of threats directed against him by the defendant Carlson. The district court made a specific finding in that regard. On appeal, the court in Carlson held that the defendant Carlson had waived his right of confrontation since the witness’ refusal to testify was procured by the accused. The court in Gonzalez refused to apply the exception stated in Carlson for the reason that there were no threats of harm directly attributed to defendant Gonzalez. It is important to note that, in the case now before us, there has been no finding by the trial court that the refusal of Mary Ellen Bagby to testify was the result of threats made to her by the defendants, Lomax and Williams.
Applying the basic principles discussed above to the facts of the case now before us, we have concluded that the witness, Mary Ellen Bagby, was not available for cross-examination by the defendants, Lomax and Williams. Hence, it was error to admit the prior testimony of Bagby presented at the preliminary hearing of Cashley Woods where the defendants, Lomax and Williams, were not afforded the right of cross-examination. Mary Ellen Bagby was obviously a recalcitrant witness from the beginning. She testified at the Woods preliminary hearing only when she was threatened with punishment for contempt. When called as a witness at the trial of Lomax and Williams, she again refused to testify stating that she could not recall what happened. Although she failed to testify as hoped for by the State, her testimony was not affirmative, contradictory, or adverse to the party calling her as required by State v. Potts, 205 Kan. 47. She simply refused to testify, claiming that she could not remember. We interpret the evidentiary record to establish a clear case where a witness simply refused to testify at the trial, using as a vehicle a claim that she could not remember what happened. This is not a case where a witness, acting in good faith, was unable to testify as to the subject matter of her prior statement because, through no fault of her own, she had lost her memory in regard to such events. In view of the uncontradicted record before us, we are bound to follow the decisions of this court and of the federal courts which are discussed above. The prior testimony of Mary Ellen Bagby was not admissible for the reason that, although present at the hearing, she was not available for cross-examination. The admission of Bagby’s testimony violated the defendants’ right to confrontation as provided for in the United States and Kansas Constitutions. The case must, therefore, be reversed on this point.
The judgment of the district court is reversed and the case is remanded to the district court with directions to grant the defendants a new trial. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by the plaintiff, Citizens State Bank of Shawnee, Kansas, from an order of the Johnson County District Court granting summary judgment to three defendants, Shawnee State Bank, Leawood National Bank, and Deluxe Check Printers, Inc. The parties will be referred to as Citizens, Shawnee, Leawood, and Deluxe, respectively. Citizens is seeking to recover $41,000 which it lost as a result of an insufficient funds check written by John R. Martin. The printed check form which Martin used had an erroneous magnetic bank routing number on it; this caused delay in the collection process.
Issues raised include whether the trial court properly interpreted and applied the bank clearinghouse rules; whether criminal acts were an intervening and thus direct cause of the loss; and whether summary judgment was appropriate. A statement of the facts is necessary to an understanding of the issues.
Modern bank checks have printed thereon the routing number of the bank on which they are drawn. These numbers are magnetically encoded. The bank routing number facilitates the high speed, automated handling of large numbers of checks each day by clearinghouses, so that the checks may be machine processed and routed expeditiously to the bank on which each is drawn. An error in the printed magnetic bank routing number will cause a check to be sent to the wrong bank, thus delaying the clearing process.
John R. Martin opened an account in the Shawnee State Bank in May, 1974. Checks for the account were printed by Deluxe; these included Check No. 140, which is the subject of this suit. Martin discovered that these checks did not clear promptly because of an error in the bank routing number. Deluxe had printed 0138, Leawood National’s number, instead of 1038, Shawnee State’s number, on Martin’s checks. Martin called this to the attention of Shawnee; new checks for Martin were ordered from Deluxe. These, encoded with the correct number, were printed and mailed to Martin on June 4, 1974. Deluxe also sent Martin a form letter which asked him to destroy the earlier checks. He destroyed some of them, but retained several — including Check No. 140.
After June 5, 1974, when Martin presumably received the new checks, he wrote eight checks on the Shawnee account, using the “old” checks encoded with Leawood’s bank routing number. The numbers, dates, and amounts of these checks are as follows:
Check #106 October 10, 1974 $12,000.00
Check #107 October 25, 1974 12,000.00
Check #108 November 7, 1974 74,253.00
Check #113 December 26, 1974 1,000.00
Check #129 October 9, 1974 97,200.00
Check #131 July 14, 1975 2,400.00
Check #138 January 3, 1977 5,000.00
Check #140 January 12, 1977 41,000.00
All except Check No. 140 were honored; funds were on deposit in the Shawnee account when the first seven checks reached Shawnee for payment.
The history and clearing sequence of Check No. 140 and the chronology of events are as follows: Martin wrote the check on Wednesday, January 12,1977, and deposited it on that date to his company account, Martin Construction and Realty Company, at Citizens State Bank. Citizens sent the check to the Greater Kansas City Clearing House. Because of the erroneous bank routing number, the clearinghouse sent the check to Leawood on Thursday, January 13. Leawood returned the check to the clearinghouse where it arrived on Monday, January 17. It was cleared as a low speed (manual) item to Shawnee. On Tuesday, January 18, Shawnee attempted to give telephone notice of dishonor; calls were made to the First National Bank of Kansas City, Missouri (which had handled the item during the clearing process) and to Leawood, but no call was made to Citizens because its endorsement on the check was not legible. Also on January 18, Shawnee dishonored the check and returned it to the clearinghouse because of insufficient funds in the account on which it was drawn.
Meanwhile, also on Tuesday, January 18, Citizens honored a check written by Martin on the Martin Construction and Realty account in the amount of $41,000; this depleted the Martin Construction account, leaving a balance of $37.59. The clearinghouse, upon receiving Check No. 140 back from Shawnee, erroneously returned it to Leawood. On Wednesday, January 19, Leawood attempted to locate the first endorser of Check No. 140. It called Citizens; the substance of that telephone call, however, is disputed. Leawood returned the check to the clearinghouse on January 20, and on Friday, January 21, the check, marked “insufficient funds,” was returned by the clearinghouse to Citizens.
On the following Wednesday, January 26, and pursuant to one of the rules of the Greater Kansas City Clearing House Association, Citizens wrote to the executive director of the clearinghouse as follows:
“Enclosed is a photo copy of the check in amount of $41,000.00 drawn by John R. Martin ... on the Shawnee State Bank which has been returned to us. . . .
“[OJur transit number 83-0291 does appear plainly near the center of the check, providing a reasonable means by which our bank could have been notified by the drawee bank that this check was being dishonored. I believe that rule VIII, 9 requires that the drawee bank ‘attempt to give telephone notice to the first member or associate member endorsing the item’. It is my understanding that no such attempt was made ....
“We request that an audit be made of the route this item has taken and the timeliness and appropriateness of action on the part of each handler of the item.”
The clearinghouse concluded its audit and reported on January 31 that:
“Our records indicate that this item was handled correctly by all banks involved. This handling includes the clearing and return of the item to your bank.
“. . . The incorrect routing was a result of the incorrect MICR encoding done by the check printer.
“Concerning the giving of the necessary telephone notice of dishonor, Philip Treas of Shawnee stated to me that on January 18, 1977, his personnel made telephone calls to the First National Bank of Kansas City and the Leawood National Bank. The calls were made to the banks because your endorsement was at that time no longer legible while theirs was. On that basis and after having studied the actual item in question, we feel the Shawnee bank made the attempt as set out in our Rule VIII, Section 9.
“As a result of our audit we feel this item was handled correctly, and your bank must honor the credit requested by the Shawnee State Bank.”
Citizens commenced this action by filing a four-count petition on April 28. Count I seeks recovery against Martin and Martin Construction and Realty Company for $41,000 actual and $10,000 punitive damages, based upon fraud. Plaintiff obtained a default judgment against Martin and Martin Construction; no appeal was taken from that judgment. Martin has since been convicted of felony theft on charges arising out of the giving of Check No. 140, and he has filed bankruptcy proceedings.
Count II of the petition seeks damages of $41,000 as against Deluxe based upon breach of implied warranties; this was later amended to include a claim of breach of duty arising from contract.
Count III seeks damages of $41,000 against Shawnee for negligent failure to give telephone notice to Citizens when Shawnee dishonored the check, and for negligent failure to recall the erroneously encoded checks.
Count IV seeks damages of $41,000 from Leawood for negli gent failure to notify Citizens on January 13 of the misrouting of the check and the consequent delay in clearing.
We should note that although Citizens earlier requested a clearinghouse audit to determine the timeliness of action on the part of each handler of the item, no claim is advanced in the petition or in this appeal that either Leawood or Shawnee was dilatory or failed to conform to the “midnight deadline” prescribed by the U.C.C. See K.S.A. 84-4-104(1)(h); 84-4-202(2).
Answers and cross-claims were filed, discovery was completed, and motions for summary judgment were filed by Citizens against Deluxe, Shawnee, and Leawood, and by Deluxe, Shawnee, and Leawood against Citizens. The motions were briefed and argued. The trial judge, in a carefully prepared and comprehensive memorandum, reviewed the undisputed facts and concluded as a matter of law:
“1. The rules of a clearinghouse measure the rights and duties of the clearinghouse, and the members; these rules have the force of law between the associated banks. The determination of the Greater Kansas City Clearinghouse estops the plaintiff bank against the defendant banks for any negligence in handling check No. 140 (see Rule XIV [2]) ....
“2. Any negligence of defendant Deluxe in printing or recalling the checks in question and any negligence of defendant Shawnee in recalling the checks in question was superseded by the criminal acts of defendant Martin. The criminal acts of defendant Martin were the direct cause of plaintiff’s loss.
“3. The plaintiff cannot recover against the defendant Deluxe under the theory of implied warranty (K.S.A. 84-2-313, et seq.). The plaintiff was not a purchaser nor is the plaintiff a ‘natural person’.”
Judgment was entered denying the motion of Citizens and granting the motions of Deluxe, Shawnee, and Leawood for summary judgment. This appeal followed.
We turn now to the first issue: whether the trial court properly interpreted and applied Clearing House Rule XIV (2) as it may apply to Shawnee and Leawood. Citizens, Shawnee, and Leawood are all members of the Greater Kansas City Clearing House Association; Deluxe, of course, is not. Various rules of the association and several sections of the U.C.C. are here involved.
Article 4 of the Uniform Commercial Code, K.S.A. 84-4-101 et seq., governs bank deposits and collections. The Code, however, provides for variation of article 4 by agreement, and thus recognizes the applicability of clearinghouse rules by which member banks are bound. K.S.A. 84-4-103 provides in applicable part:
“(1) The effect of the provisions of this article may be varied by agreement except that no agreement can disclaim a bank’s responsibility for its own lack of good faith or failure to exercise ordinary care or can limit the measure of damages for such lack or failure; but the parties may by agreement determine the standards by which such responsibility is to be measured if such standards are not manifestly unreasonable.
“(2) Federal Reserve regulations and operating letters, clearinghouse rules, and the like, have the effect of agreements under subsection (1), whether or not specifically assented to by all parties interested in items handled.
“(3) Action or nonaction approved by this article or pursuant to Federal Reserve regulations or operating letters constitutes the exercise of ordinary care and, in the absence of special instructions, action or nonaction consistent with clearinghouse rules and the like or with a general banking usage not disapproved by this article, prima facie constitutes the exercise of ordinary care.”
The rules of the Greater Kansas City Clearing House Association provide in part as follows:
“Although non-machine processable items will be accepted for clearing at the Clearing House, members should use their best efforts to reduce the incidence of non-machine processable items so submitted. In no event shall a member permit its customers to consistently use items which are non-machine processable.” Rule II (2).
“The giving of any necessary notice of dishonor or protest of dishonor shall be the responsibility of the drawee bank. No notice of dishonor or protest of dishonor shall be given or required on a dishonored item of less than $1,000.00. In addition to any other notice of dishonor with respect to items for $1,000.00 or more .... the drawee bank shall within a reasonable time after the decision to dishonor an item has been made, attempt to give telephone notice to the first Member or Associate Member indorsing the item if such clearing day is a banking day for such indorsing bank.” Rule VIII (9).
“The Manager shall upon the request of any Member or Associate Member make a determination whether with respect to an item or items which are proper matter for clearing at the Clearing House delay in taking any action is excusable or permitted by applicable provisions of law, regulations of the Federal Reserve Board of Governors or operating letters of the Federal Reserve Bank of Kansas City. As between the members of the Association and any other persons whose rights are subject to the Rules of this Association, such determination shall be final and binding . . . .” Rule XIV (2).
Also of import in this discussion is K.S.A. 84-4-202, which provides in applicable part:
“(1) A collecting bank must use ordinary care in
“(e) notifying its transferor of . . . delay in transit within a reasonable time after discovery thereof.”
K.S.A. 84-4-105 includes several definitions which are helpful. These are:
“(a) ‘Depositary bank’ means the first bank to which an item is transferred for collection even though it is also the payor bank;
“(b) ‘Payor bank’ means a bank by which an item is payable as drawn or accepted;
“(c) ‘Intermediary bank’ means any bank to which an item is transferred in course of collection except the depositary or payor bank;
“(d) ‘Collecting bank’ means any bank handling the item for collection except the payor bank . . .
Briefly stated, Citizens contends that the trial court erred in its first conclusion of law in finding that the audit determination by the clearinghouse resolves not only the issues of untimely handling in the clearing process on the part of Leawood and Shawnee, but that it also resolves other negligent conduct claimed by Citizens: failure of Shawnee to give Citizens telephone notice of dishonor as required by Clearing House Rule VIII (9), and failure of Leawood to give Citizens telephone or other notice of delay as required by K.SA. 84-4-202(l)(e). Citizens does not challenge the clearinghouse determination of timely handling.
The Clearing House audit rule, quoted above, would appear to apply to delay only. It provides that “[t]he Manager shall upon . . . request . . . make a determination whether . . . delay in taking any action is excusable or permitted.” Citizens, however, did not limit its request to a determination of delay only. It spelled out its claim that the drawee bank, Shawnee, made no attempt to notify Citizens of dishonor, as it was required to do under Clearing House Rule VIII (9), and it sought a determination of both “the timeliness and appropriateness of action on the part of each handler of the item.” The audit report found that the item was handled “correctly” as well as “timely” by all banks involved, and it specifically found that Shawnee made the attempt to give telephone notice required by Rule VIII (9). The audit report, therefore, exonerates all banks involved from responsibility for claimed delay in handling, and it exonerates Shawnee from Citizens’ claim that it violated Rule VIII (9) in failing to give telephone notice to Citizens.
But does the report absolve Leawood from liability for failure to notify Citizens of delay in transit? The clearinghouse was not specifically asked to consider that matter, the audit report of the clearinghouse did not mention any duty on the part of Leawood to give notice of delay, and the audit rule which provides the contract basis and framework for arbitration makes no specific mention of the giving of notice. It does encompass delay “in taking any action.” Does, this include failure to give required notice? We think that it does, and that delay in giving a required notice, whether of delay, loss, or dishonor, is within the scope of Clearing House Rule XIV (2). But from the record before us, we cannot tell whether the matter was considered in the preparation of the audit report.
Therefore, in order to determine whether the trial court erred or was correct in entering summary judgment on Citizens’ claim against Leawood for failure to give notice, we must determine Leawood’s status and whether it had a duty to give notice of delay. K.S.A. 84-4-202 requires a collecting bank to use ordinary care in notifying its transferor of delay in transit. Is Leawood a “collecting bank” under the definition contained in K.S.A. 84-4-105(d)?
A “collecting bank” which handles an item for collection makes various warranties to the payor bank. K.S.A. 84-4-207. Imposed upon it also are the various responsibilities enumerated in K.S.A. 84-4-202, including the duty to notify its transferor of loss or delay in transit.
What was Leawood’s position in the chain of events before us? Citizens was the “depositary bank,” the first bank to which the item was transferred by its depositor. Shawnee was the “payor bank,” on which the item was drawn, and by which it was payable. Leawood did not handle the item for collection; it was a third party to whom the item was delivered by mistake because of the encoding error. It may fit within the broad definition of an “intermediary bank,” a bank to which the item was transferred in the course of collection; but it was a wholly unnecessary and unintended transferor. It was not a correspondent bank, one with whom a forwarding bank ordinarily maintains a deposit account and to whom it sends checks for forwarding and collection. Leawood had no function to perform in the clearing of Check No. 140. It could not pay the check, since it was drawn on another bank and not on Leawood. We hold that Leawood was not a “collecting bank,” as that term is defined in K.S.A. 84-4-105, and therefore it had no duty to give notice of delay to its transferor or to Citizens pursuant to K.S.A. 84-4-202(1)(e). Its sole duty was to return the check promptly to the clearinghouse; this it did. See Sterling Nat. Bank v. Savings Banks Trust Co., 44 N.Y.2d 869, 407 N.Y.S.2d 476, 378 N.E.2d 1046 (1978).
Assuming, arguendo, that Leawood was a “collecting bank,” was there “loss or delay in transit” within the meaning of K.S.A. 84-4-202(l)(e), necessitating the giving of notice? We have been cited no case, and our research has disclosed none, requiring that notice of delay in transit be given when a check is merely missent to the wrong bank. Surely, among the thousands of checks transferred daily, there must be a small percentage, resulting in a sizeable number, which are sent to the wrong banks. So long as these are returned and again put in the proper channels within the midnight deadline, no serious delay is encountered. As a practical matter, these checks are no doubt returned as soon as written notice would reach the transferor. The “loss or delay in transit” encompassed by the statute is serious and extended — as where a carrier vehicle is hijacked or destroyed, a check is lost in the mail, or the like, and it would appear to apply only to loss or delay during the physical transfer of the item between banks or loss while in a bank’s possession. See 6 Michie, Banks and Banking, ch. 10, § 66, p. 167 (rev. perm. ed. 1975). We conclude that under the circumstances disclosed by this record, no duty to give notice of delay in transit arose. Summary judgment was properly entered in behalf of Leawood.
We turn now to Citizens’ claim that the trial court erred in its ruling that any negligence of Deluxe in printing or recalling the checks and any negligence of Shawnee in recalling the checks were superseded by Martin’s criminal acts, which acts were the direct cause of the loss. We will consider first the effect of the rule of intervening cause as applied to Deluxe.
Restatement (Second) of Torts § 448 (1965) appears directly in point. It reads:
“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”
This court has recognized that one person’s negligence is not the proximate or direct cause of an injury where there is a new, separate, wholly independent, and efficient intervening cause of the injury and the loss. Unforeseen acts of gross and wanton negligence were found to be such an intervening cause, and to make the earlier negligence of other persons the remote cause to which no liability attaches, in Hickert v. Wright, 182 Kan. 100, 108, 109, 110, 319 P.2d 152 (1957). The rule is summarized in Syllabus ¶ 4:
“Where two distinct causes of an injury and damage are successive in time, the original act being simple negligence and the subsequent act being gross and wanton negligence, it is held that the subsequent act is an independent and efficient intervening cause which produced the injury and damage . . . .”
And in Sly v. Board of Education, 213 Kan. 415, 516 P.2d 895 (1973), we spoke of intervening criminal acts, saying:
“The general rule is that when, between an original negligent act or omission and the occurrence of an injury, there intervenes a willful, malicious, and criminal act of a third person which causes the injury but was not intended by the person who was negligent, and could not reasonably have been foreseen by him, the causal chain between the negligence and the accident is broken.” Syl. ¶ 9.
Assuming that Deluxe was originally negligent in printing and delivering Check No. 140 with the erroneous bank number, that act preceded Martin’s criminal conduct by some two and one-half years. Martin’s act — though made possible by the printing error — was a separate, distinct, and wholly independent cause of the loss. Deluxe had no knowledge that Martin was continuing to use these erroneously encoded checks and to negotiate them for amounts from $1,000 to $97,200 during the remainder of 1974, and during 1975, 1976, and 1977. It had no reason to suspect criminal action by Martin any more than it might suspect possible criminal action by anyone whose checks contained a printing error. No doubt the vast majority of depositors would not yield to the temptation to take criminal advantage of an error in the bank routing number on their personal checks; doubtless few would appreciate or recognize the potential for such conduct.
Comment (a) to § 448 states in substance that the rule of § 448 applies when the actor has no reason to expect that the third person would inflict intentional harm. Comment (b) states two exceptions, neither of which is applicable here. We conclude that the rule set forth in § 448 applies as to the claim of Citizens against Deluxe; that its negligence was remote; and that Martin’s criminal act was the direct cause of the injury and loss.
K.S.A. 84-2-318 extends a seller’s (Deluxe’s) express or implied warranties to any natural person who is in the family or house hold of his buyer (Martin) or who is a guest in his home. Clearly Citizens does not come within the statute, and the trial court was correct in holding that plaintiff cannot recover against Deluxe under the warranty theory.
Next we consider the effect of the intervening cause rule as applied to the claimed negligence of Shawnee in failing to recall or otherwise stop Martin from continuing to use the erroneously encoded checks. Shawnee had actual notice that Martin was continuing to use the checks for sizeable transfers of cash. It knew that the checks were not machine processable; that the checks could not go through the clearing and collection process without manual intervention. It was, or should have been, aware of the built-in delay and the potential for harm. It had an obligation under Clearing House Rule II (2), which reads:
“Although non-machine processable items will be accepted for clearing at the Clearing House, members should use their best efforts to reduce the incidence of non-machine processable items so submitted. In no event shall a member permit its customers to consistently use items which are non-machine processable.”
One obvious purpose of the rule is the promotion of speed and certainty in collection; this is for the benefit of all member banks. The check at issue is, in form, machine processable; but it is in actual fact not so processable. An oversize check, or one without a bank routing number, or one which because of some physical impairment is not machine readable, would have to be manually cleared. Such checks, however, would in all probability be manually cleared to the correct drawee bank initially; they do not contain the built-in delay which is certain with checks of standard size containing an erroneous magnetically encoded bank routing number, which automatically are routed by the clearinghouse to the wrong bank.
Two other sections of the Restatement (Second) of Torts, in addition to § 448, are relevant to the consideration of Shawnee’s alleged conduct. Sections 302 B and 449 read as follows:
“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” § 302 B.
“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” § 449.
Comments a and b to § 449 are also instructive and helpful. They read:
“a. This Section should be read together with § 302 B, and the Comments to that Section, which deal with the foreseeable likelihood of the intentional or even criminal misconduct of a third person as a hazard which makes the actor’s conduct negligent. As is there stated, the mere possibility or even likelihood that there may be such misconduct is not in all cases sufficient to characterize the actor’s conduct as negligence. It is only where the actor is under a duty to the other, because of some relation between them, to protect him against such misconduct, or where the actor has undertaken the obligation of doing so, or his conduct has created or increased the risk of harm through the misconduct, that he becomes negligent.
“b. The happening of the very event the likelihood of which makes the actor’s conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other’s exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity.”
Applying § 449 to the claim of negligence on the part of Shawnee in failing to recall the checks, appellant claims that Shawnee by virtue of its membership in the Greater Kansas City Clearing House Association owed a duty to member banks, including Citizens, to protect against loss from the use of non-machine proces sable checks under Clearing House Rule II (2).
We have held that where there is a duty to protect others from danger, the fact that intervening acts are innocent, negligent, intentionally tortious, or criminal is immaterial; such conduct does not excuse or make remote the negligent conduct of the person who owed the duty to protect. In Cooper v. Eberly, 211 Kan. 657, 665, 508 P.2d 943 (1973), we cited with approval and we applied § 449 and Comment b of the Restatement (Second) of Torts. Justice (now Chief Justice) Schroeder, writing for a unanimous court, said:
“As applied to the facts in this case the likelihood that a third person may open gate No. 6 and leave it open, thereby permitting Eberly’s horses to escape, makes Eberly’s conduct in failing to padlock gate No. 6 and in failing to post ‘no hunting or trespassing’ signs to prevent the happening of such event negligent. It is immaterial whether the opening of gate No. 6 by a third person was innocent, negligent, intentionally tortious or criminal.
“On the record here presented Eberly owed a duty to the plaintiffs to post his premises with ‘no hunting or trespassing’ signs and to padlock gate No. 6 which might be opened to unfenced adjacent land leading to a highway. Eberly’s failure to comply with such duties, and the happening of the very event the likelihood of which made his conduct negligent, subjects him to liability.” (pp. 665-666.)
Shawnee had a duty under Clearing House Rule II (2) which Deluxe did not share. Whether Shawnee was negligent in failing to recall the checks or take other steps to prevent their use after it had knowledge that Martin was using the checks, and whether under the facts and circumstances of this case there was a likelihood that a third person or another bank would be injured by the automatic delay in processing, are issues which may not be disposed of as a matter of law. We hold that the trial court erred in doing so.
We have found few cases involving encoding errors; one of these, however, appears helpful. In Exchange Bank of St. Augustine v. Florida Nat. Bank, 292 So. 2d 361 (Fla. 1974), a check drawn on a blank form was deposited at plaintiff bank, and forwarded to the collecting bank which printed an erroneous magnetic bank code. The improper code resulted in the check becoming lost for almost three years. The drawer refused to pay when the loss was brought to his attention. Within a month and a half of writing the check the drawer’s account had been reduced below the amount of the draft. The collecting bank (the encoding bank), in accord with usual practices, charged the depositary bank with the loss, as the check was never forwarded to the drawer bank. The depositary bank brought suit against the collecting bank. A jury found the miscoding the proximate cause of the depositary bank’s loss. After reversal at an intermediate appellate level, the Florida Supreme Court affirmed the trial court. See also State, ex rel. Gabalac, v. Firestone Bank, 46 Ohio App. 2d 124, 346 N.E.2d 326 (1975); Ga. R. Bank &c. Co. v. First Nat. Bank, 139 Ga. App. 683, 229 S.E.2d 482 (1976), affirmed 238 Ga. 693, 235 S.E.2d 1 (1977); and Brady on Bank Checks §§ 12.6, 15.24 to 15.28 (5th ed. Bailey 1979).
In summary, we hold that the trial court was correct in entering summary judgment against plaintiff and in favor of Deluxe, against plaintiff and in favor of Shawnee on the issue of notice of dishonor, and against plaintiff on its claim against Leawood for failure to give notice of delay, but the trial court erred in entering summary judgment against plaintiff on its claim against Shawnee for failure to recall the checks or take other steps to prevent Martin from using them.
The judgment of the trial court is therefore affirmed in part and reversed in part, and the case is remanded to the trial court with directions to proceed in conformity with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Miller, J.:
This is an election contest arising out of a school board election. Margaret Berger, • a registered voter in member district No. 3, successfully contested the election of Fred Massey to position No. 3 on the board of education of Unified School District No. 469. He appeals, contending that the trial court erred as a matter of law.
An election contest is a special statutory procedure governed by laws which were extensively changed by Laws of 1978, ch. 138. The sections here applicable now appear as K.S.A. 1979 Supp. 25-1434 to 1452, inclusive.
The facts are not disputed. The territory within Unified School District No. 469 is divided into three separate areas known as “member districts.” Two members of the school board are elected from each of the three member districts, and one member is elected at large; the seven members so elected comprise the board.
Fred Massey went to the Leavenworth County Clerk’s office one day before the filing deadline. A deputy clerk advised him that his residence was in member district No. 3, and Mr. Massey then paid the fee and filed for election to position No. 3. See K.S.A. 1979 Supp. 25-2020. After the filing deadline had passed, Mr. Massey discovered that he had filed for the wrong position. He lives, and at all times material herein has lived, in member district No. 2. Mr. Massey was the only candidate for position No. 3; he received some 600 votes at the regular election held on April 3, 1979. Three days later, a certificate of election was issued to him by the Leavenworth County Clerk; and within five days Margaret Berger, as contestant, filed a notice of contest with the Clerk of the Leavenworth District Court. Other parties to the proceeding are Mr. Massey, as contestee; the county clerk; and the unified school district, which intervened.
The trial court expedited the matter. Trial was held on May 1, and on the following day the court issued a memorandum opinion. The court concluded:
“[T]hat the contestee was ineligible to hold the office to which he was elected; that the provisions of K.S.A. 25-2022a are applicable to the facts of this contested election; that the provisions of K.S.A. 25-702(a) do not apply to the facts of this contested election; that the certificate of election issued to the contestee should be invalidated and revoked; that the election insofar as the office in question is concerned was void; [and] that the board of education should be ordered to fill by appointment the position in question in accordance with the provisions of K.S.A. 25-2022 . . . .”
Several statutes should be noted:
“Subject to the limitations provided in this act, any of the three voting plans described in this section may be used in the election of board members. The three voting plans are:
“(b) Voting plan-B: All electors, who are otherwise qualified according to law, and who reside in the member district may vote in the primary election for the member positions of such member district and for the at-large member position. All electors, who are otherwise qualified according to law, and who reside in the school district may vote in the general election for all member positions, including the at-large member position, to be filled.” K.S.A. 1979 Supp. 72-8003.
“When a school district has a member district method of election the unified school district shall be divided into . . . three member districts for the three district method. . . . Each member district shall be represented on the board by one or more persons residing in the member district. ... In the three district method two members shall reside in each member district. . . .
“. . . In the three district method the member district numbers shall be ‘one,’ ‘two’ and ‘three.’ . . .
“. . . In the three district method member position numbers shall be ‘one’ and ‘four’ for member district one, and ‘two’ and ‘five’ for member district two, and ‘three’ and ‘six’ for member district three.” K.S.A. 1979 Supp. 72-8009.
“Any board [of education] shall have power to fill by appointment any vacancy which occurs thereon . . . .” K.S.A. 25-2022.
“Whenever a school district has a voting plan or method of election which provides for member districts, persons elected or appointed to be a member of the board of education of such school district shall reside in the member district corresponding to the member position to which such person is elected or appointed unless such person is a member at-large of the board of education. The member at-large may reside anywhere within the school district.” K.S.A. 1979 Supp. 25-2022a.
The trial judge found K.S.A. 1979 Supp. 25-2022a to be determinative. The contestee contended before the contest court and contends here that K.S.A. 25-702(a) is controlling; that it applies to this election; and that it cures what would otherwise be a defective election. The statute provides:
“In all elections for the choice of any officer, except the offices of governor and lieutenant governor, unless it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office; and whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.”
Appellant does not challenge the power and authority of the legislature to prescribe qualifications for school board members. Generally, the legislature is empowered to prescribe the qualifications for holding public office, providing it does not exceed its constitutional power or impose conditions of eligibility inconsistent with the constitution. The legislature’s authority to prescribe educational eligibility criteria for the office of county superintendent of instruction, an office created by the constitution without stated eligibility criteria, was upheld in Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302 (1926). We said: “When an office is created by an act of the legislature, that body has authority to name the terms of eligibility, and modify them at will.” 120 Kan. at 333. Boards of education for unified school districts are creatures of statute, and therefore the legislature may establish standards of eligibility for board members that are not inconsistent with the constitution.
In Leek v. Theis, 217 Kan. 784, Syl. ¶ 11, 539 P.2d 304 (1975), we said:
“The creation of various offices and departments of government not otherwise provided for in the Kansas Constitution is a legislative function. It is also a legislative function to determine the qualifications of the officers and by whom they shall be appointed and in what manner they shall be appointed. The Kansas Constitution contains no limitation on who may be appointed, and there is no constitutional restriction on the legislature exercising its power as it shall see fit.”
Residency requirements for election to school board positions have been considered and enforced by courts of other states. Moore v. Tiller, 409 S.W.2d 813 (Ky. 1966) directs the name of a candidate be struck from a school board election ballot because the candidate was not a legally qualified voter in the division of the district he sought to represent. The Kentucky representation scheme was similar to that considered in this appeal. Ky. Rev. Stat. § 160.180 provided that no person shall be eligible for board membership unless a voter of the district from which he is elected. Section 145 of the constitution imposed a residency requirement upon voter qualification. Ky. Rev. Stat. § 160.210 provided for county school districts to be divided into “divisions.” Ky. Rev. Stat. § 160.180 (2) provided for automatic vacation of office if the board member moved his residence from the district for which he was chosen. The court said: “Since respondent had lost his legal voter status in Division 2 [through moving his dwelling from division 2 without intent to return], he was not qualified to serve the district he sought to represent as a member of the Martin County School Board . . . .” Moore v. Tiller, 409 S.W.2d at 817.
State ex rel. Askew v. Thomas, 293 So. 2d 40 (Fla. 1974), a quo warranto proceeding, determines a school board member could not retain office after moving from the district area from which elected. The facts show Thomas was elected while residing in School Residence Area No. 1 and after election moved to School Residence Area No. 4, within the same school board district. The Florida Constitution provides for a school board comprised of five or more members elected as provided by law. The qualifications for members are statutory rather than constitutional. The Florida court rejected respondent’s suggestion “that the people would be denied their choice of her as the elected official for the office in question if the residency requirements . . . are invoked.” 293 S.W.2d at 43. The “people, through the constitution and their Legislature, thought differently in giving priority to the residency requirement.” 293 S.W.2d at 43. The court declared the position representing Residence Area One vacant.
Appellant urges K.S.A. 25-702(a) applies and corrects any deficiencies in his election. A careful examination of the cases where this statute has been held effective to sustain the majority vote despite election irregularities reveals that it has never been used to cure any irregularity which went to qualification of the candidate. The irregularities considered are:
Closing the polls at noon; custody of ballots and poll box. Morris v. Vanlaningham, 11 Kan. *269 (1873).
Defective election notice. Wood v. Bartling, Mayor, 16 Kan. 109 (1876).
Incomplete definition of precinct boundaries in order creating voting precinct. Wildman v. Anderson, 17 Kan. 344 (1876).
Ineligibility of candidate at time of election, but ineligibility removed prior to the issuance of a certificate of election and prior to taking office. Privett v. Bickford, 26 Kan. 52 (1881).
Irregularities in the ballot format. Short v. Davis, 90 Kan. 147, 132 Pac. 1172 (1913).
Irregularity in the marking of ballots. Wall v. Pierpont, 119 Kan. 420, 240 Pac. 251 (1925).
The Bickford case is the only Kansas case where K.S.A. 25-702(a) was invoked and where qualification of the candidate was challenged, and in that instance the disqualification was removed before the votes were canvassed and the certificate of election was issued. The decision did not rest upon the application of K.S.A. 25-702(a) or its predecessor. We have not overlooked other authorities cited by appellant, but find them readily distinguishable and not persuasive.
We think that the importance of geographical representation on school boards, expressed through the complex scheme for school board makeup precisely set forth in the statutes, belies any intent that nonresidency be a technical irregularity subject to correction by K.S.A. 25-702(a). That statute itself speaks of irregularities “in noticing and conducting the election.” Disqualification by nonresidency, continuing and not corrected at any stage by the candidate, is not such an irregularity.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Garver, J. :
The appellant, O. M. Keys, was prosecuted and convicted in the district court of Brown county for an illegal sale of intoxicating liquor. An examination of tlie record fails to disclose any error of the trial court to justify a reversal of the judgment. The verdict, being based upon conflicting evidence and having positive testimony to support it, will not, after its approval by the trial judge, be set aside. Error is also assigned upon the refusal of the judge to give the jury, the following special instruction :
“The testimony of spotters, that is, persons who purchase liquor with the view to inform and testify against the seller, should be taken with extreme care and suspicion.”
We think all that was either proper or necessary to be said to the jury upon that matter was covered by the general charge. In it the jury was instructed closely to scrutinize the testimony of any one who acted in the transaction as a detective or spotter, and who may have a motive for testifying to illegal sales when none was in fact made. ■ The jury was also given the usual general rules for their guidance in weighing the testimony of the witnesses and in determining their credibility. There is little, if anything, in this case upon which to base the instruction asked.
There is often, in the opinion of the writer, undue agitation about “spotter” testimony in this class of offenses, and a disposition to magnify an act which may have been inspired by an honest, unselfish desire to detect crime into such proportions as unjustly to prejudice a jury against the most reputable and truthful witness. The inquiry should be, What character of man is he who speaks from the witness-chair? His interest in or connection with the case on trial, his conduct and demeanor when testifying and his general character should be considered by the jury in passing upon his truthfulness as a witness. And when, as an informer or otherwise, he has a pecuniary or other special interest in the result of the trial, it is proper that that fact should be called to the jury’s attention. But in such cases as this, when nothing has been done to induce the course of criminal conduct which is being investigated, and the witness simply puts himself in a situation to discover the facts, there ■seems little reason to single out such act as deserving of opprobrium, and make the person doing it an object of suspicion, no matter how good his general character and standing may be. We think the defendant had a fair trial, and has no just cause for complaint of the verdict and judgment.
The judgment is affirmed.
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The opinion of the court was delivered by
Dennison, J. :
This is an action brought in the district court of Franklin county by Matilda Johnson to recover the possession of the undivided one-half of certain real estate, and to procure the partition thereof. Plaintiff alleged ownership in herself, and claimed that Mary E. Wilson, William M. Wilson and J. R. Barnett, defendants, were wrongfully withholding the possession from her. Barnett filed a disclaimer, alleg ing that lie ivas a tenant under James Davis. ■ On February 24, 1884, George W. Dawson and wife by warranty deed conveyed to James Davis and Catherine Davis lots 13, 15, and the north 19 feet of lot 17, in block 55, in the original town site of Ottawa, Franklin county, Kansas. James Davis and Catherine Davis were at that time husband and wife, and, from about the time of the conveyance above mentioned until their death, they occupied the above premises as their homestead. On February 7, 1887, Catherine Davis executed a will, which contained, among other things, the following sections:
“2. Since the homestead where I now live with my husband, James Davis, to wit, lots 13, 15, and north 19 feet of lot 17, block 55, Ottawa city, is now owned by both of us as tenants in common, each of us owning the undivided one-half thereof, and in order that my husband may have the use of said homestead, I hereby give and devise to my said husband, James Davis, the possession, use and control of all my interests in and to said homestead, for and during the natural life of my said husband, and also the use of all thé household furniture therein.
“3. I give, bequeath and devise to my sister, Matilda Johnson, and to her heirs and assigns forever, all my property of every kind and nature, both real and personal, to have, hold, use, control and dispose of as to her may seem best, including all my interest in said homestead above mentioned, and said household furniture, subject, however, to the life-estate of my said husband in the property mentioned in item 2 of this will.”
Attached to said will is the following statement made by James Davis:
“I, James Davis, the husband of Catherine Davis, having been made acquainted with the provisions of the within will and of the disposition therein made' by said Catherine Davis of her property, do hereby consent to the same. Witness my hand, this 7th day of February, 1887. Jam^s Davis.”
“We hereby certify that the said James Davis signed the above consent in our presence, this 7th day of February, 1887. Maggie Davis.
Lucy J. Latimer.
Wm. H. Clark.”
On June 23, 1888, Catherine Davis died, and, on June 25, her will, as above stated wms duly probated. The claim of the plaintiff below, Matilda Johnson, is based upon the above facts.
On December 15, 1888, James Davis executed a will, which contained among other things the following section:
“2. To Mary E. Wilson and William M. Wilson, her husband, I give, bequeath, and devise, in fee simple absolute, all the following-described real estate, situated in Franklin county, Kansas, to wit: Lots 13 and 15, and the north 19 feet of 17, in block 55, in the city of Ottawa, Franklin county, Kansas, to have and to hold, to them, their heirs and assigns, forever.”
On November 5, 1890, James Davis died, and, on November 10, 1890, his will was duly probated. The defendants below are in possession of the property, claiming title under the will of James Davis. The (jase was tried by the court without a jury, and judgment was rendered against the plaintiffs in error, defendants below, the Wilsons. They bring the case here for review.
The only question to be determined by us is, Did the will of Catherine Davis and the consent of James Davis attached thereto vest the title to the real estate in dispute in Matilda Johnson after the life-estate of •James Davis had been determined? It must be conceded that the deed from Dawson and wife conveyed to James Davis and Catherine Davis an estate in entirety in the real estate. Estates in entirety and joint tenancies are recognized by our supreme court as existing in Kansas, and, until the passage of chapter 203, Laws of 1891, the right of survivorship under the common law was in full force and effect. (Baker v. Stewart, 40 Kan. 442 ; Shinn v. Shinn, 42 id. 1; Simona v. McLain, 51 id. 160.) In estates in entirety, held by husband and wife, each owns a life-estate and a contingent estate in fee simple in the entire estate. ^The contingent estate is founded solely upon survivor-ship. The survivor takes the whole estate. The estate of the one who dies first is ended at death. The life-estate of that one is ended, and the contingency has'occurred which vests the entire estate in the survivor. The deceased never has been vested with such an estate as could have been transmitted to his or her heirs, either by will or otherwise.
In the case at bar, the following language is contained in the will of Catherine Davis: “Since the homestead where I now live with my husband, James Davis, . . • . is now owned by both of us as tenants in common, each of us owning the undivided one-half thereof. . . .” The defendant in error contends that the consent of James Davis to. the provisions of his wife’s will and the disposition of her property was, in fact, a deed, whereby he agreed to stand seized thenceforth as tenant in common with her, and that, being a tenant in common, the devise of her one-half of the property is valid. This is the pivotal point in this case. If by the will of Catherine Davis and the consent of James Davis attached thereto the estate in entirety was destroyed, and they thereafter held the estate as tenants in common, then the judgment oh the district court is correct and must be af firmed; otherwise the judgment must be reversed. If Mrs. Davis was a tenant in common with Mr. Davis, she could, with the consent of her husband, have devised her one-half to Mrs. Johnson. If she owned the estate in entirety with Mr. Davis, she could not have devised her interest therein. In the nature of things a life-estate cannot be devised. The only estate which could have been devised was the contingent estate which goes to the survivor. As Mrs. Davis was not the survivor she had no descendible estate in the homestead.
In analyzing the will of Mrs. Davis, it is clearly apparent that she was ignorant of the estate she owned in the homestead. She says that she is a tenant in common with Mr. Davis, and owns the undivided one-half of such homestead. The fact is, she was the owner of an estate in entirety with her husband. She was solicitous of securing to her husband a life-estate, and attempted to do so by the will. He already had a life-estate. Had she been fully apprised of the interest she had in the homestead, we do not know what she might have desired to do, unless we are guided by the provisions of the will. We have only to deal with what she did. At the time she was- about to make the will she owned the estate in entirety. Is the assumption in the will that as tenant in common she owned the undivided one-half thereof sufficient upon her part to change her estate in the homestead? At the time of the making of Mrs. Davis’s will James Davis owned the estate in entirety. Is his statement that he hadbeen made acquainted with the provisions of Mrs. Davis’s will and the disposition made of her property thereby, to which he consents, sufficient upon his part to change his estate in the homestead? To answer each of these questions in the affirmative, we must decide that the effect of the will of Catherine Davis was to convey to James Davis her quitclaim interest in the undivided one-half of the homestead, and that the effect of the consent signed by James Davis was to convey to Catherine Davis his quitclaim interest in the undivided one-half of the homestead; and we must" further decide that such conveyances took effect at once. If it is to take effect only upon the death of either of the makers, it is tesr tamentary in its nature, and not a conveyance. If it is to pass a present interest, although its possession and enjoyment may not accrue until some future time, it is a conveyance of contract. (Reed v. Hazleton, 37 Kan. 321.) If we determine that' Mr. and Mrs. Davis divested themselves of their estate in entirety and became owners of the homestead as tenants in common, it should clearly appear that they did so by regularly executed conveyances or by a contract legally entered into between them. There is no contention that there is any conveyance other than the will of Catharine Davis and the consent of James Davis. We must establish these instruments as conveyances of their estates in entirety upon the theory that the will and consent are a contract between them, by which each agrees to change the estate from an estate in entirety to one of tenancy in common. We fail to see how an analysis of the will and consent can be made more favorable to the claim of the defendant in error. We find Mr. and Mrs. Davis in possession of their homestead, each owning an estate in entirety in the same. Surely a person’s title to his property or his rights or estate therein cannot be divested except by some process of law or by some contract between him and another. Interpreting the will and consent as a contract, we find James Davis and his wife each seized of an estate for life and a contingent estate in fee simple in the homestead. In section 2 of the will, Mrs. Davis first assumes that she owns an interest which she does not own, and then devises James Davis a life-estate in the homestead and all the household furniture therein. In section 3, she devises and bequeaths all of her property to Matilda Johnson, including her interest in the homestead and all the household furniture contained therein, subject to the life-estate of Mr. Davis. When James Davis signed the consent, which he did in the presence of two witnesses besides the one whom he had sign for him, as he was unable to write, it must be assumed that, he did so to enable his wife to bequeath away property which she could not otherwise have done, as is provided in paragraph 7239^ General Statutes of 1889, which reads as follows :
“No man, while married, shall bequeath away from his wife more than one-half of his property, nor shall any woman, while married, bequeath away from her husband more than one-half of her property. But either may consent, in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.”
It will be noticed that the will speaks of all the household furniture and ‘ ‘ all my property of every kind and nature, both real and personal, ... including all my interest in said homestead.” Mrs. Davis was at least bequeathing away from her husband more than one-half of her household furniture, which she could not do without his consent, executed in the presence of two witnesses. It seems more reasonable to us to suppose that he signed the consent to permit her to do this, than it does to suppose that he signed it to permit her to devise away from him his own property, to wit, his contingent estate in fee sim pie in the homestead. By the writing, itself, he consents to the disposition she makes of her property. There is no consent or authority that she may devise his contingent estate in fee simple. The will devises Catherine Davis’s interest in the homestead, not James Davis’s interest. Had Catherine Davis survived James Davis, the will would have devised the interest of Catherine Davis, which would have been the entire estate in fee simple. James Davis being the survivor, Catherine Davis had no descendible interest, and the defendant in error took no interest in the homestead under her will.
If we are to construe these transactions as a contract between Mr. and Mrs. Davis, all the elements of a contract must appear. Not only must they have contracted under standingly, and their minds have met upon the same proposition, but a consideration must have passed between them. If either is to receive nothing, we cannot construe the transaction as a contract.
Admitting all the contentions of the defendant in error, we are unable to discover what consideration was to pass to James Davis. Certainly not the life-estate. It was already his. He signed the consent to permit his wife to bequeath her property which is provided for by statute, and this consent imports its own consideration ; but when we aré asked to construe that consent into a conveyance of an interest or estate in his property, the consideration therefor must appear. James Davis did not recognize the right of Matilda Johnson to the property, for, while he was in possession of the property, he made the will by which he bequeathed and devised “in fee simple absolute’’ all the homestead in question to Mary E. and William M. Wilson.
It is claimed that James Davis acquiesced in the will of his wife by giving up . the household goods to the legatee, and that although he lived more than two years after the probate of Mrs. Davis’s will he never contested the validity of it. ’ No one questions the validity of the will now. The plaintiffs in error have questioned the execution of the consent by James Davis, but we deem it unnecessary to consider that point.
The judgment of the district court is reversed, and the cause remanded, with instructions to render judgment for the defendants below.
All the Judges concurring. | [
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Tlie opinion of the court was delivered by
Garver, J.
: This case comes before us on a question of priority between certain mortgages and mechanics’ lions. The plaintiff in error, the Missouri Valley Lumber Company, furnished lumber to Aaron Yoder for the erection of buildings upon certain lots in Kansas City, Kan., for which said company claimed a first lien on the premises. The defendants in error claimed that certain mortgages executed by Yoder wore a prior lien. Yoder purchased the lots from John Reid, receiving a deed of conveyance therefor 'the latter part of September, 1889, the same being filed for record October 2, 1889. Reid obtained title from one Comstock by a deed of conveyance dated September 6, 1889. Yoder purchased the lots on time, agreeing to secure the payment of the purchase-money by mortgages on the same. Pursuant to such agreement, Yoder executed the mortgages in question, acknowledged September 24, and filed for record September 25, 1889. There is nothing in the record tending to show that Yoder had any interest in the lots, or any right to possession thereof, prior to the time when he obtained title from Reid, or that any one gave him permission to enter upon them for the purpose of making improvements. On the part of the lumber company, it was claimed that work on the lots, as the commencement of the buildings erected, was begun about August 16, 1889. On this, however, the évidence was conflicting. The court submitted to a jury certain questions, among them being one as to the time of the commencement of the buildings, which the jury answered by saying, between August 8 and August 20, 1889. The court adjudged the mortgages to be first liens, gave judgment for the amount admitted to be due the lumber company,, and made it a second lien. The judgment of the lower court must be affirmed, on the authority of Seitz v. U.P. Rly. Co., 16 Kan. 133; Lumber Co. v. Schweiter, 45 id. 207; Gelto v. Friend, 46 id. 24. We see no substantial difference in the principle involved in this case from that on which the decisions in the above cases were based. Had Yoder gone into possession before execution of the mortgages and begun the improvements with the knowledge and consent of the legal owner, different principles would be involved, and would govern in the determination of the rights of the parties. But he is not shown to have had any such right or privilege. Contemporaneously with his acquiring any title, either legal or equitable, the mortgages were given. Before that there was no time when he had an interest in the lots which he could incumber by a lien. The after-acquired title cannot relate back, under such circumstances, so as to give effect to the mechanic's lien, as against the former owner.
Again, as we are able to judge of the evidence, from merely reading it in the record, the trial judge may have wholly disregarded the answer of the jury with reference to the time of the commencement of the improvements. On that point the evidence of the plaintiff in error does not impress us as at all satisfactory. The finding of the jury was in any event merely advisory, and not binding upon the court. In the face of it, the court had a right to decide for itself all questions of fact as well as of law in the case. (Franks v. Jones, 39 Kan. 236 ; Moors v. Sanford, 2 Kan. App. 243.) In support of the, judgment, it will be-presumed that the court found, on the issues of fact, in favor of the defendants in error, so far as there was evidence to justify such finding.
The judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J. :
This case comes to this court on the pleadings, findings of fact, conclusions of law, and the judgment of the court. Each party seems to be satisfied with the findings of fact made by the court; but objection is made to the conclusions of law based on the findings of fact and on the construction put upon the contract by the court.
The city of Osawatomie, a city of the second class, through its proper officers, entered into a contract in writing with C. H. Race, by which Race undertook and agreed to furnish, erect, maintain and operate a Thomson-Houston 2,000-candle-power arc electric-light plant in said city, and operate the same for a term of eight years, the lights to be put on at sundown, except on cloudy days, then to go on earlier, as needed, and to run seven hours, until 1 o’clock a. m. For the putting in of said plant and operating the same and furnishing lights to the city, the city agreed to pay Race or his assigns $1,390 per annum, for the period of eight years, in monthly payments of $116 per month.
In order to enable Race to comply with his contract, the mayor and council of said city enacted an ordinance, by which it granted the right to Race to use free of charge the streets and public grounds of the city for the purpose of erecting his poles along and upon said streets, and in consideration of the agreement of the said Race to furnish electric lights for lighting the streets of the city of Osawatomie, upon terms and conditions to be agreed upon by special contract, the exclusive right is granted and given to said C. H. Race, his successors and assigns, for the period of eight years from the date of the passage of this ordinance, to construct and reconstruct, maintain, repair, and operate, within the corporat elimits of the city of Osawatomie, such buildings, machinery and apparatus as may be necessary or suitable for the production of electricity for use in lighting the streets, stores, halls, churches, hotels, and private houses, and all other places where light may be used in said city, and to erect and re-erect, construct, maintain, repair and operate lines of wire and other electric conductors, and their operating fixtures, on poles along and across said streets, alleys, avenues and public grounds of said city, together with suitable and necessary feeders -and service wires and other electric conductors, and to do all such other acts and things as may be necessary or proper to carry out and avail himself of the rights therein given. The plant was put in by Race and put in operation, and thereafter the contract, with the right of franchise, was transferred by Race, and by successive transfers the plaintiff below succeeded to all of the rights and interest in the franchise and electric-light plant, and under the contract, that were vested in Race.
The plaintiff below, after acquiring the right of Race under the contract, proceeded to operate the electric plant and furnish the city with the arc lights specified in the contract, to the 11th day of December. 1894, and on said day, without any fault of the plaintiff below, the power-house of the electric plant was destroyed by fire. The court finds that, from December 11, 1894, to April 12, 1895, the plaintiff was in correspondence with manufacturers of electric-light plants, for the purpose of determining whether he would or could rebuild, and for the further purpose of ascertaining and determining how, if at all, he would rebuild — whether by the purchase of new machinery, or by having his old machinery repaired and used in such rebuilding ; and also of determining of whom and where, if at all, he would purchase new machinery or procure to be repaired his old machinery, which had been injured by the fire.
The plaintiff below, in February, 1895, determined to rebuild his electric-light plant, but did not determine the manner in which he would rebuild until some time in June, and then for the first time he determined to repair the damaged machinery and use the same in rebuilding said electric-light plant, and he then proceeded to do so. The electric-light plant not being rebuilt, or in condition to furnish the lights provided for in the ordinance and contract, the city elected to treat the contract at an end, and notified the plaintiff below that the city considered the contract that had existed between the city and him in relation to lighting the streets at an end by the failure on his part reasonably to 'perform the terms and conditions of the contract, and notified the plaintiff below not to proceed to light the streets as provided in the ordinance and contract with the expectation that the city would pay for same, as the city authorities considered the contract as having expired and been nullified by plaintiff's neglect.
The rights and liabilities of the parties are fixed by the express terms of the agreement between them. The city of Osawatomie agreed, in consideration of the furnishing of electric lights for lighting the streets of the city, etc., to pay O. H. Race or his assigns $1,390 per annum, in monthly payments, for the period of eight years, and Race agreed that himself or his assigns would furnish electric lights to the city for said consideration ; the streets to be lighted with electricity at sundown each day; the lights to be kept on for seven hours, or until 1 o’clock A. m.. This contract provides that Race shall furnish electric lights for lighting the streets of the city of Osawatomie upon these terms and conditions for the period of eight years from the date at which the electric-light plant shall be ready to furnish light for the streets in said city, for which he was to be paid in monthly payments at the end of each month, during the continuance of the contract. This agreement provides for the daily and continuous performance of the contract on the part of Race or his assigns, from the time that the plant is constructed and ready for operation, and does not make any provision for the suspension of the furnishing of the lights as therein specified, and the right of the plaintiff below to recover is based entirely on the express conditions of this agreement.
The findings of fact show that the plaintiff below failed and neglected to furnish electric lights on the streets of the city for over seven months ; that for four months he did not determine to repair the electric-light plant; that he made no effort to comply with the terms of the contract under which he claims ; that he was all of this time considering whether it would be to his interest to repair the plant and then claim under the contract. This agreement contemplates the daily and continuous performance of the conditions by the plaintiff below, and when he has performed his part of the contract for one month he is entitled to receive the compensation specified in the agreement, and a refusal or neglect to perform the contract on his part produced a breach of the conditions of the agreement, and the city would be relieved from the performance of the agreement on its part. A substantial performance, however, is indispensable to a recovery. A failure to carry out any material part of the contract will, not amount to a substantial performance. (Denton v. City of Atchison, 34 Kan.,438.)
By the express terms of this contract, performance of the stipulation on the part of the plaintiff below is a condition precedent to the continuing obligation of the contract. The regular performance of each stipulation was an inducement of the contract and goes to, the root of the matter, and makes its performance of the condition the obligation to proceed under the contract. When the plaintiff below failed and neglected to furnish the • electric lights as provided for in the contract, the city had a right to consider the contract at an end, and having determined to rescind the contract by the giving of notice to the plaintiff below that the contract was determined by reason of his failure to comply with the contract, the termination of the contract was complete, and the plaintiff in error could not thereafter, by any act of his own, renew the contract by going ahead and repairing the plant and again furnishing lights on the streets, against the protest of the city. Having forfeited his rights under the contract, and the city having elected to rescind and cancel the contract, he could not go ahead and furnish the lights and compel the city to pay him for the same under the contract. When the plaintiff below failed to furnish continuous service day by day and month by month, lie failed in the performance of the written obligation, and being in default he cannot recover under the contract, because the daily continuous performance is the sole consideration for the payment.
The judgment is reversed, and the case remanded to the district court, with direction to set aside the conclusions of law and render judgment on the special findings of fact for the defendant below against the plaintiff for costs of suit.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
Mrs. C. Gr. Parks was the owner of a farm in Atchison county, and, in the years 1888 and 1889, she rented the same to C. C. Phillips. By the terms of the lease Phillips agreed to pay her $100 per year for the grass land, and-two-fifths of all the grain raised on the premises. In the year 1889, Phillips farmed, in addition to this land, several other tracts belonging to different owners. A portion of the corn which he raised on these several tracts of land was by him commingled with corn raised by him on the farm belonging to Mrs. Parks. Being indebted to one George Storch, he gave him a chattel mortgage on all of this corn. He was also indebted to one G. W. Hendrickson and to the firm of Harvey & Allison. In the months of January and February, 1890, he delivered to Harvey & Allison about 1,573 bushels of corn, and had remaining upon the Parks farm about 1,200 bushels, a portion of which had been raised on the other tracts of land above mentioned. Hendrickson claimed that 1,000 bushels of the corn which Phillips delivered to Harvey & Allison had been purchased by him from Phillips and sold to Harvey & Allison at an agreed price óf 18i- cents per bushel, and he accordingly demanded that the purchase price thereof be paid to him. At that time Phillips had not settled with Mrs Parks for any portion of the rent for the year 1889, and still owed her the stipulated rent for the grass land for the year 1888. She claimed a lien on this corn, and demanded that Harvey & Allison pay her the proceeds thereof, which they refused to do. She thereupon commenced two separate actir n ■ in justices’ courts against Phillips, in March, 1890, and recovered judgments therein, one for $100, the amount due for the rent of the grass land for the year 1888, and the other for $253.70, the amount due her as rent for the year 1889. In each of these actions she caused an attachment to issue, which was levied on the 1,200 bushels of corn then on her farm in addition to some other property belonging to Phillips, and also caused a garnishment summons to be served on Harvey & Allison. On March 18 the garnishees answered, acknowledging themselves indebted to Phillips in the sum of about $250. This amount was on that day ordered to be paid into court to be applied upon these judgments, but the order was not complied with. After the levy of the attachment, Storch demanded possession of the 1,200 bushels of corn, which was covered by-his mortgage, and a compromise was then effected between Storch and Mrs. Parks, whereby the latter released from the lien of attachment about 886 bushels. On March 29, 1890, Hendrickson brought this action against Harvey & Allison to recover the contract price for 1,000 bushels of corn which he claimed he had sold to them.
Although it is stated in the case made that all the pleadings are preserved therein, it is apparent from the record that such is not the case. The record does not contain an answer filed by Hai’vey & Allison, or recite that one was filed; yet, as Hendrickson filed what he denominated a ‘ ‘ reply to the answer of Harvey & Allison,” and which amounted to a general denial, it is probable that an answer was filed. And as the record contains an affidavit made by Harvey, wherein he states that he served on Mrs. Parks a certified copy of a certain order, a copy of which, was attached to the affidavit, and which purported to be an order of the court making Mrs. Parks a party defendant, and requiring her, within 10 days from the service on her of a copy thereof, to appear and maintain or relinquish her claim to the $185 sued for, being the alleged contract price of 1,000 bushels of corn which Hendrickson claimed to have sold to Harvey & Allison; and as the order recited that it was made on the application of the defendants, and the court required Harvey & Allison to “hold said sum of $185 in readiness to answer to and comply with the further orders of the court herein” ; and as Mrs. Parks filed an answer in which she stated that she did so “by order of the court,” and therein denied generally the allegations of the petition, and set out in detail the facts on which she relied to entitle her to recover the .amount sued for by Hendrickson, to which answer the plaintiff replied by general denial, we think it is fair to assume that Mrs. Parks was substituted as defendant in lieu of Harvey & Allison, although no such order appears in the record, nor do we find therein the affidavit which is prescribed by section 43 of the code of civil procedure as the basis of such proceeding.
After the evidence had been introduced, the court instructed the jury that, under the pleadings and evidence, the plaintiff was entitled to recover from Harvey & Allison the sum of $196.22, being the amount sued for, with interest thereon, and also instructed the jury that, if they found certain facts to exist, Mrs. Parks would also be entitled to a verdict against Harvey & Allison for the amount of the balance due on the judgment obtained by her against Phillips. The jury returned a verdict in favor of the plaintiffs as directed, and in favor of Mrs. Parks, against Harvey & Allison, for $145.50. Harvey & Allison moved for a new trial, and also moved for judgment in their favor. In their motion for judgment, they recited the various proceedings of the court by which Mrs. Parks had been made a party to the action, the fact that the court had directed them to hold the $185 sued for subject to its further order, and alleged that they were ready to pay the said sum of money^as should be directed by the court. Thereupon the motion for a new trial was sustained, Harvey & Allison were directed to pay the $185 into court, and their motion for judgment was overruled.
The record recites that “on February 8, 1892, the second trial of this cause was had and begun, when . Geo. W. Hendrickson objected to the trial of this case on the order heretofore made by the court relieving Harvey’& Allison from their liability as defendants herein, or excluding them in this ease from their full liability to the plaintiff, and to the inter-pleader, or to Mrs. Parks, who had been brought into this case” ; that Mrs. Parks also interposed a similar objection and stated that she had no dispute with Hendrickson, but claimed to be entitled to a judgment against Harvey & Allison, but, should the court hold that the corn mentioned in plaintiff's petition and in her answer was in dispute, then “she desired to defend her right to the fund, or the corn in this case.” These objections were overruled and exceptions were duly saved. Numerous witnesses were examined, special findings of fact were made, and a general verdict returned in favor of Mrs. Parks for $145.40 against Harvey & Allison, that being the amount which the jury found to be due on her judgments against Phillips. On this general verdict and special findings a judgment was rendered, that of the $185 deposited in court $145.40 be paid to Mrs. Parks and the balance to Hendrickson. The plaintiff complains of the judgment and seeks a reversal thereof.
The first contention is that the court erred in substituting Mrs. Parks as defendant in lieu of Harvey & Allison. If the court made such order of substitution, it must have been done on the application of the original defendants. The judgment thereafter rendered in the action is binding upon them, and of this they are not complaining. If error was committed. in substituting Mrs. Parks as defendant, this court cannot correct that error, as Harvey & Allison are not made parties to this proceeding. They evidently admitted a liability in favor of Hendrickson or of Mrs. Parks for $185, the proceeds of a sale of 1,000 bushels of corn which had been delivered to them by Phillips. Hendrickson claimed the right to recover by virtue of a pretended sale by him after having purchased from'Phillips. Mrs. Parks not only controverted the allegation that Hendrickson had purchased the corn from Phillips and sold the same to Harvey & Allison, but she contended that she had a landlord’s lien on the corn, and also that she was entitled to the proceeds of the sale by virtue of the garnishment proceedings to which reference has heretofore been made. The jury resolved the question in dispute in favor of Mrs. Parks. There was evidence tending to show that in January, 1890, Phillips contracted with Harvey & Allison for the sale to them of about 4,000 bushels of corn at 18£ cents per bushel, and that afterward this contract was canceled, and, on the same day, three new contracts were executed evidencing sales of corn to Harvey & Allison, as follows : .By Storch, from 2,000 to 2,500 bushels, “taken under chattel' mortgage of O. O. Phillips” ; by Hendrickson, 1,000 bushels, ” to be delivered by O. C. Phillips under contract with Geo. W. Hendrickson ” ; and by Phillips, 900 bushels, “due the said Mrs. O. G. Parks for rent, which I authorize said Harvey & Allison to pay her before any .other claim out of said corn delivered.” There can be no question under the evidence that these three contracts had reference to the sale of the same corn which Phillips had, in January, contracted to sell to Harvey & Allison. The j ury found that it was the agreement and understanding between Hendrickson, Phillips and Harvey that Mrs. Parks should be paid out of the first corn that should be delivered. This finding is supported by the testimony of Harvey.
The plaintiff in error also contends that'the court erred in its general instructions to the jury, but the record does not show that the attention of the court was called to the errors of which complaint is made. We do not think any prejudicial error was committed in refusing the instructions which were asked by the plaintiff in error. The portions thereof which correctly stated the law applicable to the case are embodied in the general instructions. The special findings of the jury which are material to the issue, when considered as a whole, can be made to harmonize with one another and with the general verdict.
Being unable to discover any prejudicial error in the rulings of the court, the judgment will be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Clark, J. :
On June 17, 1892, the defendant in error recovered a personal judgment against the plaintiffin error for §131.77, and costs. This proceeding iu error is brought to reverse that judgment. The defendant filed a verified answer to the petition, and therein set up several defenses, among which is the following :
• “And further answering herein, the defendant alleges that at the time of the commencement of this action said plaintiff was and still is indebted unto this defendant in the sum of $408.46 upon account, for services rendered by tlie defendant as’ an attorney and counselor at law for the plaintiff at plaintiff’s request, and for counsel fees and retainers in certain suits pending or about to be started, and for expenses and disbursement of defendant made for and on behalf of the plaintiff in said suits and otherwise at his request, a particular statement of which, with the items thereof and the dates at or about which said services were rendered and moneys paid, appears in the annexed account marked ‘ Schedule A,’ and made a part of this answer. Defendant has in his said account allowed the plaintiff for all credits to which liéis entitled, including the $80 mentioned in the fourth paragraph of this answer and rent mentioned in the sixth paragraph of this answer. Defendant says that at the time of the commenceinent of this action there was due from said plaintiff on said account to this defendant, over and above all payments, credits, offsets, and counter-claims, the sum of $120.48, as shown by said account. Defendant claims that the said sum of $408.46 should be set off against any amount which the plaintiff might otherwise be found’ entitled to recover herein, and that defendant should have judgment for the balance thereof, $120.48, against the plaintiff. ”
To this answer is attached the “Schedule A” referred to in the answer. The only question involved in this proceeding which merits consideration is the rulin r of the court that the correctness of the account set forth in the “Schedule A” is put in issue by an unverified general denial. Section 108 of the civil code reads as follows :
“In all actions, allegations of the-execution of written instruments and indorsements thereon, or the correctness of any account, duly verified by the affidavit of the party, his agent, or attorney, shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent, or attorney.” •
The correctness of the account set forth in “ Schedule A” is not verified, unless the affidavit attached to the answer should be deemed such verification. This affidavit reads as follows :
“E. A. McMath, being duly sworn, says that he is the defendant in the above-entitled actionthat he has read the foregoing answer by him subscribed, and knows its contents ; that all the facts and allegations therein contained are true.”
While it is alleged in the petition that the plaintiff is indebted to the defendant in the sum of $408.46 upon an account set forth in “ Schedule A,” and that allegation is properly verified, we are of the opinion that the essential requirement of the'statute — that the correctness of the account itself should be verified —is wanting in this case. If the petition had alleged that such account was correct, the verification of that allegation would have been sufficient under the statute to have avoided the necessity of the defendant offering proof in support of the items therein charged against the plaintiff. We think the court properly ruled under the pleadings. It devolved upon the defendant to prove the correctness of the several items charged in “Schedule A,” before the same could be allowed as n sot-off to plaintiff’s claim.
The judgment will therefore be affirmed.
All the Judges concurring. | [
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The opinion of the court was-delivered by
Johnson, P. J. :
This action was commenced on the 14th day of April, 1893, in the district court of Sedgwick county, by J. V. Daugherty against D. W. McCalla, Lou K. McCalla, and Barbara A. McCalla, to set aside a certain conveyance of real estate and subject the land to the payment of a certain judgment, recovered before a justice of the peace on the 21st day of January, 1893, in favor of the plaintiff below and against D. W. McCalla and Lou K. McCalla, on the grounds of fraud in the conveyance of said real estate. Afterward, on the 21st day of April, 1893, D. M. Tip-ton appeared in court and moved to be made a party to said action, and was by order of the court permitted to be made a party to said suit. ' He thereupon filed a cross-petition, alleging that, on the 22d day of November, 1887, he recovered a judgment in the district court of Sedgwick county, Kansas, against D. W. McCalla and Lou K. McCalla for the sum of $1,807.50, and that it was declared to be a lien on certain real estate in Sedgwick county; that said land had since been sold under the judgment and the same did not sell for a sufficient sum to satisfy said judgment and costs; that the balance of the judgment remaining after the application of the proceeds of the sale of said land was in full force and unsatisfied and was a valid judgment against D. W. McCalla and Lou K. McCalla, and that on the 31st day of August, 1889, D. W. McCalla and £ou K. McCalla, for the purpose of placing their property beyond the reach of their creditors then existing and to exist thereafter, conveyed certain lands in Sedgwick county to one Barbara A. McCalla; that said deed of conveyance was without consideration and for the purpose of defrauding the creditors of D. W. McCalla and Lou K. McCalla; that said Barbara A. McCalla received said deed with full knowledge of the fraudulent intention of the grantors therein and for the purpose of assisting them in defrauding their creditors, and asked that said conveyance be set aside and that the land be subjected to the payment of said judgment.
After the commencement of this suit and the filing of the cross-petition of D. M. Tipton and the answer of D. W. McCalla and Lou K. McCalla, D. W. McCalla died, and J. H. McCall was duly appointed and qualified as administrator of the estate of D. W. McCalla, deceased, and the action was thereafter revived against the administrator, who appeared and filed an answer to the cross-petition as such administrator, and the cause proceeded to trial before the court without a jury. On the trial of the case the court found that the plaintiff below recovered a judgment against D. W. MeCalla and Lou K. MeCalla for $50, and that the same was unsatisfied, but the court found from the evidence against the plaintiff and in favor of the defendants on all other issues joined between them. • On the issue between D. M. Tipton and the McCallas, the court found that on the 22d day of November, 1889, D. M. Tipton recovered judgment in the district court of Sedgwick county against D. W. MeCalla and Lou K. MeCalla for $1,807.50, and that such judgment was in full force and effect, and that there remained due and unpaid on such judgment the sum of. $426, with interest, and that on the 29th day of August, 1889, D. W. MeCalla was the owner in fee simple of certain lands situated in Wichita, Sedgwick county, Kansas, and that on the 31st day of August, 1894, D. W. MeCalla and Lou K. MeCalla executed and delivered to Barbara A. MeCalla a deed of conveyance for said lands, and that such deed was executed and delivered to Barbara A. MeCalla without any consideration whatever having been paid or to be paid, and that it was executed and delivered for the fraudulent purpose of defrauding the creditors of D. W. MeCalla. The court thereupon directed that the judgment of Tipton be a first lien on the land, and that said deed be set aside and the land be sold to satisfy the judgment and costs. To the finding of facts and conclusions of law the defendants below duly excepted, and bring the case to this court and ask that the judgment be reversed.
The record in this case is quite voluminous, and numerous errors are assigned, but in the view we take of this case it is unnecessary for us to consider all of the errors specified. The court having found against the plaintiff below, and no objections or exceptions having been taken by him, that part of the case has been finally disposed of, and it will not be necessary to refer to the issues between the plaintiff and defendants McCallas. On the trial of the case, the defendants below objected to the introduction of any evidence under the cross-petition of D. ,M. Tipton, for the reason that said cross-petition did not state facts sufficient to constitute a cause of action in his favor and against the defendants below. The contention of the plaintiffs in error is that the cross-petition shows that the conveyance complained of as fraudulent was executed on the 31st day of August, 1889, and the cross-petition of D. M. Tipton was not filed until the 21st day of April, 1893, and there is no allegation in the cross-petition showing that the fraudulent acts complained of were not discovered until some later day; that since more than two years had elapsed between the fraudulent transaction complained of and the commencement of this action, the action was barred by the statute of limitations. Subdivision 3 of section 18 of the code of civil procedure, fixing the time in .which an action may be commenced, provides that an action for relief on the ground of fraud shall be commenced within two years, and that the cause of action in such cases shall not be deemed to have accrued until the discovery of the fraud.
The cause of action was complete on the day the fraudulent deed was executed, but if D. M. Tipton had no knowledge of the fraudulent transaction the right of action did not accrue until he discovered the fraud. While the right of action accrued on the day the fraud was consummated, yet the statute of limita- ( tions did not begin to run until the discovery of the fraud. . The petition must state facts constituting the plaintiff's cause of action, and the petition must show that the cause of action is one upon which the plaintiff is entitled to recover a judgment. The facts stated in this petition are such that the plaintiff could not recover on account of the limitation of the statute, and where there are circumstances that will take the case out of the limitation, it is the duty of the plaintiff to plead the exceptions. Such is the rule in courts of law and courts of equity. (Young v. Whittenhall, 15 Kan. 579 ; Zane v. Zane, 5 id. 137 ; Sublette v. Tinney, 9 Cal. 423 ; Boyd v. Blankman, 29 id. 20 ; Carpenter v. City of Oakland, 30 id. 444.)
The cross-petition of E. M. Tipton showing that more than two years had elapsed since the fraudulent transaction complained of, and there being no allegation that the fraud was discovered at some later period, so as to take the case out of the statute of limitations, the court should have sustained the objections to the evidence under the cross-petition. The attention of the court and of D. M. Tipton having been duly called to the insufficiency of the cross-petition to state a cause of action, and no amendment having been offered or proposed to said cross-petition, judgment should have been rendered for the plaintiffs in error.
The judgment of the district court is reversed, and the case remanded, with directions to render a judg ment for the defendants below, J. H. McCall, administrator of the estate of D. W. McCalla, deceased, Lou K. McCalla, and Barbara A. McCalla.
All the J udges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
Euretta Mix brought suit against Marion L. Swisher and Margaret A. Swisher and the plaintiffs in error upon a certain note and mortgage made, executed and delivered by the said Swishers toR. J. Waddell & Co. The mortgage-sued upon covered the following real estate, viz.: The southwest quarter of section 2, township 10, range-13, and east half of the northwest quarter of section 11, township 10, range 13. The allegations of the petition are those usually found in a petition for the foreclosure of a mortgage, and, in addition thereto, the following:
“ That the defendants Jenlrin W. Morris and Emily J. Morris became the legal owners of said lands in the mortgage described, by warranty deed, on the 15th day of October, 1888, from one E. F. Robinson and wife ; that as part of the consideration for said lands Jenkin W. Morris and Emily J. Morris assumed and agreed to pay the mortgage sued on in this action ; that the said defendant John Norton became the legal owner of the said lands described in the said mortgage on the 20th day of December, 1888, by virtue of a deed, a copy of which is hereto attached, etc. ; that, as a part of the consideration for said lands, the said defendant John Norton assumed and agreed to pay the mortgage sued on in. this action; that the said defendant John Norton and his wife now have or claim to have some interest in or to said lands by virtue of said deed, herein set up and marked ‘ Exhibit E,’ biit that whatever interest, lien or right they may have, if any, to said lands is junior, inferior and subject to the lien of this plaintiff.”
There is a prayer for judgment against all the defendants for foreclosure of the mortgage, sale of lands, and that all defendants be barred, etc. The deeds referred to and attached to the petition are, (1) E. F. Robinson and Adah J. Robinson to Jenkin ~W. Morris, dated October 15,1888, conveying, among other tracts, the southwest quarter of section 2 and the east half of the northwest quarter of section 11, all in township 10, range 13, in Osborne county, Kansas, and containing the following clause :
“To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining, forever. And said parties of the first part, for themselves, their heirs, executors, or administrators, do hereby covenant, promise and agree to and with the said party of the second part, that at the delivery of these presents they are lawfully seized in their own right of an absolute and indefeasible estate of inheritance, in fee simple, of and in all and singular the above granted and described premises, with the appurtenances ; that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever, except mortgages of record on said lands and interest thereon from this date, which the grantee herein assumes as part payment. Crop of 1888 retained by grantors, and possession till January 1, 1889 ; and that they will warrant and forever defend the same unto said party of the second part, his heirs and assigns, against all and every person or persons whomsoever lawfully claiming or to claim the same.”
(2) Jenkin W. Morris and Emily J. Moms to John Norton, as follows:
“This indenture, made this 26th day of December, A. D. 1888, between Jenkin W. Morris and Emily J. Morris, his wife, of Leavenworth county, in the state of Kansas, of the first part, and John Norton, of Shawnee county, in the state of Kansas, of the second part:
Witnesseth, that said parties of the first part, in consideration of the sum of one and-dollars, the receipt whereof is hereby acknowledged, do by these presents remise, release and quitclaim unto said party of the second part, his heirs and assigns, all the following-described real estate situated in the county of Osborne and state of Kansas, to wit: The southwest quarter (S.W. i) of section two (2), township ten (10) , range thirteen (13 ) west; also' the east half of the northwest quarter (E. i of N. W. i) of section eleven (11), township ten (10), range thirteen (13) west; also the southwest quarter ( S. W. i) of section twenty ( 20), township eight (8), range thirteen, (13) west; also the west half (W. i) of section twenty-nine (29), township eight (8), range thirteen (13) west, all in Osborne county, Kansas, according to the United States government survey thereof. The grantee hereby assumes all liability of the grantor on account of any mortgages against said property. To have and to hold the same, together with all " and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, forever. In witness whereof, the said parties of the first part have hereunto set their hands, the day and year first above written.
Jenkin W. Morris, [seal."
Emily J. Morris. [seal/
Summonses were issued thereon as follows : To the sheriff of Chautauqua county, for Marion L. and Margaret A. Swisher; to the sheriff of Shawnee county, for John Norton and Mrs. John Norton ; to the sheriff of Leavenworth county, for Jenkin W. Morris and Emily J. Morris. They were duly served and returned. None of the defendants so served appeared in the action.
Upon the trial of .this cause, the plaintiff dismissed her action “ without prejudice as to Marion L. Swisher and Margaret A. Swisher, his wife, it being shown to the court that said defendants Margaret A. Swisher and Marion L. Swisher had no interest in the lands described in the petition of said plaintiff at the time of the beginning of the action.” And thereupon the court found as follows :
“After hearing the evidence, finds that all the allegations and averments contained in the petition of said plaintiff filed herein are true, and that there is due from said defendants Jenkin W. Morris and John Norton to the said plaintiff on the notes and mortgage sued on in this action the sum of $1,138.15.”
Judgment was rendered accordingly.
There was no indorsement upon either of the summonses issued herein of the amount for which judgment would be taken if defendants should fail to appear. Defendants Morris and Norton bring the case here for review upon transcript.
The principal question in this case is as to the liability of Jenkin W. Morris upon the assumption clause in this deed. In other words, Can a mortgagee ' avail himself of an assumption to pay his mortgage contained in a deed to an intermediate purchaser unless the purchaser's grantor was personally liable to pay the debt?
Robinson is the immediate grantor of Morris. From whom or upon what conditions he obtained title is not shown. It is not alleged that Robinson assumed this mortgage, or was under any obligation to pay the same, or had any interest, legal or otherwise, in having Swisher's covenant performed.
We think the liability of the grantee results from an application, or more correctly an extension, of the equitable doctrine of subrogation. And the author-i ities with great uniformity hold that the assuming grantee becomes the principal debtor and the mortga-| gor becomes the surety, and the mortgagee is entitled, if at all, under the principle of equity that "a creditor is entitled to the benefit of all collateral obligations for the payment of the debt which a person standing in the situation of a surety for others .has received for his indemnity.” Does not, then, the-liability of the grantee to the mortgagee depend upon the fact that his immediate grantor is also personally liable? We ■think so, since there will be no place for the operation of subrogation in the absence of such personal liability of the grantor. And, from a careful and very extended examination of the adjudicated cases, we are irresistibly led. to the conclusion that the liability of a grantee who assumes'the payment of a mortgage on land conveyed to him depends upon the personal liability of his immediate grantor ; therefore, if a grantor is not so liable, the mortgagee cannot claim any deficiency from such grantee.
“A mortgagee cannot avail himself of an assumption to pay his mortgage contained in a deed to a subsequent purchaser unless the grantor was himself personally liable to pay the debt. ... It, therefore, does not appear . . . that there has ever existed any obligation on the part of DeHart to indemnify Pflaum against the complainants’ mortgage debt. . . . Each grantee who assumed the payment of the mortgages was bound thereby only to indemnify ; and if no liability to pay the mortgage debt existed on the part of his immediate grantor, there is no ground for claim of indemnity on the part of the grantor, and consequently no personal liability on the part of the' grantee to pay the mortgage debt.” (Norwood v. DeHart, 30 N. J. Eq. 412.)
"An action brought by the holder of certain premises, liable under a provision' contained in a deed thereto to him that he purchased the same subject to two certain mortgages, and his agreement therein contained to assume and pay the same as part of the consideration and purchase price of said premises, cannot be maintained, unless it is alleged and proved that the grantors of said owner were in some way liable to pay the plaintiff therein, or his assignors, the debt secured by the mortgages, or at least they had a legal interest in having the covenant in such deed performed.” (Carrier v. Paper Co., 73 Hun, 287.)
This question has also been discussed by Mr. Desty in his notes to King v. Whitely, 10 Paige, 465 (4 Lawy. Ed. N. Y. Ch., p. 1052), and he states the doctrine to be:
“ Where the grantor or an equity of redemption in mortgaged premises is not personally holden for the debt, and the covenants from him contained covenant of seizin and warranty, and a statement that the premises are subject to the mortgage the payment of which is assumed by the grantee, the latter is not liable personally for the mortgage debt or any part thereof. The assumption of the mortgage debt by the subsequent purchaser will not in any case be available to the mortgagee, unless the grantor was himself personally liable for the payment of the mortgage debt. Unless the grantor is personally liable for the debt, the promise of grantee, the purchaser, is held to be a mere nudum pactum, and of course without efficacy in favor of either the grantor or grantee. The mortgagee cannot look to the grantee personally at all, because the assumption is but an indemnity, and the grantor' not being liable, the indemnity is practically a nullity. To make the promise of a grantee to pay the mortgage available to the mortgagee of the land conveyed to him, it must be made to a person^, personally liable for the mortgage debt. Where a grantor of an equity of redemption in mortgaged premises is not personally liable to pay the mortgage debt, and has no legal or equitable interest in such payment except so far as the mortgage may be a charge on the land mortgaged, his grantee theréof incurs no liability to the holder of the mortgage by reason of the covenant on his part contained in the deed to assume and pay the mortgage.” (Trotter v. Hughes, 12 N. Y. 80 ; Vrooman v. Turner, 69 id. 280 ; Cashman v. Henry, 5 Abb. N. C. 232; Biddle v. Brizzolara, 64 Cal. 361; Crowell v. St. Barnabas Hosp., 27 N. J. Eq. 656 ; Crowell v. Currier, 27 id. 155 ; Norwood v. DeHart, 30 id. 414 ; Mount v. Van Ness, 33 id. 265 ; Wise v. Fuller, 29 id. 266; Birke v. Abbott, 103 Ind. 1; Huyler v. Atwood, 26 N. J. Eq. 505.
In the state of New York this question has arisen in almost every conceivable form, and the more it has been discussed the clearer have the courts become in their statements of it.
In Carter v. Holahan, 92 N. Y. 504, the court said :
‘ ‘ The only ground upon which a liability has been sustained between others than the immediate parties to such a contract is that growing out of the relation of principal and surety, whereby one becomes entitled to the benefit of any security received by the other from a party primarily liable for the payment of the debt. . . . Drake never became personally liable for the payment of any part of the mortgage debt. The covenant taken by him from Kerr did not inure to the benefit of his grantor, or to that of the holder of the mortgage. Should a grantee who assumes the payment of a mortgage convey to a third person, taking a similar covenant for his indemnity against the obligation assumed by him, his grantor would be entitled to the benefit of that contract; if a break, however, occurs in the chain of successive covenants its foundation is destroyed.”
And this doctrine has been asserted in Thayer v. Marsh, 75 N. Y. 230: Dunning v. Leavitt, 85 id. 30 ; Wilbur v. Warren, 104 id. 192 ; Lorillard v. Clyde, 122 id. 504; Wager v. Link, 134 id. 125 ; Dumber v. Rau, 135 id. 219 ; also, in Minnesota in Nelson v. Rodgers, 49 N. W. Rep. 526 ; Brown v. Stillman, 43 Minn. 126; also, in Keller v. Ashford, 133 U. S. 610.
In New Jersey this question has frequently been before the courts and thoroughly considered, as shown by cases before cited. In Mount v. Van Ness, 33 N. J. Eq. 265, the court used the following language :
“ If the grantor is not personally liable for the mortgage debt, the mortgagee cannot look to the grantee personally at all, because the assumption is but an indemnity, and, the grantor not being liable, the indemnity is practically a mere nullity; nor does the fact that the grantee obtained the benefit of the mortgage by having the amount allowed to him as part of the purchase-money make any difference. The purchase-money was payable to his grantor, and the assumption is to him, and in his favor.”
This doctrine obtains in Virginia:
“In. such cases, however, the mortgagee does not acquire a right of action against the purchaser, but the benefit flowing to him from the contract is limited to a right to be subrogated to the rights of the debtor. His right is simply a right of substitution, subject, however, to the equities between the purchaser and his immediate grantor.” (Osborne v. Cabell, 77 Va. 462.) See, also, Willard v. Worsham, 76 Va. 392.
“An assuming vendee of mortgaged premises is yet not liable to the holder of the mortgage if his immediate grantor is not personally liable ; also, upon the ground that an assumption is a mere indemnity, not made for the benefit primarily of the holder of the mortgage before the indemnity of the immediate-vendor, and the benefit flowing to .the holder of the mortgage from the contract is only a right to be subrogated or substituted to the right of the immediate-grantor, and that there is no consideration for anything further than a mere indemnity.” See Mellen v. Whipple, 1 Gray, 317.
But it is contended that “.a person for whose benefit a promise to another upon sufficient consideration is made may maintain an action in -his own name against his promisor.” This is undoubtedly the doctrine in Kansas, and it is also the law in most of the- states. And it might not be out of place at this point co stare mat in Pennsylvania, one of the few states which hold that a person assuming the payment of a mortgage is liable,' even though his vendor is not personally liable to pay the same, a third party for whose benefit one has made a promise to another on adequate consideration cannot sue thereon in his own name, while in New York he can. In Dunning v. Leavitt, 85 N. Y. 30, this proposition was specially pressed upon the court — that the party was liable to such vendee for the reason that a third party can maintain an action for and upon a promise made to still another party for the benefit of the third party. The court says :
‘‘ It is said that the action can be sustained upon the doctrine of Lawrence v. Fox (20 N. Y. 268), and kindred cases. But I know of no authority to support the proposition that a person not a party to the promise, but for whose benefit the promise is made, can maintain an action to enforce the promise, where the promise is void as between the promisor and the promisee for fraiid, or want of consideration, or failure of consideration: It would be strange, I think, if such an adjudication should be found. The party suing upon the promise, in cases like Lawrence v. Fox, is in truth asserting a derivative right.”
In Vrooman v. Turner, 69 N. Y. 280, it was held that an assumption clause in a deed did not give a right of action to the mortgagee, where the grantor was not himself liable to pay the mortgage debt, although in that case there was ample consideration for the promise of the defendant.
“ There are limitations upon this rule, or rather the rule is not so far extended as to give a third person who is only indirectly and incidentally benefited by the contract a right to sue upon it. In the -case of Simson v. Brown, 68 N. Y. 355, et seq., the following language is used: ‘ It is not every promise made by one to another, from the performance of'which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.’ We think this is a correct statement of the law.” (Burton v. Lakin, 36 Kan. 249 — citing among other authorities Vrooman v. Turner, 69 N. Y. 280; Dunning v. Leavitt, 85 id. 30.)
It is not sufficient that the promise be made by one to another, from the performance of which a benefit may inure to a third ; the contract must be made for his benefit as its object, and he must be the party intended to be benefited. (Burton v Larkin, supra.)
‘ ‘ The benefit of the third party must have been the object of the contract within the contemplation of the parties ; the parties must have had this in their minds ; it must have been more than merely incidental — it must appear as considered, and therefore made, and the grantor must have a legal interest that the covenant be performed in favor of the party claiming performance.” All this must be proved by more than the mere production of an assumption clause in the deed from a vendor to a vendee ; for, as the Minnesota cases say, “the presumption is that the vendor and vendee of mortgaged property have in mind, consider, contemplate and regard only their own interests and not the interests of the mortgagee.” They are not seeking to increase the security of the mortgagee. The vendor is seeking only his own interests — indemnity and security that he will never have to pay the mortgage after he has parted with the mortgaged ■property, and the vendee is seeking to assume to promise the least possible in order to get the prop erty. Any other presumption would do violence to the well-known course of business in such transactions, and would contradict the universal experience of mankind. The vendor of mortgaged property is entirely careless and indifferent as to the interests of the mortgagee. He is anxious to sell and cares nothing about the mortgagee. Would he imperil his sale by asking or insisting that his grantee shall assume a mortgage for which he is not himself personally liable? He is perfectly willing that the property in which he is no longer interested may be taken. Does he regard the interests of the mortgagee as of more importance than his own, so that he will take the chances of spoiling Ms sale to have a thing done that he has no interest in? "We think not.
And what has been said with reference to the liability of Morris applies to that of .Norton, and with much greater force, for Norton’s contract is, strictly speaking, one of indemnity, viz., “the grantee hereby assumes all liability of the grantor on account of any mortgages against said property,” and unless Morris was liable, and it was so. alleged and proved, certainly no liability could attach to Norton.
The judgment of the district court will be reversed, and the case remanded for further propeedings in accordance with the views herein expressed.
All the Judges concurring. | [
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The opinion of the court was delivered by '
Dennison, J. :
To decide intelligently the questions raised in this case it becomes necessary to consider chapter 43 of the Session Laws of 1891, entitled “An act to provide for the organization and regulation of banks, and prescribing penalties for the violations of the provisions of this act.” This act provides for the ' organization and regulation of all banks créated after the taking effect thereof, and for the regulation of all banks which continue to do business for a longer time than six months after the passage and approval of the act. Sections 5 and 6 of said act provide that a bank thereafter created shall have 50 per cent, of its capital stock paid in before it applies to the bank commissioner for a certificate of authority to transact a banking business. It also provides that not less than 10 per cent, of the residue of the capital stock of such bank shall be paid in each' month thereafter. Any individual, firm or corporation which was transacting a banking business at the time of the taking effect of said chapter 43 and which continues so to transact a banking business for a longer time than six months thereafter must transmit to the bank commissioner a verified statement of the resources and liabilities, of such individual, firm, or corporation, in accordance with the form prescribed in section 18 of said chapter 43, and shall also include in said statement the names and residences of the stockholders, the amount of stock subscribed, and the amount paid in by each. The bank commissioner shall thereupon examine into the condition and affairs of such bank, and if such bank has in all respects complied with the provisions of law applicable thereto he shall issue a certificate showing the amount of capital stock paid in, and that the same is authorized to transact a general banking-business as provided by said act. The stockholders of the Bank of Richmond evidently proceeded upon the theory that they were compelled, under the provision of chapter 43.aforesaid, to have at least 50 per cent, of-their capital stock paid in within six months after its passage and to pay at least 10 per cent, of the residue each month thereafter.
We are not called upon in this case to decide the legal effect of the attempted reduction of the capital stock as betweón the different stockholders. We are only to determine its legal effect as between the stockholders and the creditors of the Bank of Richmond. On July 11, 1890, about eight months prior to the taking effect of the banking law of 1891, the Bank of Richmond was incorporated under the laws then in force. The capital stock was fixed at $50,000. This is shown by the charter, by the verified certificate recorded in the office of the register of deeds of Franklin county, Kansas, and by the records and advertisements of the Bank of Richmond. The verified statements of the condition of the bank, required by law to be published, and the certificate of the bank commissioner, each state the amount of capital stock paid in at $10,000. These are notice to a depositor or creditor, either present or prospective, that the Bank of Richmond has of unpaid subscriptions to its capital stock $40,000, which must be paid in upon such calls and terms as the directors may from time to time prescribe. C. E. Putnam subscribed $1,000 of the capital stock of said bank and paid in $200. He therefore owed $800. It will be conceded that this was a trust fund upon which the depositors and creditors of the Bank of Richmond could rely for their protection.
Two questions now present themselves : First, Did the- statute of 1891 require the withdrawal of. this trust fund? Second, Was the proceeding had on or about September 15, 1891, sufficient to reduce the capital stock of tlie bank to $10,000, so as to debar creditors from the right to rely upon the $40,000 unpaid subscriptions? We must answer the first question in the negative. Nothing contained in the banking law of 1891 prohibited a banking corporation then in existence from continuing in business with only 20 per cent, of its capital stock paid in, provided it was solvent and complied with the legal requirements of the bank commissioner. It was not required to have 50 per cent, of its stock paid in before applying for a certificate or to pay at least 10 per cent, of the residue each month thereafter. This was required only of banks organized after the taking effect of said banking law.
We must also answer the second question in the negative. Whatever the effect of the attempted reduction of stock may be as between the stockholders, it cannot be held to release them from the payment of their unpaid subscriptions to the capital stock of the bank, if needed for the payment of the creditors. The bank was chartered with a capital stock of $50,000. This plaintiff in error testifies that the agreement between the stockholders was that the paid-up stock should be only $10,000, but they fixed the amount of the capital stock at $50,000 at the suggestion of Mr. Sowerby, who was afterwards cashier, because he thought it would give the bank a better name. In this he was probably correct. A corporation with $40,000 unpaid subscriptions to the capital 'stock thereof standing as a trust fund for the protection of creditors would undoubtedly have a better name, and more persons would become creditors of it (provided the subscribers were known to be responsible) than one with no unpaid subscriptions. The certificate re quired by paragraph 1420 of the General Statutes of 1889 to be recorded in the office of the register of deeds states that' the amount of its capital stock is $50,000 and that this plaintiff in error has subscribed $1,000 of it. All the advertisements of the bank and its stationery contained the statement, “ Capital stock, $50,000,” and all of its statements gave $10,000 as the amount of capital stock paid in. This is notice to the public of the responsibility of the Bank of Richmond.
What notice was given to the public as to the change by which the $40,000 trust fund was attempted to be abrogated and the subscribers released from the payment thereof? In what manner was the public notified that the capital stock was reduced to $10,000? No new or amended charter was obtained. No new or amended certificate was recorded in the office of the register of deeds of Franklin county, Kansas. No change was made in the statement of the amount of its capital stock printed upon the stationery used by the bank or in its advertisements. . The only thing done, as shown by the record, was the correspondence, as set but in the findings of fact of the court, between the cashier and the bank commissioner, and the unofficial and unrecorded understanding between the stockholders under which they surrendered their old certificates’ and accepted the new ones, and the subsequent ratification of this change by the stockholders in voting the reduced number of shares of stock, and the directors’ ratification of the sale of the two paid-up shares by this plaintiff in error. None of these acts was sufficient to impart notice to the public.
An incorporated company cannot be permitted to advertise to the public that it has a capital stock, of $50,000, to state in its charter that its capital stock is $50,000, to certiiy under the oath of its officers that its capital stock is $50,000, and record such verified certificate in the office of the register of deeds in the county in which the company does business, to certify in the verified statement of the condition of the bank that only $10,000 of its capital stock is paid in, and then, without changing its advertisement, or its charter, or its verified certificate, be permitted to. say to its creditors : “The $40,000 trust.fund which you supposed we had behind this bank is not here. We have agreed among ourselves that we would relieve each other of this liability by quietly bringing in our stock and changing it for paid-up stock in the amount of 20 per cent, of the original subscription.” This applies to creditors who became so after the attempted reduction as well as to those who were creditors prior thereto, for reasons fully apparent in this opinion.
Counsel for plaintiff in error contends that his client is relieved from his liability to the creditors of the Bank of Richmond by reason of having transferred his stock to Sowerby. If he had legally transferred his original 10 shares of stock this contention would be good. This he did not do. He first attempted to .reduce his original 10 shares with 20 per cent, paid thereon to two shares fully paid up, and then to transfer the two shares. The attempted reduction was void, and the issuance of the two fully-paid-up shares was a nullity as between the stockholders and creditors. Life cannot be given to the two shares by transferring them to another. After the attempted reduction of capital, stock he must answer to the.demands of creditors upon his original 10 shares, and not upon the two fully-paid-up'shares. He cannot relieve himself from his liability to creditors upon the 10 shares by transferring the two shares which are a nullity as to said creditors.
Finding no material error prejudicial to the righ of the plaintiff in error, the judgment of the district court is affirmed.
Cole, J., concurring.
Johnson, P. J., not sitting, having been of counsel. | [
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The opinion of the court was delivered by
Johnson, P. J.:
This suit was commenced by E. F. Ware, in the district court of Bourbon county, against (1. A. Nelson and M. B. Weedon, partners -as Nelson Si Weedon, to recover a balance due for rent of a storeroom. A jury trial was waived and the case submitted to the court pn the following agreed statement of facts:
“It was agreed that the defendants were partners during the time as alleged, and that on the 14th day of November, 1884, said partnership being then engaged in the grocery business elsewhere in the city of Fort Scott, rented of this plaintiff the storeroom described, and took possession. A lease was drawn up. of which a copy is as shown in the exhibit to the bill of particulars. Said possession was taken on December 1, 1884, and plaintiff’s property was occupied by the said partnership continuously as a grocery store during the dates hereinafter mentioned. About the 1st day of January, 1886, the plaintiff and the defendants had a conversation which resulted in the continuance of the lease and the possession of the defendants. And. the following indorsement was made upon the lease ; ' This lease continued, to run to end of December, 1886,’ said extension being for the entire year of 1886. Afterward, and on or about the 1st day of January, 1887, the plaintiff and the defendants again got together and readopted the said lease, and extended it verbally for another year, being the year of 1887, but no indorsement was made upon the said lease.
“Afterward the defendants held over under the said lease, and the said lease was continued and the following indorsement placed thereon : ‘ This lease continued for one year, to end of 1888.’ At the end of the year of 1888 the said léase was verbally extended for another year, and a change made in the terms of the lease, that the rent should be at the rate of $600 a year in place of the former sum. At the end of the year 1889 the said tenants held over for another year, without any agreement or talk upon the subject between the plaintiff and defendants. At the end of 1890 the defendants continued to hold over for another year, and did so without any talk between the parties or arrangement or agreement, the rent continuing to be at the rate of $600 a year. This plaintiff was absent from home, and returned December 9, 1891, at 2 (’clock p. m. That evening tlie plaintiff's father told plaintiff that Nelson & Weedon, the defendants, wanted to see plaintiff and wanted a reduction of rent. Plaintiff was busy at the time and did not see the defendants, and upon Friday forenoon, to wit, Decern belli, a boy in the employ of the defendants came to plaintiff and said that defendants wished to see him upon the afternoon of said December 11. This plaintiff went and had a brief talk with the defendants in the afternoon, at the store, and plaintiff was requested to state what was the best figure that he could name for the rent of the store building, as defendants desired a material reduction of rent. This is the first conversation or communication between the parties concerning any change of tenancy or reduction of rent, and no word was received by plaintiff from defendants upon that subject during the year of 1891 until as above described. The plaintiff told defendants he would meet them and agree upon a price. Upon Saturday afternoon, December 12, the defendant Weedon came up to the office of the plaintiff and wanted to know the price. Prices were discussed for a short time, plaintiff refusing to give exact figures, but said that he would meet both defendants and would come to an agreement, but would waive no legal rights, if any he had, under the lease. Thereupon some little controversy grew up between plaintiff and said Weedon in regard to legal rights.
“Upon Sunday, December 13, Nelson & Weedon verbally notified plaintiff, through plaintiff’s father, that the defendants were going to move. This was the first intimation that the plaintiff ever received that the defendants were going to move. Upon Monday forenoon, December 14, Weedon, the defendant, verbally notified the plaintiff that the firm was going to move. At 4.15 p.m., December 15, 1891, there was handed to the plaintiff a written notice that the defendants would move. Said notice is the only written notice served upon the plaintiff by defendants. The original of said written notice is hereto attached, marked exhibit ‘A.’ At noon, January 1, 1892, the defendants left with the plaintiff the keys of said property. On December 31, 1891, defendants went tó plaintiff’s office to deliver the key to the store. Plaintiffbeing away from home, they could not and did not then deliver it, having theretofore removed from said building except as to some coal hereafter mentioned. Upon January 16, 1892, the defendants got back the keys so as to unlock the building and take away some coal which they said they had stored in the cellar or basement. When the keys were left with the plaintiff, as stated, the plaintiff declined to receive the keys, stating that he held defendants still for .the rent. After the leaving of the keys as aforesaid the., defendants refused to occupy the said premises and refused, to pay rent for the same, and the plaintiff has. held the property open, subject to their occupation, and ready and willing at all times that the said defendants should use and occupy the same.
“While this lease calls for rent payable monthly in advance, as a matter of fact, for several years, during the latter occupation, the rent was not paid in advance, but was paid by the defendants to the plaintiff' when it became most convenient for them to pay. It' was not paid in advance during the last four years at any one time. The rent was, during the four years, always paid after it was due. Upon May 23, 1889,' the plaintiff was given a check at one time for $300, being for rent then due. ' No other acts were done to cancel the lease or to terminate the tenancy than are' herein agreed upon, and the question is submitted upon these agreed facts as to whether the defendants are legally bound to pay the rent for the period claimed in the bill of particulars. The said property during the time sued for was vacant all of the time, except one week, when a man desired to rent it for an exhi-' bition. The plaintiff notified the defendants that it was desirable that it should not remain idle and that the exhibitor should have it for one week. The defend-, ants disclaimed all right or claim to the property, and. the plaintiff rented the said property for one week, and .received the sum of $12.
“ The original of the correspondence on the subject between the plaintiff and defendants is hereto attached. There has never been any trouble between the parties and the relation of the parties has been amicable throughout. The question is presented on this agreed statement of facts that the ruling of the court may be obtained as to the correctness of the defendants' position that the lease terminated absolutely upon January 1, 1892. All rent has been paid to the 31st of December, 1891, but none-has since been paid."
“EXHIBIT A.
“ Ft. Scott, Kan., December 12, 1891.
“E.F. Ware,Esq.: Sir — This is to notify you that we shall vacate the room rented from you on Market street, and occupied by us as a grocery, on the 1st day of January, 1892. — Nelson & Weedon.”
“ Ft! Scott, Kan., February 8, 1892.
“ Messrs. Nelson & Weedon: A man wishes to rent the store building under me for a week for $12. I claim that you are still renting it. You claim you are not. I suggest that we let the man have the place and pay the $12 without prejudice to the rights of either of us. If this suits your approval, please say so on back of this note and I will let the man in, and it shall be without prejudipe to each of us. Very respectfully, E. F. Ware.
“February 8, 1892.
Answer: “ We have no claim on your property since . the first of the year. You can dispose of it as suits you. Yours, &c., Nelson & Weedon.”
' The lease referred to in the pleadings and in the agreed statement of facts which existed between the parties, together with all the indorsements thereon, is as follows:
“This indenture, made this 14th day of November, in the year of our Lord 1884, between E. F. Ware, of Fort Scott, in the county of Bourbon and state of Kansas, of the first part, and C. A. Nelson and M. B. Weedon, of Fort Scott, in the county of Bourbon and state of Kansas, of the second part:
“ Witnesseth, that the said party of-the first part. in. consideration of the rents and covenants herein specified, does hereby let and lease to the said party of the second part the following-described property, to wit: The lower floor and cellar of the brick buildng covering the southeast half of lot No. 17, block No. 5, Port Scott, Bourbon county, Kansas, being the store building now occupied by Mr. J. C. Bennett, together with the appurtenances, reserving the second story. Said lower floor and cellar are to be used solely and exclusively by the parties to whom leased, and no other business is to be conducted therein except groceries and such matters as pertain thereto, and lessees have no right to sublet. This lease is for the term of 12 months, to commence the 1st day of December, A. D. 1884,. at the monthly rent of $65, payable monthly in advance : Provided, That in case any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then ' it shall be lawful for the said party of the first part or his attorney to reenter into and repossess the said premises, and the parties of the second part and each and every other occupant to remove and put out. And' the said parties of the second part do hereby hire the said premises for the term above mentioned; and do covenant and promise to pay to the said party of the first part, as rent for said premises, the sum of $65 per month, in time and manner as aforesaid. And the said parties of the second .part hereby expressly waive the benefit of all exemption laws of the state of Kansas relating to personal property for the payment of said rent, and further agree that they will, at their own expense, during the continuance of this lease, keep the said premises and every part thereof in good repair, and will not re-lease or assign this lease without the written consent of said party of the first part, and at the expiration of said term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damages by the elements excepted. And the said party of the first part does covenant that the said party of the second part, on paying the aforesaid installments and performing all the covenants aforesaid, ¡.hall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid.
“Witness our hands and seals, the day and year, above written. E. F. Ware.
O. A. Nelson, [seal.'
M. B. Weedon. [seal. ”
“Lessees to permit no waste or nuisance on the property, nor keep, nor store thereon or therein, any substance that will invalidate the owner’s present insurance policy. The owners not to be called upon to make any repairs or improvements, nor to be obliged to make any unless he chooses. All glass to be put in, and property to be returned in like condition.
E. F. Ware.
M. B. Weedon.”
“This lease continued, and to run to end of December, 1886. E. F. Ware.
Nelson & Weedon.”
‘ ‘ This lease continued for one year, to the end of 1888.”
“ Rent reduced to $50 per month, and continued to another year.”
The district court, on the agreed statement of facts, rendered a judgment for the defendants. Plaintiff excepted and brings the-case here, and asks this court for a reversal of the judgment.
The onty question involved' in this case is, Where a tenancy is created from year to year, can the tenant terminate the tenancy on 17 days’ notice?
Section 2 of chapter 55, General Statutes of 1889, (¶ 3611) reads :
“ When premises are let for one or more years, and the tenant, with the assent of the landlord, continues to occupy the premises after the expiration of the term, such tenant shall be deemed to be a tenant from year to year.”
Section 5 (¶" 3614) reads :
‘ ‘ All tenancies from year to year may be determined by at least three months’ notice, in writing, given to the tenant prior to the expiration of the year.”
Under the agreed statement of facts, it is clear that the defendants were tenants from year to year, and the tenancy could not be determined by the landlord without his giving the tenants three months’ notice in writing, before the expiration of the year. If fhe landlord could not terminate the tenancy without three months’ notice in writing, we do not think that the tenants could terminate the tenancy without giving notice to the landlord, in writing, for the same length of time. The rights and duties of the landlord and tenants are reciprocal, and the tenant could not terminate the tenancy on shorter notice than the landlord could.
The judgment is reversed, and the case remanded to the district court, with direction to enter up judgment for the plaintiff, on the agreed statement of facts, for the amount of $150, with six 6 per cent, interest thereon from April 1, 1892.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkson, P. J. :
The only question presented in this case is, Upon whom was the burden of proof? “In all actions, allegations of the execution of written. instruments and indorsements thereon . shall be taken as true unless the denial of the same be verified. . . .” (Civ. Code, §108 ; Gen. Stat.1889, ¶ 4191.) The first question then to be answered is, Does the petition contain any allegation of indorsement upon the instrument declared upon? This we must answer in the negative. It could with as much propriety be said that, because the note shows on its' face that it was made November 11, 1890, and to be paid in five months, and has written thereon “Due April 11, 14, 1891,” this would constitute an allegation of nonpayment, because the court could see that the time for which it was to run had expired. Section 87 of the code provides: “The petition must contain ... (2) a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.” What are the facts constituting the cause of action as stated in this petition? That Morris made his note for a certain amount payable to the Union Investment Company in five months from its date; with a given rate of interest, that the payee sold and delivered it to the plaintiff, and that it is due and unpaid. Here is a distinct allegation of title, and how it is derived, and we think that the plaintiff is bound by it. Sale and delivery of a note do not include indorsement. It is one of the methods of transferring the title, it is true, but not the only one, and the cause of action would have been as complete if the indorsement on this note had never been written. Nor does indorsement necessarily imply a sale of the instrument indorsed.
But it is contended that a copy of the note is attached, and that the indorsement appears thereon. But is there any allegation in the petition that intimates that the plaintiff relied upon this indorsement as his source of title? Not the slightest hint is given" of any such intention. He does not allege the execution of any indorsement, nor even allege tha't it is a copy of the note with all indorsements thereon, or that the copy shows any indorsement. Can it be said that an indorsement is a part of a note? We think not. It is a sex>arate and independent contract. “The indorsement of "a note is not merely a transfer thereof, but it is a fresh and substantive contract.” (Daniels, Neg. Inst. § 669 ; Hess v. The State, 5 Ohio, 9.)
We think that, as Case did not refer to any indorsement, the unverified denial of Morris put in issue the title of Case to the note and the burden of proof was upon him. We think this is well settled in this state. In Washington v. Hobart, 17 Kan. 275, the court says :
“ Ordinarily, where anote payable to order is transferred, it is so transferred by a written indorsement placed on its back. And ordinarily, where such note is sued on, the plaintiff inserts in his petition an allegation of the execution of such indorsement, and such ‘ allegation ’ can be put in issue only by a denial thereof, verified by affidavit. . . . But a negotiable promissory note payable to order, as well as every other kind of promissory note, may be transferred in this state without any indorsement, or without any written instrument, and by delivery merely, and so as to authorize the transferee to sue in his own name. Therefore, in an action on any kind of promissory note by a person who is not the payee thereof, where the petition says nothing about any indorsement thereof, but there is an allegation in the petition stating that the note was duly transferred to the plaintiff, and that he is now the owner and holder thereof, such allegation may be put in issue by a pleading not verified by affidavit.”
A parol assignment of this note would have sustained the allegation of the petition, yet a failure to verify a denial would not admit a parol assignment. (Pattie v. Wilson, 25 Kan. 326.) If the note was in fact indorsed, the plaintiff should have alleged it in his petition as one of the facts constituting his cause of action. A failure to file an affidavit of denial mentioned in section 108 of the code admits nothing except the execution of a written instrument and the making of an indorsement thereon when they are set forth and alleged in the petition.
The judgment of the district court will be reversed, and the case remanded for new trial.
All the Judges concurring. | [
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Per Curiam:
This case is entirely similar to that of Hunt v. Allen County, 82 Kan. 824, except that in this case, while the corporation is a foreign corporation, it has its principal office in the state of Kansas, whereas in the .Hunt case the principal office of the company was not in the state of Kansas and the corporation, through its principal office or agent, could not be required to list the capital stock.
Section 9229 of the General Statutes of 1909 (Laws 1908, ch. 80, § 1) provides:
“That no person shall be required to include in the list of personal property any portion of the capital stock of any company or corporation which is required to be listed by such company or corporation; but all incorporated companies, except such companies and corporations as are specially provided for by statute, shall be required to list by their designated agent in the township or state .[city] where the principal office of said company is kept, the full amount of stock paid in and remaining as capital stock, at its true value in money, and such stock shall be taxed as other personal property; provided, that such amount of stock of such companies as may be invested in real or personal property which, at the time of listing said capital stock, shall be particularly specified and given to the assessors for taxation, shall be deducted from the amount of said capital stock; provided, that mortgages owned by any such company on property, real or personal, in any other state, shall not be deducted; provided further, that real, or personal property in any other state, or county in this state, shall be deducted if it be made to appear that the same has been duly listed for taxation in such other state or county in this state.”
Under the provisions of this section, the corporation having its principal office in this state and being required to list all of its capital stock, and being authorized to deduct the amount of capital stock invested in real or personal property, the plaintiff is not required to list his stock in the corporation for taxation. This exemption from taxation of stock in the hands of the holder thereof is positive when the corporation is required to list the same. If there is a failure to tax the corporate stock, it results from a failure properly to list and assess the property of the corporation, and not the property of the stockholder: The Hunt case emphasizes the statement that the discrimination is not as between domestic and foreign corporations, but that the exemption from taxation to the holder of the stock does not apply in case the corporation has no general office within the state.
The judgment is reversed and the case is remanded, with instructions to render judgment in favor of the plaintiff. | [
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The opinion of the court was delivered by
Burch, J.:
The board of county commissioners of Shawnee county undertook to construct a levee along the south bank of the Kansas river, partly within and partly without the city of Topeka. The state brought an action to enjoin the proceeding, and appeals from an order of the district court denying an injunction. The principal subject of controversy is the statutory power of the county board.
In 1893 the legislature passed an act entitled “An act to provide for the construction and maintenance of levees” (Gen. Stat. 1901, § 3905 et seq.), vesting power in the county board to carry out the purpose of the statute. This statute was amended in certain particulars by chapter 216 of the Laws of 1905. In 1909 the legislature returned to the subject in an act the title and a portion of the first section of which read as follow:
“An act relating to the construction of levees through cities of the first class, supplemental to chapter 104, Session Laws of 1893, as amended by chapter 216, Session Laws of 1905.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That whenever the board of county commissioners of any county in this state shall hereafter make any order granting a petition for the construction of a levee, or levees, to promote the public health, convenience and welfare, and to prevent overflow from any natural watercourse partly within or partly without or wholly within any city of the first class, under the provisions of chapter 104 of the Session Laws of 1893, as amended by chapter 216 of the Session Laws of 1905, the lands and property embraced within the boundaries of the territory described in the order of the board of county commissioners granting such petition shall be and constitute a drainage district, and with reference thereto the county commissioners shall have power in its discretion, instead of levying the entire special assessment therefor at one time, to provide for the payment of the same by installments, and issue improvement bonds therefor, payable in installments of equal amounts each year for such number of years as may be deemed advisable.” (Laws 1909, ch. 80, § 1, Gen. Stat. 1909, § 4801.)
The remainder of the act is given to the details of the drainage district and bond scheme. Express power is granted to cross the right of way of any railroad or street-railroad company with the levee, and the perpetual use of all land condemned is vested in the board of county commissioners for the purpose for which it is appropriated. None of the provisions of the previous statute is repealed, ánd that statute must be looked to as a guide in all particulars except those specified in the 1909 law.
The appellant argues that the law of 1893 applies to rural territory only; that, as a consequence, the law of 1909 can not be supplemental, but must be amendatory legislation, and so violates section 16 of article 2 of the constitution; and that the law of 1909 does not, independently, confer power upon commissioners to invade the city for the purpose of constructing a levee.
The section of the constitution referred to reads as follows:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.” (Const, art. 2, § 16.)
It may be conceded that the statute of 1893 applied, when enacted, to rural territory only. This statute is not, however, amended by the law of 1909 in any particular. Every one of its provisions remains in full force for the accomplishment of every purpose for which it was originally designed. The act of 1909 merely extends, by virtue of its own terms, the provisions of the statute of 1893. to the construction of levees wholly or partially within cities of the first class. The same question arose in the case of Wichita v. Telephone Co., 70 Kan. 441. The legislature, by reference statute, made the telegraph company act applicable to telephone companies. It was held that the telegraph company act was not amended.-
That the legislature intended, by the act of 1909, to extend the provisions of the act of 1893 to cover the subject of levees in cities of the first class is too plain for argument. Otherwise the enactment of the 1909 statute would have been a perfectly idle piece of business. It was not essential that any particular formula of reference be employed. - It is enough that such is the necessary inference from the general meaning of the act and the purpose of the legislature in framing it. In such cases the grant is as clear as if studied expres sions to effect it had been employed. (Gilbert v. Craddock, 67 Kan. 346, 352.)
That the legislature could make the provisions of the act of 1893 applicable to the subject of the act of 1909 by reference was settled in this state by the decisions in Wichita v. Telephone Co., 70 Kan. 441, and Griffin v. Gesner, 78 Kan. 669, 670. All of the provisions of the statute of 1893 are not applicable to the subject of the act of 1909, but wherever legislation by reference is permissible it is held that only those provisions of the extended act are incorporated into the new one which are appropriate to the new subject. (2 Lewis’s Sutherl. Stat. Const., 2d ed., § 405; 26 A. & E. Encycl. of L. 714.)
The foregoing interpretation of the act of 1909 seems to be required because of the difficulty encountered when an effort is made to include city levees within the terms of the act of 1893. If, however, the legislative intention has been misapprehended, the act of 1909 must be taken as a legislative interpretation that the earlier law did apply to urban territory, and in that event the result is the same.
It is a fundamental principle of constitutional law that the legislature has power to indicate by a later act what its intention was in passing an earlier one. In such event, whatever lawyer and layman may have understood-or courts may have decided, the legislature’s interpretation is binding in all cases after it has been made manifest. Assuming .the act of 1909 to be interpretative, every provision of the act of 1893 unqualifiedly stands with reference to township levees, and most of those provisions stand with reference to city levees. Indeed, nothing is repealed, but the application of the statute is merely restrained, by implication, to the extent of the new regulation respecting city levees. Only in this sense is the old law changed, and amendments by implication are not obnoxious to the constitution.
•It is said that the board of county commissioners acquired no jurisdiction to build a levee partly within the city because the petition was circulated and largely signed before the law of 1909 took effect, and because it prayed for the construction of a levee under the provisions of the law of 1898. The petition invoked the exercise of the very jurisdiction in question. It prayed for a levee partly within the city. The prayer speaks from the time the petition was presented. At that time the law of 1909 had gone into effect. It will not be presumed that the petitioners were appealing to a nonexistent power. It makes no difference whether .authority to construct a levee partly within the city were conferred by the law of 1893 or by the law of 1909, which adopted the law of 1893. That power was the very one which the petition asked to be exercised.
It is said that the streets of the city of Topeka can not be taken by levee proceedings, that no damages are allowed the city for streets taken, that benefits to streets from the levee are assessed to the city, that no method for collecting such assessments is provided, and consequently that the proceedings attacked are unlawful. The city of Topeka and its streets are wholly subject to the control of the legislature. The legislature has appointed the board of county commissioners to decide whether a levee partly within a city is necessary to prevent inundation from overflowing rivers, and to promote the public health, convenience and welfare. If the decision be that such a levee is necessary, and that it must occupy a portion of a city street, one public use yields to the other. A city is not the owner of its streets in any private proprietary sense, but is merely the agent of the state respecting them for the promotion of certain public purposes. Consequently the appropriation of its streets gives the city no right to damages, under the statute, as an owner of a division of the land taken. The statute, however, does provide that benefits shall be assessed to highways, and city streets are highways. It may be assumed that the city will discharge its lawful obligations. If it does not, the common-law remedies are available. (Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 756.)
The water mains, hydrants and electric-light fixtures of the city are private property, owned by it in its corporate capacity. They have a permanent situs within the drainage district, and constitute “property” and “other property liable to assessment” within the meaning of the act. There is no constitutional or other impediment to the assessment of such property for benefits conferred by an improvement of the kind in question. (2 Page & Jones, Tax. by Assess. § 548.)
The county is the party primarily liable upon the bonds provided for, the property in the drainage district being charged with their payment.
Other objections to the proceedings sought to be enjoined are untenable, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Both parties appealed from the judgment of the trial court, and by agreement the appeals, were submitted together.
On February 1, 1889, John W. Gray and Elizabeth A. Gray, his wife, executed a mortgage on the land in question to secure the payment of a note for $2000, payable five years after that date, with interest. The Southern Kansas Mortgage Company was the mortgagee, but before the commencement of this action assigned the note and mortgage to Charles E. Ellis, who brought the action to foreclose the same. Both Gray and his wife died before the maturity of the note and mortgage. Before his death the husband conveyed the land to his wife. She died April 10, 1892, leaving-as her only heirs at law Elizabeth D. Snyder (who had been theretofore married to one Bert Snyder), Tina. Gray (who together with Elizabeth D. Snyder had attained her majority), and three sons and two other daughters, who were all minors. At a time prior to* the death of Mrs. Gray, Bert Snyder had rented a portion of the land in question, and soon after her death he and his wife, Elizabeth, moved upon the land and continued to occupy it until this action was brought.. Bert Snyder made an oral contract with the guardian of the minor children for the purchase of their interest-in the land, conditioned upon the approval thereof and' order of the probate court. No action, however, was; taken by the court in relation thereto.
Bert Snyder borrowed money of the mortgagee to-pay insurance, buy seed wheat, pay taxes, etc., from September 18, 1895, to February, 1900. He made payments from time to time to the mortgagee from October, 1895, to November, 1901, which were almost entirely from the proceeds of wheat and com raised on the farm. On November 14, 1896, he paid the mortgagee, from the proceeds of wheat, $44.20; and on December 20, 1896, from the proceeds of corn, $19.25. At neither of these dates was he indebted to the mortgagee on any account other than the mortgage. These two payments, aggregating $63.45, must be regarded as payments on the interest, and at the time the payments were made neither the principal of the mortgage debt nor any interest thereon had been due five years. Thereafter, from time to time, Bert Snyder borrowed further sums of money from the holder of the mortgage, and repaid certain amounts from the proceeds of the farm, until November 16, 1901, when the sum of the payments exceeded the amounts borrowed by over $700; but at no time did he pay an amount equal to the interest due on the mortgage.
Elizabeth Snyder objected to her husband’s plan to buy out the interest of the minors in the land for $100, as he had agreed with the guardian, and to pay off the mortgage; but she signed with him chattel mortgages on the growing crops to enable him to carry out the plan, and she knew generally of the payments he made, and, from the general findings of the court against her, it must be assumed that it found that she acquiesced therein. The evidence, while conflicting, is sufficient to support such a finding. There is no evidence of any agreement that she should convey her interest to her husband. The payments were made in her behalf as well as in his, and were in fact her payments as well as his.
The other adult heir, Tina Gray, lived with the Snyders on the farm some time after the death of the mother and before she married William Marks. The undisputed evidence is that she was present when the tentative agreement was made between Bert Snyder and the guardian of the minors and agreed to deed her interest in the land to Bert Snyder, but said they could not pay the mortgage and had better let it take the land. Mr. Bishop, the guardian, testified that he thought there was nothing in the land for his wards, never made any effort to get possession for them, and agreed, if the probate court would approve it, to sell their interest to Bert Snyder for $100. It thus appears that Bert Snyder and his wife continued in possession by the consent or acquiescence of all the other cotenants, and made the payments on the interest for the benefit, in part, of each. It also appears that the holder of the mortgage was about to foreclose it at the time this arrangement was made, and, relying thereon, forbore such action. Under such circumstances it would seem very inequitable, if not illegal, to permit the cotenants who paid nothing, years after, when changed conditions have greatly augmented the value of the property, to set up the statute of limitation and take their respective interests in the land, free of encumbrance, and thus not only debar the mortgagee from recovering a large portion of his just claim but also subject the interest of the .cotenant who strove and paid, in part, to be entirely taken for the remainder.
It was held in Clute v. Clute, 197 N. Y. 439, as reported in a headnote in 27 L. R. A., n. s., 146:
"Interest payments upon the mortgage debt by the son of the mortgagor who, having been let into possession of the property, during the lifetime of. the mortgagor under an agreement to work it on shares, continues his possession after the-mortgagor’s death, with the acquiescence of his brothers and sisters, prevent the running of the statute of limitations in favor of the latter against the mortgage debt.
“A tenant in common in possession of mortgaged real estate owes the duty to his cotenant to pay the interest maturing on the mortgage.”
(See, also, 2 Jones, Mort., 6th ed., § 1198; Freem. Coten. & Part., 2d. ed., §371; Hollister v. York and others, 59 Vt. 1; Eads v. Retherford et al., 114 Ind, 273.)
We have not been cited to, nor do we recall, any Kansas case that involves this question. The principle-enunciated in Clute v. Clute, supra, and in Lawton v. Adams et al., 13 Ohio C. C. 233, seems entirely just: and equitable, when applied to the present case. In the case last cited it was said:
“Where one of the owners of the land comes to him and offers to pay upon the note (in this case one of the heirs), it would seem to be that upon principles of' j ustice and equity, as between the mortgagee and these various persons holding an interest in the land, that, payment by one should be held to be the joint act of all, a payment made for the purpose, primarily, of relieving the property from the debt; that is to say, that it is made to reduce the indebtedness upon the land, and is made for the benefit of all, and should be binding upon all.” (p. 237.)
We hold, accordingly, that the action to foreclose the mortgage was not barred as to any one of the defendants in the court .below. The case is therefore remanded, with instructions to render judgment in favor of the holder of the mortgage against all of the defendants. | [
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Per Curiam:
The entire paragraph beginning on page 10 of the appellant’s abstract with the words “By reason of the fact,” etc., is stricken out as argumentative and as stating conclusions from the evidence instead of the substance of the evidence itself.
On page 14 of the abstract the sentence beginning “The evidence conclusively shows,” etc., is stricken out as stating a conclusion instead of the substance of the evidence.
Leave is granted the appellant to abstract the testimony relating to these subjects, indicating the witnesses by whom the various portions were given. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal is taken from an order restraining the appellant from taking the depositions of J. H. Peterson and Inez Peterson, who were parties to the suit and who resided in a county adjoining the one i'n which the action was pending. There was evidence that the Petersons intended to be present at the trial, that there was nothing in their situation or circumstances to prevent them from attending the trial, and that the appellant had no reason to apprehend that they would not be there to testify. There was further evidence that the appellant was not proceeding in good faith, that she was merely “fishing,” and that her purpose was to harass and oppress her adversaries. Under these circumstances the court did not abuse its discretion in issuing the order. The case of In re Abeles, 12 Kan. 451, upon which the appellant relies, does not apply. The distinction between the right to the deposition of a party and of a witness not a party is pointed out in the case of In re Merkle, Petitioner, 40 Kan. 27, 30, and the court properly applied the principle recognized in the cases of In re Cubberly, Petitioner, 39 Kan. 291, and In re Davis, Petitioner, 38 Kan. 408. Besides this, the court in which the action is pending always has the power to protect a party whom it restrains in this manner from any injurious consequences of the order, should any result.
Since, the appeal was taken the case has been tried. At the time of the trial the Petersons were both living within the jurisdiction of the court, and were accessible as witnesses. Consequently their depositions could not have been read. (Code 1909, §§ 337, 358.) J. H. Peterson was a witness at the trial, testified fully, and was examined by the appellant. Any purpose which the appellant might have entertained to use the testimony of Inez Peterson was abandoned and she was not called. Therefore, aside from the fact that the restraining order was originally justifiable, the appellant has not been prejudiced.
The appellant says she has moved for a new trial and hopes to obtain one. Should she succeed, her substantial rights have not been infringed.
The judgment of the district court is affirmed. | [
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Per Curiam:
This is an action to recover on a note given by the appellee to the appellant, wherein the appellee pleaded as a set-off the price of a sow sold by him to the appellant. The demurrer to the evidence of the appellee was properly overruled. The testimony of an agreement to purchase, the purchase at the sale by one claiming to act for the appellant and the acceptance of the sow by the appellant when she was shipped to him warranted the inference of the jury that a purchase was made by the appellant and that a liability for the price arose.
The admission of what occurred at the sale, including the- memorandum of the clerk, is no ground for reversal. If the foundation for its introduction was not properly laid when the testimony was received, there was sufficient basis for its admission before the testimony was closed. That testimony may have been received out of order is not a good ground of complaint.
There was sufficient foundation to authorize the admission of secondary evidence of the letter Written by the appellant’s agent.
No material error being found, the judgment is affirmed. | [
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Per Curiam:
The motion to dismiss can not be sustained. The petition in error was filed May 31, 1909. Rule 4 provides that after May 29, 1909, a party seeking a reversal of a decision rendered prior thereto may avail himself of so much of the old or new procedure as may be necessary to preserve his right of review.
It was error to sustain the demurrer to the petition. The inconsistent averments might have been stricken out on motion, but furnish no grounds for sustaining the demurrer, if by rejecting them a cause of action appears to be stated. It is conceded that a mistake as to the law of another state is a mistake of fact, but it is urged that the plaintiff’s petition discloses laches; that she has been negligent in not reading up on the law of Ohio. A woman eighty-four years of age, who has resided in Kansas for many years and is ignorant of the laws of another state, and who relies upon the statements of her adopted son that such laws are thus and so, can not, as a matter of law, be held guilty of laches in failing to discover the truth with respect thereto.
The plaintiff had the legal capacity to sue as an individual, although she was the trustee holding the proceeds of the estate of Mary Nicholson, with the under standing and agreement that she should have the use thereof during her life, the same to be distributed among the owners at her death. She could maintain the action in her own right because she was personally deprived of the use of the property; and to the extent that she may be said to represent the heirs of Mary Nicholson she could sue without joining with her those for whose benefit the action was prosecuted. (Civ. Code, § 28, Gen. Stat. 1901, § 4456, Code 1909, § 27.)
The judgment is reversed and the cause remanded, with instructions to overrule the demurrer. | [
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Per Curiam:
Tone Kluber recovered a judgment against John Shannon for a commission upon a real-estate sale, and the defendant appeals. The sole question presented is whether the evidence warranted a finding in favor of the plaintiff. There was a sharp conflict in the testimony, some of which tended to show that the land was sold by the independent efforts of the owner, while another portion sustained the.view that the agent was the procuring cause of the sale, although he did not actually consummate it. Under these circumstances the judgment must be affirmed. | [
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'The opinion of the court was delivered by
Porter, J.:
The appellee brought this action to quiet his title to certain real estate in the city of Kiowa, of which he was in possession and to which he claimed title by a conveyance from the heirs at law and next of kin of Kate Craven, who died intestate April 30, 1900, while seized of the title. At the time of her death Mrs. Craven was a widow and left no parent or children or descendants of children living. Her next of kin were brothers and sisters and descendants of brothers and sisters, all of whom were nonresident aliens living in Ireland. The common ancestor of Mrs. Craven and the appellants was her grandfather and their great-grandfather, who lived and died a nonresident alien, as did also his two sons, the father of Mrs. Craven and the .grandfather of the appellants respectively. Richard St. Lawrence, father of three of the appellants, was a cousin of Mrs. Craven. He was born in Ireland and came to the United States in 1862, and at the time of his death, which preceded that of Mrs. Craven, he was a resident and citizen of this country. He had four children, Patrick R. St. Lawrence, Mary A. Doherty, James J. St. Lawrence and Richard T. St. Lawrence. These children are all living, and reside in Chicago, Ill. They were all citizens of the United States at the time of the death of Mrs. Craven. One of them, Richard T. St. Lawrence, has conveyed any interest he has in the real estate in controversy to James R. McCann, who is the other appellant.
In June, 1900, after Mrs. Craven’s death, James J. St. Lawrence, one of the appellants, who is a lawyer residing in Chicago, procured from the next of kin in Ireland, who are the same persons through whom the appellee claims, a power of attorney as “next of kin and heir at law of Kate Craven, deceased,” which gave him full power and authority to represent them as their attorney in fact as to the real and personal property of the deceased.
On October 16, 1900, Mr. St. Lawrence went to Kiowa and took possession of the real estate in controversy, which consists of a hotel and a number of lots appurtenant thereto. He had the property insured in his name, as “attorney for the heirs of Kate Craven, deceased.” His power of attorney was filed for record in Barber county, August 4, 1902. On his first visit to Kiowa he was there several weeks. Before leaving for his home he found a tenant for the hotel, and arranged with an agent in Kiowa to collect the rents. This agent collected the rents and remitted the same to him until sometime in June, 1906, when he declined to have anything more to do with procuring tenants or looking after the property, but agreed to continue to remit to Mr. St. Lawrence the rents which were afterward collected by J. B. Cramer & Co., real-estate agents. This firm, of which the appellee was a member, acted as the agents of Mr. St. Lawrence in procuring tenants. They collected rents, charged a commission, and paid the balance to the former agent at Kiowa, who remitted to Mr. St. Lawrence. This arrangement continued until July 1, 1907.
In April, 1907, the alien next of kin living in Ireland executed a new power of attorney to John W. Ellis, of Chicago, 111., in which they revoked the former power of attorney executed to James J. St. Lawrence, and authorized John W. Ellis to represent them in all matters connected with the estate of Kate Craven, deceased, and to sell and convey by warranty deed all their right, title and interest in the real estate. On April 22, 1907, John W. Ellis, acting under his power of attorney, notified the local agent at Kiowa who had been remitting rents to James J. St. Lawrence that he represented the next of kin and heirs of Kate Craven, and procured from the agent a statement in writing recognizing him as the lawful agent of the heirs. On May 7, 1907, John W. Ellis, as attorney in fact for the Irish heirs, sold and conveyed the real estate in question to Harry A. Lewis, of Cook county, Illinois, and, on July 1, 1907, Lewis conveyed .the same by warranty deed to J. B. Cramer. From that date Cramer retained the rents. The same tenant continued to occupy the hotel. Afterward, on September 5, 1907, Cramer brought this action to quiet his title.-
The appellants filed their answer and cross-petition, each claiming to own an undivided one-fourth interest in the property in controversy. It was alleged that the appellants were all resident citizens of Chicago, Ill., at the time of the death of Kate Craven, and that the persons through whom the appellee claims were not her true and lawful heirs. The answer and cross-petition further expressly denied that J. B. Cramer was in the possession of the real estate when the action was commenced, and alleged that whatever possession he held was obtained by fraud and collusion, and without their knowledge, and that in truth and in fact his possession was theirs, inasmuch as he had secured the same while acting as their agent for the purpose of collecting the rents. They asked for affirmative relief quieting their title as against him.
Issues were joined and the cause tried to the court. The court found for the plaintiff and rendered judgment quieting and confirming his title to the real estate as against the appellants. This is the judgment which is sought to be reversed.
The controversy is between the appellee, who is the grantee of the Irish heirs of Kate Craven, who were her brothers and sisters and children of deceased brothers and sisters, all of whom were aliens at the time of Kate Craven’s death, and the Chicago heirs, whose father was Kate Craven’s cousin, and who were citizens and residents of the United States at the time of her death. The family tree showing the next of kin of Kate. Craven, both citizens and aliens, appears in the accompanying diagram (inserted opposite page 720), the names of citizens being in bold-faced type.
As the constitution was originally adopted in 1859 section 99 thereof, which is section 17 of the bill of rights, read as follows:
“No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property.”
In 1888 the constitution was amended and this section made to read:
“No distinction shall ever be made between citizens, of the state of Kansas and the citizens of other states and territories of the United States in reference to the purchase, enjoyment or descent of property.' The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.” (Bill of Rights, § 17.)
Pursuant to this amendment, the legislature of 1891 adopted what is known as the “alien land act,” which is chapter J5 of the Laws of 1891. Kate Craven died on April 30, 1900. At that time the alien land law was in full force and effect, although it was afterward repealed. (Laws 1901, ch. 1.) The act itself is entitled “An act in regard to aliens, and to restrict their rights to acquire and hold real estate, and to provide for the disposition of the lands now. owned by nonresident, aliens.” It has frequently been before the court, and' was construed in the following cases: Wuester v. Folin,, 60 Kan. 334; Smith v. Lynch, 61 Kan. 609; Investment Co. v. Trust Co., 65 Kan. 50; Madden v. The State, 68 Kan. 658; The State v. Ellis, 72 Kan. 285. It is one of' the contentions of the appellants that under the alien, land act, as construed by these decisions, the appellee' acquired no title whatever to the land in controversy by virtue of the conveyance from the Irish heirs, who. were all nonresident aliens at the time of her death.
This is an action to quiet title, and the judgment, in favor of the appellee is in effect a finding that when the action was brought he was in possession of the property, claiming title. As there was evidence sufficient to sustain this judgment, the first inquiry must necessarily be with respect to the title of the appellants themselves; for, if they have no title, they can not question that of the appellee. Being in the peaceable possession of real estate, claiming the title thereof, he has such an interest therein, although his title be ever so defective, that he may maintain this action to quiet his title and possession as against the appellants, who have no title at all. (Giltenan v. Lemert, 13 Kan. 476; Brenner v. Bigelow, 8 Kan. 496; Waller v. Julius, 68 Kan. 314.) The appellants are children of a cousin of Kate Craven, and, in order to inherit as next of kin, they must trace their descent through their father up to their grandfather, who was always a nonresident alien. That they can not do this is settled by the doctrine in Smith v. Lynch, 61 Kan. 609. They do not take as brothers and sisters of Kate Craven, immediately, and therefore they acquired no title to the real estate, because they must claim through their grandfather, who by reason of his alienship could not inherit by descent. The precise question here— whether a cousin can inherit immediately from a cousin, or whether children can inherit immediately from the cousin of their parent — was not decided in Smith v. Lynch, supra, but the principle involved in both cases is the same. That was a case where nephews and nieces sought to inherit immediately from an uncle, without tracing the descent through their deceased alien father. It was said in the opinion:
“The effect of the alien land law is not only to exclude living aliens from acquiring title to lands in this state by descent, but is also to prevent the transmission of title through them under the operation of the act concerning descents and distributions before quoted. The disqualification is not alone of the living, but it is, as it were, of the dead as well.” (61 Kan. 613.)
It was held that the effect of the alien land law was to exclude the nephews and nieces from inheriting. One of the cases relied upon in Smith v. Lynch, supra, is Meier v. Lee et al., 106 Iowa, 303, holding that a cousin does not inherit immediately from a cousin, but only mediately, through the parents of each. Other authorities in point are: Jackson v. Green, 7 Wend. (N. Y.) 333; Lessee of Levy et al. v. M’Cartee, 6 Pet. (31 U. S.) 102; McGregor v. Comstock, 3 N. Y. 408; Wilcke v. Wilcke, 102 Iowa, 173. (See, also, The State v. Ellis, 72 Kan. 285.)
There is considerable discussion in the briefs as to whether the evidence shows that Kate Craven was an alien or a citizen at the time of her death. In our view of the case, this question is not material. The grantors of the appellee had a claim of title, based on the contention that their intestate died an alien. Since none of the appellants acquired any interest in the property, they are not in a position to contest this claim, and, as said in Investment Co. v. Trust Co., 65 Kan. 50, “the state is competent to care for itself and protect its own interests.” (p. 54.) The state not being a party to this action, the ultimate rights of the appellee as against the state are not involved, and it becomes unnecessary to consider or determine whether or not the grantors of the appellee acquired any interest in the property. Nor is it necessary to consider a question raised by the appellee as to the constitutionality of the alien land law.
But one question remains, and it is in respect to the character of the appellee’s possession. The judgment is a finding that he had peaceable, quiet possession. It is not disputed that the real-estate firm of which the appellee was a member were the agents of James J. St. Lawrence and represented him in renting the hotel property and collecting the rents. At the time St. Lawrence took possession of the real estate he held a power of attorney from the Irish heirs authorizing him to represent their interests in the property. .He took possession of the real estate under it, had the property insured in his name as agent for the heirs at' law of Kate Craven, deceased, and placed his power of attorney on record. He testified at the trial that about the time the power of attorney was being executed he learned, through some correspondence with Mr. Noble, who is now one of the attorneys for the appellee, that there was some question as to whether the Irish heirs could inherit the land, on account of being aliens. He testified that from that time on it was a problem in his mind whether he represented the Irish heirs by virtue of his power of attorney or whether he represented himself and his brothers and sisters; but that at the time he first learned of this action having been brought he believed he represented the interests of his brothers and sisters, not, however, as their attorney or agent, but simply as the advisor of the family. He testified further as follows :
“I was always advisor of the family and looked after the matter in a general way, and in a manner I had possession of the real estate for them. ... I held in common for them as well as for myself. I never accounted for one cent to my brothers and sisters and never settled with them for any rents that I received, because my expenses had to come out of the estate.”
Again he testified:
“I really do not know whether I was attorney for the heirs in Great Britain, or attorney for the heirs in Chicago. That was the predicament I was in, and consequently I can not answer the question intelligently. The point is that I did not know who the heirs were.”
There can be no question, under the evidence, that he was acting as the attorney for the foreign heirs, and no one else. He had a duly executed power of attorney from all of them authorizing him to represent them. He had no authority to represent his brothers and sisters. Besides, neither he nor his brothers and sisters ever had or could acquire by the laws of descent any interest in the property. The next of kin com petent to take by the laws of descent were the Irish heirs, unless they were prohibited from taking by virtue of the alien land law. We think the evidence warranted a finding that he took possession of the property as the attorney in fact of the Irish heirs. When they revoked his power of attorney and. authorized another person to act for them his authority ceased. So far as J. B. Cramer & Co. or the appellee acted for him, they acted as the agents of his principals. The revocation of the power of attorney under which he had acted restored to the Irish heirs whatever rights in the property they possessed, including the right to the possession as against him and any agents he had appointed.
The appellants can only prevail upon their cross-petition, upon the strength of their own title, and not upon the weakness of their adversary’s. Never having acquired any title to the real estate themselves, they were not entitled to affirmative relief; and, the appellee having been in the peaceable possession of the property under a claim of title when the action was brought, the judgment, so far as any rights of the appellants are concerned, is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The defendant was convicted of the-crime of forgery in the district court of Labette county, and he appeals to this court. The appellant was indebted to a bank at Altamont, and desired to borrow from J. M. Piper the money ($81) with which to pay the debt. To obtain this loan he proposed to give a note executed by J. W. Boggess and two other persons, which was satisfactory. He obtained a’blank note and started as if to obtain the signatures of the persons named. After a time he returned to Mr. Piper with the note properly signed, and obtained the money. The name of Boggess was incorrectly written, being W. J. instead of J. W. The note when due was paid by the appellant. The signatures of the two other persons were attached by the parties at the appellant’s request. The only question was as to the signature of Boggess. The appellant testified that he presented the note to Mr. Boggess where he was at work, and that Boggess re quested the appellant to sign the note for him, and gave the appellant a pencil for that purpose. In making-the signature the appellant transposed the initials by-mistake. Mr. Boggess denied the entire transaction. The evidence of these two witnesses was the only testimony presented, and they were directly opposed to each other.
The state then produced testimony to the effect that the appellant had previously committed another forgery of a similar character. This was objected to, and the admission of this evidence is assigned as error and is the principal objection presented. The rule is well settled that testimony tending to show the' commission of an offense other than the one charged' is not admissible where there is no connection between them; but this rule has its exceptions. Where one of the material elements of the offense charged is a particular intent, as in the offense of forgery, such evidence may be given to establish such intention. (13 A. & E. Encycl. of L. 1109; 19 Cyc. 1417; 4 Ell. Ev. § 2994; 3 Greenl. Ev., 16th ed., § 111; State v. Hodges, 144 Mo. 50.)
The case of People v. Molineaux, 168 N. Y. 264, in 62 L. R. A. 193, 249, has a note appended to it which fully collates the cases upon this subject in a very satisfactory manner, and the weight of authority seems to sustain the view taken by the trial judge in this case. The court fairly and fully instructed the jury as to the purpose for which the evidence was admitted, and to what extent it1 should be considered by them. In fact the appellant’s rights seem to have been carefully guarded throughout the trial. We are unable to find any material error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
M. F. Sickly, as treasurer of Allen county, claimed to be entitled to a salary of $2000. The commissioners paid him upon the basis of $1800. He sued for the difference, and, having failed to recover, appeals. The statute provides that the treasurer’s salary shall be $1800 in counties having between 25,000 and 30,000 inhabitants, and $2000 in those having from 30,000 to 35,000 (Laws 1899, ch. 141, § 2, Gen. Stat. 1909, § 3656), the number to be determined “from the last returns of the assessors in each year.” (Laws 1899, ch. 141, §22, Gen. Stat. 1909, § 3679.) 'The assessors’ returns for 1908 showed a population of 28,233, and the commissioners acted upon these figures. The plaintiff, however, maintains that the statute authorizes an enumeration to be made only once in ten years, counting from 1875; and that, therefore, the census of 1908 was void, and the salary should be de termined by that of 1905, which showed a population of 30,931. The decision turns upon the soundness of this contention.
In 1873 the legislature passed an act (Laws 1873, ch. 75) reading:
“Section 1. That the several township and city assessors, in addition to their duties as heretofore prescribed, shall annually, on or before the 10th day of June, make an enumeration of the persons residing in their respective townships and cities, and make return thereof to the county clerk, with their returns of the valuation of property.
“Sec. 2. That . . . county clerks . . . are hereby required to make return annually to the auditor of state of the aggregate number of persons residing in their respective counties, as ascertained and returned to them in compliance with the requirements of the preceding section of this act.”
At that time a law was in effect requiring certain agricultural and industrial statistics to be gathered and reported to the state board of agriculture. (Gen. Stat. 1868, ch. 25, §§ 80-83, amended by Laws 1869, ch. 30, § 1, and later amended by Laws 1873, ch. 137; see Gen. Stat. 1909, § 679, et seq.) An amendment to this law in 1875 required these statistics to include schedules showing “the name, age, sex and color of each person ; place of birth, and where from to Kansas; number of families, and number of persons in each family.” (Laws 1875, ch. 67, § 3, Gen. Stat. 1909, § 680.) Section 7 of the amendatory aet provided that the enumeration of inhabitants and other statistics should be taken in 1875 and every tenth year thereafter, “unless otherwise provided by law.” This section was amended in Í877 (Laws 1877, ch. 182, § 1, Gen. Staff 1909, § 684), by providing that certain statistical information should be gathered annually, but that the enumeration of inhabitants should be made every tenth year, the words “unless otherwise provided by law” being omitted.
The plaintiff argues that the acts of 1875 and 1877 covered the entire subject matter of that of 1873, and, therefore, repealed it by implication. We think the argument unsound. The earlier statute provided for a mere count of the inhabitants to be made each year; the later one provided that once in ten years a variety of information should be collected, including the age, sex, color and nativity of each inhabitant. The purposes of the two statutes were not the same. Neither could be an adequate substitute for the other. Moreover, when the act of 1873 was passed there was already in force a law for the taking of the census every ten years. (Laws 1865, ch. 20, Gen. Stat. 1868, ch. 17.) That law was repealed by the act of. 1875 already referred to, which took its place. The legislature obviously intended in 1873 that the provisions for the annual enumeration and for the decennial census should exist side by side, and nothing in the subsequent legislation indicates a change in that purpose. As already shown, the present statute refers to the returns regarding population made by the assessors “in each year.” (Laws 1899, ch. 141, § 22, Gen. Stat. 1909, § 3679.)
The contention of the plaintiff takes some color of plausibility from the fact that the act of 1873 does not appear in the general statutes as now published. The act appeared under the title “Census,” in connection with that of 1875, in the compilations of 1879 (§§ 597, 598), 1885 (§§ 621, 622), and 1889 (§§ 531, 532). In the Webb statutes of 1897 the second section was omitted, but the first was printed twice. (Gen. Stat. 1897, ch. 22, § 12, ch. 157, § 9.) Since then both sections have been omitted from the compilations, but of course such omission can not render them obsolete, and since they have not been repealed, either expressly or by implication, they are still in force.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal involves an allowance for improvements in distributing the proceeds of the sale of lands made in a proceeding in partition. The rights and ownership of the several contending parties in the tract of land were determined in McKelvey v. McKelvey, 79 Kan. 82. In pursuance of the mandate in that case judgment was rendered awarding four-eighths of the tract to John A. McKelvey (he having acquired the shares of the other children), three-eights of it was awarded to Anna K. McKelvey, and one-eighth to I. O. Pickering. As partition in kind could not be made, a sale of the land was ordered. Commissioners were appointed who appraised the land with improvements on it at $15,630, fixing the value of the improvements at $4430, leaving the value of the land without improvements on it at $11,200. John A. McKelvey elected to take the land at the appraised value, and paid $7815 into court, being one-half of the appraised value of the land with the improvements. Account was taken by the court of the taxes paid by John A. McKelvey on the land since June, 1903, when his father died, and three-eighths of the amount, to wit, $128.29, was charged to Anna K. McKelvey and one-eighth of the amount, $42.76, was charged to I. O. Pickering. It had previously been decided that appellants, who had been wrongfully kept out of the possession of the land, were entitled to rents on one-half of the tract at the rate of $3 per year per acre from June 24, 1903. Allowances were made for attorney’s fees and costs, and these were apportioned among the parties. No complaint is made of these allowances, nor of those made to John A. McKelvey because of the payment of taxes, but Anna K. McKelvey and I. O. Pick ering do complain of the ruling charging them with $2400 for the improvements that had been made and deducting that sum from their shares of the proceeds of the sale.
In making partition it is competent for a court to allow a cotenant compensation for improvements honestly made which add to the value of the land. (Sarbach v. Newell, 30 Kan. 102; Scantlin v. Allison, 32 Kan. 376.) The improvements which become the subject of equitable recognition and . adjustment in partition, however, are those made during the joint ownership of the parties. In this case most of the improvements for which an allowance was made were put upon the land when it was owned by John C. McKelvey, the father of appellees. From the abstract it appears that $1000 of the amount was expended in the erection of a dwelling house in 1885, that three years later $400 of the amount was expended in the erection of a bam, and at some later time not stated $600 was expended for other improvements upon the land. The land was the property of John C. McKelvey until his death, on June 24, 1903. The pretended negotiations and transfers of the land under which appellees claimed were fraudulent and void. It can not be claimed that the improvements placed upon the land by appellees prior to the death of John C. McKelvey were , made in good faith. The transfers to and the occupancy of appellees were a part of a fraudulent scheme to defeat Anna K.' McKelvey from obtaining a share in her deceased husband’s estate to which she was entitled under the statute. These improvements were made with, a wrong purpose, with full knowledge of the facts; were made without any inducement or consent of appellants, and there is no equitable consideration which requires an allowance for compensation for improvements so made. When John C. McKelvey died one-half of his land, as it then stood, descended to his widow and the other half to his children. They then became cotenants, and any lasting improvements honestly made thereafter which enhanced the value of the land may be the subject of equitable recognition and compensation in making the partition. (Code 1909, § 648; Phipps v. Phipps, 47 Kan. 328.) The credits and charges are to be reckoned from June 24, 1903, when John C. McKelvey died. That was the time when his widow and children acquired their several interests in the land. The widow and Pickering, to whom she sold one-eighth of the land, were properly charged with the taxes paid by John A. McKelvey after that time. They were also properly credited with the rents and profits which accrued subseqüent to that time, and John A. McKelvey can not rightfully claim compensation for improvements made before his father died and the property descended to his heirs. The record does not disclose whether any improvements were made after the devolution of the property, but does show that improvements of the value of $1400, for which a claim was made, were put upon the land long prior to the death of John C. McKelvey. It is impossible to determine from the findings whether appellees are entitled to any compensation for improvements on the land, and, if any, how much, and hence this must be left for further action of the trial court, guided by the rules herein stated.
The order of distribution must therefore be reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Smith, J.:
It is conceded in this case that a certificate, or petition, properly signed by 118 electors of the county is sufficient to nominate an independent candidate for county treasurer. A petition was filed with the county clerk containing the names of 125 electors nominating the petitioner as an independent candidate for county treasurer of Geary county, but less than 118 of the signers thereto stated their residence and post-office address thereon.
Objections were filed to the petition, and the clerk of the court, county clerk and county attorney met to consider the objections thereto. They found, in substance, that the petition was properly signed by only 108 of the electors, and that the other signers had not stated their residence and post-office address. Thereupon 17 of the signers to the original petition, who had not stated their residence and post-office address thereon, filed an amended petition stating the residence and post-office address of each. The tribunal, however, decided that the petition was insufficient and that it could not be corrected by the amended certificate. This decision was erroneous. (Laws 1897, ch. 129, § 9, Gen. Stat. 1909, § 3256; Simpson v. Osborn, 52 Kan. 328, 332; Rathburn v. Hamilton, 53 Kan. 470.)
That the decision of the clerk of the court, county, clerk and county attorney holding a nominating petition insufficient creates a vacancy is plainly indicated by the section of the statute and the decisions above cited. It is as plainly indicated that the vacancy maybe filled by the persons or organization making the original nomination, and it was said in Rathburn v. Hamilton, supra, at page 475, that such vacancy may be so filled at any time before election.
Section 3257 of the General Statutes of 1909 (Laws 1897, ch. 129, § 10) expressly provides that the decision of the officers designated to consider objections to a certificate of nomination, or petition, shall be final. We can not, therefore, disregard or correct this decision ; but, as before indicated, there is an express remedy provided by statute.
The writ of mandamus prayed for is therefore denied. | [
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The opinion of the court was delivered by
Graves, J.:
This is an action to set aside a will because the testator did not possess testamentary capacity when the will was 'made and because of the undue influence of the principal legatee in causing the will to be made. The action was brought by several of the smaller legatees. The will was sustained by the district court, and the plaintiffs appeal.
The principal error of which the appellants complain is the failure of the court to file findings of fact and conclusions of law separately, as requested. It is claimed that the paper filed purporting to be in compliance with this request required a different judgment to be rendered from the one that was entered. The court evidently thought it was fully complying with this request, and to show what was done in this respect the court’s work is given in full. As a part of the judgment the court found:
“And now, on this 2d day of August, A. D. 1909, the court having been heretofore requested to make findings of fact and conclusions of law in the above-entitled action, the court finds:
“ (1) John M. Harper died on the first day of April, 1907, leaving him surviving as his heirs at law, who were all of the heirs and the only heirs at law surviving him, to wit, Robert H. Harper and others, plaintiffs, and James M. Harper and others, defendants.
“ (2) That since the bringing of this action James M. Harper departed this life, on August 14, 1908, leaving him surviving as his only heir at law Min. S. Harper, and this cause has been duly and regularly revived as to said Min. S. Harper, who appeared in thi's action and adopted the answer theretofore filed by the said James M. Harper, deceased.
“ (3) That John M. Harper duly executed his will on tne 17th day of July, 1906, being the will' herein in controversy.
“ (4) That prior to the first day of June, 1903, and for many years prior thereto, John M. Harper, late of Sumner county, Kansas, deceased, resided at. or near Assumption, in the state of Illinois, and during that time was possessed of real estate and personal property as hereinbefore set out, to wit: [Here follows a description of the real property.]
“He also owned certain notes and mortgages of the value of $13,500.
“He also was possessed of a large sum of money which was deposited in the bank of Assumption, 111., and at said time was also possessed of personal property consisting of notes, mortgages and money.
“(5) That the said John M. Harper and his wife during their lifetime never had any children.
“ (6) The wife of John M. Harper died in September, 1902, and after her decease he lived with Joseph Kemmerer, Joseph Harper, Alonzo Harper, and William Kemmerer, until he came to Conway Springs, Kan.
“ (7) In the month of February, 1903, the said John M. Harper was taken ill and was ill at the house of Joseph Kemmerer (whom he had raised and who had for years lived on his farm) for the space of about two weeks, and after he became convalescent he was taken to the home of Joseph Harper, who lived on one of the tracts of land belonging to the said John M. Harper.
“ (8) During the time of his illness at the home of Joseph Kemmerer,-James M. Harper, deceased, went from Conway Springs, in Sumner county, Kansas, to Assumption, 111., and went to the home of Joseph Kemmerer, and at said time said James M. Harper was desirous that said John M. Harper should accompany him, the said James M. Harper, to Conway Springs, Kan., and make his home with the said James M. Harper.
“(9) That the said James M. Harper was a banker in Conway Springs, and had been in such business at Conway Springs since 1885. That during the time that James M. Harper lived in Conway Springs, John M. Harper visited James M. Harper, together with Robert Harper, once prior to 1903. That during the time that the said John M. Harper lived in Assumption, 111., the said James M. Harper visited the said John M. Harper — prior to the death of the wife of the said John M. Hárper — three times, which said visits were limited to two or three days with the said John M. Harper and other relatives. After the death of the wife of John M. Harper, the said James M. Harper wrote four letters to the said John M. Harper to come and live with the said James M. Harper at Conway Springs, Kan., and in said letters held out the inducement to. said John M. Harper that he could avoid the payment of taxes on personal property for the year 1903, if he, the said John M. Harper, left Illinois and went to Conway Springs prior to April, 1903, and that he could get a greater rate of interest on moneys in Kansas and live without expense.
“(10) That said John M. Harper at the time of his decease, April 1, 1907, was of the age of 82 years. That in his younger years the said John M. Harper was a stout, vigorous, hard-working, prudent and economical man. That in his after years and at the time of the death of his wife he had become, of his age and experience, impaired in mind and body about as is usual of such persons, and remained so until his death.
“ (11) That in his after years, and particularly after the death of his wife, John M. Harper was very close and saving in all matters of expense of living, and very close in his business matters.
“(12) That in his after years John M. Harper was very deaf and quite difficult to communicate to or with.
“(13) About the time of John M. Harper’s removal from Assumption to Conway Springs, Kan., he discussed the question of taxes and of the high rates of taxes generally, and he was solicitous as to how to reduce the payment of taxes, or to avoid the taxes altogether.
“(14) In June, 1903, James M. Harper went to Assumption, 111., and brought the said John M. Harper from Assumption, 111., to Conway Springs, and from that time until the date of his death the said John M. Harper made his home at the house of the said James M. Harper, except when he made visits back to his Illinois relatives and to collect rents in the summer of each year, and on his visits to Illinois from Conway Springs he was always accompanied by James M. Harper, or the wife of James M. Harper, both to and from Conway Springs to Assumption, and on the only other visit, which was to Sidney, Neb., he was accompanied by the wife of James M. Harper. That during the time John M. Harper lived at James M. Harper’s he did not pay any board or pay for the use of the room he occupied.'
“(15) That in the year 1902, after the death of the wife of the said John M. Harper, the said John M. Harper caused to be erected over the grave of his wife a monument, of the value of $200, and on said monument was inscribed the name of the wife of the said John M. Harper, together with the date of her death, and suitable space was left on said monument to inscribe the name, birth and death of the said John M. Harper.
“ (16) That a few days prior to July 17, 1906, James M. Harper caused to be prepared in typewriting by his stenographer, then in his employ in his bank at Conway Springs, a memorandum disposing of the property of the said John M. Harper, and at said time said James M. Harper had prepared deeds from the said John M. Harper to various parties, describing the lands as set forth in the memorandum. That said memorandum and deeds were prepared by the said stenographer under the dictation and direction of the said James M. Harper, without the said John M. Harper being present at the preparation of the said instruments, and when prepared were taken possession of by said James M. Harper; that said deeds offered in evidence in this action and described in the will were the deeds prepared by the said stenographer under the direction of the said James M. Harper.
“(17) That subsequent to the preparing of the said memorandum and deeds and prior to July 17, 1906, James M. Harper asked H. C. Sluss, an attorney in Wichita, Kan., by telephone, if he would be in his office on a day mentioned and if he could prepare a will for a friend of the said James M. Harper, the name of the party to make not being disclosed to said attorney. That afterward, on the request of said James M. Harper by telephone, said attorney went from Wichita, Kan., to Conway Springs, Kan., on said July 17, 1906, and upon his arrival at Conway Springs went to the bank of James M. Harper, and was from there taken by James M. Harper to his home and there introduced to said John M. Harper as his uncle, the party who was ex pected to make a will, and said attorney at said time for the first time learned that the party to make the will was the uncle of the said James M. Harper; that said attorney at said time received a typewritten memorandum which he used in preparing the will; that the said lawyer'and John M. Harper remained at the house but a short time, when they went to the bank of James M. Harper, and said attorney and his stenographer and James M. Harper and John M. Harper were present at the time of the dictation and preparation of the will thereafter executed by John M. Harper on said date, and all of said time there was an opening between the room in the bank where the parties were dictating and preparing said will and the front part of the bank; that during the dictation of the will and the preparation of the same James M. Harper was in and out of both rooms. After said will was dictated and prepared, the said James M. Harper procured the witnesses to said will. That after the will was prepared and ready for signature the attorney read the same over to said John M. Harper, but same was not read over to the witnesses. After the will was executed, the same was delivered to James M. Harper, who paid said attorney for his services, and said James M. Harper placed said will, together with other papers, in a tin box that belonged to said John M. Harper, in the bank vault. That said John M. Harper executed the deeds mentioned and described in the will, and said deeds were witnessed by the attorney who drew the will, being the same deeds theretofore prepared by the stenographer under the" dictation of James M. Harper, and said deeds were taken possession of by said James M. Harper and placed in the tin box- of said John M. Harper in said bank.
“(18) The court finds that at the time of the preparation of said will the amount or value of the property mentioned in the residuary clause was not discussed between said John M. Harper and said attorney, at or before the preparation and execution of said will.
“(19) The court finds that after John M. Harper came to Conway Springs, Kan., the said James M. Harper purchased for John M. Harper $15,000 of United States government bonds, which said bonds were kept in the Corn Exchange Bank in Chicago, 111.
“(20) The court finds that, prior to the removal of John M. Harper from Illinois to Conway Springs, Kan., through James M. Harper and John W. Harper he had invested a large amount of money and loaned a great deal of money on real estate in Kansas and Nebraska. After the said John M. Harper came to Conway Springs, Kan., the said James M. Harper had charge, looked after all of his loan business in Kansas, collected his interests on loans, and bought loans for him. That it was the custom of said James M. Harper, who had sole charge of the bank at Conway Springs, whenever the said John M. Harper had funds in the bank, to take a loan to that amount out of the bank, make it over to the said John M. Harper, and to charge up the account of said John M. Harper with the amount of said loan, and when interest was collected on said loan to credit the account of the said John M. Harper with the interest on said loan at the rate of 6 per cent, and to pass to the account of James M. Harper the balance of the interest paid on said loan, and the loans which were transferred from the bank to the said John M. Harper brought interest ranging from 7 per cent to 9 per cent, and none of said loans was ever assigned of record to the said John M. Harper, but stood of record in the name of the Bank of Conway Springs.
“(21) The court finds that said James M. Harper told parties residing in Conway Springs that the said John M. Harper was an old uncle of his who had raised him, and by reason of the old man having taken care of him when he was young, he was now taking care of the old man; that he had no property except a little piece of swamp land in Illinois.
“ (22) The court finds that said John M. Harper died on the first day of April, 1907, at the office of Doctors Ferris and Evans, in Conway Springs, Kan. That James M. Harper, when told of the death of his uncle, immediately came to where his uncle lay dead upon the floor, and the first act of the said James M. Harper was to take from the pockets of John M. Harper some papers.
“ (23) The court finds that after the death of the said' John M. Harper the said James M. Harper took the body of the said John M. Harper to Assumption, 111., for burial, and while there told Joseph Harper that he did not know whether or not the said John M. Harper had made a will, but advised the said Joseph Harper to be very careful in paying his rent on the land that said Joseph Harper lived on for fear he might not pay it to the right party.
“ (24) The court finds that in the summer of 1907, on or about the 15th day of July, the said James M. Harper went from Conway Springs to Assumption, 111., and there at that time stated that he was surprised to find his uncle had made a will; that he had supposed if his uncle had made a will that it was in the bank at Assumption, 111., but to his surprise he found when he got home from the funeral that there was a will made in Kansas by an attorney that his uncle had procured to make the will, without thé knowledge of the said James M. Harper.
“(25) The court finds that during the time the said John M. Harper lived in Conway Springs, at the home of James M. Harper, that he walked around in the town and on two or three occasions he became lost and could not find his way to the home of James M. Harper and he was conducted home by other parties a distance of two or three blocks; and the court finds that the city of Conway Springs is a city of the third class, in Sumner county, Kansas.
“(26) The court finds that on April 18, 1907, after the death of John M. Harper, James M. Harper probated the will and qualified as executor of the last will and testament of the said John M. Harper; that he never filed any inventory of the estate coming into his hands or of the estate of the said John M. Harper, and that James M. Harper died on or about the 14th day of August, A. D. 1908.
“ (27) That the deeds mentioned in the will and made by the said John M. Harper were from the time of their execution in July, 1906, in the bank at Conway Springs, and in the possession of James M. Harper after the death of John M. Harper, until the month of July, 1907, when said James M. -Harper visited Illinois and placed them of record in the respective counties, and, after they were placed of record, delivered to the respective grantees therein named and as named in said will.
“(28) The court finds that James M. Harper was appointed executor of- the estate of John M. Harper on or about the 18th day of April, 1907, and duly qualified after that.
“(29) The court finds that John M. Harper during his lifetime wa's never assessed with any personal property for taxation in Sumner county, Kansas; James M. Harper, as executor of said estate, never assessed any personal property for taxation belonging to the estate of John M. Harper, nor did James M. Harper ever assess any personal property as agent of John M. Harper for taxation from 1903 to and including the year of 1908. <
“(30) The court finds that Min. S. Harper was duly appointed as administratrix of the estate of James M. Harper on or about the — day of August, a. d. 1908.
“ (31) That Joseph Kemmerer, a nephew of the wife of John M. Harper, lived with the said John M. Harper for eighteen years, and up until' the time the said Joseph Kemmerer was married in 1893. Subsequent to his marriage said Joseph Kemmerer remained away from John M. Harper about a year, and then returned and lived upon one of the tracts of land heretofore described, from 1893 down to the present date, and that said Joseph Kemmerer made valuable improvements on said land, some of which were made after the said John M. Harper visited in Illinois about the 17th day of July, 1906, at which time said Kemmerer requested the said John M. Harper to make certain improvements on the lands, and at which time said John M. Harper informed said Kemmerer that he had provided in his will for him to have this land and that all the improvements he desired must from thenceforth be made by the said Kemmerer.
“(32) The court finds that James M. Harper was a banker in Conway Springs for more than twenty years; he was a sharp, shrewd, vigorous, moneymaking, thrifty, successful business man, and of an exceedingly forceful character.
“(33) The court further finds that the property devised by the will of John M. Harper, by the residuary clause therein, gave to James M. Harper personal property alone of the value of $38,000.
“ (34) The court further finds that when James M. Harper and John M. [W. ?] Harper, legatees named in the will of John M. Harper, were small boys, John W. Harper being only an infant, their mother died, and that they were taken to the home of their uncle, Robert Harper, who was married and with whom John M. Harper lived, and kept there for. a time. That afterward John M. Harper married and took his nephew, James M. Harper, to his house and raised him. That when James M. Harper was a small boy his . father died, and John M. Harper was appointed guardian for James M. Harper and had control of a small estate left, him by his father. James M. Harper lived with his uncle, John M. Harper, until he had finished his education in thé district school and then went to- Normal, 111., and attended school and made his home with his uncle, John M. Harper, during vacation until he graduated from the state normal school and became a schoolteacher. That his home, with the exception of a short time when he was with his father, was always with his. uncle, John M. Harper, until he became a man. That John W. Harper also lived with his uncle, John M. Harper, a part of the time. That during the civil war some refugees from Alabama were brought to Alton; III., and advertisements were made that there were children there who could be adopted by people desiring to adopt children, and John M. Harper went to Alton and got a little girl seven years old and brought her to his home near Assumption, 111., and she made her home and lived with him and his wife and they raised her until she became a young lady, and while she was still living with them John W. Harper, brother of James M. Harper, and one of the legatees in the will of John M. Harper, married her and was at the time John M. Harper made his will living with said woman as his wife. . •
“The court further finds that during all of the time-that John M. Harper lived with James at Conway Springs he was treated with great kindness and affection, and every care possible was taken of him by the-wife of James M. Harper and all his wants were looked after, and that he was given by James M. Harper and his wife a very comfortable home for the last four-years of his life.
“ (35) The court further finds that all of the nephews and nieces who had ever lived in the neighborhood of' Assumption, 111., where John M. Harper lived, were remembered in his will and left a legacy.
“ (36) The court further finds that John M. Harper- and his wife, Sarah Harper, after the marriage of John W. Harper and the girl whom John W. [M.?] Harper and his wife got from among the refugees from the civil war, and after James M. Harper had became a school-teacher, took four children named Kemmerer to raise, consisting of three boys and one girl. These children were the nephews and niece of Sarah Harper (but no blood relation to John M. Harper) ; .that the girl married Alonzo Harper, one of the legatees in the will of John M. Harper; that William Kemmerer is one of those children and one of the legatees named in the will; that Joseph Kemmerer is one of those children and one of the legatees named in the will; that Charles Kemmerer was the older one of those children, and is now a man past middle age and lives at Lewiston, III, and is the owner of a half section of land and is a man in good financial circumstances.
“That Robert Harper, brother of John M. Harper, had a daughter who married a man named James Cochran, and had a daughter, Edna Cochran, and died. That James Cochran is a man of large means, and has no other children except his daughter Edna. That said Edna Cochran is a grandniece of John M. Harper and is the only blood relative who was raised about Assumption, 111., who was living at the time of the making of said will, that received no legacy.
“(37) The court further finds that at the time the will in question was executed by John M. Harper said John M. Harper was of sound mind and understood fully the terms and conditions thereof; that said will was prepared by H. C. Sluss, of Wichita, Kan., who took pains not to incorporate therein any provisions except such provisions as were directed by and thoroughly understood by said testator, and that no undue influence was used or exerted by James M. Harper, or any other person, to procure the execution of said will, or to determine what provisions the same should contain; that James M. Harper took no part in the writing- or preparation of said will except as hereinbeforestated ; that said testator at the time he executed said will knew the conditions thereof and had advised with said H. C. Sluss with reference thereto.
“The court further finds for the defendants and against the plaintiffs as to each and all of the issues. • joined in this action.
“The court further concludes, as to the execution of said will, that said will is valid and should be allowed to stand and be executed as the will of said John M. Harper, deceased, and that the defendants are entitled to a judgment for costs herein.”
It is unnecessary for a court in making findings of fact and conclusions of law to state each 'finding with technical accuracy and without combining the facts and the law together in any case. If the findings and conclusions are clearly stated, so that the conclusions reached by the court can be readily understood, as well as the facts upon which they are founded, this will be sufficient. We think the findings and conclusions in this case are sufficient, and are unable to say that they are erroneous in any particular.
It is urged that the facts found show that the will was procured by undue means, and that to this extent the judgment is inconsistent with the findings of fact. Some of the facts found are probably consistent with this conclusion, but the court found otherwise, and we think the facts found by the court amply justify its conclusion.
Specific complaint is made of the exclusion of evidence which the plaintiffs expected to present by witness Joseph Kemmerer, who was a party defendant and :a legatee under the will. It is claimed that they expected the witness to testify that John M. Harper told him that the land then occupied by the witness would be finally given to him by will, but instead the will devised certain lots to him. We are unable to see that this has any importance to the matter in controversy. It seems to be immaterial, and, whether the witness was incompetent or not, no error was committed by the exclusion of the evidence. This witness was asked: “How did he appear to transact any business in his later years as to calculating his interest and finding out what was due him?” He answered: “For the last ten years he never relied on his own ability; he would generally get someone. If anybody paid him any money, he would either get me or the cashier at the bank to do the figuring. You see, I have known him to come over at my place after I had gone to bed and get me up and have me count up.” This was excluded on the ground that the witness was incompetent, but, whether he was competent or not, the evidence was immaterial and no error was committed by striking it out.
Complaint is also made of the exclusion of a conversation had by this witness with John M. Harper concerning the monument placed by the latter at the grave of his wife, who died some years before. Upon this monument a blank space was left, suitable for the insertion of his own name, which would link their names together in death as well as in life. In his will is an item providing that a suitable monument shall be erected at his grave. We are unable to see any relevancy or materiality in this evidence to the question in controversy, and see no error in its exclusion. Other evidence of the same kind was properly excluded.
Alonzo Harper, one of the defendants, and a legatee under the will, was called by the defendants, and after showing that the witness was well acquainted with the testator in his lifetime he was asked: “Now you may state to the court whether from what you saw of him and talked with him and known him before, what in your judgment was the condition of his mental faculties, as to his being sound or unsound during the times that he was back there, after he came out here, including 1906 ?” Objection was made on the ground that witness was not competent to testify, because he was an interested party testifying in his own behalf; and on the further ground that his testimony was incompetent, irrelevant and immaterial. The court overruled the objection and allowed him to testify. He answered: “I did n’t see anything wrong with his mind.” In this there was no error. (Grimshaw v. Kent, 67 Kan. 463.) Other questions were propounded to this witness, but no answers were given, so they need not be considered.
Joseph Harper, another defendant, was placed upon the witness stand. The same question was propounded to him and the same objection was made as in the case of Alonzo Harper. The objection was correctly overruled, under the case of Grimshaw v. Kent, 67 Kan. 463.
Questions were asked of William Kemmerer and John W. Harper which were objected to, but no testimony was given and they need not be considered.
. Objection was made to the testimony of Min. S. Harper, who was the widow of James M. Harper and after his death had the case revived in her name. She was called as a witness for the defendants. Objection was made on the ground that she was incompetent because of her relationship with James M. Harper. The statute upon this subject, being the third subdivision of section 321 of the code of 1909-, reads:
“The following persons shall be incompetent to' testify : . . . Third, husband and wife, for or against each other, concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterward.”
She did not testify to any communication made between herself and husband, and, the objection being placed expressly upon this ground, no error was committed in the admission of her testimony.
In view of the whole case we are unable to see where any prejudicial error has been committed, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The American Electric Telephone Company brought this action against the Emporia 'Telephone Company to recover upon an account for telephone supplies which the Emporia company had purchased from the American company. The account embraced numerous items of debit and credit, extending from September 2, 1905, to April 15, 1908, and the balance claimed to be due was $1293.18. The supplied purchased were selective telephones, said to be ordinary telephones with a selective attachment by which a person on a party line could be called from the central office without ringing the bell of any other person on that party line, and such persons could talk with central or other persons without ringing their bells or disturbing anyone else on the line. The Emporia company alleged and contended that the supplies were sold under a warranty to work satisfactorily on the selective plan mentioned, but that they in fact did not, and that the American company had tried unsuccessfully to correct the defects in the selective attachments and the attachments were therefore worthless. On the trial of the case, which was without a jury, the American company recovered $1192.21, and the Emporia company appeals.
There is little reason to complain of the result. Attached to the first order of appellant for supplies was a memorandum, signed by its manager, that “this equipment to be installed at the expense of the American Electric Telephone Company, on sixty days’ approval. If, at the expiration of sixty days, the equipment fails to give efficient service, the same can be returned, but if the service should prove efficient we agree to accept and pay for the same as above.” Long after the purchase of the telephones there were some complaints made by appellant that they did not work well, but none of them was ever returned to appellee. Instead of returning them appellant sent eleven additional orders for telephones of the same kind, and these orders were sent from time to time during a period o'f fourteen months after the first lot had been received and installed.
There is no room for a contention, and in fact appel lant makes no contention, that the memorandum of itself contained an express warranty as to quality or character. Even if there had been a warranty, the sale, according to the memorandum, was conditional, or upon approval after sixty days’ trial. If at the expiration of that time it was found that the equipment did not give efficient service it could be returned, and. if not returned the sale became complete and irrevocable. None of the telephones was returned within sixty days, or at a later time. More than one year afterward additional orders were given, payments, were made without complaint of the equipment, and in correspondence it was stated that appellant intended to pay for all the equipment purchased. Under testimony of this character the finding of the court that appellant was bound to pay for the telephones purchased and retained should occasion no surprise.
It is contended, however, that there was an implied warranty that the equipment was adapted to the special purposes for which it was purchased, and that this, had been broken. The appellee was a manufacturer, but the sales were not made by sample nor were the-telephones manufactured specially for appellant. On the other hand, they appear to have been made in the ordinary course of business of the appellee, for the general trade, and under our decisions the sale did not carry an implied warranty that the articles sold should' meet the purposes or expectation of the buyer. (Lukens v. Freiund, 27 Kan. 664; Ehrsam v. Brown, 76 Kan. 206.)
There was some’ conflict in the evidence as to the-time when complaints were made' of the telephones, purchased, but under the testimony the court was well; warranted in holding that the objections to the telephones were not made in a reasonable time, and, as we-have seen, appellant never returned or offered to return the telephones purchased. The retention of the- telephones under the circumstances justified the court in holding that appellant was bound to pay for them at the stipulated price.
The judgment is affirmed. | [
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Per Curiam:
In this case the judgment sustaining the demurrer to the plaintiff’s evidence must be reversed. It can not be said that there was no evidence tending to show a partnership existing between the defendants. The plaintiff testified that he informed defendant Hayes of the facts respecting the agreement made with the other defendant and the terms upon which the plaintiff was to sell the lumber on commission ; that Hayes told him that the arrangement was all right and to go ahead and .procure further orders for lumber, and in the same conversation promised to pay the plaintiff something on account of sales already made. The most that canbe said of the evidence offered by the plaintiff showing the relations existing between Hayes and the other defendant is that it was weak and unsatisfactory, but it should have been submitted to the jury.
The judgment is reversed and the cause is remanded for another trial. | [
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The opinion of the court was delivered by
Smith, J.:
In 1906, and since, McKnight was and has been the owner of a tract of about 138 acres of land in the city of Wichita. The tract was unplatted, and had been used as farm land, although McKnight had had it surveyed and mapped into residence and garden plats. No plat thereof had been recorded. A' widely meandering stream, called Chisholm creek, which ordinarily flowed only a small stream, but occasionally was deep, extended through this tract.
Early in 1906 the city, after proper proceedings, appointed appraisers to condemn a strip of this land 150 feet wide for a drainage canal. The canal was to be fifty feet wide, with fifty feet on either side for a right of way. The strip of land was condemned, and on August 25, 1906, the appraisers filed their report showing the land taken and the allowance made by them for damages to the remainder of the tract. The report was approved by the council on August 27. The damages allowed by the appraisers and approved by the council were $5687, $3990 being allowed for 6.65 acres of land taken and $1697 for damages to the remainder of the tract.
McKnight appealed from the award. The cause was tried to a jury in the district court of Sedgwick county, and a verdict was rendered in favor of McKnight for $17,757.41, $16,148 of which was for the damages found as of date, August 27, 1906, and the remainder being interest at six per cent from that date to April 25, 1908. Judgment was rendered in accordance with the verdict, and the city appeals.
At the time of the trial the evidence showed that the digging of the canal at least had been completed through the tract, and that the canal extended some distance toward the river southward, where it emptied into Chisholm creek, and that at the time of the trial there was a continuous flow of water in the canal; that the canal had been excavated fifty feet wide at the top, and from a minimum of six or eight feet to a maximum of thirteen or fourteen feet deep, and that the earth taken therefrom had been piled on either side of the canal unevenly, some places practically covering the entire right of way on either side, and being in places twelve or fifteen feet high.
On the trial considerable evidence was admitted pro and con as to the cost of filling the old bed of Chisholm creek, and also evidence that whereas prior, to the digging of the canal the creek at its lowest stages was still a flowing stream, after the canal was dug and the water diverted there were stagnant and offensive pools of water in the bed of the creek. The city objected to this evidence, and insists that it was prejudicial and erroneous, although on the trial it oifered some counter evidence. The findings of the jury, however, make it unnecessary for us to determine whether this evidence was erroneously admitted, as the special findings of fact and the verdict indicate that the jury made no allowance for damages on this account.
The principal contention and complaint of the city is that the canal was not completed, or at least that the piles of earth along the canal were not intended to be left there permanently, and that it devolved upon McKnight, if the damages were to be appraised as they appeared to be at the time of the trial, to show that the work was completed. The rule of law appears to be that when damages are appraised at the condemnation of land for a public purpose, as the damages were appraised in this case by the appraisers appointed for that purpose, it is to be presumed that the work will be done in the proper manner, and in such a way as to avoid any unnecessary damage to the landowner. Where, however, the work upon the condemned land has been completed before the time of the appraisement or trial, evidence may be offered and the case determined upon the conditions as they then exist.
Evidence in this case was offered that the work was completed through the plaintiff’s land six or eight months before the trial, and in the absence of any evidence to the contrary it was fair to assume that the work was fully completed. The city attorney in presenting the case, however, said he would offer in evidence the original plans made by the city engineer some two years before, to which objection was made and sustained. There was no evidence, or-offer of evidence, that these plans had been approved, or that the contract for the making of the canal had been let upon that basis. Questions were asked, however, of-the mayor at the time of the trial as to what had been done with reference to removing the dirt from the sides of the canal during his administration. If the work had actually been done, it was a matter of proof; but it is only urged by the city that the mayor had delivered some message or made some recommendation to the council in regard to it. The city had a right to leave the earth piled on the right of way, as it was, and no effort was made to show that by contract or otherwise anyone was under any obligation to remove it or to level it down. We think there was no error in excluding the evidence, and that McKnight had a right to show the conditions as they were at the time of the trial and to have the damages assessed according to the conditions then existing.
On the trial the city contended that the tract of land was simply a farm, and was valuable only for farming purposes, and requested instructions to the jury on the basis of damages for the land actually taken and to the remainder as one entire tract. In this court the city contends that the tract had been divided into building and garden tracts, and that no damages should be allowed except as to those tracts cut or touched by the canal. The proper basis for damages was the value of the portion of the tract actually taken for the canal and right of way, and the difference in value of the remainder of the tract immediately before and after the appropriation of the land. This value may be proved for any and all purposes for which the tract was adapted, and this is just the character of evidence that was offered in this case.
In one instruction the court seems to have assumed that the land was more valuable for residence purposes. If this was erroneous it was not prejudicial, as the question was fairly submitted to the jury, and they determined that it was more valuable for residence purposes than for farming.
Again, it is contended that the damages found by the jury were so excessive as to be evidence of prejudice, •and one of the reasons assigned is the great difference of opinion expressed by witnesses, the evidence of some indicating that the damage was more than twice that assessed by the jury, and of others, that it was less than one-half of the amount; and it is said in argument that this is evidence that the damages allowed were speculative. We can not concur in this view. The numerous witnesses who so- testified were shown to be familiar with the land in question, with the city, and all the surroundings, and the jury and the court heard their various reasons for their different estimates and had the advantage of seeing and hearing the witnesses. We think that the fact that the jury did not go to either extreme of the evidence indicates rather that they took a conservative veiw of the questions presented.
That the proper basis of damages is the value of the tract actually taken and the difference in value of the remainder of the tract immediately before and after the taking has been so repeatedly, decided in this and other courts that the citation of authorities is unnecessary.
We think, also, that the evidence fully justified the assessing of damages to the tract as a whole, and not to the several tracts into which it had been surveyed and mapped, although not platted.
■ The city urges that the unity of use should determine the question, and not the contemplated change of use. The evidence was undisputed that the entire tract had been used for farming purposes, and it was so stated by witnesses called by the city. This principle of unity ■of use has been applied generally where two or more tracts owned in severalty by different parties were used for one purpose. (Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 483; Irrigation Co. v. McLain, 69 Kan. 334; Railway Co. v. Roe, 77 Kan. 224.) In the case last cited it was said:
'“In framing his petition the plaintiff was entitled to claim damages according to the most advantageous use he could make of his land. If, for example, taking-the entire body of lots as a whole, they could be used most profitably for fruit raising, or as a vegetable garden, or for a dairy, he might have sued for and recovered damages to the entire tract on that theory, and the circumstances that the lots were separated by streets and alleys would not have stood in the way. On the other hand, if the chief value of the property, or some of it, should lie in its marketability as ordinary city lots, the plaintiff would have the right to take advantage of the municipal subdivisions and claim damages to all those, and to those only, which were decreased in value by reason of the condemnation. If the depreciation in value should extend across lot or block lines or streets or alleys the damages should be coextensive with the injury, since nothing less would afford compensation, and it is the purpose of the law to secure to the landowner, full compensation.”' (p. 226.)
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 action was one of replevin, brought by a chattel mortgagee, to obtain possession of - property covered by the mortgage. The plaintiff prevailed and the defendants. appeal.
- The defense of W. 0. Cooper was that the note secured by the chattel mortgage had been paid. The defenses of Lou Cooper were, first, that the debt secured by mortgage had been' paid, and second, that she was the Owner of the property, that she signed the note secured by the mortgage and the mortgage as surety for her husband, W. 0. Cooper, and that . she and her property had been discharged by extensions of the note granted her husband without her assent. The burden of proof rested on the defendants. At the conclusion of their evidence the plaintiff demurred to it. The court overruled the demurrer, and directed the plaintiff to introduce its evidence, but-stated that the plaintiff would then be heard on the demurrer. At the conclusion of the evidence the court instructed the jury as follows:
“3. Under the provisions of said chattel mortgage ¡which provides that it is understood and agreed that this mortgage shall cover any renewals of this debt in whole or in part, the court is of the opinion that there is only one issue in this case for the jury to determine and that is whether or not the original debt secured by the mortgage and under which possession is sought to be taken by the plaintiff in this case of the property therein described has been actually paid by the defendants to the plaintiff and upon this the burden of proof is upon the • defendants and before they can defeat the action of the plaintiff for the possession of this property they must prove by a preponderance of the evidence that this indebtedness has been paid.
“4. And in this case you are instructed that before you can find that the giving of renewal notes by the) defendant Cooper to the bank is and constitutes a payment, you must find from all of the facts and circumstances surrounding this case that it was the intention of the parties and agreed by them that the intention of these subsequent notes or some one of them was to and did operate as a payment of the original debt.”
A verdict was returned for the defendants. Afterwards the court set aside the verdict and sustained the demurrer to the evidence.
The provision of the chattel mortgage referred to in the third instruction reads as follows: “It is understood and agreed that this mortgage shall cover any renewals of this debt in whole or in part.” It is not necessary to determine the effect' of this provision of the mortgage on the rights of the parties. Without such a provision a mortgage ordinarily continues to secure an unpaid debt, although renewal notes may have been given. (Cooper v. Condon, 15 Kan. 572, 578; Capital Co. v. Merriam, 60 Kan. 397, 402, 56 Pac. 757.) However this may be, Lou Cooper signed the note as one of the makers. Under the provisions of section 3 of the negotiable instruments act (Gen. Stat. 1915, § 6523), she was a party primarily liable. Under the provisions of sections 126 and 127 of the negotiable instruments act (Gen. Stat. 1915, §§ 6647, 6648), only parties secondarily liable are discharged by renewal without their assent. (Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429.) Therefore the court was correct in holding that the only material issue was payment.
The fourth instruction was correct in stating that an agreement that the subsequent notes or some of them should oper ate as payment was necessary. Fresh evidence of a debt does not pay the debt.
“The giving of a promissory note for an antecedent debt is prima, facie not a payment or extinguishment of the debt, and will not be so regarded unless that is the express agreement of the parties; and where a party alleges as a defense that the note was accepted as payment, the burden of proof rests upon him to show that such was the purpose and the agreement of the parties.” (Bradley v. Harwi, 43 Kan. 314, syl., 23 Pac. 566.)
“The general rule is that a promissory note made by the debtor does not discharge a preexisting debt for which it is given, unless it be the express agreement of the parties.” (Capital Co. v. Merriam, 60 Kan. 397, syl. ¶ 3, 56 Pac. 757.)
“The taking of a note of either the debtor or a third person for a preexisting debt is not payment unless it is expressly agreed to accept such note as payment. Whether it was so taken is a question of fact, and the burden is on the party who asserts it to establish the fact by proof.” (Webb v. Bank, 67 Kan. 62, syl., 72 Pac. 520.)
The defendant W. O. Cooper testified as follows:
“Q. Have you ever paid the bank this $160 that you originally borrowed from it in 1912? A. Not only by renewing it and merged it into other notes.
“Q. The bank never has received from you any money in satisfaction of that debt? A. Well, I do not know any more than the interest and like that, no.
“Q. And you tell the jury that you never have paid the original debt except as a renewal of the note was a payment? A. Yes, sir.”
The court has carefully examined the abstract, and this testimony correctly reflects just what took place — a number of renewals, but no agreement or understanding of any kind that the renewals in fact paid anything.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on an accident insurance policy. A demurrer was sustained to the petition and the plaintiff appeals.
The policy was issued to E. W. Spidal, who died on September 20, 1913. The petition alleged that his death was caused by accidentally and unintentionally breathing illuminating gas, which accidentally escaped into his sleeping room in the night of September 19 and the morning of September 20. A copy of the policy was attached to the petition. The policy provided for two kinds of indemnity, accident indemnity and sickness indemnity. Sickness indemnity was payable only in the event of disability for a period of seven days or more. Disability occasioned by gas was classified as sickness, the provision of the policy relating to the subject reading as follows:
“Disability or loss, fatal or otherwise, caused by or resulting wholly or in part, directly or indirectly., from . . . gas, ... in any manner taken or administered, voluntarily or involuntarily, shall be classified as sickness and shall be subject to the provisions, conditions and limitation^ governing sickness insurance as herein set forth, the original cause of such disability notwithstanding.”
There can be no doubt that the words, “in any manner taken, . . . voluntarily or involuntarily,” cover the accidental breathing of gas while- asleep. The word “take” is properly used in the passive sense of “receive,” as, “this paper takes ink readily,” and is used specifically in the sense of to receive into the body or system, both voluntarily and involuntarily, as, “to take food,” “to take disease.” (Webster’s New International Dictionary, title “take.”) Besides this, application of the word “taken” is amplified by words universally inclusive. The supplying of gas to the insured for medical, surgical, or other beneficial or remedial purpose, is expressly covered by the word “administered.” Every thinkable way of taking is covered by the words, “in any manner.” Respiration being one manner of taking, is necessarily included. The attitude of the insured toward the taking is covered by the words, “voluntarily or involuntarily.” These words include taking consciously and willingly while awake, and taking unconsciously, without act of volition or intelligence, by accident or otherwise, while asleep.
' The plaintiff relies on the cases of Paul v. Travelers’ Ins. Co., 112 N. Y. 472, and Menneiley v. Employers’ Liability Assur. Co., 148 N. Y. 596, and on decisions of courts of other states which have followed the New York decisions. In the Paúl case the policy provided that insurance should not extend to “inhaling of gas.” The court held that this referred to inhalation by voluntary and intelligent act of the assured. In the Menneiley case the doctrine of the Paul case was adhered to. The syllabus reads as follows:
“The exception, in an accident insurance policy, of death or disable ment ‘arising from anything accidentally taken, administered of inhaled, contact of poisonous substances, inhaling gas, or any surgical operation or exhaustion consequent thereon,’ does not exempt the insurer from liability where the death of the insured is caused by his involuntarily and accidentally breathing illuminating gas which had accidentally escaped into the room where he was sleeping at the time of his death.
“The words, ‘inhaling gas,’ in the above connection, refer to a voluntary, intelligent and conscious act on the part of the insured, and also have reference to medical or surgical treatment, or suicidal purpose.
“The words, ‘anything accidentally taken, administered or inhaled,’ in the above connection, apply only to cases where something has been voluntarily and intentionally, although mistakenly, taken, administered or inhaled, and do not exempt the insurer from liability for death caused by. involuntarily and accidentally breathing escaped illuminating gas.” (Syl. ¶¶ 1-3.)
In the case of Fidelity and Casualty Co. v. Waterman, 161 Ill. 632, the syllabus reads as follows:
“Death from asphyxiation by illuminating gas while the assured was asleep is not within a clause of an accident insurance policy providing that the insurance does not cover ‘injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled.’
“The words, ‘absorbed or inhaled,’ in a clause of an accident insurance policy providing that such policy does not cover injuries from anything áccidentally or otherwise absorbed or inhaled, imply a voluntary and intelligent act as distinguished from an involuntary and unconscious act.” (Syl. ¶¶ 1, 3.)
In the opinion, the New York cases were cited, and the court said:
“The claim made is not well grounded, if the correctness of the point decided in the cases we have mentioned be conceded. That point, as we understand it, is, that the word ‘inhaling’ or ‘inhalation’ or ‘inhaled,’ as used in exceptions contained in these policies of life or accident insurance, implies a voluntary and intelligent act, as distinguished from an involuntary and unconscious act. Read in the light of the decisions, the words now in question do not mean otherwise than if they explicitly read, ‘poison or anything accidentally or otherwise, consciously and by an act of volition, drawn into the system by inspiration.’ ” (p. 635.)
In the opinion in the case of McGlother v. Provident Mut. Acc. Co., 89 Fed. 685, the United States court of appeals for this circuit commented on the New York and Illinois decisions as follows:
“We must not be understood, however, to adopt or approve those decisions. The path they follow is so narrow, tortuous, and indistinct that we should hesitate long to follow it. Starting in the Paul case with the thought that the word ‘inhalifig’ implies a conscious act, and invoking the much-abused rule that every policy of insurance of doubtful meaning should be construed most strongly against the company, it reaches the interesting conclusion in the Fidelity and Casualty Company, case that a death from accidentally inhaling gas while sleeping is not a death ‘resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled’ under an exception in the policy in those words. If gas is unintentionally and unconsciously taken or inhaled, why is it not ‘accidentally’ taken or inhaled? If it is not, then why is it not ‘otherwise’ taken or inhaled? And how can gas get into the system in any other way than by being ‘accidentally or otherwise taken, administered, absorbed or inhaled?’ In the Fidelity and Casualty Company case the court interprets the exception of death ‘resulting from poison or anything accidentally or otherwise taken, administered, absorbed or inhaled’ to mean death resulting from ‘poison or anything accidentally or otherwise, consciously and by an act of volition, drawn into the system by inspiration,’ and then holds that the death there in question did not result from gas inhaled ‘consciously and by an act of volition,’ and therefore was not within the exception. But the parties who made the contract -did not restrict their exception to death from, anything taken or inhaled ‘consciously and by an act of volition,’ but expressly extended it over .death from ‘anything accidentally or otherwise taken or inhaled.’ The .construction given by the court to this clause of the policy appears to be cunning and astute to evade, rather than quick to perceive and diligent to apply, the meaning of the words it contains in their plain, ordinary, and popular sense.” (p. 688.)
Without approving or disapproving the criticism contained in the opinion of the United States court of appeals, it is sufficient to say that the policy under consideration was evidently phrased with the purpose of avoiding the effect of the decisions of the state courts. If ordinary English words, given their ordinary-meaning, can accomplish such a purpose, those employed in the policy sued on did so.
The judgment of the district court is affirmed. | [
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