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The opinion of the court was delivered by
Mason, J.:
The widow and some of the other heirs of the grantor brought an action against the grantee to set aside a deed that had been made by George W. Brown and his wife to' his son, W. O. Brown, on the ground of want of mental capacity, fraud and undue influence. A judgment was rendered for the defendants and the plaintiffs appeal.
The deed was made on January 9, 1912. George W. Brown was then over ninety years of age. He died on the 19th of the following May. The evidence of some of the witnesses strongly supported the view that at the time of the execution of the deed he was incompetent to transact business of that character, while others testified directly to the contrary. The evidence was largely oral, and the decision of the trial court must control. The plaintiffs insist that W. O. Brown had been acting as the business agent of his father, and sustained toward him such a confidential and fiduciary relation as to cast upon him the burden of proving that the transaction was fairly conducted and that the deed was given upon a just and adequate consideration. Evidence was given tending to establish such an agency and relationship, but we are not advised of the credence or weight given it by the trial court, as no special findings were made or asked for. We think, however, there was sufficient evidence to support a finding, which the court must be deemed to have made, that the grantors were fairly dealt with, and acted upon a full understanding of the situation. In Hill v. Miller, 50 Kan. 659, 32 Pac. 354, an instruction was approved to the effect that to sustain the deed there involved the grantee was required to show affirmatively, “so far as practicable,” among other things, that he gave a just and adequate consideration. If the present circumstances are sufficiently similar to impose the same rule, no error is shown, for the evidence warranted a reasonable inference of a valuable and adequate as well as a sufficient consideration. A witness testified that a similar deed had been prepared shortly before that under consideration, and at that time the grantors stated in effect that it was no more than right that they should deed the property to the grantee, because he had looked after them for quite a while, and they expected him to do so as long as they lived.
A contention is made that no delivery of the deed was shown. The notary public before whom it was acknowledged testified 'that he took it after its execution, for the purpose of affixing his seal at his office; that his impression and best recollection was that he asked the grantors what he should do with it, and they told him he was to give it to the grantee, which he did. He was not very positive in his statement, but its effect was for the determination of the trial court. (1 Wigmore on Evidence, §§ 726-728.)
Objections are made to the admission and rejection of evidence. There was sufficient competent evidence to sustain the judgment, and as no jury was used it is not necessary to determine whether any was admitted that was incompetent. The widow of George W. Brown was asked what his desire and intentions had been concerning the disposition of his property after his death. She answered: “Nothing, only he wanted to sell a house and so many lots — was to be sold — 1811—answer it after a while. He wanted it sold and put the money in the bank for our support.” The question was obj ected to on various grounds, and on motion the answer was stricken out. The plaintiffs complain of the ruling. The testimony was in the nature of a conclusion, which might have been based on conversations that would not have been competent. But in any event it was obviously not of vital importance. An objection was sustained to a question asked of this witness concerning her husband’s mental condition, but she was afterwards permitted to testify fully on this point, so that no prejudice could have resulted. One of the plaintiffs — a daughter of George W. Brown — was called as a witness and asked what observations she had made of her father’s condition. In reply she undertook to tell what he had said. This was excluded, obviously on the ground that it transgressed the rule concerning communications with persons since deceased. (Civ. Code, § 320.) The plaintiffs contend that a witness may narrate what was told to him by a person since deceased, under whom he claims, if the purpose of the testimony is to show the state of the speaker’s mind. Such testimony was in one instance held admissible, but the ruling was rescinded on an application for a rehearing (Bannon v. Patrick Bannon Sewer Pipe Co., 136 Ky. 556, 575, 119 S. W. 1170, 124 S. W. 843.) Some courts exclude the opinion of such a witness as to mentál capacity, where it is founded upon communications concerning which he would not be permitted to testify. (40 Cyc. 2323.) The language of the statute is explicit, and does not admit of an exception based upon the purpose for which the communication is offered.
A witness was asked his opinion as to the ability of George W. Brown to dispose of real property, to make contracts on a large scale, and to dispose of all his property, on the day the deed was made. An objection to the question was sustained. It appears to fall within the rule that testimony may not be given broadly that a person was or was not capable of making a deed, because that involves the opinion of the witness as to what condition of mind is necessary for that purpose. (Coblentz v. Putifer, 87 Kan. 719, 725, 125 Pac. 30.) In the case cited the evidence held to be incompetent was given by medical experts, in answer to hypothetical questions. The plaintiffs contend that this rule should not be applied to non-expert witnesses, testifying from personal acquaintance, but no good reason is apparent for a distinction in that regard. The precise form in which evidence is offered is not always important. So far as concerns the material matters sought to be elicited by the question ruled out, they were fully covered by the testimony of the witness. Other complaints of rulings rejecting evidence are not thought of enough importance to require discussion. Moreover, as in the case of the two matters last discussed, the questions argued are not really in issue, since the rejected evidence was not presented at the hearing of the motion for a new trial, as required by the statute (Civ. Code, § 307), and therefore the plaintiffs have not shown that they were prejudiced by the rulings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injury to horses occasioned by the operation of the defendant’s railway. The plaintiff recovered and the defendant appeals.
Two principal questions of fact were resolved against the defendant. Did the animals which were injured come on the defendant’s right of way over a sufficient cattle guard or through a defective fence, and did the animals wander upon a trestle bridge where they were injured or were they frightened and driven upon the bridge by one of the defendant’s trains? The evidence though meager in some respects was sufficient to sustain the special findings of fact and the general verdict. A finding of fact which is criticized was not evasive and when read with other findings of fact and with the general verdict was not ambiguous.
The plaintiff was a farmer who had observed the habits of horses. He testified he had never owned a horse and had never seen a horse that would willingly walk over an opening in the floor of a bridge, and that as a rule young horses were afraid of such openings. One of the plaintiff’s neighbors testified that he did not know of an instance of horses attempting to cross a trestle bridge like the one in question by walking on the ties, that he did not know the disposition of horses in the matter of crossing open bridges, never had one try to go out on such a bridge, but would think it would be a little hard to get them on a bridge that way. It was perfectly proper to allow these witnesses to state the result of their experience with horses. The opinion of the last witness was so frankly a venture beyond his experience that the jury were neither instructed nor misled by it. Besides this, the fact known to people generally that untrained horses are reluctant voluntarily to exercise their specialized and restricted powers of locomotion in unfamiliar ways is relied on by railroads in the erection of cattle guards, bridges and like structures.
The demand was as follows: $250 for one animal, $250 for another, and $150 for a third. The jury allowed $155 for one, $75 for another, and nothing for the third. It was. stipulated that if attorney fees were allowed the amount should be $50, and that sum was included in the verdict, for attorney fees. A motion to strike out the item was overruled. The motion asserted that the demand was excessive as the verdict of the jury proved, that the defendant was not at fault in refusing to pay an extravagant demand, and that’ allowance of an attorney fee under such circumstances infringed rights guaranteed the defendant by the constitution of the United States.
The statute reads as follows:
“In case such railway company or corporation, or the assignee or lessee thereof, shall fail for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner or his agent or attorney the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney’s fee for the prosecution of the suit, and all costs in any court of competent jurisdiction in the county in which such animal was killed or wounded.” (Gen. Stat. 1909, § 7002.)
The case of St. Louis, I. M. & S. Ry. Co. v. Wynne, 224 U. S. 354, is cited'in support of the motion. In that case the demand was for $500. The action was for $400. That sum was recovered together with an attorney fee. It was held, following an interpretation of the statute involved by the state court, that the statute attached onerous penalties to the nonpayment of extravagant demands and consequently denied due process of law. The statute of this state does not attach onerous penalties to the nonpayment of extravagant demands. It requires payment of an attorney fee in case suit be necessary to recover legitimate demands. The defendant does not claim that it did not comply with the plaintiff’s demand because excessive. It resisted the action to the end on the ground that it was not liable to the plaintiff in any sum whatever, and still makes the same contention in this court. The verdict of the jury established the fact that the plaintiff was entitled to recover a substantial sum. While the defendant would have been right in refusing to comply with the specific demand presented by the plaintiff because excessive, it could not be right in refusing to pay anything at all. Since suit, with attending costs and attorney fees, was not submitted to because the demand was too large but because all liability was denied, an attorney fee was properly allowed.
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The opinion of the court was delivered by
DAWSON, J.:
This was an action to cancel an oil-and-gas lease on three hundred and sixty acres of land in Chautauqua county. The tenants leased the land for five years and agreed that “in case no well shall be commenced . . . within ninety days . . . this lease shall become null and void . . . unless the lessee shall pay for the delay at the rate of fifty cents per day . . . until a well shall be commenced.” The ninety days expired August 30,1912. No well was commenced. On December 9, 1912, the tenants paid $65, being fifty cents a day from August 30, 1912, to January 5, 1913; and January 7, 1913, they paid $45 which extended the lease until April 7, 1913. In January, 1913, the tenants were notified that the landlord would not accept any more money. On July 17, 1913, an action was brought to cancel the lease. "Four days later, July 21, 1913, the tenants tendered $150 to the bank which had been authorized to receive the payments but which long before this time had been directed not to receive any more money on this lease, and the bank would not accept the money, so the tenants procured a certificate of deposit in that bank payable to the owner of the land. Obviously this intimation was given because the landlord wanted a well and not payment for continued default.
The court gave judgment canceling the lease. The appellants rely principally upon Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625, and Rhodes v. Oil Co., 80 Kan. 762, 104 Pac. 851. These cases hold, in effect, that a forfeiture could not be taken so long as the payments were made annually and the leases in those cases warrant that interpretation. In the case at bar nothing was said as to when the payments should be made. The stipulation was to pay fifty cents a day. The appellees contend that this means that it should be paid from day to day, and that the contract does not contemplate the extension of credit. We think it is sufficient if the payments are made at reasonable times. The words “fifty cents a day” fix the rate and not the times of payment. An actual payment of fifty cents, day by day, would be a vexatious inconvenience to both parties and could hardly have been within the contemplated terms of the contract. Looking at the matter in a broad and impartial way, we think that quarterly payments would be reasonable. In this case, the first payment was made on December 9, 1912, which was one hundred and one days after the expiration of the time when the well was to be commenced, and this period, one hundred and one days, was acquiesced in by the landlord as a reasonable time for payment. This in effect fixed one hundred and one days as a reasonable time as construed by the parties themselves. The second payment ex tended the time until April 7, 1913, and suit was filed on July 17, 1913, when payments, were again overdue one hundred and one days. .Payment was tendered four days later, or one hundred and five days after the expiration of the second payment. Under these circumstances, the cancellation of the lease was unjust and the judgment of the district court is reversed and remanded with instructions to enter judgment for the defendants. | [
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OPINION ON REHEARING.
The opinion of the court was delivered by
Mason, J.:
In the decision affirming the judgment in this case (The State, ex rel., v. Williams, 92 Kan. 527, 150 Pac. 225) it was held that no error was committed in the admission of certain testimony, which was objected to under the rule excluding evidence of offers of compromise. A rehearing was granted with respect to that question. Upon full consideration of the further argument the original decision is adhered to, for the additional reason that even if the testimony were incom petent, the likelihood of its having affected the verdict is só remote that the judgment ought not to be reversed on that account.
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The opinion of the court was delivered by
Porter, J.:
The, defendant, a boy 19 years old,- was convicted of assaulting a little girl with intent to commit rape. He complains principally of alleged error in the exclusion of testimony and in the refusal to instruct the jury upon his defense of an alibi. The information charged that the offense was committed in Coffey county on the 5th day of August, 1914. Opal Cree, who was ten years old, had been visiting at the home of her uncle,- James Cree, and the defendant, who is a brother of the wife of James Cree, was staying there at the same time. The parents of Opal lived on a farm about two miles distant. The little girl testified that on the evening of August 5, 1914, defendant took her riding,on a bicycle; that they went to her home and remained for a short time; that on the way back to James Cree’s place the defendant stopped near a bridge, took her off the bicycle, and committed the offense. Her parents were out of the state at the time and did not return for several days. She testified that she went home the next day and informed her sister- of what had happened. Her sister first testified that it was on the 6th of August Opal told her about it, but was recalled the next day and corrected her testimony, explaining how she had been mistaken as to the dates, and then testified that it was the 29th of July when the defendant and Opal went riding.
No doubt the defendant suffered some disappointment because of the change in the testimony, for he afterward proved that on the 5th day of August he was in Burlington. The state informed the court before the case went to the jury that it made no claim that the offense was committed on August 5, but did contend that it occurred July 29. The testimony showed beyond any doubt that it was the 29th of July when defendant took Opal riding, and it is not possible defendant was prejudiced by the change in the testimony or the refusal to instruct on the defense of an alibi. Alva Cree, the brother of Opal, at first testified that it was on August 7 he learned of the matter, but afterward corrected his testimony. These corrections in the testimony of the witnesses in regard to the date when defendant took Opal over to her father’s place on the bicycle, and when they first heard that he was charged with any wrong, were made before the state rested. The fact that the little girl was not recalled to correct her statement as to the date is of no importance. She was a mere child and knew only that the offense occurred at the time she went riding with the defendant.
That no prejudice resulted from the change in the testimony and the refusal to instruct the jury to consider the defense of an alibi is further apparent from the fact that the witnesses for the state as well as those for the defense testified that a family council was held about the matter long before August 5. The defendant’s mother testified that on July 31, Alva, Opal, and James Cree, their uncle, came to her home in Burlington, and there the matter was talked over. Defendant himself testified that at this conference he learned for the first time that he was charged with any wrongdoing. His sister, Mrs. James Cree, was called as a witness for the state. She kept a diary, which she produced in court, showing under the date July 29 a statement that Paul had taken Opal for a ride. She testified that independent of the entry in the diary she remembered the occurrence.
After the witnesses for the state had corrected their first statements about the dates, it can not be said there was any dispute as to the fact that, if the offense was committed, the date upon which the state asked conviction was the correct one. Evidence therefore showing that at another time the defendant was at Burlington and absent from the vicinity of the crime became wholly immaterial. It furnished no ground for the defense of an alibi, and the instruction, if given as requested, could have served only to confuse the jury.
The complaint was sworn to by John Cree, the father of' Opal. The defendant offered to prove certain statements made by John Cree which it is claimed would have shown that the motive of the prosecuting witness was to enforce the payment of money from defendant’s father. John Cree was not called as a witness. He swore to the complaint probably for the reason that the tender years of Opal prevented her from doing so. After the prosecution was commenced he had no control over it, and since he was not a witness his motives or prejudice can not be shown. The prosecution was by the state, and whatever his personal motives in swearing to the complaint, they have no bearing upon the guilt or innocence of defendant.
Doubtless the jury gave considerable weight to the conduct of defendant in leaving the state shortly after he was accused, and his admissions of guilt testified to by witnesses who talked with him while he was under arrest. We find nothing in the record to indicate that he was not given a fair and impartial trial, and the judgment must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff commenced this action under the mechanic’s lien law for the foreclosure of a lien for material used in the repair of a building. The petition was in the ordinary form. It alleged that the building in which the lumber was used belonged to George L. Brown, when as a matter of fact it was the property of The Brown Investment Company, of which George L. Brown was manager. The petition also alleged that E. S. Hunt was the lessee of the building and the duly authorized agent of Brown; that as such agent he made an oral contract for the purchase of the lumber to be used for flooring the building. It alleged the filing of a lien in the proper time, and also a demand upon Brown for permission to remove the lumber after the floor had been finished and his refusal to grant the permission.
The answer was a general denial, with a verified denial of the agency of Hunt. When the case was called for trial plaintiff learned that the title to the real estate was in The Brown Investment Company, and a continuance was taken. Later the case was tried on the original petition and answer, though plaintiff asked leave and was denied the right to file an amended petition making the investment company a defendant. There was a demurrer to the evidence, which the court sustained, and this ruling and the refusal to permit plaintiff to file the amended petition are the errors complained of.
Plaintiff has filed a voluminous abstract with no index, and the motion to dismiss for violation of Rule 5 might be sustained, but we prefer to dispose of the case on its merits.
The evidence showed that Hunt leased the building for a skating rink. The written lease gave him the right to make, without damage to the property, such improvements as were needed, and to remove material used, provided all obligations due the investment company were fully paid. With the consent of Brown,' the manager of the company, he put in a new floor, and purchased the lumber which plaintiff charged to his account alone. There was evidence showing that the material could not be removed without practically destroying the old floor.
It was more than a year after the lien statement was filed when plaintiff discovered that the property belonged to the investment company. It was then too late to amend the lien statement or file a new one, and the theory upon which plaintiff prepared the amended petition, and its sole contention, as stated to the trial court, was that it became entitled to a personal judgment against George L. Brown and the investment company because they converted the lumber to their use, and that such judgment should be declared to be an equitable lien upon the property for the purchase price of the material. There is no showing in the abstract that a motion for a new trial was filed; and, besides, the judgment is a finding of all the facts necessary to sustain it. It will be assumed that the trial court found from the evidence that Hunt was not the agent of Brown and had no authority to purchase the material as his agent, and that there was ho conversion by Brown. The investment company is not a party, and there was no abuse of discretion in refusing to allow the amended petition to be filed. The law is well settled that plaintiff is not entitled to an equitable lien for the purchase price of material used in the improvement of real estate. And there is no special reason why the merchant who sells material as this was sold should have an equitable lien upon the real estate, any more than that the merchant or farmer who sells feed which is used to fatten live stock should have an equitable lien on the stock. Material and mechanic’s liens are the creatures of statute.
“The mere fact that material supplied to one person is used in the construction of betterments on the land of another will not entitle the vendor to a lien on such land. Such lien may be acquired in the manner and upon the conditions prescribed in sections 5117-5131, General Statutes of 1901, and not otherwise.” {Doane v. Bever, 63 Kan. 458, syl., 65 Pac. 693.)
Plaintiff failed to make a case against George L. Brown, and it is apparent that, if all the facts alleged in the amended petition were admitted as true, it would not have been entitled to j udgment against the investment company, nor to an equitable lien for the purchase price of the lumber.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action is heard on a motion to dismiss the appeal for the reason that no notice of appeal was filed with the clerk of the district court, or a copy thereof served upon the defendants or their' attorneys, within the time prescribed by statute.
The plaintiff filed his petition in the district court of Shawnee county. November 26, 1910, that court sustained a demurrer to the petition. June 26, 1913, judgment for costs was rendered against the plaintiff, he then insisting that the cause should go to trial on the petition, notwithstanding the judgment on the demurrer. July 14, 1913, the court denied a motion of the plaintiff to strike from the files the journal entry of November 26, 1910. June 5, 1915, the district court denied the petition of the plaintiff for a writ of error to the United States supreme court. June 25, 1915, notice of appeal was served on the defendants, and this notice was filed in the district court the next day. The appeal was filed in the supreme court June 30, 1915.
Was the appeal taken in time? The plaintiff contends that because the defendants were members of the supreme court at the time the action was commenced, and because, until January 12, 1915, there were not enough members of the supreme court who were not parties to constitute a division under the constitutional provision, the statute prescribing the time within which an appeal must be taken did not commence to run until January 12,1915.
In Toof v. Cragun, 53 Kan. 139, 35 Pac. 1103, this court said:
“The appellate jurisdiction of this court is subject to the regulation of the legislature, and unless a party brings himself within the requirements of the statute prescribing time and manner of removing a case to this court, he is not entitled to á review.” (Syl. ¶ 1.)
(See, also, Kansas City v. Dore, 75 Kan. 23, 26, 88 Pac. 539.)
There is only one court in this state at this time empowered by law to review the proceedings of a district court. That is the supreme court. Prior to July 1, 1918, an appeal must-have been perfected within one year from the date of the judgment or order appealed from (Civ. Code, § 572) ; and since that time an appeal must be taken within six months (Laws 1913, ch. 241). From the judgment sustaining the demurrer the appeal should have been taken within one year; and from the judgment for costs and refusing to go to trial on the petition the appeal should have been taken within six months. From the judgment refusing to strike out the journal entry reciting the judgment on the demurrer the appeal should have been taken within six months.
The plaintiff did not appeal in time. The fact that all the justices of the supreme court were parties defendant during this time does not extend the time within which an appeal may be taken. We do not understand that a writ of error lies from a district court of this state to the supreme court of the United States. That writ' lies from this court. There is nothing that can be legally reviewed on this appeal, and it is for that reason dismissed.
West and Dawson, JJ., concurring. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment granting a peremptory writ of mandamus. On April 2, 1914, a vacancy existed in the office of the health commissioner of Kansas City, and an examination was held under chapter 88 of-the Laws of 19.13, by the civil service commission of that city,-to determine the qualifications and fitness of applicants for the position.- The papers were sent to Dr. S. J. Crumbine, secretary of the state board of health, for marking and rating. He reported back that Dr. C. C. Nesselrode stood first, and Dr. C. W. McLaughlin second. April 28, 1914, before a certificate showing the result of the examination was made to the city board of commissioners, the plaintiff was appointed to the office. May 2, 1914, a proper certificate was sent to the commissioners, and the same day the appointment was regularly made; The plaintiff then entered upon the duties of the office, and performed those duties until May 6, 1915. On July 9, 1914, the civil service commission sent a communication to the board of commissioners stating that a mistake had been made in totaling the grades on the examination of the applicants for the position; and on July 20, 1914, sent a corrected certificate, showing that Doctor Tenney and Doctor Nesselrode were the two highest on the list and should have been certified to the commissioners, to the exclusion of Doctor McLaughlin. After laying the matter over from time to time, the commissioners, on August 28, refused to allow the plaintiff any further ■ salary. May 6, 1915, after the decision in the case of Haney v. Cofran, 94 Kan. 332, 146 Pac. 1027, the board of commissioners terminated the controversy by an order ousting the plaintiff. On May 26 an alternative writ of mandamus was issued out of the district court of Wyandotte county to compel the board of commissioners to revoke the order removing the plaintiff from the office, and to recognize him as health commissioner of the city.
The defendants present two propositions: First, that the position of health commissioner is an office and the incumbent thereof an officer within the meaning of section 2 of article 15 of the state constitution; that having been appointed under section 13 of chapter 88 of the Laws of 1913, and no tenure being fixed, he held at the will of the appointing power. Second, that never having been entitled to certification, the plaintiff was ineligible at the time of his appointment, the order of appointment was a nullity, and the board of commissioners could declare the office vacant.
1. We will assume that the position held by the plaintiff was an office, that he was an officer within the meaning of the constitution, and that because his tenure of office was not fixed by law. he held during the pleasure of the appointing power. (Haney v. Cofran, 94 Kan. 332, 146 Pac. 1027.) This does not dispose of the case. We are compelled to consider the effect of chapter 112 of the Laws of 1915, by which section 13 of chapter 88 of the Laws of 1913 was amended by adding the following:
“The term of office for all officers subject to the examination herein required shall be for four years, and until his successor is appointed and qualified; provided further, that every officer or employee subject to the provisions of this act, and' who has been in the service of said city, as an officer or employee, for a period of one year immediately prior to the taking effect of this act, and who has heretofore passed the civil service examination, shall be exempt from further examination and his tenure of office shall begin from the taking effect of this act.”
When chapter 112 of the Laws of 1915 took effect, April 10, 1915, the plaintiff had not served one year. For that reason the last provision of the act does not apply to him. This leaves for consideration the provision that the term of office for all officers subject to examination shall be four years. The legislature, within constitutional limitations, had the power to fix the term of office for the plaintiff, or to abolish the office. Under the act of 1913, no tenure having been fixed, he held the office at the pleasure of the appointing power. Under the act of 1915 this was changed, and he then held the office for a term of four years. This statute takes away from the appointing power the authority to terminate the appointment at will, and fixes the tenure of office at four years. After the act of 1915 took effect the plaintiff could be removed only, upon charges preferred in writing for misconduct or failure to perform his duty. He was not removed in that manner. The defendants refused to allow the plaintiff the salary for the services rendered by him after August 28, 1914. This had no effect on his right to that salary, and did not determine whether or not he had been legally appointed, and was not a removal of the plaintiff from the office then held by him.
2. Section 13 of chapter 88 of the Laws of 1913 places all officers and employees of cities under civil service rules and regulations, except certain ones therein named. The position of health commissioner, created by a city ordinance, is not one of those excepted in the statute, and is therefore subject to the civil service law.
Section 5 of chapter 88 of the Laws of 1913 reads as follows:
“The civil service commission shall, whenever it is necessary so to do, under such rules and regulations as it may prescribe hold examinations for the purpose of determining the qualifications and fitness of applicants for all positions with the city subject to examination as hereinafter defined, which examination shall be practical and shall fairly test the fitness of the persons examined to discharge the position to which they seek to be appointed.”
Section 7 reads:
“The civil service commission shall certify to the board of commissioners the names and addresses of double the number of applicants for each vacancy, standing highest upon the eligible list of the class or grade to which said position belongs, and the board of commissioners shall make appointments from such list so certified and not otherwise; provided, however, that whenever the eligible list of the civil service commission contains less than double the number of applicants to fill the vacancy or vacancies existing, the board of commissioners shall appoint the person or persons then available on said eligible list.”
An' examination was held under the law. A certificate was given to the board of commissioners, and those commissioners appointed the plaintiff under that certificate. There was nothing to indicate that the appointment was invalid for any reason. There was nothing left to be done to make a legal appointment. A mistake was made by the civil service commis sion, by which the plaintiff’s name was improperly placed on the certificate. The board of commissioners was bound by that certificate. A court, unless it be in proceedings in quo warranto, can not inquire into the validity of that appointment, nor correct the mistakes made by the civil service commission while acting in good faith. In People ex rel. Mullen v. Sheffield, 24 App. Div. 214, 48 N. Y. Supp. 796, the court used this language:
“When such a report is made by the proper board to the appointing officer, and such appointing officer acts upon such report, the appointment then becomes a valid appointment, and the person appointed becomes vested with the office to which he has been appointed. It is quite apparent that it would destroy the whole system of competitive examinations if the appointing officer would have a right to go beyond the report of the board and to refuse to accept it, on the ground that the eligible list as presented by those upon whom the responsibility rests of determining who should be upon such eligible list, had not complied with the provisions of the statute in making up such list.” (p. 217.)
In The People v. Lindblom, 182 Ill. 241, 55 N. E. 358, the supreme court of that state said:
“A certification of a person by the civil service commission cannot be set aside and another person placed in his stead by the common law writ of certiorari.” (Syl. ¶ 1.)
(See, also, Matter of Allaire v. Knox, 62 App. Div. 29, affirmed in 168 N. Y. 642; People ex rel. Blaisted v. McCooey, 100 App. Div. 240, 91 N. Y. Supp. 36.) In People ex rel. Schau v. McWilliams, 185 N. Y. 92, 77 N. E. 785, the court said:
“If the action of the (civil service) commission is not palpably illegal the court should not intervene.” (p. 101.)
(See, also, Darling v. Maguire, 70 Misc. Rep. 597, 129 N. Y. Supp. 385, 386.)
We must conclude that the appointment of the plaintiff was in compliance with the statutes, and that it is therefore legal, notwithstanding the mistake made by the civil service commission in giving the plaintiff his markings on the examination. It necessarily follows that the plaintiff is legally health commissioner of Kansas City, and the judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to enjoin certain wholesale liquor dealers in Kansas City, Mo., from delivering intoxicating liquors to certain persons in Kansas City, Kan.
The petition, in substance, alleges:
“That the defendants, Dick & Brothers Brewing Company (and others) are engaged in the wholesale and retail liquor business outside the state of Kansas, and that the defendants, and each of them, use and employ in said business wagons, trucks and other vehicles for the purpose of hauling and bringing intoxicating liquors into the state of Kansas for delivery to residents and citizens of Wyandotte county, Kansas, and said defendants, their agents, servants and employees, by means and use of said wagons, trucks, drays and motor trucks make delivery of intoxicating liquors to residents and citizens of Wyandotte county, Kansas, in violation of law, and thereby aid, assist and abet in the maintenance of liquor nuisances, as hereinafter stated; . . . that the said defendants and their agents and servants have been engaged in said business for more than one year prior to the filing of this petition, and that the said defendants and each of them have heretofore unlawfully delivered intoxicating liquors in Wyandotte county, Kansas, to premises used wholly for business purposes, and to persons who have heretofore violated the law by engaging in the unlawful sale of intoxicating liquors, and by maintaining liquor nuisances, contrary to law. Plaintiff further states that said defendants have heretofore, and at the time of the commencement of this suit, aided, assisted and abetted in maintaining liquor nuisances by making delivery of intoxicating liquor to premises used wholly for business purposes, as hereinafter stated, and unless restrained by an order of this court will continue to make delivery of intoxicating liquors to business premises in Wyandotte county.
“Plaintiff further states that the defendants Hattie Allen (and a number of other persons) and each of them, have within the past two years violated the law of the state of Kansas, by engaging in the unlawful sale of intoxicating liquors, and by maintaining liquor nuisances, contrary to law.
“Plaintiff further states and believes the fact to be that the said defendants, so as aforesaid engaged in the unlawful sale of intoxicating liquors, and engaged in maintaining liquor nuisances in Wyandotte County, Kansas, if permitted to receive and have intoxicating liquors in their possession, will again violate the law by maintaining liquor nuisances, and asks that the defendants and each of them, so as aforesaid engaged in bringing and delivering intoxicating liquors to persons within Wyandotte county, Kansas, their agents, servants, drivers and wagon men, be enjoined from delivering to or furnishing any intoxicating liquors to each of the following-named persons, to wit: Hattie Allen, (and a number of other persons).”
The petition asks, that “the defendants, Dick & Brothers Brewing Company, . . . (and other liquor dealers) . . . their agents, servants, drivers, chauffeurs, employees, successors or assigns, be enjoined from delivering any intoxicating liquors to any of the following-named persons, in Wyandotte county, Kansas, to wit: Hattie Allen (and a number of other persons), that such persons be enjoined from having or receiving in their custody any intoxicating liquors until such defendant or defendants shall have given a good and sufficient recognizance herein, conditioned that he or they will not again violate the law of Kansas in relation to the sale of intoxicating liquors.”
Each of the liquor dealers filed a demurrer to the petition, alleging: 1. That the court has no jurisdiction of the person of the defendants, or either of them. 2. That the court has no jurisdiction of the subject of the action. 3. That several causes of action are improperly joined. 4. That the petition does not state facts sufficient to constitute a cause of action against said defendants.
The demurrers were sustained on the third and fourth grounds. The first and second grounds are not argued.
A number of statutes must be examined to properly determine whether or not the petition states a cause of action. Chapter 90 of part 1 of 37 United States Statutes at Large, (p. 699) reads:
“That the shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any. State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is hereby prohibited.”
Section 4380 of the General Statutes of 1909 is as follows:
“Any officer, agent or employe of a railroad company, express company, or other common carrier, who shall knowingly carry or deliver any intoxicating liquor to or for any person, to be sold in violation of this act or the act to which this is amendatory and supplemental, shall be deemed guilty of" a misdemeanor, and on conviction thereof shall be fined not less than one hundred nor more than five hundred dollars, and be imprisoned in-the county jail not less than thirty nor more than sixty days.”
Section 1 of chapter 248 of the Laws of 1913 reads:
“It shall be unlawful for any railroad company, express company or other common carrier, or for any person, company or corporation to carry any intoxicating- liquor into this state or from one point to another within the state for the purpose of délivery, or to deliver-the same to any person, company or corporation within the state except for lawful purposes.”
Section 4387 of the General Statutes of 1909 reads:
“All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, 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 violation of the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common' nuisances; and every person who maintains or assists in maintaining such common nuisance shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, for each offense.”
The next section (§4388) provides that the attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in the section last above set out exists or is kept or maintained, may maintain an action in the name of the state to abate and perpetually enjoin such nuisance. Under the federal statute, the transportation of intoxicating liquors intended by any person interested therein to be received, possessed or sold or in any manner used in violation of any law of the state into which it is transported, is prohibited. No person has a right to transport intoxicating liquors into this state when those liquors are intended to be received, possessed or sold in violation of the law of this state. By section 4380 of the General Statutes of 1909 it is a misdemeanor for any common carrier to deliver any intoxicating liquor to any person to be sold in violation of the law of this state, and by section 1 of chapter 248 of the Laws of 1913 it is a misdemeanor for any railroad company, express company or any other common carrier, or for any person, company or corporation, to carry intoxicating liquor into this state for any except lawful' purposes.
Another statute that must be considered is section 115 of the code of criminal procedure, which reads as follows:
“Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.”
One who delivers intoxicating liquor to another, to be by that other used or sold in violation of law, aids and abets in the commission of an offense against the intoxicating liquor laws of this state.
“Under the statutes of this state, one who procures, counsels or commands a criminal offense may be considered as principal, and may be punished as the principal, and it is not necessary to name such principal in the information or indictment.” (The State v. Patterson, 52 Kan. 335, syl. ¶ 3, 34 Pac. 784.)
(See, also, The State v. Cassady, 12 Kan. 550; The State v. Brown, 21 Kan. 38, 50; The State v. Mosley, 31 Kan. 355, 2 Pac. 782; The State v. Shinkle, 36 Kan. 43, 12 Pac. 309.)
In misdemeanors there are no accessories, but all persons concerned therein, if guilty at all, are principals. (The State v. Gurnee, 14 Kan. 111; Sharpe v. Williams, 41 Kan. 56, 20 Pac. 497; The State v. Stark, 63 Kan. 529, 533, 66 Pac. 243.)
One who aids and abets in maintaining or keeping an intoxicating liquor nuisance in this state by procuring or delivering intoxicating liquors to be used in maintaining or keeping such nuisance may be made a party defendant in an action to enjoin or abate such nuisance, and an injunction will lie to enjoin and restrain him from rendering such assistance. He may be prosecuted for so doing, and if he persists in this kind of violation of the law he may, upon a second conviction therefor, be sent to the penitentiary, under chapter 232 of the Laws of 1915. To state a cause of action under the statute a petition should come within the provisions thereof by alleging the maintenance of a nuisance by the defendants, or if the pleader does not desire to allege that the nuisance is main- tamed by all of the defendants he should allege that some of the defendants keep and maintain a nuisance, and that those not directly connected therewith aid and abet in keeping and maintaining the same.
What are the allegations of the petition? It alleges that Hattie Allen and others within the past two years violated the law of the state of Kansas by engaging in the unlawful sale of intoxicating liquors and by maintaining liquor nuisances, and that if permitted to receive and have intoxicating liquors in their possession will again. violate the law by maintaining liquor nuisances. It also alleges that the defendants, Dick & Brothers Brewing Company and others, are engaged in the wholesale and retail liquor business outside the state of Kansas, and make deliveries of intoxicating liquor to residents and citizens of Wyandotte county, Kansas, in violation of law, and thereby aid, assist and abet in the maintenance of liquor nuisances by delivering intoxicating liquors to premises used wholly for business purposes and to persons who have violated the law by engaging in the unlawful sale of intoxicating liquors and by maintaining liquor nuisances, and unless restrained will continue to make deliveries of intoxicating liquors to business premises in Wyandotte county, Kansas. The petition does not allege that Dick & Brothers Brewing Company, and others, make deliveries of intoxicating liquor to the defendants, Hattie Allen and others, neither does it allege that Dick & Brothers Brewing Company, and others, will unless restrained deliver intoxicating liquors to Hattie Allen and others. The petition does not allege that nuisances were being maintained by any of the defendants at the time it was filed. It does not state facts sufficient to constitute a cause of action.
One of the grounds of demurrer is that several causes of action are improperly joined. Section 88 of the code of civil procedure reads:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other lieiis.”
There are a number of defendants in this case. The plain tiff has attempted to charge all the defendants in one cause of action. No cause of action is stated against any of the defendants. If a cause of action were stated, we could determine whether or not several causes of action are improperly joined. Until one or several causes of action are stated, we can not determine the question.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
PORTER, J.:
The defendant Bacon entered into a written contract on December 20, 1910, by which he agreed to sell to John H. Swinburn a quarter section of land in Morris county, $400 being paid in cash and the balance, $3600, to be paid on March 1, 1911, at which time the deed and possession of the land were to be delivered to the purchaser. Two or three days before March 1, Swinburn called at the office of defendant and asked for the abstract and deed so he could have them examined, and,was informed that the papers were not ready. He went again on March 1, and on March 3, and demanded the papers. He claims that he had the money in the bank at that time to pay the balance due on the land, and that he told the defendant he was ready to settle, but that defendant'was not ready at that time to close the deal, claiming that certain papers had not arrived from Nebraska. Swinburn then demanded the money he had advanced, but payment was refused. There was testimony showing that the matter ran along for some time, and in April an abstract was furnished to which some objections were made by Swinburn, but later in the summer he called the attention of the defendant to certain defects in the title and said if these were corrected he would pay the balance of the purchase money; that the defendant refused to have the corrections made.
On September 26, 1911, Swinburn assigned and transferred his interest in the contract to the plaintiff, W. H. Dodderidge, who subsequently demanded of Bacon a deed to the,premises, offering and tendering to pay the balance of the purchase price, but the offer was refused. Plaintiff then brought this action to recover the $400. The court overruled a demurrer to the petition, and the defendant answered with a general denial and a special denial that either Swinburn or the plaintiff had ever tendered the sum of $8600 in payment of the balance due, and denying specially that the defendant-had ever in any way failed or refused to perform the obligations of the contract, and averring that he has at all times been ready and willing to perform his part of the contract. The answer further alleged that Swinburn, on or immediately after the first day of March and at different times thereafter, renounced all obligations on his part under the contract, and verbally notified the defendant that he would not be bound by the same or perform any part of it. The jury returned a general verdict in favor of the plaintiff for the $400 and interest. The court denied a motion for a new trial, and the defendant appeals.
It was the contention of the appellant throughout the trial that Swinburn proceeded from the first on the mistaken theory that time was of the essence of the contract and that he had the right to consider the contract at an end because of the failure of the defendant to make the conveyance at the agreed time. It may be that Swinburn was under that impression but the case was not tried upon any such theory. The court instructed the jury that time was not of the essence of the contract and that defendant had a reasonable time in which to tender the deed after the first day of March. Besides, the evidence shows that whatever Swinburn may have believed on the third day of March with respect to his rights, he did along in the summer offer to pay the balance of the purchase price if certain defects were corrected in the abstract and the deed were executed. There was no error in the refusal to instruct that the defendant was not required by the terms of the written contract to furnish an abstract. The evidence shows without dispute that subsequent to the making of the contract Swin burn requested an abstract, which the defendant agreed to furnish, and that he afterwards did furnish one.
It is insisted that the court erred in overruling a demurrer to the petition and in admitting testimony under it because the petition set out a copy of the contract and alleged a tender of the balance due on March 1, a demand for a deed, and the defendant’s refusal to comply with the terms of the contract without alleging that the defendant failed within a reasonable time after March 1 to perform the agreement. We think the petition was not demurrable. It set out a copy of the contract and alleged a compliance with the terms of the agreement on the part of the plaintiff and Swinburn and the refusal of the defendant on March 1, without any legal cause or excuse, to execute and deliver the deed. It is true that time was not of the essence of the contract, as appears by the instrument itself, but it was unnecessary to allege in the petition that defendant refused within a reasonable time after the first of March to comply with the agreement. The petition alleged that on September 26, 1911, before beginning the action, Dodderidge demanded of the defendant a deed and then and there offered to pay the balance of the purchase price, and this is the same thing as a statement to the effect that defendant had from the first of March until the 26th day of September during which time he had failed to comply with the terms of the contract.
The plaintiff testified that after he had acquired the assignment of the contract he went to the defendant and offered to perf orm his part of the contract and demanded a conveyance, but that the defendant informed him that it would cost him “$500 more to get it now.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one by a taxpayer to enjoin the erection of a municipal plant to be used for the purpose of supplying the city and its inhabitants with water and electric light, commenced after bonds had been voted, issued and sold. An injunction was refused, and the plaintiff appeals.
It is said that the ordinance directing the calling of the bond election is void. The statute provides that “The style of all ordinances shall be: ‘Be it ordained by the mayor and councilmen of the city of -.’ ” (Gen. Stat. 1909, § 1347.) The style of this ordinance was, “Be it ordained by the mayor and council of the city of Larned, Kansas.” Several pages of brief are devoted to an argument that this variance was fatal to the election, fátál to the bonds now belonging to the state school fund, and fatal to the erection of the new water and light plant in Larned. The argument is supported by numerous pertinent authorities. Courts ought to be accorded the privilege which individuals enjoy of putting away childish things when they have become men.
It is said that the ordinance is void because it did not provide when it should take effect. Judge Dillon said somewhere in his book that it did not need to. It would have taken effect at once (only the legislature declared it should not be in force until published, and it was published on March 6.
It is said, however, that there is no ordinance or resolution or other corporate act authorizing anybody to publish the ordinance. It seems that nobody knows whether this ordinance was carried over to the printing office by the mayor or the city clerk or the janitor of the city building or some interloper.' If by the mayor, where did he get his authority? The brief continues: “Nor does unauthorized publication in the ‘official paper’ lend a quickening spirit to what is otherwise inert.” The intention to put the ordinance in force, which necessitated publication, was expressed by passing the ordinance. Since the- ordinance did get into public print, and since the governing body of the city allowed the unsuspecting people to go ahead and vote bonds in the hope of getting a new water and light plant, the presumption is the intention referred to was executed and the publication would be good if the proof were that a messenger came over from the newspaper office and got the ordinance and printed it.
The notice of election and the election proclamation were prepared, signed, and dated, and the mayor appointed the election judges the next day after the ordinance was passed. It is argued that not a wheel of the election machinery could be turned until the ordinance became effective on publication three days later. The notice and the proclamation did not .amount to much until they were published. They were duly published a sufficient length of time after the ordinance took effect. The appointment of the election officials not having been revoked it still stood as the mayor’s official act when the publication of the ordinance came along three days later.
The notice of election did not state the rate of interest the proposed bonds were to bear nor the time they were to run. The notice fulfilled all the requirements of the statute by stating the amount of the bonds, but it is said the voters were entitled to the fullest measure of information as to the debt to be imposed. The court respectfully suggests that plaintiff memorialize the legislature.
The order of this court granting a stay against the erection of the public improvement on the erroneous belief that there was some merit in the appeal is set aside, the judgment of the district court is affirmed, and the clerk is directed to forward the mandate of affirmance to the clerk of the district court at once. | [
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The opinion of the court was delivered by
Mason, J.:
Various motions have been filed with respect to the decision and opinion heretofore announced herein. (Lynn v. McCue, 94 Kan. 761, 147 Pac. 808.) B. M. McCue asks a modification, so that he shall not be held to be concluded by the j udgment in the action brought in Logan county, on the ground that he did not enter any appearance or file any pleading therein — that his attitude was that of a friend of the court, interested by reason of owning stock in the construction company. He filed an application in the case asking that he, with others, be made a party, and be given leave to plead. In response to this request an order was made giving him permission to file such intervening petition or interplea as he should deem proper within a time fixed. This made him a party to the action, and we adhere to the view that he is bound by the judgment, notwithstanding he filed no pleading.
W. M. Kinnison, the receiver of the construction company, asks that the court state specifically whether the trust company will be allowed to set off the indebtedness due to it from McCue and the construction company against any damages he may establish on account of the conversion of the collateral. It was so intimated in the original opinion, and the intimation is now made a definite ruling. We do not regard the misconduct of the trust company as forfeiting its right in that respect. “In all cases the pledgee is entitled to have the debt due him set off against the amount of damages recovered [for a conversion of property deposited as security].” (31 Cyc. 847.)
The trust company files a petition for a rehearing, upon various grounds, especially urging that the retention of the cause in court for the determination of the receiver’s claim against it for damages is a violation of due process of law. It is asserting a lien against the land in Haskell county. The amount of this lien is one of the matters necessarily to be determined. Except for the Logan county judgment, it would be necessary for this purpose to ascertain the loss suffered by McCue and the construction company by the conversion. The construction company, equally with McCue, is concluded by that judgment. But its receiver may still, for the benefit of its creditors, assert a claim for the damages it could otherwise have recovered. And any sum awarded him will reduce by so much the trust company’s claim against the construction company (and against McCue, the construction company’s surety), and consequently will effect a reduction of the lien. The fact that the receiver was appointed before the construction company was made a party to the action in Logan county removes that company’s claim to a certain extent (so far as necessary to the purposes of the receivership) from the operation of the judgment therein rendered. Although the construction company can not in its own behalf demand damages for the conversion, whatever the receiver recovers on that account must operate in reduction of the indebtedness due the trust company. The claim of the receiver against the trust company is not independent of the matter upon which it came into court, but closely related thereto and interwoven therewith.
The judgment appealed from included an order for the surrender of a mortgage upon Nebraska land given by McCue to the trust company. The setting aside of the judgment carries with it the vacation of this order.
The plaintiff, Thomas Lynn, has established his right, which is no longer assailed, to a first lien upon the Haskell county land. The enforcement of his claim should not be delayed by reason of any controversy among parties whose claims are subordinate to his. (27 Cyc. 1534.) He is therefore now entitled to a sale of the property for the satisfaction of his lien, the surplus to be disposed of as may afterwards be determined.
The petition of the trust company for a rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued to recover the sum of $2000 which he alleged the bank received of him to his use. The petition alleged a demand for repayment and the bank’s refusal to comply. The defendant answered with a general denial. The court gave judgment in plaintiff’s favor, from which defendant appeals.
At the trial the plaintiff called one of the bank’s officers as a witness who testified that plaintiff left the $2000 with the bank; that he was not indebted to the bank; and that he had demanded the return of the money. On cross-examination the witness stated that the deposit was made in accordance with the terms of a written contract which the defendant thereupon offered in evidence. The witness stated further that the bank had no claim or right to hold the money except as the contract provides. The plaintiff was also a witness and testified that the money was sent to the bank about December 1, 1912, and that the demand was made about December 28, 1912. On cross-examination he stated that the money was sent to the bank under the terms of the contract. No further testimony was offered by either side. The court overruled defendant’s demurrer to the evidence and gave judgment in favor of the plaintiff.
The contract was dated November 29, 1912. By its terms plaintiff agreed with one Richards to exchange a farm, a gasoline engine and a feed-grinder for a stock of merchandise in Holton. The exchange was to be completed and the contract complied with on or before January 10, 1913. To set forth the entire contract would require almost five pages of this volume. It contains more words than would have been necessary for the consolidation of two railroads. It bound the parties to perform many things in connection with the exchange of properties, such as requiring plaintiff to furnish an abstract, Richards to take an invoice of the stock in a particular manner and assign the insurance; and divers and sundry other things of more or less importance were required of the parties. It provided that the contract should be placed in the bank and that each of the parties should deposit at the same time $2000, which sum should be the measure of damages suffered by either party by reason of the failure of the other fully to perform his part; and it expressly directed the bank, in the event of such failure, to pay to the other the $2000 deposited by the delinquent party. If the contract meant what it said, the failure of the plaintiff to pay the interest upon certain mortgages until the delivery of the deed, or his failure to furnish an abstract, or to deliver the gasoline engine, authorized the bank to pay his $2000 to Richards. If Richards purchased any new merchandise while the invoice was in progress, or failed to assign the insurance, or was delinquent in any one of a half- dozen other matters mentioned in the contract, his $2000 was to be paid at once and forthwith to the plaintiff.
The trial court correctly ruled that the $2000 deposited by the plaintiff is a penalty and not liquidated damages. (Condon v. Kemper, 47 Kan. 126, 27 Pac. 829; Land Co. v. Barton, 51 Kan. 554, 33 Pac. 317; Railroad Co. v. Gaba, 78 Kan. 432, 97 Pac. 435; Cunningham v. Hill 80 Kan. 706, 102 Pac. 1102; Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Benfield v. Croson, 90 Kan. 661, 136 Pac. 262.)
The court further held that, in so far as it authorized the bank to pay the money to Richards, the contract is void and constitutes no defense to an action by plaintiff to recover the money. In this respect the court was in error. While the provision attempting or purporting to liquidate the damages is void, the contract is not void, and before plaintiff could recover from the bank it was incumbent upon him to show that Richards had no claim upon the bank for actual damages occasioned by plaintiff’s default. This might have been shown by evidence that the contract was fully performed on his part or that it had been mutually abandoned. The bank, by the terms of the contract under which it accepted the deposit, had the right to hold it so long as Richards had any claim upon it, for it was placed in the bank for his benefit as well as that of the plaintiff. The plaintiff could have joined Richards as a defendant and required him to set up any claim he had to the fund. In such case if Richards had made no defense the bank could have had none.
In Condon v. Kemper, 47 Kan. 126, 27 Pac. 829, upon which plaintiff relies, the party injured by the breach of the contract was permitted to recover, in an action on the contract, $100, his actual damages, although the stipulation in the contract that the delinquent party should pay $500 was held void as a penalty. In this case the bank had the right to retain the whole sum as security for any damages Richards sustained by any default of the plaintiff. It would be liable to the plaintiff for any balance remaining in its hands; but until the plaintiff showed full performance or a release or abandonment of all claims to the fund by Richards, no action could be maintained by plaintiff to recover the -money.
“The distinction between a penalty and liquidated damages, briefly stated, has been said to be that the former is a security for, and the latter an amount to be paid in lieu of, the performance of the act to be done.” (19 A. & E. Encycl. of L. 396.)
Richards has a right to look to this $2000 to reimburse him for any damage he has sustained on account of the plaintiff’s failure to comply with the contract. Until it is established that he was not damaged, or if he was, that such damage has been satisfied, the bank has a right to retain the money. On the other hand, when it is established that Richards has sustained no damage or that any he sustained has been satisfied the fund must be returned to the plaintiff.
The trial court erred in refusing to sustain the demurrer to plaintiff’s evidence, and the judgment is reversed with directions to render judgment in defendant’s favor. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for injuries sustained by a pedestrian crossing a street, occasioned by being run down by an automobile. The plaintiff recovered and the defendant appeals.
The evidence was sufficient to warrant the submission of the cause to the jury and to sustain the special findings and the general verdict. Besides the statements of witnesses characterizing the speed of the automobile, the relative movements of the plaintiff and of the automobile were so described as to indicate excessive speed. The jury were particularly impressed with the fact that the automobile driver was going so fast he could not control the car.
The prudence of the conduct of the plaintiff was clearly a question for the jury, and the answer to special question number seven accords with her testimony.
The portion of instruction number thirteen which was criticized summarizes in a few words the doctrine stated in Railroad Co. v. Gallagher, 68 Kan. 424, 428, 75 Pac. 429. The language of the instruction was, “if she had good reason.to believe” — a matter for the jury to determine under all the cir cumstances. The next sentence of the instruction stated the duty to use due care, as instruction number eleven had done at length. Finding number seven is to be read in the light of the instructions and in harmony with the general verdict.
The evidence discloses lack of diligence such as the law required of the defendant to secure the attendance or evidence of his absent witness.
The foregoing covers the material assignments of error, and the judgment is affirmed. | [
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The opinion of the court was delivered
Porter, J.:
Plaintiff sued and recovered judgment against the bank for $100 damages and $25 attorney’s fees under the provisions of section 5202 of the General Statutes of 1909, based upon the refusal of the bank to enter satisfaction of a mortgage upon real property.
The defendant’s appeal involves but a single question. The defendant claims that the provision of this section of the statute which authorizes the mortgagor to recover from the mortgagee $100 damages and a reasonable attorney’s fee is unconstitutional. It is insisted that the statute is in conflict with section 6 of article 6 of the constitution, which provides that “the proceeds of fines for any breach of the penal laws, shall be exclusively applied in the several counties in which the money is paid or fines collected, to the support of common schools.” The defendant relies upon the case of A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1, where an act of the legislature giving to an informer, who has sustained no loss, one-half of the proceeds of the penalty recovered against a railway company for violating a statute requiring railroad companies to ring a bell or sound a whistle at each crossing of every traveled public road or street was held to conflict with this provision of the constitution. The judgment provided that one-half thereof was to be paid to Sanders (who sued in the name of the state), and the other half to the school fund of the county. It was said in •the syllabus:
“All the proceeds of penalties imposed as punishment for a breach of a penal statute (and not imposed as damages where loss has been sustained) must ‘be exclusively applied to the support of common schools.’ ”
• The defendant argues that the statute must be construed by its effect and not by the name which the legislature gives to it, and that the ruling in A. T. & S. F. Rld. Co. v. The State, supra, means that where no actual loss has been sustained the recovery is a fine, and that the statute in question here in terms authorizes the mortgagor to recover $100 regardless of whether he has in fact sustained a cent of damages. There is nothing in the case to uphold the defendant’s contention. The opinion recognized the clear distinction between “penal laws,” in which the penalty is imposed as a punishment, and laws where the penalty is intended as compensation for loss or damages sustained. Justice Valentine, speaking for the court, used this language:
“The words ‘penal laws,’ as used in the constitution, evidently mean laws for the breach of which a penalty is imposed, and if this penalty is imposed merely as punishment, the penalty is a fine. The legislature may give damages wherever loss has been sustained. It may even give enhanced damages, double damages, treble damages; exemplary damages, and remote as well as proximate damages, but these are all damages because of loss sustained, and not merely punishment for some breach of the penal laws. It has often been questioned, however, whether the legislature could give as damages more than mere compensation for the loss sustained. If it were a new question, the courts would probably at the present day hold that the legislature could not do so. The legislature may also give costs, such as officer’s fees, witness fees, attorney’s fees, etc.; but these are also given as compensation for loss. The legislature may also give interest, or enhanced damages or penalties, in the nature of interest; but this is also done upon the principle of giving compensation for loss.” (p. 15.)
The statute in question, or one substantially the same, has been in the laws of Kansas since the Bogus Statutes of 1855. The first provision was for a forfeiture to the aggrieved party of ten per cent upon the amount of the mortgage. (Stat. Kan. Territory, 1855, ch. 114, § 23.) In 1862 the statute was changed and practically the same provision of the present statute was adopted making the mortgagee liable to- the mortgagor or his grantee or heirs in the sum of $100. (Comp. Laws, 1862, ch. 151, § 3.) The present statute has been in existence since 1889. (Laws 1889, ch. 175, § 1, Gen. Stat. 1909, § 5202.) The statute is not open to the same objection that was raised against the act under consideration in A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1. There the statute provided that any informer could recover. Here the right of recovery is limited to those who it is presumed have sustained damages by the negligence of the mortgagee to satisfy the mortgage.
In Tucker v. Railway Co., 82 Kan. 222, 108 Pac. 89, the court had under consideration the provisions of an act to establish maximum rates for transporting crude oil and forbidding rebates and providing penalties for its violation. (Laws 1905, ch. 353, Gen. Stat. 1909, §§ 7163-7165.) The same contention was made there, that the provision of the act making the railway company guilty of a violation liable to any person injured thereby in the sum of $500 as liquidated damages. The act made the giving of rebates a misdemeanor punishable by fine and imprisonment, but it was ruled in that case:
“The damages recoverable by an aggrieved shipper under the act referred to do not constitute a fine for the breach of a penal law, which must go to the school fund under section 6 of article 6 of the constitution.” (Syl. ¶2.)
It follows that the judgment will be affirmed. | [
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The opinion of the court was delivered by
Porter, J.-:
The defendants appeal from a ruling sustaining a demurrer to their answer. They were directors of a Colorado corporation which became indebted to the plaintiff. The action in the district court was brought to recover the amount of this indebtedness, under a statute of Colorado which provides that if a corporation of that state failed to file its annual statement within sixty days next after January 1, 1909, and pay certain fees required, its directors should become liable for the corporation’s debts incurred within a certain period.
This is the second time the case has been before, us. The defendants demurred to the petition, contending that the Colorado statute was penal and that the courts of Kansas would no enforce it. The decision of the trial court overruling the demurrer to the petition was affirmed. (See same case, 87 Kan. 331, 124 Pac. 414.) The case went back for further proceedings, and the defendants answered, pleading that the action is barred by the one-year statute. (Civ. Code, § 17, subdiv. 4.) The answer alleged that for more than five years prior to the commencement of the action the defendants had resided in the county where the action was brought. The defendants rely solely upon the Kansas statute, no limitation statute of Colorado having been pleaded.
The nature and character of the Colorado statute was squarely presented when the case was here before, and the court held that it was not purely penal but is in part compensatory. Counsel say the question now presented is whether or not the statute “is sufficiently of a penal nature” to bring it within the provisions of our statute of limitations, which provides that an action upon a statute for a penalty or forfeiture must be brought within one year. At the oral argument counsel urged that the former decision is wrong and should be reconsidered. The court is satisfied with the soundness of the former decision, and further holds that the statute is not so far penal as to bring it within the one-year statute of limitations. We are cited to decisions of the Colorado courts holding that a similar statute of limitations there applies to a cause of action based upon the statute in question, and it is urged that we should follow the construction given by those courts. We declined in the former opinion to follow the decisions of the Colorado courts construing this statute relating to corporations as strictly penal on the ground that “the question whether the statute, as interpreted by the [Colorado] court, is penal in such sense as to deny it all extra-territorial operation, is not one of local, but of general or international law.” (Machinery Co. v. Smith, 87 Kan. 331, 336, 124 Pac. 414.) The decision was followed and approved in Slater v. Railway Co., 91 Kan. 226, 232, 137 Pac. 943. The cause of action here is solely to recover compensation; in no sense does it depend upon any part of the Colorado statute which authorizes the recovery of a penalty. Therefore the statute of limitations relied upon is not a bar, and the demurrer to the answer was rightly sustained.
The judgment is affirmed. | [
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Allen, J.
This was an action of replevin, to recover a stock of drugs and other merchandise, brought by Dennis against Kuster. The evidence shows that a parol agreement with the defendant was made by the plaintiff, through his son J. H. Dennis, as his agent, to exchange the plaintiff’s homestead and another house and lot in Topeka for the defendant’s homestead, two other dwelling-houses, a vacant lot, and a stock of drugs in Williamsburg. The defendant was to retain the proceeds of sales made on Saturday, the day of the trade, and the plaintiff was to have the proceeds of the sales on and after the following Monday. The defendant was to remain in charge of the drug stock temporarily for the plaintiff. Abstracts were to be furnished, and deeds were to be deposited with J. B. Larimer for delivery. The defendant’s wife never assented to the contract, and refused to join in a conveyance of the homestead. The plaintiff never deposited or tendered a deed to his homestead, but he has brought this action, claiming that the stock of drugs was delivered to him, and that the title passed by reason of the parol contract. There are several reasons why the plaintiff cannot recover, either one of which is ample to defeat his action. The contract was entire, and was void within the Statute of Frauds.. It was also a contract for the exchange of homesteads without the assent of the wives of the parties. There was no delivery of the stock o'f drugs, nor any intent on the part of the defendant to part with his title to the personal property without receiving a deed to the plaintiff’s property. The plaintiff could not recover without tendering performance on his part.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion -of the court was delivered by
Johnston, J. :
While the administration of the estate was still pending in the probate court, Joseph Dicklow brought this action in the district court against the administratrix and the sureties upon her bond, charging her with maladministration, asking for an accounting, and that the release under which she proposed to claim his alleged interest in the estate should be canceled and set aside. This 'was done, too, with full knowledge of the condition of the estate, of the wrongs alleged to have been committed by the administratrix, and after he had learned that a settlement was to be made at the succeeding term of the probate court. Although he had legal notice of the final settlement and distribution, he ignored the probate court, and without appearance or objection allowed the final settlement to be made, the estate distributed, and the final decree entered discharging the administratrix and releasing the sureties on the bond from further liability. No appeal was taken from the determination of the probate court, nor were any supplemental pleadings filed in the district court after the settlement and distribution were made. We readily agree with the district court that he was concluded by the adjudication in the probate court. He was not a stranger to those proceedings, but was brought in by the notice, and is necessarily bound by the decision to the same extent as any other claimant, distributee, or interested party.
In this state probate courts are given complete jurisdiction of all matters connected with the settlement of the estates of deceased persons, and specific authority is .conferred upon them to settle the accounts of administrators and to order the distribution of estates. (¶ ¶ 2116, 2952, Gen. Stat. 1889.) Provision is also made for taking an appeal from an order of the court making distribution of an estate. That court having jurisdiction to make distribution of the estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate. The jurisdiction being ample, it must be held that Joseph Dicklow has had his day in court, and that the adjudication there made is binding upon him as against a collateral attack. (Davis v. Hagler, 40 Kan. 187; Blake v. Butler, 10 R. I. 133; Dundas’s Estate, 73 Pa. St. 474; Graham et al. v. Abercrombie et al., 8 Ala. 552; Ward and wife v. Congregational Church, 66 Vt. 490; Carter’s Appeal from Probate, 59 Conn. 577; Case of Broderick’s Will, 21 Wall. 503.) The final settlement and closing up of an estate is a judicial determination to which all interested are summoned, and by which all having a day in court are concluded. (Musick v. Beebe, Adm’r, 17 Kan. 47.) It is in the nature of a final judgment that the estate is fully administered, intended as a protection for the administrator and his sureties, and is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.
Although the estate was unsettled, the plaintiff undertook to wrest the matter from the jurisdiction of the probate court at a time when that court had ample jurisdiction over the administratrix and the estate, and to have determined the questions which he undertook to raise by his proceeding in the district court.
“In cases of this kind, where the administrator is still acting, and the estate is not settled, and the probate court has complete and ample jurisdiction over the administrator and over the estate, actions in other jurisdictions, against the administrator and his sureties on the administrator’s bond should not be encouraged.” ( Stratton v. McCandless, 27 Kan. 306.)
It is true that the district court has jurisdicton of some matters relating to the estates of deceased persons, but it is an equitable jurisdiction, not to be exercised where the plaintiff has a plain and adequate remedy by an ordinary proceeding in a tribunal especially provided by statute, and it is a well-established rule that, in cases where two courts have concurrent jurisdiction, the court which first takes cognizance of the cause retains it to the exclusion of-the other. (Shoemaker v. Brown, 10 Kan. 383; Smith v. The Eureka Bank, 24 id. 528; Kothman v. Markson, 34 id. 542; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 291.) The adjudication of the probate court in a matter within its jurisdiction is as conclusive upon the parties as is the judgment of the district court, and it should be allowed to stand unless set aside upon appeal or some direct attack. No special equitable considerations were shown which justified taking the matter into the district court, or warranted interference with the action of the probate court. The plaintiff, with legal notice and actual knowledge that a settlement and distribution were about to be made, could not safely ignore the proceedings in the probate court. The matters of which he complains have been finally determined in that court, and he is bound by the adjudication.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
Clarence E. Young, a minor about three years old, had his hand cut off by one of the trains of the Union Pacific Railway Company, in Kansas City, on November 4, 1888. He brought an action by his next friend, alleging that near the track were several houses occupied by families with children ; that the track was not often used by the company, was very attractive and enticing to children, and, therefore, it was necessary for the company in moving cars to keep a careful lookout and guard over the track to prevent injury to children who were on or near to the track. It was further alleged that, while the plaintiff was playing upon the track near the end of the train of cars, it was moved backward without any warning to him, or any precaution to prevent accidents to children upon the track ; and that by reason of negligence, in failing to keep a lookout or proper guard, the injury occurred. The trial resulted in a verdict against the company awarding damages in the sum of $5,000, and upon motion for a new trial it was insisted that the verdict was not sustained by sufficient evidence; and that is the principal contention in this review.
It appears that the train was upon a switch-track on which freight-cars destined for Kansas City were placed. It connected with a main track used by the Missouri Pacific Railway Company, and on each .side of the switch-track a number of small houses, shanties and tents of a temporary character were erected and occupied. In one of these, and about 10 feet from the track, the plaintiff below lived with his parents, and in the same row, and only a few steps away, his uncle lived in a tent that was about 10 feet from the same track. A switching train backed in upon this track, upon the morning of the injury, to place cars in different parts of the yard. To get in upon another switch-track it became necessary to run the train out upon the main track, but as a Missouri Pacific passenger-train was nearly due the switching crew decided to wait until it had passed before going out upon the main track. The switching train remained standing upon the switch from 15 to 30 minutes, waiting for the passenger-train to pass, and some of the witnesses claim that the train was about 30 cars in length and extended on either side of the house where the plaintiff below lived, while other of the witnesses claim that it was a short train of seven or eight cars, one end of which only extended up to the houses in 'question. After the Missouri Pacific passenger-train had passed, the switching train was moved, and, in some way, not disclosed in the evidence, the right hand of the boy was crushed and cut off. No one saw the occurrence, and there is no evidence to show how the boy came to be at the track nor what his position was immediately prior to the injury. He was seen by his parents at home four or five minutes before the injury, when he appears to have gone to his uncle’s tent, and the uncle saw him leave the tent about two minutes before he heard a cry and discovered that the boy was hurt. When found, he was near the track, but whether he walked in at the side of the train or was in front of the end of the car when the train was moved, does not appear. His parents and uncle had seen, the car standing there for some time before the boy left home, but none of them can tell the position he occupied or what he was doing when the cars were moved. It is said that no signals were given of the movement of the train, but signals would have been of little use to such a child.
The main claim is that no employee was upon the rear end of the train to prevent injury to children who might be near to or upon the track. Upon this question there is a dispute in the evidence, but, assuming that the company failed in this respect, it does not appear that such precautions would have averted the injury. He may have been playing under the car out of the view of the lookout, or he may have run in front of the end car just as it was moved and when it would have been impossible, by the greatest diligence, to have stopped the train before he was struck. If a brakeman had been upon the train to guard against such injuries, who can say that the peril of the child would have been discovered in time to have prevented the injury ? It is not enough that the company may have failed to take necessary precautions in moving the train, but before there can be a recovery it must show that the boy was hurt in consequence of such failure. How he was hurt and whether due care would have avoided the casualty rest upon conjecture rather than upon established facts, and we conclude that the testimony is insufficient to support the verdict, and that a new trial should have been granted.
Complaint is made that the court erred in failing to charge the jury with reference to the contributory negligence of the plaintiff's parents. As this action was not brought by the parents or for their benefit, but is brought for the benefit of the plaintiff himself, the negligence of the parents cannot be imputed to him. In this respect there is a distinction between cases brought by an infant too young to be charged with contributory negligence and cases brought by the parents to recover for the injury sustained by them by reason of the injury of such infant. In a recent case it was said that, ‘c where an action for a negligent inj ury to an infant is brought by the parent, it is very justly held that the contributory negligence of such parent may be shown in bar, but it is otherwise if the action is brought by the infant or by a next friend for the benefit of the infant.” (C. K. & W. Rld. Co. v. Bockoven, 53 Kan. 289.)
There is just cause to complain of some of the instructions that were given. There is confusion and inconsistency in the statement of the rule as to the care required by the railroad company in moving the train from the place where it stood. The jury were told that they might take into consideration the nature of the lookout kept or examination made by the employees of the train before it was moved, while another portion made the moving of the train, without an examination of the track or cars, culpable negligence. Under the testimony, the court was not warranted in declaring it to be a duty to make an examination of the cars before moving the train to ascertain whether there might be persons under the cars who would be injured by the movement.
The jury were also directed to determine from the evidence whether the defendant was guilty of recklessness or wantonness, and we "‘fail to find any testimony which justifies a reference to that subject.
In the same instruction the'attention of the jury was especially called to the fact that Clarence Young was the son of poor parents, and that the people who lived in the neighborhood were ° in poor circumstances. There was no reason or propriety in calling the attention of the jury to the financial circumstances of the parties. The fact that the parents were poor' had no bearing upon the care to be exercised by the railroad company, nor could it affect the measure of recovery of the plaintiff.
It is finally contended that.the court erred in admitting the evidence of a city ordinance of Kansas City, Kan., relating to the running of locomotives and-cars. It regulates the speed or the trains running through the city, provides for the giving of signals when moving locomotives and cars, and requires that a watchman, or some other person, shall be on the rear end of the train when running backwards through the city. It contains a section to the effect that certain provisions of the ordinance shall not apply to. the Interstate Rapid Transit Railway Company, and it is therefore contended that it is class legislation and violates the constitution of the state and of the United States. We do not deem the provisions of the ordinance to be material to this controversy, as the provisions of the ordinance, so far as they apply-to the case in question, prescribe no higher degree of care than is required in a populous part of a city having about 30,000 inhabitants, as Kansas City has.
For the errors mentioned, however, the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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Johnston, J.
This was an action by Charles Raymond to recover $3,000 on an insurance or benefit certificate issued to him by the Supreme Lodge of the Order of Select Friends. The order is a fraternal one, and its objects are to advance the principles of friendship, hope and protection among those who are eligible to and do become members, and to aid members in business and in obtaining employment. A relief fund has- been established, from which benefits not exceeding $3,000 are to be paid upon the death or total disability of members who have complied with the rules and regulations of the order. In the matter of benefits, a claim by a member on account of accident or disability is first made to the Supreme Medical Director ; if he refuses to recommend payment, an appeal may be taken to the Supreme Executive Committee; and if the decision of that committee is adverse, the claimant may appeal to the Supreme Lodge, where the claim will be determined by a majority vote of all' present and entitled to vote thereon. Raymond, a member of the order to whom a certificate had been issued, presented a claim under his certificate upon the ground that he had become totally and permanently disabled. IJis application for a benefit was regularly presented to the Supreme Medical Director, who rejected it. Appeal was taken from his decision to the Supreme Executive Committee, which also refused to allow his claim. He thereupon appealed to the Supreme Lodge, and that tribunal decided adversely to his claim. He then instituted the present action; and, a trial having been had before the Court and a jury, a verdict was rendered in his favor for the sum of $2,983.16. Raymond appears to have been a member of the order in good standing, whose assessments had been paid; and the disability of which he complained was organic disease of the heart and muscular rheumatism. There was testimony tending to sustain the claim of disability, and that the claim was properly presented and the appeals regularly taken is conceded; but it is contended that the claim having been rejected by the tribunals created by the order, and the decision of the Supreme Lodge of the order being adverse and standing unreversed and unmodified, it was a full and final adjudication of the plaintiff’s claim, and no resort to the courts can be had. It is argued that, provisions having been made by the laws of the order for the investigation and allowance of benefits, a member who subscribes to those provisions is bound by them, and by the decisions of the tribunals which he himself has helped to create. One article of the constitution of the order is that “no claim for any benefit from the relief-fund shall be paid until all the laws or rules of the order have been fully complied with, and the requisite proof of the justness of the claims has been made in accordance with the general laws of this order.”
For the purpose of sustaining the position that a resort to the courts is not permissible, attention is called to the laws of the order already mentioned, and also to the following provision of the constitution :
“The Supreme Lodge, when convened agreeable to the provisions of the constitution and laws of the order, shall have original and exclusive jurisdiction over all subjects pertaining to the welfare of the order, and absolute control of all appeals from the Grand or Subordinate Lodges and members ; and its decisions upon all questions and appeals, when properly presented and heard, are the supreme law of the order.”
Instructions were asked to the effect that, in the absence of fraud, the decisions of the tribunals of the order were final and conclusive ; but these were refused, and, instead, the Court charged the jury as follows :
' ‘ If you find from a preponderance of the evidence that the plaintiff has paid all dues and assessments as provided by the by-laws, and was in good standing in the order, and that he duly presented his claim and took the various appeals as provided by the constitution and laws of the order, and that the defendant order through its Grand Lodge finally acted upon and rejected the said claim, then he may maintain an action thereon in this Court, and may recover thereon, provided he proves by a preponderance of the evidence the existence of the total disability as claimed.”
Fraternal organizations like this one may doubtless adopt rules and by-laws which will be controlling as to all questions of discipline, doctrine or internal policy. Persons who voluntarily become members are bound by all reasonable rules and regulations, and with the determination of questions of the character named the courts will ordinarily not interfere. It does not follow, however, that the contract or property rights'of members are beyond the reach of the courts or the protection of the law. In. a recent case it was held that, while courts will not undertake to direct or control such societies in the matter of discipline or internal policy, they are nevertheless subject to the laws of the State and the j urisdietion of the courts in proper cases; and that the courts will not hesitate where property rights are involved to entertain jurisdiction and afford relief. Reno Lodge v. Grand Lodge, 54 Kan. 73. In some cases it has been held that, in the absence of fraud, the decision of the organization, or one of its tribunals, as to the right of a member to benefits is final, and no resort to the courts can be had (Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378; Canfield v. Knights of Maccabees, 87 id. 628; Fillmore v. Knights of Maccabees, 103 id. 437; Anacosta Tribe of Red Men v. Murbach, 13 Md. 94; The Osceola Tribe, No. 11, I. O. R. M., v. Schmidt, Adm’r, 57 id. 98; Van Dyke’s Case, 2 Whart., 312; McAlees v. Iron Hall, 13 Atl. Rep. [Pa.] 755; Rood v. Benefit Ass’n, 31 Fed. Rep. 63); while other cases are to the effect that it is not competent for societies, in advance of a dispute, to make a by-law or stipulation which will deprive a member of the right to resort to the ordinary legal remedies for the protection or enforcement of his contract or property rights, nor to oust the jurisdiction of the courts by a provision that the decision-of the organization itself, or one of its tribunals, shall be final as to such rights. Bauer v. Samson Lodge, Knights of Pythias, 102 Ind. 262; The Supreme Council of the Order of Chosen Friends v. Garrigus, 104 id. 133; Order of Chosen Friends v. Forsinger, 125 Ind., 52; 31 Am. & Eng. Cor. Cas. 174; Insurance Co. v. Morse, 20 Wall. 445; Scott v. Avery, 5 H. L. Cases, 811; Stephenson v. Piscataqua F. & M. Ins. Co., 54 Me. 55; Burlington Voluntary Relief Department v. White, 41 Neb. 561; Daniher v. Grand Lodge A. O. U. W., 10 Utah, 110; Austin v. Searing, 16 N. Y., 112; 69 Am. Dec. 665; Bacon’s Ben. Soc. §§ 400, 450; Niblack, Ben. Soc. § 317. Courts are created by the sovereign power ; and when established should be open and accessible to all for the protection of their civil or property rights. Societies like the plaintiff in error cannot be regarded, as purely charitable organizations, nor the benefits promised by them gratuities. The member pay for insurance ; and the certificates issued to and accepted by them are in effect contracts of insurance. Although the insured is a member of the organization, and must generally be held bound by all reasonable and valid rules which it makes, yet, as to the insurance, he .is in a certain sense a stranger to the organization, and 'their relations, in that regard are somewhat antagonistic. In making the contract, the organization deals with him as an individual rather than as a member; and for an injury to his contract rights can he be barred from invoking the jurisdiction of the courts? Will a provision that the decision of the organization, or of one of its tribunals, shall be final preclude him from resorting to the ordinary legal remedies which the law affords? It may well be doubted whether a society can confer upon its own tribunals plenary power to decide finally and conclusively upon the property rights, of insured members ; but the determination of the question is not necessary to the disposition of this case. No attempt has been made to prevent-members from resorting to the courts to recover benefits, nor has any stipulation been made that the decisions of controversies as to benefits shall be final and conclusive. The constitutional provision of the order that the Supreme Lodge shall have original and exclusive jurisdiction over subjects pertaining to the welfare of the order was certainly not intended to oust the courts of their ordinary jurisdiction; and the further provision, that the decisions of the Supreme Lodge upon questions and appeals shall be the supreme law of the order, cannot be regarded as applicable to controversies over contracts of insurance between the order and the insured. The right of resort to the courts will not be deemed to have been taken away by mere inference ; and, if it can be done at all, it will only be where the restriction is stated in the clearest and most explicit terms. The provision in the constitution of the order, that no claim or benefit shall be paid until the rules of the order have been fully complied with and the requisite proof of the justness of the claim has been made in accordance with the general laws of the order, is a reasonable regulation, and no reason is seen why it may not be enforced. It is generally held to be competent for the organization to provide that claims for benefits shall be submitted to the tribunals of the order before they are made the subject of litigation in the public courts. In this way an opportunity is given to the order to fully investigate the nature and justness of the claims; and provisions of this character are not uncommon in insurance contracts. This provision, however, affords no justification for the contention that the order has abridged the right of members to resort to the courts when their claims for benefits have been rejected. It has been said •
“Courts of justice are freely open to those who seek money due them upon a contract, and the party who asserts that the right to invoke the aid of the court has been curtailed must show a clear agreement abridging the right. If a man has a legal right, and the society to which he belongs adds others, that of submitting his claim to the society for adjustment, and that of appeal to its superior governing bodies, the added rights are merely cumulative ; they are not exclusive. Positive words only can take away an ex isting right. Conferring a right to pursue a given course does not destroy an existing right; in order to destroy such a right proper limiting words must be employed.” (Niblack, Benefit Societies, 2d ed., §313.)
The Supreme Court of Illinois, having before it an interpretation of a provision which, it was claimed, made the decisions of the society and its tribunals, as to claims for benefits, final and conclusive, held that, where the society itself, one of the parties to th'e controversy, is sought to be made the final judge,—
“the courts will hesitate and even refuse to treat its decisions as final and conclusive, unless the language of the contract is such as to preclude any other construction. The judicial mind is so strongly against the propriety of allowing one of the parties, or its especial representative, to be' judge or arbitrator in his own case, that even a strained interpretation will be resorted to if necessary to avoid that result.” Railway Conductors’ Benefit Ass’n v. Robinson, 147 Ill. 159.
We think the District Court placed a proper interpretation upon the rules of the order and the provisions of the contract of insurance, and that the instruction complained of correctly stated the law of the case. Its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
I. Sections 1 and 6 of chapter 78, General Statutes of 1889, relating to plats of cities and towns, have been in force substantially in the same form ever since 1855, and the main contention of the plaintiffs is that by the filing of the plat the lot in controversy was conveyed to the county in trust for the use of a church, “ and for no other use or purpose,” and that on the cessation of its use for church purposes the title reverted to the original proprietors, their heirs and grantees. It may be doubted whether, under a statutory dedication like this, the property would revert upon the abandonment of the use as upon the failure of a condition subsequent in a deed; but, assuming that a possibility of revertor exists in sucli case, we are of opinion that the plaintiff's are es-topped by their deed of September 8, 1868, to the board of county commissioners from setting up a title in themselves. True, the deed does not in so many words purport “to convey to the grantee an indefeasible estate in fee simple absolute,” as expressed in section 5 of- the act relating to conveyances (¶"1114, Gen. Stat. 1889) ; but it manifests the purpose of the Wyandotte City Company through its trustee to grant, bargain, sell, alien, enfeoff, release and confirm the lot unto said commissioners and to their successors and assigns forever, together with the remainders, rents, issues and profits thereof, and all the right, title and interest of John McAlpine, trustee, in and to the same. The trustee then makes a special covenant against incumbrances created by himself, and the deed concludes with a'covenant of general warranty of the company against the lawful claim or claims of all persons whomsoever.
Where the evident intent of the grantor is to convey the entire estate, it is a familiar principle that a covenant of general warranty estops him anc^ his heirs and assigns from asserting an after-acquired title. (Rawle, Gov. Title, 4th ed., 404.) Conceding that the covenant of warranty is coextensive only with the grant, and is to be construed with reference to its limitations, and when the deed does not purport to convey the land itself, but only the grantor’s right, title and interest therein, the grantee is not estopped from setting up an after-acquired title, yet the plaintiffs’ claim is not established, for the Wyandotte City Company grants the lot described without any qualification, whatever may be said of the grant and the covenant of the trustee in his own behalf. In Smith v. Williams, 44 Mich. 240, 242, Mr. Justice Cooley, delivering the opinion of the court, said :
“Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given.”
The plaintiffs question the right of John McAlpine to execute the deed to the county commissioners, but we think that by the articles of copartnership of June 26, 3857, he was authorized to convey the lands whenever ordered by the association ; and it fully appears that this deed was executed by him by direction of the association and for a valuable consideration paid to its treasurer. If, therefore, tlie lot would have reverted to the original proprietors on the abandonment of its use for church purposes, we hold that they and their grantees are estopped by said deed from setting up any claim of title against the grantees of the county commissioners.
II. Tlie plaintiffs alleged that they owned property within the limits of the original city of Wyandotte other than that in controversy, and that they were entitled to the privileges and benefits of all streets> alleys, public grounds and church lots in said city as marked and designated on the recorded plat, and to have the property in controversy used for church purposes only, and ought to have an injunction prohibiting its use for any other purpose. On the trial they offered to show that three of their number owned property within the original city limits .other than that in controversy. It was not claimed that any of the plaintiffs owned property contiguous to or fronting on the church lot, nor that any one of them was a member of the Presbyterian congregation, or an attendant upon the services of that church. A long line of decisions, commencing with Craft v. Jackson Co., 5 Kan. 518, has established the principle in this state that a private person cannot maintain an action to redress a grievance common in its nature, unless the act complained of produces some peculiar damage to his individual interests or affects his rights in a different manner from those of other members of the community, and this branch of the case falls within that principle. If the plaintiffs owned property contiguous to or fronting on the church lot, and such property would be injured or depreciated in value by the secularization of the church property, they might be in a position to ask relief against a change in its use, as in Comm’rs of Franklin Co. v. Lathrop, 9 Kan. 453; or if they were members of the congregation holding its services in the building erected on said church lot, and would suffer injury by a change of the use of the lot from pious to secular purposes, perhaps they might have a standing in court under Feizel v. Trustees of German M. E. Society, 9 Kan. 592, 596. This case, however, does not come within either principle. Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625, and Billard v. Erhart, 35 id. 611, follow the line of reasoning adopted in Craft v. Jackson Co., supra, and under their authority the plaintiffs have no standing in court to enjoin and restrain the change of the use of the property from pious to secular purposes.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The Kansas City, Wyandotte & Northwestern Railroad Company commenced an action against A. D. Walker and H. Tucker for the specific performance of a contract to convey land for a right-of-way, and for the payment of certain sums of money. The answer contained a general denial, and also set up counterclaims and set-offs for the unlawful taking of land owned by the defendants. The cause was regularly assigned for hearing on November 13> 1889. Owing to a mistake of plaintiff’s attorney as to the time of the trial, the plaintiff failed to appear. The cause was reached in its regular order for trial on November 13, and the defendants, in the absence of plaintiff and its attorneys, asked leave to withdraw and dismiss without prejudice to a future action the counterclaims and set-offs in their answer. The court granted the motion without prejudice, and thereupon the defendants announced to the court that they would waive a jury, and desired a trial of the cause upon its merits. The defendants then submitted the pleadings, and without evidence of any kind, excepting two certain deeds of conveyance for the premises in controversy, executed to one of the defendants, which were not read, but the substance thereof stated to the court by the defendants’ counsel, the court found the issues for the defendants, and entered judgment accordingly, with costs. On November 16, 1889, the plaintiff filed its motion for a new trial, alleging “irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial,” and the other statutory grounds. On November 21, 1889, during the term of the court, the plaintiff also filed a motion to modify and correct the judgment so as to make the same appear as a dismissal without prejudice, at plaintiff’s costs. The first motion was overruled; and the second motion was also overruled, excepting that the court ordered that the judgment rendered against the plaintiff, and for the defendants, be corrected to show the actual facts.
Section 397 of the civil code reads: “An action may be dismissed without prejudice to a future action by the court where the plaintiff fails to appear on the trial.” Statutes are construed in reference to the principles of the common law, if possible. Under the common law, the plaintiff took a nonsuit by absenting itself from court when its case was called for trial. (16 Am. & Eng. Encyc. of Law, 721-723; 2 Tidd’s Practice [4th Am. ed.], 761; Case v. Hannahs, 2 Kas. 490; Moore v. Toennisson, 28 id. 608, 610; Herring v. Poritz, 6 Ill. App. 208, 211, 212; Nordmanser v. Hitchcock, 40 Mo. 179.) In 2 Thompson on Trials, § 2229, it is said:
“ The failure of the plaintiff to appear when his case is called for trial is equivalent to the expression of an election on his part to become nonsuit. In such a case no judgment can be taken against him, but his action should be dismissed, or judgment of nonsuit entered.”
There was in fact in this case no trial, either of the law or of the facts. The plaintiff, upon whom rested the burden of the issues, was not present to offer' any evidence, and the defendants were not called upon to offer any evidence to sustain the general denial. The general rule is, that a permission to a court is a command, if it relates to the rights of suitors. (Bish. St. Cr. [2d ed.], § 112.) “ May be dismissed,” in § 397 of the code, should be construed to read “ shall be dismissed.” As the plaintiff did not appear on the trial, the cause, when called, should have been dismissed at the costs of the plaintiff without prejudice to a future action, as the defendants withdrew their counterclaims and set-offs. There was such error in the proceedings, on account of the judgment being rendered in the absence of the plaintiff, that the district court should have sustained the motion for the new trial, or should have so corrected the judgment as to show a dismissal without prejudice.
The judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J.:
The facts in this case are as follows: The Farmers’ and Drovers’ Bank presented a claim to C. H. Alexander, as assignee of thé Babcock Hardware Company, for allowance on two promissory notes, amounting to $8,000. The bank admitted having received, through the collection of collateral notes, $3,800. The hardware company, as assignor, filed its answer to the claim of the plaintiff below, alleging that the bank had received a large amount of property belonging to the hardware company, which was fully described in the answer, amounting in all to $14,495, and asking that it be set off against the claim of the plaintiff, and for an allowance of the balance against the bank. The matter was heard before the assignee, who found from the evidence that the Farmers’ and Drovers’ Bank was indebted to said Babcock Hardware Company in the sum of $345.73, for which sum the assignee rendered judgment against the bank. From that judgment the bank appealed to the district court of Kingman county. The case was regularly set for trial in the Kingman county district court on the 22d day of December, 1888.
The case, however, was called up by the plaintiff on the 6th day of December, 1888, 16 days before the time it was set for trial as shown by-the case, although the journal entry reads the 8th of December. The journal entry shows that the plaintiff was present by its attorneys, Lydecker & Cooper, and the defendant by its attorney, L. M. Conkling, and that judgment was rendered, by consent, in favor of the plaintiff, against the hardware company, for $4,180.86. Afterward, on the 25th day of February, 1889, during the same term of court at which said judgment was rendered, and while the court was still in session, the defendant filed a motion to set aside said judgment, on the ground that said judgment was improperly and irregularly rendered, having been set for the 22d of December, 1888, and judgment rendered on the 6th, and that the judgment was rendered without the knowledge or consent of the defendant, and without a trial of the issues therein. This motion is supported by a number of affidavits, which seem to show that the only authority for entering such judgment came from C. S. Babcock, who was a director of the hardware company. The affidavits state that he had no authority to bind the company, or to act. for it in the suit pending. The assignee testifies by affidavit that the judgment was rendered without his knowledge or consent, and that Babcock had no authority to adjust, or settle, or to consent to a judgment being rendered. Conkling, the attorney, admits having been present at the time the judgment was rendered, but says that on the morning of the 6th day of December, while he was on his way to the court room, he was met by Babcock, and that Babcock informed him the case was adjusted between the plaintiff and defendant, but did not tell him how much of a judgment was to be rendered; that Babcock told him that it was all understood by all concerned; that in the court room the plaintiff’s attorney called the case up, and announced that the case had been settled, and Babcock being present, assented to such statement, and judgment was entered, after the cashier of the plaintiff stated to the court the amount agreed upon; and that Babcock requested Conkling not to oppose the matter, as it was understood by all the parties interested.
The motion was filed and placed on the motion docket of the district court on the 25th day of February, 1889. On the 4th of March, being still at the December term of court, the motion was called up for hearing by the defendant’s counsel. The court declined to hear it, and the motion was continued to the next term by general order. On the 2d day of April, 1889, the spring term of court commenced, and the motion was again called up by the defendant’s counsel, and was put over until Saturday, the regular motion day. On Saturday it was again called up, and the plaintiff’s attorneys objected to the hearing of the motion, on the ground that no notice had been served on them. This objection was sustained, and notice was required to be given for at least three days before the hearing. On the 6th day of April the defendant served a written notice of motion on plaintiff’s attorneys, notifying them that the motion would be heard on the 9th day of April, 1889, or as soon as might be thereafter. Afterward, on the 25th of April, the motion came on for hearing, whereupon the plaintiff objected to the hearing of the motion, on the ground that notice of the hearing of said motion had not been given and served within the first three days of the succeeding term of said court after the rendition of said judgment, and the defendant had lost the right to make said motion; and, after the argument of said objection by the respective counsel, the court ordered that said objection of the plaintiff be sustained, and the defendant excepted.
Afterward, on the 25th day of April, 1889, the defendant filed a motion for a new hearing and a new trial, which motion the court overruled, and the defendant excepted.
The defense set up in the hardware company’s answer, if true, is an ample defense against the plaintiff’s claim. Section 568 of the code provides that—
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which said judgment or order was made: . . . Third, for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”
Section 569 provides:
“The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment, because of its rendition before the action regularly stood for trial, can be made only in the first three days of the succeeding term.”
Section 575 provides:
“Proceedings for the causes mentioned in subdivisions 3 and 6 of section 568 shall be within three years.”
In the case of Leavenworth v. Hicks, McCahon, 160, this court decided that the provisions of § 547 of the code, that a motion to vacate a judgment because of its rendition before the action regularly stood for trial can be made only on the first three days of the next succeeding term, merely prescribe the time within which a party may come into court to vacate a judgment in an action which had not been properly entered on the trial docket. The party may make his motion at the same term at which the judgment is rendered; and when said motion is made, and the party appears, at the same term, for the purpose of the motion, it is not error for the court to hear and determine it.
Counsel for the defendant in error, in their brief, challenge the truthfulness of the record brought to this court, and assert that “it is padded with misstatements.” We, however, feel constrained to consider the facts presented by the court rather than the counsel's statements of them. Counsel for the plaintiff in error contend that the only question to be considered by this court is, as to whether the court erred in refusing to hear their motion to set aside the judgment. Counsel for the defendant in error, however, contend “that the question now is, did the court commit material error in sustaining the objection of the defendant to the hearing of said motion at the time and as the same was presented?” and they also say, “ We think the all-important question before this court is as to the merits of their motion,” and contend that this court should inspect the entire record and determine the merits of the application of the plaintiff in error to set aside.the judgment.
We think that the defendant’s motion was filed in time, and that it was not necessary in this case for the defendant to have served notice of the motion at any time earlier than it was served. Counsel for the defendant in error say in their brief that by agreement of parties the motion was continued from the term at which the judgment was rendered to the April term. If that statement be correct, no notice was necessary. The only purpose of a notice is to bring the party into court, and where a voluntary appearance to a proceeding is made, no notice is required. We think counsel for the plaintiff in error is correct in their contention as to the question presented to this court, and that this court can only decide as to the right of the plaintiff in error to a hearing on his motion to set aside the judgment rendered against the hardware company. This court cannot pass on the merits of that motion until it has been decided by the district court. While it may be that, if it were apparent on the record that this motion was groundless, the court might feel called upon to decline to require a hearing by the court below on the motion, yet we are not able to say from this record that the motion was groundless. On the other hand, while we do not attempt to decide the question, it appears to us that sufficient facts were presented to the trial court to merit judicial examination and decision. The motion was filed in time, was properly before the court for consideration, and should have been considered and decided by it.
The order of the district court ^fusing to hear the motion to set aside the judgment will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiff in error, Dunbar, as guardian of the person and estate of one ¥m. H. Grigsby, a person of unsound mind, commenced this action in the district court of Barber county, to set aside a conveyance of land by Grigsby to Severance and Gamble, on account of the insanity of the grantor. The petition averred that the defendants in error induced Grigsby, when he was of unsound mind and wholly incapacitated from entering into any contract, to convey to them a valuable tract of land, consisting of 150 acres, of the value of $2,000; that the defendants in error paid Grigsby, at the time of the conveyance, a small sum of money, the exact amount being unknown to the plaintiff, and assumed an incumbrance of $400.' This consideration is alleged to be grossly inadequate, and that the exact amount paid at the- time of the execution of the conveyance is not known to the plaintiff. He prays, therefore, that it be ascertained by the court, and he offers to pay said amount into court for the use of the defendants. At the trial, as soon as the amount of the cash payment was ascertained, the plaintiff paid the same into court. The case was tried by a jury, and a general verdict rendered for the plaintiff, and the following special interrogatories were answered:
“ 1. Prior to December 21, 1887, were W. L. Gamble and F. F. Severance partners, engaged in buying and selling real estate in Barber county, Kansas? They were not.
“2. When and where did W. L. Gamble first meet Wm. H. Grigsby? At his office, December 21, 1887.
“3. When and where did F. F. Severance first meet William H. Grigsby? In Hazelton, prior to December 21,1887.
“4. At the time that William H. Grigsby first met W. L. Gamble, were W. L. Gamble and F. F. Severance partners in the purchase and sale of real estate? They were not.
“5. When and where did F. F. Severance and W. L. Gamble receive the deed to the land in controversy, and from whom? In W. L. Gamble’s office, December 22,1887, from W. H. Gr'gsby, through Seymore Peck.
“6. What amount did F. F. Severance pay toward the purchase of the said land? $100.
“7. What amount did W. L. Gamble pay toward the purchase of the said land? $100.
“ 8. What amount was W. L. Gamble to receive as commission for selling the said land? 5 per cent, commission.
“ 9. What amount did he receive? $35.
“10. Did F. F. Severance have the benefit of any of the commission received by W. L. Gamble from William H. Grigsby? No.
“ 11. Has the plaintiff in this action established or proved that F. F. Severance and W. L. Gamble had knowledge of any unsoundness of mind, or insanity, of W. H. Grigsby at the time of the delivery of the deed by Grigsby to them? No.
“12. If you answer the last question in the affirmative, state the facts from which you find that Gamble and Severance, at the time of receiving the deed, had knowledge that William H. Grigsby was insane, or of unsound mind.
“13. Do you know from the evidence, that at the time of receiving the deed from William H. Grigsby, that the said Gamble and Severance, or either of them, imposed upon the said William H. Grigsby, and by false representations, fraud, or undue influence, secured the same from him? No.
“ 14. At the time that William H. Grigsby executed the deed to the defendants, Severance and Gamble, was he able, without promptings from Gamble or Severance, or any other person, to recollect the property he was deeding, and knew the consideration that he was receiving therefrom, and at the time did he understand the business that he was transacting with the parties? No.
“15. Prior to the 21st day of December, 1887, had William H. Grigsby been attending to the ordinary duties and affairs connected with his business? Yes.
“16. At the time that William H. Grigsby delivered the deed to the defendants in this action, left to act upon his own free will, did he have sufficient intelligence to understand the nature of the transaction ? No.
“17. Did the plaintiff in this action, or anyone by him authorized, tender, before the commencement of the action, to these defendants a sum of money, and request the defendants to relinquish, by deed or otherwise, their interest in the land in controversy? No.
“18. Did the plaintiff in this action, or anyone by him authorized, after the commencement of this action, tender to the defendants any money, and request that the defendants relinquish their right or interest in this land? Yes.
“19. If you answer the last question in tbe affirmative, state whether the money was actually produced, the amount that was produced, and the time that it was produced, and state further whether or not, at the time of the production of the money, the plaintiff requested the defendants to relinquish, by deed or otherwise, their interest in this land? It was; $165; 21st day of February, 1889.
“20. On the 4th day of January, 1888, was William H. Grigsby resident in Cowley county, Kansas, or in Barber county, Kansas? Barber county, Kansas.
“21. At the time that William H. Grigsby executed and delivered the deed to the land in controversy to the defendants, did either Gamble or Severance have knowledge that he was of unsound mind, or insane? No.
“22. Did William H. Grigsby, during the year 1887, have lucid intervals? No.
“23. At times, during the year 1887, was William H. Grigsby of unsound mind? Yes.
“24. If you answer the last question in the affirmative, state what proportion of the time during that year William H. Grigsby was of unsound mind, and what proportion of the time he was sane? 1st, 12 months; 2d, none.
“25. Was William H. Grigsby of unsound mind at the time he made' and delivered the deed to the defendants, Severance and Gamble? Yes.
“26. At the time William H. Grigsby executed and delivered the deed to the land in controversy to the defendants, Severance and Gamble, was he capable of attending to his ordinary affairs, and did he know what he was doing and the result of his act? No.”
The following special interrogatories by plaintiff in error were submitted and answered, as follows:
“1. Did W. L. Gamble and Frank Severance have reasonable grounds to believe that William H. Grigsby was of unsound mind or incapable of transacting business at the time they purchased this land? No.
“2. Did the plaintiff, O. H. Dunbar, offer to repay the defendants the money they paid to William H. Grigsby? Yes [in court],
“ 3. Did the defendants ever at any time offer to reeonvey, on the payment to them of the money they had paid to William H. Grigsby? No.
“4. Did either of the defendants ever inform the plaintiff the exact amount received by Wm. H. Grigsby ? Not until February 20, 1889.”
On the general and special verdicts, the court rendered a decree setting aside the conveyance, conditioned that the plaintiff pay to the defendants $165, with interest at 7 per cent, per annum, and all costs taxed in the case, amounting to $142.20. The guardian brings the case here for review, and complains of the decree in these two respects: that the costs were erroneously taxed to the plaintiff; and that the court had no right to make their payment a condition precedent to the cancellation of the conveyance, the power of the trial court being exhausted when a judgment for costs was rendered against the plaintiff. Whether the costs were properly taxed depends upon the necessity of a demand for a reconveyance, and a tender of the amount paid for the conveyance, before suit was brought.
It is said in the case of Jeffers v. Forbes, 28 Kas. 181:
' “ The rule is, that where parties seek to set aside a conveyance on the ground that it is fraudulent, they must return, or offer to return, all they have received under it. A party who has received certain consideration, no matter how small or inadequate, for any contract or conveyance, must return that consideration, or offer to return it, before he is entitled to have the contract or conveyance set aside. He cannot, while retaining the benefits of a transaction, repudiate it as null and void.”
Many cases are cited in the decision in support of this rule, and many more are collected in the note at the end of the report of the case. Therefore there must be a return, or an offer to return, when the suit is brought. In other words, there must be a tender before suit is commenced, or the petition must show a legal and valid excuse for the failure to tender the amount received under the conveyance that is claimed to be fraudulent; the rule being that a return must be made, and the exception being that an offer to return is sometimes sufficient. When and under what circumstances is an offer to return sufficient? In the case of O’Dell v. Burnham, 21 N. W. Rep. (Wis.) 635, it is said:
“Where the plaintiff offers in the complaint [petition] to return the consideration received, the objection that he did not, before bringing the action, tender such money, cannot be sustained. The court can protect the rights of all parties, and the failure to make such tender can affect only the question of costs.”
When a judicial inquiry is necessary for the ascertainment of the sum to be repaid, an offer to refund such sum as may be decreed is sufficient. (Street Rly. Co. v. Baum, 4 Pac. Rep. [Cal.] 916.) So that the sole inquiry is, Does the record develop facts sufficient to excuse tender of the amount received by Grigsby from these defendants in error at the time the conveyance was delivered ? The deed is not a part of the record. The petition recites that a copy of it is attached as an exhibit, but for some reason it is not copied into the case-made. Hence we do'not know what consideration is expressed in the conveyance. The petition avers that the amount paid is not known to the pleader, but there is a general denial by way of answer, and the record does not contain the evidence. An amended answer of the defendants, filed two days before the trial, avers that they paid $200 and assumed a mortgage for $550 in consideration of the conveyance; but their first answer makes no mention of the amount of their cash payment. Neither answer complains of the fact that no tender was made. As we have said, the evidence is not here, and under these circumstances there is not such an affirmative showing that the trial court erred as to justify either a reversal or a modification of the decree in respect to the costs. It is such a case as comes under the general rule, and if the plaintiff in error falls within the exception above noted, the record ought to clearly show the facts, in order to justify us in disturbing the decree rendered below.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
W. C. Phipps and Theo. Gardner, with four others, were complained against by information in the district court of Labette county upon a charge of hav ing violated chapter 257, Laws of 1889, being “An act to declare unlawful trusts and combinations in restraint of trade and products, and to provide penalties therefor.” It seems from the record that only Phipps, Gardner, Neely and McClure were arrested. The other two defendants were not served with process. At the trial, the defendants Phipps and Gardner were found guilty, while the defendants James L. McClure and George A. Neely were found not guilty. Each of the appellants was fined $100 and costs. The specific charge was, that the accused were agents of various insurance companies organized under the laws of the states of New York, Colorado, Minnesota, and Connecticut; that they were doing business in this state, and that said insurance companies had combined to control the price and rate of insurance in the city of Oswego, Labette county, Kansas; that by agreement they had established certain rates larger than those exT isting before said combination; and that the accused, as agents and adjusters of said companies, were engaged in compelling local agents to observe such combination rates so established by said companies. The defendants Phipps and Gardner appeal to this court.
The counsel for the appellants contends (to state his proposition in general terms) that chapter 257, Laws of 1889, so far as it affects foreign insurance companies or their agents, is in conflict with the powers of congress to regulate commerce among the several states, and for that reason void; or, that the federal anti-trust law of July, 1890, (26 U. S. Stat. 209,) is exclusive of the state law, and that all prosecutions for such offenses as are charged in this information must be commenced in the federal courts, and hence these appellants must be discharged. The counsel has filed an elaborate brief, and made a long oral argument, discussing the anti-trust law of this state and of the United States, the commerce clause of the federal constitution, and the power of congress to legislate on that subject, as well as other branches of inquiry that may be involved in the proper discussion of this appeal.
The major premise of the argument in favor of the discharge of the appellants is, that this court has decided in a recent case that insurance is “trade,” within the meaning of the provisions of the anti-trust law of this state, under which these appellants were prosecuted and convicted. The exact question in the case of In re Pinkney, 47 Kas. 89, was, whether the word “trade,” in the title to the anti-trust law, (being chapter 257, Laws of 1889,) so far as it relates to the business of insurance contained in the first section of the act, was broad enough to fairly indicate that such a provision with respect to insurance was a part of the act; and the court held the act valid, so far as it related to the business of insurance, that being covered by the title of the act. This is what the court did say:
“The question presented is, Does the word 'trade/ used in the title, fairly indicate and include the provisions of the act with reference to insurance? It is argued that the usual meaning of the word should govérn, and in that sense it has reference to the business of selling or exchanging some tangible substance or commodity for money, or the business of dealing by way of sale or exchange in commodities; and it is said that the use of the word in connection with that of ‘ products, ’ in the title, qualifies the meaning of' trade/ and makes it all the more apparent that the construction contended for is the correct one. This is the commercial sense of the word, and possibly may be the most common signification which is given to it; but it is not the only one, nor the most comprehensive meaning in which the word is properly used. In the broader sense, it is any occupation or business carried on for subsistence or profit. . . . The broader signification given to the word by most of the lexicographers would fairly embrace and cover the provisions of the act with reference to the business of insurance. The title prefixed to an act may be broad and general, or it may be narrow and restricted, but in either event it must be a fair index of the provisions of the act. . . . That the broader meaning of the word 'trade’ was the one intended by the legislature, is manifest from the incorporation of the insurance provision in the body of the act. . . . How can it be said that the business of insurance is foreign to the title of the act, when the subject expressed in the title — taken in its broadest sense, and the one intended by the legislature — would embrace such business?”
So it may be fairly said, as it is in the printed brief of counsel for appellants, that a legislative and judicial definition of insurance is that it is “trade” within the meaning of the anti-trust law of this state.
The minor premise of counsel is that trade, as defined by this court in the case of In re Pinkney, supra, means interstate commerce. This is an assumption, rather than a fair and logical deduction from the language used in the opinion. Trade between citizens of this state is not interstate commerce. Trade between a citizen of this state and a citizen of another state temporarily in this state is not interstate commerce. In fact, at the time the opinion in the case of In re Pinkney was written there were no facts in the case that would suggest to the mind of the writer any question as to interstate commerce, because nowhere in the complaint, proceedings or record of that case is it hinted that the unlawful combination intended and designed to control the cost of insurance was made or attempted by other persons than residents of the state of Kansas. So that it can be positively asserted that the word “ trade,” as used in that decision, meant then and means now trade between citizens of this state — domestic trade, if you please—and not trade or commerce between citizens of different states, or interstate commerce.
It is a conclusive presumption of the law that this court knew that the legislature of this state had no power to regulate interstate commerce^ and the presumption is equally strong and conclusive, that by the use of the word “trade” the intercourse between citizens of different states, that constitutes interstate commerce, was not in contemplation. It has been judicially determined, time and time again, by the highest judicial authority in the land, that issuing a policy of insurance is not a transaction of commerce. The supreme court of the United States, in the case of Paul v. Virginia, 8 Wall. 168, in an elaborate opinion by Mr. Justice Field, say:
“ The policies are simple, contracts of indemnity against loss by fire, entered into between the corporations and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word. They are not subjects of trade and barter, offered in the market as something having an existence and value independent of the parties to them. They are not commodities to be shipped or forwarded from one state to another, and then put up for sale. They are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions, though the parties may be domiciled in different states. The policies do not take effect, are not executed contracts, until delivered by the agent in Virginia. They are, then, local transactions, and are governed by the local law. They do not constitute a part of the commerce between the states any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce. In Nathan v. Louisiana, 8 How. 73, this court held that a law of that state imposing a tax on money and exchange brokers, who dealt entirely in the purchase and sale of foreign bills of exchange, was not in conflict with the constitutional power of congress to regulate commerce. ‘The individual thus using his money and credit said the court, ‘ is not engaged in commerce, but in supplying an instrument of commerce. He is less connected with it than the shipbuilder, without whose labor foreign commerce could not be carried on.’ And the opinion shows that, although instruments of commerce, they are the subjects of state regulation, and, inferentially, that they may be subjects of direct state taxation. ‘In determining/ said the court, ‘on the nature and effect of a contract, we look to the lex loci where it was made, or where it was to be performed; and bills of exchange, foreign or domestic, constitute, it would seem, no exception to this rule. Some of the states have adopted the law merchant, others have not. The time within which a demand must be made on a bill, a protest entered, and notice given, and the damages to be recovered, vary with the usages and legal enactments of the different states. These laws, in various forms and in numerous cases, have been sanctioned by this court/ And again: ‘ For the purposes of revenue the federal government has taxed bills of exchange, foreign and domestic, and promissory notes, whether issued by individuals or banks. Now, the federal government can no more regulate the commerce of a state than a state can regulate the commerce of the federal government ; and domestic bills or promissory notes are as necessary to the commerce of a state as foreign bills to the commerce of the union. And if a tax on an exchange broker who deals in foreign bills be a regulation of foreign commerce, or commerce between the states, much more would a tax upon state paper, by congress, be a tax on the commerce of a state.’ If foreign bills of exchange may thus be the subject of state regulation, much more so may contracts of insurance against loss by fire.”
The doctrine of this case was distinctly affirmed by the supreme court in the case of Insurance Co. v. Massachusetts, 10 Wall. 566, in which Mr. Justice Miller says:
“ The case of Paul v. Virginia decided that the business of insurance, as ordinarily conducted, was not commerce, and that a corporation, having an agency by which it conducted business in another state, was not engaged in commerce between the states.”
The case of Paul v. Virginia was distinctly affirmed in the cases of Doyle v. Continental Ins. Co., 94 U. S. 535, and Fire Association v. New York, 119 id. 110, and has been cited approvingly in many other federal and numerous state decisions. It must now be regarded as the law of the land, in spite of the facetious criticisms of counsel for appellants.
In Paul v. Virginia, a statute of that state required that every insurance company not incorporated by Virginia should, as a condition of carrying on business in Virginia, deposit securities with the state treasurer and obtain a license; and another statute made it a penal offense for a person to act in Virginia as agent for an insurance company not incorporated by Virginia without a license. Paul, having acted as such agent without a license, was convicted and fined under the statute. So that case arose out of an attempt on the part of the state of Virginia to enforce its penal laws for the regulation of the business of insurance within its borders. And in this respect it is very similar to the case we are now discussing.
In the case of City of Leavenworth v. Booth, 15 Kas. 628, which was the prosecution of a local agent of a foreign insurance company for a violation of a city ordinance that required foreign insurance companies to pay certain license taxes for the privilege of doing business in said city, this court, by Mr. Justice Valentine, said:
“It must be remembered that the insurance company involved in this controversy is a foreign insurance company, having no rights in this state except such as the state may see fit to confer upon it. It has no power to do business in Kansas by virtue of its organization in Wisconsin. It has no power to do business in Kansas by virtue of the laws of Wisconsin, or by virtue of the constitution or laws of the United States, or by virtue of all combined. (Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 id. 410; Liverpool Ins. Co. v. Massachusetts, 10 id. 556.) It can do business in Kansas only under the laws of Kansas, and by permission from the state of Kansas. This state might absolutely exclude it, or might require that it do business only under a license, and might require that it not only get a license from the state, but also that it get a license from every city, county or village in which it should attempt to do business. The state may permit such insurance company to come into the state under such just restraints and regulations as the state may choose. Hence the state is not bound to permit said insurance company to come to this state, (as individual citizens of other states have a right to do,) and then, for the purpose of raising revenue, resort only to the ordinary modes of taxation. On the contrary, the state, without resorting to taxation at all, may require that such insurance company shall pay for the privilege of coming into the state, and of doing business therein, and may require that it shall not only pay a sum to the state for the privilege of doing business therein, but that it shall also pay a sum to every municipal corporation in the state in which it shall attempt to do business. And all this the state may do without violating any provision of its own constitution.”
This case asserts in the strongest possible language the right of this state to regulate the business of insurance within its borders, not only with reference to those insurance companies that may be organized under our laws, but especially with regard to insurance companies organized under' the laws of sister states, doing or desiring to do business in this state.
At this writing, it is probable that every state in the union has passed laws upon this subject, until it may be said that the right of state regulation of the business of insurance is universally recognized and upheld. So it can be confidently said that this court, when it held, in In re Pinkney, that insurance was “ trade,” did not contemplate that the term used could be tortured into interstate commerce; and it can be said with equal confidence that the settled law of this country is that the issuing of a policy of insurance is not a transaction of commerce. As we have seen, neither the major nor minor premise of the argument of counsel for the appellants is sound, and the inevitable conclusion — that congress alone has power to regulate interstate commerce and to provide penalties against insurance trusts and combinations—does not follow. The court did not mean “trade,” as synonomous with interstate commerce. The business of insurance is not interstate commerce. The state has power to regulate and control, and to provide penalties for the transgression of its regulating and controlling statutes, of the business of a foreign insurance company within its boundaries. If the theory of the counsel for the appellants ever ripens into authoritative judicial decision, the power of the state to regulate and control the business of insurance within its limits is gone. The insurance department, and every act upon the statute books for the protection of the policy holders, and every line looking to the punishment of the violators of its public policy in this respect, goes with it, except, possibly, as to such companies as may be organized and operated under the laws of the state.
We recommend that the judgment of conviction be affirmed.
By the Court: It is so ordered.
Valentine and Johnston, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an application by J. W. Wilds for a writ of mandamus to compel the state board of canvassers to recanvass the abstract or returns from Republic county, and upon that return to declare that he has been elected representative, instead of J. M. Foster, to whom a certificate of election has been granted. In his application he states, in substance, that he was a candidate at the last election for representative of the 61st district; that J. M. Foster and L. M. Morris were also candidates for the same place; that at that election he received 2,064 votes, Foster received 1,682 votes, and Morris received 99 votes, and that the county canvassing board substantially found and declared that result; that the county clerk then transmitted an abstract of the votes to the secretary of state, which, upon its face, shows that Wilds received the greatest number of votes for representative in that district, but that the state board of canvassers, in violation of its duty, had found and declared that Foster was elected, and that a certificate had been issued to him. The abstract was referred to in the information, and was presented to the court at the hearing, and upon these two papers the right of the plaintiff to an alternative writ, or to any aid through a proceeding in mandamus, is presented to this court. Having this abstract before us, we have all that was before the state canvassing board, and everything upon which Wilds bases his right to relief, and hence we may now dispose of the case upon its merits.
It is conceded that the duties of the canvassing board are mainly ministerial, and that they are confined to an examination of the returns made to it. The board is required to give a reasonable construction to the return, and exercise intelligence and judgment in determining what it shows. All parts of it should be taken and considered together in determining the real result of the election. So considered, then, what is a fair and just construction of its terms ? It reads as follows:
“Certified abstract of votes cast for members of the senate and house of representatives, in the county of Republic, state of Kansas, at the general election held on the 8th day of November, A. D. 1892.
“ State of Kansas, County of Republic, ss.
“ I, R. H. Galloway, county clerk of the county of Republic, state of Kansas, do hereby certify that the following is a true and correct abstract of votes cast in said county, at the general election held on the 8th day of Novemer, A. D. 1892, for members of the senate and house of representatives, to wit:
“FOR SENATOR, -DISTRICT.
Name. ' P. O. address.
B. B. Hogin.............Belleville.............Beceived 2,145 votes.
George D. Bowling.......Belleville.............Beceived 2,054 votes.
Geo. M. Simpson.........Concordia............Beceived 103 votes.
“FOR REPRESENTATIVE, 61st DISTRICT.
P. O. address. Name.
...Courtland.....Beceived 1,682 votes in 61st district. J. M. Foster
“ .....Beceived 472 votes in 73d district. it
2,154
J. W. Wilds.......Munden, Kas..-. Beceived 2,064 votes in 61st district.
“ ....... “ “...Beceived 3 votes in 73d district.
2,067
L. M. Morris......Unknown......Beceived 99 votes.
“Part of the tickets were printed giving the number of the representative district as the 73d instead of the 61st; hence the vote for the two districts.
“ In witness whereof, I have hereunto subscribed my name and affixed the seal of the county of Republic, at Belleville, this 14th day of November, A. D. 1892.
[seal.] R. H. Galloway, County Cleric.
“State of Kansas, County of Republic, ss.
“I, R. H. Galloway, county clerk of the county of Republic, state of Kansas, do hereby certify that the above is a true and correct copy of the original abstract now on file in my office. In testimony whereof, I . have hereunto subscribed my hand and affixed the seal of the county of Republic, at Belleville, this 14th day of November, A. D. 1892.
[seal.] R. H. Galloway, County Clerk”
“Filed for record November 18, 1892.
Wm. Higgins, Secretary of State”
It will appear from the abstract that there were 2,154 votes east for Foster for representative in the county of Republic; but it is contended by Wilds, that because the abstract shows that 472 of them were cast for him as representative of the 73 district, they should not be counted. As will be seen, the abstract contains a statement explaining how the error occurred. It is said that the explanatory statement has no place in the abstract, and should not be considered; but we think it may properly be regarded as a part of- the abstract, and should be considered in determining the result of the election. It appears to be a part of the abstract made by the county canvassing board, which is now on file in the records of Republic county. Like the balance of the statement in the abstract, it precedes the certificate of the clerk, who certifies that all of it constitutes a true and correct copy of the original abstract on file in his office. A fair interpretation of the abstract clearly shows that all of the votes mentioned therein were cast in Republic county, and by electors of that county. The county constitutes a single representative district, and the district includes all of the county. Every elector in that county was entitled to vote for a representative, and, as but one representative could be voted for in the county, can there be any’question that all of the votes mentioned were cast for the representative of Republic county, and of the 61st representative district? The officer to be chosen is designated in the constitution as “representative,” and not as the representative of a numbered district; and the addition of words which wrongly describe the office should not destroy the ballot nor defeat the manifest will of the electors. _ The ballot indicates the will of the voter; and when, in the light of all the surrounding circumstances, the purpose of the voter can be ascertained with reasonable cer tainty, effect should be given to it. So it has been held that •a slight error in writing the name of a candidate upon a ticket, •or an immaterial misdescription of an office thereon, will not .annul the vote. The words, “in 73d district,” under the authorities, should be treated as surpiusage¡ an(j the undoubted will of the voter carried out. (Clark v. Comm’rs of Montgomery Co., 33 Kas. 202; The State v. Howe, 44 N. W. Rep. 874; Inglis v. Shepherd, 67 Cal. 469; McKinnon v. The People, 110 Ill. 305; Newton v. Newell, 6 N. W. Rep. 346; Behrensmeyer v. Kreitz, 26 N. E. Rep. [Ill. Sup.] 704; 5 Cong. Elect. Cases, 190.) We are to take notice of the general laws of the state upon the question, and by doing so it is easy to account for the erroneous description of the district. The present apportionment law constitutes Republic county the 61st representative district, and the preceding apportionment law made a portion of the same county the 73d-representative district; and, as the abstract shows, some of the voters carelessly used the old number in designating the office upon their ballots. But as it would have been sufficient and legal to have designated the office “representative,” without any number, the addition of the words indicating a wrong number, and one in which the electors of Republic county could not have voted, the error will not affect the validity of the votes. When all the votes are counted, Foster has a plurality of 87 votes, and is entitled to the office.
We reach the conclusion without any hesitation that the state board of canvassers acted correctly in awarding the certificate to Foster; and, further, that the application of Wilds should be denied. That will be the judgment of the court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a ruling of the trial court sustaining defendants’ objections to the introduction of evidence under the petition.' Plaintiff alleged, substantially, that in June, 1912, defendant Zima solicited him to procure insurance, aggregating $1150, upon plaintiff’s barn, which he was then erecting, and its contents; that plaintiff authorized and directed Zima to procure the insurance in some responsible company; that Zima informed plaintiff he would do so and would keep the policy at the bank of which he was cashier and charge the cost to plaintiff’s account there; that later on the same day defendant Abel was sent out by Zima to look at the barn and contents and write the application, which Abel did; that afterwards plaintiff spoke to Zima about the policy and that Zima assured plaintiff that everything was all right. Plaintiff further alleged that on August 23, 1912, the barn and contents of the value of $1050 were destroyed by fire; that he informed Zima of the loss, who promised to notify the insurance company and see that it was adjusted; that later, the loss not being adjusted, plaintiff inquired of Zima the cause of the delay and was several times assured everything was all right and would be hurried up; that at all the times Zima assured plaintiff the loss would be paid by the company he well knew no policy had been obtained or properly applied for and such statements were made to mislead plaintiff; that not until about a month after the fire did defendant Zima inform plaintiff no policy had been applied for but that he had neglected to do so; that plaintiff had at all times relied upon Zima’s promises; that Zima and Abel were each to share in the commissions and fees for obtaining the policy; and that because of defendants’ wrongs, misrepresentations and gross neglect plaintiff was deprived of insurance, not having procured it elsewhere, to his damage in the sum of $1100. The separate answer of Zima contained denials and an allegation that he had asked Abel to take out an application of insurance and to procure the signing of same by plaintiff, which he had done; that he had sent the application to an insurance company and had done all that he could to obtain insurance, but that there was a delay in the matter the nature of which is not stated. He further alleged that the plaintiff did not have any money in the bank to be applied on the insurance. Abel answered with a general denial and an allegation that at the instance of Zima he had taken an application of insurance to plaintiff, and that ■plaintiff stated that if Abel was to have any commission on the transaction that he would not sign the application; that Abel then assured plaintiff that he had no connection with it, and that plaintiff then signed the application, which was the only connection defendant Abel had with the transaction. At the trial a jury were empaneled and the plaintiff proceeded to introduce his testimony, when defendants objected to the introduction of any evidence on the ground that the petition did not set forth a cause of action against the defendants or either of them. This motion was sustained and judgment for costs against the plaintiff was rendered. From these rulings plaintiff appeals.
On an objection to the introduction of evidence that a cause of action is not stated in the petition its averments are to be liberally construed. (Weber v. A. T. & S. F. Rld. Co., 54 Kan. 389, 38 Pac. 569; Howard v. Carter, 71 Kan. 85, 80 Pac. 61; Simmonds v. Richards, 74 Kan. 311, 86 Pac. 452.) This action was not brought to recover upon a contract of insurance against the insurer, but is an action against the defendants for the failure to procure insurance on his property as they had undertaken to do, and for wrongfully representing that insurance had been procured when in fact it had not, as a result of which a considerable loss had been sustained. A broker or agent who undertakes to procure insurance for another is bound to exercise reasonable diligence to obtain insurance in accordance with his agreement and to notify his principal if he is unable to do so. According to the averments of the petition the defendants failed to perform this duty, and, as has been alleged, Zima deliberately deceived the plaintiff by giving him assurance that the property had been insured when he knew that no insurance had been procured. If defendants had informed plaintiff of the omission or failure he could have obtained insurance elsewhere and have provided against loss. It does hot appear that a particular insurer was named, but it was agreed that insurance should be obtained in a responsible company. If defendants had failed to exercise reasonable care in the selection of an insurer and had placed the insurance with a company that was insolvent or one not authorized to insure, and subsequently the property had been destroyed and the plaintiff had been unable to realize on the policy, the defendants would have been liable. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214; Harrod v. Latham, 77 Kan. 466, 94 Pac. 11.) Brokers are equally liable where they undertake to procure insurance and utterly neglect to obtain any insurance or fail to carry out material provisions of their agreement and a loss results. In such a case they are liable for as much as would have been covered by the insurance which they agreed to procure. (Milliken v. Woodward, 64 N. J. Law, 444, 45 Atl. 796; Lindsay v. Pettigrew, 5 S. Dak. 500, 59 N. W. 726; Sawyer v. Mayhew, 51 Maine, 398; Diamond v. Duncan, [Tex. Civ. App. 1911] 138 S. W. 429; Mallery v. Frye, 21 App. Cas. D. C. 105; Criswell v. Riley, 5 Ind. App. 496, 503, 30 N. E. 1101, 32 N. E. 814; Backus v. Ames, 79 Minn. 145, 81 N. W. 766; Brick Co. v. Hogsett & Woodward, 73 Mo. App. 432; Note, 38 L. R. A., n. s., 631.)
There is a contention that a completed and enforceable agreement was not made by the defendants, in support of which Mooney v. Merriam, 77 Kan. 305, 94 Pac. 263, is cited. That case was determined upon the evidence submitted and not upon an objection to the introduction of any evidence. The arrangement between the parties there was held to be so indefinite that it did not constitute a binding contract. In that case no agreement was reached as to the selection of an insurer, as to the property to be insured, nor as to the amount of insurance to be taken. The owner was claiming damages because of the destruction of the buildings, implements, grain and live stock, and yet no agreement had been made either as to the extent of the property insured nor the amounts to be placed upon each kind of the owner’s property. Here the agreement' was that defendant Zima was to select a responsible insurer. The property to be insured was specifically agreed upon — to the extent of $1150 in all. It was stipulated, too, that $550 should be placed on the barn, $100 on the hay therein, $200 on horses and $300 on harnesses, saddles, tools and miscellaneous contents, including some lumber. It is not alleged how long the insurance was to run nor the amount of the premium to be paid, but there are well-known standards as to both of these which must be deemed to have been within the contemplation of the parties when their agreement was made. While the averments of the petition are not as full as they might or should have been, they appear to be sufficient as against the objections made by the defendants. The terms and conditions were sufficiently specific and so well understood by the parties that an application was filled out by the defendants, but what ultimately became of it does not appear from the petition. The agreement is sufficiently definite and comprehensive to be upheld, especially as against the challenge that no evidence was admissible under the petition. It can not be held that defendants’ agreement with plaintiff to procure insurance was void,, because of the double agency of the defendants as they did not undertake to place the insurance in any particular company. The defendants had agreed to select a company that was responsible, and such a stipulation has been held to be valid. (Latham v. Harrod, 71 Kan. 565, 81 Pac. 214.) It was alleged that plaintiff had an account in Zima’s bank, and it was provided by the agreement that Zima was to take enough of plaintiff’s funds to pay the premium when the insurance was procured; and so the agreement was definite and complete as to the selection of an insurer, as to the property to be included in the policy, as to the amount of insurance of each kind of property to be insured, and provision was made for the. payment of the premium. It further appears that a written application was prepared by the defendants and they not only neglected to procure the insurance but wrongfully lulled the plaintiff to rest by representing to him that insurance' had been obtained some time before the property was destroyed. As the case is presented here the agreement is an enforceable one and the defendants are responsible for the loss sustained through tneir neglect and wrong.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover an installment of money due the city under the terms of an ordinance granting the defendant the use of the streets of' the city in supplying its inhabitants with gas and electricity. The answer pleaded certain facts which it was claimed relieved the defendant from its obligation. The reply denied each and every material allegation of the answer except those which were specifically admitted. In a second paragraph of the reply it was stated that all the matters and things alleged in the answer existed at the time of a trial of a former suit for another installment due under the same ordinance, that such matters and things were set up or should have been set up as a defense to the first action, and consequently that they were there fully adjudicated. After a trial the court made findings of fact, one of which was that sufficient evidence had hot been introduced to sustain the defense referred to. Judgment was rendered for the plaintiff and the defendant appeals.
The defendant contends that the' matters constituting the defense were admitted by the reply. Very clearly the reply is not open to such an interpretation. It expressly denied everything not specifically admitted and specifically admitted nothing. Its import was that the averments of the answer were not true at all, but that if the defendant should succeed in establishing them all the facts occurred before the former trial and were then adjudicated. Unless supplemented by the claimed admission of the plaintiff the defendant’s evidence was • not sufficient to defeat recovery and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was, brought by The State Bank of Eudora to recover from'John Brecheisen and The Mexico Irrigated Land Company upon certain promissory notes which Brecheisen had executed in favor of the company and which the company had transferred to the bank.
Of the execution of the notes there is no controversy, but it is contended by Brecheisen that he was induced to execute the-notes through the fraud of the company, and that the bank or its officers had knowledge of the fraud when the notes were purchased by the bank. The question of fraud as between Brecheisen and the bank, so far as his obligation on the notes was concerned, was determined by the trial court against the claims of Brecheisen. It was expressly found, and not without testimony, that the notes were duly assigned before due to the bank for a valuable consideration, and that it was a bona ficle owner and holder of the notes in good faith and in due course.
The only question to be determined on this appeal is whether there is testimony which fairly tends to support the findings and judgment of the trial court. At the solicitation of the company Brecheisen went to Mexico to examine lands which it had for sale, with the result that he purchased land, paying part of the purchase price, and giving his notes for the unpaid balance. Soon after the purchase he became dissatisfied with his bargain, and was greatly concerned about the extent of the obligation which he had assumed. The notes first executed were offered for sale to the bank, but the officers declined to purchase, stating as a reason that they did not desire to purchase obligations of customers unless the purchase would be satisfactory to them, and that Brecheisen was dissatisfied and was seeking to secure a return of his notes. He had told the officers of the bank that he was not satisfied and had procured Smith, the cashier, to go to Kansas City and see what could be done towards obtaining a surrender of the notes. On this request Smith went to Kansas City and interviewed the officers of the company, but reported that he was unable to obtain a surrender of the notes and a cancellation of the contract. The company proposed to meet Brecheisen at Eudora on the next day, and Smith notified him that the representatives of the company were coming to confer with him about a settlement of the matter. They came on the next day, and met with Brecheisen and his son-in-law in the back room of the bank, and after canvassing the matter for some time a new arrangement was made by which the company was to dispose of Brecheisen’s land within a time that was fixed. The testimony of Brecheisen is that Smith was active in this conference in arranging the settlement, and, on the other side, Smith testifies that he had no part in the negotiations until an agreement had been reached between the parties, when he was called in to prepare the papers, he being the only one there that could use a typewriter. When the parties told him of the conditions of the settlement, Smith, according to his testimony, suggested that the company should give a bond or some security that it would carry out the agreement with Brecheisen,.and the representatives of the company then agreed to do so by a guaranty that they would give him a section of land if they failed to carry out the agreement respecting the sale of his land. This was accepted by Brecheisen, and their agreements, as well as the new notes, were prepared by Smith and executed by the parties. Later on the same day the bank purchased the notes. In respect to the knowledge of the bank Brecheisen testified that the officers of the bank cautioned him about investing in Mexico, and expressed distrust of the company after the purchase was made and before the new notes were executed, and that he told them that he believed he had been defrauded in the transaction. The officers, on the other hand, say that Brecheisen never suggested that he had been defrauded in the purchase of land, but only that he had undertaken too heavy a debt, that his wife was opposed to the purchase, and that he desired to make some arrangement that would relieve him from the obligations which he feared he could not meet. Brecheisen insisted that Smith was acting as his agent, not only in going to Kansas City to obtain a surrender of the old notes, but also in arranging the settlement under which the new notes were executed. Smith, on the other hand, says that the only part he took in the transaction beyond the writing of the papers was that when the parties told him of the terms of the settlement he suggested that the company provide a guaranty or forfeit in case the company failed to comply with its agreement. Counsel for Brecheisen suggest that there may have been a secret agreement between Smith and the company by which the bank, for a consideration, was to assist in obtaining the execution of the new notes, and it is insisted that from all the circumstances it is reasonable to infer that there was some understanding between the bank and the company to bring about the new agreement and the execution of the new notes. The district court, which heard all the testimony, however, has drawn a different inference, and to have done so must have accepted as true the testimony offered in behalf of the bank and disbelieved that which was contradictory of it. If the testimony in behalf of the bank is true Smith was not acting as agent of Brecheisen in the settlement, and although Brecheisen was dissatisfied with the contract in the first instance he was entirely satisfied with the new arrangement — so well satisfied that he acted as the agent of the company for months afterwards, and further, that he desired that the new notes should be left at or sold to the bank so that he might the more easily arrange for payment as the notes came due. There is testimony that the officers did not advise the settlement that was made, nor take any part in it until the parties directly interested had reached an agreement. There is testimony, too, that there was no complaint by Brecheisen to the bank at any time prior to the settlement of misrepresentation or deception in the sale of the land, nor even to the officers of the company before the settlement. The bank refused to purchase the old notes because Brecheisen was dissatisfied with the purchase and fearful that he would be unable to pay the old notes when they became due, and only purchased the new notes because he had expressed satisfaction with the new arrangement and had requested that the notes be purchased by the bank. The notes were negotiable in form, and according to the evidence were negotiable in fact. Under the testimony accepted by the court the bank purchased them before maturity in good faith, for value and without notice of any infirmity. Counsel discuss the rules of law respecting agency and negotiable paper about which there can be little dispute, but the case turns upon questions of fact, and these having been determined in favor of the bank leave no real contention about the rules of law as to the defendant’s liability on the notes.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The decision herein turns upon the interpretation of a provision in a policy of fire insurance that: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void . . .' if the interest of the insured be other than unconditional and sole ownership.”
It appears that on July 15, 1909, plaintiff purchased, with, his individual funds, a business building in Baldwin and took the deed therefor in the name of his wife, Mary J. Hankins, which he has always kept in his possession. Plaintiff paid the taxes upon the property, collected the rents, made the repairs out of his own funds, and held exclusive possession of the property. After the purchase of the property and before the issuance of the policy Mary J. Hankins died, leaving surviving her husband, the plaintiff, and six children. In April, 1913, plaintiff applied to one W. A. McClure, who was the agent in Baldwin of several fire insurance companies, for a policy of fire insurance upon the property. One of McClure’s companies refused the risk. Then McClure procured a policy for $1000 in defendant company through an arrangement he had made with defendant’s agent, Henry C. Long, of Ottawa, and plaintiff paid the premium to McClure and from him received the policy. On July 7, 1913, the property burned, proofs of loss were properly made, and defendant refusing to pay the loss, plaintiff brought this action. On the trial of the case the court found that McClure knew the condition of plaintiff’s title, and, further, that plaintiff did not know of McClure’s arrangement with Long to obtain policies through him and to divide the commissions. It was also found that the evidence did not show that plaintiff knew of the condition of the policy or that he had made any representation as to ownership. The court found against defendant company for $1045 and $150 attorney’s fee and overruled its motion for a new trial. Defendant appeals.
It is defendant’s contention that plaintiff did not have the “unconditional and sole ownership” of the property, and therefore that the policy is void. It will be observed that the stipulation in the policy does not make the lack of legal title in the insured a ground of invalidity nor does it provide that he must have any deed or muniment of title. It goes no farther than to require that he shall have unconditional and sole ownership. Plaintiff not only had an insurable interest in the property, but according to the facts in the case he held the complete equitable title, the sole ownership and the undisputed possession. According to the testimony his wife was named as grantee in the deed, with no intention to make a gift to her or to invest her with the ownership of the property. It was done, as plaintiff testified, because his wife was much the younger, and supposing that she would probably outlive him, he thought that he could in that way provide that the property would pass to her upon his death without the trouble and expense of probate proceedings. The deed was never delivered to her nor did she ever assume to take possession of the property. He purchased it for himself and paid for it out of his own individual funds. He paid all taxes upon the property and made all the improvements and repairs that were placed upon it. She had no part in the transaction and could not have asserted a claim of ownership as against him. His interest or ownership was absolute, although there was a naked legal title outstand ing, and any loss resulting from'the destruction of the property must necessarily be his own loss. It has been said:
“One who is in undisputed possession and has the sole and entire beneficial ownership is properly described as sole and unconditional owner although the title is held in another name, if there is no fraud or concealment.” (13 A. & E. Encycl. of L. 234.)
In speaking of a case where the insured was without a deed but was the real owner it was said :
“If the insured possesses the equitable title to the premises, the fact that the naked legal title is outstanding, which he has a right to.compel to be transferred, will not- amount to a breach of a condition that he is the owner, that his interest is absolute, or that his title is not other than sole and unconditional ownership.” (19 Cyc. 692.)
(See, also, Bonham v. Iowa Central Ins. Co., 25 Iowa, 328; McCoy v. Iowa State Ins. Co., 107 Iowa, 80, 77 N. W. 529; Hough v. City Fire Insurance Company, 29 Conn. 10, 76 Am. Dec. 581; Lebanon Mutual Ins. Co. v. Erb, 112 Pa. St. 149, 4 Atl. 8; 2 Briefs on the Law of Insurance, Cooley, p. 1369; 2 Fire Insurance, Clement, p. 152, rule 7.)
It having been determined that the plaintiff was the sole and unconditional owner within the meaning of the contract of insurance it is unnecessary to consider the questions of agency or of waiver that have been discussed by counsel.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This case comes to this court upon the ruling of the district court on the demurrer filed by the plaintiff against the second ground of answer and cross-petition of the defendant.
On the second day of February, 1914, the plaintiff filed his petition in replevin in the district court asking for the immediate possession of a certain stock of goods and merchandise then owned by the defendant, and upon which the plaintiff held a chattel mortgage securing the payment of a note for $4942.11.
The plaintiff’s petition alleged his right to recover upon the chattel mortgage which was a lien upon the stock of goods. The defendant filed a general denial, and further, by way of answer and cross-petition, alleged that the defendant had purchased this stock of goods and merchandise and store fixtures from the plaintiff on October 1, 1913; that in partial payment for the stock of goods and merchandise and fixtures, the defendant executed and delivered to the plaintiff his note for $4942.11, and executed and delivered to the plaintiff a chattel mortgage on the stock of goods; that the defendant was in duced to purchase the stock of goods and to give his note and chattel mortgage by reason of false and fraudulent representations made to him by the plaintiff, which representations were relied upon by the defendant; and prayed judgment against the plaintiff in the sum of $12,477.11. To this answer and cross-petition the plaintiff filed a demurrer stating—
“That the said second ground of answer and cross-petition is not a cause of action that can properly be pleaded as a set-off or a counterclaim to the cause of action set out in the plaintiff’s petition herein.
“That the said second ground of answer and cross-petition set out in the defendant’s answer herein does not state facts sufficient to constitute any defense to the plaintiff’s cause of action.
“That the facts set forth in the second ground of answer and cross-petition of the said defendant filed herein is not in any manner connected with the contract set forth in the plaintiff’s petition, but is another and separate and different cause of action, founded upon another and different contract and can not be properly pleaded to the plaintiff’s cause of action.”
The lower court overruled this demurrer, and upon the questions raised thereby the plaintiff brings the case to this court.
It is necessary to examine the statutes of this state governing counterclaim and set-off. Subdivision 2 of section 97 of the code of civil procedure reads:
“The answer shall contain: . . . Second, a statement of any new matter constituting a defense, counterclaim or set-off, or a right to relief concerning the subject of- the action, in ordinary and concise language, and without repetition.”
This section places no limitations on the kind of action in which a counterclaim or set-off may be pleaded. Section 98 of the code of civil procedure does place some restrictions on the right to set out a counterclaim. That section reads:
“The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action. The right to relief concerning the subject of the action mentioned in the same section must be a right to relief necessarily or properly involved in the action for a complete determination thereof, or settlement of the question involved therein.”
In the present case, the counterclaim set out by the defendant is one existing in favor of the defendant and against the plaintiff, on which a judgment might be had in favor of the defendant against the plaintiff in an action brought by the defendant for that purpose. This counterclaim arises out of a transaction set forth in the plaintiff’s petition as the foundation of his claim, and is connected with the subject of the action, as that action is stated by the plaintiff. The foundation of the plaintiff’s action is the note, to secure the payment of which the chattel mortgage was given. If for any reason the indebtedness evidenced by the note does not exist, the plaintiff is not entitled to the possession of the property in controversy under his chattel mortgage. Whatever defeats the note may be set up as a defense to defeat the plaintiff in this action. In order that the dispute concerning the transaction may be settled, it is necessary that the claims of both the plaintiff and the defendant'be adjudicated. Both parties ask that the right to the possession of the property be determined. It is proper that this be done. This can not be done without determining the matters presented in the answer. There are no practical, insurmountable difficulties in the way of determining, in this action, all the rights of these parties growing out of the transaction which has become the subject of this lawsuit. Our conclusion is that all these matters may be litigated in this action. In Gardner v. Risher, 35 Kan. 93, 10 Pac. 584, a replevin action, this court said:
“Unliquidated damages arising from contract may constitute a set-off against a note secured by a chattel mortgage; and if such unliquidated damages exceed the mortgage debt, the mortgagee is not entitled to the possession of the property described in the mortgage, as against the mortgagor, asserting such unliquidated damages and pleading the same in an action founded upon the note and mortgage.” (Syl. ¶ 1.)
In Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641, this court said:
“In an action of replevin by a mortgagee for the possession of mortgaged property, the defendant in possession thereof may, for the purpose of defeating the plaintiff’s right of recovery, prove, under the general denial, a sale of the property by her to the plaintiff subsequent to the execution and delivery of the mortgage, and his refusal to take the goods and pay her the contract price. Further held, That in such an action, where the plaintiff is permitted to retain the goods, the defendant may plead such sale, and if maintained on the trial, may recover judgment against the plaintiff in the alternative for a return of the property, or the value of her interest therein.” (Syl.)
Upon a reexamination of the opinion in Deford v. Hutchi son, supra, the court eliminated therefrom all reference to any counterclaim or set-oif. (p. 332.)
The principle announced in Gardner v. Risher, supra, and Deford v. Hutchison, supra, is supported by Greenawalt v. Wilson, 52 Kan. 109, 34 Pac. 403, and Thrashing-machine Co. v. Currey, 75 Kan. 365, 89 Pac. 688.
In Clement v. Field, 147 U. S. 467, 37 L. Ed. 244, 247, 13 Sup. Ct. Rep. 358, a case commenced in the district court of Rice county, removed to the United States circuit court, and from there appealed to the supreme court of the United States, that court said:
“Another objection urged to the judgment of the court below is that the action in replevin was an action founded upon tort, and not upon contract, that a set-off can, under the Code of Kansas, only be pleaded in an action founded on contract, and that hence the defendants in the replevin suit in question could not legally plead a set-off of the damages caused by the breach of warranty.
“The Supreme Court of Kansas disposed of this contention in Gardner v. Risher, 35 Kansas, 93, which, like the present, was a case wherein the plaintiff sought, by a writ of replévin, to enforce the provisions of a chattel mortgage, and the defendant set off against the notes secured by the mortgage certain damages incurred by reason of breaches of a contract. The court held that, as the plaintiff’s claim was really founded on contract, the defendant could, notwithstanding that the form of the action was replevin, avail himself, by way of set off, of damages caused by the failure of the other party to the chattel mortgage to comply with his contract.” (p. 474.)
The headnote to this case as found in 37 L. Ed. 244, is as follows :
“In an action of replevin to recover a mill under and by virtue of a chattel mortgage thereon where defendant set up as a defense damages for a breach of a warranty of the mill and for delay in delivering it and was allowed such damages as a set-off in that action, he is precluded from bringing a further action for the recovery of such damages, and the judgment in the former action is a bar to the subsequent one.”
In 24 L. R. A., n. s., 748, is a note on “Right in replevin to recoup damages growing out of same transaction,” in which this language is found :
“Where a statute in general terms, and without limitation as to the nature of the action, authorizes a defendant to counterclaim for damages arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim or connected with the subject of the action, defendant in replevin may counterclaim for damages which, at common law, would have been a proper item for recoupment.” (p. 748.)
In 34 Cyc. 1417 it is Said
“Since the adoption of codes in most of the states, the doctrine of set-off and counter-claim has undergone much chang'e. At first counterclaims were held not to be available in any action for a tort, and therefore not in replevin, which sounds in tort. But,this rule has been so far modified as to allow the interpositon of a counter-claim in the full sense of the code, whether arising- on contract or based upon a tort, in an action of replevin, whenever such counter-claim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, or whenever it is connected with the subject of the action,”
The demurrer was properly overruled. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The Chicago, Rock Island & Pacific Railway Company brought this action in the district court of Sedgwick county to recover from the defendant, George Theis, jr., the sum of $337.50 and interest on an interstate shipment of twenty-seven carloads of cattle from Groom, Tex., to Meade, Kan.
The cattle were shipped on October 24, 1909. The rate paid was $35 per carload. The railroad company grounds its action on the contention that the lawful rate was $47.50 per carload, and this action to recover the undercharge was filed October 22,1912.
One of the defenses to this action was a set-off for damages on another shipment of twelve carloads of cattle from Texhoma, Tex., to Meade, Kan., on October 5, 1910, being $1 per head on four hundred and twenty-nine cattle on account of the plaintiff’s delay of eight hours in setting the cars at the unloading chutes after the cattle already had been without feed and water during a twenty hours’ journey from' Texhoma to Meade.
The district court and jury allowed both the plaintiff’s claim and the defendant’s set-off, which thus resulted in a judgment for defendant for the difference between these amounts.
Both parties appeal. The plaintiff assigns error in the allowance of defendant’s set-off. Defendant complains because the court overruled his demurrer to plaintiff’s evidence.
1. Was the claim for damages to another shipment of cattle in 1910, from Texhoma to Meade, a proper set-off to the claim for the undercharge on the shipment from Groom to Meade in 1909?
The Texhoma-Meade shipment was made on a characteristic interstate shipping contract in which it was agreed that before any suit for damages should be brought for loss or injuries to the cattle the shipper should give written notice to “some general officer, claim agent or the station agent” of the plaintiff, .not later than ninety days after the date of the loss or injuries, and a failure to do so should be a bar to a recovery. It also provided that if the claim for damages was occasioned by detention of the live stock or delay in transportation, the shipper should promptly notify the carrier through some general officer, claim agent or station agent, or the agent at destination, before the removal of such stock from the place of destination, and that a written notice should be served'within one day of the delivery of the live stock at its destination, so that the claim could be fully and fairly investigated. The contract also stipulated that a failure to comply with these provisions should bar a recovery. By another provision it was agreed that there should be no recovery on this shipping con-' tract unless an action was brought within six months.
This Texhoma-Meade shipment was made on October 5, 1910. No claim for damages was made under the provisions of this shipping contract. It was set up, so far as the record shows, for the first time in answer to plaintiff’s petition in 1912. By the terms of the shipping contract, this was a bar to a recovery. (Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438; Railway Co. v. Means, 71 Kan. 845, 80 Pac. 604.) The conditions precedent to a claim for damages embodied in the contract were reasonable, and a failure to comply with them is fatal to a recovery. (Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847; Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657.)
It is suggested that the trial court was constrained to let in this defense of set-off by section 102 of the civil code. That section reads:
“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can he deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.”
But that code section is not pertinent here. That a set-off may be made under the code, notwithstanding the statute of limitations, can not affect the reasonable provisions of a contract fixing conditions precedent to a recovery and a breach of which bars recovery for an interstate shipment governed by federal law and rules of interstate transportation pertaining thereto.
In Mo., Kans. & Tex. Ry. v. Harriman, supra, it was said:
“The liability sought to be enforced is the ‘liability’ of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn act of June 29, 1906. The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed is a federal question to he determined under the general common law, and, as such, is withdrawn from the field of state law or legislation. (Adams Express Co. v. Crowinger, 226 U. S. 491; Michigan Central Railroad v. Vreeland, 227 U. S. 59.) . . . Such stipulations have been sustained in insurance policies [and] . . . bills of lading. . . . The provision requiring suit to be brought within ninety days is not unreasonable.” (pp. 672, 673.)
It is contended that the damages to defendant’s cattle did not arise under the contract of shipment, but were occasioned by the delay in setting the cars for unloading after the transportation services were terminated. We think not. Railroad transportation not only includes the physical act of moving the property from one place to another, but all the necessary incidents attending the receipt and delivery of the property. It is on this theory that transportation companies are required to furnish terminal facilities, such as loading and unloading chutes, stockyards and water for cattle. (Covington Stockyards Co. v. Keith, 139 U. S. 128.)
The case of Railroad Co. v. Beets, 75 Kan. 295, 89 Pac. 683, was different. There the damages were occasioned by a defective stock yard, whereby the cattle escaped. It is familiar law that a railroad’s liability as a carrier only attaches a reasonable time before the physical act of transporting the property begins, and terminates in a reasonable time after the transportation has been completed. At all other times its responsibility for property upon its premises which is intended for transportation or which has been the subject of transportation is that of a warehouseman. But until cattle are unloaded the railroad’s relation to the property is clearly that of a carrier, and its responsibility in such case is governed by the shipping contract.
' 2. The appellee contends that the demurrer to plaintiff’s evidence should have been sustained. On this point it is said that the legal rate from Groom, Tex., to Meade, Kan., was $35 per car. Excerpts from the interstate tariff are set forth in the briefs, and the tariff itself is before us. From these it is easy to see how the error was made in the original rate quoted. On page 14 of the tariff (I. C. C. No. 3269, May 2, 1905), on which are listed over a hundred of plaintiff’s stations and cattle rates, is one item:
No points of origin are stated. Turning, however, to “Group 1” as instructed by this schedule, we find on the next page of the tariff a list .of the points in that group. It reads:
“Note 3. Minimum rates from Amarillo Group stations on F. W. & D. C. Ry., and Amarillo Division, C. R. I. & G. Ry., to Plains, Kansas, and east, $47.50 per 36-foot car.”
The record shows that Groom was located in the Amarillo division of group 1, and it therefore becomes too plain for cavil that the lawful rate from Groom to Meade, which is east of Plains, was $47.50 per carload.
Counsel for appellee criticizes the tariff arrangement, and reminds us that the interstate commerce act provides that the tariffs shall plainly state the rates, etc. The movement of this shipment was over the Chicago, Rock Island & Gulf Railway from Groom to Amarillo; thence by the Fort Worth & Denver City Railway to Dalhart, and thence by the plaintiff’s railroad to destination. Some twenty-five railroad companies participated in this tariff. It is in the interest of the public and makes for efficient railroad service that they should do so. The statutory provision requiring simplicity in railroad tariffs is satisfied when it is made as plain as a subject inherently complex will permit. Tariff schedules and their arrangement with reference to simplicity and precision follow the outlines prescribed by the Interstate Commerce Commission, and must meet the approval of that tribunal. Ordinarily the courts make no mistake in deferring to its expert judgment touching the best methods of complying with the statutory mandate as to plainness and lucidity in the arrangement of tariff schedules.
It follows that this cause must be reversed and remanded with instructions to set aside the judgment, to disallow defendant’s set-off, and to award judgment for plaintiff as prayed for in its petition.
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The opinion of the court was delivered by
Johnston, C. J.:
The question for determination in this appeal is, Does the evidence of plaintiff fairly tend to show a cause of action against defendant?
On or about July 6, 1909, Abner F. Vanhook was employed by The Hamilton Coal and Mercantile Company as a shotfirer in one of its mines in Crawford county. The mine was operated, it is alleged, by what is commonly known as the room-and-pillar system. Vanhook’s duty was to fire heavy charges of explosive which were embedded in the working face of the coal, and to escape from the explosion it was his custom to pass from one room to another through what is known as a breakthrough, or small passageway, connecting the rooms. Plaintiff alleged that a breakthrough connecting certain rooms of the mine was negligently and carelessly constructed in that it was of insufficient height and width to make it a reasonably safe place of refuge, escape and protection to the shotfirers, and necessitated that he crawl through it slowly. He further alleged that on this occasion before he got completely through the breakthrough a shot exploded and he was forced through the small opening, struck by missiles and blown against a pile of rock, severely and permanently injuring his right leg and causing him to suffer great pain. Plaintiff also alleged that he had paid out about $300 for doctors’ and surgeons’ services and medicines because of the injury and that he had lost about four months’ time, to his damage in the sum of $600, and he asked a recovery of $10,000 as damages. Defendant answered denying its negligence and alleged that plaintiff had-assumed the risk of the employment, that the injury was caused by a growth upon plaintiff’s leg which existed long prior to the time of the alleged accident, and that the action was barred by the statute of limitations. Plaintiff offered evidence to which the defendant demurred, and the court sustained the demurrer. The plaintiff appeals.
In effect the petition charges neglect of the defendant of its common-law duty to furnish the plaintiff a safe place to work. The. plaintiff did not allege or rely on a violation’ of any statutory duty. The evidence tends to show actionable negligence by the defendant in failing to provide plaintiff a reasonable means of escape from the room after igniting the fuses and before the explosions occurred. The firing of shots in mines is obviously dangerous work and care corresponding with the danger should be observed by both operators and miners. The plaintiff’s work was to fire the shots which had been previously embedded in the coal by others in several of the rooms where mining was being done, traveling against the current of air. Having fired shots in several rooms the plaintiff lighted the fuses in room three and then undertook to pass through an opening or breakthrough into room two. This opening appears to have been the only means of escape, as another breakthrough into the room had become obstructed. A'number of charges of explosives are placed in each room, and it is said that the explosions occur in about one minute after the fuses are lighted. The necessity for prompt action in escaping from the room to a place of safety is easily apparent. The opening through which plaintiff sought to escape was round and only about eighteen inches wide, and it was through a wall which was over five feet thick. According to the testimony the plaintiff could only wriggle through, as he said, “on all-fours,” a very slow and diificult method for a large man like the plaintiff. While he was working his passage through the opening an explosion occurred behind him which threw him with great force upon rocks in the adjoining room and caused injuries which are of a serious character. The explosion resulted from what is called a windy shot, and plaintiff was unable to give definitely the location of that shot. Defendant contends that it was not shown that the size of the breakthrough contributed to plaintiff’s injury as alleged in the petition, and that the force of the explosion might have been felt and the risk been as great if he had escaped promptly into room two. It is enough to say that the explosion came from behind the plaintiff, where he had been firing shots, and that he was thrown and forced through the small opening into room two. That fact indicates the direction of the force and that there was less danger of injury in room two than in the place from which he was thrown. There is nothing substantial in the claim of variance nor in the one that the injury resulted from the pile of rocks on which plaintiff was thrown by the explosion. Plaintiff was engaged in firing shots and causing explosions, and, of course, explosions were expected to occur, and he alleged and offered proof tending to show that if proper means of egress had been provided as it was defendant’s duty to provide he would have reached room two, a place of safety, before the explosion occurred and have avoided the injury that was inflicted. In no sense was the pile of stones in room two a proximate cause and certainly it was not the one relied upon. The plaintiff was likely to have been injured if he had been thrown against the wall or upon a pile of coal in the adjoining room the same as when thrown upon a pile of stones.
There is a further contention that plaintiff knew of the insufficiency of the opening and therefore assumed the risk of the dangerous situation. The testimony is to the effect that he called the attention of the boss to the fact that the opening was insufficient and unsafe as a means of escape, and that that officer had promised to enlarge the opening and make a safe passage. It therefore became a question of fact as to whether the risk was assumed, and certainly the court could not determine, as a matter of law, that plaintiff had assumed the risk, and that therefore a recovery was barred. Under the rule upon which evidence is measured where a demurrer thereto is filed it must be held that that offered by the plaintiff under his petition was sufficient to take the case to the jury.
The judgment will therefore be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the price of shares of corporate stock which the plaintiffs were fraudulently induced to buy. The plaintiffs recovered and the defendant appeals.
W. I. Ellsworth is the husband of Helen B. Ellsworth and W. E. Ellsworth is their son. The three were named as plaintiffs, and the contention is they should have sued separately. There was sufficient evidence that the. money paid for the shares of stock came from a common fund to sustain the special finding of the jury that the stock was paid for jointly.
On discovering that they had been defrauded, the plaintiffs made a search for the defendant for the purpose of returning the certificates of stock. The search was continued for several days but the defendant could not be found, so tender was made in the petition and at the trial. The doctrine of tender has been rationalized in recent times and is important only so far as it cuts some real figure in the relations of the parties. Tender takes the plaintiff out of the' attitude of wanting to eat his cake and have it too, and gives the defendant a chance to do the right thing and save the costs and expenses of a lawsuit. If the plaintiff be unable through the exercise of reasonable diligence to that end to make tender before bringing suit he may make tender in the petition. This clears his skirts, and if the defendant desires to avail himself of the benefit of the tender he may do so and the court will protect him from costs. The jury were properly instructed on the subject, and they found specially that the defendant could not be found.
The jury found that the stock was worthless. If so, tender was not necessary. The finding is assailed as contrary to the evidence. The secretary and treasurer of the corporation testified that its affairs were liquidated, its debts paid, and that “the balance was prorated among all the stockholders.” The amount of this balance was not divulged. The evidence showed, however, that after the plaintiffs had purchased some stock and before their last purchase was made the company was financially embarrassed and was calling upon its stockholders for money. The plaintiffs did not respond, and no money was distributed to them when the affairs of the company were liquidated. Therefore, the finding that the stock they purchased was of no value was fairly sustained by the evidence. If, however, the finding be wrong it is of no consequence as affecting the subject of tender, for reasons already, stated and for the further reason that it is perfectly clear that tender to the defendant before the suit was commenced would have been a useless formality. In such cases no tender is required.
After the defendant sold the plaintiffs a block of stock he attended a meeting of the stockholders of the company. At this meeting the call for money was made. A letter was prepared stating the situation of the company, to be mailed to stockholders, including the plaintiffs. The defendant captured the letter intended for the plaintiffs and said he would ■deliver it to them personally and explain the occasion for it. Instead of delivering the letter he sold the plaintiffs some more stock. This was, of course, active fraud. He did riot simply keep to himself his own information relating to the condition of the company and the value of its stock; he prevented the plaintiffs from obtaining information contained in a writing which it was his duty to deliver.
The plaintiffs recovered for the last purchase of stock only. Interest was properly allowed from the date the defendant received the plaintiffs’ money. The action was not one for unliquidated damages, but was one for a specific sum of money wrongfully obtained. The law implied a promise of immediate repayment and allows interest by way of damages for detention of the money for the time the defendant was using it.
The judgment of the district court is affirmed. | [
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Johnston, J.
Several grounds for injunction were presented by the plaintiff, but the main one is the alleged invalidity of chapter 82, Laws of 1895, under the provisions of which the bonds were voted. It was first suggested that the proposition submitted to the electors for authority to procure a loan and to build the bridge did not receive the requisite number of votes, but at the argument the Attorney General frankly conceded that a sufficient number of affirmative votes were cast to carry the proposition if the statute warranted the voting and issuance of bonds. The objection urged against the validity of the statute is that it withdraws a portion of the territory of Topeka from its corporate control, and that the act, being special, violates sections 1 and 5 of article 12 of the Constitution, which provide that the Legislature shall pass no special act conferring corporate powers, and that provisions for the organization of cities, towns and villages shall be made by general law. These constitutional provisions do not apply to quasi corporations, nor is there any reason why the Legislature may not, by special act, confer corporate powers upon counties or other like corporations. They do apply to municipal corporations -proper, and so it has been held in this State that a special act which attempts to enlarge or diminish the boundaries or corporate powers of a city is void. Gray v. Crockett, 30 Kan. 138. It follows, therefore, that if the act in question confers corporate powers upon the city of Topeka, or takes from it the corporate control of its streets, it cannot be sustained.
In general, it may be said that the city is vested with the control of its streets, is charged with the duty of keeping them in repair, and ordinarily is liable for injuries resulting from the omission of that duty. The city has power to build bridges within its limits, and where a bridge is a part of a street the duty and burden of maintaining the bridge as well as other parts of the street ordinarily rests upon the city. The fact that a county may have built a bridge within the limits of a city does not necessarily imply that the burden of maintaining it is upon the county, nor that the city will be excluded from its control. It is the policy of our law that there shall be unity of control of streets and thoroughfares ; therefore it must generally be held that a city has control over every part of its own streets and is responsible for their condition. Apart from the maintenance and control of the streets, it is doubtless competent for the Legislature to authorize a county to build a bridge at any point within the limits of the county. The fee of the streets is in the county for the benefit of the public; and, as a bridge is built for the whole public, no reason is seen why the county may not contribute the whole or any part of the expense of constructing a bridge even though it be within the limits of a city. Comm’rs of Wyandotte Co. v. City of Wyandotte, 29 Kan. 431; City of Eudora v. Miller, 30 id. 494; Comm’rs of Shawnee Co. v. City of Topeka, 39 id. 197. In the case last cited, the Court, after holding that usually the city, and not the county, has control over the streets and is liable for damages to persons injured thereon by reason of their being in an unsafe condition, remarked, that probably the county has the power to construct a bridge within the limits of a city; but the mere fact that it may have built the bridge was held to be no reason why the county should be compelled to keep it in repair. That the county may build a bridge upon a street of the city, wholly or partly at its own expense, is really not denied ; but it is contended that, when built, the act in question would give the future control and maintenance of the bridge to the county, and, in that way deprive the city of authority to regulate and control the same. That contention is based upon a proviso near the end of the act: “That said bridge shall remain under the charge and control of the Board of County Commissioners of Shawnee County and such Commissioners shall have power to appoint a-superintendent for the construction of such bridge and to fix his salary.” Although the question is not free from doubt, we are inclined to the opinion that the proviso relates only to “charge and control” during the time of construction, and that the future maintenance and control were not within the legislative purpose. Outside the language of this proviso, the entire act is devoted to provisions for the construction of a bridge and the raising of funds with which to construct it.
The title of the act is specific and limited, indicating that the act contains only provisions for the erection of a bridge and for raising means with which to pay for the’ same. Nothing in the title or body of the act indicates a purpose to withdraw from the city any control over its streets, or to relieve it from the maintenance of the bridge after its construction. As the act relates to construction alone, it is not an un natural inference that the 'Charge and control of the County Board mentioned in the proviso is only to be exercised during construction. This is the more apparent from the fact that, in the same proviso and as a part of the same sentence, the Board is. vested with authority to appoint a superintendent of construction and to fix his compensation. Ordinarily, the contractor would have charge and control of the bridge during construction, but, for some reason, the Legislature deemed it best that the charge and control of the structure during the building of the same should be in the Board of County Commissioners ; and, to enable them to carry out that purpose and exercise that control, authorized them to appoint and pay a superintendent of construction to represent them and to supervise the work.
Considerable reliance is placed by the plaintiff on the case of Comm’rs of Shawnee County v. The State, ex rel., 49 Kan. 486, where it was held that an act providing for the building of a bridge by the County in the city of Topeka was obnoxious to the same provisions of the Constitution. That case, however, is easily distinguished from the one under consideration. There, the County was given full control over the bridge and a portion of the street, with authority to maintain and keep the same in good repair. It also prohibited the City from authorizing the laying of any railway track, gas pipes or telephone wires over or along the bridge, as it might lawfully do under its general corporate powers. These provisions were clearly violative of the Constitution, and the present act was manifestly framed with a view of avoiding the defects pointed out in the former act. Considering that the acts of 1891 and 1895 each provided for the building of a bridge at the same place, and, further, that the last act was passed with a view of curing the faults of the first, it seems reasonably clear that the Legislature of 1895 did not intend to include a provision that defeated the former act. We think that the act in question admits of the interpretation that the charge and control spoken of only refer to the period of construction, while the other view would operate to destroy the act and defeat the accomplishment of the legislative purpose. It is a recognized rule, followed by all courts in determining the validity of legislative enactments, that they will not be declared void if they can be upheld upon any reasonable grounds. If its invalidity is a matter of reasonable doubt, the doubt must be resolved in favor of the act. In re Pinkney, Petitioner, 47 Kan. 89. Although not free from doubt, we prefer to adopt the view which sustains the act, rather than the one which would strike it down ; and we therefore conclude that the act is valid.
It is claimed by one of the counsel for the State that the injunction should be allowed because the Melan bridge proposed to be constructed is covered by letters patent, which would prevent fair competition in bidding for the work, which the act required to be let to the lowest bidder. In some of the earlier decisions this view was taken ; but the fact that patented methods and processes, many of which are desirable and necessary to the public welfare, enter so largely into all kinds of public work, has led to the adoption of a different view. It was hardly intended by the law that the public should be barred from using recent inventions or obtaining beneficial improvements because they were covered by an authorized patent or were the product of exclusive manufacture. Yarnold v. City of Lawrence, 15 Kan. 126; In the matter of the Petition of Dugro, 50 N. Y. 513; Baird v. Mayor, 96 id. 567; Hobart v. The City of Detroit, 17 Mich. 246; Motz et al. v. The City of Detroit et al., 18 id. 515; The City of Detroit v. Robinson, 38 id. 108; Barber Asphalt Pav. Co. v. Hunt, 100 Mo. 22; Silsby Manufacturing Co., Appellant, v. Allentown, 153 Pa. St. 319; City of Newark v. Bonnell, 31 Atl. Rep. 408; see, also, Kilvington and another v. The City of Superior, 83 Wis. 222; Perinc C. and P. Co. v. Quackenbush, 104 Cal. 684. It appeal’s, however, that there was, in fact, actual competition in bidding for the construction of the bridge. The cost of the royalty was determined upon in advance, and notice of the fact was given to every person bidding or proposing to bid upon the work. All the bidders were, therefore, placed upon an equal footing ; and full competition was invited and permitted. Six different bids were actually made for the construction of the bridge, and the contract appears to have been let to the lowest responsible bidder. We think there has been a substantial compliance with the law in this respect, and the contract made for the improvement appears to be valid.
The judgment of the District Court will be affirmed.
All the Justices concurring. | [
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Allen, J.
This action was brought to set aside a deed made by James IT. Stevens and wife to Lillias IT. Thompson, Charles B. Thompson and Lillian E. Thompson, and to subject the property therein described to the payment of a judgment in favor of the plaintiffs in error, against J. H. Stevens and O. L.Thompson, the husband of Lillias H. Thompson. There are 15 assignments of ei;ror. We have examined and overruled all of them. The brief seems to lay most stress on the proposition that the property conveyed to Mrs. Thompson was partnership property, and therefore, it is contended, subject to the payment of partnership debts before any part of it can be applied to the payment of a debt of an individual member of the firm. Mr. and Mrs. Thompson claim that the conveyance to her was in payment of a debt due her from her husband. We fail to find a copy of the judgment in favor of the plaintiffs. There are two recitals in the record concerning a judgment. One of them is a judgment in favor of A. P. and W. E. Kelley against Stevens & Thompson for $2,399.53. The other is of a judgment for the same amount in favor of the same persons against Stevens & Thompson and C. J. Jones. This judgment appears to have been rendered on four promissory notes signed by J. H. Stevens, C. L. Thompson and C. J. Jones, which were secured by a mortgage on certain lots, executed by C. J. Jones and wife. So far as the evidence goes it shows liability as individuals rather than as partners. The trial court made a general finding in favor of the defendants. Several assignments of error are predicated on the deposition of C. L. Thompson. We find, attached to the case-made after the signature of the judge, a stipulation with reference to a deposition, followed by what purports to be a deposition of C. L. Thompson in the caption and body of it, but which is unsigned. Another assignment of error is in excluding a plat of Stevens & Thompson’s addition to Garden City, which it is claimed was offered in evidence. We find folded in the purported deposition an unauthenticated copy of what appears to be a plat of such addition, wholly detached from the case-made. In the body of the case it is said that it contains all the evidence, yet counsel refer to the deposition of Thompson as a part of the evidence in the case. This is not the way to prepare a case-made. Everything which it is intended to embody in a case, should precede the signature of the judge. On such a record we cannot say that the trial court erred in finding generally for the defendants.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C. J.
I. This case involves certain of the duties of the Secretary of State under the Australian Ballot Law, being chapter 78, Laws of 1893. Section 6 relates to the form of the certificate and provides, that “in case of electors for president and vice-president of the United States, the names for the candidates for president and vice president may be added to the party or political appellation” ; and section 14, relating to the printing of the names of the candidates under the proper party appellation or group, enacts that “ the ballot shall contain no other names, except that, in case of electors for president and vice president of the United States, the names of the candidates for president and vice president may be added to the party or political organization.” Section 13 reads as follows : —
“ Not less than fifteen days before an election to fill any public office, the secretary of state shall certify to the county clerk of each county within which any of the electors may by law vote for the candidates for such office, the name and residence of each person nominated for such office, as specified in the certifi cates of nomination or nomination papers filed, with the secretary of state.”
It will be observed that section 13 does not expressly provide for the certification of the names of presidential candidates, nor even of the party appellation ; but as the certification would be unintelligible without the latter, we think it, and also any proper addition of the name of presidential and vice-presidential candidates, to be fairly %Jm included within the phrase ‘ ‘ as specified in the certificates of nomination or nomination papers.” In these respects a certificate of nomination is the guide .to the Secretary of State, and he should follow it in giving directions to the County Clerk as to the making up of the official ballot. We think it plain that he has no right to omit the party appellation, nor the names of the presidential and vice-presidential candidates added to the party appellation by authority of law and properly appearing in the certificate.
•The motion for a peremptory writ of mandamus notwithstanding the answer is in the nature of a demurrer, and, for the purposes of this hearing, admits every allegation of fact well pleaded in the answer. It does not admit conclusions of law, nor prophecies, nor general allegations of fraud unaccompanied by any statement of fact on which fraud is based, nor matters which the defendant has no right to plead nor the Court jurisdiction to entertain. The allegation in the answer that the electors named in the certificate will not vote for Thomas E. Watson for Vice President is clearly not one of fact, and the Court should not be guided by the pretense of any one to the powers of divination. In such cases courts must deal with facts, not with prophecies. Besides if these electors should be chosen they will be under no legal obligation to support Sewall, Watson, or any other person named by a political party, but they may vote for any eligible citizen of the United States. (Article XII of Amendments to the Constitution of the United States.) And neither the Secretary of State nor any court may interfere with them in the performance of their duties. The charge made by the Secretary of State that it is desired to use the name of Watson at the head of the People’s Party ticket to mislead the voters must be disregarded for several seasons : First, as to his separate official duties under this statute he is a mere ministerial officer and not a censor of political parties nor a guardian of the public morals; and it follows that he has no authority to make such a charge. Secondly, the only facts upon which any claim of fraud is based are that the certificate gave the party appellation as the People’s Party and named the national candidates as an addition thereto, and then stated the names and residences of the candidates nominated by the convention as presidential electors, and these were Democrats and the same men who were nominated for a like place by the Democratic Party ; but this must be held admissible under Simpson v. Osborn, 52 Kan. 328. Thirdly, this Court has no authority to investigate and pass judgment upon the motives which actuate any political party convention in its course ; for this is not jurisprudence but politics. Fourthly, although the record does not show the nature of the objections made to the certificate before the Secretary of State, the Auditor of State and the Attorney General, and overruled by that tribunal on October 17, 1896, yet it is presumable that all proper matters of objection were then heard and decided.
After the hearing and overruling of all objections by the tribunal provided for by section 10 of said act, it was the plain duty of the Secretary of State to certify the names of the presidential and vice-presidential candidates of the People’s Party as specified in the nomination certificate, unless the papers emanating from Watson and Steinberger relieved him from it.
II. What if any effect should be given to the communications and documents signed by Watson and Steinberger? Section 8 of said act provides that—
“Any person whose name has been presented as a candidate may cause his name to be withdrawn from nomination by his request in writing signed by him and acknowledged before an officer qualified to take acknowledgment of deeds and filed with the secretary of state not less than fifteen days . . . previous to the day of election, and no name so withdrawn shall be printed upon the ballots.”
The telegram and the affidavit of Steinberger should be disregarded; and it is doubtful if the affidavit of Watson filed October 19 was in due time or in proper form. 'The certificate of the ordinary (an officer in Georgia neai’ly answering to a probate judge in Kansas) is in form a jurat and and not an acknowledgment. But waiving these questions as to time and form we think that the document is entirely ineffectual. Watson was not nominated by the Abin ‘ ~ . «. , , ,, lene Convention ; and how shall a man withdraw from a nomination which has never been conferred? That convention had no right to nominate a candidate for Vice President, to be voted for at the next election. It did nominate 10 electors to be voted for at that election. Doubtless any one of them might have withdrawn by complying with said section 8. A Vice President is not elected at the General Election held in November. He should be elected on the second Monday in January, and only 10 citizens of Kansas will have a voice in the matter. In a legal sense the people of this State vote for no candidate for President or Vice President, that duty being delegated to 10 citizens who are authorized to use their own judgment as to the proper eligible persons to fill those high offices. Again, Mr. Watson does not attempt to decline the national nomination, nor even withdraw as a candidate in Kansas — if such a thing can be done ; but he says he declines to have his name used upon a certain official ballot. He does not “withdraw from nomination” within the meaning of said section 8. No national candidate for President or Vice President residing elsewhere has as much authority as the humblest voter in this State to dictate how his name shall be used on an official ballot here.
The order of the Court is that the Secretary of State shall forthwith duly certify to the county clerks of this State the names and residences of said nominees for electors of President and Vice President, and that he add to the party appellation of “ The People’s Party ” the name of William J. Bryan as said Party’s candidate for President and the name of Thomas E. Watson as said Party’s candidate for Vice President.
Allen, J., concurring. | [
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Allen, J.
It is strenuously insisted for the plaintiffs in error that the two chattel mortgages executed by Mottin Brothers to Van De Mark Brothers were-fraudulent; that there was also a fraudulent retention of property under claims of exemption from execution; and that these are sufficient to poison, contaminate and render void the whole assignment. In the suits in which the attachments were issued under which the Sheriff seized the goods, a motion was made to discharge the attachments on the ground that the charge made in the affidavit for attachment of a fraudulent disposition of their property by Mottin' Brothers was not true. The main ground relied on to sustain the attachments in that case was the $500 mortgage to secure Van Be Mark Brothers for their liability for the $500 attorney’s fee to Mr. Laing. As this fee was mainly for services not then rendered, this Court held in the case of Shellabarger v. Mottin, 47 Kan. 451, that the mortgage was an unlawful withdrawal of that which justly belonged to the bona fide creditors of the debtor, and operated to delay and defraud them ; and that it was sufficient proof of fraud to sustain the attachments. It is now insisted that this mortgage was executed at substantially the same time as the deed of assignment the two were really parts of the same transaction, and that the fraud in the chattel mortgage also attaches to the deed of .assignment and. renders it void. Many authorities are cited to the effect that attempted preferences by chattel mortgages executed at the same time,, or the retention of a part of the estate of the assignor for his own benefit, operate to defeat the assignment and render it void as to creditors. The authorities cited strongly support this position in jurisdictions where the assignee is regarded as the personal.representative of the assignor and is denied the right to assert any.claims to the assigned property which he, himself, would be estopped from asserting ; but this Court has taken a different view of our statute governing as signments for the benefit of creditors, since the passage of the act of 1876 providing for the election of an assignee by the creditors. Even if we construe the findings of fact as counsel for plaintiffs in error ask us, and hold that the mortgages and the deed of assignment constitute but one transaction, it is settled by prior decisions that, though the mortgages are void as attempted preferences, the deed of assignment is valid and conveys the whole property in trust for all the creditors equally. Watkins National Bank v. Sands, 47 Kan. 591; Brigham v. Jones, 48 id. 162. In Chapin v. Jenkins, 50 Kan. 385, it was held that, “where an assignment is made by such mortgagor, the assignee is the representative of all the creditors, and for their benefit may contest the validity of such a mortgage in an action brought thereon by the mortgagee to recover the possession of the mortgaged property.” The same doctrine is reiterated in the cases of Jones v. Kellogg, 51 Kan. 263; Walton v. Eby, 53 id. 257, and Goodman v. Kendall, 56 id. 439. Does the fact that in this case the $500 mortgage was void, not merely as an attempted preference, but as an attempt to pay for services, not yet rendered, out of the assigned estate to all of which existing creditors were justly entitled, present a case differing in principle from those cited? It may be said that this was an attempt by the assignors to secure a benefit to themselves out of the assigned estate ; but the deed of assignment is general in its terms and sufficient to convey the entire estate to the assignee. The mortgage is void.- Being void, it is inoperative ; and we must hold that it does not affect the validity: of the deed of assignment. -The circumstance that these chattel mortgages were given t-o the firm of Van De Mark Brothers, of which the assignee was a member, is commented on as showing a participation by the assignee in an attempted fraud by the assignor. Doubtless a case might be presented of a collusive attempt by the parties to the deed of assignment to actually withdraw the assigned estate from the reach of the process of the court, and deprive the creditors of the benefit of it, which would warrant the court in holding the whole transaction void. But in this case there is nothing showing removal or concealment of any property by the parties to the assignment; and the attempted payment of attorney’s fees out of the assigned estate for services thereafter to be performed, though fraudulent in law as to creditors, does not impress us as such a fraud as ought to be held to.vitiate the assignment. The substance of the whole transaction is that the deed of assignment passed the whole of the assignor’s estate to Van De Mark, as a temporary trustee, for the benefit of all the creditors of Mottin Brothers. The creditors themselves thereafter, under the statute, chose whom they pleased to act as permanent assignee. In this case they chose the same person that was named in the deed of assignment. The title of the assignee to the property is only that of a trustee. It is the creditors who are the real parties beneficially interested .' . in the assignment. Unless it is apparent that they are to be defrauded the assignment should be upheld. The policy of our law is to discourage attacks on assignments made for the benefit of creditors which fairly transfer all the assignor’s property to be disposed of in the manner the statute points out. Even if the creditors make a mistake in the selection of an assignee, or if the assignee prove unfaithful, the beneficiaries of the estate are not without remedy. Where good cause is shown tlie Court may remove the assignee from his trust and appoint another in his stead. Caldwell v. Matthewson, ante, p. 258. In jurisdictions where the assignee is not permitted to allege the fraud of his assignor for the purpose of recovering property fraudulently conveyed or otherwise disposed of by the assignor, the necessity for holding an assignment tainted with fraud void in order to protect the rights of creditors, is apparent; but where the assignee, as in this State, is permitted to recover all property fraudulently transferred, .and to defend against fraudulent mortgages, the necessity ceases, and with it the rule of law based upon it.
The claims made by the assignors to certain property as exempt clearly cannot affect the validity of the assignment. Nor does the failure of the assignee to recover property retained by the assignors, the title to which actually passed by the deed of assignment, alter the case in any degree. The creditors have ample remedy for any neglect on his part.
The rulings on the introduction of testimony complained of are quite, unimportant, and do not furnish ground for a reversal.
The judgment is affirmed.
All the Justices concurring. | [
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Allen, J.
This is a proceeding to reverse a judgment of the District Court of Republic County rendered in favor of S. G. Stover and C. Perry against Richard Scannell for $5,500 on a contract assigned to them by S. K. Felton, under which Felton had partially constructed the foundation for a Catholic college-building at Belleville. The defendant Scannell was bishop of the diocese, and the land on which the foundation was built had been deeded to him. A motion to dismiss the proceeding in this Court is interposed. It appears that Stover & Perry were engaged in the business of banking, as partners, at Belleville; that on the 23d day of August, 1893, which was after the petition in error was filed in this Court, C. P. Carstensen -was, on the application of the Attorney General, duly appointed receiver to take charge of the effects of their bank; that, in a few days thereafter, he qualified and took possession, and has ever since continued in the possession of the assets of the partnership. It also appears that C. Perry, one of the partners, died in July, 1895 ; that he left a will, which was duly probated, but that the executrix named therein never qualified, and no other executor or administrator has ever .been appointed in her stead. On the 7th of October, 1896, the plain tiff in error filed, in this Court a motion suggesting the death of Mr. Perry, and asking that it be stated on the record, and that the cause proceed against S. Gr. Stover as surviving partner. Counsel for the plaintiff in error contend that, under the circumstances stated above, the surviving partner has full power to represent the interest of the deceased partner as well as his own ; that all parties necessary to a determination of the controversy are now in court; and that no formal revivor against Stover as surviving partner is really necessary, he being here to speak for his own interests, and being, in fact, the survivor. On the other hand, it is urged that a revivor against Stover as surviving partner was necessary, and that more than one year after it might first have been had elapsed before the motion to revive was filed. It is also contended that the receiver is a necessary party in this Court. Without undertaking to pass on the necessity for a revivor against the surviving partner, we are of the opinion that it was necessary to revive against the receiver ; that he is not only a necessary party, but that he is the only party authorized to speak for the partnership estate of Stover & Perry. It appears from the proof now presented that the firm of Stover & Perry became insolvent, and that whatever assets remain belong to the creditors of the firm rather than to them. The receiver appointed under the banking law stands as the representative of the creditors, and is required to protect their interests. No suit in which the right to assets of the estate is involved can proceed without his being made a party. Talmage v. Pell, 9 Paige’s, Ch. 410. Under the facts disclosed Stover is not authorized to represent any substantial interest, for the judgment, if collected, must be paid into the hands of the receiver, and be by him appropriated to the payment of the debts of the insolvent bank.
There being no one here authorized to represent the judgment creditors, the petition in error must be dismissed.
All the Justices concurring. | [
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Martin, C. J.
I. The question of a difference between the assured and the insurers as to the amount of the loss was scarcely an open one after the execution of the written agreement of June 17, 1891. That the loss was legitimate does not seem to have been disputed at any time, and the only function that appraisers or arbitrators could perform was to ascertain and fix its amount. Payne did not testify that the agents and adjusters ever agreed to pay him the full amount of of the policies, to wit, $19,000, although he says they did not question the amount of the loss. He admits that the subject of the appointment of appraisers was discussed at the Coates House, and this was more than a month before the agreement was signed. According to the findings of the jury, Payne executed the paper advisedly. Upon his own testimony we are unable to discover any fraud practiced upon him by the Insurance Companies in order to obtain his signature. It was plainly stated in the writing that the appraisement was ‘ ‘ for the purpose of ascertaining and fixing the amount of said loss and damage,” and that “the award of said appraisers, or any two of them, made in writing,” should be binding upon both parties to the agreement. The writing is the best evidence of the intent of the parties in appointing appraisers, and, there being no evidence of fraud or mistake, Payne should not be heard to contradict what is therein so clearly expressed. Hopkins v. St. L. & S. F. Rly. Co., 29 Kan. 544, 550; Smith v. Deere, 48 id. 416; Getto v. Binkert, 55 id. 617, 620, and cases cited.
II. The agreement of June 17, 1891, designated P. B. Messenger and S. G. Gribi as appraisers. Messenger had been named by Payne, and Gribi by the Insurance Companies. Messenger was a carpenter and builder who had worked on Payne’s house, part of the time as foreman, and bn was entirely familiar with the materials and workmanship entering into its , . construction. Gribi was a contractor and builder residing at Wichita, and had on several previous occasions acted as -an appraiser of fire losses by the appointment of insurance companies. The evidence tends to show that Gribi was in Kansas City on business before the agreement was signed, and that he consented to serve as an appraiser. Gribi and Messenger went to Argentine on the day of their appointment and measured the foundation walls; the superstructure of wood having burned leaving little else to indicate the size and character of the building. A rain coming up, they went to the place where Payne was residing, and he gave them a photograph of the house. From the measurements and the photograph Messenger and Gribi drew a rough plan or diagram of the house. Gribi testified that Payne then and there gave a very full description of the house with all its materials and workmanship, but this was fully denied by Payne. .It is not claimed that Payne had any hearing after that day or any notice that evidence would be heard as to the character or the value of the building. The appraisers obtained the bill of the Hopkins Planing Mill Company, which included the greater part of the mahogany, cherry, bird’s-eye maple and butternut finishing lumber, together with doors of like character, and this bill with the measurements, the phograph and the plan made therefrom appear to have been the sources of information upon which Gribi .acted with the knowledge, if any, derived from Payne, for he did not testify that he obtained any data from Messenger. The latter had the same sources of information, and also the previous knowledge of the house derived from his personal familiarity with it. Meyer, although appointed by the other appraisers because of their difference as to the gas machine, seems to have gone all over the calculations and estimates, but it does not appear that he obtained any facts from Payne or from any other source familiar with the building. Messenger died before the trial. His deposition was taken, but neither party offered it in evidence.
An appraisement of existing property is usually made upon actual view, and without the aid of other evidence; and, in the case of appraisers entirely familiar with property afterward destroyed, they might make an intelligent estimate upon their former knowledge ; but this is not so as to appraisers who have never seen the property. In such case the estimate must be as to property which was, but is not, and all knowledge of it must be derived from evidence of some sort not necessarily under oath. The measurements, the photograph and the plat made therefrom, together with the planing-mill bill, would no doubt greatly aid Gribi in making an estimate ; but if he ob tained. no information from Payne, or any other person, it could hardly be claimed that his estimate would be an intelligent one. Messenger was well informed respecting the building, and was, perhaps, competent to make an estimate with the aids before indicated; but he did not sign the award. If he agreed to the amount thereof, however, then it may fairly be considered his by reason of the signature of the third appraiser in the selection of whom he joined, for, by the terms of the agreement, the award was sufficient if signed by any two of the appraisers.
The rule laid down by the Court was too strict in allowing the jury to pass upon the question whether or not the appraisers were in possession of the facts necessary for them to arrive at an intelligent conclusion, and in declaring that, if the appraisers did not take into consideration all the items of the loss covered by the policy, then the award was not binding upon Payne. Very few awards could stand the test of so strict a rule. An award is prima facie conclusive between the parties as to all matters submitted to the arbitrators; Miller v. Brumbaugh, 7 Kan. 343, 352; Groat v. Pracht, 31 id. 656; and it will not be set aside for mere irregularities not affecting substantial rights. Anderson v. Burchett, 48 Kan. 153. In Underhill v. Van Cortlandt, 2 Johns. Ch. 339, 361, Chancellor Kent said:
“Admitting that there was no corruption or partiality in the arbitrators, (and none is pretended,) and admitting that there was no misconduct in them during the course of the hearing, nor of fraud in the opposite party, (and none is established by proof,) then, I say, the Court cannot inquire into the charge of an over or under valuation, or of the reasonableness or unreasonableness of the award, but it is binding and conclusive. If every award must be made conforma ble to.what would have been the judgment of this Court in the case, it would render arbitrations useless and vexatious, and a source of great litigation ; for it very rarely happens that both parties are satisfied. The decision by arbitration is the decision of a tribunal of the parties’ own choice and election. It is a popular, cheap, convenient, and domestic mode of trial, which the courts have always regarded with liberal indulgence; they have never exacted from these unlettered tribunals, this rusticum forum, the observance of technical rule and formality. They have only looked to see if the proceedings were honestly and fairly conducted, and if that appeared to be the case, they have uniformly and universally refused to interfere with the judgment of the arbitrators.”
See also Boston Water Power Co. v. Gray, 6 Metc. 131, 165, and Hall v. Insurance Co., 57 Conn. 105, 117, and authorities cited.
III. The policy required the Insurance Company to make good unto the assured the amount of loss or damage, to be estimated according to the cash value of the property at the time of the loss, not exceeding $4,000. One method of arriving at such loss is by estimating the cost of replacing the building less any depreciation from úse, age, or otherwise ; and the other is by evidence of the value of the building, at the time of its destruction, less the value, if any, of the ruins. If witnesses as to the worth of the building are shown by cross-examination to have little knowledge upon the subject, this would be proper matter of argument to the jury as affecting the weight of their testimony, but it should not be excluded on that account. Evidence of the cost of a building, however, can hardly be said to be evidence of its value at a particular time. Sometimes, from the necessities of the case, it may be proper to inquire as to the cost of an article as tend ing to establish its value ; but there is no such necessity here, and Pajme ought not to have been permitted to testify that the house cost about $25,000.
IV. It does not appear that either party made a-written request for submission to appraisers, and, therefore, an appraisement was not a condition precedent to the commencement of an action. Insurance Co. v. Wilson, 45 Kan. 250; Insurance Co. v. Wallace, 48 id. 400. Yet an appraisement having been agreed upon, Payne is bound by the award unless it is invalid under the principles above stated, and the burden of proof is upon him to show its invalidity. If, however, the award be not sustained, then Payne will be entitled to recover from the Insurance Company the sum of $4,000 and interest thereon at six per cent, pel annum from a time 60 days after the proofs of loss were received at Chicago ; or so much thereof as shall not exceed four-nineteenths of the total loss, with interest thereon as aforesaid.
The Court did not err in refusing to submit to the jury the particular questions of fact referred to in the brief of plaintiff in error, nor in holding that further-proof of loss was waived, nor in any other respect material to the case except as hereinbefore indicated; but, for these errors, the judgment must be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Johnston, J. :
This was an action by the heirs of Moses Waters, deceased, to recover from Joseph Waters the possession of 240 acres of land in Geary county. Joseph Waters has been in the possession of the land since 1884, and claims that he received it as a gift-from his brother, Moses Waters, during his lifetime. At the trial the testimony tended to show that in 1888 Moses Waters was post sutler at Fort Riley, and had considerable means, while his brother Joseph, who-then resided at Amsterdam, N. Y., had little if any property. He and several of his children had employment at small wages in a carpet factory at Amsterdam. Moses visited his brother’s family in New York in 1883, and, learning of their condition, suggested that they remove to Kansas. Afterward, in a letter, he advised his brother that he had purchased a farm for him in Kansas, and urged him to come at once and take possession of it. Another letter of like purport was sent urging them to come right away and take the farm which he had bought for them; that it was the last chance he would give them. These letters were written by Mary, the wife of Moses Waters, who brings this action under the name of Mary M. Flanigan. Within a few weeks Joseph Waters came to Kansas, and shortly afterward he was followed by his family, when they were put in possession of the farm, which they have ever since retained. At the same time Moses Waters purchased and gave to Joseph implements sufficient to run the farm. After taking possession of the land, Joseph Waters made some improvements upon a house that was standing thereon, built two or three miles of wire fence, built a stable, corn-crib, chicken-house, grubbed out and broke up additional land, and planted some trees, but the improvements made were not of great value. On June 26, 1889, Moses Waters died intestate, and left surviving him his widow, Mary M. Waters, and six minor children. Soon afterward, the widow intermarried with one Flanigan, and she brings this action for herself, and as next friend for the children. Upon the testimony the jury found in favor of the defendant, holding in effect that Moses Waters had bought the land for his brother Joseph, and gave it to him ; that Joseph entered into possession of it in pursuance of the gift, and had improved it and made it his home. .It is earnestly contended that the testimony is insufficient to sustain the finding of the jury. It appears that the land was purchased several weeks before Joseph Waters arrived in Kansas, and the title to the same was placed in Moses Waters, in whose name it remained until the time of his death.
As the gift, if any, was in parol, it should be shown by clear and satisfactory proof. From the testimony, it appears that Moses Waters was abundantly able to make the gift, and further, that he was anxious to have Joseph and his family established in a home of their own in Kansas. He proposed to give him a farm if he would remove to Kansas. Before purchasing the land, he said it was his purpose to buy a farm for his brother, and when he was negotiating for one he stated that he was going -to give it to his brother, and ever afterward spoke of it as the land he had given to his brother. The evidence is abundant that he induced his brother to leave his place in New York by the offer of this home, that upon coming here he delivered it to him as a gift, and that, in pursuance of the gift, his brother took possession and made improvements. Since that time Joseph Waters lias had exclusive possession of the farm, and appears to have exercised full ownership over it. During his lifetime Moses Waters repeatedly asserted that he had given the land to his brother, and only held the deed in his own name because his brother’s wife was not content to live in Kansas, and that he feared he might sell it and return to New York. Statements of this character and admissions that he had given the land to his brother were so frequently made and to so many different persons that little doubt can remain as to his purpose. The matter of the gift was talked over with most of his neighbors and friends, and evidently he desired all to understand that out. of his abundant means he gave liis brother and family a home, so that they, too, might enjoy some of the comforts of life. We cannot suppose that the proposition to give, and the delivery of exclusive possession, were made to deceive his brother, or that the numerous statements made to his neighbors and friends in respect to the gift were misrepresentations. Equity protects a parol gift of land equally with the parol contract of sale where possession has been taken in pursuance of the gift, improvements made, or where the donee has been induced to change his situation or condition upon the faith of the gift. (Galbraith v. Galbraith, 5 Kan. 402; Thornton, Gifts, §§ 378-383.) Whether a gift was made is, like any other fact, for the determination of the jury. To take the case out of the operation of the statute of frauds, the gift must be shown by clear and convincing proof. The testimony in this case, we think, meets the re quirements of this strict rule of law. That the gift was made by Moses Waters, accepted by his brother, and that the acts done on the faith of the gift would make it inequitable to avoid the same, has been established by full, credible, and satisfactory evidence.
One other question remains for decision. When the land was purchased the legal title, as we have seen, was placed in Moses Waters. The instrument of conveyance was executed and recorded several weeks before his brother, Joseph Waters, reached Kansas, and before he was placed in possession of the land. It is contended that the gift did not become effective until possession was taken by the donee, and that, in the time intervening between the purchase of the land and the acceptance of the gift, Moses Waters was the legal and equitable owner of the land. It is not claimed that his wife made any conveyance of this land, or of any interest therein, and it is urged that there is no proof showing that she consented to or joined in the gift that was made. The statute provides that
‘' one-half in value of all the real estate in which the husband, at any time during marriage, has 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 the husband, if she survives him.” ( ¶" 2599, Gen. Stat. 1889.)
While the wife wrote the letters proposing to give Joseph Waters the land if he would come to Kansas, and informing him that it had been purchased for him, there is no testimony-that she expressly surrendered her interest in the land or that she had united with her husband in making the gift. Any interest which she had in the land may have been given under like conditions and in the same manner that the gift was made by her husband. It may be shown by statements made by her or other acts recognizing that the gift was complete, and that Joseph Waters was entitled to exclusive possession and complete ownership. The court is 'of opinion that she had an interest in the land, under the statute, which would remain in her until it was surrendered by gift, conveyance, or other transfer.
In the opinion of the writer, the wife of Moses Waters never acquired any interest in the land, and a conveyance or her consent to the gift was not essential to the vesting of the title in Joseph Waters. The land was originally purchased by Moses for Joseph, and not for himself, and this was done with her knowledge. It being his unquestioned purpose to give the land to his brother, he converted himself into a trustee, and from the first simply held the naked legal title for the benefit of his brother. The trust was created when the purchase was made, and is just as effective as if a stranger had been made the trustee. Holding the land only in trust, his wife acquired no interest in the same, and therefore her consent to the gift was not essential. (Adams v. Adams, 21 Wall. 186 ; Lewin, Trusts, 152 ; Perry, Trusts, § 38 ; Thornton, Gifts, § 413.)
A majority of the court hold to the view that the trial court, in charging the jury, failed to recognize the interest acquired by the wife of Moses Waters, and that the testimony in the record fails to show that she has parted with that interest. For' these reasons the judgment of the district court will be reversed, and the cause remanded for a new trial.
Martin, C. J., and Allen, J., concurring.
Johnston, J., dissenting. | [
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Johnston, J.
On December 2, 1889, Joseph and Rebecca Berry, husband and wife, united in giving to the Guaranty Investment Company a promissory note for $1,800, payable five years after date, and a mortgage securing the payment of the note was signed by them. The mortgage was upon a quarter-section of land occupied by them as a homestead, and it was subject and subordinate to another mortgage previously given by them to the Mutual Benefit-Life Insurance Company to secure an indebtedness of' $1,200. On February 2, 1890, and before the maturity of the note, the Guaranty Investment Company indorsed and transferred the same to the executors of' the estate of Charlemagne Tower, deceased, and the-mortgage was assigned- and delivered with the note. Default was made in the interest payments, and, afterward, the Insurance Company began a foreclosure proceeding in which the executors of the Tower estate were made parties defendant, who, on July 16, 1892, filed an answer and cross-petition setting up their note and mortgage and asking for judgment against the Berrys, and, also, that it be declared a lien on the mortgaged premises, subject only to the lien of the Insurance Company.
Joseph Berry did not appear or defend, but Rebecca Berry contested the validity of the mortgage given to the Guaranty Investment Company, alleging that it was signed under duress. She averred that her husband, who was a strong, powerful man, of violent temper, threatened to abandon her to her own resources, and, also, to kill her; and, believing that he was a dangerous man, who would carry out his threats, she was induced to sign the mortgage. She alleged that the land on which the mortgage was given was purchased by her husband as a homestead, and that it was occupied as a homestead before the execution of the mortgage, and had been continuously ever since that time. She did not question her liability upon the note, nor deny that the note and mortgage were assigned as alleged ; neither did she make any defense other than that of duress in the execution of the mortgage. On the latter ground she asked that the mortgage be canceled and held for naught.
A demurrer to her answer was sustained; and, she electing to stand on her answer, judgment was rendered against her for $2,625, and for foreclosure of the mortgage, and declaring the judgment a lien on the homestead premises.
Was the mortgage valid and enforceable? If the averments as to duress are true, there was no free will, or consent by Rebecca Berry in the execution of the mortgage. As the case stands, we must accept these averments as facts, and, if so regarded, it would seem that Mrs. Berry was induced to sign the mortgage by threats of bodily harm such as might overcome the will of a person of ordinary firmness and courage. In addition to the threats of personal violence, there were threats of separation and abandonment. The property described in the mortgage was a homestead, and could only be alienated by the joint consent of husband and wife. If Mrs. Berry was compelled by force and fear to sign the mortgage, if there was actual duress, she gave no consent, and the mortgage is a nullity. Anderson v. Anderson, 9 Kan. 112; Helm v. Helm, 11 id. 19; Howell, Jewett & Co. v. McCrie, 36 id. 636; Jenkins v. Simmons, 37 id. 496; Gabbey v. Forgeus, Adm’r, 38 id. 62; Warden v. Reser, 38 id. 87. This position would be conceded by the defendant in error if the mortgage stood alone, but, as it accompanied, and was security for, a negotiable promissory note which was transferred to a bona fide indorsee before maturity, it is contended that the defense of duress is not available. An assignee who obtains a promissory note before maturity, for value and without notice, takes it free from equities. A mortgage executed concurrently with a note to secure its payment is generally held to be an incident of the note, and to partake of its negotiable character. It appears to be well settled by the courts that a bona fide indorsee before maturity of a note secured by a mortgage upon property other than a homestead, and without notice of infirmities, takes the mortgage, as he takes the note, unaffected by any equities arising between the mortgagor and mortgagee. Burhans v. Hutcheson, 25 Kan. 625; Lewis v. Kirk, 28 id. 497; Carpenter v. Longan, 16 Wall. 271; Jones, Mortg. §834 and cases cited; 15 Am. & Eng. Encyc. Law, 855, and cases cited. This rule is not prescribed by any statute, but is based upon the equitable principle that the debt, being the main thing, imparts its character to the mortgage, and that when the note is assigned the security follows it and takes the same character. It is conceded that this rule is controlling where the property mortgaged is not a homestead ; but it is contended that it can never apply where the mortgage is upon a homestead and where the wife or husband has not joined in, or consented to, its execution. The rule goes upon the theory that a mortgage has actually been executed and is in existence ; but, in this State, if the wife or husband does not give consent, or join in the execution, the instrument does not rise’ to the rank of a mortgage. It is absolutely void, and not even binding upon the one who does consent. Would it be contended that a mortgage to which the wife’s signature was forged, or which had never been signed by her, would follow the note and be enforceable as a security? It is unlike a case where joint consent was actually given though obtained by fraud. As the consent of the wife is lacking, there is no mortgage. It would be carrying the doctrine of negotiability beyond reason, to make a mortgage which is against the statute and prohibited by the Constitution binding and .enforceable, merely because it accompanied and purported to secure a negotiable promissory note. It is not negotiable in form, and of itself has no negotiable qualities ; but a rule has been established by the courts, that because of its relation to negotiable paper it is invested with a negotiable character. A rule so made, applying to mortgages the principles which pertain to negotiable paper, cannot prevail over the specific provisions of the Constitution and statute. The Constitution pro vides that a homestead “shall not be alienated without the joint consent of husband and wife, when that relation exists.” Art. XV, Sec. 9. The same prohibition is repeated by the Legislature in one of the statutes. ¶" 2996 Gen. Stat. 1889. These positive and solemn declarations cannot be overcome by a mere rule of commercial law or by any judicial dogma. In Anderson v. Anderson, supra, where a conveyance of a homestead was obtained by duress of the wife, it was urged that a purchaser in good faith and for a valuable consideration without notice of the duress should be protected. In deciding the case, however, it was held that “if a wife sign the deed of the homestead under duress she does not give that consent to the alienation which the statute requires ; and in such case the ' good faith ’ of the purchaser cannot be considered in determining the validity of the deed.” Much reliance is placed on Beals v. Neddo, 2 Fed. Rep. 41, which is contrary to the ruling in Anderson v. Anderson, supra, but it appears to be wholly founded upon cases in which the homestead question was not involved or considered. The Court, in its opinion, recognized that, under the Constitution, duress is available as a defense within the decisions of the Supreme Court of this State, but did not incline to follow them. The Supreme Court of Iowa, in a case where a note and mortgage were obtained by duress and the mortgage was upon a homestead, held that the innocent holder of the note and mortgage might recover upon the note, but was not entitled to a foreclosure of the mortgage. The doctrine is there recognized that, in an ordinary case, a mortgage given to secure a negotiable note partakes of the negotiable character; but, in that State, there is a statute which requires a concurrence of both husband and wife to a conveyance or the incumbrance of the homestead. In the case mentioned the signature of the wife was secured by duress, and it was held that she did not legalty concur in the conveyance. The Court added :
“Mortgages are not intended to circulate as commercial paper, and we do not think that the interests of commerce require that the principles applicable to negotiable paper shall be extended to a mortgage executed under such circumstances as the mortgage in question.” First National Bank of Nevada v. Bryan et al., 62 Iowa, 42.
We think the answer alleged a defense, and the demurrer'thereto should have been overruled.
As the case is presented, the question of estoppel is not before us for consideration. While considerable time elapsed between the execution of the mortgage and the setting up of the defense, there is nothing to show knowledge on her part of the transfer of the note and the subsequent ownership of the same, nor are there any averments showing her acts or declarations in respect to the note and mortgage.
The judgment of the District Court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
In the fall qf 1888, Dr. E. W. Hinton and Ira E. Hobson, two of the plaintiffs in error, desiring to engage in the manufacture of salt at King-man, and having no ready means of their own, purchased a tract of 10 acres in the name of Milla A. Hinton, one of the plaintiffs -in error, who was the wife of Doctor Hinton, she furnishing the money paid down, and signing notes.for the balance, which were also signed by Doctor Hinton and Mr. Hobson. These notes were afterward paid with the money of Mrs. Hinton. The deed to Mrs. Hinton was executed November 26, 1888, but was not recorded until November 19, 1889. On December 1, 1888, Hinton and Hobson entered into a contract in writing with Charles Tuttle, whereby the latter agreed to furnish the materials and perform the labor necessary to the erection of a plant of a certain description for $7,480.66, and to complete the same within two months-. Tuttle was the agent of William M. Leckie, of Joplin, Mo., the defendant in error, for the sale of boilers and pumps, the principal things necessary in the construction of the plant other than the building therefor, but the agency of Tuttle was not disclosed to Hinton and Hob-son at the time. Mrs. Hinton owned $6,000 of bank stock, and she pledged this for $4,000, and loaned the monej’’ to Hinton and Hobson to use in the erection of the plant. The arrangement between Hinton and Hobson and Mrs. Hinton was, that the property should remain in her name until the money advanced for the real estate and the plant should be repaid to her, and then she should convey the property to Hinton and Hobson. On the completion of the plant, Hinton and Plobson owed thereon about $2,800, for which they gave two notes to Tuttle. He assigned them to Leckie, and not being paid when due, they were renewed in the name of Leckie as payee.
On December 23, 1889, E. W. Hinton, Ira E. Hob-son, and M. A. Hinton, plaintiffs in error, and I. J. Conklin and L. C. Hobson entered into articles for the incorporation of the Crystal Salt and Mining Company, plaintiff in error, with an authorized capital stock of $50,000, divided into 1,000 shares of $50 each, the incorporators being named as directors for the first year. On December 28, 1889, said Milla A. Hinton and her husband conveyed the real estate and plant to the Crystal Salt and Mining Company, the deed being recorded January 11, 1890. The company issued to Mrs. Hinton its capital stock amounting to $10,000, and to each of the directors one share. No other stock was issued. Some efforts were made to run the salt-works, but they resulted in financial failure.
On April 16,1891, Leckie obtained judgment against E. W. Hinton and Ira E. Hobson on said promissory notes for $2,924.68, and an execution upon said judgment was returned unsatisfied on June 6, 1891. On July 13, 1891, Leckie commenced Ms action against the Hintons, Ira E. Hobson and the Crystal Salt and Mining Company in the nature of a creditor’s bill to subject said real estate and plant to the payment of his judgment. On September 22, 1891, a trial was had, and certain special questions of fact, being prepared by the court, were submitted to the jury for answer. The jury found that the land was purchased in the name of Mrs. Iiin'ton in contemplation of defrauding, hindering and delaying the creditors of Hinton and Hobson in the collection of their debts, and that Mrs. Hinton did not contribute any money to the salt enterprise.- The latter finding is against the evidence, and the former appears to be based upon the assumption that Mrs. Hinton was not a creditor of Hinton and Hobson when she took title to the real estate, nor afterward. The only evidence upon which the jury could have based these findings was that Hinton and Hobson made statements to different persons, not in the presence of Mrs. Hinton, that they had purchased the land and were building the plant, and that they had the means to do so. There is no contradiction of the evidence, however, that Mrs. Hinton furnished substantially all the means used in the purchase of the real estate and payment for the plant. The court sustained the findings of the jury and entered judgment, subjecting the real estate and plant to the payment of Leckie’s judgment. It Tvas not a fraud upon other creditors for Mrs. Hinton to take title to the property as security for the payment of the money advanced, although Hinton and Hobson were unable to pay or secure other creditors. Neither Leclde nor Tuttle took any steps to secure a mechanic’s lien, and they had no other'upon the property. The findings and the judgment are unsupported by the evidence.
The judgment will be. reversed, and the cause remanded to the court below for a new trial.
All the Justices concurring. | [
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Allen, J.
The first proposition urged is, that more than one year elapsed after the consolidation of the two railroad companies without any proceeding in the District Court to revive the judgment against the new corporation. It is insisted that the cases of K. O. & T. Rly. Co. v. Smith, 40 Kan. 192; Kunkle v. Railway Co., 54 id. 194, and C. K. & W. Rld. Co. v. Butts, 55 id. 660, are decisive of this case, and that under these authorities the action in the District Court was dead, and could not be revived without the consent of the Railway Company. Counsel for the defendant in error has argued at length, both orally and in the brief, against the soundness of the rule declared in these cases ; but we are not disposed to re-examine the question. This case, however, is different from either of those cited. The new company voluntarily took the place of the old in this Court. The only purpose of the proceeding here was to reverse a judgment fo.r the payment of which the new company was liable. The error complained of here, and for which the judgment of the District Court was reversed, was in the refusal of the trial court to grant the defendant anew trial. The new company was, therefore, after being substituted as plaintiff in error here, prosecuting an action in this Court to obr tain a new trial in the District Court. This Court, at its instance, reversed the judgment of the trial court and granted it the new trial it desired. The mandate of this Court thereupon x lssue(l to the lower court commanding it to grant the new trial — not to the old, dead company — but to the new, living company which had taken its place. Can it be that, after having asked and obtained through the command of this Court a new trial of the case, it may still urge that it has never consented to become a party in that Court? Can it be a party for the purpose of vacating and setting aside the judgment where the plaintiff’s cause of action still remains, and where this Court merely grants a new trial, and yet claim that it is not a party for the purpose of any further proceeding in that Court? We think it must take the burdens and benefits of the judgment obtained here, together ; that it must follow into the District Court the mandate sent there at its instance, and must abide the result of a new trial; that the substitution under these circumstances must be treated as having been made with the consent of ths defendant.
In the fourth instruction given by the Court, and excepted to by the defendant, the jury were told that the facts proved in this case did not constitute probable cause for the plaintiff’s arrest. Section 104 of the act concerning Crimes and Punishments, reads :
“ Any person who shall wilfully throw down, break, remove, displace, cut, split, burn, or in any manner destroy or injure any of the rails, .sills, switches, cross-ties, piles, bridges, culverts, viaducts, parapets, or any other fixture of any railroad, or shall wilfully injure or destroy any embankment of any railroad within this state, now constructed or in process of construction, or of any railroad which shall hereafter be constructed, or be in process of construction in this state, shall, on conviction thereof, be punished by confinement and hard labor in the penitentiary not less than one nor more than three years.”
According to his own testimony the plaintiff wilfully removed a rail from the track of the railroad constructed and operated over his land. He also wilfully placed an obstruction on the track, which is made a crime by section 103 of the same act. His only justification for his acts was that he owned the land, and that, as the Railroad Company had failed to pay him the damages he had been awarded, he had a right to resume possession of it. What-_ . ever the rights of the defendant might have been in an action to recover the land occupied by the Railroad Company, he had no right to take the law into his own hands and proceed to tear up the railroad track. It may be that, on a trial as for a crime under the section of the statute quoted, the fact that he acted in good faith under the claim of right, might shield him from punishment; but, as his acts constituted a crime within the letter of the statute, there was probable cause for his arrest, and the instruction given was erroneous. Denver & Rio Grande Rld. Co. v. Harris, 122 U. S. 397; State v. Johns, 124 Mo. 379, 27 S. W. Rep. 1115; Clifton v. State, 73 Ala. 473.
Other claims of error are discussed in the brief, but as the same questions may not arise again we deem it unnecessary to discuss them in detail. The one already considered compels a reversal of the judgment.
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Allen, J.
There was no trial of any issue of fact in the District Court, but judgment was rendered on the pleadings. Any error appearing in this judgment could have been reviewed without a motion for a new trial. Land and Cattle Co. v. Daly., 46 Kan. 504; Ritchie v. K. N. & D. Rly. Co., 55 id. 36; Water-Supply Co. v. Dodge City, 55 id. 60. At the time judgment was rendered no extension of time was allowed for making and serving a case. As no extension was allowed within three days after the judgment complained of was rendered, and as a motion for a new trial was entirely unnecessary, the order granting the extension of time was made without jurisdiction, and there is nothing that can be considered by this Court. Ætna Life Ins. Co. v. Koons, 26 Kan. 215; St. L. & S. F. Rly. Co. v. Corser, 31 id. 705; Limerick v. Haun, 44 id. 696. In this state of the record the only errors we can consider are such as are raised by the motion for a new trial. The judgment in the case was for a strict foreclosure, which the law does not authorize, but the defendant made no motion asking the Court to correct the form of the judgment. The only motion filed was for a new trial. For this there was no occasion. The plaintiff, under the admissions of the answer, was clearly entitled to a judgment of the kind authorized by law, directing a foreclosure of his mortgage and a sale of the mortgaged premises. If the plaintiff in error desired to have the judgment reviewed it was incumbent on it, if it desired to come by case-made, to have either served its case within three days, or obtained an extension of time for so doing within that period. This it failed to do. It could not extend the time by filing a useless motion. Possibly, a motion to correct the judgment, made at any time during the term at which it was rendered, would have raised the question now sought to be presented, and a case served within three days after the overruling of the motion would have been in time. The motion for the new trial, however, affords the plaintiff in error no basis for relief in this Court.
The judgment is therefore affirmed.
All the Justices concurring. | [
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Johnston, J.
A passenger train of tlie Missouri Pacific Railway Company, running through, the State •of Missouri, was derailed June 28, 1890, and, as a result, Effie C. Lovelace, who was a passenger thereon, received some injuries. She came at once to her home in Kansas City, Mo., and, July 1, 1890, after some negotiations, signed a paper in which it was stipulated that, for a consideration of $100, she re leased the Company from all claims on account of her injuries. Her husband, who assisted in the negotiations, also joined her in signing the paper. In January, 1891, she was a witness in behalf of the Railway Company in a case on trial in Missouri; and it is claimed that when her' witness fees were paid, sufficient money was added on account'of the injuries previously received to make the amount $20. She then signed a release or receipt, of which the following is a copy:
“Kansas City, January 16, 1891.
‘ ‘ In consideration of the sum of twenty dollars to me paid by the Mo. Pac.-Ry. Co., I hereby assign to said Co., my fees in the case of Emma Tyler v. said Co., which amount to $6.25 ; and also release to said Co. any and all claims I have against it for injuries received by me in accident which occurred on June 28, 1890. Mrs. Eerie C. Lovelace.
Attest: H. C. McDougal.”
For the same consideration, and on the same day, her husband executed a paper releasing the Company from any and all claims he might have against the Company on account of injuries to his wife caused by the accident above mentioned.
July 23, 1891, she came into Kansas and instituted an action in the District Court of Johnson County against the Company, alleging that the derailment and injury were caused by the negligence of the Company, and that, in consequence of the negligence, she had sustained injuries in the sum of $10,000. In its answer, the Railway Company denied negligence, averred that the claim for the injury had been compromised and adjusted, and set forth the releases heretofore mentioned. In reply to the answer the plaintiff below alleged that the release of July 1, 1890, was obtained while she was suffering great bodily pain and mental anguish, and when she was wholly incapacitated for the transaction of any business ; and, further, that her signature thereto was obtained for the purpose of cheating and defrauding her. In regard to the release or receipt dated January 16, 1891, she alleged that Elijah Robinson, the attorney of the Company, represented to her that the release was simply a receipt for witness fees in the case of Tyler versus the Railway Company, and that, relying upon his representation, she signed the release, believing it was simply a receipt for such witness fees. The trial resulted in her favor, the jury awarding her damages in the sum of $4,500.
It is claimed that error was committed by the trial court in the admission of what is termed expert testimony. Doctor Lemon was called as an expert, and stated that he had never met the plaintiff until the day before the trial, when he made an examination of her physical condition and discovered that she was suffering from womb and uterine troubles. Among others, the following questions were asked :
“ Doctor, what would you say from the condition in which you found plaintiff at the time you examined her, if the injuries resulted from a railway accident on the 28th of June, 1890, as to what her condition of mind would naturally be on the first day of July, following? ”
Over objections he gave the following answer :
“I can only give an opinion in a general way. The majority of cases in that condition, at so short a time after the injury, with an injury of that character, would be in that condition of mind which we recognize as hysteria, and physicians would consider a patient-”
Here counsel interrupted and objected to what physicians would consider, when the Court remarked to the witness :
‘ ‘ What do you consider ? ’ ’
The witness then gave this further answer :
“ My own opinion would be that any lady suffering with hysteria would be unfit for the transaction of business.”
A motion to strike out the answer was refused. He was thep. asked to give his definition of hysteria, and replied as follows :
“Hysteria is that effect upon the nervous system which produces, by reflex action, an effect upon the brain of vacillation, hallucination and imaginations of different characters, and is the result of irritation of the uterine walls. There is such a thing as hysteria without uterine disease.”
This testimony was clearly objectionable and prejudicial. One of the principal contentions in the case related to the mental condition of the plaintiff at the time the release was signed, July 1,1890. She claimed that, by reason of the pain she was suffering and of the medicine administered to alleviate it, she was incapacitated to transact business, and had no recollection of having signed the paper nor of anything that occurred on that day. A great deal of evidence was introduced to the effect that she was conscious and composed, and was then in the full enjoyment of her mental powers. Doctor Lemon had not seen Mrs. Lovelace at the time the release was signed, nor for more than 18 months afterward. It was competent for him to testify in regard to her condition when the examination was made and to give his opinion, if such testimony was necessary, whether her condition at that time and the pain she was suffering, were the result of the injuries received when the train was derailed. The opinion of witnesses competent to speak might have been likewise taken as to the permanéncy of the injury. The witness was not informed as to the condition of Mrs. Lovelace at the time when her capacity was in question ; his testimony was not based on that given by others acquainted with her then physical or mental condition; nor were the facts relating to her condition and as to what she said and did at the time, laid before the witness as a foundation for opinion testimony. The opinion of the witness as to her condition of mind at one time based upon her physical condition a year and a half afterward is largely conjecture and is too uncertain and speculative to be of value. The opinion asked for was based upon conditions altogether too remote ; and the answer given by the witness shows that the opinion is only a double speculation. He stated that persons so injured might have hysteria, and that any lady suffering from hysteria would be unfit for the transaction of business.” Although a number of witnesses testified in regard to her condition and conduct at that time, we find no testimony in the record indicating that she had hysteria or was suffering from anything approximating it. Opinion evidence is only admitted from necessity, and, then, only when it is likely to be of some value. In the present case there was no necessity for extending the scope of such proof, as there was no difficulty in obtaining testimony as to her condition and as to what was said and done by her at that time, so that the jury could readily determine for themselves what her mental capacity was when the compromise was made and the release signed. We think prejudicial error was committed in admitting the testimony.
On behalf of the Railway Company it is claimed', that there was no proof of mental incapacity when the release of July 1, 1890, was signed, and that, having-signed the receipt dated January 16, 1891, when she-had the capacity and opportunity to read it, if she did not do so, she is concluded, and, therefore, the Court-erred in refusing to instruct the jury that no recovery could be had. There is some testimony tending to-show that she was incapacitated to make a contract-at the time the release was signed; and, if that is-found to be true, the execution of the release and the-apparent consent to the contract are not binding upon-her. In a somewhat similar case, it was held that, where a party executed such a paper when he was under the influence of drugs and opiates taken to alleviate pain, so that no sufficient assent was given to-the release, he was not bound thereby; and it was also held that it was unnecessary for him, as a condi-' tion precedent to his right to sue for damages, to pay back, or offer to payback, money received at the time of signing the paper. Railroad Co. v. Doyle, 18 Kan. 58.
The receipt signed in 1891 purports to be an acknowledgment of the payment of witness fees as well as a payment upon any claim for the injuries received at the railroad accident. She claimed that the Company had paid other- . . _ witnesses m the same case more than the-statutory fees, and that it was her idea that the whole $20 was paid to her as witness fees. She further stated that the paper was designated a-receipt when it was placed before her to sign, and that no mention was made of her claim for damages-at that time. Á receipt is, only prima facie evidence-of the statements which it contains, and is open to- explanation by the party giving it, even to the extent of showing that it was given by mistake and that the statements which it contains are in whole or in part untrue. Ellicott, Assignee, v. Barnes, 31 Kan. 170; Clark v. Marbourg, 33 id. 471; Solomon Rld. Co. v. Jones, 34 id. 443. This is not a case in which the interests of any innocent third party are involved, but the controversy being still between the original parties to the transaction, the question of the negligence of one of them is not of great importance. We are unwilling to decide that her mere negligence in signing a receipt without reading it concludes her and prevents all explanation or denial of what it contains ; and certainly such a view should not be taken if it turned out that she was induced to sign it by the misrepresentation or fraud of the Company. We, therefore, conclude that the Court committed no error in refusing to instruct the jury to return a verdict in favor of the Company.
There is cause, however, to complain of the finding of the jury that the signature of Mrs. Lovelace to the paper of January 16, 1891, was obtained through the false and fraudulent representations of Robinson for the purpose of cheating and defrauding her. Robinson was an attorney of the Company, and the paper was prepared in his office and in her presence. She stated that, after it was prepared, she had ample opportunity to read it, and that she could read ordinary writing. Her testimony is that he left it on the table in front of her with the remark— “ Sign this receipt!” There was no attempt to conceal the contents of the paper in any way, and she did not claim or testify that Robinson made any statement of its contents; nor does it appear that she was hurried into signing it. If her testimony is taken as true, it affords no support for the finding that her signature was obtained through false and fraudulent representations.
Another assignment of error is the overruling of a motion for a new trial, based upon the ground of newly-discovered evidence. The attorney of the Company who had charge of the preparation and trial of the cause subsequently discovered testimony of a very material character which might bring about a different result’ if a new trial were had. It includes the testimony of those who saw and talked with Mrs. Lovelace on July 1, 1890, when the release was given, and subsequent to that time. She had testified that she was confined to her bed for three weeks as a result of her injuries ; that her mind was greatly disturbed, and that she was practically unconscious of what was transpiring about her. According to the affidavits, one of the witnesses will testify that she talked with Mrs. Lovelace after the settlement had been made and the release signed; that she was in excellent spirits and in good mental condition ; that she understood and comprehended everything that transpired about her, and remarked that she felt well paid for the injuries she had received. Immediately after the settlement had been made she got out of bed, dressed herself, and afterward went with her husband to their boardinghouse, which was some distance away. Three days later she attended a picnic at one of the parks and appeared to be in good physical condition. Another witness met her on the day following the settlement, and was informed by Mrs. Lovelace that she had sustained some bruises from the wreck, but that they were not serious, and apparently they caused her no trouble. Other testimony of a similar character, which, tends strongly to show that Mrs. Lovelace’s mental condition was good at the time in question, is referred to in the affidavits.
The principal objection is that there was not a sufficient showing of diligence on the part of the Company to obtain the testimony. Great diligence was not shown, but, in view of the fact that the newly-discovered evidence consists largely of statements-made to third persons and of conduct in their presence, it may be deemed sufficient. It may be that those in charge of. the case for the Railway Company had no reason to suspect that such statements and acts had occurred or were available as testimony, and the attorney of the Company swears that he had no-knowledge of such matters or facts or of the witnesses until after the trial of the cause, but that facts were-developed on the trial and on the cross-examination of the plaintiff which gave a clew to the new facts-that have since been discovered and are contained in the affidavits. In view of the great materiality of the evidence, and the fact that the case was instituted and tried in a State other than where the accident occurred and where the plaintiff below resided, we think a sufficient showing was made, and that a new trial should have been granted.
The judgment of the District Court will be reversed, and the cause remanded for a new trial.
Allen, J., concurring.
Martin, C. J., having been of counsel, did not sit. | [
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The opinion -of the court was delivered by
Porter, j. :
The appellees sued appellant upon an oral contract of employment to defend his son in a criminal prosecution, alleging in their petition that the agreement was to pay a specified fee. The answer was a general denial. The jury found for appellees and the court gave them judgment.
Appellant claims there was error in refusing to instruct the jury upon “the statute of frauds,” his contention being that the son first employed the attorneys and that they are seeking to hold him in this action upon an oral promise to answer for the son’s debt. The appellees, however, neither claimed nor offered proof of any employment by the son except to show that they agreed with him that they would act for him in securing bail after he was arrested. Their testimony is that the- father employed them to defend the son and agreed to pay the fee, and that they stated to him at the time that if he saw fit not to employ them they would make no charge for the slight services already rendered the son in securing his release, on bond pending the preliminary examination. It is true, their evidence showed that when one of them shortly before the commencement of the action demanded of appellant payment of the fee he said in reply: “You go and see the boy. He hired you,” but the fact that appellant made the statement was no evidence of its truth. Proof of an admission in his own interest and against that of his adversary can not avail appellant. (16 Cyc. 940.) The instructions given required the appellees before they could recover to show by a preponderance of evidence that they were employed by the appellant to render the services, and that they did so in accordance with the contract of employment. The court instructed the jury that he could not be held for the debt of his son. The jury were riot concerned about whether it was the statute of frauds or something else which prevented the appellant from becoming liable on an oral promise to pay the debt of his son. There was no error in the instructions.
There was a conflict in the evidence which the jury resolved against appellant. We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action in the district court was brought on the 26th day of March, 1913, to enjoin the sale of property taken under an execution. The court denied the injunction and gave defendants judgment for costs. The plaintiff appeals.
The judgment was rendered on the 20th day of March, 1903, and the validity of the execution sought to be enjoined depends solely upon a question of fact which the court decided adversely to the plaintiff, and it requires a liberal construction to say that there was any conflict in the evidence.
The question of fact was whether or not a previous execution on the judgment issued prior to the date when the judgment would have become dormant. The court found that an execution was duly issued on the 5th day of March, 1908, fifteen days before the five years expired. The execution was dated on.its face the 5th day of March, 1908, and was endorsed as having been issued on that date. The only room for possible contention that it was not issued- then is that the date was written: “this // 5 day of Mch 1908.” It is quite obvious that the figure “4” and the month “May” were written in by mistake, probably because in the body of the execution and four lines directly above these words the clerk had made the execution returnable on the 4th day of May, which was sixty days after the 5th day of March; and it is equally clear that having discovered the mistake he corrected it by writing in the “5” in place of “4” and “Mch” in place of “May.” If it were true that the execution issued on the 4th day of May it would not have been made returnable on the same date. While it is “ the issuance, and not the return, of an execution that tolls the statute” (Saville v. Shcroyer, 65 Kan. 303, 304, 68 Pac. 1130), the return and all indorsements thereon were properly considered for the purpose of determining when the execution issued. The return shows that the sheriff received it on the 5th day of March, 1909. Besides, the appearance and execution dockets and the indorsement on the execution all show that it “issued Mch 5, 1908.”
The claim of error relied upon is that the court refused to permit a witness to testify that in March, 1908, after the exe cution would have become dormant, the deputy clerk of the district court in a conversation held in the hallway outside the clerk’s office stated to the witness that no execution on the judgment had issued. The official records required to be kept by an officer can not be impeached in that way. We suppose it would not be contended that the integrity of a record showing the filing and recording of a deed could be impeached by evidence that subsequent to the date it purports to have been recorded the register of deeds told some one in or out of his office that no such deed had been recorded.
We find no merit in the contentions raised by the plaintiff, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
S. C. Wolford, in July, 1911, filed a voluntary petition in bankruptcy and was duly adjudicated a bankrupt. It appears that some two years before this time his father, who gave to each of his other children a thousand dollars, entered into a contract to convey to S. C. Wolford a quarter section of land for five thousand dollars, crediting him on this contract with the sum of one thousand dollars, leaving a balance of four thousand dollars to be paid in five annual equal installments with interest at six per cent. The bankrupt did not schedule this land or contract as any part of his assets, neither did the father file any claim against the trustee for the four thousand dollars. The trustee brought this suit to quiet- his title as against the father, J. R. Wolford, to the land in question on the theory that belonging to the bankrupt it passed to him by the proceedings.
The father and son both testified that the contract was annulled and surrendered up long before the petition in bank ruptcy was filed, but two other witnesses related conversations with the son in which a short time before filing his petition he claimed to own the land and agreed to secure certain debts therewith, and the court concluded that the son was the owner of the land which was charged with the four thousand dollars and ordered it sold subject thereto. The jury found that the father and son did not agree to cancel and annul the contract; that the agreement was not surrendered and that the possession of the land was not surrendered by the son to the father, although both of them testified directly contrary to each of these findings.
It appears to have been the theory of the jury and the trial court that no such surrender or annulment was had in good faith, but that if any was attempted it was for the purpose of withholding the land from the bankrupt's creditors. It is contended that the decision was in this respect wrong; that in addition to the four-thousand-dollar lien on the land the father is entitled to a lien for six per cent interest from the time the contract was made, and for a further lien for’eleven hundred dollars advanced to the son which it is claimed was upon condition that the contract be surrendered.
The findings of the jury and the result indicate that considerable of the testimony introduced was not believed, and under ¿11 the circumstances shown the way does not seem clear to disturb such findings and result. No reason is apparent why the eleven hundred dollars should be made a lien upon the land, but on the contrary no reason appears why the four thousand dollars should not draw interest as claimed by the defendant. The legal title was in J. R. Wolford all along, and if this is to be taken from him upon securing the four thousand dollars which the son was to pay for the land the agreed interest should also be secured, for the trustee can not justly ask for a greater interest in the land than the bankrupt had, and there was no duty resting upon the record holder of the legal title to file with the trustee his claim for the sum required .to be paid to divest him of such title.
It is argued that J. R. Wolford is estopped by reason of permitting his son to use the land as a basis of credit. But if such use was made by the son no creditor who took notice of the record could be deceived any more than if he had found recorded a mortgage for four thousand dollars and interest payable to J. R. Wolford, for certainly a vendor who retains the full legal title as security is in as good a position as one who transfers it and takes back a mortgage, and record notice of the former is as good to a creditor as record notice of the latter.
The cause is remanded with directions to modify the judgment by adding interest as indicated herein. | [
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The opinion of the court was delivered by
DAWSON, J.:
This is a case of considerable complexity, but thanks to the comprehensive statement of Mr. Justice West when it was here before (Ryan v. Cullen, 89 Kan. 879, 138 Pac. 430), it will require no extended recital now. The litigation grows out of the estate of Matthew Ryan, sr., a Leavenworth citizen of considerable property who died in 1893 leaving six children, Matthew, jr., Kate, Mary, Thomas, Jeptha and Ethan. One provision of the will of Ryan, sr., reads:
“5. I give and bequeath to my children, Matthew Ryan, Jr., Kate V. Sheedy, Jeptha D. Ryan, Mary Ryan, Thomas C. Ryan and Ethan B. Ryan, each one-sixth of the balance of my estate for their lives, with the remainder to the heirs of their bodies, respectively, with the power in each of my said children to control and dispose of his or her share of my estate during his or her life, as to each shall seem proper.”
After these children had reached maturity, the sons, Jeptha, Thomas and Ethan, met with financial reverses and owed their mother $45,000. They submitted to judgments in favor of their mother, Mary Ryan, and their interest in their father’s estate was sold by the sheriff and bought by their mother. The crux of this case is mainly on the question as to what was sold by the sheriff to their mother. The mother conveyed her interests thus purchased to her daughter, the defendant, Mary (Ryan) Loftus. Afterwards the plaintiff, Helen J. Ryan, secured a conveyance from her husband, Thomas, and from Jeptha, of their interests.
The other plaintiff, Dacotah S. Ryan, is the widow of Matthew, jr., and claims through him and by a grant from her children. Thus Helen claims an undivided two-sixths of the property, and Dacotah claims one-sixth, and their action against Mary is for ejectment and partition. The other de fendant, William J. Cullen, claims title through tax deeds and a quitclaim deed from Mary and her husband.
Another issue in the case involved misrepresentations on the part of Mary and her husband, whereby Dacotah was induced to convey her interest in the property and in turn received a quitclaim deed to certain property from Mary and her husband. Dacotah prayed for the cancellation of these deeds. The abstract sets out some twenty-eight pages of findings of fact and voluminous conclusions of law based thereon.
From a judgment in favor of plaintiffs, the defendant, William J. Cullen, appeals. But the range of our review is limited as no error is assigned on the exhaustive findings of fact.
Appellant’s first principal contention is that plaintiff Helen had no title, because the entire interest of Thomas and Jeptha, through whom she claimed, had been sold by the sheriff to Mary Ryan, their mother, and that the mother had conveyed that interest to Mary (Ryan) Loftus, who in turn had conveyed it to William J. Cullen.
What did the sheriff sell? The will of Ryan, sr., had bequeathed to each of his children an undivided one-sixth life interest in his estate “with remainder to the heirs of their bodies, respectively, with the power in each of my said children to control and dispose of his or her share of my estate' during his or her life as to each shall seem proper.” Appellant contends that when Thomas, Jeptha and Ethan confessed judgment in their mother’s suits against them they had an agreement with their mother that she should have not only their life estates but the entire fee of their shares. And doubtless this was an issue raised by the pleadings, but such contention has no support in the findings of fact made by the district court. As the case comes here, we must hold that the interests of Mary Ryan’s sons, which she purchased at the sheriff’s sale, were no more than a stranger creditor could have caused to be sold in judicial proceedings wholly in invitwn.
Coming now to the next phase of this same proposition, it will be observed that the will of Ryan, sr., gave the sons the power to control and dispose of their shares “as to each shall seem proper.” In other words, each child of Matthew Ryan, sr., was given power by his father’s will to terminate the life estate bequeathed to him and to control and dispose of his share of the inheritance. That each son could do so was casually recognized by this court when this case was here before. This question must be set at rest now. The life estates of the Ryan sons were only contingent life estates. The fair import of their father’s will was that those life estates might be determined by appropriate action on the part of the beneficiaries, and this action they were free to take “as to each shall seem proper.” After their contingent life estates were taken from them by judgments and sheriff’s sale, Thomas and Jeptha chose to exercise this privilege conferred by the will of their father to terminate their life estates and part with the fee, and this they did by conveyances to plaintiff Helen J. Ryan. During the pendency, of the partition proceedings in the district court Ethan B. Ryan also terminated the life estate bequeathed to him by his father by exercising the power conferred on him by his father’s will; he conveyed his share of the fee to Helen F. Ryan. Mary has also exercised this privilege by terminating her own life estate and conveying it to Cullen. (Silvers et al. v. Canary, 109 Ind. 267; 9 N. E. 904, and cases there cited.)
Counsel for appellant stoutly contends that the entire interests and not the mere life estates of Thomas, Jeptha and Ethan were sold by the sheriff on execution, and that consequently they had nothing to convey in their later deeds to Helen J. Ryan. After failing to maintain this contention on the issues of fact, he now insists on the same point as a matter of law.
Certain excerpts from textbooks and decisions are cited by counsel to support that contention, and the case of Moody v. Tedder, 16 S. Car. 557, is one of those. We have read this case carefully. It is distinguishable from the one before us. There the person holding the life estate had likewise the power to terminate it and convey the fee. She did convey “all her interest and life estate.” The court properly gave potency and value to the word “interest” as well as to the other terms of the grant. Moreover, there were many equities in that case and an acquiescence for fourteen years.
The case of Hobbs v. Smith, 15 Ohio St. 419, lends some support to appellant’s argument. The headnote reads:
“A devised land to his son for ninety-nine years, without impeachment for. waste, with remainder to the son’s children, should he have any. The will provided: That the son should support himself, and, if he ever had a family, should support it also, from the land, and invest the balance of the rents and profits in improvements thereon; that the land should not be taken in execution for payment of his debts; that he should have power to dispose of it by will, not, however, to defeat the purpose of the will; and that he should have full power to sell, reinvest, and to resell at pleasure, and without accounting to any person or court for the proceeds of purchase money. Held: 1. That a sale of the land on execution against the son, and a deed therefor ,by the sheriff, pass, at least, a present legal estate, and right of possession to the purchaser. 2. That the estate and right so passed are not defeated or divested by a subsequent conveyance in fee by the son, and it does not enable the purchaser under him to recover possession from the sheriff’s vendor.”
In the body of the opinion, however, it was said:
“This will is certainly a legal curiosity. The precise sense and meaning of much of its language is obscure, and some of it seems to be without sense or meaning at all. Its provisions are apparently conflicting, and they give rise to many curious questions of law. . . . The general object of the testator seems to have been, to give to the devisee an absolute ownership of the land, and yet to shield it from the payment of his debts. This is simply impossible. The law makes what a man owns— whether held by legal or equitable title — liable to the payment of his debts, unless it. be property specially exempted. No legal acumen or skill can evade this policy of the law, and as often as it is attempted it must result in one of two things — either in the devisee taking nothing by the will, or in leaving what he does take liable for the payment of his debts. The liability attaches to the ownership, and it is beyond the power of any draftsman to invent a form of devise, or conveyance, that shall separate them. . . . The power given in the will is one coupled with an interest. When that interest is divested, either by act of the party or by law, the power, as to that interest, is exhausted, and ceases to exist; and then becomes only a power as to the interest of other parties. If the interest with which the power is coupled be the whole interest, then, of course, the whole power ceases to exist, upon the divestment of the interest. A grant of power to sell one’s own property is a mere nullity, because the power exists without the grant, and no disposition of that interest made by law, can be defeated by any subsequent exercise of the power.
“What estate and interest, then, did the devisee have in this land, at the time of the sheriff’s sale? He had the legal title, and right of possession, for the term of ninety-nine years, subject to be defeated only by his own voluntary act, and he was in actual possession. So much it is certain he had. What he had beyond the term of ninety-nine years, we need not now inquire. It will be time enough to decide that question after ninety-nine years shall have elapsed, and when his children, if he ever have any, shall claim to take the remainder in fee, as devisees, or, if there are no> children, whenever the heirs of the testator shall claim it as a reversion descending to them.” (pp. 424, 425.)
It will be observed that even in the foregoing case it is not contended that the sheriff sold the entire fee.
Another case cited by appellant, Cressey v, Cressey, 215 Mass. 65, 102 N. E. 314, is not pertinent. It contains no question of life estate, nor of the power to convey, nor any other proposition analogous to the one at bar.
Neither do appellant’s quotations from textbooks and cyclopedias go as far as argued by appellant.
The better doctrine is that upon execution the sheriff can not sell the personal power and discretion bestowed upon the debtor by the testator’s will. This personal power is not a chose in action to be confiscated or abridged at the instance of a judgment creditor by forced sale. There seems to be no end of authorities to support this view, and among these is Jones v. Clifton, 101 U. S. 225, 25 L. Ed. 908, where a husband had conveyed certain property to his wife, reserving to himself “the power to revoke the grant and assignment, in whole or in part, and to transfer the property to any uses he might appoint, and to such person or persons as he might designate, and to cause such uses to spring or shift as he might declare.” (p. 226.) Later, financial misfortunes overtook the husband and his assignee in bankruptcy sought to set aside the conveyances to the wife. This neither the federal circuit court nor the supreme court would permit. Mr. Justice Field said:
“Should he [the husband] revoke the settlements, the property would revert to him, and of course, he liable for his debts; and should he exercise the power of appointment for the benefit of others, the estate appointed would be liable in equity for his debts.
“The title to the land and policies passed by the deeds; a power only was reserved. That power is not an interest in the property which can be transferred to another, or sold on execution, or devised by will. The grantor could, indeed, exercise the power either by deed or will, but he could not vest the power in any other person to be thus executed. Nor is the power a chose in action. It did not, therefore, in our judgment, constitute assets of the bankrupt which passed to his assignee.” (p. 230.)
Suppose a creditor of the wife had procured a judgment-against her, and on execution had sold the property. Would that have cut off the husband’s reserved power to terminate the estate he had conferred upon her, and prevent his selling, the property? We think not.
A very instructive and analogous case is McCullough’s Adm’r v. Anderson, 90 Ky. 126, 18 S. W. 353, 7 L. R. A. 839, where the headnote reads:
“Where a testator creates a life estate in one with remainder to another, and at the same time gives the life tenant the power to defeat the remainder hy disposing of the property by deed or will, the remainder will take effect if there has been no disposition of the property by the life tenánt. The power of disposition does not convert the life estate into a fee unless it is exercised.”
After reviewing the authorities the court said:
“In view of these authorities it is maintained that although the wife, Harriet, in this case was given a life estate, there was coupled with it a power to dispose of the entire estate for her own use, or that of another, at any time during her life, or to pass by her will at her death; and as no greater dominion could have been exercised over it by the devisor if he were living, the fee must necessarily have passed to the wife, and such was the intention of the testator. The argument certainly strikes one with much force; for if the dominion over the estate is such that it can be used, conveyed, devised or otherwise disposed of by the donee without restriction or limitation, the power over it is as great as any that could have been exercised by the grantor or devisor in whom the title to the estate was originally vested. We preceive, however, no reason why such a power may not be conferred if it appears from a consideration of the whole will that the intention of the testator was not to create a fee in the first taker. The right of absolute dominion and control, with the power to sell or devise, would, unexplained, pass the absolute estate.
“In this case the testator proceeds, in the first place, to give to his wife, Harriet, during her life, all his estate, real and personal, with the full power to dispose of the whole of it as she pleases. Now, if he had intended to vest the wife with the fee, or to give her the absolute estate, without any limitation, it could have been readily expressed, and there would have been no necessity for carving a life estate out of the fee, and then conferring upon the life tenant the power to pass the fee by deed or will, if she desired to do so. The provision of the will giving the wife this power shows that upon its exercise alone could the wife pass the fee, so'as to defeat the objects of the testator’s bounty, designated to take the remainder. Such was his plain intention. He described the estate in express terms that the wife was to have, and that was a life estate; but as she might need the entire estate, or desire to make some other disposition of it than that I have made, I will vest in you the power to destroy the rights of those in remainder, and you may dispose of the whole of it, but failing to do so, the remainder will pass to those who are named to take at your death. The provisions of the will were plain and easily understood. The testator had placed it within the power of his wife to destroy the devise made to his own kindred, and by will or deed give it to those of her own blood.” (p. 133.)
One of the headnotes of Cramton v. Rutledge et al., 157 Ala. 141, 47 South. 214, reads:
“Where a life tenant is authorized to sell and dispose of such portions of a testator’s estate as the life tenant may think best, either at public or private sale, and upon such terms as the life tenant may deem advisable, the life tenant can not delegate the execution of the power to the probate court, and can not substitute the judgment of that tribunal for hers in making the sale; hence, a sale in partition under the decree of the probate court at the instance of the life tenant can not be considered as an execution of the power.” (Headnote, ¶ 1.)
In the opinion it was said;
“The equity of the bill in this cause was determined on former appeal— Rutledge v. Cramton, 150 Ala. 275, 43 South. 822. It was then held that the partition proceedings in the probate court for the sale of the land here in controversy, upon the petition of Mrs. Bell, who took a life estate under the will of her husband, and to whom was committed the authorization ‘to sell and dispose of such portions of my (testator’s) estate as she may think best, either at public or private sale and upon such terms as she may deem advisable,’ was not an execution of the power conferred by the will. The holding seems to have been predicated upon certain statutes. Independent of and aside from these statutes, the conclusion reached was clearly correct, for the obvious reason that the power conferred reposed in Mrs. Bell a personal trust and confidence to exercise her own judgment or discretion, which could be discharged only by her personally. In other words, she could not delegate the execution of the power to the probate court to become for her, in her stead, the vendor of the property. There could be no substitution of the judgment of that tribunal for her’s in determining the manner of exposing the property to sale and the terms of sale, which had been expressly confided to her.— Chambers v. Tulane, 9 N. J. Eq. 146; Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. 609; Canning v. Sisters of St. Frances, 35 N. J. Eq. 392, 400; Saunders v. Webber, 39 Cal. 287; Suarez v. Pumpelly, 2 Sandf. Ch. (N. Y.) 336; Conklin v. Egerton’s Administrator, 21 Wend. (N. Y.) 430; Whitlock v. Washburn, 62 Hun. 369, 17 N. Y. Supp. 60; John S. Wills v. Cowper and Parker, 2 Ohio, 124.” (p. 147.)
(See, also, Tiedeman on Real Property;. 3d ed., ch. XVI,- and particularly, JjJ|420,
In view:*»! íhe-tér^^fAaSé fact, and theUáWías indicated above, wé áre bobnd to hold that the judgment of the district court in behalf of Helen F. Ryan must be affirmed.
Turning to the interest of Dacotah, widow, of Matthew, jr., she was induced to convey her interest in th,e property in controversy to Mary through misrepresentation and without consideration. Such are the findings of fact which control this review. Hence, and very properly, the district court set aside the deed from Dacotah to Mary; however, at the same time requiring Dacotah to reconvey whatever hazy and undefined interests, if any, she may have received by reason of a quitclaim deed from Mary and her husband and William J. Cullen.
There is a hint in appellees’ brief that William J. Cullen is a fictitious personage, but this is unimportant in view of our conclusions.
This case discloses no material error and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An information was filed charging George L. McCullagh and H. B. Savagfe with having violated the game laws of the state by shooting wild ducks from a motor-boat, on April 2, 1914. A motion to quash was sustained, and the state appeals.
The state law undertakes to forbid shooting at or killing wild game birds from a motor-boat. (Laws 1913, ch. 199, § 1, amending Laws 1911, ch. 198, § 15.) The defendants maintain that this and all other state laws for the protection of migratory birds are superseded and nullified by an act of congress. The agricultural department appropriation act of March 4, 1913, contains these provisions:
“All wild geese, wild swans, brant, wild ducks, snipe, plover, woodcock, rail, wild pigeons, and all other migratory game and insectivorous birds which in their northern and southern migrations pass through or do not remain permanently the entire year within the borders of any state or territory, shall hereafter be deemed to be within the custody and protection of the government of the United States, and shall not be destroyed or taken contrary to regulations hereinafter provided therefor.
“The Department of Agriculture is hereby authorized and directed to adopt suitable regulations to give effect to the previous paragraph by prescribing and fixing closed seasons, having due regard to the zones of temperature, breeding habits and times and line of migratory flight thereby enabling the department to select and designate suitable districts for different portions of the country, and it shall be unlawful to shoot or by any device kill or seize and capture migratory birds within the protection of this law during said closed seasons, and any person who shall violate any of the provisions or regulations of this law for the protection of migratory birds shall be guilty of a misdemeanor and shall be fined not more than $100 or imprisoned not more than ninety days, or both, in the discretion of the court.
“The Department of Agriculture, after the preparation of said regulations, shall cause the same to be made public, and shall allow a period of three months in which said regulations may be examined and considered before final adoption, permitting, when deemed proper, public hearings thereon, and after final adoption shall cause the same to be engrossed and submitted to the president of the United States for approval: Provided, however, That nothing herein contained shall be deemed to affect or interfere with the local laws of the states and territories for the protection of non-migratory game or other birds resident and breeding within their borders, nor to prevent the states and territories from enacting laws and regulations to promote and render efficient the regulations of the Department of Agriculture provided under this statute.” (Part 1, 37 U. S. Stat. at Large, ch. 145, p. 847, 4 U. S. Comp. Stat. 1913, § 8837.)
' The agricultural department has defined the closed season for the birds referred to, varying with the species and locality, in regulations which have been approved and published, and which forbid the killing of wild ducks in Kansas between February 1 and September 15. (U. S. Dept. of Agr., Farmers’ Bulletin No. 628, p. 12.) The state law leaves an open season from September 1 to April 15. (Laws 1913, ch. 199, § 1.) In the briefs of both parties it is assumed that the federal regulations, if valid, supersede the state law. The ordinary rule is that the state may punish the same act that constitutes an offense against the laws of the general government, unless the federal legislation is made exclusive, expressly or by fair implication. (12 Cyc. 137; Sexton v. California, 189 U. S. 319; but see Easton v. Iowa, 188 U. S. 220.) In State v. Sawyer, (Maine, 1915) 94 Atl. 886, it was held that the language of the act above quoted indicates a legislative purpose that the federal regulations were to be exclusive. But there the prosecution was for killing game out of season. So far as relates to fixing the period within which birds may be hunted the laws of the state and nation may perhaps be regarded as undertaking to cover fully the same field, and to be not complementary, but in a degree antagonistic. Here, however, the conduct complained of relates to the manner and not to the time of killing the birds. It might be argued, by analogy with the subject of interstate commerce, that if the regulation of hunters in their conduct toward migratory birds is committed to the control of the federal government, congress must be deemed to have intended them to be free from legislative interference with respect to matters concerning which it has not acted, and that beyond the establishment of a closed season no protection should be afforded the birds, except such as might be given by the states under the express authority granted them to enact laws to promote and render efficient the regulations of the department. Even the exception might be questioned as an attempt to delegate the legislative power of congress. Possibly the provision of the state law here invoked may be regarded as promoting the department’s regulations. It in no way conflicts with them, and is directed to the same general end. As these questions have not been argued, the case will be considered in the light in which it has been presented — as turning upon the validity of the act of congress.
In the only reported cases dealing with the question the federal act referred to is held to be unconstitutional because the power undertaken to be exercised is not among those conferred upon congress. (United States v. Shauver, 214 Fed. 154; United States v. M’Cullagh, 221 Fed. 288; State v. Sawyer, [Maine, 1915] 94 Atl. 886.) The United States district court in South Dakota is said to have held to the contrary (2 West Pub. Co’s. Docket, No. 17, p. 1476), but if an opinion was written in that case it does not appear to have been published. The power referred to must be found, if at all, in the provision of the national constitution relating to interstate commerce, or in that authorizing congress to make regulations respecting the territory or other property belonging to the United States. (U. S. Const., art. 4, § 3.)
The natural flight of wild fowl from one point to another does not constitute “commerce,” unless that word be expanded beyond any significance heretofore given it. Whatever other element may be spared from a definition of the term, it has not been heretofore applied to processes or occurrences not directed or affected by human intelligence. But if the fact were otherwise, the circumstance that birds of a particular species do not habitually remain throughout the year in the same state could hardly bring them within the control of congress on the theory that they were thereby impressed with a national character as the subjects of interstate commerce. This court once decided that the legislature could not prohibit the shipment out of the state of prairie-chickens, lawfully caught or killed in Kansas, because such a prohibition was an interference with interstate commerce. {The State v. Saunders, 19 Kan. 127.) The supreme court of the United States explicitly disapproved the decision, saying that its reasoning was inconclusive because it overlooked the authority of the state over property in game within its confines. {Geer v. Connecticut, 161 U. S. 519, 534.)
The argument for federal control based upon the power given to congress to make regulations respecting the property of the United States fails because in our judgment the habit of migration does not vest in the federal government the title to the animal possessing it. In the case last cited, and in many others, wild animals are declared to be subject to the control of the state — to belong to the people of the state — -and the rule has been repeatedly applied to migratory birds. The authority of a state to grant hunting privileges to its citizens to the exclusion of those of other states is generally recognized, and is based upon the same principle. (19 Cyc. 1008; Note, 26 L. R. A., n. s., 794. See, also, 3 C. J. 18.) Doubtless the general government could, if it had the authority, give game birds more effective protection than they now enjoy, or than could be afforded them by the separate action of the states. But congress can derive no power to legislate on a particular subject from the fact that it can handle the matter more efficiently than the legislatures of the various states. {Kansas v. Colorado, 206 U. S. 46, 91.)
All phases of the questions involved are treated so fully in the three cases already cited in this opinion as to make further discussion superfluous. In the absence of a decision by the federal supreme court upholding the act of congress no course seems open but to enforce the state law, even if in conflict with it.
An additional objection is made to the validity of the statute on which the action is based, on thé ground that the prohibition against shooting ducks from a motor-boat is an unreasonable exercise of the police power, and deprives an individual of the' use of his property without due process of law. A multitude of regulations of the methods of hunting and fishing, designed to limit the amount of game and fish taken, have been upheld. (19 Cyc. 1012.) Other conditions being the same, more birds could be shot within the same time from a motorboat than from a rowboat. The restriction in that regard is a'means sufficiently adapted to the end in view to justify the legislature in its adoption. The federal court for the northern district of California has held invalid a statute of that state forbidding the use of a magazine gun in shooting certain game birds. (In re Marshall, 102 Fed. 323.) The statute also forbade any person to kill more than twenty-five of such birds in a day. The court reasoned that the manifest purpose of the legislature was to prevent a single hunter from getting more than a fixed amount of game, and so long as he did not exceed the limit it made no difference what means he employed. The Kansas statute under consideration makes it unlawful for any one person to kill more than twenty wild ducks in one day. (Laws 1913, ch. 199, § 2.) It is argued that the end sought was manifestly to prevent one person from taking more than twenty ducks in a day, and that the legislature has no power to say in what manner that number may be taken. The argument is unsound. The general purpose of the statute is to diminish the slaughter of game. This is sought to be accomplished by imposing various restrictions upon the hunter. He is not granted an unconditional right to slay twenty ducks in a day. The prohibition against his use of a motor-boat is not designed solely to keep him within the numerical limit. The two restrictions are independent, each operating, as do a number of others of a similar character, to promote the same general end.
The judgment is reversed and. the cause remanded with directions to overrule the motion to quash. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action I. N. Orr sought to recover damages from The Ellsworth-Klaner Construction Company and R. H. Sturgeon for injuries sustained while in the company’s employ. From a judgment against it for $2750 the company appeals.
The Ellsworth-Klaner Construction Company was engaged in stripping and mining coal with steam shovels near Chicopee, Crawford county. The coal was loaded upon cars which were pulled on a track up an incline about two hundred twenty-five feet long, extending from the pit to a platform or tipple, which was about twenty feet above the level of the ground. These cars were drawn and controlled by a stationary steam engine located near the tipple with a three-eighths-inch wire cable several hundred feet long extending from a drum connected with the engine through a pulley at the tipple and along the track into the pit, and by this means cars were drawn from the pit to the tipple and after being dumped were lowered again to the pit. On the incline was a switch to divert the empty cars from the way of the ascending loaded cars. On February 28,1913, plaintiff, in the course of his employment as trackman for defendant company, was ordered by the company’s superintendent to make certain repairs upon this switch. He alleged that while so engaged R. H. Sturgeon, who was then employed by the company as its engineer, suddenly started the engine and violently tightened the cable, which was connected with a string of derailed cars at the bottom of the incline and lying with quite a little slack in it between the rails of the track. This caused it to fly up and strike plaintiff across the breast and arms with such violence as to break and unjoint his left arm and throw him from the incline to the ground, a distance of about ten feet, and to severely bruise him about the body, limbs and head. Plaintiff further alleged that his injuries were permanent and caused by the negligence and carelessness of the defendants: of the company because the place in which he was required to work was unsafe and in failing to warn him of the starting of the engine, in causing through its employees the cable to be suddenly drawn taut, and in keeping R. H. Sturgeon in its employ when it knew he was careless and incompetent; and of R. H. Sturgeon in recklessly, carelessly and negligently starting the engine and jerking the cable. Damages in the sum of $7500 were asked. The answer of defendant company was a general denial. The demurrers of defendants to plaintiff’s evidence were overruled and the jury’s verdict was in favor of defendant R. H. Sturgeon but against the defendant company which appeals.
Complaint is made that counsel for plaintiff were permitted to inquire of jurors while they were being examined as to their qualifications if they had any connection with a certain surety company and, if so, whether it would affect their verdict if it should appear that the defendant carried a policy in that company. In each case a negative answer was given. This action is assigned as error on the ground that it was prejudicial to defendant, but the point is not argued in defendant’s brief. The scope of such an examination must largely be left to the discretion of the trial court, and it can not be said that there was an abuse of discretion in this instance. (Swift v. Platte, 68 Kan. 10, 74 Pac. 635; Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821.)
The principal contention is that the evidence is insufficient to show negligence on the part of the company, and it is therefore contended that the demurrer to plaintiff’s evidence should have been sustained and its motion for judgment nothwithstanding the verdict should have been upheld. It is further contended that the finding of the jury that Sturgeon was not negligent towards the plaintiff nor responsible for the injury argues that the company itself was not negligent. The plaintiff did not base his right of recovery on the negligence of Sturgeon alone, who was charged with suddenly and recklessly starting the engine while the plaintiff was in a place of danger and without any warning that would enable him to reach a place of safety, but he also charged the company with negligence in failing to furnish him a safe place to work, reasonably careful and competent fellow servants with whom to work, and to warn him of impending danger. The plaintiff was sent into a place of danger to repair the tracks, and it appears that the superintendent had informed the plaintiff that the cable would not be used or the cars moved while he was in that place. Sturgeon, it appears, did not know that the plaintiff was at work on the incline and he started the engine upon a signal of other employees. The jury concluded that as Sturgeon could not see the plaintiff at work but acted on the signals of another he was not guilty of negligence or' personally responsible for the injury that was inflicted. The plaintiff could not safely repair the switch and track while the cable was being used and the cars moved. The company itself recognized this to be so as the superintendent had informed plaintiff that operation of the cable and cars would cease while he was at work and he had directed the employees in charge of the cars and cable not to move them during the time he was at work. It devolved on the company to use reasonable care to make the incline a safe place for the plaintiff to work. The duty was a continuing one which could not be so delegated as to relieve the company from the result of nonperformance. The employees who were entrusted with the giving of signals and warnings to the engineer or those having charge of the cars and cable were performing the functions of the master, the duties of the company itself, and for their negligence the company is responsible. (Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Crist v. Light Co., 72 Kan. 135, 83 Pac. 199; Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A., n. s., 515; Carillo v. Construction Co., 81 Kan. 823, 106 Pac. 1050; Iliff v. Cudahy, 83 Kan. 588, 112 Pac. 165; Griffin v. Brick Co., 84 Kan. 347, 114 Pac. 217; Kreigh v. Westinghouse & Co., 86 Kan. 838, 122 Pac. 890; Henry v. Boiler Works, 87 Kan. 571, 125 Pac. 67; Seward v. Cold Storage Co., 89 Kan. 344, 131 Pac. 568; Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484.) No warning was given the plaintiff that the engine was about to be started, and, as we have seen, the engineer, who could not see plaintiff, relied on the signals given by other employees, and if a warning to plaintiff was necessary it was unquestionably the duty of the company to give it. It can not be relieved from responsibility for the failure to perform that duty even though it had directed its employees to give warnings and safeguard the plaintiff while at work.
“Such a duty is nondelegable, and the employer is liable for the results of neglecting it, irrespective of any question of fellow service.” (Seward v. Cold Storage Co., 89 Kan. 344, 346, 131 Pac. 568.)
The positive duty owed to plaintiff was to use reasonable care to furnish him a safe place to work, safe appliances with which to do his work, careful and competent employees with whom to work, and to give warnings and furnish all reasonable precautions necessary to his safety while he was in the place of danger, and if warnings were necessary to his protection the company was liable for failure to give them even if competent employees had been provided by the company for that purpose. It is easy to see that the duty devolved upon the company differed in kind from that resting on the engineer who started and stopped the engine upon signals given by others and who is not responsible for furnishing a safe place for the plaintiff to work, and a finding that he was not negligent does not exonerate the company for its failure to perform the duty imposed on- it as master.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
In this action for damages the court sustained a demurrer to the plaintiff’s evidence and rendered judgment for the defendants, from which judgment this appeal is taken.
The abstract contains testimony in support of the allegations of the petition as well as evidence tending to sustain the defendants’ claim of contributory negligence, but under the familiar rule conflicting evidence can not be weighed on a demurrer; even material conflict between the testimony of a party in chief and on cross-examination must be left for the jury to settle. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Madden v. Stegman, 88 Kan. 29, 30, 127 Pac. 524; Green v. Fist, 89 Kan. 536, 540, 132 Pac. 179; Smith v. Schriver, 91 Kan. 582, 585, 138 Pac. 584; Machine Co. v. Roach, 91 Kan. 840, 842, 139 Pac. 430; Terry v. Gravel Co., 93 Kan. 125, 129, 143 Pac. 485.)
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
West, J.:
Augustus Fronkier, an Indian allottee, owned some land in Oklahoma which he and his wife mortgaged to the Hill Investment Company, she transacting the business and directing and receiving payment of the proceeds, $360 of which, instead of being paid over to her, was left as a credit with the company to cover a claim of that amount by the plaintiff,'Hoefer, on another mortgage against the land. At the same time Mrs. Fronkier assigned her interest in this $360 to her brother-in-law, William Kroenert, who notified the company. Later Hoefer procured an order for $336.70 of the $360 from the husband, which order was not honored. This action was on an Oklahoma judgment against Augustus Fronkier, and the company was garnished. The court found that the Hoefer mortgage was void because upon a homestead and unsigned by the wife, hence that the $360 belonged to the assignee of Jeanette Fronkier, William Kroenert. Hoefer appeals and contends that as Fronkier owned the land upon which the mortgage to the Hill Investment Company was made, and as there was nothing to show that Mrs. Fronkier was made his agent and she had already received more than one-half the fund, it was error to recognize her right to the $360 in dispute. But the testimony of the president of the company showed that the loan was negotiated by Mrs. Fronkier, which would indicate very strongly that she was by her husband permitted to manage the transaction, although the title to the land, the homestead of both, was in him.
The entry made by the company was to the effect that the $360 was left as a special credit to pay the mortgage to Hoefer, or to Mrs. Fronkier, when such mortgage should be released. That mortgage was subsequently found to be void, and this left no right in Hoefer to the fund but left it payable to Mrs. Fronkier, so far as the company was concerned, and there is no sufficient ground for requiring its payment to the subsequent order of the husband who had permitted the wife to transact the business with the company.
The evidence being sufficient to justify the court in the conclusion reached, the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On April 29, 1898, the Life and Annuity Association, an incorporated fraternal beneficiary society, issued a certificate to A. Bass, undertaking to insure his life for $2000 in consideration of the monthly payment of $2.10. The certificate provided that if payments were maintained for twenty years it should become paid up; that at any time after three years the holder might receive in lieu of it a paid-up certificate for as many twentieths of $2000 as he had completed yearly payments. On May 29, 1913, having kept up his payments to that time, Bass asked for a paid-up certificate for $1500. His request was not granted. He brought action against the association for damages, and recovered a judgment for $873, from which it appeals.
The plaintiff’s application for membership contained the same provisions as are set out in full in Moore v. Annuity Association, 95 Kan. 591, 148 Pac. 981, which upon the authority of that case rendered his contract subject to any changes that might be made in the by-laws or rules. On July 23, 1913, the association adopted a by-law requiring a'member who desired a paid-up certificate to pay a certain amount into the reserve fund. This amendment does not affect the rights of the plaintiff because they had already become fixed. When he made the request for a paid-up certificate it became the duty of the association (if he was then entitled to it) to issue it at once. It could not delay action and then impose a new condition upon the assertion of the right which had already accrued. (Hart v. Annuity Assoc., 86 Kan. 318, 120 Pac. 363.)
The defendant complains of a ruling rejecting its offer to show that in 1900 a by-law which provided for the issuance of a paid-up certificate at any time after three years was amended by inserting a condition as to the time and manner of making application therefor, and that in 1910 it was repealed altogether. No point is made with reference to the amendment, which was not pleaded, and which seems to be referred to merely as showing the history of the by-law. But it is urged that the repeal of the by-law cut off the plaintiff’s right to obtain a paid-up certificate, which was not restored until 1913, when the condition of an additional payment was attached. Conceding the power of the association to deprive the plaintiff of his right in this respect, a purpose to do so was not shown. The by-law on the subject was merely repealed. No affirmative action was taken indicating an intention to change the effect of any certificate already issued. No showing was offered of any conduct or circumstance suggesting such a design, and it is not readily to be inferred. (29 Cyc. 72; Note, Ann. Cas. 1913 C, 677.) The right of the plaintiff to a paid-up certificate was not based upon the existence of the by-law but upon the express terms of his contract. The matter was not referred to on the face of the certificate, but on the-back of that document were printed a number of statements regarding its conditions and effect. These constituted a part* of the contract. (25 Cyc. 744.) One of them purported to confer the right to a paid-up certificate, in the words of the by-law, but without reference to it. The plaintiff contends that by virtue of a rule in existence when he became a member no change could be made affecting his rights. This rule, designated as “law 52,” was not set out in any of the abstracts or briefs or otherwise called to the attention of the court in the Moore case. It concludes with the words: “No amendment made to these laws shall effect any certificate issued before said change is made.” The appellant’s abstract in the present case recites that an offer to show the repeal of such law was made and rejected, but this ruling is not open to review, for no evidence on the subject is shown to have been produced at the hearing of the motion for a new trial. (Civ. Code, § 307.) However, the argument based upon this law need not be considered, for we are persuaded that, assuming the existence of the power to cut off the right to a paid-up certificate, the mere repeal of the by-law on the subject did not have that effect.
The defendant maintains that if the plaintiff’s contentions are otherwise sound, his remedy lies solely in requiring the issuance of a paid-up certificate — ¡that an action for damages is not maintainable, because owing to the character of the association it has no funds from which a money judgment could be paid, and no machinery by which such fund could be provided. There are decisions which support that theory, but the weight of authority is to the contrary. (Fort v. Iowa Legion of Honor, 146 Iowa, 183, 199, 200, 123 N. W. 224.) The fact that the means have not been provided for enabling a corporation to respond to a money demand does not render it immune from liability. If the defendant in its corporate capacity perpetrates a wrong that imposes upon it a clear pecuniary obligation the character of its organization can not prevent a judgment being rendered thereon. In the present case another form of remedy happens to be possible, but that does not affect the question of jurisdiction. We conclude that the courts have authority to render a money j udgment in such circumstances. Whether it should be exercised here is a matter that will be considered later.
The defendant seeks to invoke the protection of a clause in the plaintiff’s certificate to the effect that no action shall be maintained upon it until the claim thereunder had been submitted and determined as provided by the laws of the association. A by-law provides that the board of directors shall require all claims to be presented in writing, and that no claims shall be paid until approved by them. No issue regarding this matter was presented by the answer, which denied all liability. It is therefore clear that the presentation of a written demand would have been fruitless, and its omission is not important, even if, as seems doubtful, the clause referred to was intended to apply in such a situation as that here presented.
Evidence was given that a paid-up policy for $1500 in an old-line life insurance company would have cost the plaintiff $873.03, and this obviously controlled the verdict, as shown by its amount — $873. The defendant complains of this basis of recovery, and we think with justice. The ordinary measure of damages for the wrongful refusal to issue a paid-up policy is said to be the cost of just such a policy as was stipulated for, in a .responsible company. (Life Insurance Co. v. Kelso, 16 Kan. 481.) Here there was no showing that the policy of an old-line company referred to by the witness was substantially equivalent to the plaintiff’s certificate, and of course that is not the fact. The usual old-line policy confers a number of privileges mot enjoyed by'the holder of a beneficiary certificate — for instance, that of turning it in at any time and receiving its surrender value in cash, or of getting a loan upon it. But more than that, the insurance policy is issued as a purely business contract, and is charged for on that basis, a presumably responsible concern undertaking to make stated payments under stated conditions. The literal keeping of the contract on its part is deemed to be almost certain., while the measure of' protection of a beneficiary certificate,issued by an association which can pay nothing except out of the contributions of its members, will be affected by a number of considerations, one of the most important being the good judgment with which its collections are adjusted to its prospective liabilities. Doubtless one party to a contract can not. ordinarily be heard to suggest his own inability to perform his agreement, in mitigation of damages for its breach. But a practical view must be taken of the present situation, and the question for determination is, What loss has the plaintiff actually suffered by the refusal of the defendant to issue him a paid-up certificate. If the problem is to be solved by determining what it would cost him to obtain a substitute, the substitute considered should be something of the same value as the thing denied him, not something of far greater worth. Evidence of the cost of an old-line policy may be of some utility in attempting to estimate the worth of a certificate in an assessment association, but it clearly can not determine it. The degree of probability of ultimate payment is an important factor. It is difficult to form a judgment on that subject, and still more difficult to give it expression in terms of dollars and cents. But doubtless in case of necessity some sort of reasonable estimate can be made as to the value of any particular insurance contract, taking all the circumstances into account.
Recurring to the question as to the form of plaintiff’s remedy, the ordinary rule is that where an insurance company violates its agreement to issue a paid-up policy the person aggrieved has the option to enforce specific performance or to exact compensation in damages, the choice lying with the innocent party, and not with the wrongdoer. (Life Insurance Co. v. Kelso, 16 Kan. 481.) But some modification of the rigor of this rule is permissible in the present case. The defendant is a cooperative association, having no capital stock, which made the mistake of writing certificates upon too liberal terms. In refusing to issue a paid-up certificate to the plain tiff it no doubt acted in good faith, and the grounds upon which its action was based are not wanting in plausibility. The plaintiff carried his certificate for fifteen years, and therefore had paid upon the basis of the original contract $378. If he had died during this time his beneficiary would presumably have been paid the full amount named — $2000. So that he has had the benefit of insurance for that period. If he were now to receive the amount of his judgment — $873—the transaction would be a most profitable one to him. If he were to be repaid the amount he has actually expended, with interest, less the value of the insurance he has had, he would be nothing out of pocket,, and would lose only the advantage he may be supposed to' have derived from having made a good bargain. He is entitled to require the association to perform the contract, so far as possible, however improvident its terms. But the defendant did not promise to pay the plaintiff $873, or any other sum. It undertook to give him a paid-up certificate, and if it were still to do that, he would have exactly what he bargained for. Such a certificate, if issued, might never be paid, but that is a possibility inherent in the nature of the original contract. The plaintiff has no superior equities over other members. He is in no respect a preferred creditor. In view of the character of the association, of the good faith of its conduct, and of the great difficulty of estimating the value of any paid-up certificate it might have issued, we think justice will be best subserved by giving it the opportunity to perform its. contract specifically.
The judgment is therefore modified and the cause remanded for these further proceedings: If within thirty days after the mandate is spread of record in'the district court the defendant shall issue to the plaintiff a paid-up certificate for $1500, and reimburse him for several payments which he has made since requesting it, the case to be disposed of by a judgment against the defendant for the costs; otherwise a new trial to be had upon the sole issue of the amount of the plaintiff’s damages, measured by the value of a paid-up certificate for $1500 issued by the defendant on the date of his request, judgment to be rendered for the plaintiff for the amount so determined.
The costs in this court will be divided equally between the parties. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff sued to recover damages for injuries sustained while a passenger in a street car. The jury returned a verdict for the defendant. Judgment was entered against plaintiff, from which he appeals.
The material facts Were found by the jury in answer to special questions submitted by the plaintiff as follows:
“1. Was plaintiff sitting in his seat at the time he got hurt? ' Answer: Yes.
“2. Was plaintiff hurt by being struck by an iron pole as he brushed something off the lapel of his coat with his handkerchief? Answer: Yes; by protruding his hand out window.
“3. Was this act of plaintiff done in an involuntary and casual way? Answer: Yes.
“4. Are these iron poles set three or four to the block? Answer: Four or five.
“5. While plaintiff may have traveled for years on the street railway, did he know at the time he got hurt the distance of any of these poles from the car he was riding on? Answer: Not exact.
“6. Before this injury, had he any occasion to know such distance? Answer: Did not.
“7. Was the act of plaintiff such an act as any ordinarily prudent man riding on a street car might have done, inadvertently and casually, without being guilty of negligence? Answer: No.
“8. Was'the window at. which the plaintiff sat a large window and without barrier, bar or screen to prevent passengers from inadvertently, casually or unthoughtedly protruding their hands or arms outside the body of the car? Answer: Yes.
“9. Could the defendant, by the use of reasonable care, have so barred, screened or protected the windows of its cars that such injuries as happened to plaintiff could have been wholly prevented? Answer: Yes, but not practical with the mode of transportation.”
Plaintiff’s cause of action was based on the alleged negligence of the defendant in maintaining its poles too close to passing cars, and in failing to provide barriers or screens on the car windows to protect passengers from injury. The answer alleged his contributory negligence.
Much of plaintiff’s brief is devoted to an argument that the findings are inconsistent with the verdict and with each other. In part, this is based on a misapprehension of the exact language of special finding No. 9. The finding is, that by the use of reasonable care the defendant could have so screened or barred the windows of its cars as to prevent such an injury, but that such a method was not a practical one in view of the mode of transportation. The plaintiff assumed in the preparation of his brief that the question submitted and answered by the jury read “usual care” instead of “reasonable care.” It is also claimed that there is inconsistency in the finding that plaintiff was injured while brushing off his coat in a “casual and involuntary way,” and the further finding that he was negligent. Negligence usually is the result of the involuntary, casual omission to do, or the casual and involuntary doing of some act. When a person steps in front of an automobile coming directly toward him in the street, his act is casual, that is, with no design to voluntarily place his life in danger. He acts without thought, carelessly and negligently, and the result is often a serious accident. Webster defines “casual” as “happening or coming to pass without design, and without being foreseen or expected; accidental; fortuitous; coming by chance.” Of course, if the plaintiff’s act in protruding his arm through the open window of the car was otherwise than accidental; if it was done voluntarily with thought of the probable consequences, he must have intentionally injured himself, or at least have been guilty of gross negligence.
We discover nothing inconsistent in the special findings. They establish that the proximate cause of plaintiff’s injury was his own negligence, and are therefore consistent with the general verdict.-
In Cummings v. Railroad Co., 68 Kan. 218, 74 Pac. 1104, a parallel case, a passenger on a street car by “casually and involuntarily” protruding his head from the open window of a car was struck by a trolley pole and injured. He was without knowledge of the close proximity of the pole to the car, and it was held not to be a question of law, but one of fact for the jury, whether he was guilty of contributory negligence. The same case was again before the court (Railroad Co. v. Cummings, 72 Kan. 694, 84 Pac. 121) and it was held that because the special findings showed that plaintiff’s contributory negligence was the proximate cause of his injury he could not recover, and judgment in defendant’s favor was therefore ordered. It was ruled in the opinion that the question of the negligence of the defendant in maintaining its poles too close to the track became of no importance in view of plaintiff’s own negligence. The same principle renders it unnecessary in the present case to consider the claims of the plaintiff respecting instructions relating to the alleged negligence of the defendant. The instructions, however, appear to be unobjectionable, and, in stating the law as to the duty which the carrier owes to passengers, the court followed the rules repeatedly declared in former decisions.
There remains one matter which requires comment. Error is predicated upon an alleged oral statement made to the jury by the court. Plaintiff asserts in his abstract and brief that during the argument of counsel for defendant the court made this statement to the jury: “I want you to pay particular attention to Mr. Doran’s argument,” and that, upon plaintiff’s objection, the court added the admonition to pay particular attention to the arguments of counsel for both plaintiff and defendant. The defendant challenges the assertion, and the record discloses nothing of such occurrence. The plaintiff mistakenly assumes that the matter is brought upon the record by his filing an affidavit here alleging the facts as he asserts they occurred, and that it then devolves upon this court to determine the disputed question of fact and make the record speak the truth.
Aside from the pleadings, entries of rulings and judgments, and the instructions, the record in an appeal from a district court consists of a transcript of the official stenographer’s “notes of the testimony and proceedings in the case or any such part” as appellant may designate. When such transcript has been made and filed with the clerk of the district court, it thereupon becomes “a part of the record in the cause, subject to amendment and correction by the trial court or judge.” (Civ. Code, § 574.) No authority is conferred upon this court to amend or correct the record, although it is given express authority to require any part of the record and any paper or document to be sent up by the clerk of the trial court. (Civ. Code, § 576.)
It is said, however, that when the statement was made the official stenographer was absent from the court room. In that situation it devolved upon plaintiff to take proper steps to have the proceedings made a part of the record, if he desired the matter reviewed in this court. If a dispute arose respecting the facts, he should have filed his affidavit or other proof in the district court, and allowed the other side an opportunity to meet it. The duty would have then rested upon the court to determine, from the evidence and the court’s knowledge of the matter, what the facts were, and to cause the record to recite them. It may be said, too, that it is as much the duty of the trial judge to assist a party in preserving a proper record of any oral statements made by the court in the progress of the trial, which the party in good faith claims the right to have reviewed, as it is to certify the court’s written instructions. We have no doubt that the learned trial judge would have done so in this instance if proper steps had been taken by counsel for plaintiff.
We find no error in the record, and the judgment is affirmed.
West, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
F. W. Winters brought this action against C. C. Bloom and R. H. Bloom to enjoin them from using a part of the wall of a building erected by his grantor. He appeals from the judgment of the court refusing the injunction.
Freeman Duncan was the owner of lots nine and eleven, First avenue west, in the city of Hutchinson, each of which was thirty-three feet in width. In 1887 Duncan built a two-story brick building upon the west twenty-five feet of lot eleven, and the east wall of the building projected from an inch and a half to two inches over on the east eight feet of the lot. In 1889 he sold the west twenty-five feet of the lot to a party to whose title plaintiff has succeeded, and in 1893 he conveyed the east eight feet of the lot to another whose title defendants have acquired. It was admitted that the parties stand in the same relation as though Freeman Duncan after erecting the building had conveyed the twenty-five feet to plaintiff and later the east eight feet of the lot to defendants. The court found that plaintiff and defendants had succeeded to just what Duncan sold separately, the' plaintiff being entitled to the west twenty-five feet and no more and the defendants to all of the east eight feet of the lot, and held, therefore, that plaintiff was not entitled to enjoin the defendants from using that part of the wall projecting over on their part of the lot..
On this appeal plaintiff contends that there was a particular location on the ground of the twenty-five-foot parcel first conveyed by Duncan by the erection of his building and that the boundaries so fixed are binding upon all subsequent grantees. There is little room for the application of the rule invoked, as the boundary between the parcels was not a matter of doubt. (4 A. & E. Encycl. of L.' 859.) There was nothing, indefinite nor uncertain in the description of the property in the deeds, nor any difficulty in finding the line of division fixed by these instruments. There was no more reason nor ground for dispute as to the quantity in the parcels conveyed than there was as to their boundaries. The quantity of ground was specifically designated in the deed, which called for the west twenty-five feet of lot eleven. No conflicting calls are found in the instrument nor anything to lead the grantee to infer that he was getting more than twenty-five feet of ground. Duncan was the common grantor of the two parcels, and it is contended that a location made by him on the ground should bind all parties deriving title from him, but there is nothing to indicate that he was conveying all the ground on which the building stood nor does the testimony show that he intended to make the east side of the building the boundary line between the parcels, and nothing to show that the purchaser of the twenty-five-foot parcel was to get any part of the eight-foot parcel. No qualifications, exceptions. or reservations were made in either deed and there is no testimony of any agreement or statement that the wall of the building should constitute a boundary between the two parcels. On the contrary there is testimony that after selling the twenty-five-foot parcel Duncan regarded the east wall of the building he had erected as a party wall and intended to use it in connection with a party wall on the east side of lot nine to enclose a proposed building on the forty-one feet still retained by him. Of course, if Duncan, the common grantor, had conveyed the adjoining parcels to plaintiff, and the defendants had established and pointed out to them the line of the building as the true line of division of the parcels and this had been agreed to by the parties, there would be good ground for the contention of plaintiff. (Tyler’s Law of Boundaries, Fences and Window Lights, p. 335.) The testimony, however, is not to that effect and does not warrant the inference for which plaintiff contends. It does not appear that there was any common understanding that the east side of the wall was the true line, and before the title to any part of the eight-foot parcel is lost by acquiescence there must have been knowledge of the facts on which to base it. (4 A. & E. Encycl. of L. 865.) There was no uncertainty, as we have seen, in the deed as to the line and no evidence of an intention to establish or agree to a boundary differing from that described in the deed. The trial court found an absence of proof that Duncan or any one else ever recognized any other line than one parallel with and twenty-five feet east of the west line of lot eleven, or that any one ever purchased the property with the idea that there was any other line than that named in the instrument of conveyance. The court also found that it did not appear whether the wall was built over on the eight-foot parcel by mistake or not. If it was done by mistake and possession was held under a misapprehension as to the true boundary it would not be adverse although it continued beyond the fifteen-year period. (Winn v. Abeles, 35 Kan. 85, 10 Pac. 443, 57 Am. Rep. 138; Swarz v. Ramala, 63 Kan. 633, 66 Pac. 649; Shanline v. Wiltsie, 70 Kan. 177, 78 Pac. 436; Scott v. Williams, 74 Kan. 448, 87 Pac. 550; Shanks v. Williams, 93 Kan. 573, 144 Pac. 1007.) If there had been an intention to make the east side of the wall the line of division and possession of ground beyond the true line had been taken and held under a claim of ownership the pos session might have been deemed adverse. (Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836.) But, it appears, there was no agreement that that line should be regarded as the line, no claim by the owner of the twenty-five-foot parcel of ground beyond the line described in the deed, and no conscious acquiescence in any other boundary. It has been said:
“Where there is an agreement or acquiescence in a wrong boundary, when the true boundary can be ascertained from the deed, it is treated both in law and equity as a mistake, and neither party is estopped from claiming to the true line.” (Hartung v. Witte, 59 Wis. 285, 299, 18 N. W. 175.)
In no view of the evidence can it be held that the plaintiff is entitled to more ground than is definitely described in the conveyance under which he holds.
The court rightly refused the injunction asked for and its judgment is affirmed. | [
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Allen, J.
This action was instituted by Florence M. Showalter against the Southern Kansas Railway Company and the Wichita and Western Railway Company to recover damages for the appropriation of a strip of ground 20 feet wide and 150 feet long lying immediately south of the center line of what had been First Street in the city of Wellington. The plaintiff owned the west half of Block No. 2, in Myer’s Addition to the city of Wellington, which was bounded on the north by First Street. The Southern Kansas Railway Company owned the lots in Block 95 in the original town-site of Wellington, fronting on First Street, immediately north from the plaintiff’s lots. The town-site of Wellington was laid off on public land, and conveyed to the Probate Judge of Sumner County as a town-site under the laws of the United States, the south line of First Street being the south line of the town-site. Myer’s Addition, in which the plaintiff’s property was included, was afterward platted with the south line of First Street as the northern boundary thereof. Subsequently, First Street was vacated by an ordinance of the city, the validity of which is not questioned by either party.
The principal contention in the case is as to the title to the vacated street. The plaintiff claims that one-half of it accrued and attached to her lots. The defendant claims that the title to the whole ownership of the adjacent lots on the north, and because the whole street ivas taken from the original town-site of Wellington. The first trial of the case resulted in a judgment for the defendant. On proceedings in error, the judgment was reversed by this Court, and the case remanded for a new trial, Showalter v. S. K. Rly. Co., 49 Kan. 421. It was then held that under the proviso in paragraph 811 of the General Statutes of 1889, which reads :
"That, whenever any street, avenue, alley or lane shall be vacated, the same shall revert to the owners of real estate thereto adjacent on each side, in pro portion to the frontage of such real estate, except in cases where such street, avenue, alley or lane shall have been taken or appropriated to public use in a different £>roportion, in which case it shall revert to adjacent lots of real estate in proportion as it was taken from them,”
each of the adjacent lot owners took one-half of the vacated street, and that the plaintiff became the owner of the strip of ground in controversy. Counsel for the plaintiffs in error challenge the correctness of this decision, and earnestly insist on a re-examination of the question. The opinion in the case was prepared by Simpson, C., and contains the following language:
‘ ‘ The view we take is strengthened by the language of the provision that seems to require that a street or alley to fall within its operation must have been taken and appropriated to public use. These words convey to the mind the idea that the street or alley must have been the product of the exercise of the right of •eminent domain, rather than the ordinary act of dedication of streets or alleys by the original town-site proprietors.”
The view that there can be an unequal division of the vacated street only when it has been taken by the exercise of the right of eminent domain, is vigorously combated by counsel, and if this case turned on the correctness of this expression in the former opinion, it may be that we should find great difficulty in adhering to that position ; for it is very difficult to understand why an owner who has voluntarily dedicated a part of a lot to public use, should not be as well entitled to a reversion of it, when the public use is renounced, as one who has been forced to yield a similar part of his property by the exercise of the right of eminent domain; and the payment to him of damages therefor. This is not the pivotal question in this case,, however, nor are we sure that it had controlling influence with the Court in rendering its former decision. The language of the proviso relied on by the-plaintiffs in error is, that the vacated street “shall revert to adjacent lots of real estate in proportion as-it was taken from them.” First Street was never taken from the defendant’s lots. Lots 32 and 13,. which are bounded on First Street, never extended across or included any part of First Street until after the vacation. First Street was never taken from any lots. In platting the original town-site, First Street-was taken from the south side of the whole quarter-section, and the defendant’s lots were taken from the land adjoining. It would be as apt an expression to say that lots 12 and 13 were taken from First Street, as that First Street was taken from the lots. Each was included within the original tract-covered by the town site. The title to the street, by virtue of its dedication to public use, passed from the United States to the county. The title to the lots passed from the same source of title to the Railway Company. The title to the land covered by Myer’s Addition must also ha,ve been derived from the common source of title,— the government of the United States; though at what date the title of the government was divested we are not informed, nor do we deem it material. "While First Street was taken from the half-section covered by the town site, it cannot-fairly be said that it was taken from any lot, nor was-any one lot as originally platted diminished in size, by reason of the streets, more than another ; nor, indeed,, can it be said that any lot was of less size than it-would have been had First Street never been laid off, for more lots might have been made from it. This case, then, is one where a street, not taken from any particular adjacent tract but the full title to which passed directly from the Government of the United States to the county for public use, has been vacated, and the owners of adjacent lots have been by such vacation deprived of the advantages of a street. The mere fact that a section line chanced to correspond with the south side of the street, has little bearing on the question under consideration. People buying and improving city property usually buy with reference to streets and alleys which are visible, and directly affect the value of the property, and pay little or no heed to section lines. First Street, before its vacation, was open and available to the plaintiff for use in connection with her property. On its vacation, the title to one-half of it vested in the plaintiff, and the other half in the defendant, as the owners of the adjacent lots on each side ; the land not having been taken and appropriated to public use from the lots on either side.
Various questions on the admission of testimony, the instructions to the jury, and the measure of damages, are discussed in the brief. We have examined all of them, but find no substantial error in any of these particulars ;n or any question requiring discussion in the opinion.
One other matter remains to be considered. The jury rendered the following verdict:
“We, the jury, impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess the value of that part of the plaintiff’s property taken and appropriated by the defendants at the time it was taken and the damage ® resulting to her remaining property, described in her petition, by reason of the appropriation thereof, exclusive of interest, at the aggregate sum of $3,100.”
On this verdict the Court rendered judgment for $4,374, having added $1,274 for interest. This was. erroneous. Section 288 of the Code of Civil Procedure provides: “When, by the verdict, either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery.” Under this it has been held that interest must be computed by the jury and included in the verdict (Ed’l Ass’n v. Hitchcock, 4 Kan. 36; Wilson v. Means, 25 id. 83), or, as held in the cases of Citizens’ Bank v. Bowen, 25 Kan. 117, and Mills v. Mills, 39 id. 455, such data must be given in the verdict as will enable the court to make the computation from the verdict alone ; otherwise, no interest can be included in the judgment.
The judgment will be modified by striking out the interest, and the District Court is directed to enter judgment on the verdict, as of the day of its rendition, for $3,100, to bear interest at the rate of six per cent, from that time. The judgment so modified will stand affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding brought to reverse a judgment for $3,400.58, obtained by J. O. Blevins against J. M. Roberson and T. J. Roberson, partners as J. M. Roberson & Son, R. A. Yan Winkle, G. W. Roberson, Henry Schiffbauer, and J. L. Miller, administrator of the estate of G. W. Bowser, deceased. The action was based upon a promissory note for $2,000, dated February 8, 1883, in favor of William Blevins, who died intéstate on February 26, 1886. It. was due one year after date, and bore interest at the-rate of 12 per cent, per annum; and it is alleged that-it was executed by the judgment debtors above named.. Default was made in the payment of the note, and! after the death of William Blevins it was transferred to and taken by his son, J. G. Blevins, as his distributive share of his father’s estate. He began an action upon the note upon April 11, 1888, which remained pending until February 28,, 1889, when it was dismissed without prejudice to a future action. On February 10, 1890, upon application to the probate court, an order was made ratifying and confirming the transfer of the note by the administratrix of the estate to J. C. Blevins, and afterward, on February 20, 1890, this action was brought against the makers of the note and also the widow, Martha Blevins, who was the administratrix of the estate of William Blevins, and the children other than J. C. Blevins; and, as against them, it was asked that they be compelled to come into court and set up any interest or claim they had in the note.
The widow, administratrix, and children filed an answer disclaiming any interest in the note, alleging that the estate of William Blevins, deceased, had been finally settled, and the administratrix discharged. No defense was made by J. M. Roberson & Son, who were the principals upon the note; but the sureties defended, alleging that J. C. Blevins was not the real party in interest; that the note was signed in blank at the request of J. M. Roberson, with the understanding that the amount to be obtained upon it should not exceed $600 or $700 ; and that afterward it was filled out without authority for $2,000, with full knowledge on the part of William Blevins and his agent, J. C. Blevins, that the amount to be written in the note should not exceed $700. Another defense was that on April 14, 1886, J. M. Roberson, one of the principals upon the note, without the knowledge •or consent of the sureties, entered into a valid contract with Martha Blevins, administratrix of the ■estate of William Blevins, who was then the holder •of the note, whereby she agreed with Roberson to ex tend the time of payment of the note until August 28, 1886, and that the extension was based upon the consideration that the note was secured by J. M. Roberson giving a mortgage on a large tract of land in Atchison county. After the action was brought G. W. Bowser died, and his administrator appeared in his behalf, and set up the additional defense that G. W. Bowser never signed or executed the note, or authorized anyone to execute it for him.
On the trial of the case the jury found that J. M. Roberson & Son obtained $2,000 upon the note, and that the other parties whose names were attached to it signed the same as sureties and obtained no part of the money. It was further found that J. C. Blevins, who acted for his father in making the loan, was told by J. M. Roberson that he desired to borrow $2,000 upon the note, and that J. C. Blevins had no knowledge of any understanding between Roberson and the sureties that a less sum was to be obtained upon it. Some .contention was made that G. W. Bowser never executed the note, but we think the proof is sufficient to sustain the contrary finding of the jury. The proof is amply sufficient upon the question that the note was taken in good faith and without any knowledge of a limitation upon the authority of Roberson to insert the sum of $2,000 therein. A surety who signs a note blank as to date, amount, and payee, and intrusts it to the principal, who fills x out the blanks, and for a larger sum than the surety understood was to be inserted, and then delivers it to the payee, who takes it without notice, will generally be held liable for the note as the payee took it. (Joseph v. National Bank, 17 Kan. 256; Lowden v. National Bank, 38 id. 533; Carter v. Moulton, 51 id. 9; Rose v. Douglass Township, 52 id. 451; Brandt, Suretyship, § 410.)
The principal defense in the case, however-, was that the sureties upon the note were discharged from all liability by the extension of the time of payment of the note from April 14, 1886, to August 28, 1886. At the time the mortgage was given, the not® was more than two years past .due, and the holder was pressing for payment. J. C. Blevins, who was acting for the administratrix of the estate of William Blevins, deceased, presented a mortgage already prepared for signing, in which it was stated that it was taken as additional security of the note in question, and it contained the following provision :
“Now, if said party of the first part shall pay or cause to be paid to said party of the second part, her heirs or assigns, said sum of money in.the above-described note mentioned, together with interest thereon, on or before 28th of August, 1886, then'these presents shall be wholly discharged and void, and otherwise shall remain in full force and effect; but if said sum or sums of money, or any part thereof or any interest thereon, is not paid on or before August 28, 1886, . . . the whole of said sum or sums and interest thereon shall, and by these presents, become due and payable, and said party of the second part shall be entitled to the possession of said premises.”
In addition to that there is the testimony of J. M. Roberson, which tends to show that the understanding between Blevins and himself was that the time of payment of the note was extended from April to August; that Blevins pointed out to him the extension in the mortgage, and informed him that, if he did not sign the mortgage, his mother, who was administratrix of the estate, would bring an action at once. A part of his testimony is somewhat inconsistent with this view, but, all together, tends to show that the understanding was that the giving of the mortgage would operate as an extension of the time of payment of the note. There is testimony that the sureties did not know of or consent to the extension of the time of payment, if extension it can be called ; but the court refused to submit to the jury whether an extension of the time of payment had been made, and whether there had been a release of the sureties by reason of such extension. On the contrary that matter was taken wholly from the jury by an instruction to the effect that no agreement to extend the time of payment had been made which would exonerate the sureties from liability upon the note.
It is well settled that if the creditor, without the knowledge and consent of the surety, makes a valid agreement with the principal extending the time of payment for a definite period, the surety will be discharged. The giving of the real-estate mortgage by Roberson is a sufficient consideration for an agreement to extend the time of payment; but whether such an agreement was made is a question of some doubt and difficulty. The mere fact that the creditor takes a collateral security maturing at a later date than the debt for which the surety is liable is not necessarily to be regarded as an extension of the time of payment. The. mortgage itself does not in express terms postpone the payment of the debt. It is not necessary, however, that the agreement to give time to the principal should be in writing or stated in any set phrase, in order to discharge the sureties. It may result from a parol agreement, and generally it will be sufficient to show a state of facts that clearly implies such an agreement. It is true the mortgage in question cannot be enforced, until the end of the period named, therein, but some of its stipulations give color to the claim that it was the intention to tie the creditor’s hands, and suspend all remedies upon the note until August 28, 1886. The provisions of the mortgage in this respect are not clear, and the implications to be drawn from them may be affected by the parol proof as to the agreement for extension of time when the mortgage was made. The action being upon a past-due note, parol evidence of an agreement to postpone the time of payment does not vary or contradict the terms of the note, and is admissible. Whether a valid agreement for the extension of time was made is to be determined not alone from the provisions of the mortgage, which is only some evidence of what the understanding or agreement of the parties was. The language of the mortgage should be taken in connection with the words and deeds of the parties when the mortgage was executed, and at the time it is claimed that the agreement was made. All of this testimony should have been submitted to the jury, whose province it was to determine this question of fact.
The statutory limitation invoked by the plaintiffs in error does not, in our view, bar the action, nor do we think that any of the other errors assigned by them can be sustained.
The question of jurisdiction of the court was raised upon the ground of absence of parties ; but those parties, having disclaimed any interest, are not interested in the proceeding, and are not necessary to a review of the case.
For the errors mentioned, the judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
William Scully owned a farm in Butler County which he leased in 1887 to J. N. Bledsoe, who remained in the possession of the same under the lease until 1890.. During the season of 1889 Bledsoe raised a large crop of corn which was cribbed upon the leased land. The stipulated rental for that year was $310, together with any taxes levied upon the premises, no part of which had been paid when the present controversy arose. While the corn was yet cribbed upon the premises, about January 20, 1890, J. H. Porter attempted to purchase the corn from Bledsoe, and a few days later paid the greater part of the purchase j)rice. On January 31, 1890, Porter took from Bledsoe a chattel mortgage on the corn to secure the payment of the money advanced on the purchase. On February 4, 1890, Scully brought an action against Bledsoe to recover the rent due, and to enforce the lien he caused an attachment to be levied on the corn in the cribs on the leased premises. On February 7, 1890, Porter, claiming to be the owner of the corn, brought this action in replevin and obtained possession of the same from the attaching officer. William Scully was substituted for the officer and made a party defendant in the action; and the trial subsequently had resulted in a judgment against him, which was affirmed by the Court'of Appeals.
There is little dispute about the material facts in the case ; and practically the only important question arising upon them is whether a person can purchase from the tenant a crop grown and yet remaining-upon the leased premises, free from the üen of the landlord) where the rental for the year in which the crops were grown is still due- and unpaid. That the relation of landlord and tenant existed between Scully and Bledsoe is beyond dispute ; and there can be no question that the rent for the year 1889, when the crop was grown, was due and unpaid. The crop was still upon the leased land, and the value of the same did not exceed the amount of rent due for the year 1889. Under these circumstances Scully had a lien upon the corn, which continued until the rent was paid, or until the lien was waived, relinquished, lost, or otherwise divested. In section 24 of the act relating to landlords and tenants it is provided that “Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action, and attachment therein, as hereinafter provided.” ¶8633, Gen. Stat. 1889. In section 28 (¶3637, Gen. Stat. 1889,) of the same act provision is made for the enforcement of a lien on crops for rent of farming lands by attachment proceedings. The lien, however, exists by force of the statute, independently of the levy of an attachment; and so long as the crops remain upon the premises i the lien will prevail over the claim of a purchaser. No writing is required to give force to the lien, nor is the filing or recording of the contract of lease a . prerequisite to the creation of a lien. Many of the leases, being for a term of one year or less and not in writing, cannot be filed or recorded in a public office; and this indicates plainly enough that the Legislature did not regard record notice essential to the existence of a landlord’s lien. No statutory provision with reference to notice is made except in section 26 (¶3635, Gen. Stat. 1889), which authorizes an'action for conversion against the -purchaser of a crop to the' extent of the rent due and damages as well. This is a somewhat severe remedy, and hence it can only be employed where the purchaser had some notice of the lien. The action of Scully was brought to enforce the lien against the •property upon the leased premises, and not to charge the purchaser for its conversion. That provision, however, does not apply where the property is in the possession of the tenant of the leased premises. Had the property been removed by the tenant and sold on the market, other and different questions would arise with respect to notice than we have here. So long as the property remains upon the leased premises it affords notice to all who deal with the tenant, and there is little risk of the loss of the lien. This appears to have been the view of the Legislature; for in section 27 (¶3636, Gen. Stat. 1889) of the act provision is made that where the crop is being removed or there is an intention to remove it from the leased premises, the landlord may cause it to be seized upon attachment, whether the rent be then due or not, if it be due within one year thereafter. It is the policy of the law to protect and facilitate bona fide sales of personal property in the open market, where they are made without notice of liens; but a person who purchases a crop which is in the possession of the tenant of the leased premises can hardly be called a bona fide purchaser. Porter knew, or should have known, that the land was rented ; and as he is presumed to know the law, he is charged with knowledge that the landlord has a lien upon the crops for the unpaid rent. Aside from the notice afforded by the record that Scully owned the land, he appears to have had actual knowledge, for in the" chattel mortgage taken by him from Bledsoe the corn mortgaged is described as “2,600 bushels of corn in the crib on the farm now occupied by J. N. Bledsoe and known as the Scully land.” He may not have had actual knowledge that the rent was unpaid, but he had notice sufficient to put him upon inquiry, and an inquiry would have disclosed that the rent for the year 1889 was still due and unpaid. It is generally held that a notice sufficient to put a purchaser upon inquiry binds him to a knowledge of whatever the inquiry would have disclosed. The statutory lien given to the landlord is paramount to the rights of any one who purchases from the tenant a crop which is yet upon the leased premises.
The case was tried and submitted to the jury upon a different view of the law ; and the judgment must, therefore, be reversed and the cause remanded for a new trial in accordance with the views herein expressed.
All the Justices concurring. | [
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Allen, J.
The defendant was charged by information with having stolen the property of John E. Osborn, consisting of certain money therein described and a promissory note for $150, from the person of said Osborn, by violence to his person and by putting him in fear of immediate injury, with intent to rob him. The verdict rendered finds the defendant guilty as charged in the information, without specifying any degree of the offense. Objection was made to pronouncing sentence on this verdict, for the reason that it did not specify the degree of the offense of which the jury found him guilty. The objection was well taken. The verdict was insufficient to support a judgment. The State v. Scarlett, ante, p. 252.
As this requires a reversal we deem it unnecessary to enter into a discussion of the many questions raised by counsel. We will say, however, that the information, in charging robbery also charges larceny and larceny from the person ; and, under it, a conviction might be had of either offense. The instructions were to the effect that the jury must either convict of robbery or acquit. This was altogether erroneous ; as the defendant might properly be convicted of any offense'included within the principal charge of robbery as stated in the information.
The judgment is reversed, and a new nial ordered.
All the Justices concurring. | [
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Allen, J.
The plaintiff in error brought suit against the Mortgage Company, alleging in his petition that he had been employed by the defendant as an agent to effect loans in Barber and other counties of this State, setting up circumstantially the terms of the agreement and the violation thereof by the defendant, and asking damages in the sum of $50,000. For a second cause of action the petition alleges that tlie defendant was indebted to the plaintiff in the sum of $3,534.62 for attorney’s fees, the items of which were set out in an exhibit attached to the petition, and also in the further sum of $3,865.16 for unpaid commissions, as set forth in Exhibit B :
“That upon the 24th day of February, 1890, when the plaintiff ceased doing business for the defendant, as aforesaid, there remained in his hands of the moneys of the defendant which had come to him from various sources, for the purpose of investing in loans for the defendant, paying his expenses and commissions and other charges, the sum of $3,854.09, which, under and by the terms of said contract and agreement, he retained and applied to the payment of unpaid commissions due him as herein aforesaid and for legal services and other charges, for which said amount of $3,854.09 defendant is entitled to a credit upon the items of unpaid .commissions due plaintiff from defendant, as set forth and stated in Exhibit B, hereinbefore referred to.”
The defendant filed a very long answer, the averments of which have no bearing on the questions presented here, concluding with a prayer for judgment for $3,854.09, and the further sum of $100,000, for an accounting and other relief. After this answer was filed the defendant filed a motion, which reads as follows :
“ Comes now the defendant, and respectfully moves the court that the plaintiff be required to pay into court the sum of $3,854.09, the same being the money mentioned in the pleadings, on behalf of the plaintiff in the within action, the title to which, on the plaintiff’s own showing, is in the defendant.”
This motion was sustained, and the plaintiff was required to pay the amount into court within 10 days. Having failed to comply with the order, the plaintiff was cited to appear before the Court to answer as for a contempt, and, at the time fixed, he was adjudged to be guilty of contempt of court, and ordered to be committed to the jail of Barber County until he should comply with the order to pay said money into court. The case then came on for trial. The plaintiff’s attorneys demanded a jury. The defendant objected to the plain tiff-appearing further in the action, for the reason that he was in contempt of court because of his failure to comply with the order to pay the money into court. The plaintiff was denied all right to participate in the trial, and a judgment was rendered against him for $3,854.09 and costs. Complaint is made of all these rulings of the Court.
The order requiring the plaintiff to pay money into court was not -warranted by the statements in the petition. There was no admission that any balance was due from him to the defendant. On the contrary, the facts stated by him showed a balance of over $3,500, still owing from the defendant to the plaintiff, after application of the moneys he admitted having received to the payment of his charges. It was error to hold that his refusal to pay was a contempt of the Court. Orders for the payment of money, except in cases of fraud, cannot be enforced by committing the person of the debtor to jail, and the order of the Court punishing the defendant as for a contempt was altogether unwarranted and erroneous. It was also manifest error to refuse the plaintiff a right to be heard at the trial.
The judgment and all the orders of the Court above mentioned are reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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Allen, J.
Although there are 11 assignments of error it is only necessary to consider the last one, as that compels a reversal of the judgment. Section 239 of the Code of Criminal Procedure reads as follows :
“Upon the trial of any indictment or information for any offense, where by law there may be conviction of different degrees of such offense, the jury, if they convict the defendant, shall specify in their verdict of what degree of the offense they find the defendant guilty.”
The second count of the information was drawn under section 42 of the Act Regulating Grimes and. Punishments, and while somewhat defective in form is, as against a motion in arrest of judgment, sufficient to sustain a conviction. This count necessarily includes not only the offense defined by section 42, but also assault and battery and simple assault.
The verdict fails to specify the degree of the offense of which the jury convicted the defendant. Are assault and battery and simple assault inferior degrees of the offense charged? That they are necessarily included within the charge, and that a conviction may be had of either assault and battery or simple assault under this count of the information, is beyond question. It is not so clear, however, that they are different degrees of the offense within the meaning-of section 239 of the Code of Criminal Procedure> The writer is of the opinion that they are not, and that the verdict in this case amounts to a conviction of the offense defined in section 42, there-being but one degree of that offense ; and that section 239 of the Code only imperatively requires a specification of the degree of the offense where, under the-statute., there are different degrees of an offense named; as of murder, manslaughter, burglary, arson,, robbery, and other offenses divided into degrees. The majority of the Court, however, hold that every offense included within a criminal charge is to be-treated as a degree of the major offense ; and that the-j ury must specify in their verdict the degree of which they find the defendant guilty. In the cases hereto fore decided by this Court, all inferior offenses necessarily included within the charge have been generally treated as different degrees of one crime. Guy v. The State of Kansas, 1 Kan. 448; The State v. Reddick, 7 id. 143; The State v. Huber, 8 id. 447; The State v. O’Kane,. 23 id. 244; The State v. Burwell, 34 id. 312. As tending to support the contrary rule, see the following-cases : The State v. Adams, 20 Kan. 311; The State v. Jennings, 24 id. 642; The State v. Treadwell, 54 id. 513.
¥e find no substantial error in any of the other proceedings of the Court, but, for the refusal to grant a new trial on account of the defective form of the verdict, the judgment must be reversed, and a new trial ordered.
Martin, C. J., and Johnston, J., concurring.
Allen, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, J.:
By the first count of the petition, the plaintiff seeks to recover the unearned portion of the commission paid by it to its agents, and no reason is seen why the facts alleged do not warrant a recovery. The amount of the commission which the agents should receive was fixed by the contract, and no commission was to be paid on any sales made by the agents to irresponsible parties, nor where the debts for which machinery was sold were uncollectible. The plaintiff alleges that certain machinery was sold to certain parties on credit, for $1,765, and that the total amount which the plaintiff had been able to collect from the parties and upon the security which had been given by them was $527.59. The commission on the amount for which the machinery was sold was $300.05, while the commission upon the amount collected was only $89.69. It is alleged that the plaintiff was unable to collect any more than $527.59, for the reason that the debtors were and are insolvent. Under the contract, no commissions were due or payable for that part of the selling price which could not be collected, and as $1,237.41 of the selling price of the machinery in question was uncollectible, no commission was earned thereon, and the defendants had no right to retain the commission on that amount. It is true that another provision of the contract provided that the defendants should receive commissions out of cash payments only, but that is coupled with the further provision that the agents should retain commissions only on such payments as should be made.
It is contended by the defendants that, as the plaintiff had advanced the commission before the payments were made, it departed from the contract, and cannot now recover such commission back. This is met by the allegation that the defendants represented to the plaintiff that the notes were good and would be paid at maturity, and, relying upon their statements, the plaintiff paid the commission in full. From the petition, it does not appear that any new contract was made between, the parties, but that the commissions were advanced upon the schedule of rates fixed by the written contract, and upon the representation and assumption that the sales had been made to responsible parties, and that the paper would be paid at maturity. The fact that the commissions were advanced to or retained by the defendants before it was developed that their representations were untrue, or that a portion of the debt could not be collected, gives them no right to retain the unearned portion of the commission. According to the averments of the petition, it was agreed that they should not receive or retain a greater sum as commission than 17 per cent, of the amount which was or could be collected on the sales made; and it was further provided, that they would reimburse the plaintiff for any losses resulting from any deviation from their agreement. As the commissions were advanced upon the representation of the defendants that the notes taken by them were good and collectible, the advance of commission can hardly be treated as a voluntary payment. The allegations of the petition are not as full and definite as they should be, but, assuming that the facts alleged are true, as we must, we think they are sufficient to show that the plaintiff is entitled to -. . . recover the difference between the commission which was paid and the amount actually earned by the defendants. It is contended that the action sounds in tort, and is therefore barred by the two-years statute of limitations. From what has been stated, it is clear that the action arises on contract, and does not fall within that limitation.
The allegations of the second count are set out at length in the statement, and from it and the exhibits it appears that the defendants agreed to take orders for machinery and for ward the same to the plaintiff for approval. Blanks were to be furnished for that purpose, and in connection with each order they were to take and forward a statement of the financial ability of the purchasers to meet their obligations. These statements were to be invariably filled out where sales were made on credit, and no orders were to be forwarded to the plaintiff for approval until the agents had thoroughly convinced themselves that the statements of property were based on a fair valuation; and they were required, either by examination of the records or by making full inquiry of residents in the locality of the intended purchaser, or by other means, to ascertain and assure themselves as to the correctness of the statement made. It was further provided, that the notes taken should be from parties of well-known responsibility and good reputation for veracity and prompt payment of debts. Now, it is alleged that the parties to whom the sale was made in this instance were insolvent. One of them, Jonathan Anderson, made a property statement that he owned a certain quarter section of land worth $2,000, free from all incumbrances, except $500, and that he owned $2,000 worth of personal property over and above his indebtedness. It is averred that at that time Anderson had no land, and that his statement of his property and his ability to pay, taken by the defendants and forwarded to the plaintiff, was wholly untrue. It is then averred that the defendants never made inquiry as to the truth of the statement which they had taken and forwarded, and never made any examination of the record, as the contract required. These averments, fairly interpreted, show a liability of defendants for the losses occasioned by their noncompliance with the contract and their neglect.
The law requires fidelity and reasonable care and diligence on the part of agents in the transaction of business for their principals. In the absence of any specific provisions as to the care of agents in ascertaining the responsibility of persons to whom sales were made on credit, they would be held to a careful examination of the credit of a proposed purchaser and to the exercise of reasonable care in ascertaining from the usual sources of information as to his ability to meet payments when they were to be made. In this case care and diligence were especially enjoined upon the agents, and while they did not become guarantors of the responsibility of the persons to whom sales were made, they bound themselves to a high degree of care and diligence in ascertaining the financial standing and ability of the persons from whom orders were taken. The property statement made by the proposed purchaser was treated as an important feature of a proposal to purchase machinery. It was to be invariably filled out and forwarded with the order. The agents were required to thoroughly convince themselves that the valuation put upon the property by the proposed purchaser was fair, and either by examination of the record or full inquiry of residents in the locality of the intended purchaser, or by other means, they were to assure themselves of the correctness of the statement made. The statement thus made, and attested and' sanctioned by the agents, was made the basis upon which the principal determined whether a sale should be made. It is averred that the plaintiff relied upon the performance of these duties by the agents, and if they failed to exercise the care and diligence required of them they are liable to the plaintiff for the loss sustained by reason of their neglect. It is said by the defendants that ample security was taken, upon which the plaintiff relied, and that the loss was occasioned by its own neglect. These are matters to be set up in an answer, and which do not appear from the allegations of the petition. Taking the facts alleged in the petition to be true, we think it stated a cause of action against the defendants, and that the general demurrer should have been overruled.
The judgment of the district court will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 14th day of February, 1889, Mrs. S. A. Everhart commenced her action against Thomas Don aldson and E. A. Munch, to set aside and cancel a note of $5,000, dated June 7, 1888, and a mortgage to secure the same, of the same date, on lot 2, in block 7, in Pitzer’s addition to the city of Pratt, executed by Mrs. S. A. Everhart and her husband, J. T. Everhart, to Thomas Donaldson, of Waterbury, Conn. It was filed for record on the same day of its execution, but at the time of the commencement of the action the note and mortgage were in the. hands of E. A. Munch, in Pratt county, for Thomas Donaldson, who resided in Connecticut. Mrs. Everhart alleged in her petition that the note for $5,000, and the mortgage given to secure it, were executed in consideration of a promise by Donaldson that he would advance to her husband, J. T. Everhart, $5,000, to be used by him in the loan business in which he and Donaldson had been engaged for a long, time prior thereto; that Donaldson wholly failed to perform his agreement upon his part, and, therefore, that there was no consideration for the note and mortgage. The defendants in their answer admitted the execution of the mortgage of the 7th of June, 1888; that it was duly recorded, but made a general denial as to all the other allegations contained in the petition. Mrs. Everhart on her part testified:
“Well, Mr. Everhart and Mr. Donaldson came up to dinner and brought the mortgage with them to sign, and Mr. Donaldson said he had brought out $5,000 with him for Mr. Everhart to use, and continue in the loan business as heretofore. If he would do this, (give him the note and mortgage for $5,000,) he would feel safe, and continue in the business. I told him that Mr. Everhart and I had talked it over, and I had at first refused, because I could not or did not want to give a mortgage on my home; but finally we concluded, as times were a little hard, and the $5,000 would help him greatly in carrying those people (persons to whom Everhart had made loans for the benefit of Donaldson) longer, and he would not have to take the mortgaged property and sell it — we talked it over in that way, and if he (Donaldson) would give him the $5,000 to loan, I would give a $5,000 mortgage.”
Mrs. Everhart testified, upon cross-examination, that—
“ Ques. You say you had some conversation about this mortgage, and your husband made arrangements with Mr. Donaldson with regard to executing it; did he do this before or after he came up to the house? Ans. They had talked the matter over.
“Q. Did Mr. Everhart act for you in the talk and conversation in reference to this mortgage?- A. No.
“Q. Did he have any interest in the property? A. No; it was my own.”
Miss Lulu Everhart testified as follows:
“Ques. What relation are you to the plaintiff in this action? Ans. The daughter.
“ Q,. Are you acquainted with the defendant, Thomas Donaldson? A. I am.
“Q,. Did you ever hear the defendant, Thomas Donaldson, say anything with reference to the $5,000? A. I have.
“Q,. Do you remember now what he said? A. Yes, sir.
“ Q,. You may state to the court what you heard him say. A. A day or so after Mr. Donaldson came, I was at the office helping papa and Mr. Donaldson fix up the notes. After they had gone over them, Mr. Donaldson says: ‘ Everything seems to be all right, and I have brought out $5,000 which I will let you have if you will give me a mortgage on your home, and we will continue in the business as heretofore, and I will feel safe in the matter.’ ”
Thomas Donaldson testified among other things, as follows :
“Ques. I will ask you to state whether or not you have advanced to J. T. Everhart any money since the 7th day of June, 1888? A. No, sir.
“Q,. Are you the owner at this time of the $5,000 mortgage executed and delivered to you by Mrs. Everhart and husband, together with a note, in June last? A. Yes, sir.
“Q. You may state, Mr. Donaldson, if you ever had any conversation with Mrs. Everhart with regard to this mortgage. A. I never did, sir; not one word.
“ Q,. Did you ever have any conversation prior to the time the mortgage was executed to you? A. No, sir.
“Q,. Since that time? A. Not a word.
“Q,. I will ask you to state, Mr. Donaldson, whether or not, at the time this mortgage was executed to you, you knew this property was in her [Mrs. Everhart’s] name? A. Not until Mr. Everhart told me at that time.
“Q. When did you arrive here in Pratt in 1888? A. I think it was Thursday, the 24th (of May).
“Q,. What time did you arrive here on Thursday, the 24th? A. At 9 o’clock.
“Q. Wasn’t it a fact you did bring $5,000 with you? A. Yes, sir.
“Q. What for? A. If the business looked as it should, I fetched it out here to loan on short time.
“ Q. Who was to loan it? A. Mr. Everhart.
“Q. You brought it for that purpose? A. Yes.
“Q,. When did you send that money back? A. The next day. *
“Q. What time the next day? A. I could not be positive, but I think I sent that money back the next forenoon.
“Q. That was the forenoon you had the talk with Mrs. Everhart? A. No, I did n’t.
“Q,. Why did you conceal it? A. I didn’t have any conversation with Mrs. Everhart.
“Q,. You boarded there, and yet never mentioned the fact you had brought $5,000? A. No.
“Q,. You stayed at Mr. Everhart’s all the time you were here? A. Yes, sir.
“Q. When did you leave Pratt and go to Waterbury, Conn.? A. I can’t tell the date exactly; it must have been, well — what is the date of that contract?
“Q,. Well, say the contract was about the 26th of May? A. It was near the last day of June.
“Q,. You stayed at Mr. Everhart’s all the time except when you were in Sumner county? A. Yes, sir.”
Although Donaldson filed a general denial only to the allegations of the answer, other than those concerning the execution of the note and mortgage in controversy, he claimed upon his part that the mortgage of June 7, 1888, for $5,000, was given him by J. T. Everhart, with other notes and mortgages amounting to $17,150.13, as collateral security for the payment of $19,850; that whenever Everhart collected the note of $17,150.13, and paid in full the sum of $19,850, with 12 per cent, interest thereon, the note and mortgage of $5,000, properly released, were to be returned to him; and that Everhart was still in debt to him, and had not complied fully with his contract. A written contract, dated the 26th day of June, 1888, to this purport, signed by Thomas Donaldson and J. T. Everhart, was offered in evidence, and Donaldson attempted to show by various letters from J. T. Everhart, and also by the testimony of Mr. Barnes, that the mortgage was executed as collateral security, and not, as alleged by Mrs. Everhart, to obtain $5,000 of additional money to loan. The written contract and letters of J. T. Everhart were excluded, as were also Mr. Barnes’s statements about the conditions upon which the $5,000 mortgage was executed.
We do not think that there was^any error in the exclusion of the oral and written testimony offered by Donaldson. The legal title of the real estate described in the mortgage of the 7th of June, 1888, was in the name of Mrs. Everhart. It was her homestead, as it was occupied as a residence by her family. It is immaterial whether the improvements were paid for by her or her husband. It could not be mortgaged without the joint consent of both. There is no testimony in the record showing or tending to show that Mrs. Everhart authorized her husband, J. T. Everhart, to deliver the mortgage of $5,000 to Donaldson or anyone else, as collateral security for debts, or upon any written or oral contract of her’ husband. It was not proposed to show by the witness Barnes that he had any conversation with Mrs. Everhart, or that he knew from her anything about the conditions upon which the mortgage was executed. What he learned from J. T. Everhart, the husband, or from the written contracts executed by the husband in his own name, would not bind Mrs. Ever-hart, unless J. T. Everhart was her duly-authorized agent.
Donaldson introduced J. T. Everhart as his witness, and after stating that the property mortgaged was in his wife’s name and belonged to her, he further testified:
“ Ques. I will get you to state, Mr. Everhart, if you made the arrangements with Mr. Donaldson for the execution, and the conditions upon which this mortgage should be executed ? Ans. Yes.
“Q,. In making these arrangements, I will get you to state for whom you acted? A. For myself.
“Q. For anybody else? A. No, sir.
“Q,. You wrote that mortgage? A. Yes, I wrote it.
“Q. Who delivered it to Donaldson? A. I did.
“Q,. Who was present when you delivered it? A. I do n’t remember of anybody.
“Q,. Who authorized you to deliver it to him? A. No one authorized me; nothing said about it.
“Q,. Did you have any authority to deliver it to him? A. No.
“Q,. You may state why you joined in the execution of that mortgage with your wife? A. Because we meant to give Mr. Donaldson a $5,000 mortgage.
“Q,. Was there any other reason why you joined in the execution of that mortgage with your wife? A. Yes.
“Q. You may state what other reasons there were? A. That he agreed to do certain things, and for that reason we gave him the mortgage.
“Q,. What did he agree to do? A. That he would then .continue with me in the loan business as heretofore; that he had brought out this $5,000, and wanted to let me have that.
“Q,. Was it given to secure that difference? A. No.
“Q,. Was it given to secure $5,000 that he was to loan you? A. Yes, sir.”
The evidence of Everhart no way connected his wife with the delivery of the mortgage as collateral security for old debts, or upon any written contract prior to that date. The testimony offered by Donaldson tended to contradict and impeach Everhart, and if he had been introduced as a witness in her behalf by Mrs. Everhart, and had been -permitted to testify, then much of the written and parol evidence offered by Donaldson would have been competent; but as Everhart was his witness, not the wife’s witness, the testimony to contradict and impeach him was wholly incompetent, and as the contracts and letters of Everhart were in no way shown to have been written or signed by Mrs. Everhart, their rejection followed as a matter of course. Neither was Mrs. Everhart bound by the written contract referred to in the evidence of J. T. Everhart, because it did not purport to be signed by her or for her.
Upon the cross-examination of Mrs. Everhart, it was attempted to be shown that she knew the amount of money owed by her husband to Donaldson; that she had executed a prior mortgage to Donaldson for $1,200, on property belonging to herself and husband; and that, after the execution of the $5,000 mortgage, her husband had brought her a mortgage, ready for her signature, on her homestead. If Donaldson had shown, by himself or other witnesses, that Mrs. Everhart had agreed with him to secure the debts of her husband by the $5,000 mortgage, or gave the mortgage to have other mortgages released, this testimony and other might have been competent; but Donaldson stated in his examination that “he never had a word of conversation with Mrs. Everhart regarding the $5,000 mortgage before or after its execution.” Nothing was said by her to Donaldson or anyone about the release of any prior mortgage. The declarations of a supposed agent are not admissible to prove agency; nor are the declarations of an agent, after a transaction, evidence of agency. (Railway Co. v. Nichols, 8 Kas. 505; Machine Co. v. Clark, 15 id. 492; Railway Co. v. Stults, 31 id. 752.) Therefore, any declarations made by J. T. Everhart to others were not admissible to prove that he was the agent of his wife, Mrs. Everhart.
Finally, it is contended that judgment should have been entered for Donaldson upon the evidence. It cannot be claimed that there was a failure of evidence to support the general finding of the trial judge; therefore we cannot disturb the judgment, even if the finding of the trial judge were against the weight or preponderance of the evidence. But, upon the record as presented, the evidence is more favorable to Mrs. Everhart than to Donaldson. “Testimony on paper is not like testimony from the lips; and when a trial judge hears the living voices and sees the witnesses who utter it, believes one and disbelieves others, we cannot decide that the judge, having better opportunities than we, ought to have believed and found the other way.” (Railway Co. v. Kunkel, 17 Kas. 145.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for compensation under the act to provide compensation for workmen injured in certain hazardous industries. (Laws 1911, ch. 218; Laws 1913, ch. 216.) The plaintiff recovered and the defendant appeals.
In December, 1914, the defendant was engaged in-building a bridge across the Arkansas river near Nettleton in Edwards county. On December 11 the defendant employed George McKinley McCracken as a common laborer to assist in building the bridge. On December 29 the workman sustained personal injuries in the course of his employment which resulted in immediate death. His wages were twenty-five cents per hour, eight hours constituting a day, and the time which he actually worked amounted to one hundred and twelve hours. He had previously been employed by the defendant at various times and places but an interval of about a year had elapsed since the last employment. The workman died intestate, leaving no surviving widow or children and leaving as his sole heir at law his mother, Ellen McCracken, who is the plaintiff. At the time of the death of her son the plaintiff resided in the city of Great Bend where she has lived for a number of years. She was wholly dependent upon her son’s earnings for her support. She is a widow about sixty-two years of age, entirely destitute, without resources or income of her own, and physically unable to earn her own living. The son left no other person or persons dependent upon him either wholly or in part.
At the time of his death the workman and the defendant were subject to the provisions of the workmen’s compensation act. The plaintiff complied with all the requirements of the statute on her part and the court rendered judgment in her favor for the lump sum of $1872.
It is said the judgment should have been for $624, or fifty-two times the workman’s average weekly earnings during his employment by the defendant. The statute reads as follows:
“Sec. 5. That section 11 of chapter 218 of the Session Laws of 1911, be and the same is hereby amended to read as follows: Section 11. Amount of compensation. The amount of compensation under this act shall be: (a) Where death results from injury: (1) If the workman leaves any dependents wholly dependent upon his earnings, an amount equal to three times his earnings for the preceding year but not exceeding thirty-six hundred dollars and not less than twelve hundred dollars, provided, such earnings shall be computed upon the basis of the scale which he received or would have been entitled to receive had he been at work, during the thirty days next preceding the accident; and, if the period of the workman’s employment by the said employer had been less than one year, then-the amount of his earnings during the said year shall be deemed to be fifty-two times his average weekly earnings during the period of his actual employment under said employer; provided, that the amount of any payments made under this act and any lump sum paid hereunder for such injury from which death may thereafter result shall be deducted from such sum; and provided, however, that if the workman does not leave any dependents, citizens of and residing at the time of the accident in the United States or the Dominion of Canada, the amount of compensation shall not exceed in any case seven hundred and fifty dollar's.” (Laws 1913, ch. 216, § 5.)
It will be observed that the amount of compensation is three times the workman’s earnings for a year. Anticipating that difficulty might be encountered in computing earnings for a year the legislature provided a rule which applies to the facts of the present case. The period of the workman’s employment with the defendant was less than a year, in fact less than a month within the year preceding his death. Therefore the amount of his earnings for a year were deemed to be fifty-two times his average weekly earnings during the period he was in the defendant’s service. His average weekly earnings were twelve dollars. Fifty-two times this amount are $624, earnings for a year. Three times this sum are $1872, the amount of compensation and the amount of the judgment.
It is said that judgment should not have been rendered in a lump sum but that the plaintiff should have been awarded periodical payments according to her necessities so that in case of her death any unpaid balance would be saved to the defendant.
The statute leaves the character of the judgment to the discretion of the trial court.
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award.” (Laws 1911, ch. 218, § 36.)
The court has frequently expressed itself on this subject. The question usually arises in cases involving incapacity of a workman. In the very recent case of Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413, it was said:
“The theory of the legislature manifestly was that cases would arise in which the condition of the employee would be so marked1 that there would be little reason to anticipate improvement in earning capacity and that the circumstances would be such as would warrant the court in giving judgment for a lump sum available at once rather than for periodical payments as in an award. The kind of judgment that is to be rendered was left to the discretion of the trial court. The question now contended for was presented in Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244. It was there insisted that the theory of the act was that compensation should cease and payments should end when incapacity ceased and the case should be left open so that employers might obtain modification of the payments as the condition of the employee should improve. The answer to that contention was that:
“ ‘The workmen’s compensation act confers express power upon the trial court to render judgment in a lump sum instead of making an award of periodical payments. In every case the trial court must exercise its judgment and discretion as to the best method of making compensation in the light of all the facts, and the result will not be disturbed on appeal except for an abuse of the power.’ (Syl. ¶ 5.)
“In the more recent case of Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, it was held that:
“ ‘Whether the judgment in such a case shall be for a lump sum, or for periodical payments, is expressly left to the discretion of the trial court.’ (p. 680.)
“In arriving at its judgment the court considers the testimony as to the nature of the injury, its effect on the earning capacity, the duration of the incapacity and the likelihood of cure or improvement, and from all pertinent facts brought to its attention it determines whether the judgment shall be for periodical payments or for a lump sum on which payment may be enforced at once.” (p. 728.)
The statute gives precisely the same power to the trial court in cases instituted by persons dependent upon a workman whose death results from an injury.
In many instances the position of the trial court is a difficult one. In the case of Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, the solution of the problem of how long incapacity to earn wages will continue was discussed. Because the court exercises discretionary power in a matter peculiarly for its consideration its action is practically final. Consequently it is to be expected that district courts will act cautiously and candidly and not render lump-sum judgments for any other reason than that the welfare of the parties requires it. Whenever such a judgment appears to be best under all the circumstances there should be no hesitation in pronouncing it.
In this case there is no possible hope for improvement like restoration of earning capacity to an injured workman. The son is dead. The mother was entirely dependent upon his earnings for her own continued existence independent of charity. She is utterly destitute. She has no income or sources of income of her own. She is physically unable to earn her own living, and she is sixty-two years old. The statute gave her $1872. With this sum she must establish herself according to her helplessness and then employ the remainder so that it may last to the end of her days, for she will never have any more. It does not take a financier to understand how little she has, nor a sentimentalist to appreciate her needs. Every man has or has had a mother in fortunate or unfortunate pecuniary circumstances. Now an insurance company, using the name of the defendant as appellant, sees in this situation a chance to make some money. Probably the plaintiff can not attain her life-expectancy and the insurance company wants this judgment doled out to her in installments “as her necessities require” — no comfort, nothing to inspirit or gladden, but as her necessities may require — so that should she die soon part of the judgment will not have to be paid. More than this, it is said that the judge of the district court was so callous of conscience that he abused his official power in not withholding some of the money from this aged, destitute and helpless woman.
In order to debate a subject with profit the minds of the disputants must be capable of meeting on a common plane in common comprehension. It is useless to discuss the dignity of labor with a professional gambler. It is useless to discuss the rewards and the happiness of virtue with a procuress. In this case the insurance company reveals itself in such a way that it is not necessary for the court to do more than to express its opinion that the district court did not abuse its discretion.
The fact is this is not a lawsuit. It is an abuse of the judicial machinery of the state, set up for the purpose of accomplishing justice, by a contumacious corporation which chooses to disrespect and to defeat as far as it can a social-welfare statute of this state. There was no controversy be tween the plaintiff and the bridge' company in whose service the plaintiff’s son was killed. There was no controversy between the attorneys for the plaintiff and the attorney for the defendant. They knew the law and the facts were not disputed. The case was determined in the district court on admissions supplemented by a little oral testimony by the plaintiff. No stenographer was called to take the proceedings, because of their simplicity and uncontroversial character. The case was a typical one for the substantially automatic operation of the workmen’s compensation law, and the bridge compañy was anxious to make compensation at once to the plaintiff for the loss of her sole means of support. But the insurance company informed the defendant that liability should be established in the court of last resort or the indemnity the defendant had purchased would not be paid. So an appeal had to be taken. Five grounds were stated. The first was that the judgment was contrary to the evidence, which, of course, was too frivolous to serve even as make-weight. The other four presented in four different ways the stale subject of judgment for a lump sum. It is submitted that the statute quoted above relating to the form of the judgment in compensation cases is too plain and unambiguous for fair minds of ordinary acumen to differ respecting the power conferred. This court had patiently spelled out time and again the legislative meaning and purpose, which were already too clear to be misconceived, and the attorney for the defendant had too much respect for himself and for the court to argue the matter. The point concerning the amount of the judgment, which is too much dignified by calling it a point, was pressed into service at the hearing.
The court does not possess adequate means of dealing with this kind of lawlessness. The attorney for the defendant who signs the papers is not amenable to discipline because he was acting under duress of the peril to his client, who he assured the court was and always has been anxious to pay. The real culprit is not in court or subject to process. Because appeals of this kind, serving no purpose except to oppress claimants and to frustrate the law, are common in compensation cases the court has adopted the practice of disposing of them sum marily on motion to dismiss for want of merit. In the case of Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, it was said;
“The workmen’s compensation act contemplates the speedy adjustment of claims under it. If the determination of the amount to be paid must await the relatively slow process of litigation through an appellate court its main purpose will be defeated and its beneficent operation thwarted. In a case of this character the plaintiff may well raise the question whether the issue of the appeal is so far doubtful as to require the ordinary routine to be followed; and where upon the preliminary hearing resulting from such challenge the court is fully satisfied that no grounds for a reversal exist, the judgment should be made final without further delay.” (p. 681.)
Some time must be consumed even when this course is pursued. In this instance the plaintiff’s son was killed on December 29, 1914. The judgment was not rendered in the district court until May 10, 1915. The appeal was taken on June 1. The motion to dismiss was filed on June 29. The case was heard on July 7, and the order of dismissal was entered at the first ensuing consultation of the court, which occurred on July 9. The mandate of this court was ordered to be forwarded to the district court at once. However, by means of an utterly groundless resistance of payment accomplished by an abuse of judicial proceedings, the plaintiff will have been kept out of her money for the greater part of a year.
Insurance companies say they are preyed upon by “snitch” lawyers, who secure lump-sum judgments for permanent injuries to the spine. If this be true in some instances the course pursued in this case is not less disreputable and affords no remedy. It is quite possible that district courts have sometimes hesitated to render judgments- for compensation payable in installments, because of the practical certainty that workmen would be hounded into unjust compromises by one proceeding after another brought nominally to test restoration to earning capacity.
It is not considered good form for the court to make suggestions to the legislature, which body has sole authority to make the law, and which reserves to itself the power to regulate practice and proceedings in court, except in the most minor matters. Some disagreeable facts, however, have been set down in this opinion, plainly and in detail, which not only disclose a condition, but which ought to awaken some interest in some quarters. '
ADDENDUM.
The foregoing opinion was filed on July 28, 1915, just before the summer recess of the court. In due time The Fidelity and Casualty Company of New York filed a motion asking for a modification of the opinion. The motion states in substance that- the Fidelity and Casualty Company, the insurer of the defendant, The Missouri Valley Bridge and Iron Company, was in fact willing to abide by the judgment of the district court awarding the plaintiff compensation in a lump sum, but that the insurance department of the state of New York, the state of its incorporation, would not permit it to pay the judgment without an appeal being taken. The motion states that the facts presented will be sustained by proof, and a preliminary showing as to the nature of such proof has been made. If upon the hearing of the motion the proof should be as indicated, some of the language of the opinion will not apply to The Fidelity and Casualty Company of New York. | [
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The opinion of the court was delivered by
West, J.:
December 21, 1907, plaintiff purchased a quarter section of school land for $760, paying one-tenth cash and receiving a certificate. He paid thereon $41.04 interest December 28, 1908, December 20, 1909, and February 2, 1911. By the strict terms of the statute failure to pay on or before October 21, 1912, worked a forfeiture of the plaintiff’s rights and left the land open to settlement and purchase, the language of the act being that the delinquent party “shall, at the expiration of such .ten-months period, forfeit all right, title and interest in and to such land by virtue of such purchase, and such land shall immediately be open to settlement and purchase. Such defaulting purchaser shall, at the expiration of such ten-months period, be. considered a trespasser on such land if a resident thereon, and ejectment proceedings may be brought against such defaulting purchaser by the county attorney or the attorney-general on behalf of the state or by any bona fide settler or purchaser of such land.” (Gen. Stat. 1909, § 7657.)
Plaintiff was not in actual possession but lived in California. On September 20,1912, he wrote the county treasurer requesting a statement of taxes due on the land, adding that he would try to send the interest in a short time. A day or two after the receipt of this letter the treasurer forwarded a statement, dated September 30, of the taxes due on this and three other quarters of land held by him. On the back of this statement was printed in plain type this caution:
“If the description of the property is not correct in the statement, please return same for correction before making your remittance.”
This was, by the plaintiff, returned to the treasurer and his attention called to an erroneous description of the land, and a new statement was made out and returned dated October 22. October 26, plaintiff mailed his check for $183 interest and taxes on the section including the quarter in controversy, which on November 1 was by the treasurer deposited in the bank and credit for it taken by him. The interest money was remitted by the county treasurer to the state treasurer January 9, 1913. The plaintiff was given credit for it on the records of the county treasurer on November 29,1912. The second statement did not reach plaintiff until October 27, on which date he wrote the treasurer that he had already on the day before sent the check for $183. On October 22, 1912, the first day on which the land could possibly become subject to settlement and purchase, the defendant, who lived near by, made an entry thereon and afterwards made a payment to the county treasurer of $39, receiving a receipt therefor dated November 1, 1913, but not receiving any certificate of purchase. The settlement and improvements made by the defendant are criticised as formal rather than actual, but for the purpose of this case they will be deemed substantial and sufficient and were thus treated by the probate court.
The plaintiff brought this suit to recover possession from the defendant, and the controversy is between these two parties and not between the state and either of them. The plaintiff insists that the technical forfeiture has been waived and therefore his title is superior to that of the defendant, who in turn contends that the forfeiture was complete and could not be and therefore was not waived and that he alone is to be regarded as the rightful possessor and inchoate purchaser of the land.
It is clear that the case is one fraught with difficulty, and one that might be decided either way and which crowds the border line very closely. In any event the state will be left with money in its treasury not belonging to it which can be recovered back by the party entitled thereto only, if at all, by a legislative appropriation.
In The State v. Emmert, 19 Kan. 546, it was held that the failure to pay the interest or principal when due worked an absolute forfeiture, causing the interest of the purchaser to cease instantly and absolutely. The language of the statute then in force was that “Any purchaser failing to pay the annual interest when the same becomes due, . . . shall forfeit all right to the land from the time of said failure of payment, and the county attorney shall proceed to eject him from said premises, if in possession.” (Laws 1876, ch. 122, art. 14, § 16.) The contract of purchase was made August 14, 1871. August 14, 1876, there was $90 due, and this sum remaining unpaid the county attorney in April, 1877, brought suit on the bond. The defendant demurred to the petition and the trial court sustained the demurrer. The state appealed and the ruling was affirmed. Brewer, J., in the opinion said:
“It seems to us clear that there is a legislative declaration of forfeiture in advance, and that upon the happening of the event, the forfeiture occurs, and no judicial proceeding is necessary to determine it. The language of the statute is clear, positive and peremptory. ‘Any purchaser failing . . . shall forfeit,’ and the duty cast upon the county attorney is equally clear and positive not to seek a judicial determination of the forfeiture, not to foreclose any equitable mortage, or to collect the bond, but to eject the purchaser if in possession. An ejectment implies full title in the plaintiff and no rights in the defendant. It implies a forfeiture already existing, and not one to be declared.” (p. 548.)
The case of Ewing v. Baldwin, 24 Kan. 82, involved the ■ question whether or not a forfeiture had arisen from the following circumstances: The certificate was dated November 20, 1867, possession was taken and improvements made until February 20, 1878, six of the ten payments having been made, the last payment of principal being in 1873 and the last interest payment in 1874; the taxes had been paid up to 1873 but for the taxes of that year a sale had been made and another in 1874, and the assignee of the tax-sale certificate paid to the treasurer the four remaining payments under the original purchase and the accured interest and received a patent which was recorded November 21, 1877. It was claimed that the tax-certificate holder was in collusion with county officers, and it was held, Brewer, J., speaking for the court, that by the plaintiff’s default his rights and interests had fully and absolutely ceased; that the default had continued for years without any attempt to interfere-not only in the payments for the land but in the taxes due thereon. In Baker v. Newland, 25 Kan. 25, it appeared that in 1871 Newland purchased the land in controversy under the school-land act, making his first payment, and made the second payment in Juné, 1872, and no further payment under the contract. Later the land was sold for taxes and bid in by the county treasurer and subsequently assessed. In 1875 Newland died, leaving his wife in possession. In 1876 the widow undertook to enter the land as government land but the local land office refused to accept her money. In 1877 Baker paid the delinquent taxes and also paid the principal and interest due on the contract with Newland and received a patent. He brought'ejectment, the defendant récovered and the plaintiff appealed. This judgment was reversed by the court, and upon the question of forfeiture it was said, the same justice writing the opinion:
“It is generally true that one in whose favor a forfeiture exists may waive it. The state was the party entitled to the benefit of this forfeiture. No one else could claim its benefits. If, notwithstanding, it receives full payment of the purchase price, and gives a patent, it does not lie in the power of any individual to question that title. Doubtless, many instances will be found in the history of this state in which purchasers of school lands have failed to make their payments on the very day. Technically and strictly, such failure worked a forfeiture. But if, notwithstanding, thereafter such purchasers completed their payments and received patents, we suppose that their title is safe; certainly as against any one but the state, and probably as against it. It may be said that no officer is in terms authoized to waive such a forfeiture, or to relinquish any legal claims of the state. No officer can act outside the law, and bind the state. Doubtless this is true. But where the just and equitable claims of the state are fully satisfied, the acts of its officers in waiving mere technical and arbitrary for feitures and which are never challenged by the state itself, will be upheld as against the complaints of any third party.” (p. 34.)
It will be observed that the language of the statute then in force (Laws 1876, ch. 122, art. 14, § 16, already quoted) was substantially the same as that of the act of 1909 (Laws 1909, ch. 218, § 12, Gen. Stat. 1909, § 7657). In Reynolds v. Reynolds, 30 Kan. 91, 1 Pac. 388, the land was purchased in 1872, possession taken, lasting improvements made, all installments paid up to October 12, 1876, except as presently noted, when the purchaser died, leaving a widow and a minor child. From February 10, 1876, up to June 20 the interest due February 10 was in default, but on the latter date it was paid and received by the state through its officers. There were certain taxes ten months in default at the time of the purchaser’s death. The widow assigned the certificate of purchase and delivered possession, and the assignee completed the payments. It was held that on the death of the purchaser one-half of his interest in the land descended to his widow, the other half to his minor child, and that the assignee held the latter’s half in trust for him. As to the claimed defense of forfeiture, the court, after referring to the statutes and the decision already noted, said:
“In the present case, the purchaser, Reynolds, paid everything due upon the land for four years and up to February 10, 1876, when he failed for four months and ten days to pay the interest then due on the purchase money. At the end, however, of four months and ten days, and on July 20, 1876, he paid such interest, and was no longer in default.” (p. 97.)
After referring to the delinquent taxes, the court continued:
“These two defaults — the one in failing to pay interest for about four months, and the other in failing to pay taxes for about ten months — are the only defaults on the part of the purchaser for which the plaintiff in error, defendants below, now claim that there was a forfeiture of the estate during the lifetime of the purchaser. Now the state of Kansas has never claimed any forfeiture on the grounds of these defaults, nor upon any other grounds; on the contrary, the state of Kansas, through its officers, after the occurrence of the first default, received the overdue interest, and left the purchaser free from all default with respect to interest due on the purchase money; and certainly third parties who at the time had no interest in the property, have no right now to complain of the action of the purchaser or of the state, or to claim that the purchaser, by reason of his default, forfeited his land to the state.” (p. 98.)
In Mayse v. Belt, 84 Kan. 211, 114 Pac. 232, following and approving Baker v. Newland, 25 Kan. 25, it was said:
“With respect to the appellant’s title, it may be observed that the state had the right, if it saw fit, to treat the forfeiture as an effectual termination of the rights of the certificate holder and as a restoration of the land to the public domain. But it did not do so. It chose to waive the forfeiture, to treat the certificate of purchase as still in force, and to allow the appellant as assignee, by virtue of the tax proceedings, to perform the obligation of the certificate. When he had done that he became entitled to a patent. At the time the appellant perfected his right to the land the claim of the appellee had not attached. But the whole matter was one between the appellant and the state, and the decision in the case of Baker v. Newland, 25 Kan. 25, is controlling.” (p. 212.)
In Doty v. Walling, 85 Kan. 455, 116 Pac. 487, it was said:
“The state in issuing the patent to the last assignee of the certificate of purchase probably waived, as it might, the forfeiture of all previous holders thereof (Baker v. Newland, 25 Kan. 25), and no one else appears to be in a position to complain.” (p. 456.)
The case of Matkin v. Vickers, 92 Kan. 310, 140 Pac. 846, is practically the case at bar except that there the plaintiff relied on statements made by the treasurer as to when the interest would be due and thereby becam,e in default, while here there was some delay in order to receive from the treasurer a statement of the amount due on the land correctly described. There the default occurred on October 18, 1912. A short time after this the amount in arrears was paid and the receipt therefor signed by the treasurer and countersigned by the clerk. On October 19, the very first day possible, as in this case, the defendant settled on the land, and this was seven days before the delinquent payment was made by the plaintiff. A house was built upon the land, into which the defendant moved and lived. It was there argued that when the plaintiff made the last payment the defendant was already a purchaser in possession and the rights of the former had entirely ceased, so that if he had been in possession he would have been a trespasser by force of the very words of the statute. But notwithstanding these things it was held that forfeiture had been waived by the state and that the plaintiff was entitled to recover; that the state could not be estopped to assert title because of neglect or fault of its officers, but could, upon satisfaction of its just and equitable demands, waive the forfeiture, especially when not to do so would be to take advantage of a constructive fraud resulting from the act of its agent; that the defendant did not, by his settlement, acquire a vested right as against the state, and the latter could still dispose of this land to another without legal injury-to him and still had power to do the conscionable thing by the plaintiff.
The legislature, in passing the act of 1909, must be presumed to have known the construction placed upon similar language in the decision of Baker v. Newland, supra, and did not use any words indicating its intention that the state, through its officers, could not waive the forfeiture after haying placed itself in a position which would demand that a private party be deemed to have waived. This could have been done by merely providing that no payments should be received after default and that no waiver could be had in any event, but nc such provision was made. Indeed, forfeitures, always odious to the law and never recognized by equity, have ever been accorded the sort of treatment which their inherent nature and character deserve. (2 Story’s Equity Jurisprudence, 13th ed., §1319; Livingston v. Tompkins, 4 Johnson’s Ch. Rep. 415, 431.) In Orr v. State, 56 Ark. 107, 19 S. W. 319, the statute under consideration provided that should the purchaser fail to pay two installments of interest he should forfeit the purchase and it should be the duty of the collector to offer such land for sale again as soon as practicable after such forfeiture. The purchaser was sued on his note given for the purchase money for school land and the default of payment of two installments was alleged, but this was held insufficient because it did not further aver that the state had taken steps to enforce the forfeiture. The court attempted to distinguish between forfeiture and rescission, and although quoting Judge Story to the effect that a forfeiture imposed by the statute will not be interfered with by equity, nevertheless held that the payment of interest became a condition subsequent and annexed to the estate transferred to the purchaser and that it was for the state alone through her agents to take advantage of the nonperformance of the condition in the manner pointed out by the legislature. In a recent work on the Law of Waiver (Bowers, 1914), it is said:
“The law winks at forfeitures; equity closes its eyes upon them. And the disfavor in which they are held is so great that if, by any con struction, they can he denied without making new contracts for parties, that course will usually he pursued.” (§ 52.)
No possible question can be raised as to the right of the state and all of its officers and agents in the transaction to refuse payment after default, but when, instead of refusing, they have accepted such payments, which have gone into the. school fund, and especially when there was no bad faith on. the part of the purchaser in default and the time limit was; exceeded by only about one week before the money reached! the proper county officer, it is certainly more in accordance with justice and equity to treat the forfeiture as waived then to dignify the technical and temporary lapse into a basis on which a new purchase could be built up. The principle of the decision in Matkin v. Vickers, 92 Kan. 310, 140 Pac. 846, applies.
We have examined and considered certain other points presented, but, in effect, they are covered by what has already been said and need no separate discussion.
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
West, J.:
The defendant appeals from a judgment rendered against him in a bastardy proceeding, and assigns error upon the amount of the payments required, alleging them to be excessive, and upon the ruling denying him a jury trial.
The trial court considered the age, education, property and environment of the defendant and concluded that $150 a year in quarterly payments, until the child should reach the age of eighteen years, was reasonable, and provided for a lump sum payment at any time at the option of the defendant. The amount in such cases is within the sound discretion of the trial court and is to be such as, under all the circumstances, may seem just for securing the maintenance and education of the child, and it does not appear that this discretion was abused in this case. (Gen. Stat. 1909, §4036; Stahl v. The State, ex rel., 67 Kan, 864, 74 Pac. 238.)
The defendant was not entitled to a jury trial under section 10 of the bill of rights, which provides that:
“In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have, been committed.”
Section 4026 requires that the prosecution be in the name of the state of Kansas on the relation of the prosecuting witness, and attention is called to the case In re Rolfs, Petitioner, 30 Kan. 758, 1 Pac. 523, holding that the constitution guarantees a trial by jury in all prosecutions; but in the same opinion it was said (p. 762), that this means a jury trial in all cases in which it existed prior to the adoption of the constitution, and it was held in The State, ex rel., v. City of Topeka, 36 Kan. 76, 86, 87, 12 Pac. 310, that the words “all prosecutions” mean all criminal prosecutions for violations of the laws of the state. It has long been settled that proceedings of this kind are civil rather than criminal. (Gleason, Sheriff, v. Comm’rs of McPherson Co., 30 Kan. 492, 2 Pac. 644; The State v. Baker, 65 Kan. 117, 69 Pac. 170; Poole v. French, 71 Kan. 391, 80 Pac. 997; Costigan v. Stewart, 76 Kan. 353, 355, 91 Pac. 83.)
Section 279 of the civil code provides that issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury unless a jury is waived or a reference is ordered, and that all other issues of' fact shall be tried by the court, subject to its power to submit any issue or issues to a jury. This proceeding is not one for the recovery of money in the ordinary sense, because the jury have nothing whatever to do with the amount of recovery, but only with the question of paternity. (Gen. Stat. 1909, §§ 4035, 4036.) Upon a finding of paternity by a jury or by the court, then the court makes the order, fixing the amount of payment to be required “payable at such time or times as may be adjudged proper.”
Under the act of 1859 (Laws 1859, ch. 82, Compiled Laws, 1862, ch. 109), it was provided in section 5 that when the accused should plead not guilty “the court shall order the issue to be tried by a jury”; but when the statute was amended (Gen. Stat. 1868, ch. 47), section 11 was made to read as it now reads: “If the defendant in the district court deny the charge the issue shall be tried by the court or a jury” (Gen. Stat. 1909, § 4034), which left it no longer imperative that a jury trial be had. No other provision being found entitling the defendant to a trial by jury on demand, its denial by the trial court in this case was not error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action by an owner of property and an insurance company to recover damages caused by fire started by the defendant. The plaintiffs recovered judgment. The defendant appeals. It is contended that under the allegations of the petition and the findings of the jury the judgment should have been for the defendant.
The negligence alleged is:
“The defendant, in the operation of its said railroad, by its agents and servants in charge of a certain freight train, going east on the line of its said railway, along and near said land, negligently and carelessly caused and permitted sparks of fire and hot cinders to be thrown and to escape from the said train and from its engine hauling said train.”
Special questions to the jury, and the answers thereto, are:
“Q. 1. How did the fire originate which destroyed the property of the plaintiff' on November 10th, 1912? A. From engine 1210.
■ “Q. 2. If you answer the above question that the fire originated from defendant’s engine No. 1210, then state how the fire escaped from said engine? A. We don’t know.
“Q. 8. Were the engineer and fireman in. charge of said engine competent and skilled employees for the performance of the duties devolving upon them? A. They testified they were.
“Q. 4. Were the said fireman and engineer using due care and caution at the time the engine passed by the plaintiff’s property? A. We don’t know that they were.
“Q. 6. If you find there was any carelessness or negligence on the part of the agents and servants in charge of said engine at said time, then state wherein said agents and servants were negligent and careless? A. We can’t tell.
“Q. 7. If you find the issues herein in favor of the plaintiff, then state specifically and in detail what act or acts of negligence of the defendant caused said fire? A. We don’t know of any.
“Q. 8. State what the engineer and fireman did, or failed to do, if anything, which would have prevented said fire? A. There is nothing to show they did anything.”
The plaintiffs’ petition restricted their right of recovery- to the negligence of the defendant’s agents and servants in charge of the freight train.
The answer to the first question submitted to the jury established prima facie the plaintiffs’ right to recover under the allegations of the petition. After the plaintiffs made a prima facie case, the burden was on the defendant to show that its agents and servants in charge of that train were not negligent. (Gen. Stat. 1909, § 7079; Walker v. Kendall, 7 Kan. App. 801, 54 Pac. 113. See, also, Mo. Pac. Rly. Co. v. Merrill, 40 Kan. 404, 407, 19 Pac. 793; Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.) Admitting that the third finding is that the engineer and fireman were competent and skillful, it is not a findr ing that they were not negligent; nor is there any other finding which in substance or effect says that they were not negligent. The substance of the findings of the jury on the question of the 'negligence of the engineer and fireman is, that the jury did not know and could not tell whether or not the engineer and fireman, or either of them, were negligent. If it was incumbent on the defendant to establish that they were not negligent, then these findings are substantially that they were negligent. (Morrow et al. v. Commissioners of Saline Co., 21 Kan. 484; A. T. & S. F. Rld. Co. v. McCandliss, Adm’r, 33 Kan. 366, 6 Pac. 587; U. P. Rly. Co. v. Shannon, 38 Kan. 476, 16 Pac. 836; Railroad Co. v. Swarts, 58 Kan. 235, 48 Pac. 953; Hilligoss v. Railway Co., 84 Kan. 372, 374, 114 Pac. 383.) These findings fail to show that the defendant proved what was necessary for it to prove to escape liability, after the plaintiffs had established that the fire was caused by this particular train. The plaintiffs proved their right to recover. The defendant failed to establish any defense thereto. This is not in any way contradictory to anything that was said in the following cases, cited by the defendant: St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543, 18 Pac. 720; A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Railway Co. v. Garrison, 66 Kan. 625, 72 Pac. 225; McVeigh v. Railway Co., 87 Kan. 527, 124 Pac. 898, and McVeigh v. Railway Co., 88 Kan. 13, 127 Pac. 624.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover damages to certain property shipped by him from North Platte, Neb., to Kansas City, Kan., over the defendant’s railroad. The shipment consisted of household goods weighing 2200 pounds, and the only articles involved in this appeal are a piano and an Axminster rug.
The plaintiff claimed and recovered $100 for injury to the piano, and the only question presented respecting this- is one of the measure of damages. The court permitted evidence and gave instructions upon the theory that the plaintiff might recover the difference between the market value of the piano at the time and place of shipment and its market value after the injury. Complaint is made that the theory of actual damage was not followed. In view of the nature of the article, the piano being used in the household of the plaintiff, susceptible of repair and useful after such repair, it was error to permit the plaintiff to recover upon the market-value theory as it appeared that after the injury the instrument had practically no market value whatever. (Hollinger v. Railway Co., 94 Kan. 316, 146 Pac. 1034.) The error, however, was immaterial and harmless for the reason that considering the cost of the instrument, the nature of the damage done to it, its weight and the agreed value in case of loss, the amount recovered was fairly sustained by the evidence, and under such circumstances a reversal would be idle.
The rug weighed in the neighborhood of seventy pounds and for it the jury allowed $21, the testimony showing its loss or conversion and' that its value was the suni named.
When the shipment was made the bill of lading was signed by the plaintiff, and on the face thereof was written a legend by the agent of the defendant which means “Owner’s risk, value $10.00 a hundred-weight.” There was no separate contract of release or valuation signed or made. The plaintiff contends that up to $220, $10 a hundred for the entire shipment, he was entitled to recover whatever actual damage he suffered, the defendant insisting that for articles lost the recovery should only be at the rate of $10 a hundred pounds. Certain rules of the interstate commerce commission said to require a separate contract in order to restrict a shipper to the valuation named in the bill of lading, and order No. 787, are referred to by the plaintiff. (Central of Georgia Ry. v. Broda, [Ala. 1914] 67 South. 437.) These rules have not been furnished save by the citation of the decision in the Broda case, and it is not deemed necessary to determine their real source, character, application or potency, as the question before us is set at rest regardless of them. An examination of order No. 787 discloses that the interstate commerce commission approved a bill of lading containing this language, also contained in the bill of lading in question :■
“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether or not such loss or damage occurs from negligence.” (Bills of Lading, 14 I. C. C. Rep. 346, 353.)
It was testified on the trial that two rates were in force, the one paid by the plaintiff and a higher one, and that the rate applicable would come under the heading Western Classification No. 50. The trial court instructed that two rates were in effect, one for an unlimited value of property transported, and one for property transported undef a bill of lading which showed its value, and that the plaintiff could not recover more than the fixed value of $10 a hundred. No fault is found with this part of the charge and it must be taken as the law of the case (Metz v. Railway Co., 90 Kan. 463, 135 Pac. 578), and indeed is a correct declaration of the law applicable to the shipment in question.
It remains to consider whether or not the defendant is liable for the agreed or the actual value of the rug. There is plenty of room for argument and the state courts are in conflict, but we are bound by the federal supreme court’s view of this federal question, expressed in Kansas Southern Ry. Co. v. Carl, 227 U. S. 639. In that case the shipment consisted of two boxes and a barrel containing household goods. The total weight was 400 pounds, and the shipment was valued at $5 a hundred. One box weighing not over 200 pounds was not delivered, and in the state court the plaintiff recovered its value, $75. This judgment was reversed and it was held that the shipping contract fixed a conclusive valuation which constituted the sole basis of recovery. The principle of this decision was recognized in Christl v. Railway Co., 92 Kan. 580, 141 Pac. 587, and it is the one that must control here. (See, also, Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657.) In Chicago, R. I. & Pac. Ry. Co. v. Cramer, 232 U. S. 490, it was held that the agreed value controlled, notwithstanding a statute of Iowa undertook to prohibit such a defense. In Great Northern Ry. v. O’Conner, 232 U. S. 508, 516, it was held that in case of two rates, the lower one based on an agreed valuation, the shipper may not defend on the ground that the latter is unreasonable, and can only recover such agreed value, such result not to be changed because of the use of printed forms, following Hart v. Pennsylvania Railroad Co., 112 U. S. 331, where the shipper had simply signed a printed contract naming a value. The effect of the decision in Boston & Maine Rd. v. Hooker, 233 U. S. 97, 110, is an approval of the rule in Adams Express Co. v. Croninger, 226 U. S. 491, that the knowledge of the shipper that the rate was based upon the value is to be presumed from the terms of the bill of lading and of the published schedules filed with the commission. To the same effect is Atchison &c. Ry. Co. v. Robinson, 233 U. S. 173, 180.
The cause is remanded'with directions to modify the judgment by substituting for the amount recovered for the lost rug the sum indicated by the bill of lading. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in the district court of Bourbon county wherein the plaintiff, J. P. Scott, sought to enforce an oral contract between him and Thomas Chapman and Lucy Chapman, his wife, by which Chapman and wife agreed that Scott should have a life estate in Chapman’s farm in consideration of Scott and his family moving on the farm and caring for Mr. and Mrs. Chapman in their old age.
Thomas • Chapman and his wife, Lucy Chapman, lived for many years on a Bourbon county farm. It appears that the wife of the plaintiff was a frequenter of the Chapman home in her childhood and girlhood; that the plaintiff worked for Chapman when he was a young man; that the plaintiff and his wife were married about the year 1875 in the Chapman home, and resided with the Chapmans for about three months; that some years later Scott and wife resided with the Chapmans about a year, and after a lapse of a year the Scotts took up their abode with the Chapmans again for about a year, after which a house was built on the Chapman land in which the Scotts lived for about seventeen years; then the Scotts moved to a neighboring farm, residing there for some time; and during all these years the relations of the Scott and Chapman families were friendly and intimate.
In December, 1903, Chapman and his wife were visiting at the Scott home, and in the presence of Scott and his wife, and their grown daughters, and Mrs. Lucy Chapman, Thomas Chapman said:
“Q. Now state all that was said there by anybody there in the presence of Mr. and Mrs. Chapman? Just what was said and who said it? A. Mr. Chapman said to my father: ‘Well Scott, we want you to come back on the place. We want someone we can depend upon, and see that we are cared for in our old days, and if you will .come back, I will build another room on the house down there for you and fix it all up for you, and you are to pay me one-third (%) of the annual crop, and one-half (%) of the hay. You are to repair the fences and I will furnish the repairs, and in regard to the pasture, you are to have all the pasture excepting what I want for my horse and cow, if I keep them, and the orchard, you are to have all the fruit that you want to use, and I reserve the pieplant patch and my garden, and you are to have your private garden, and if you will come back and stay with us until we are dead, the home will be yours and Mahala’s (Mrs. Scott).’
“Q. What else was said, and by whom? A. And my father says: ‘Well, you have writings drawn up to that effect and I will come back,’ and he says, ‘There is no use to have writings, for I know you and you know me, and I know you will do what’s right, and you know I will do what’s right, so father told him he would come.” (Testimony of Alma Scott.)
The Scott family returned to the Chapman farm in the spring of 1904, residing in a house near the Chapman residence, and this situation between the parties continued until the death of Thomas Chapman in 1906. Prior to his death Scott and his wife and children did various little services for Thomas Chapman; these might be construed as part of the alleged oral contract between the parties or as mere courtesies and reciprocal civilities between lifelong friends.
Soon after the death of Thomas, his widow, Lucy Chapman, went to California. There is testimony that before her departure she told Scott and his wife that she had made provision for them in her will. She returned from California in March, 1907, and lived in the Scott home for two weeks. Then she requested the Scott family to move into her home, saying:
“ ‘I can not live alone — I want you to move in with me and maintain a home for me. When I am through with it, the home goes to you and Mr. Scott or to Mr. Scott and Mahala.’ ” (Testimony of Mrs. Scott.)
About this time the Scott family moved into the Chapman home with Mrs. Lucy Chapman. She was by that time a very old woman; she was feeble and afflicted with cancers. She is said to have told the plaintiff frequently:
“Scott, you go ahead with the place just the same as you did in Mr. Chapman’s lifetime, for when I am through with this, it belongs to you and Mahala.”
And to Mrs. Scott:
“Mahala, you will be well paid for what you do.”
Scott and his wife and children continued to render Mrs. Chapman the small courtesies and civilities they had rendered to Thomas Chapman in his lifetime. The testimony tends to show many such services. Mrs. Scott assisted the old lady in cooking, sweeping, dressing and undressing, and dressing her cancers; the Scott family carried in fuel and water for her, occasionally built her fire, made her. bed, waited on her when sick, never left her alone at night, and the like services continued until her death in 1912 at eighty-three years of age.
The foregoing summarizes briefly the main evidential facts upon which J. P. Scott bases his claim to a life estate in the Chapman farm.
On the other hand, the record shows that Mrs. Lucy Chapman made a will in 1910 disposing of all her property to relatives. It also shows that on March 1, 1911, J. P. Scott and Mrs. Lucy Chapman mutually executed an ordinary lease for the farm in question for the term,- of one year, with all the usual recitals, and fixing the rent at $200, the half of which was to be paid in advance and acknowledged as paid. It also provided that the plaintiff, J. P. Scott, would peaceably surrender possession, without further notice, on February 28, 1912. The lease also reserved to the landlady, Mrs. Lucy Chapman, “her living room and the building her things- are stored in,” and also provided:
“Seventh. That in case of sale of said premises during their occupancy by said second party, and purchaser should desire possession, said second party hereby agrees to give up to said purchaser said premises at once, on payment to him of a fair and reasonable compensation for the crops which he may then have in the ground, and if he and the purchaser cannot agree to the amount of such compensation, it shall be left to three disinterested appraisers, of which said second party shall choose one, the purchaser one, and these two shall choose a third one. Their decision shall be final as to the amount to he paid by purchaser to said second party.”
The record also shows that for the last two or three years of her life Mrs. Chapman paid the Scotts for the eggs and milk she consumed (probably from the date of her will) ;that she paid for her washing and ironing; and at one time she said, as testified by Mrs. Scott:
“Well, of course, when she came back from town here, why, of course, she was feeling bad, and I, of a morning, I would go in and carry her breakfast in to her, for she did n’t feel like getting up and cooking anything for herself, and she told me, ‘Mahala, if you are going to bring me my victuals, you might as well bring me all of my victuals and I will pay you for it,’ and she said she would pay me two dollars a week for doing her cooking for her, and I cooked her meals and carried them to her for ten months before she died.”
Other more or less significant circumstances were the filing in the probate court of claims by plaintiff and wife against the Chapman estate for sums of $1352 and $1690 respectively for work and labor. Later these claims were withdrawn, or dismissed by order of the probate court.
The cause was submitted to a j ury, which could not agree on a verdict, and they were discharged. Thereupon the defendants moved for judgment on the pleadings and evidence. The plaintiff asked leave to amend his petition and this was denied. The court sustained the motion of defendants and gave judgment in their favor, and made a special finding of fact “that there was no contract between J. P. Scott, plaintiff, and Thomas Chapman and Lucy Chapman as alleged in plaintiff’s petition.”
The plaintiff assigns error:
“1. In refusing to permit plaintiff to file amendment to his petition on March 25, 1914, and to thereby amend his petition.
“2. In rendering judgment in favor of defendants and against plaintiff.
“3. In overruling plaintiff’s motion for a new trial.”
1. Did the court err in refusing to permit the plaintiff to amend his petition, to plead alleged services of himself and wife in behalf of Thomas Chapman from March 1, 1904, until August 7, 1906, the date of the death of Thomas, and like services to Lucy Chapman during the same period, and like services for Lucy until her death in 1912, that plaintiff had furnished certain wire, staples and nails to the value of $14.10 for the Chapman farm, with the consent and approval of Thomas and Lucy Chapman, and that plaintiff had furnished milk for three years to Thomas and Lucy Chapman of the. value of $27.37, and eggs of the value of $30 ?
It is familiar law that the allowance or refusal of belated amendments to pleadings is within the sound discretion of the trial court. (Bank v. Badders, ante, p. 533, and cases cited therein.) The proposed amendment was presented to the court on March 25, 1914. The case was called for trial on January 29, the evidence introduced and the cause submitted to the jury January 31, and the jury discharged for disagreement on February 2. On February 10 the defendants’ motion for judg ment was filed. The same day the court gave plaintiff until March 25 to prepare and submit his proposed amendment, and upon its submission it was denied.
This is very far from an abuse of discretion, when we keep in mind that the court at that time was in possession of all the facts and at the same time determined upon those facts that there was no such contract as alleged between the plaintiff and Thomas and Lucy Chapman in their lifetime, and when it is considered that the subject matter of the proposed amendment had once been the basis of a claim against the Chapman estate in the probate court and withdrawn and dismissed. It is impossible for this court to hold that the refusal to allow this belated amendment-was error.
Appellant quotes many precedents where parol contracts for the conveyance of land have been enforced by this court. (Smith v. Cameron, 92 Kan. 652, 658, 141 Pac. 596, and cases cited.) But the difficulty here lies in the trial court’s finding of fact that there was no contract, as alleged by plaintiff. Moreover, it is elementary lav/ that a court of appeal can not disturb a finding of fact, based upon sufficient though conflicting evidence. (Martin v. Hoffman, 77 Kan. 185, 93 Pac. 625; Heath v. Life Association, 89 Kan. 634, 132 Pac. 147; Underwood v. Fosha, ante, p. 240, 242, 150 Pac. 571.)
The doctrine of abuse of discretion is mentioned. Its application could only be pertinent if this court had some serious misgiving that there had been a probable miscarriage of justice in the district court. Apparently the trial court, which saw the plaintiff and his wife and daughters on the witness stand and heard their story, did not believe it. We have only the printed pages of a record before us, and it would be presumptuous and unusual for this court to substitute its judgment for the judgment of the district court on the credence to be given to their testimony, in view of the many circumstances which tended to disprove their asseverations.
2. What has been said in reference to the first error assigned is equally pertinent on the second. A general finding for the defendants on the issues and free from positive and prejudicial error can not be disturbed.
3. On the third assignment, it is urged that the court should have permitted the children of the plaintiff to testify as to their services for Thomas and Lucy Chapman. That at best would have been merely cumulative. Enough was admitted to prove that there were such services. The record reads:
“Q. Did your father or mother, or what are the facts as to whether or not your father or mother ever requested you, or the other children in your presence, to go over to the Chapman residence any time before Mr. Chapman died? A. He did — ”
Counsel for defendants:
“Objected to as incompetent, irrelevant and not within the issues.
“The court: Objection sustained.”
Counsel'for plaintiff:
“Judge, this seems to -me to be perfectly plain, and perfectly within the issues. We-have certainly got a right to show what this plaintiff did in looking after these people. They don’t have to do these things personally. If they keep their children going over there and keep looking after them right along, that’s within the issues and that is within the pleadings. Or, if he sent some hired man or hired a man to go up there, it would be the same proposition. We certainly have to show that in order to show our good faith. . . .
“The court: Ask your next question.”
(Testimony of Alma Scott.)
It does not readily appear how this could have been material. The issue was on the existence of an oral contract for a life estate in a farm. Moreover, the motion for a new trial does not show that the excluded evidence was brought to the attention of the trial court, as the statute provides. This is imperative. Section 307 of the civil code provides:
“In all cases where the ground of the motion (for a new trial) is error in the exclusion of evidence . . . such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses.”
(Cooper v. Greenleaf, 84 Kan. 499, 114 Pac. 1086; Greer v. Mercantile Co., 86 Kan. 686, 121 Pac. 1121; Clark v. Morris, 88 Kan. 752, 129 Pac. 1195; Walter, Adm’r, v. Calhoun, 88 Kan. 801, 805, 129 Pac. 1176; Caldwell v. Modern Woodmen, 89 Kan. 11, syl. ¶ 3, 130 Pac. 642; Thompson v. Thompson, 94 Kan. 168, 171, 146 Pac. 344; Broady v. Fire Association, 94 Kan. 245, 248, 146 Pac. 343; O’Neal v. Bainbridge, 94 Kan. 518, 524, 146 Pac. 1165.)
We have labored through the voluminous abstracts and studied the briefs of counsel with diligent care, but find nothing approaching reversible error therein, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
West, J.:
This appeal involves the correctness of the trial court’s ruling in sustaining a demurrer to the plaintiff’s evidence. It was said in the former opinion (Moore v. Moore, 93 Kan. 697, 150 Pac. 230), that as there was some evidence fairly tending to establish a right to relief, the case should have been decided upon the preponderance of the entire evidence, and that the effect of depositing the deed was largely one of intention. With this result and the law as expressed in the former syllabus we are content.
Owing to a mistake in the abstract reference was made to a certain deed which was not in evidence. Allusion to a later will than the one involved was mistakenly made and should be considered withdrawn. The matter of verification of the answer was unimportant and there was an inaccuracy in assuming that Fielder E. Moore used any specific language in delivering the deed to the banker.
From the remarks of- the trial court in passing upon the ' demurrer it would seem that it was deemed a question of setting aside the deed entirely regardless of terms or conditions to be imposed, and that it was felt that the plaintiff’s evidence would not justify so doing. As the cause is to be retried it is proper to say that when the evidence is all in such decree should be rendered as the facts in equity and good conscience demand.
Further comment on the matters in controversy would not be advisable at this time.
The opinion being deemed corrected as indicated, the former decision is adhered to. | [
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The opinion of the court was delivered by
Mason, J.:
W. R. Ranney and B. F. Childs are the owners of adjoining lots upon each of which a two-story building is located. A stairway on Childs’ lot gives access to the second floor of each. In 1885 the then owners of the two lots entered into a written contract designated as a lease by which the owner of the Childs lot granted to the owner of the Ranney lot the right to the use of the stairway in comimon, for a period of 99 years, in consideration of his bearing certain expenses in connection with its construction. The contract included a clause making its provisions binding upon the heirs, executors, administrators and assigns of the parties. The lease was acknowledged and recorded. Childs acquired title directly from the lessor, and his deed was in terms made “subj ect to a lease of a right to a stairway.” Ranney derived title to his lot through a sheriff’s deed based upon a foreclosure of a mortgage given by Ranney. In 1909 Childs procured from Godehard what purported to be an assignment of the lease. In 1911 Childs undertook to board up the door which gave access from the stairway to the second floor of Ranney’s building. Ranney brought an action to restrain such action and obtained a judgment, from which Childs appeals.
The defendant asserts a right to obstruct the passage upon two grounds: (1) that the lease was a mere personal covenant, and no rights granted by it have passed to the plaintiff; (2) that the second story of the plaintiff’s building was used as a bawdy house. There is a conflict of judicial opinion on the subject, but this court is aligned with those holding that a contract such as that made with respect to the use of the stairway runs with the land. (Southworth v. Perring, 71 Kan. 755, 81 Pac. 481.) There was evidence of the maintenance of a bawdy house ,on 'the second floor of the Ranney building. A court of equity would naturally refuse its aid to maintain access to a place of that character. But the plaintiff in a supplemental pleading alleged that he had been ignorant of the misconduct of his tenant, and that the premises had been vacated after the commencement of the action; his evidence tended to show that the nuisance no longer existed, and the court by fair inference found to that effect. Therefore neither objection to the judgment is maintainable.
In view of the fact that no error appears in the proceedings of the trial court, it is not necessary to pass upon the merits of a motion to dismiss which has been filed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
G. B. McAdow brought an action against the Kansas City Western Eailway Company upon an oral contract of insurance which he alleged had been made at the time of his employment as a motorman, by which the company agreed, in consideration of fifty cents a month being deducted from his pay, that if he should be injured in its service he should receive half wages during the time (not exceeding a year) of his resulting disability. At the conclusion of the evidence the court directed a verdict for the defendant, and a judgment was rendered accordingly, from which the plaintiff appeals.
That the plaintiff was disabled for a time by an injury received in December, 1911, in the course of his employment, was not contested. The defendant maintains that the decision was justified upon the ground that the evidence conclusively showed that its contract with the plaintiff was that the fifty cents a month referred to should be used to pay for accident insurance to be procured to the amount stated from a company in that business, the plaintiff’s claim in the event of an injury to be against the corporation issuing the policy; that a similar amount was deducted from the wages of all employees and used for that purpose, the insurance company in case of an injury making payment to the railway company, which turned the money over to the person injured. The suggestion is also ■made, that .the action was barred by a judgment for $7500 which the plaintiff had already obtained against the defendant on account of the same injury, on the theory that it was due to his' employer’s negligence. -
The ofal evidence as to the character of the contract was conflicting. ’ The plaintiff’s version was supported by his testimony, and the defendant’s by that of its superintendent. No written contract of insurance of any character-was produced. Two circumstances are relied upon by the defendant as establishing its contention in this regard by the evidence of the plaintiff himself. In 1908 he received a minor injury, as a result of which he was paid .$8.40 in virtue of the arrangement regarding the insurance. The payment was made to him by the defendant' by means of a voucher in the form of a bill or statement of account,'audited and approved by the officers of the company, the statement of the item reading:
“For amount of insurance collected from Travelers Insurance Co. Account of injuries received Sept. 3d, 1908, $8.40.”
The plaintiff' testified that he signed the receipt attached to the voucher, acknowledging payment of the amount; that he might have read the part referring to the Travelers Insurance Company, but that he knew nothing about it; that he had not applied for accident insurance, nor authorized it to be taken for him in that or any other insurance company; that he did not know whether the defendant insured itself, nor what it did with the fifty cents deducted from his pay checks. We do not regard the language of the voucher as affording conclusive evidence of the terms of any contract between the defendant and the insurance company, or of any contractual relations between the company and the plaintiff. The superintendent of the railway company, who attended to the employment of the plaintiff and other motormen, testified that he never explained to them orally about the deduction of fifty cents a month, but that he wrote orders concerning it. The plaintiff was asked on cross-examination if he always read all the notices that were posted by the superintendent. He answered, “Yes, that was our orders.” The. defendant introduced in evidence a notice signed by the superintendent, dated December 19, 1910. The plaintiff testified that he supposed it had been posted, but did n’t remember it. It was addressed to all .employees of the railway company, and began thus: “The Company has renewed the Workman’s Collective Insurance Policy for 1910 and 1911. This is the policy where the employee pays the Insurance Company 50 cents per month and receives half pay if injured from the Insurance Company.” Whether the plaintiff ever saw and read this notice would seem to be a question of fact to be determined by the jury. But assuming that he did, we can not say as a matter of law that the notice changed the character of whatever contract already existed between the plaintiff and the defendant, or that it affords conclusive evidence of what the contract was.
The defendant relies largely upon the doctrine applied in Carpenter v. Chicago, etc., R. Co., 21 Ind. App. 88, 51 N. E. 498, where it was held that no action would lie against a railway company upon a contract relating to deducting amounts from the wages of its employees to pay the accident insurr anee. The contract there involved was in the form of a certificate,’ given to the employee, signed by his employer and by the insurance company, the part which is material for present purposes reading:
“ ‘This is to certify that Emanuel Carpenter, Sec. 25, Coal Bluff, is ■insured by the American Casualty Insurance and Security Company of Baltimore, Md., against accident resulting in bodily injury or death. By the terms of the policy the above named person, so long as he remains an employe of the Chicago & Eastern Illinois Railroad Company, will receive through the paymaster of that railroad company in case of accident, however and whenever happening between the date hereof and the first day of May, 1893, the following benefits. . . . This certifi cate is issued in accordance with the policy of insurance issued by the American Casualty Insurance and Security Company to the Chicago & Eastern Illinois Railroad Company for the benefit of its employes.’ ” (p. 89.)
The language quoted makes it entirely clear that the employee was a party to a contract under which the insurance company had written an accident policy for his benefit, any payments under it to be made to him through the railroad paymaster. Here the plaintiff did not testify to such an arrangement, nor did the defendant introduce any incontestible proof of its existence. That the evidence as a whole may have tended strongly in that direction does not affect the question now under consideration. A Canadian court, however, has reached a conclusion contrary to that arrived at in the Indiana case cited, upon a contract quite similar to the one there interpreted. (McKenzie v. Garth, Rapports Jud. Quebec, 9 C. R. 224, cited in Note, 11 L. R. A., n. s., 194.)
We do not regard the recovery of a judgment against the defendant for the plaintiff’s loss of time, on the theory that his injury was due to its negligence, as barring an action upon the contract of insurance, if it actually existed. A contract for insurance against the loss of time as the result of accidental injury is not regarded as one of mere indemnity; and therefore the insurer is not entitled to a reduction of liability on account of any circumstance which diminishes the actual loss of the. insured, such as aid or compensation he may have received from another source. (1 C. J. 517.) Nor is the insurer subrogated to the insured’s rights to recover damages from the person whose negligence caused the injury. (1 C. J. 518.) The question is fully treated in Gatzweiler v. Milwaukee E. R. & L. Co., 136 Wis. 34, 116 N. W. 633, which is reprinted in the three series of selected cases. The latest decision on the subject is Suttles v. Railway Mail Association, 156 App. Div. 435, 141 N. Y. Supp. 1024, where the earlier ones are reviewed, The cause of action on the contract and that on the tort are entirely different and are independent of each other. The one is founded upon an agreement to pay a fixed amount (or an amount to be arrived at by a fixed standard) if disability is occasioned by an injury; the other is founded upon the obligation of a wrongdoer to make amends for the result of his misconduct. The circumstance that the same corporation happens to be charged both upon the contract and upon the tort does not affect the essential character of its liability.in either aspect, or take the case out of the operation of the general rule. Many courts have considered the validity and effect of a contract that upon the happening of an accident the employee shall elect between accepting the benefits of a relief fund provided by his employer and the prosecution of an action for damages. (Note, 11 L. R. A., n. s., 182.) Such a question could hardly arise if there were an inconsistency betweén the two remedies.
It is urged that the defendant had no power to bind itself by a contract for accident insurance. Doubtless it could not enter into a general business of writing policies of that character. But a railway corporation has the incidental power to make various arrangements for the protection of its own employees (10 Cyc. 1143), and no reason is apparent why it might not embody in its contracts of employment a provision that it would pay partial wages in case of disability in consideration of a deduction to be made from each pay check.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was before this court on a previous appeal. (Ray v. Railway Co., 90 Kan. 244, 183 Pac. 847.) Two actions were originally brought in justice court by plaintiffs to recover damages on two shipments of live stock from Electra, Tex., to St. Louis, Mo. The actions were consolidated in an appeal to the district court, where the plaintiffs were successful, and on an appeal to this court the judgment of that court was reversed and a new trial ordered. On the second trial the plaintiffs again prevailed, and the railway company appeals.
It appears that on or about October 22, 1910, plaintiffs shipped seven cars of cattle from Electra, Tex., to National Stock Yards at East St. Louis, Ill., or St. Louis, Mo., as the destination is spoken of. Four of the cars, containing one hundred two head of cattle, weré consigned to one commission firm, and the other three cars, containing seventy-four head of cattle, were consigned to another firm. Contracts covering the shipment provided for the filing of a verified claim for any damages caused by injury or delay within thirty days after the happening and that any suit for damages should be begun within ninety-one days after the happening. It appears that with ordinary handling the cattle should have arrived at destination in time to have been marketed on October 25, 1910, but for some reason did not arrive until about 7 p. m. of that day, causing them to be marketed on October 26, 1910, when, it is claimed, the market price had fallen ten cents a hundred and the cattle had shrunken. Claims were presented to the railway company by the commission firms in behalf of plaintiffs on October 31. and October 26, 1910, respectively, for the loss on the shipments: on the four-car shipment, $226.63, comprising $123.67 for “25 lbs. per head excessive shrink on 102 steers — 2550 lbs. @ $4.85 per cwt.,” $98.71 for “10c per cwt. decline on 98,710 lbs.,” and $4.25 for extra feed rendered necessary; on the three-car shipment, $163.13, comprising $87.87 for “25 lbs. shrink on 74 steers 1,850 lbs. @ 4.75,” $71.01 for “10c depreciation in value of cattle account appearance,” and $4.25 for additional feed. The railway company, after investigating the claims for some time, offered to pay in settlement of the former $76.92 and of the latter $92.47. This was not acceptable, it appears, to plaintiffs and this action was begun. Defendant’s demurrer to plaintiffs’ reply was overruled, and on the trial the jury returned a verdict for plaintiffs in the sum of $305.51. Defendant’s motion for a new trial was overruled, and it now appeals from the judgment rendered against it.
The principal complaint of the defendant is that a recovery was permitted although the shipping contracts expressly provided that any action for damages would be waived unless it was begun within ninety-one days after the injury was sustained; that the alleged damage, was sustained on October 26, 1910, but that the action was not commenced until September 11, 1911. The cattle were loaded at Electra, Tex., where there is no railroad agent, and when they reached Wichita Falls, Tex., which has the necessary facilities, the contracts were signed in behalf of the plaintiffs by the parties in charge of the cattle and who accompanied them to St. Louis. While a witness stated that some one at Wichita Falls told the representatives of plaintiffs to sign the contracts and that they must be signed before the train went out there is nothing in the record showing duress in the execution of the contracts, and it is expressly stated that fraud is not charged or relied on by the plaintiffs. The parties used the contracts as transportation on the trip to St. Louis and nothing is found in the testimony inconsistent with their validity. ■ The contracts being valid and the shipment being interstate the federal law controls, and under numerous decisions limitations in shipping contracts like those in question are held to be reasonable and valid. (Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847; Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. Rep. 148, 57 L. Ed. 314; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657, 33 Sup. Ct. Rep. 397, 57 L. Ed. 690; Kansas Southern Ry. v. Carl, 227 U. S. 639, 33 Sup. Ct. Rep. 391, 57 L. Ed. 683; Mich. Cent. R. R. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. Rep. 192, 57 L. Ed. 417.) The action, as we have seen, was not brought within ninety-one days after the loss was sustained nor until three hundred twenty days after that time.
It is insisted by plaintiffs that compliance with the condition limiting the time for bringing the action was waived by the defendant. ■ No attempt was made to prove an agreement to waive the limitation nor of any intention of the defendant to relinquish any right it had under the shipping contract. Waiver is largely a question of intention. There is no waiver unless so intended by one party and so accepted by the other. (40 Cyc. 261.) It is claimed, however, that defendant’s statements and acts are such as to estop it to insist on the application of the limitation. A number of letters were exchanged between the parties, and the contention is that the statements therein contained were such as to lead the plaintiffs to the belief that the requirement that an action upon the claims must be brought, if at all, within ninety-one days had been abandoned and that a strict compliance with it would not be insisted on. It may be assumed that the condition can be waived, and also that one party may so apt as to mislead another and so as to be estopped to say that noncompliance with the condition is a bar to the maintenance of the action. Here, however, the letters on which estoppel is rested were not written until long after the stipulated period of limitation had expired. The time began to run on October 26, 1910, and the first letter of the defendant touching the subject and upon which a claim of estoppel is rested was written near the end of the following April, and at that time the bar was complete and the right to bring the action had long since been lost. The subsequent correspondence disclosed a disposition on the part of the defendant to investigate the merits of the claims and to settle and compromise so much of them as were deemed to be just, but nothing indicating an intentional relinquishment of any of the rights and advantages stipulated under the contract. The first communication from defendant was a letter written on November 5, 1910, to one of the commission firms who had transmitted a claim to it, but it is no more than an acknowledgment of the receipt of a claim which was made in behalf of the plaintiffs. The purport of subsequent letters will be stated. On April 29, 1911, a letter was written by the auditor of the company, in response to one by the representative of the plaintiffs, stating that the defendant had taken up the claims with the legal department and would be in a position in a few days to advise as to settlement. On May 20, in response to another inquiry in which it was stated that the claims had been turned over to an attorney, the auditor wrote that they were receiving attention and would not be unnecessarily delayed, and that the matter had been referred to their attorney in Kansas, and as soon as his report was made they would advise plaintiffs of what disposition would be made of the claims. On June 23, 1911, the plaintiffs’ attorney wrote to the auditor of the defendant that the claims were in his hands for adjustment,- and that unless adjustment was soon made suit would be brought thereon. It was further stated that he would only wait a few days to know the purpose of the defendants On June 29, 1911, the attorney for the plaintiffs again wrote with respect to the claims, stating that the defendant had had them under consideration since the 26th day of last October, long enough to have ascertained the facts and determined what they proposed to do. He also added that he expected to leave his office about the 7th day of July for a time and that he must know about the claims, and if settlement was not made before that time he expected to institute suits on them. In July the auditor of the defendant wrote the attorney for plaintiffs in respect to the claim for $163.13, saying that their investigation showed the claim to be excessive, both as to the shrinkage of the cattle and also as to depreciation in value, and he added:
“We are willing in order to dispose of this claim and avoid any further controversy to allow $92.47 in full settlement.
“Kindly advise if we shall issue voucher in favor for that amount.”
On July 3, 1911, the defendant answered the attorney with respect to the claim for $226.63, stating that investigation had not been completed as to that shipment, but that they were handling the matter by wire and would advise something definite as to the disposition of the claim in the near future. On July 18 the auditor of the defendant wrote in respect to the claim for $226.63, saying that the bill submitted was not justified, that the company was willing, in order to dispose of the claim, to allow a reasonable shrink together with extra feed, and stating: “We are willing to allow $76.92 in full settlement of this claim.”
The statements of defendant in its correspondence with the plaintiffs indicate a desire to compromise and settle the claims •even after the right to sue on them had been lost, but the statements and negotiations about settlement at that time can not be regarded as the surrender of any right by the defendant or the waiver of a bar which had already fallen. In a case of contract limitation as to the time in which an action may be brought and where the time had not yet expired it has been held that negotiations for a settlement will not have the effect to waive the time limit nor estop a party from asserting that the right to maintain an action has been lost. (Gooden v. Amoskeag Fire-Insurance Company, 20 N. H. 73; Blanks v. Insurance Company, 87 La. [36 La. Ann.] 599; McFarland & Steele v. Peabody Insurance Co., 6 W. Va. 425; Phœnix Ins. Co. of Brooklyn v. Lebcher, 20 Ill. App. 450; Metropolitan Accident Ass’n v. Clifton, 63 Ill. App. 152.)
There is no basis for a claim that the plaintiffs were induced to postpone the commencement of an action within the stipulated time by anything said or done by the defendant as none of the letters touching the subject was written until long after the limitation had expired. The last letter of defendant relat ing to the compromise and settlement was written on July 18, 1911, and the suit was not brought until fifty-four days after that time. If the letters had been written before the time limit had expired and had been such as to have induced plaintiffs to delay bringing suit until after the stipulated time and because of that the plaintiffs had become entitled to a reasonable time after the final offer made by defendant to begin an action it-could hardly be contended that the action was brought in a reasonable time after July 18, 1911. However, the limitation, as we have seen, was not waived and the right to sue was lost to the plaintiffs in ninety-one days after the damages were sustained.
Because the right to sue had been lost long before the action was brought the j udgment must be reversed and the cause remanded with directions to enter judgment in favor of defendant. | [
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The opinion of the court was delivered by
Mason, J.:
S. D. McMahon sued the Joplin & Pittsburg Railway Company for injuries received in a collision between a covered spring-wagon in which he was attempting to drive over its track, and a freight car pushed by a motor-car. A general verdict was returned in his favor, but the court rendered judgment against him upon the special findings. He appeals.
The plaintiff complains of a number of trial rulings, including the giving and refusing of instructions and the admission and exclusion of evidence. These can not be reviewed, because he filed no motion for a new trial. The present code has broadened the powers of this court on appeal (Ratliff v. Railroad Co., 86 Kan. 938, 122 Pac. 1023), but a motion of that kind is still necessary to a presentation of such questions (McClain v. Railway Co., 89 Kan. 24, 28, 130 Pac. 646). Some of the arguments made in this connection, however, are pertinent to the discussion of the effect of the special findings.
The jury found that the plaintiff drove upon the track without seeing the approaching cars, although they were in plain sight, the view along the track being.unobstructed for a distance of half a mile; and also that the shying and squatting of his horse prevented his looking for them. Under the admitted facts and the other findings we do not regard that as an ade.quate excuse. A case is cited as contrary to this conclusion, but it arose out of a different situation, the horse being driven, not across a track, but parallel with it. (Railway Co. v. Fawcett, 76 Kan. 522, 92 Pac. 543.) The plaintiff offers another reason for his omission — that he had seen a car pass the crossing in the other direction a few moments before. A Wisconsin case is cited as supporting the view that he was not required to anticipate the approach of a car from the direction in which the first one had gone. (Duame, Adm’x, etc. v. The Chicago & Northwestern R. Co., 72 Wis. 523, 40 N. W. 394.) There a railroad freight train crossed the highway on which a traveler was approaching, and after running a short distance backed up and struck his vehicle as he was crossing the track. It was held that he was not negligent as a matter of law, since he had a right to presume the train would continue its course, and not return. The principle does not apply here. The injury was not done by the car which the plaintiff saw, but by two cars which at that time were waiting at a switch, of the existence of which the plaintiff appears to have been aware. The plaintiff also argues that the conduct of the defendant amounted. to wantonness, and thereby rendered his own negligence im-, material. We agree with the conclusion of the trial court that a finding that the employees of the defendant had no actual knowledge of the plaintiff’s peril relieved them from any charge of wanton misconduct.
But we think the application of the “last clear chance” rule forbids a judgment for the defendant upon the findings. The plaintiff testified that when he drove upon the track his horse whirled to the left (the direction opposite to that from which the cars were coming), and swung “right down between the rails,” throwing the wheels under the bed of the wagon; that at this time the cars were 150 feet away; (their speed was fixed by the jury at eight miles an hour) ; that he knew he had time to get over if he could get the horse straight; that he tried to turn him to the right and then tried to pull him back to the left, and could do neither. The jury found that the cars traveled about 150 feet while the plaintiff was urging the horse to cross, or [trying] to back him off the track, and that the cars could have been stopped, by the application of the emergency air-brakes, within about 150 feet. These findings, in view of the evidence, may be interpreted as indicating that while the cars were still at a distance within which they could have been stopped before crossing the highway the plaintiff was in a position of danger from which he had no power to extricate himself; that from that moment no diligence on his part would have averted the collision, but that proper action on the part of the company’s employees would have done so. In that case the catastrophe was not due to the concurring negligence of the plaintiff and defendant, but to the continuing negligence of the defendant, operating after that of the plaintiff had ceased, rendering the defendant liable, notwithstanding the plaintiff’s predicament may have been originally due to his own want of prudence. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680.) And in that situation the result is the same whether the defendant’s employees actually saw the plaintiff in a place of danger (from which he was unable to extricate himself) or ought to have seen him — would have seen him if they had exercised due diligence. (Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857; Railway Co. v. Clinkenbeard, 77 Kan. 481, 486, 94 Pac. 1001.)
The only difficulty in applying the rule referred to arises from the fact that the jury, having fixed the distance of the cars, at the time the plaintiff’s condition became such that he could not save himself, at 150 feet, also found that to be the distance required for stopping them by means of the emergency brakes. So that, assuming that the company’s employees would have discovered the plaintiff’s danger as soon as it arose, if they had exercised reasonable diligence in keeping an outlook, they would have had just sufficient time, by applying the brakes instantaneously, to have prevented the collision, but they would have had no margin for hesitation or- delay. Perhaps it can not be said as a matter of law that they were entitled to any. But however that may be, it is clear that if the collision could not have been entirely prevented, by reasonable effort put forth within the 150 feet limit, its force could have been greatly reduced. There was evidence that the wagon was carried for some distance (the petition says fifty feet) and dropped from a bridge over a ravine about twelve or fifteen feet deep. What part of the injury could have been prevented by reasonable diligence on the part of the trainmen after the plaintiff had become helpless was a fair question for the jury.
This phase of the “last clear chance” doctrine was not presented in the charge to the jury, nor was it distinctly and accurately stated in the instructions asked by the plaintiff, although it was there suggested in a general way. It was involved in the pleadings and evidence, however, and the plaintiff indicated, by special questions which he desired to have submitted to the jury, and which were refused or modified by the court, that he regarded the important question as being whether the company’s employees ought to. have seen him, rather than whether they actually saw him, in time to prevent the accident. It might be urged that the plaintiff, by failing to file a motion for a new trial, has waived his objections to the instructions, and they have become the law of the case; and that under the law as so established the findings require a judgment for the defendant. But this would be too harsh an application of the case-law rule. The special findings do not of themselves entitle the plaintiff to recover, because they include no statement that the trainmen ought to have seen his danger in time to have saved him. This can not well be sup plied by the general verdict, because that question was not among those the jury were directed to consider. The findings would require a judgment for the defendant except that they do not exclude certain conditions that would allow a recovery, but which were not passed upon. These vital issues were not specifically submitted to the jury — whether the plaintiff (assuming that he was negligent in driving upon the track without looking) became involved before the collision in a situation from which he could not extricate himself; whether the trainmen would have known this if they had exercised due. care; and whether, after the time that they ought to have known it, they omitted any reasonable effort that would have prevented the collision or lessened the resulting injury. The defendant is not entitled to a judgment on the findings, but the motion for a new trial which it has filed should be allowed for the reason that the only theory upon which it can rightfully be held liable under the facts stated in the findings was not presented to or acted upon by the jury, and consequently it has not had a full opportunity to meet it.
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.:
This was an action brought by School District No. 3 of Ford county against The United States Fidelity and Guaranty Company of Baltimore, Maryland, and C. W. DeLano to recover for the failure of DeLano to complete a contract for the erection of a schoolhouse. On June 25, 1909, DeLano contracted with the board of education to furnish the necessary labor and material and complete by December 15, 1909, an eight-room school building in Spearville for the sum of $15,000 upon the condition that he would pay $5 a day as liquidated damages if the building should not be completed within the agreed time, and the guaranty company gave bond in the sum of $5000 conditioned upon the faithful performance of the contract. It was an ordinary building contract and provided for the payment of ninety per cent of the contract price in installments upon estimates made by the architect and general superintendent. It also provided that work mentioned or shown in either the specifications or plans only should be considered as if in both. Provision was also made for additions or deductions and for alterations deemed to be proper or necessary. DeLano entered upon the work. He was paid, upon the architect’s estimates, the sum of $12,595.73 and $1458.73 additional was paid by the board to claimants upon DeLano’s orders. The time for completion of the building was extended by agreement to April 1, 1910, and notice of the extension was given the guaranty company, but in a letted dated December 21, 1909, the company advised that such a notice was unnecessary. DeLano continued work upon the school building until July 1, 1910, when he abandoned the work, locked the door and turned the key over to a member of the school board. The school board notified the guaranty company of DeLano’s abandonment of the work when they learned that he was not coming back, and on October 6,1910, attorneys for thje board wrote the company in detail giving an estimate that the cost of completing the building would be from $1500 to $2000 and advising of a mechanic’s lien of nearly $2000. The company took no steps to complete the building, and in fact made no response to the notices of the contractor’s default, and the board engaged the architect to get some one to oversee the completion of the build ing. Work was not begun by the board until November 21, 1910, and it was.finally completed on February 1, 1911. The case was tried without a jury and the court found the total sum due the school district to be $6379.84, including $1594.35 for liquidated damages for the delay, and rendered judgment against DeLano for that sum and against the guaranty company for $5868.08. The company appeals.
The defendant asks to be released from liability upon its bond because more than ninety per cent of the work done and material furnished had been paid to the contractor as the work progressed. The only provisions in the contract respecting the time and manner of payment were that ninety per cent of the estimates made by the architect should be paid to the contractor on or about every thirty days and all extras and the contract price were to be paid within ten days after the contract was fulfilled and accepted. It appears that payments were not made directly to the contractor in excess of ninety per cent of the estimates of the architect, but the board did pay legal claims for work done and material furnished in the erection of the building to the extent of $1458.73, which added to that paid to the contractor made a sum in excess of ninety per cent of the estimates. The stipulation requiring the owner to pay ninety per cent of the estimates as the building progressed is available to the surety where it is specifically provided for in the bond given by the surety. The contract did not stipulate for the retention of any part of the contract price until the building was completed and accepted, and there was no provision in the bond given by the surety company which specifically provided that a percentage of the estimates should be retained by the owner until the contract was carried out. As the company was insuring for profit it was not entitled to insist on the withholding of a final payment or that a particular percentage of the contract price should be retained since it was not specifically provided for in the bond which it gave. (The Y. M. C. A. v. Ritter, 90 Kan. 332, 133 Pac. 894.) Aside from this consideration it appears that the claims paid by the board to others than the contractor were for material furnished and work done in.the erection of the building. They were reasonable and proper charges which had to be paid' and which might have become liens upon the building if payment had not been made. Being valid claims it was immaterial to the company whether they were paid when due or withheld until the end, as the company had obligated itself to the owner to pay all legal claims for material and labor up to the penalty in its bond, and therefore it sustained no loss because of the time and manner in which the payments were made. In any event it has no right to complain of the time and manner of payments unless it has been damaged by a departure from the terms of the contract and of the obligation which it assumed. (The Y. M. C. A. v. Ritter, supra; School District v. McCurley, 92 Kan. 53, 142 Pac. 1077; Republic County v. Guaranty Co., ante, p. 255, 150 Pac. 590; Lumber Co. v. Peterson & Sampson, 124 Iowa, 599, 100 N. W. 550; Schrieber v. Worm, 164 Ind. 7, 72 N. E. 852; United States F. & G. Co. v. Trustees of Baptist Church [Ky. 1907] 102 S. W. 325.)
Another ground upon which the company claims a release front liability is that alterations were made and some extra work was provided for which was not mentioned in the original contract. It is true that alterations were made which provided for the finishing of the basement and the plastering of a room, amounting to between $500 and $600, but these changes appear to have been such as were within the contemplation of the contracting parties when they agreed that the board might make such alterations as it deemed proper without invalidating the contract. It expressly provided for deviation from the plans and specifications either by additions or omissions, and as the contract the performance of which the company insured authorized alterations, it, in effect, consented in advance to reasonable changes. In view of this provision the company as a compensated surety can not claim: a release from its obligation because the changes mentioned were made. (McLennan v. Wellington, 48 Kan. 756, 30 Pac. 183; Risse v. Planing Mill Co., 55 Kan. 518, 40 Pac. 904.) There was no demand for arbitration of these additions nor did the absence of it prevent a determination of the necessity and value of them in the trial.
The next complaint is of the allowance of liquidated damages to the extent of $1594.35. The contract, as we have seen, provided for the payment of $5 a day, exclusive of Sundays, as liquidated damages for each day the building was incomplete after the agreed time for completion. The time first fixed for completion was December 15, 1909, but it was extended by agreement until April 1, 1910, and of this extension the guaranty company was given notice. The contractor abandoned the building on July 1, 1910. Early notice of the abandonment was given to the guaranty company, but it did not respond to the notice nor afterwards take any steps towards the completion of the building. The board finally took possession of the building, and entered upon the work of completion on November 21, 1910, a period of four months and twenty-one days after the contractor’s default. In view of the character of the building, the use for which it was designed and the nature of the loss sustained by the delay there is no difficulty in treating the provision as liquidated damages or in holding that $5 a day is a reasonable provision for the failure to complete the’ contract in time. The board, however, could not increase its recovery by postponing action in taking possession of the building and proceeding with the completion of the work. In Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717, 26 Am. St. Rep. 101, it was held that:
“Where a party seeks redress for the wrong of another, the law requires that he shall do whatever he reasonably can, and improve all reasonable opportunities to avoid the consequences and to lessen the injury.” (Syl. ¶ 2.)
No good objection can be made for the allowance of damages from April 1 to July 1, 1910. The board was then entitled to a reasonable time in which to ascertain if the contractor or the guaranty company would proceed with the performance of the contract which they had undertaken. It is not easy to determine just what was a reasonable time, but certainly four and two-thirds months were not required to ascertain the purpose of the contractor and the guaranty company. Having in mind all the circumstances of the case it is deemed that one month and twenty-one days were sufficient for that purpose, and that therefore the damages for three months of that intervening period should be disallowed. As the board proceeded with diligence and dispatch with the completion of the building after undertaking to finish it an award of $5 a day from the time the work was undertaken by the board until its .complétion on February 1, 1911, was justified.
Complaint is made that the defendant was held liable for rebuilding and refinishing parts of the structure previously erected by the contractor. The company guaranteed faithful performance of the contract, and therefore it is chargeable for defects in the work done by the contractor as well as for the parts contracted for and upon which no work had been done by him. To correct defective construction and make the building conform to the plans and specifications it was necessary to tear out some of the construction which the contractor had made and rebuild it. The replacement of the window lights put in by the contractor and which were unfit' was a proper charge against the company. It may be that a part of the injury resulting from rain blowing through broken windows during the delay of the board in commencing work upon the building was not chargeable against the bond, but the injury resulting from the delay is so inconsiderable that it would not affect the amount of recovery' against the guaranty company, and no other party is complaining here.
There is nothing substantial in the contention of the defendant that no more should have been charged for the cost of completing the building than was suggested in a statement made by the architect in a letter to the company in November, 1910. The architect did not undertake to give a detailed estimate of the cost of completion and the contents of the letter indicated, that it was not such an estimate as he or any of the parties would rely upon. It was indefinite in amount, and was a mere rough estimate which was not accepted or relied on by the defendant.
Defendant next insists that the allowances made to the plaintiff for the completion of the building were unwarranted and indicate that the court was actuated by passion and prejudice, but an examination of the record does not lead us to that conclusion. Upon what appears to have been competent evidence the court held that the charges for material and labor were reasonable and necessary to the completion of the building and the carrying out of the contract. The computation made by the court in determining the amount paid to the contractor and to those holding valid claims for material and labor furnished has been examined and appears to be substantially correct. We have also examined the accounting made by the court as to the cost of completion, the deduction of that part of the contract price which was not paid to the contractor, and as to the interest which accumulated, and the result- obtained by the court outside of the allowance for liquidated damages appears to be justified by the record. Interest was charged on the amount paid to discharge the lien from the date of payment and on the amount paid out for completion of the building from February 1, 1911, the time when the building was completed. Interest was allowed on the liquidated damages from the completion of the building until the date of judgment. The penalty of the bond is $5000, and that, of course, is the limit of defendant’s obligation. It was the amount due which the company agreed to pay upon the contractor’s noncompliance with the contract. It became liable for these claims up to the amount of the penalty at the time they accrued and should have been paid by it, and it is chargeable with interest on these claims after that time. It ■ was decided by the supreme court of Iowa that:
“While the debt for which the surety can be held liable is limited by the penalty named in the bond, yet interest may be collected on such debt from the time when it became the surety’s duty to pay it, even though the aggregate of principal and interest is more than the penal sum.” (Lumber Co. v. Peterson & Sampson, 124 Iowa, 599, 607, 100 N. W. 550.)
(See, also, Burchfield v. Haffey, 34 Kan. 42, 7 Pac. 548; Ellyson v. Lord, 124 Iowa, 125, 99 N. W. 582; 37 Albany Law Journal, 108.)
In respect to the liquidated damages the company is liable for the number of days, Sundays excepted, between April 1, 1910, the agreed time for completion of the building, and July 1, 1910, when the contract was abandoned by the contractor — seventy-seven days; also for the working days from July 1, 1910, to August 21, 1910, the time when it is held the plaintiff should have taken possession and proceeded with the work, amounting to forty-four days; and the defendant is also liable for the time from November 21, 1910, the time when the work was actually begun by the board, until it was completed on February 1, 1911, which, with Sundays excepted, was sixty-three days; making a total of one hundred eighty-■four days, and reckoning the damages at the stipulated rate of $5 a day the principal amount due for liquidated damages was $920. The company was liable for interest on this amount from the time it was due until the rendition of judgment, which is $166.51.
In computing the principal of the debt of the company under the bond it was found that the plaintiff paid out $8295.28, and this with the $2012.12 paid on the lien which had accrued amounted to $5307.35, less that part of the contract price which was not paid, $1215.89, leaving a balance of $4091.46. To this sum should be added $920 as liquidated damages instead of $1350, the amount added by the court, making the total principal debt of the contractor $5011.46 instead of $5441.46, the amount found by the court. The company is only liable for $5000 of the principal debt, but to this sum should be added the interest which has accrued since it became the duty of the company to pay the debt. The amount of the interest, as we have computed it, is $859.66, and therefore the amount of the-judgment against the company for principal and interest should be $5859.66, which is only $8.42 less than the amount adjudged by the trial court.
The case will, therefore, be remanded with directions to enter judgment against the company for $5859.66, and when so modified the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The court sustained a demurrer to the defendants’ cross-petition. From this the defendants appeal. The plaintiff commenced the action to obtain an injunction against the defendants to restrain them from interfering with the plaintiff’s interstate commerce in beer, alleged to be sold in Missouri to residents of Kansas City, Kan., in original packages, for the personal use of the purchasers, delivered by the plaintiff from its breweries in Missouri to customers at their residences in that city. The cross-petition in substance alleges that the plaintiff is unlawfully selling and delivering intoxicating liquors in Kansas City, Kan.; that it is taking orders in that city for intoxicating liquors to be delivered therein, and making deliveries pursuant to such orders, collecting the purchase price thereof at the time of delivery; that these things are done with the intent to violate the ordinances of the city; that the plaintiff hauls the intoxicating liquors into the city for sale and delivery on vehicles with beer advertisements thereon and with the cargoes exposed to view; that under the pretense of engaging in interstate commerce the plaintiff connived at and assisted in violating ordinances passed to suppress the traffic in intoxicating liquor; that those who violate such ordinances draw their supply of intoxicating liquor from these vehicles; that the distribution of intoxicating liquors in the city by the plaintiff under its contracts of sale is a violation of these ordinances and a common nuisance under the ordinance which prohibits any person from maintaining or assisting in maintaining places where intoxicating liquors are sold in violation of law, or where persons resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale or delivery in violation of law; that the plaintiff’s business is conducted as a common nuisance; and prays that the plaintiff, its agents, servants and employees, be restrained and enjoined from carrying on the business of distributing intoxicating liquors within the city, and from engaging in or transacting any business within the state of Kansas, and from using any personal property in this state for the purpose of distributing intoxicating liquors, and from in any way violating any of the ordinances of the city.
The plaintiff demurred to the defendants’ cross-petition on the following grounds: First, that the defendants and neither of them have any legal capacity to sue; second, that several causes of action are improperly joined in the cross-petition; and third, that the cross-petition does not state facts sufficient to constitute a cause of action against the plaintiff in favor of the defendants or any one or more of the defendants. This demurrer was sustained as to the first and third grounds thereof.
1. Did the defendants, or either of them, have any legal capacity to sue ? The capacity to sue and be sued run together. In this state cities of the first class are given express authority to sue and be sued. (Gen. Stat. 1909, §§ 866, 1214.) Ordinarily, if a suit can be entertained against a person or organization, it has capacity to sue. The contention, if there is such contention, that defendants C. W. Green and W. W. Gordon do not have legal capacity to sue is without merit. This ground of demurrer was not well taken, and should have been overruled.
2. By section 4387 of the General Statutes of 1909 certain places are declared to be common nuisances, penalties are provided, and provision is made for the abatement of such nuisances by injunction. By section 4395 cities are empowered to provide by ordinance for the suppression of such nuisances. Under this power Kansas City, Kan., passed an ordinance providing :
“That it shall be unlawful for any person to maintain or assist in maintaining any place where intoxicating liquors are manufactured, sold, bartered or given away in violation of law within the city of Kansas City, Kansas, 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 violation of law.”
The cross-petition alleges that the plaintiff is doing certain specific acts, which acts violate the laws of this state and the ordinances of the city and which constitute a nuisance as defined by the law of this state and the ordinances of the city. A petition which alleges that these things are being done, and asks for an injunction to restrain their being done, states a cause of action.
By section 4387 of the General Statutes of 1909 every person who assists in maintaining a common nuisance is liable to the same penalty as though he kept it himself. The ordinance applies as well to those who assist in maintaining a nuisance as to those who maintain it. The petition alleges that the plaintiff assisted in violating the law of the state and the ordinances of the city. It makes no difference whether the plaintiff maintained these places or assisted in maintaining them. An injunction will be granted in either event.
3. While defendants Green and Gordon have capacity to sue, and might maintain an action to enjoin the plaintiff from operating the nuisance with which it is charged in the cross-petition, that action, so far as defendants Green and Gordon are concerned, must be in the name of the state, with the state of Kansas as plaintiff, and must be maintained by them as citizens of Wyandotte county. No cause of action is stated in their favor and the demurrer was rightfully sustained as to them.
4. Section 1056 of the General Statutes of 1909 reads:
“Any city may bring an action to enjoin and abate or prevent any nuisance that exists or is about to be created within the city or within three miles of its corporate limits.”
What kind of nuisances are specified by this statute? All kinds. Anything that amounts to a nuisance under the laws of this state comes within the provision of this statute. In The State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040, this court said:
“At the common law acts done in violation of law, or which are against good morals, constitute public nuisances.” (Syl. ¶ 1.)
It is argued that because the statute provides a way by which a liquor nuisance may be enjoined and abated and speci fies who may maintain the action, the city as a city can not prosecute such a proceeding. We do not agree with this contention. The city may not be authorized to maintain an action in the name of the state to abate and perpetually enjoin a liquor nuisance, but it is specifically authorized in its own name to enjoin and abate any nuisance that exists within the city. This includes liquor nuisances. The defendant city can maintain an action to enjoin a liquor nuisance operating within its limits.
5. What is a “place” as named in the liquor nuisance statute (Gen. Stat. 1909, § 4387) and the ordinances of the cities of this state corresponding therewith ? It is any place or thing in or out of which intoxicating liquors may be sold. It may be a railway train moving across the state. It may be a barrel in an alley. (The State v. Dykes, 83 Kan. 250, 111 Pac. 179.) It may be a wagon or any other vehicle moving from one part of a city- to another. It is not necessary that the place be in a building or in any particular kind of structure. (The State v. Rabinowitz, supra.)
6. The Webb-Kenyon act (Part 1, 37 U. S. Stat. at Large, ch. 90, p. 699) in substance provides that intoxicating liquors brought into this state from Missouri, and intended by those who receive them or those who send them to be used in violation of the law of this state, are not articles of interstate commerce, and the protection of the federal constitution is withdrawn from such liquors; and those who handle them are made subject to the penalties provided by the law of this state, without regard to the place where the liquors came from. (The State v. Railway Co., ante, p. 609, 152 Pac. 777.)
There is nothing in The State, ex rel., v. Brewing Co., ante, p. 215,150, Pac. 568, in conflict with the views herein expressed-In that case the petition failed to allege that the brewing companies were doing any one of the things prohibited by law.
The cross-petition states a cause of action in favor of the city. The judgment of the district court sustaining the demurrer to the city’s cross-petition is reversed. The cause is remanded with directions to overrule the demurrer to the cross-petition of the city. The judgment on the demurrer to the cross-petition of defendants Green and Gordon is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note for one thousand dollars given the plaintiff by the defendant. The defense was that the note was given for shares of the capital' stock of the mill and elevator company which were never issued. The defendant prevailed and the plaintiff appeals.
It appeared at the trial that the subject of the defendant’s stock subscription was covered by a written contract relating to the employment of the defendant as manager of the plaintiff’s mill, fixing the terms of such employment, and providing as follows:
“Second party further agrees to subscribe for and take One-Thousand Dollars in the stock of said Mill Company before this contract shall take effect — first party agreeing to accept in payment for said stock, the note of second party payable in 60 days bearing 10% interest.”
The court permitted the defendant to testify concerning his oral negotiations with the plaintiff’s board of directors leading up to the written contract. This testimony indicated that an unsubscribed portion of the plaintiff’s capital stock was to be, disposed of, the capital stock was to be increased in the sum of ten thousand dollars, and the defendant was to take one thousand dollars’ worth of the new stock. The defendant’s version of the negotiations was corroborated by one witness. The plaintiff’s objections, seasonably made, to the oral evidence having been overruled, the plaintiff produced six witnesses familiar with the facts who testified in substance that the terms of the contract were discussed and finally settled at two meetings of the board of directors, which were attended by the defendant, and that the subject of increasing the capital stock of the company was neither mentioned nor considered at either of these meetings. The district court held that the presumption that the contract was in the form intended by the parties might be overturned by parol evidence, and further held that if two classes of stock were under consideration, original and new or additional, and the parties did not intend to describe the particular kind of stock which the defendant was to take, the description could be supplemented by parol evidence.,
The first part of the court’s ruling applies only in case of fraud, mistake of the scrivener, or other basis for reformation by a court of equity. If a contract be complete and unambiguous on its face, a form expressing an intention different from that indicated by the language employed can not be shown by parol evidence. The second part of the court’s ruling likewise permitted the written instrument to be impeached. The contract contains a description of the stock to be subscribed which is neither incomplete nor ambiguous — “the stock of said Mill Company.” The stock of a named corporation duly organized and engaged in the pursuit of its charter purposes is a definite thing in existence and subject to disposition by the board of directors. A proposed increase in the capital stock of such a corporation, not yet in existence and which the board of directors can not create, is a definite thing. But the two are, as the defendant contends, quite distinct and wholly different and the substitution of one for the other by the interpolation of the word “new” or the word “additional” in the writing under consideration would be to make a new contract. The parol evidence rule is designed to foreclose just such contests as that Which took place in the district court.
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Dawson, J.:
Here are two appeals from a judgment of the district court of Chase county. On motion of appellants, they have been consolidated; and the cause now stands as it was tried in the district court.
From the abstracts, briefs, transcript of some of the- testimony, several affidavits, a certificate of the county clerk of Chase county showing an entry in a road record, and some other files and documents, we glean the pertinent facts of this lawsuit to have been as follows: One Bernard McCabe, a citizen of Chase county who died intestate in November, 1906, had been the owner of two farms and considerable personal property which included money in bank and bank stock. The two farms were known by the family as the upper farm and the lower farm, the former comprising eleven hundred thirty-two acres and the latter two hundred acres. His heirs were his widow, Jane McCabe two sons, James and Thomas, and three daughters, Etta, Sarah and Julia — all grown to maturity. On December 4, 1906, soon after the death of Bernard, these heirs entered into a written agreement whereby the three daughters were to receive $2500 each for their interest in the upper farm. Method of payment of these sums was specified, and the result aimed at by the agreement was that the mother, Jane McCabe, should own a half interest in the upper farm, and the two brothers should each own a fourth interest therein. Appropriate quitclaim deeds were to be made by the contracting parties to carry this contract into effect.
Later a lawsuit arose between Thomas and his sisters touching their respective interests in the lower farm, but it was compromised and settled, and pursuant thereto the sisters quitclaimed to Thomas their respective interests in the lower farm, and also their interests in the upper farm as agreed by them in the family settlement of December 4, 1906. These quitclaim deeds were executed January 20, 1912.
On October 15, 1910, Jane McCabe conveyed her interest in the upper farm to Thomas, reserving to herself a life estate and obligating herself to pay the taxes.
In 1911, the public road was opened across the upper farm and Chase county allowed $800 as damages therefor.
On December 6, 1912, James B. McCabe commenced an action against his cotenants for partition of the upper farm and for an accounting for repairs and improvements. Thomas answered and laid claim for rents and profits. Jane McCabe answered and filed a cross-petition against Thomas, alleging that her conveyance to Thomas in 1910 was without consideration and void. Thomas answered his mother’s cross-petition and alleged payments to his sisters of moneys due them from their mother, and that these were made relying on his mother’s conveyance to him in 1910. Many other claims and counterclaims, a mortgage on the property to the Chase County National Bank and the cause therefor and the use of the funds thus acquired, were also pleaded and in issue between the parties; but all this tangled skein was unraveled and disposed of by the district court in elaborate findings of fact and conclusions of law based thereon.
Two errors are assigned: (1) Jane and James complain because Thomas was allowed one-fourth of the rents and profits from December 4, 1906, the date of the family settlement. (2) Jane complains because her conveyance to Thomas in October, 1910, was not set aside and because she was refused a decree of ownership of a half interest in the upper farm.
1. We fear that nothing can be done by the supreme court under this assignment, and this for several pertinent reasons. In the first place, it is admitted that there is no complete transcript of the record, and appellee’s objection to the transcript is meritorious. Passing that point, the determination of the district court as to the time during which Thomas was entitled to one-fourth of the rents is controlled by the facts. By the family agreement of December 4,1906, he became the owner of one-fourth interest in the farm. It is of no consequence that the quitclaim conveyances of his sisters evidencing that fact were not executed until 1912, nor would it affect his interest if these conveyances were never made. Nor is it material that, his mother never quitclaimed to him under that agreement. She signed the agreement recognizing his one-fourth interest and agreed to execute instruments to that effect. Since she afterwards conveyed to Thomas all her interest in the upper farm, subject to a life estate, a quitclaim deed recognizing Thomas’s one-fourth interest would be superfluous. Even the abridged and imperfect transcript, and the abstracts and briefs based thereon, show that the court made no mistake here.
2. Under the second assignment, we have only to do with the result of a finding of fact, and it is not suggested how this court can lay aside the established rule that the trial court’s determination of facts upon competent though conflicting testimony is conclusive. We note the deed from Jane to Thomas and the consideration named therein, “one dollar and love and affection”; we note Jane’s signature to the mortgage executed by Thomas to raise funds to satisfy his sisters’ interests in the land and for which Jane was liable; we note her recital that she signed the mortgage “because she holds a life lease on the lands she deeded to T. H. McCabe which is included in the above-described lands.” This does not cover all the evidence touching this conveyance from Jane to Thomas but it is ample to satisfy us that it was not error to uphold the deed of 1910 from Jane to Thomas.
While not formally assigned as error, a question is raised as to the district court’s disposition of the road money. One year’s taxes on the property were paid out of these funds, and the balance was apportioned in harmony with the interests of the parties in the general accounting.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The plaintiff has filed a petition for rehearing, which upon full consideration is denied. After the expiration of the time fixed by the rules of the court for the filing of a petition for a rehearing, but while that filed by the plaintiff was still pending, the defendant also tendered such a petition, asking to be allowed to file it out of time. Such permission is granted. The defendant’s petition asks a rehearing on the ground that at the time the plaintiff requested the issuance of a paid-up certificate the association had no power to issue it, because of the enactment of chapter 211 of the Laws of 1913. That statute is entitled as one providing for “non-forfeiture values” in certificates of any fraternal beneficiary society “which values such certificates upon any established table of mortality and maintains the reserve required thereon for that purpose.” It reads:
“Any fraternal beneficiary society transacting business in this state, that provides in its laws or in benefit certificates or policies for the accumulation and maintenance of the reserve required by the American Experience Table of Mortality and an interest assumption of not more .than four per cent or that accumulates and maintains the reserve required by the National Fraternal Congress table of mortality and an interest assumption of not more than four per cent per annum or a reserve equal thereto, may grant to all its members holding such benefit certificates or policies on which the reserve as herein specified is accumulated and maintained, extended and paid-up protection and such withdrawal equities as its constitution and laws may provide with respect to such members.”
The defendant asserts that under the evidence the amount held by it in reserve on the plaintiff’s certificate was $210.42, while under the statutory test it should have been $739.97 in order to authorize the issuance of a paid-up certificate for $1500. In the petition it is said: “This statute was cited on page five of appellant’s brief but was evidently overlooked by the court in its discussion and opinion.” The reference to the statute on the page of the brief referred to was in these words:
“The act of the Association which plaintiff claims is a repudiation is the adoption on July 23, 1913, of by-laws which are found on pages 11 and 12 of the Abstract, and which provides for a rate or sum to be paid in accordance therewith by every member of the association, who desires a paid-up certificate at any time, not exceeding the face value of his certificate. This rate as determined in accordance with said by-laws required plaintiff to pay a higher rate than he had been paying if he desired a paid-up certificate. The rate to be charged was based on the experience of the defendant and the National Fraternal Congress Tables of Mortality with an interest assumption of 4 per cent which is regarded an adequate and reasonable rate to be charged for insurance among fraternal insurance societies in order -to mature paid-up certificates, and is recognized by law as such in this state. (Ch. 211 Laws 1913.) ”
The only other reference to the statute in the brief was in the concluding paragraph, where it was said:
“The legislatures of many states are requiring fraternal associations to charge adequate rates by law. The ‘Mobile Bill’ and the ‘New York Conference Bill’ has required fraternal associations to charge adequate rates, and a step in this direction has been made by the Legislature of this state (Chap. 211 Laws 1913) where the legislature has said that the American Experience Table of Mortality and 4 per cent interest or the National Fraternal Congress Table of Mortality and 4 per cent interest shall be the rates charged by fraternal associations issuing paid-up certificates. It seems to us that this Association has anticipated the feeling that is going through the country, that the rates charged by fraternal associations are too low, and has voluntarily raised its rates and has done what the legislature of various other states has forced upon the fraternal associations, and that this court should sustain its action.”
The question of the effect of the statute of 1913 upon the plaintiff’s rights does not appear to have been raised in-the district court, and we do not regard the matter just quoted from the defendant’s brief as presenting it or even suggesting it for the consideration of this court. The statute took effect on March 19, 1913. The plaintiff pleaded that he demanded a paid-up certificate on January 11, 1913. His evidence showed a formal demand made by letter on May 29, 1913. He testified that he presented in all four or five demands. One was shown to have been made later than this date. The others were probably earlier. We conclude that the contention that any right the plaintiff would otherwise have had to a paid-up certificate was cut off by .the statute'was not raised in time, and should not be considered in this action. The defendant’s petition for a rehearing is denied on that ground. | [
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The opinion of the court was delivered by
West, J.:
A reexamination of the abstract in addition to a reading of the transcript itself discloses that Draper, who charged the defendants with stealing five of his turkeys thought he counted his flock on the 21st, for he counted them almost every day, and at noon on the 23d he missed five. Having-tracked the horses to the Cole place, and there measured their hoofs, the measuring stick being produced at the trial, the shoes of the defendants were measured, but were found not to correspond to the tracks in the alfalfa field, and the stick used in such measurement was not even preserved. The prosecuting witness was able to identify only two turkeys, and some doubt might well be raised as to one of these. It is fairly well established that shortly before this some of the defendants’ turkeys strayed away nearly to the Draper farm and had been brought home. The defendants showed a readiness to produce the horses for examination and to permit Draper to examine the turkeys on the place, and while they were said to have shown some nervousness this would have no bearing on the time of the alleged offense. On the night in question the defendants drove along the road by the Draper place. This is admitted. The main circumstances pointing to their guilt were the possession of the two turkeys claimed by Draper and the hoof prints found in the alfalfa field between the road and the turkey pen. The'fact that the footprints were not shown to correspond at all with the shoes of the defendants makes it impossible to say that all the circumstances point to their guilt, and while it might be said that there is as much evidence of a larceny in the night as in the daytime, the latter must be based largely upon the possession of the identified property of Draper and the hoof prints, which were measured in such a way as to leave much room for doubt as to their identity with those of the defendants’ horses. It is a case of reliance upon circumstantial evidence for conviction of a felony, some of the significant circumstances being quite consistent with the theory of innocence and inconsistent with that of guilt.
One or two inaccuracies of statement in the former opinion have been pointed out, but they are not substantial, and the decision already rendered will remain the conclusion' of the court.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
A firm at Houston, Tex., gave to the Western Union Telegraph Company at that place, for transmission to J. E. and S. C. Brewer, merchants at Abilene, a telegram ordering the shipment of a hundred cases of eggs (8000 dozen) at twenty-six cents a dozen. The message as delivered read “thirty-six cents.” The Brewers filled the' order. The consignees refused to accept the eggs at thirty-six cents, and on the representation that their order named twenty-six were allowed to take them at that price. The shippers then sued the telegraph company for the loss occasioned by its mistake, and upon a trial without a jury recovered a judgment for $224, from which it appeals.
The recovery was evidently on the basis of a loss of seven and one-third cents a dozen, the additional $4 being for protest fees on the draft made against the shipment. The parties agree that the measure of damages is the difference between the amount the plaintiffs were able to obtain for the eggs and their market value at Abilene at the time of the shipment. But the defendant insists that there was no evidence whatever that they were worth more than twenty-six cents a dozen. The plaintiffs candled the eggs before shipping them. There was testimony that they were worth from thirty-five to thirty-six cents a dozen; that before being candled they were worth thirty cents, and that the candling cost from four to five cents a dozen. Matters were brought out on cross-examination having some tendency to discredit these estimates, particularly in that the specific sales testified to were in less quantities than the Texas shipment, and that sales at twenty-six cents had been made shortly before and shortly after that shipment. But it can not be said as a matter of law that all basis for them was removed. As to the amount obtainable at Houston for the eggs, the plaintiffs are not concluded by the fact that they allowed the buyers to take them at twenty-six cents. Upon being advised that this was the offer actually made by their customer they were justified in settling on that basis. They were not bound at that stage of the proceedings to take their chances of finding another purchaser for the eggs. The defendant maintains that the order did not call for candled eggs, and that there was no occasion or warrant for candling them. The telegram, which was sent January 15, 1910, read: “Ship hundred cases aprils monday thirty-six.” On January 6 the Texas firm had written to the plaintiffs, acknowledging a quotation of twenty-seven cents, saying that that price was too high, and complaining of the condition in which a part of an earlier shipment had been received. The plaintiffs answered January 8, agreeing to make good the loss referred to, and concluding:
“We note that you will likely need some more storage eggs, stock are getting low with prices higher and indications of a still further advance. We have a few mays, also about fifty cases aprils which went into this cooler the forepart of may left. There is a car of late aprils here owned by a party outside of town which we have for sale, all of the above will be sold as they come out of the cooler and not candled.
“Should you need any eggs for local shipment we have a few hundred cases of our early aprils left that we will agree to candle for you prior to shipment and thus avoid complaints on quality, besides this will give you some find [fine] stock.. however the price will be quite a bit higher, as we find it costs us considerable to candle this april stock at this time of the season.
“Let us hear from you.”
It was a fair question for the determination of the trial court whether under all the circumstances the plaintiffs understood and had sufficient grounds for understanding that the offer of thirty-six cents was intended for candled eggs.
It is suggested that the plaintiffs should not have been allowed to recover the protest fees on the draft. No reason is apparent why they were not entitled to this. The telegram was an order to ship the eggs. It was in accordance with ordinary business usage that a draft should be made against them. The telegraph company might reasonably have anticipated that in the event of a mistake in transmitting the telegram, by overstating the price offered, the draft would go to protest.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action compensation was awarded under the workmen’s compensation act. (Laws 1911, ch. 218; Laws 1913, ch. 216.) Clifford Aekerson was working for The National Zinc Company, and while so engaged his leg and foot were burned by hot ore so that the flesh fell from the bone. It is conceded that both parties were operating under the compensation act. The injury was sustained on July 30, 1913, and on September 29, 1913, Aekerson brought an action to recover damages, claiming that the injury was the result of negligence on the part of the company; but on April 22, 1914, he amended his petition and asked for compensation for permanent disability under the compensation act. He alleged that the parties had not agreed on compensation and that no award had been made, and, further, that he had served no written notice of the accident as defendant knew of the same and was not prejudiced by his failure to give it. In the answer defendant alleged that plaintiff’s injury was slight and did not disable him as long a period as two weeks and hence no recovery could be had under the adt. It was also alleged that no notice of the injury had been given within ten days after it occurred and that no claim had been made for compensation under the act within three months after the accident, and, therefore, a recovery of compensation became wholly barred.
As to the notice of the inj ury it appears that it was brought to the attention of the foreman of the company at once, who sent plaintiff to the physician employed by the company who examined and treated the injury at the time and who after-wards visited the plaintiff at his home. Aside from that plaintiff sent a note by his wife to the company within a week after the accident occurred in which he stated that he had been injured and was unable to go down town and asked the company to send him his pay check for services previously rendered. The defendant appears to have been fully informed as to the accident and the character of the injury and certainly it was not prejudiced because formal notice was not given. A defect in the notice or in its service is no bar to a recovery unless prejudice has resulted to the employer because of such defect. (Laws 1911, ch. 218, § 22, amended by Laws 1913, ch. 216, § 6; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413.)
It is next contended that plaintiff did not give notice that he would claim compensation within three months after the accident. If the notice of the injury is to be treated as something apart from notice of the claim for compensation, and if the provision that lack or defect in notice is not a bar to re: covery if the employer suffers no prejudice is not applicable to a claim of compensation, it may still be held that a recovery was not barred in this instance. It'was held in Roberts v. Packing Co., supra, that an employer may waive the requirement as to notice and claim of compensation and that a motion of the defendant asking that a limited amount be awarded to plaintiff operated as a waiver of the failure of the plaintiff to make a formal claim. In this case, after raising the question that notice and claim had not been made the defendant moved the court to make an award of weekly payments, allowing the plaintiff $223.50 up to the time of judgment upon which execution might issue at once, and $852 to be paid at the rate of $3 per week and staying execution on the latter sum as long as the payments were regularly made by the defendant. Later the defendant asked the court to reduce the judgment and award the plaintiff eighty per cent of the verdict and to allow the judgment to be discharged by the payment of the reduced amount. Although the defendant had previously objected to any allowance and had moved to vacate the verdict on various grounds, it finally took the inconsistent position of asking the court to make an award of weekly payments for an amount less than that fixed by the jury. Within the authority of Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413, this is a practical waiver of an omission to make a claim within the prescribed time. Besides, as we have seen, thé defendant had notice of the injury and through its physician had undertaken to repair it. The common-law action brought by plaintiff to recover damages informed the defendant of the nature of the injury, the extent of the disability, his earning capacity and the loss which resulted from the injury, and, further, that plaintiff looked to the defendant to compensate him for that loss. It is true that he asked for damages rather than compensation, but the averments of the petition afforded the de fendant notice and information which served the purpose of the statute as effectually as would an express demand for compensation. The manifest purpose of the notice and claim is to give the defendant an opportunity to ascertain the nature and extent of the injury and to adjust the compensation with the employee if it can be done, and if it can not be so adjusted to obtain and preserve the evidence so as to make a proper defense against an action to be brought by the employee. The-petition filed by the plaintiff appears to fully answer these purposes. In its answer the defendant alleged a failure to give notice and claim, but in the same pleading it specifically stated that the injury did not disable the plaintiff as long as two weeks, that he was not wholly or partially incapacitated from labor by the injury, and hence was not entitled to compensation. That being the attitude of the defendant a claim or demand by plaintiff would have been useless, and the general rule is that where a demand would have been unavailing if made proof of demand and refusal is not essential. (Raper v. Harrison, 37 Kan. 243, 15 Pac. 219 ; C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 49 Kan. 399, 30 Pac. 456; Chapin v. Jenkins, 50 Kan. 385, 31 Pac. 1084; Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883.)
It is clear that the defendant is not in a position to insist upon a reversal of the judgment because of omission or defect in notice of injury or in demanding compensation, and it is equally clear that it suffered no prejudice because of such omission or defect.
There is a further contention that an action in court is not available until an effort has been made to adjust compensation by agreement or arbitration. The statute provides three methods of providing and determining the compensation to be made: one, by agreement; another, by arbitration; and it is. provided that compensation may, “in default of agreement or arbitration, be determined and enforced by action in any court of competent jurisdiction.” (Laws 1911, ch. 218, § 36.)
The statute does not provide that an effort to agree or to procure an arbitration is a prerequisite to the bringing of an action. It is true that in- most cases compensation is adjusted by agreement, but adjustment by either agreement or arbitration involves the voluntary action or consent of the parties, and nothing in the act indicates that either is or can be compelled to adopt one method of adjustment rather than another or that an effort to obtain one must be made before another is available.
Our determination of the questions considered disposes of most of the'objections to the instructions, and some of them are answered in Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413, and other decisions interpreting the provisions of the compensation act.
The power and propriety of giving judgment for a lump sum have received sufficient consideration in earlier cases. The trial courts are vested with discretion whether compensation should be awarded in that form or in weekly payments. It is, of course, a legal discretion which is to be exercised in conformity with the spirit of the law and in a way that will best promote the ends of justice. One method is not to be chosen in preference to another arbitrarily or merely to suit the convenience or to lessen the labors of the judge, but he is to consider the circumstances developed in the trial and apply the method which will most effectually promote the welfare of the parties. Some of the governing considerations are stated in Roberts v. Packing Co., supra, and still others may be readily imagined which would appeal' to the sound discretion and best judgment of the trial court. In case the judge acts arbitrarily and abuses the discretion vested in him the error may be corrected on appeal. It is true that it is not always easy to show that judicial action although arbitrary is not an exercise of judgment, not easy to show it is an abuse of discretion, but the difficulty of obtaining a review of such decisions will prompt courts to give thoughtful and careful consideration to the evidence and do what is reasonable and just under the circumstances. As has been said:
“It is to be expected that district courts will act cautiously and candidly and not render lump-sum judgments for any other reason than that the welfare of the parties requires it.” (McCracken v. Bridge Co., ante, pp. 353, 356, 150 Pac. 832.)
We find nothing substantial in the objections to the instructions or to the findings of the jury, nor any material error in the proceedings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
H. H. Clark sued George Townsend for the reasonable value of his services in negotiating for him the purchase of a number of tracts of land. A verdict was returned for the defendant, on which judgment was rendered. ■The plaintiff appeals.
The only reply was a general denial. The defendant was permitted to introduce evidence of an agreement that the services rendered by the plaintiff were to be gratuitous. The plaintiff contends that this was not permissible under a mere general denial. Text-writers approve the practice adopted (3 Ene. L. & P. 1348; 1 Sutherland’s Code Pleading Practice and Forms, §410; Phillips on Code Pleading, § 383), citing, however, but one decision in its support (Schermerhorn v. Van Allen, 18 Barb. [N. Y. Supr. Ct.] 29). The contrary rule has been announced, likewise with the citation of but one case. (Kinne’s Pleading and Practice, 2d ed., § 298, p. 284, citing Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, which was followed in Schroeder v. Schroeder, 119 Iowa, 67, 93 N. W. 78.) A similar disagreement exists as to proving any special contract under a general denial. (22 Encyc. of PI. and Pr. 1371, note 5.) In an action for the value of services the object of good' pleading would seem to be promoted by alleging in the answer that an agreement existed that no charge was to be made where that defense is to be relied on. But here the petition itself was framed in the most general terms — practically the old common counts — while reliance was had upon a written contract. The judgment was rendered upon a second trial, and it is clear that the plaintiff was in no way misled or prejudiced by the form of the pleadings. Therefore the ruling as to the scope of the answer could not be a ground of reversal, Whatever rule of pleading should be followed. (Civ. Code, §§ 134, 141.)
The plaintiff produced a document in the form of a letter, dated January 8, 1909, addressed to him and signed by the defendant, which read as follows, the parts relating to the terms of purchase being omitted:
“You are hereby authorized, acting for us and as our agent, to purchase any or all of the following tracts of land at prices not exceeding the prices indicated after said tracts. . . . 'We will guarantee you in the matter of the money you advance on these tracts which are taken •for us.
“You will, of course, get these contracts at just as much lower than these prices as you possibly can.”
The plaintiff contends that in allowing testimony of a prior or contemporaneous oral agreement that his services were to be rendered without charge the court erred, such ruling being in violation of the principle which forbids the reception of parol evidence to vary the terms of a written contract. Wherever the law attaches a fixed consequence to the language used, and thus by interpretation reads into a document a term which otherwise might be regarded as omitted, the matter implied is as much a part of the instrument as that which is written, and can not be varied by oral evidence. (Doolittle v. Ferry, 20 Kan. 230; 17 Cyc. 570.) Therefore where a writing is silent as to some particular element of a contract (for instance the time within which it is to be performed, or the amount to be paid), under circumstances compelling the inference of an intention to be governed by the standard of what is reasonable, a specific agreement on the subject, resting in parol, may not be shown. (17 Cyc. 570, 571, notes 66 and 69; 9 Encyc. of Ev. 349; 2 Parsons on Contracts, p. *552; Standard Box Co. v. Mutual Biscuit Co., 10 Cal. App. 746, 103 Pac. 938; Cameron Coal & Mercantile Co. v. Universal Metal Co., 26 Okla. 615, 110 Pac. 720; Smith Sand & Gravel Co. v. Corbin, 81 Wash. 494, 142 Pac. 1163.) But whether oral evidence may be allowed to supplement a contractual writing, by supplying a term not therein referred to, depends upon whether the instrument was intended to cover that feature of the transaction. (4 Wigmore on Evidence, §2430; 17 Cyc. 741.) Language has often been used indicating that this must be determined from a mere inspection of the document. For instance, the second paragraph of the syllabus in Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, might be open to that interpretation. But a more accurate statement of the rule allows outside evidence for the purpose at least of showing the conditions surrounding the transaction and the relations of the parties. (17 Cyc. 746, 747; 4 Wigmore on Evidence, § 2431.) Where one performs services at the request of another without any express agreement as to compensation, a contract to pay a reasonable amount is implied, in the absence of circumstances giving rise to a different inference. Yet this fact does not prevent the making of a memorandum covering the character of services to be rendered, but not the amount of compensation.
The presumption that one who performs services at the request of another is entitled to reasonable compensation is rebuttable. A counter presumption may arise from circumstances justifying an inference of an intention to do the work gratuitously. (40 Cyc. 2845.) Here the letter from the defendant to the plaintiff does not purport to set out all the terms of a contract between them. It is in substance a certificate of the plaintiffs authority to represent the defendant in making contracts for the purchase of the tracts referred to— in effect a power of attorney. It is equally consistent with an express agreement to pay according to the time consumed, or upon a commission basis, or with an implied understanding that the plaintiff should be paid whatever was reasonable. Therefore evidence was competent that tended to show an express agreement that no charges should be made, or to show circumstances justifying the inference that such was the intention of the parties. An exactly similar situation was presented in “Joannes” v. Mudge & another, 88 Mass. 245, where the opinion concludes thus: “The power of attorney says nothing about compensation. It has its full effect equally whether he was to be paid or not. The law will imply a promise to pay for services rendered by the plaintiff at the request of the defendants, whether the request is written or oral, if the services are of value, and nothing more appears; but the employment is merely evidence of a promise to pay, and the implication may be rebutted by evidence.” (p. 246.) Cases illustrating the principle are collected in 9 Encyc. of Ev. 452, note 84, and in 17 Cyc. 745, note 43.
For the purpose of proving that the parties to the transaction-understood that Clark was to receive no payment for his services in buying the land for Townsend, the defendant introduced a writing prepared in December, 1908, as the basis of a written contract which was executed on January 6, 1909. The writing itself was never signed. One paragraph of it read as follows:
“H. H. Clark agrees to lend his aid in procuring such additional land & privileges for the benefit of the Constn. Co.’s project for one-fourth stock in all companies as may be deemed necessary by Geo. Townsend and C. F. Enright without cash remuneration, not to exceed 30 days. The optional money to be paid from sale of the land and Clark to be Industrial Commissioner.”
The plaintiff contends that this document should not have been admitted because it never was executed; because it constituted a part of the negotiations which led up to and culminated in the contract of January 6; and because upon its face it related to an agreement between Clark and a construction company, and not between Clark and Townsend. Clearly it was not admitted as a contract binding upon the plaintiff, or for the purpose of affecting in any way the instrument of January 6. It was obviously received as showing one step in the development of the relations of Clark and Townsend, for whatever light it might throw upon the question whether or not their intention was that Clark was to be paid in money for his services in buying the land. In that view we think it was competent. Various circumstances were brought out from which it might be inferred that Clark had such an interest in furthering the projects which Townsend was promoting that he gave his services to that end with the understanding that he was .not to be otherwise compensated. This question seems to have been fairly tried out, submitted and determined, and we' find no reason for interfering with the decision of the trial court.
The judgment is affirmed. | [
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Allen, J.
There are 17 specifications of error in the brief. Most of them, however, merely present in different forms the same 'proposition, the substance of which is, that the defendant failed to allege and show that the property destroyed was a part of the freehold and added to the value of the farm, and that the destruction thereof diminished its value. It is urged that the petition is insufficient for the purpose of a recovery as for an injury to the land, and that the case was erroneously tried on that theory. The petition alleges that the plaintiff was the owner of the land, and that the trees, etc., were growing and standing upon it; that the defendant negligently permitted fire to escape from . . xts engine, and that such fire spread and burned them. We fail to perceive any essential fact omitted from the petition. A fruit tree, bush, or vine kept standing or growing for its fruit, or a shade or ornamental tree or bush, is a part of the realty, and presumably adds to the value of it. There is nothing whatever in the petition or evidence indicating that the orchard that was destroyed bore any different relation to that realty than orchards usually do to the land on which they stand ; and it hardly seems a question open to discussion whether orchards and ornamental trees and shrubs are to be treated as a part of the realty. There is no question here concerning nursery stock or severed timber. The ques tion as presented by objections to the testimony offered, varies but little, in substance, from that raised on the demurrer to the petition. It is that proof was made of the amount of damages to the farm without any corresponding averment in the petition, which stated the value of the different trees and shrubs destroyed and injured. The facts stated in the petition showed an injury to the freehold, and it concluded with the statement that that injury was to plaintiff’s damage in the sum for which she asked judgment. It is never necessary, nor even proper, to plead conclusions of law, nor deductions from the facts on which a cause of action arises. It is always desirable that the pleader state concisely the facts constituting his cause of action, and thereupon demand the relief he is entitled to. The trial court rightly held that testimony concerning the value of the trees should be confined to their value to the farm and as a part of it.
The defendant also objected to witnesses being allowed to state the value of the trees and other things destroyed as a part of the freehold, on the ground that this was allowing them to assume the province of the jury and fix the plaintiff’s damages. It is contended that the question should have been confined to the value of the farm as a whole before and after the injury, leaving the jury to compute the damages by deducting one from the other. While this is undoubtedly the regular and proper method of arriving at such damages as cannot be itemized and definitely measured in detail, it does not preclude the use of the best evidence which the nature of the case affords. Where a thing, whether it be a building, a tree ox-shrub, is destroyed by a wrong-doer, the most natural and best measure of the damage is the value of the thing destroyed as an appurtenant to, or part of, the realty; and ordinarily the value of the thing destroyed would be the measure of the injury to the freehold. If for any reason the injury to the realty should be in fact less than the value of the thing destroyed, the plaintiff’s recovery would be limited to the actual diminution in value of the realty. While this might be shown, either on cross-examination of the plaintiff’s witnesses, or as a matter of defense, it does not prevent proof by the plaintiff of the value of the thing destroyed as a part of the realty, as was done in this case.
There are a number of other assignments of error on the admission of testimony. One is that the Court erred in admitting the records, from the office of the Register of Deeds, of various deeds in the chain of the plaintiff’s title to her farm. She produced three original deeds, one of which was from her mother to her, and the record was the only proof of the other conveyances in her chain of title. The objection is, that it was not shown that the originals were not in her possession. Though the evidence adduced was not very satisfactory, the testimony of her brother tended to show that he had charge of all her papers relating to the land, and that the deeds produced were all she had. In some cases, a trial court might with propriety have insisted on more strict preliminary proof, but in this case it appeared, without contradiction, that the plaintiff was in possession of the land, claiming to hold it under the deed from her mother. This .was clearly sufficient as a prima facie showing of title, and there being no evidence against it, an error in admitting the records, if error there was, would be immaterial. Complaint is also made of the admission of the testimony of the section-foreman, Jury, that two fires were reported as set out by that train, and also of the admission of the testimony of Henry Gintzell to statements made to him by the claim adjuster of the Company with reference to the' fires that were started, and especially the one that burned the plaintiff’s property. If, as claimed by the defendant in error, the witness, Jury, meant merely to state what fires he reported to the Company as having occurred on his section, perhaps the evidence was admissible ; but the testimony of Gintzell as to what the adjuster told him appears objectionable. The error in its admission is unimportant, however, for the testimony of the witnesses for the defendant, as well as of those for the plaintiff, all tended to show that this particular fire was started by the engine of the defendant, and that at least one other fire was also started by it near by on the same trip. The fire that burned the plaintiff’s property is not accounted for in any other manner than by having escaped from the defendant’s engine ; and there really was no conflict in the evidence on that point. No witness on either side attempted to account for it in any other manner ; while the witnesses for the plaintiff testified that they saw the fire start on the right of way just after the train passed, and the plaintiff testified that she saw a fire start down the road, south and west from the one that passed over her place, and that she watched and saw this fire start just as the train passed. The defendant had the engine examined after it arrived at Sedalia, because it was reported that fires had been started. Although no witness testified to having seen a spark pass from the. engine to the dry grass and start a flame, the connection of the fire that burned the plaintiff’s property with that of the defendant’s engine is traced by the proof in the case about as well as a prairie fire can often be traced to a locomotive engine, and by evidence which is quite harmonious so far as it goes.
G. S. Mosteller testified at length concerning the number and kinds of trees and shrubs killed and injured, and their value ; he was examined and cross-examined minutely with reference to all the particulars. Thereafter, A. J. Baker was called, and testified to having been through the orchard in June, before the fire, trimming the trees ; that he was in it a few days after the fire; that he appraised the damages to the orchard with Mosteller and Linton. He was then asked:
“I wish you would go on and state to the jury to what"extent,— state the number of trees.
“Court: Did you hear Mr. Mosteller’s list given here? A. Yes, sir.
“Court: Is that correct? A. Yes, sir. His expression is mine exactly.
“Did you three appraisers agree upon the number of trees, and value of each tree? Yes, sir.”
This question was objected to by the defendant as incompetent and irrelevant, and the objection was overruled by the Court, for the purpose of saving time.. Similar questions were asked the witness Linton, and a similar ruling was made. This is certainly a very objectionable method of examining witnesses. One witness ought not to be called on to either indorse or criticise the statements of another with reference to the assessment of damages in such a case as this. His statements of fact, should be only of what he himself knows, and the estimates of value should be his individual judgment, unbiased by the opinions or expressions of others. This error requires a reversal of the judgment, unless we can say with a fair degree of certainty that the jury were not influenced in their assessment of damages by the objectionable testimony. The estimate made by the witness, Mosteller, aggregates over $3,500. The defendant called several witnesses who testified on the same subject.' C. E. Stoner gave a detailed statement of the number and grades of trees killed and damaged, and a very exact estimate of the values of those killed, and the damages to those injured. His estimate fixed the total amount of damage to apple trees at $1,820.90. I. B. Garrison was not very definite in his statements, but fixed the number of trees killed and damaged at 384, and the damages at $4 and some cents each. He made no estimate on the other items. J. D. Watson, also a witness for the defendant, who appears to have made an examination of the orchard with Mr. Garrison, testified that they estimated 384 apple trees damaged and killed, and, estimated the average damage at $4.50 per tree ; and that the total amount of all the damage, as estimated by them, was something over $2,000. He had lost his memorandum and could not tell the exact sum. One witness for the defendant estimated 120 rods of hedge as damaged to the amount of 38 cents a rod. No witness for the defendant appears to have given an estimate of the damage to the budded-peach, walnut, plum and cherry trees. In answer to the ninth special question submitted, the jury gave the items of damage allowed by them, from which it appears that $1,755 only was allowed for apple trees killed and injured. This was $65.97 less than the estimate of the defendant’s witness, Stoner, and $27 more than that stated by Watson. From this it will appear that the allowance was below the average of the estimates of the defendant’s, own witnesses. The total amount allowed was $2,140. Stoner, who gave the only detailed estimate made by any witness for the defendant, testified to items aggregating $1,961.57, but omitted several items named by other witnesses. It is evident that the jury in fixing .the amount of the plaintiff’s recovery accepted the testimony of the witnesses for the defendant, in the main, and that the verdict was not materially influenced by the objectionable testimony. The whole amount allowed is but $140 over $2,000, and the defendant’s witnesses allowed something, though we do not know how much, over $2,000. The difference between the verdict and the estimate of Mosteller is so very large that it is evident they did not, to any material extent, accept his estimate, or that of the other witnesses for the plaintiff who merely indorsed his statements. It is clear, therefore, that the objectionable testimony did not work such substantial injury to the defendant as would warrant a reversal of the judgment.
The second instruction asked by the defendant does not correctly state the law, and was rightly refused. The instructions as to the measure of damages, which the Court gave, were correct, and the question discussed with reference to them has already been sufficiently considered while speaking of the sufficiency of the petition.
The action of the Court in striking out a large number of the special questions asked was entirely proper. Most of those which the Court refused to submit were more in the nature of a cross-examination of the jury than of properly framed questions calling for special findings. Seventy-four questions were asked, and, of these, 31 were submitted and answered.
It follows from what has already been said that the Court did not err in rendering judgment on the verdict, and that that judgment must be affirmed.
We are asked by the defendant in error to impose a penalty of five per cent, on the amount of the judgment, under sections 576 and 578 of the Code of Civil Procedure. Whether or not this Court has the power to impose such penalty in any case', we do not deem it necessary to decide now. No practice of the kind indicated in section 578 has ever been followed in this Court, but whether it is authorized or not we think there were reasonable grounds for the proceeding in error in this case.
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Johnston, J.
An action was brought by the New Hampshire Banking Company against Hiram L. Ball and Eva Ball to recover upon a promissory note given by them for $2,000, and to foreclose a mortgage which they had given as security for the payment of the note. Other persons who claimed an interest in the real estate were made parties. Within four months thereafter, Hiram L. Ball, who held the legal title to the mortgaged land, died and left surviving him his wife and three sons. Within a year from his death a motion was made to revive the action against the administrator of the estate, and the heirs, and the motion was allowed. More than a year after the death of Hiram L. Ball, the heirs and administrator challenged the validity of the revivor, upon the ground that the attorney who appeared to have consented to a revivor for them was without authority and did not in fact consent to a revivor. Before the question was determined or a trial upon the merits had been reached, the plaintiff offered and undertook to dismiss the action without prejudice. The court, however, denied the application to dismiss without prejudice, and thereupon, on application of the defendants to dismiss with prejudice, testimony was heard, and a finding made that there had been no legal revivor of the action within one year after it could have been first made and that the action died. The conclusion of the court was, not only that the action had abated, but that the cause of action upon the note and mortgage was absolutely barred, and that the plaintiff had lost all right to enforce payment of the note. The judgment was that the action should be dismissed with prejudice to a future action on the note and mortgage.
The plaintiff is entitled to control the disposition of his action, where the application is seasonably made and until the final submission of the cause. It was a common-law right, and, in this State, the statute expressly provides that the plaintiff may dismiss without prejudice to a future action, before the final submission of the case to the jury, or to the court, where the trial is by the court. § 397, Civil Code. Until that time, the right is absolute, to be exercised by the plaintiff at its option, and without the consent of the defendants. The court committed error in denying the application and in proceeding to the tidal of the cause. Amos v. Loan Ass’n, 21 Kan. 474; Ashmead v. Ashmead, 23 id. 263. The court was not justified in dismissing the case with prejudice; and, even if the facts are as found by the court, that there was no revivor within one year after revivor could be first made, it would not warrant the court in entering an order and judgment barring and canceling the plaintiff's note and mortgage. If by lapse ^ cannQt b@ revived> it abates, and any rights that have been acquired by virtue of the pendency of the suit will be lost to the plaintiff. It is-not to be treated, however, as á statute of limitations against the cause of action, arid the extent to which the court is authorized is indicated in section 435 of the Code, namely, to “order the action to be dismissed at the costs of the plaintiff."
The judgment of the District Court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Johnston, J.
This is a controversy over a stock of merchandise, between the mortgage, and attaching, creditors of John P. Cole. For many years he carried on a grocery business in Topeka, sometimes carrying a stock worth $50,000; and the volume of business transacted by him for a great part of the time was very large. He purchased goods upon credit, and became largely indebted to the jobbers from whom he purchased, as well as to others. In 1891, his stock had dwindled in value to $7,000 or $8,000, and he was then financially embarrassed and actually in an insolvent condition. A number of actions had been begun against him by his creditors, and, after some of these actions were begun, and on August 11, 1891, he undertook, in connection with his wife and three of his clerks, to organize a corporation, under the name of the John P. Cole Grocery Company. He claims to have transferred his entire stock of goods, together with the unsettled accounts, to this Company, for- the alleged consideration of indebtedness to his wife and clerks and the assumption by the Company of what he called his mercantile debts. He received no money from any of the parties at the time of the transfer, nor yet the promise of any. Five thousand dollars of the stock of the Company was given to his wife, $1,500 to one of the clerks, and $200 each to two other clerks ; and he retained $1,500 of the stock himself. He claimed that he was owing his wife $5,000 for borrowed money, and that he was also owing one of his clerks $1,500, the face value of the stock issued to him. On October 13, 1891, attachment proceedings were begun, and a levy was made upon the stock of goods as the property of John P. Cole. Dolan, Drury & Co. had a large claim against Cole, and, learning of the attachments and of his trouble, they came to Topeka, and, on October 19, 1891, obtained a mortgage upon the attached goods, executed by the Company. The property was then in the custody of the Sheriff under the attachments, and on' the following day they commenced this action to recover • possession of the goods.
The claim of the attaching creditors is that the transfer was. not an honest or valid transaction, but was done .for the purpose, of hindering and delaying creditors of John P. Cole ; and that the property seized was in fact the property of Cole. The jury found that the transfer was fraudulent, that Cole was not indebted to his wife, and that there was no evidence of indebtedness to his clerks who joined him and his wife in the organization, except that he appeared to owe about $25 each to two of them ; that the Company did not assume to pay the mercantile debts of Cole ; and the jury further found that plaintiffs in error knew the character of the transfer and the fraudulent purpose of the parties to the same. There is considerable testimony in the record which tends to impeach the bona fides of the transaction, and, while the testimony is conflicting, we have no difficulty in saying that it fairly tends to support the findings of the jury. It is true, as plaintiffs contend, that Cole was at liberty to prefer creditors, and might have transferred »his property to others with a view of accomplishing that purpose; the jury have found, however, and not without evidence, that this was not the purpose of Cole, and that it was in fact done to cheat, hinder and delay his creditors.
It is next contended that error was committed in withdrawing from the jury the records and minutes of the meetings of the directors and stockholders of the John P. Cole Grocery Company. Included in these minutes, was the proposition made by Cole to the Company for the transfer of the stock of groceries upon the considerations heretofore mentioned, and the acceptance of the same by the Company. The records and minutes of the meetings appear to have been written out at length by a lawyer employed for that purpose, and signed by one of John P. Cole’s clerks, who acted as secretary, and who did not see them written. No"error -was committed in excluding this testimony from the jury. The Company, if legally organized, was no more than a private trading corporation. Its books and records are under its own control, and third persons are not chargeable with knowledge of entries made therein. Entries of the character stricken out by the Court are of a self-serving character, and cannot be used to establish the rights of the corporation third parties. While the entries might be received in evidence in disputes between members of the corporation, or against the corporation, they cannot be used in its favor unless they are made competent by legislative enactment. 1 Greenleaf, Ev. § 493; 1 Wharton, Ev. § 662 ; Angell, & Ames, Corp. § 679; Commonwealth v. Woelper, 3 S. & R. (Pa.) 29; Wetherbee v. Baker, 35 N. J. Eq. 501; Haynes v. Brown, 36 N. H. 545. Our attention is not called to any statute which requires the admission of the excluded evidence, but, on the contrary, we are referred to a provision which, by implication, sustains the ruling of the Court. It is provided that records of an incorporated company shall be competent evidence in an action or proceeding to which the corporation may be a party. ¶ 1199, Gen. Stat. 1889. The corporation was not a party to the present action, and therefore nothing could be claimed under this provision. The plaintiffs were not hampered in proving the transactions with the corporation. The members of the corporation were in court, or within its jurisdiction, and testimony was freely given as to all the transactions among them.
Complaint is made of amendments which the Sheriff was permitted to make, during the progress of the trial in this action, in his return on the writ -of at* tachment upon which the goods were seized. The amendments were unimportant, and the action of the Court furnishes no cause for reversal. When the writ of attachment was placed in the hands of-the Sheriff, he went to Cole’s store and declared his purpose to attach the stock of goods ; but, being informed that the property was claimed by the Company, he demanded from the attaching creditors an indemnifying bond; and, as it was not promptly given, the Sheriff then relinquished any claim to the goods. Four days thereafter, and before the writ was returned, a'legal levy was made by the Sheriff, and on that levy the property was claimed and held. A memorandum of the declaration of a purpose to attach, a demand for-an indemnifying bond and the failure to furnish the same, together with the relinquishment of the attachment, which occurred on the day the writ was received by the Sheriff, was indorsed upon the writ. This indorsement was. stricken out by the Court, and of this plaintiffs complain. It was not necessary for the Sheriff to make this indorsement upon the writ, and it may be regarded as surplusage. The indorsement, however, did not render the writ 'and the actual return thereon incompetent as evidence. The fact that the Sheriff made an ineffectual attempt to levy upon the property on the day the writ was received, did not prevent him from making an effectual levy four days later, and while the writ was yet in his hands. It was the duty of the-Sheriff to obey the command of the writ, and to attach any property of the defendant Cole that he might be able to find at any time before the writ was actually returned by him to the Clerk. An abortive attempt to make a levy did not relieve the Sheriff from that duty, nor did it destroy the validity of the writ which he had in his hands. The indorsement, to which objection was made, was immaSerial, and, so far as the admission of any evidence of the writ and return is , , -, concerned, its presence was harmless. It is said that no amendments in the attachment proceedings could be made in the replevin action, but, as it was unnecessary to strike this indorsement from the writ, no error could be predicated on the action of the Court. The plaintiff in one of the attachment suits was Frank Herald, as guardian, and in his return the' Sheriff omitted the word “guardian” from the designation of the plaintiff, and the Court permitted the Sheriff to amend, by adding the word “guardian,” at the trial of this action. Under the Code full authority is given to the court to allow amendments to process either before or after judgment, and, as the plaintiff was properly designated in the writ, an amendment in the return to make it correspond with the writ would seem to be proper. Even if it may be deemed irregular to amend attachment process in the replevin action, it would not avail the plaintiffs in error here. It was an amendable defect, and therefore the writ and return cannot be held to be void ; and, without an amendment, they might have been received in evidence. Besides that, all the parties" interested in the attachment appear to have been present in this litigation, and they can claim no prejudice by reason of the amendment. If any could complain of the amendments it would be the parties to the attachment proceedings who were not parties to this action ; and the plaintiffs in error in this proceeding cannot complain for them.
One of the appraisers in the attachment proceedings was permitted to sign the appraisement during the trial of this action; but the absence of his name did not affect the validity of the attachment, and the irregularity is immaterial.
We think no prejudicial error was committed by the court, and therefore the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The defendants in error brought suit against the plaintiff in error to recover $2,800 claimed under a policy of insurance — $2,000 on a general stock of merchandise, and $800 on furniture and fixtures, alleged to have been destroyed by fire on-the 25th day of May, 1891. A copy of the policy was attached to the petition, and its execution was admitted by the defendant. The petition alleges that due notice of the fire was given in accordance with the terms of the policy ; that proofs of loss were made as required ; that the plaintiff had performed all the conditions of the policy on his part; and that the defendant, through its agents, had examined the plaintiffs under oath as to the amount and cause of the loss, and refused to pay the same, and thereby waived all proofs of loss. The answer admits that the property was destroyed by fire, as alleged, except about $250 worth, and alleges fraud and false swearing in the proofs of loss furnished by the plaintiffs, and the existence of concurrent insurance on the property to the amount of $1,700, and that the defendant was entitled to have the loss prorated between the two companies in case it should be held liable. There was a general denial .of the allegations of the petition not expressly admitted. The reply admitted that the plaintiffs held another policy of insurance for $1,700, concurrent with that of the defendant, but alleged that the total value of the property destroyed was $6,000. The case was tried with a jury, and a general verdict rendered in favor of the plaintiffs for the amount of the policy.
I. The answer alleged, and the reply admitted, that the plaintiffs held concurrent insurance. There were conditions on the back of the policy issued by the defendant with reference to the ° liability of the defendant in such a case. It is urged by counsel here that the j)etition fails to state a cause of action because of the failure of the plaintiffs to set up in their petition the other policy, which was issued by the Denver Insurance Company, and to show what its terms and conditions were affecting the defendant’s rights. .The only attempt to raise any question on the sufficiency of the pleadings was by objection to the introduction of evidence. We find nothing substantial in the contention. The petition was sufficient. If there was anything in the policy of insurance issued by the Denver company exempting the defendant from any part of its liability, it was a matter of defense of which the defendant could take advantage by answer. The plaintiffs’ rights were not based on the concurrent policy of insurance, andd-t was unnecessary to make any reference to it in the petition. The authorities cited do not apply to the case under consideration.
II. One of the principal questions presented is whether the submission of the amount of loss to appraisement by arbitrators was a condition precedent to the plaintiffs’ right of recovery. The provisions of the policy affecting this question are as follows :
“In case of failure to agree the said damage shall be appraised on each article by disinterested appraisers mutually agreed upon, whose detailed report in writing shall form a part of the proofs required to be furnished by the claimant; one-half of the appraisers’ fees to be paid by the insurers. . . . Payment of losses shall be made in 60 days after the loss shall have been ascertained and proved, and in case differences shall arise touching the amount of any loss or damage, it shall be submitted to the judgment of arbitrators mutually chosen, whose award in writing shall be binding on the parties. . . . It is furthermore, hereby expressly provided and mutually agreed, that no suit or action against this company for the recovery of any claim for loss, by virtue of this policy, shall be sustainable in any court of law or chancery, unless an award of damages by arbitrators as herein provided for shall first have been returned.”
There is no claim on the part of the plaintiffs below that any award was ever made, or that any request was made by either party that appraisers or arbitrators should be chosen. It was claimed, however, by them that the adjusters who came to Marion, where the plaintiffs live, and where the property destroyed was situated, and examined into the circumstances of the loss, had denied all liability under the policy, and that they thereby waived the conditions of the policy with reference to arbitration and proofs of loss. The insurance company claimed that it had never denied liability prior to filing its answer in the case, and that it had never waived any of the conditions of the policy. We shall consider the case as though the defendant’s contention in this respect were sound, and shall assume that there never was a denial of liability, though the jury in answer to a special question found that there was such a denial.
There certainly was a disagreement between the parties as to the amount of the plaintiffs’ loss, and as to the value of the property destroyed by the fire, so that the provisions of the policy with reference to arbitration clearly apply. Are they valid and enforceable ? Is arbitration a condition precedent to the plaintiffs’ right of recovery ? The learned counsel for the plaintiff in error cites a long list of authorities to sustain his position. We shall notice only so many of them as seem necessary to illustrate the current of decisions on this subject. The case of Insurance Co. v. Clancy, 71 Tex. 5, was an action on a policy providing that, unless the amount of damage should be agreed upon, it should be appraised by disinterested and competent persons, one to be selected by the company, one by the assured, and, when either party demanded it, the two so chosen 'to select an umpire, and the award of -any two to be binding. This appraisal was to form a part of the proofs of loss, and to be made before the loss should be payable. It was held a valid provision, and that no action could be maintained if the insured, upon demand made for such appraisement, refused to comply therewith, and that the appraisement was a condition precedent to the plaintiff’s right of recovery. The case of Manufacturing Co. v. Assurance Co., 106 N. C. 28, is to the same-effect. In the case of Chippewa Lumber Co. v. Insurance Co., 80 Mich. 118, the provisions of the policy were substantially the same as in the other cases. There was no express demand of arbitration, but the insurance conrpany insisted “on estimating the loss under the contract,” and it was held that the provision of the policy was valid, and a condition precedent to the plaintiff’s recovery. In the case of Chandos and another v. American F. Ins. Co. of Philadelphia, 84 Wis. 184, it was held, that “the decision of arbitrators or appraisers, chosen pursuant to an insurance policy, to determine the amount of a loss as to what particular articles or items of property are embraced within the general description of the property insured, is final and conclusive,” and that a mortgagee to whom the insurance was payable was bound by the award though not a party to it. In Wolff v. Insurance Co., 50 N. J. L. 453, it was held on demurrer that a provision similar to the one in the Texas case, above cited, “making an appraisal of the amount of the loss or damage a prerequisite to a suit on the instrument, is legal.” In Insurance Co. v. Wilson, 45 Kan. 250, it was held that the provision of the policy then under consideration did not make arbitration a condition precedent to recovery, and that a refusal on the part of the insurance company to arbitrate was a waiver of the provision. In Insurance Co. v. Wallace, 48 Kan. 400, it was held that where a stipulation is contained in the policy that ‘' in case differences shall arise as to the amount of any loss or damage . . . the matter shall, at the written request of either party, be submitted to two impartial appraisers,” and where it did not appear that differences arose as to the amount of loss or damage, and neither party asked that appraisers be appointed, arbitration was not a condition precedent to recovery.
In all the cases we have examined in which arbitration has been held a condition precedent to recovery, the policy under consideration pointed out a definite and practicable method of selecting arbitrators to determine the question. In the policy now under consideration the number of arbitrators is not fixed, and the method of appointment is by mutual agreement, rendering it necessary, if arbitration should be had, that the parties should both agree, first, as to the number of arbitrators to be chosen, and, second, on each person who should act as such. In the case of Case v. Insurance Co., 82 Cal. 263, it was held that a clause in the policy that "in case of differences touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial appraisers, whose award in writing shall be binding on the parties,” and not providing for the number of appraisers or the mode of their selection,, is too vague to give defendant a right to demand arbitration, and plaintiff’s refusal of such demand does not deprive him of the right to sue on the policy, or to prove the full amount of his loss, even though it is more than stated by him in the proofs. The case of Mark v. National Fire Ins. Co., 24 Hun, 565, was an action on a policy of insurance containing the following provision:
"In case differences shall arise touching any loss or damage after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators, whose award in writing shall be binding on the parties as to the amount of such loss or damage, but shall not decide the liability of the company under this policy.”
It then provided that no action should be maintained until after an award. It was held that an award was not a condition precedent to a recovery, but that the clause in the policy would be treated as an independent covenant, collateral to the agreement to pay. In that case an attempt was made to name arbitrators but the parties failed to agree on the persons who should act as such. This decision was affirmed by the court of appeals. (91 N. Y. 663.)
No attempt was made to arbitrate in this case, and we think the provisions of the policy are without any binding force, for two reasons : First, they are vague and indefinite ; and second, they place it within the power of either party effectually to defeat any submission to arbitration merely by refusing to consent to the number of arbitrators named by the other party, or to agree to the persons suggested. Neither' party should be charged with unfairness because of a refusal to accept as arbitrators persons suggested by the other. No means are provided for bringing the parties to terms and securing arbitrators should they attempt to do so. It is. like requiring two persons to enter into a new contract, the terms of which either one is at full liberty to accept or reject.
III. Formal proofs of loss were made out by the plaintiffs and forwarded to the home office of the defendant company, where they were received on the 12th day of June. The company forwarded them to its general agent at Omaha, and the plaintiffs heard nothing from them until July 12, when their attorneys received a letter from their agent at Omaha, dated July 10, calling for duplicate bills of the entire stock of goods purchased since the plaintiffs commenced business. There were other criticisms of the proofs contained in the letter, but there was an explicit demand for the duplicate bills. The original bills having been destroyed by fire, the plaintiffs obtained a large number of dupli cate bills from wholesale houses, which, with an explanatory affidavit of one of the plaintiffs, were forwarded to the defendant August 1. No response was received until the 8th day of September, when the company objected to the bills as not being certified under the conditions of the policy. This action was commenced on the 5th of September , and it is insisted that it was prematurely brought; that the loss was not payable until 60 days after proofs of loss were furnished; that duplicate bills constituted a part of the proofs required by the policy, and that those sent were insufficient and not received 60 days before the commencement of the suit. It is conceded that the duplicate bills were not furnished 60 days before the commencement of this action. In the face of the policy it is provided that the loss is “to be paid within 60 days after notice and proof thereof made by the assured in conformity to the conditions printed on the back of this policy.” On the back of the policy, No. 14 provides what the proofs of loss shall contain, and then continues : “And also, if required, shall produce their books of account and other proper vouchers, and furnish certified copies of all bills and invoices,” and then further provides that the insured shall, if required, submit to an examination. The policy does not treat the certified bills as a part of the proofs of loss. They are mentioned after a full statement of what the proofs of loss shall contain, and are only to be furnished in case the company shall require them. We think the loss became payable 60 days after the original proofs were received by the defendant, and that the suit was not prematurely brought.
IV. The defendant asked the court to require the jury to answer 94 special questions. Of these the court required answers to 39 only, and complaint is made of the refusal to require answers to all the questions. We think the court ruled correctly in the matter. The questions it declined to submit to the jury were as to minute and unimportant matters, and answers to them would not have thrown any light on the question of the defendant’s liability, or the amount thereof. Numerous other complaints of the action of the court in admitting and excluding evidence, in giving and refusing instructions, in allowing an amendment to the petition and in overruling the motion for a new trial are made, but we find nothing substantial in any of them. The construction we have given to the provisions of the policy renders the question of waiver, which was considerably mooted at the trial, unimportant, as the conditions relied upon do not avail the defendant. Several pages of the brief are devoted to figures by which it is attempted to . show that the plaintiffs’ loss was less than they claim. The total amount of insurance under the policies issued by both companies was $4,500. Several competent witnesses testified that the property destroyed was worth $5,000. Two hundred dollars’ worth in all was saved. The verdict of the jury settled the question as to the amount of the loss, and, being based on competent evidence,Teaves nothing to review here.
We find no substantial error in the record, and affirm the judgment.
All the Justices concurring. | [
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Johnston, J.
This action was brought by L. V. Harkness against W. H. Drew and B. J. Newman to-recover upon a promissory note for $2,000, dated December 20, 1888, and which was due one year after-date. After the trial was instituted, Newman died, and the cause was revived in the name of the administrator. The trial resulted in favor of the plaintiff below, and judgment was awarded against W. H. Drew and the estate of B. J. Newman in the sum of $2,900. H. A. Longwell, as administrator of the estate of B. J. Newman, complains of the judgment and attempts to bring the case here for review.
The sufficiency of the record is challenged by the defendant in error. It purports to be a case-made, and is so designated by the District Judge who signs the same. It is not attested by the Clerk of the Court' nor is the seal of the District Court attached. Indeed, it- appears that the Judge did not order the case to be- attested, but, instead, directed the Clerk of the Court to file and seal the same.
The case not being authenticated as the statute requires, it cannot be reviewed in this Court, and the proceeding will, therefore, be dismissed.
All the Justices concurring. | [
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Johnston, J.
The release executed by some of the payees of the Hill note.was ineffectual. It was executed more than six years after the note and mortgage had been transferred by them' to Huntington, and when they had no ownership in either the note or mortgage. During this period Huntington held and cwned the note, and had given evidence of his ownership of the mortgage by a number of releases, which had been duly entered on the public records. The note was negotiable ; and it is well settled that, where such a note is secured by a mortgage, the note is the principal and the mortgage is the incident, and that an assignment of the note is an assignment of the mortgage. No obligation rested upon Huntington to record his assignment in order to protect himself against the subsequent mortgagee. As the mortgage was given to secure a negotiable note, it could be assigned by the mere indorsement or delivery of the note, and there was in fact no assignment to record. It has been expressly held that the bona fide holder of negotiable paper, transferred to him by indorsement thereon before maturity and secured by a real estate mortgage, need not record the assignment of the mortgage. Burhans v. Hutcheson, 25 Kan. 625.
After assigning the note and mortgage, the mortgagees had no interest therein, and no power to release or discharge the lien of the mortgage; and, being wholly without authority, the release executed by them cannot affect the rights of the assignee. When the plaintiffs in error found upon the record a mortgage securing a negotiable note, it was their duty to inquire whether the release was executed before or after the assignment and by persons having authority to do so. 1 Jones, Mortgages, § 814.
The statute recognizes the assignee as a proper party to release or discharge a mortgage lien, and provides that this may be done by an entry on the margin of the record, signed by him in the presence of the Register of Deeds or his deputy, who shall subscribe the same as a witness. ¶ 3889, Gen. Stat. 1889.
The transfer of the note and mortgage to Huntington appears to have been quite well known to those directly connected with the execution of the mortgages,, and, in addition to that, there was the notice imparted by the releases entered by Huntington on the margin of the record.' Five such entries were made at different times during a period of five years, the first on January 27, 1885, and the last on April 21, 1890.
These were made by one authorized by statute, and formally entered on the record as the law directs. Second mortgagees cannot shut their eyes to record evidence of this character ; and, if notice of the assignment to the second mortgagees was necessary for the protection of Huntington, there appears to be sufficient testimony in the record to show such notice.
The attempt of the Court to limit the lien of Huntington to the unimproved land cannot be sustained. His mortgage covered the entire property described therein, and he w'as entitled to have the' whole, or as much, of the security as was necessary, to satisfy the mortgage debt. It is true that the improvements were made after the mortgage was executed, but they were structures of a permanent character which unquestionably became a part ot A u the realty. It is well settled that permanent accessions to a freehold, whether placed there by the mortgagor or one claiming under him, are regarded as a part of the mortgaged property, and become additional security for the mortgage debt. It is not claimed that anything was said or done by Huntington which would limit his lien, but the money appears to have been advanced and the mortgages taken, by the plaintiffs in error, upon the theory that Huntington’s lien had been removed by the void release. Under the circumstances, the improvements inured to the benefit of the first mortgagee, and the subsequent mortgagees can only claim the surplus, if any remains, after the first lien is satisfied. 10 Am. & Eng. Encyc. Law, 260 ; 1 Jones, Mortgages, § 147.
We think that Huntington had the right to have the whole of the mortgaged premises subjected to the satisfaction of his debt, and therefore the judgment of the Court will be ‘modified to this extent. When so modified the judgment will be affirmed.
All the Justices-concurring. | [
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Johnston, J.
This was a proceeding to enforce the individual liability of the stockholders of an insolvent corporation. The State Bank of Irving had failed and the United States National Bank of Atchison had obtained six several judgments against it in the District Court of Marshall County. Executions had been issued thereon and returned unsatisfied, when the United States National Bank instituted this proceeding by filing motions seeking to charge the defendants, 15 in number, as stockholders, and to obtain an order for execution against them to satisfy the unpaid judgments of the insolvent bank. It was attempted to group all the judgments in a single proceeding; and only a single notice was issued, in which all the stockholders were named, and a copy of which was served upon each of them. Subsequently the defendants filed motions to quash and set aside the service of the notice upon the grounds that it was insufficient, and was not properly served, that it was irregular in that it included a multiplicity of actions or proceedings, and that the parties were improperly joined therein. The motions were sustained ; and no application having been made to correct the defects, the proceeding was dismissed.
The notice was clearly insufficient. There were, as we have seen, six separate judgments rendered in six distinct and independent actions, and yet only one notice was issued. The notice could be filed with the papers in only one of the cases, and who could tell in which of the six different cases it belonged? Not only were all the judgments embraced'in one proceeding, but all the stockholders were united in the motion and notice, as if their liability were joint, and as if all must of necessity make the same defense. It is well settled, however, that the liability is several and not joint. A stockholder is in no sense a party to the j udgment against the corporation ; and while the liability of all may arise by reason of their connection with the corporation, each may 'make a separate and independent defense in which the other stockholders may have no concern. In an action to charge stock holders it was held that their liability to the creditors being unequal, limited and several, rather than joint, each must be sued separately. Abbey v. Dry Goods Co., 44 Kan. 415. The summary method of proceeding by motion in the action in which the judgment was rendered was attempted here ; but the summary character of the proceeding does not affect the liability of stockholders, nor does it change nor limit the defenses which they may make. Of necessity the same rule must apply whether the creditors proceed by original action or by motion. Neither is it regular to issue a single notice for several separate proceedings. Itjias been ruled that the proceeding by motion is independent in its nature; that the notice thereof partakes of the nature of an original process, and that a proper service of the notice is therefore essential. Howell v. Manglesdorf, 33 Kan. 194. See, also, Wilson v. St. L. & S. F. Rly. Co., 36 Am. & Eng. Cor. Cas. 290; Wilson v. Seligman, 144 U. S. 41. It is substantially the same as original process ; and a single, notice will not cover several distinct proceedings any more than a single summons would be sufficient for several original actions.
We think the Court ruled correctly in quashing the notice. As there was no request for leave to amend the motions or to correct the mistakes, there was nothing remaining for the District Court to do but to dismiss the proceeding ; and its order and judgment will therefore be affirmed.
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The opinion of the court was delivered by
DAWSON, J.:
This is a curious case arising from the efforts of two beneficiaries to collect insurance on the life of H. E. Hagar, who died on October 15, 1913. For many years Hagar had been a member of the Ancient Order of United Workmen, a fraternal insurance association, and held a beneficiary insurance certificate from that society for $2000. Originally the beneficiary named in the certificate had been Hagar’s wife, but she died in 1907, whereupon Hagar entered into a contract with his grandnephew, Noble Hagar, by which the latter was to pay all assessments and dues in favor of the fraternal society chargeable against H. E. Hagar during his lifetime, in return for which the elder Hagar named Noble Hagar as his beneficiary, and a new beneficiary certificate to that effect was issued by the defendant association on October 7, 1907. It was also agreed between H. E. Hagar and Noble Hagar, that the granduncle would not change the beneficiary.
Some years later H. E. Hagar married Sarah S. Hagar; and thereafter, on January 25, 1913, he applied to the defendant for a new certificate naming Noble Hagar and Sarah S. Hagar as joint beneficiaries. The defendant demanded the return of the certificate issued in 1907, but Noble Hagar refused to surrender it, and the .defendant was then fully advised of the contract between H. E. Hagar and Noble Hagar. However, the defendant, without a surrender of the earlier certificate, issued a new one naming Noble Hagar and Sarah S. Hagar as joint beneficiaries.
Still later, on August 11, 1913, H. E. Hagar applied for a new certificate naming Sarah S. Hagar as sole beneficiary; and the defendant, although well-advised of the contract between H. E. Hagar and Noble Hagar, granted this application and. issued the certificate. Two months later H. E. Hagar died.
In due time Noble Hagar brought an action to recover on the policy dated in 190.7 naming him as the sole beneficiary, setting up the pertinent facts and alleging payment by him of all the dues and assessments against H. E. Hagar until the death of the latter in October; 1913. Attached to plaintiff’s petition were letters of H. E. Hagar dated in 1907, proposing that the grandnephew should make the future payments on the beneficiary certificate, explaining what these dues and assessments were, and inviting the young man to visit him. In part, one of these letters reads:
“Dear Nephew, . . .:
“I am carrying $2000.00 in the Ancient Order of United, Workmen and it is made out to my wife and I have paid on it a good many years and it is paid up until the first day of October. It costs $3.55 every month and 75 cents dues every quarter.
“My wife is dead and if you and Florence McDonald will pay out on it, or if one of you will pay the assessment, $3.55 every month and 75 cents a quarter, I will make the policy over to you and send policy to you. At my death you would draw the $2000.00. I am fixing my property so it or some part of.it can be kept in the Hagar family, as I am aware I can not live many years and may be not many days — can not tell.
“If you decide you will take it, the better or the quicker it is fixed the better for all concerned. ... I have my will made and now I wish to unload my insurance where it will do the most good. This is confidential.”
Again, H. E. Hagar wrote:
“Dear Noble:
“Got your letter this morning and went and made application to change the insurance to Noble Hagar, son of my nephew, Milo Hagar, and paid assessment $3.55 and 75 cents dues and 50 cents to get a new certificate to you so now, if I should die in fifteen minutes, you would draw your $2000.00 dollars in 90 days after death proof has been made out but you will get it less than 30 days after death proof goes in. You will see by the receipt who to send dues and assessments to and send money by the 15th of each month so to be sure it is here and send a stamp for your return of receipt. Am telling you so you will understand it for if you fail in not getting your money here I would be suspended and at my age could not be reinstated and you would lose the whole thing so send $3.55 by the 15th or before this month and each month hereafter as I paid for last month, or rather for this month for you. I have had several wanted me to make it out to them and they would pay out on it but I made up my mind to give it to you if you wanted it and I hope you will make good use of it. I am not well or would have come down and seen you all. I have $10,000.00 on interest so don’t think I am hard up and quite a wad in the bank and my rents from my other keeps me and it is all clear and I don’t owe a cent to no man so don’t think I am suffering for want of funds or care, for I am not. I am telling you this so you will know I did not have to make the insurance over to you.”
The proposition outlined in these letters and its acceptance by the plaintiff, Noble Hagar, by the payments of the dues and assessments constituted the contract, and the defendant association was apprised of it long before it issued the certificate in August, 1913, naming Sarah S. Hagar as beneficiary. Indeed, the defendant knew the facts when it issued its certificate in January, 1913, naming both Noble and Sarah as joint beneficiaries.
The other appellee, Sarah S. Hagar, filed an answer and cross-petition setting up the beneficiary certificate made in her favor and demanded judgment thereon.
Both the plaintiff and cross-petitioner, in their pleadings, recognized that the main issue was between them as rival claimants to the same fund. The answer of the defendant admitted that it had issued the beneficiary certificate to H. E. Hagar and that it issued a new certificate to H. E. Hagai*, payable to Sarah S. Hagar in August, 1913; and defendant tendered and paid into court the sum of $2000 and prayed that the court determine to whom the money should be paid and that it might be dismissed.
The court gave judgment in favor of the plaintiff, Noble Hagar, for $2000, and likewise gave judgment in favor of the cross-petitioner, Sarah S. Hagar, for $2000. In other words, it gave judgment on both beneficiary certificates.
From this judgment the defendant association appeals. Counsel for Noble Hagar direct our attention that no transcript of the testimony was filed by the appellant, and the clerk of the district court, in response to our call for the transcript, advises us to the same effect. We are therefore limited in our review to the pleadings, the findings of fact, the conclusions of law, and the judgment as made by the district court.
But the result appears to be wrong. It is apparent that the defendant never intended to issue two separate and independent beneficiary certificates. An examination of the pleadings of plaintiff and cross-petitioner shows that they recognized each other as rival claimants for the same fund, and their issues were joined to determine their conflicting claims. Neither expected that both could recover. The district court should have determined which certificate was valid and which was invalid. In this respect the district court has not finished its work. If there are such equities on both sides that a judgment for one of the claimants will do gross injustice to.the other, the court has power in the exercise of a sound discretion to make an equitable division of the fund between thej rival claimants.
The case is reversed with instructions to determine which appellee is entitled to the $2000, and if the rights and equities can not be otherwise settled, the district court should make an-equitable division between them. As the defendant has paid the money into court it should be given its costs and dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Porter, J.:
This is an action to recover for breach of a covenant against incumbrances. The defendants’ motion for judgment on the pleadings was sustained and plaintiff appeals.
The petition alleged an agreement to procure for the plaintiff the title to certain real estate “free from all incumbrances,” payment by plaintiff of the purchase money, and that when title was conveyed, the real estate, consisting of a residence lot in Kansas City, was subject to the payment of special improvement taxes and interest, which constituted á prior lien and incumbrance thereon and which plaintiff was compelled to pay. The facts respecting the levy of the taxes for special improvements as shown by the pleadings are these: In 1902 the city of Kansas City caused Garfield avenue, upon which the property abuts, to be graded, curbed and paved, and assessed the costs of the improvement against the abutting property, the special assessments being payable in ten annual installments. After they were levied and before any installments had been paid, the court of common pleas of/Wyandotte county perpetually enjoined their collection. On March 24, 1912, subsequent to the transfer of the title to the plaintiff, the city by ordinance relevied the assessments under the curative act. (Gen. Stat. 1909, § 993.)
The sole question for determination is whether the special assessments thus relevied were an incumbrance on the property when the title passed to plaintiff. Stated in another way the question is: Where special assessments have been declared void, but are subsequently relevied, do they constitute an incumbrance on the property which relates back to the defective levy?
We are unable to agree to the contentions of counsel for the plaintiff, although they have been ably presented both at the oral argument and in what may be termed a model brief.
Under the provisions of sections 9391 and 9392 of the Gen7 eral Statutes of 1909, taxes become a lien on the first day of November in the year in which the tax is levied, and as between grantor and grantee, where there is no express agreement as to which shall pay the taxes, the grantee must pay when the conveyance is made between March 1 and November 1, and the grantor when the conveyance is made between the first day of November and the first of March.
In Tull v. Royston, 30 Kan. 617, 2 Pac. 866, it was held that a tax or assessment for a sidewalk was not an incumbrance on the property until it became a lien on the first day of November of the year in which the assessment was levied. That was an action upon a covenant which warranted the property “free and clear of all taxes, liens, and incumbrances of whatever nature or kind soever.”
It does not seem practical nor reasonable to regard anything in the nature of a tax or assessment as constituting an “incumbrance” within the contemplation of the parties to such a covenant, unless it consisted of some charge against the property which the grantor was either in duty bound to pay, or which was payable. If it was not a lien, it was not an incumbrance. (Tull v. Royston, supra.) The special assessments in this case no longer appeared on the tax rolls; the officers were enjoined from accepting them; and there was no possible way by which the grantor could by payment have released or satisfied them.
Conceding that from the time the first proceedings were declared void, the duty rested upon the city to relevy the assessments, and that the real estate was during all this time subject to the imposition of these taxes, still we do not think it can be said that this liability was, in a strict sense, an incumbrance; it never became an incumbrance in the sense contemplated in the covenant until proper steps were taken to create a lien. The courts have not hesitated to adopt “the rule of reason” in construing covenants against incumbrances, and have often recognized a distinction between incumbrances which are such in a strictly literal exactness, and thosé which, from the nature of the contract, the situation of the parties, and their evident intent at the time it was made, appear not to have been in contemplation.
It sometimes happens that before the actual work of constructing the improvement has begun, the cost is apportioned and assessed against the abutting property. In such a situation it has been held that a contract to convey free of all incumbrances does not require the vendor to pay assessments for local improvements in advance of the execution of the work, for the reason that while such assessments constitute incumbrances in a strict sense, they are not such as were contemplated by the contract. (Gotthelf v. Stranahan, 138 N. Y. 345, 34 N. E. 286, 20 L. R. A. 455.) In the opinion it was said:
“The contract to convey free from incumbrances ordinarily has reference to incumbrances or liens actually existing when the contract is executed, or thereafter created, or suffered by the act or default of the vendor. While the assessments in question constituted, under the charter of Brooklyn, liens on the lands assessed from the time of their confirmation by the common council, and are, in a strict sense, incumbrances thereon, we are of opinion that they are not incumbrances within the meaning of the contract.” (p. 351.)
There is a conflict in the authorities on the question whether the time when a tax becomes due and payable under the statute necessarily fixes the time when it becomes a lien. (See cases cited in Note, 37 Cyc. 1142.) In Jacobs v. Union Trust Co., 155 Mich. 233, 118 N. W. 921, it was held that as between a vendor and vendee of land, in the absence of express statutory provision, a lien upon land for unpaid taxes does not exist until the amount thereof has been ascertained and has become a charge which may be discharged by payment, and this is at the time when the tax rolls come to the hands of the receiver of taxes, and not when the property is listed for assessment. This appears to be the general rule in the absence of a statute, that is to say, the lien ordinarily attaches as soon as the amount of the tax is definitely fixed and liability for its payment commences.
There is also a conflict of authorities on the question whether, where a special assessment is vacated and a reassessment made, the lien attaches as of the date of the original assessment. But the general rule is thus stated in 11 Cyc. 1114, under the title “Covenants” :
“The circumstances under which a tax or special assessment lien attaches so as to render a grantor liable on his covenant against encumbrances are completely controlled by the statute law of the various states.”
Tull v. Boyston, 30 Kan. 617, 2 Pac. 866, is cited in the note to the eifect that a special assessment is not an incumbrance until the lien actually attaches as defined by sections 9391 and 9392 of the General'Statutes of 1909. The case of Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781, involved the question when special assessments for a sewer became a fixed lien upon property in the benefited district. Notwithstanding the special taxes had been levied, the court said in the opinion:
“Under the laws of Kansas these taxes could not become a fixed and established charge or lien upon the property taxed prior to November 1, 1883, when the tax hooks are required by law to be delivered to the county treasurer to enable him to collect the taxes.” (p. 172.)
While the courts are divided upon the precise question which we have to determine in the present case, we think the position taken by the court in the Royston case, supra, is controlling, and that the relevy of the special assessments did not make the vendor in this case liable under the covenant against incumbrances.
Every day contracts are made for the conveyance of real estate which is liable for future payments of assessments for special improvements already constructed. The assessments are payable in annual installments running usually in ten-year periods. These assessments constitute, in a strict sense, incumbrances on the land to the extent of the installments unpaid. The vendor, in the absence of any agreement, is liable of course for the payment of all overdue installments. He is also liable for the installment of the current year, provided the conveyance is made on or after November 1, because the maturing installment has ripened into a tax.' But his covenant of warranty against incumbrances would not oblige him to rebate the purchase price to the extent of future installments. Those payable in the future, though strictly incumbrances on the land, are not such as diminish the value of the subject of the contract. The vendee who is to enjoy the benefit of the improvements during the remainder of the installment period ought to pay them, and therefore, though incumbrances in a strict sense, they are not so within the fair and reasonable construction of the covenant.
These reasons may not apply in all respects to the case at bar, because it is not so clear that the burden of discharging the assessments can be said not to diminish to some extent the value of the land conveyed. On the other hand, if it were held that special assessments for local improvements constitute an incumbrance in the sense contended for by the plaintiff, it would in effect overrule the decision in Tull v. Royston, 80 Kan. 617, 2 Pac. 866, and it would necessarily follow that in all cases special assessments of this kind, although not due or payable éxeept by yearly installments, are incumbrances for the payment of which the vendor who warrants against incumbrances generally would be liable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The state of Kansas, through one of its authorized officers, invokes the original jurisdiction of this court and asks for a writ of mandamus directing the Kansas Postal- Telegraph-Cable Company to reestablish and maintain its telegraph station at Syracuse, the county seat of Hamilton county.
The company is a Kansds corporation, doing both domestic and interstate business. For several years it maintained a telegraph station at Syracuse; but finding that it was doing business at a loss and that there had been a deficit in its receipts as compared with its expenditures for five years last past the company closed its office and quit business in that city on January 12, 1914.
The principal complaint of the state is that the company omitted to ask and obtain from the public utilities commission an order permitting it to close its office and abandon its business at that point.
The company’s answer to the alternative writ may be thus summarized: (a) Its business in Syracuse for the years 1909 to 1913, inclusive, was conducted at a loss aggregating $671.68, an average deficit amounting to $134.33 per annum, (b) It made no application to the public utilities commission for leave to close its office and discontinue its telegraph service at Syracuse and it never received the assent of the commission so to do. It avowed that it will not restore that service voluntarily. (c) The public are adequately served at Syracuse by the Western Union Telegraph Company and the Syracuse Telephone Company. (d) “This defendant avers that it is and always has been characteristic of the management of any telegraph business, such as that of this defendant, to open temporary and experimental offices in different cities and towns, in order to determine whether the business of such offices will be compensatory; that this is also true in the case of branch offices in cities, and that such offices are opened and closed and reopened, as the case may be, with frequency, depending upon the volume of the business and whether it justifies the continued maintenance of the office, and also depending upon the fluctuations of the business, which sometimes increases and sometimes decreases.” (e) That to require the company to reestablish its station at Syracuse and continue to do business at a loss would violate the fourteenth amendment. (/) That to compel the company to reestablish and maintain its station at Syracuse until the commission gives sanction to its discontinuance would be an unlawful interference and burden upon interstate commerce, and violate sec tion 8 of article 1 of the federal constitution, and violate the bill of rights of the Kansas constitution.
To this answer the state filed a demurrer, which we will treat as a motion to quash or as a motion for judgment on the pleadings.
The state contends: (1) That defendant had no right to discontinue its service at Syracuse without first having obtained the sanction of the public utilities commission. (2) That section 1796 of the General Statutes of 1909 requires the maintenance of a telegraph station at Syracuse since that city is a county seat. A third contention in the state’s brief was that notwithstanding the deficit in operating the telegraph station at Syracuse the company should be required to maintain it, unless it could be shown that the entire intrastate business of the company was operated at a loss; but ere the oral argument was reached certain decision's of the supreme court of the United States were handed-down which abrogated that doctrine and it was abandoned. (Nor. Pac. Ry. v. North Dakota, 236 U. S. 585, 35 Sup. Ct. Rep. 429.)
(See, also, Railroad Co. v. Utilities Commission, 95 Kan. 604, syl. ¶ 3, 148 Pac. 667, 671.)
The defendant telegraph company makes the counter contentions: (1) No state law required the defendant to obtain the consent of the public utilities commission before discontinuing its service at Syracuse. (2) Section 20 of the public utilities act, as construed by plaintiff and applied to this case, is void. (3) Section 1796 of the General Statutes of 1909, requiring' every telegraph company operating a line through any county seat in Kansas to maintain a telegraph station thereat, is void as applied to Syracuse.
Before considering these specific points, it will be convenient to cite the pertinent statutes.
Section 7186 of the General Statutes of 1909 provides:
“Said commissioners (the board of railroad commissioners) shall have the general supervision of all railroads operated by dteam or electricity or other motive power within the state, and all express companies, sleeping-car companies, and all other persons, companies or corporations doing business as common carriers in this state; and shall inquire into any neglect or violations of the laws of this state by any person, company or corporation engaged in the business of transportation of persons or property therein, or by the officers, agents or employees thereof; and shall also from time to time carefully examine and inspect the condi tion of each railroad in the state, and of its equipment, and the manner of its conduct and management with reference to the public safety and convenience: Provided, This section shall not be construed as applying to street railway or electric lines operated wholly within one county.”
Section 7188 reads:
“Whenever in the judgment of the board of 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, or whenever in their judgment any repairs are necessary upon its road, or any addition to its rolling-stock, or any addition to or change of its stations or station-houses, or any change in its rates for transporting passengers or freight, or 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, said commissioners shall inform such corporation of the improvement and changes which they deem to be proper by a notice thereof in writing, to be served by leaving a copy thereof, certified by the secretary of the board, with any station agent, clerk, treasurer, manager or any director of said corporation, which notice shall state the time within which said improvements or changes are required to be made; and if such orders are not complied with within the time stated in said notice, the attorney for the board shall forthwith file with the commissioners a complaint in writing, praying for an investigation of said matter, which complaint shall be heard according to the provisions of said act as in other cases.”
The public utilities act (Laws 1911, ch. 238) provides:
“Section 1. The Board of Railroad Commissioners of the state of Kansas is hereby constituted and created a Public Utilities Commission for the state of Kansas, and such commission is given full power, authority and jurisdiction to supervise and control the public utilities and all common carriers, as hereinafter defined, doing business in the state of Kansas, and is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction.
“SEC. 2. All laws relating to the powers, duties, authority and jurisdiction of the Board of Railroad Commissioners of this state are hereby adopted, and all powers, duties, authority and jurisdiction by said laws imposed and conferred upon the said Board of Railroad Commissioners, relating to common carriers, are hereby imposed and conferred upon the commission created under the provisions of this act.
“Sec. 3. The term ‘public utility,’ as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant, generating machinery, or any part thereof,- for the transmission ■ of telephone messages or for the transmission of telegraph messages in or through part of the state.
“Sec. 10. Every common carrier and public utility governed by the provisions of this act shall be required to furnish reasonably efficient and sufficient service, joint service and facilities for the use of any and all products or services rendered, furnished, supplied or produced by such public utility or common carrier and to establish just and reasonable rates, joint rates, fares, tolls, charges and exactions and to make just and reasonable rules, classifications and regulations; and every unjust or unreasonable discriminatory or unduly preferential rule or regulation, classification, rate, joint rate, fare, toll or charge demanded, exacted or received is prohibited and hereby declared to be unlawful and void, and the Public Utilities Commission shall have the power, after notice and hearing of the interested parties, to require any common carriers and all public utilities governed by the provisions of this act to establish and maintain just and reasonable joint rates wherever the same are reasonably necessary to be put in, in order to maintain reasonably sufficient and efficient service from such public utilities and common carriers.
“Sec. 14. Upon a complaint . . . that any regulation, practice or act whatsoever affecting or relating to any service performed or to be performed by such public utility or common carrier for the public is in any respect unreasonable, unfair, unjust, unreasonably inefficient, insufficient, unjustly discriminatory or unduly preferential, or that any service performed or to be performed by such public utility or common carrier for the public is unreasonably inadequate, inefficient, unduly insufficient, or can not be obtained, the commissioners shall proceed, with or without notice, to make such investigation as they may deem necessary. The commissioners may, upon their own motion, and without any complaint being made, proceed to make sueh investigation.
“Sec. 16. If upon such hearing and investigation the rates, joint rates, fares, tolls, charges, rules, regulations, classifications, or schedules of such common carrier or public utility governed by the provisions of this act, are found to be unjust, unreasonable, unfair, unjustly discriminatory or unduly preferential, or in any wise in violation of the provisions of this act, or of any of the laws'of the state of Kansas, the Public Utilities Commission shall have the power to fix and establish, and to order substituted therefor, such rates, joint rates, fares, tolls, charges, rules, regulations, classifications or schedules as it shall find, determine or decree to be just, reasonable and necessary; and if it shall be found that any regulation, practice or act whatsoever, relating to any service performed or to be performed by such public utility or common carrier for the public in any respect unreasonable, unjust, unfair, unreasonably inefficient, insufficient, unjustly discriminatory or unduly preferential, or otherwise in violation of any of the provisions of this act, or of any of the laws of the state of Kansas, the Public Utilities Commission shall have full power, authority and jurisdiction to substitute therefor such other regulations, practice, service or act as they find and determine to be'just, reasonable and necessary. All orders and decisions of the Public Utilities Commission whereby any rates, joint rates, fares, tolls, charges, rules, regulations, classifications, schedules, practice or acts relating to any service performed or to be performed by such public utility or com mon carrier for the public are altered, changed, modified, fixed or established, shall be reduced to writing, and a copy thereof duly certified, shall be served on the public utility or common carrier affected thereby, by registered mail; and such order and decision shall become operative and effective within thirty days after such service, and such public utility' or common carrier shall, unless an action is commenced in a court of proper jurisdiction to set aside the findings, orders and decisions of said Public Utilities Commission, or to review and correct the same carry the provisions of said order into effect.
“Sec. 20. Whenever any common carrier or public utility governed by the provisions of this act shall desire to make any change in any rate, joint rate, toll, charge or classification or schedule of charges, or in any rule or regulation or practice pertaining to the service or rates of any such public utility or common carrier, such public utility or common carrier shall file with the Public Utilities Commission a schedule showing the changes desired to be made and put in force by such public utility or common carrier, and such changes shall be plainly indicated by proper reference marks in amendments or supplements to existing tariffs, schedules or classifications, or in new issues thereof. -No change shall be made in any rate, toll, charge or classification or schedule of charges, joint rates, or in any rule or regulation or practice pertaining to the service or rates of any such public utility or common carrier, without the consent of the commission, and within thirty days after such changes have been authorized by said Public Utilities Commission, then copies of all tariffs, schedules, and classifications,- and all rules and regulations, shall be filed in every station, office or depot of every such public utility and every common carrier in this state, for public inspection.
_ “Sec. 41. The provisions of this act and all grants of power, authority and jurisdiction herein made to the commissioners, shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of this act are hereby expressly granted to and conferred upon the commissioners.”
It will be seen from the foregoing statutes that the legislature has promulgated a comprehensive program for the regulation and control of public service corporations. The public utilities commission, succeeding to all the powers conferred upon the state board of railroad commissioners, and by its own enlarged powers conferred by later enactments, has power to supervise the conduct of public service corporations in this commonwealth. It may order improvements in the public service where conditions so demand. (The State v. Railway Co., 76 Kan. 467, 92 Pac. 606; affirmed in Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262; The State v. Railway Co., 81 Kan. 430, 105 Pac. 704; Railway Co. v. Railway Commissioners, 85 Kan. 229, 116 Pac. 506; The State, ex rel., v. Rail road Companies, 85 Kan. 649, 118 Pac. 872.) Likewise an unreasonable order, such as one requiring the erection and maintenance of a railway station where there was no need for a station, will be corrected on judicial review. (Railroad Commissioners v. Railway Co., 71 Kan. 193, 80 Pac. 53.) The rates of gas supplied by a public service company can not be changed without the consent of the public utilities commission. (The State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639, affirmed in Wyandotte Gas Co. v. Kansas, 231 U. S. 622.)
Examining these statutes, which are all in pari materia, it will be noted that the commission has power to inquire into any neglect or violation of law by a corporation engaged in the transportation of property. (Gen. Stat. 1909, § 7186.) The commission is given authority over additions or changes of stations and changes in the mode of conducting its business. (Gen Stat. 1909, § 7188.) It may be urged that at the time of the enactment of this statute, just cited, telegraph companies had not yet been specifically subjected to the control of the commission. Conceding that, the language is significant when read in the light of the later utilities act, the main purpose of which was to subject all public utilities to the same kind of control theretofore exercised over railroads.
Continuing this examination of later enactments, we find the commission vested with full power, authority, and jurisdiction to supervise and control the public utilities and common carriers, and empowered to do all things necessary and convenient for the exercise of the power, authority and jurisdiction. That is to say, whatever power is necessary to the effectual exercise of the specific powers conferred is likewise conferred. (Utilities act, Laws 1911, ch. 238, §§ 1, 41.) And section 2 of the utilities act virtually extends the power already given over railroads to all public utilities. Section 3 defines a public utility and specifically names a telegraph company as such.
By section 10 of the same act every common carrier and public utility is required to give reasonably efficient and sufficient service, and to make just and reasonable rules and regulations, and the commission is given power to require reasonably sufficient and efficient service to be maintained. Sec-, tion 14 provides that any regulation, practice or act whatso-. ever affecting or relating to any service, is subject to.super vision and control by the commission. Section 16 provides the procedure for changing the rules, regulations, practice,, acts, etc., of the public utility companies, and is one of the many provisions for judicial review of the orders of the commission.
Section 20 also is quite pertinent. It provides that if a public utility desires to change any rule, regulation, or practice, it shall apply to the commission for leave to change such practice, etc. And no change in such practice, etc., shall be made without the sanction of the commission.
In view of all these, can there be any doubt of the duty of the defendant, before dismantling its station at Syracuse and abandoning its business thereat, to secure the approval of the commission for such an important change in its mode of service ? How is the public utilities commission to discharge its important duties if the public service companies may quit-business here, there, or anywhere in the state without an opportunity for the commission to determine the propriety of such a course?
It is clear that if the defendant may forego its business in Syracuse without the sanction of the commission, it can close its office in Topeka, Wichita or Kansas City without the consent of the commission. If this public utility, a telegraph company, can close one of its offices and quit business without the consent of the commission, any other public utility, like the Santa Fe railway for example, could close its depot at Dodge City, Hutchinson or Emporia without the consent of the commission. Where would this end ? If these utility corporations may abandon this particular service without consent of the commission, may they not take off their passenger trains, take up and abandon unprofitable branch lines, change the fares and rates of transportation for passengers and freight or raise the charge for telegraph .messages without the consent of the commission? These questions answer themselves. To yield approval to the contention of the defendant is to concede that the state’s program for the regulation and control of public service corporations is ineffective; that the public utilities act has been enacted in vain.
Neither do we discover the force of defendant’s contention that section 20 of the utilities act is void as sought to be applied to this case. What is it but a fair exercise of governmental authority, a method of procedure prescribed by law for the effective supervision of defendant’s public service business? Let it be granted, as the demurrer does concede, that the maintenance of a telegraph station at Syracuse is unprofitable. All that was necessary for the defendant to do was to make application to the commission, setting up the facts. It would then be the duty of the commission to verify the facts by proper investigation; and if the alleged facts were true and no other lawful interest was materially affected, the commission would be bound to grant the application. If the commission failed to do so, the courts are open and mandamus or other appropriate remedy would speedily redress the telegraph company’s situation. But here the telegraph company gave the commission no opportunity to investigate. Other cases may arise where it is a close and debatable question whether the telegraph station pays expenses and a fair profit. Moreover it should be borne in mind that a public service corporation may in a proper case be required to establish and maintain reasonable facilities for the effective discharge of its self-assumed duties, even if the revenues derived therefrom will not always reimburse the corporation for the expenses incurred. (Atlantic Coast Line v. N. Car. Corp. Com’n, 206 U. S. 1, 51 L. Ed. 933.)
Shall the public service company determine this matter itself, and without any governmental check of any sort? No argument can be made for the defendant on its right to close its Syracuse station without consent of the commission which could not with equal force be made in favor of its right to make any other change in its methods of conducting its business in this state without consent of the authority vested by law with supervision of its business. Suppose its rates for telegrams are too low and unprofitable. Could it raise these rates without applying to the commission for permission to raise them ?
We recognize that officers of public service corporations have viewed with great misgiving the extension of governmental power over their business which has come about in recent years. But this extension of governmental power, this public supervision by state and interstate commissions, has probably come to stay. Public service companies will have to reorder their affairs accordingly. These official commissions have entered a new field of governmental activity. With time and experience they will take a broad and rational view of their duties and responsibilities. In time the public service companies will learn to trust these commissions as fully as they do the courts. Indeed, these commissions are equipped for the expeditious dispatch of business in a manner which will be of great service to the public utility' companies, and will supply a field which courts never were designed to fill. (San Diego Land & Town Co. v. Jasper, 189 U. S. 439; The Minnesota. Rate Cases, 230 U. S. 352.)
Counsel for defendant have furnished us an excellent brief. Their citations relate to decisions reviewing unreasonable orders of state commissions. They may be valuable hereafter and we note them here: Delaware, L. & W. R. Co. v. Van Santwood, 216 Fed. 252; Oregon, R. R. & N. Co. v. Fairchild, 224 U. S. 510; Chi., B. & Q. Ry. v. Wisconsin R. R. Com., 237 U. S. 220; Telegraph Co. v. Railroad Commission, 74 Miss. 80, 21 South. 15; Chicago, R. I. & P. Ry. Co. et al., v. State, et al., 24 Okla. 370, 130 Pac. 617; Western Union Telegraph Co. v. State, 31 Okla. 415, 121 Pac. 1069.
But all their arguments and citations amount only to this: If an application to the commission had been made, and the facts developed as shown in defendant’s answer, and if the commission had denied the application, and the telegraph company had been compelled to ask relief from the courts, the brief of counsel would be very persuasive, and perhaps entirely convincing that the commission should be directed to grant the telegraph company’s application and relieve it from the burden of maintaining its unprofitable office at Syracuse.
But we insist that the first official tribunal to have consideration of such matters is the public utilities commission.
In The State v. Railway Co., 76 Kan. 467, 92 Pac. 606, 612, it was said:
“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.” (p. 486.)
There is another question in this case which needs attention, otherwise it might make some trouble in disposing of this controversy when it goes to the public utilities commission. Section 1796 of the General Statutes of 1909 (Laws 1893, ch. 152) provides:
“That every telegraph company or other corporation operating a telegraph line through the corporate limits of any county seat in Kansas is hereby required to establish and mantain a telegraph station at such county seat, with the usual facilities and appointments for the convenience of the public in sending telegrams during the business hours of each day.”
Certain infirmities in this statute were pointed out in Telegraph Co. v. Austin, 67 Kan. 208, 72 Pac. 850. Some help in disposing of this question may also be drawn from reference to a number of important cases decided by the United States district court in this state in March, 1913, but not reported. These cases were numbers 1390-1394, in equity, brought by the Santa Fe railway and other railroads against the public utilities commission, and against the attorney for the commission (Mr. Justice Marshall) and against the writer, then attorney-general. The railroads sought an injunction to restrain the enforcement of the maximum oil rate law. (Laws 19.05, ch. 353, Gen Stat. 1909, §§ 7163-7165.) The public utilities commission resisted the application for an injunction, contending that the maximum oil rate law had been repealed by implication by the later enactment of the public utilities law; that while the prevailing rates for transportation of oils could not be changed without the consent of the commission, this was because of section 30 of the utilities act and not by any remaining potency in the maximum oil rate law of 1905. Adopting this contention of the commission and the very able brief of Mr. Justice Marshall, then its attorney, the federal district court (Hon. John C. Pollock), denied the injunction and dismissed the cases.
And so here. The telegraph company was required to maintain its station at Syracuse, not on account of any remaining potency in the act of 1893, but because the public utilities act of 1911 had entirely superseded it, and that act dealt with conditions as it found them at the time of its enactment, crystallizing those conditions, rates, service, regulations and the like as they then prevailed, and made them subject to change, alteration and amendment by order of the commission. The necessary inference is that important changes materially affecting or likely to affect the convenience of the public were not to be made without the approval of the public utilities commission, except as its orders might be corrected bv the courts. We hold, therefore, that the act of 1893 will be no obstacle to the abandonment of the telegraph company’s office at Syracuse if the public utilities commission shall see fit, in the exercise of its sound discretion and with due regard to the rights of the public and of the telegraph company, to sanction it. The powers of the commission are no less comprehensive in dealing with telegraph service at county seats than elsewhere.
Mandamus is asked to restore the telegraph station. Mandamus is a discretionary writ. It does not in all cases issue as a matter of course. In this case we think it proper to withhold it temporarily. The defendant will be given thirty days to file its application with the commission for formal leave to discontinue its Syracuse station. Failing to file such application, a peremptory writ of mandamus will issue directing the defendant to reestablish its telegraph station at Syracuse and to maintain that station until its discontinuance is sanctioned by the proper authority. It is so ordered. | [
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The opinion of the court was delivered by
DAWSON, J.:
The appellant was convicted and' fined $15 for an alleged violation of chapter 65 of the Laws of 1913, which, regulates the operation and speed of automobiles upon the public highway.
The information reads:
“That on or about the 8th day of November, 1914, one Jacob Schoendaller and his wife Sussana Schoendaller, were riding along the public highway in the county of Ellis, State of Kansas, (outside of any city or village) in a one horse buggy to which buggy was hitched one horse, which horse the said Jacob Schoendaller was driving at the time, when they were overtaken by the defendant Anton Pfeifer, who was then and there driving and operating a certain motor vehicle, commonly called an automobile, and going in the samé direction as the said Schoendaller and wife were driving as aforesaid; that said Anton Pfeifer was then and there driving and operating said automobile at a speed greater than eight miles an hour and that upon approaching said horse and buggy in which said Schoendaller and wife were driving as aforesaid, he, the said Anton Pfeifer, then and there unlawfully failed and neglected to reduce the speed of said automobile which he was driving and operating as afore said to a rate not exceeding eight miles an hour, but on the contrary he, the said Anton Pfeifer, did then and there in said county of Ellis, State of Kansas, on the public highway aforesaid (outside of any city or village) wilfully and unlawfully operate and drive said automobile by and past said horse and buggy in which said Jacob. Sehoendaller were then and there riding as aforesaid at a speed much greater than eight miles an hour.”
A motion to quash was overruled. A jury was waived; the defendant pleaded not guilty, but admitted that he was traveling (outside of any city or village), while passing a vehicle going in the same direction as himself, at a speed greater than eight miles an hour.
Error is assigned on the court’s construction and application of the statute, which in part reads:
“Sec. 7. No person shall operate a motor vehicle on any highway outside of a city or village at a rate of speed greater than is reasonable and proper, having regard for the traffic and use of the road and the conditions of the road, nor at a rate of speed such as to endanger the life or limb of any person; provided that a rate of speed in excess of twenty-five miles an hour shall be presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or'property of another; and within any city or village no motor vehicle shall be operated at a speed greater than twelve miles an hour or at a rate of speed greater than is reasonable and proper, and having regard for the traffic and use of the road, and the condition of the road, nor at a rate of speed such as to endanger the life or limb of any person. Upon approaching railroad crossing and intersection of highways, or a bridge or a sharp curve or a steep descent, or another vehicle or an animal or person outside of any village or city, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour and shall not exceed such speed until entirely past such intersection, bridge, curve, descent, vehicle, animal or person. When crossing intersection of streets within any city or village, motor vehicles shall not be driven at a speed exceeding six miles per hour. Provided, that the speed limits in this section shall not apply to physicians or surgeons or police or fire vehicles or ambulances when answering emergency calls demanding excessive speed.
“Sec. 8. Any person operating a motor vehicle shall at request or on signal by putting up the hand, from a person riding or driving a restive horse or other draught or domestic animal, bring such motor vehicle immediately to a stop, and if traveling in the opposite direction remain stationary so long as may be reasonable to allow such horse or animal to pass, and if traveling in the same direction, use reasonable caution in passing such horse or animals, and the operator or occupant of any motor vehicle shall render necessary assistance to the party having in charge such a horse or other draught animal in so passing. Whenever any person traveling with any vehicle or conveyance on any road in this state shall overtake another vehicle or conveyance traveling in the same direction and shall by sound or call indicate to the driver thereof his or her desire to pass, it shall be the duty of the driver of the vehicle or conveyance in front, if the nature of the ground or the condition of his load will permit it, to promptly turn to the right of the center of the road and the driver of the vehicle or conveyance behind shall then turn to the left of the center of the road and pass by without interfering or interrupting, and the driver of said vehicle or conveyance passing shall not return to the center of the road until at least thirty (30) feet ahead of the vehicle or conveyance passed.” (Laws 1913, ch. 65.)
Read in the light of this statute, does this information charge a public offense ?
The statute permits the driver of an automobile to overtake and pass a vehicle of less speed than an automobile (§8), and prescribes how it may be done. It does not require the driver of the other vehicle to reduce his speed. Yet the motorist is authorized to pass if he can do so with due regard to the other provisions of the statute. The motorist is forbidden to drive at any rate of speed greater than is reasonable and proper; he is required to have regard for the traffic and conditions of the road; he is forbidden to drive at any speed which will endanger life and limb, and specific directions are given by the statute to slow down while passing persons whom he may meet. Do these directions regulate his conduct in overtaking and passing persons, vehicles, etc., going in the same direction as the motorist? Undoubtedly some of them do. But it is a matter of common knowledge that good horses, and they are not yet extinct in Kansas, can travel at eight miles an hour and even at greater speed. This statute gives the motorist the right to overtake and pass a horse-drawn vehicle, and it is physically impossible to overtake and pass such vehicle if the provision reducing his speed to eight miles an hour applies to his right to pass persons riding in a horse-drawn vehicle driven and going in the same direction. There must be room for a commonsense interpretation of this provision of the statute. Certainly the legislature never intended that a motorist should dawdle along behind a horse and buggy on the public road under all circumstances, if the speed of the latter were such that an automobile could not pass without exceeding eight miles an hour. (12 Cyc. 148, 149.)
If defendant drove his car at an unreasonable speed, he maybe prosecuted. If he endangered the life or limb of any person he may be prosecuted. If he failed to use caution in passing Mr. and Mrs. Schoendaller, or if their horse became restive on his approach and he did not stop his car and render them assistance in subduing its excitement — for any shortcoming touching these rules of the road the defendant may be prosecuted under this statute. But since the statute gave him the right to pass the horse and buggy, and in so doing he did not fail, so far as charged, to observe all these pertinent regulations of the statute, he can not be convicted on the mere fact that he was going necessarily at a greater speed than eight miles an hour when he passed these people who were traveling with their horse and buggy in the same direction.
This case is reversed with instructions to set aside the judgment and sustain defendant’s motion to quash. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Fred Anthony brought this action against Ida A. Kiefner and her son, Lynn Kiefner, to recover damages for negligently and carelessly causing the death of his wife, Josie May Anthony. From a judgment against them defendants appeal.
It appears that on May 24, 1913, at about six o’clock p. m., Mrs. Anthony, accompanied by her three small .children, was driving westward on the north side of Douglas avenue in the city of Wichita. Upon coming to Poplar street she crossed the intersection diagonally toward the south, passing in front of an eastbound street car which had stopped at the crossing to discharge passengers. Before Mrs. Anthony had driven quite to the west side of Poplar street her buggy was struck by the automobile being driven, in an easterly direction, by’ defendant Lynn Kiefner, and she was thrown over the top of the automobile and a distance variously estimated by the witnesses at from thirty to seventy-five feet. From the injuries sustained Mrs. Anthony died shortly afterward. There was testimony that the automobile was being run at a rate of about thirty miles an hour and in a careless manner. The-jury found that there was nothing to prevent Mrs. Anthony from seeing the approaching automobile had she looked before passing in front of the street car, and also that if either of defendants had exercised reasonable care the accident could have been avoided. The ordinances of the city regulating the speed of automobiles and fixing the right of way of vehicles on the principal streets were introduced in evidence. The evidence tended to prove that the automobile was owned and managed solely by Lynn Kiefner, and that Ida A. Kiefner, his mother, was riding in it at his invitation. Defendants’ separate demurrers to plaintiff’s evidence were overruled. The jury found for plaintiff against both defendants for $5500, and returned answers to special questions submitted by defendants. Separate motions for a new trial were overruled, and defendants bring the j udgment rendered to this court for review.
The principal complaint is of the judgment against Ida A. Kiefner and of rulings affecting that judgment. Of the negligence of Lynn Kiefner there can be no question, and while there is a claim that Mrs. Anthony, who was killed in the collision, was guilty of contributory negligence, there is nothing substantial in the claim that it bars a recovery. The most that can be said of his contention is that the testimony raised a question of fact as to her negligence which the jury has decided against him.-
In respect to Mrs. Kiefner it is contended that she had nothing to do with the operation or control of the automobile, and therefore her separate demurrer to plaintiff’s evidence should have been sustained. She also contends that the verdict and ■findings of the jury are without support and were probably induced by the instructions of the court about which complaint is also made. She insists that she was a mere guest or passenger in the automobile, and that the negligence of Lynn Kiefner, the owner and driver of the automobile, is not imputable to her. If she was only a guest of his and had no control of the automobile or of the operator his negligence can not be imputed to her. It was determined in City of Leavenworth v. Hatch, 57 Kan. 57, 45 Pac. 65, 57 Am. St. Rep. 309, that a person riding in a private conveyance by invitation of its owner is not responsible for his action, and that his negligence which contributes to an accident can not be imputed to the guest. In Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, 57 Am. St. Rep. 355, a man accompanied by his wife was driving over a defective highway and she was injured. In her action to recover from the township it was insisted that her husband was guilty of contributory negligence and that she was chargeable with his negligence. There was no personal negligence on her part, but it was claimed that in a sense her husband was' her agent, that the visit was undertaken on her solicitation, and that, therefore, negligence on his part which contributed to the injury was imputable to her. Upon these claims the court said:
“The fact, if it he such, that the journey was undertaken at the solicitation of the wife, possesses no weight. It can not be that one who merely secures from another the favor of transportation in a private vehicle takes upon herself or himself all risk of the driver’s negligence en route. To so hold would minimize the problem for consideration into a mere question of fact as to which of the travelers solicited the other; the one the favor of a journey, or the other the pleasure of company. If the one who asks to be carried, hence is the master, so on the other hand the one who invites to a ride is also the master. If the maiden who begs of her escort a carriage drive is the mistress throughout the journey, so the gallant who invites his lady would likewise be the master until her safe return. It may be conceded that persons of mutual purpose and equal privileges of direction and control, who travel in the same vehicle in pursuit of a common object, are the agents of each other in such a sense that the negligent act of one in furtherance of the common scheme is imputable to all; but such mutuality or equality of direction and control does not exist in the case of a journey taken by husband and wife.” (p. 801.)
It was there recognized that there was a conflict in the authorities upon the question, but it was held that negligence could not be imputed to a guest or passenger, and it was further stated that:
“The doctrine of imputable negligence, except when countenanced by statute, is a fiction of the law which finds small favor with the courts, and has been very infrequently applied in our own.” (p. 803.)
In Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, a finding that a lady riding with her escort for mutual pleasure was herself guilty of contributory negligence was upheld, but the decision against her right of recovery was based upon her own negligence and not upon that of another imputed to her. Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261, is somewhat like the case last cited, but, as in that case, the subject of imputed negligence was not presented for consideration nor applied in the decision. The question came up again for decision in Williams v. Withington, 88 Kan. 809, 129 Pac. 1148, in which it appears that a woman and her children were riding in a buggy drawn by a horse driven by the husband, and a person driving an automobile in the opposite direction negligently collided with the horse and buggy and injured her. In her action to recover damages it was contended that her husband was negligent, and that his negligence was imputable to her and barred a recovery. It appears that she did not exercise or attempt to exercise any control over the horse, buggy or driver, and it was held that she had a right to trust her husband to drive the horse safely, and that his negligence could not be imputed to her. In the late case of Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555, a man was riding in an automobile as the guest of the driver. In a collision with a railway train the occupants of 'the automobile were killed. The wife of the guest brought an action on the basis that her' husband’s death was due to the negligence of the railway company. It was claimed by the railway company that the collision resulted from the negligence of the driver of the automobile and that the guest was chargeable with his negligence. In speaking of the claim the court said:
“The doctrine that one who voluntarily becomes a passenger in a conveyance thereby so far identifies himself with the driver that he can not recover for an injury negligently inflicted by a third person, if the driver’s negligence was a contributing cause, never gained much of a foothold in this country, and is now repudiated in England, where it originated. The history of its rise and decline is traced in a note in 8 L. R. A., n. s., 597, where cases are gathered illustrating all phases of the subject. Save in a few jurisdictions the negligence of a driver can not be imputed to a passenger who in fact has no control over' him. (Note, 9 A. & E. Ann. Cas. 408; Note, 19 A. & E. Ann. Cas. 1225; Note, Ann. Cas. 1913 B, 684; see, also, Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558.) This rule applies in the case of a guest who is riding with the driver for their mutual pleasure. (29 Cyc. 548-550; Note, 8 L. R. A., n. s., 648; 7 A. & E. Encycl. of L. 447, 448.)” (p. 73.)
The chief reliance, however, of plaintiff was that Mrs. Kiefner was herself guilty of negligence by participating in and approving the unlawful speed. It appears that the automobile had been recently purchased by Lynn Kiefner and was exclusively owned by him. Mrs. Kiefner had never ridden or even seen the automobile before the time in question, although she had driven and operated other cars. She accepted his invitation to ride in the car and, for the purpose of trying the car, during the ride she took her place at the wheel and drove the car for about three blocks, whereupon her son resumed his place at the wheel. In answer to a question the jury said that while she was at the wheel she had driven the car at an immoderate rate of speed. This is not a material matter, but the answer is not supported by the testimony, as the evidence given by plaintiff’s witnesses as well as that of the defendant was to the effect that during the short time she was at the wheel she drove at a moderate rate of speed. Of course, if she aided or participated iii the wrong she is responsible for the resulting injury. The jury found that both her son and herself were managing the car when the accident occurred, and in answer to a question what she had to do with the management answered, “Directing its destination.” The only basis for the.finding is that while on the ride as the guest of her son she told him that she would like to stop at the Norris place and get a cake which Mrs. Norris, promised to make for her, and Lynn Kiefner expected to call there during the journey. This request and circumstance did not indicate that she had either management or control of the car, nor did it give the journey the character of a joint enterprise. If they had set out on a business errand, to collect cakes or the like, instead of a pleasure ride, or if in executing any common purpose in which both were exercising control, or in any case where one might be said to be the agent of the other, it might be held that there was a joint adventure and a joint liability. The call proposed to be made on the trip was a mere incident of the ride and created no more responsibility for the driver’s act than if he had been operating a taxicab or some other public conveyance. In no sense did her request create the relation of principal and agent or master and servant between them, nor give the journey the character of a joint enterprise. The fact that an owner of an automobile who has invited a guest to ride with him takes a particular course at the request and for the pleasure or convenience of the guest does not indicate management of the automobile nor result in responsibility of the guest for the conduct of the owner and operator. That was the holding in the Telfer case, where the driver went upon a visit at the request of his wife. It was expressly decided that the fact that the journey was made at her solicitation added no weight to the claim that she herself was negligent or that she was responsible for her husband’s negligence, the court saying:
“It can not be that one who merely secures irom another the favor of transportation in a private vehicle takes upon herself or himself all risk of the driver’s negligence en route.” (Reading Township v. Telfer, 57 Kan. 798, 801, 48 Pac. 134, 57 Am. St. Rep. 355.)
In Zimmermann v. Union R. Co., 28 App. Div. 445, in 51 N. Y. Supp. 1, it was held:
“A gratuitous passenger, riding with the owner of a vehicle, and taking no part in the management of the horse, is not rendered chargeable with the driver’s negligence merely because he makes suggestions concerning the route to be taken.” (Syl.)
In Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 11, 23 Am. Rep. 1, it was decided that:
“A female who has accepted an invitation to take a ride with a person in every way competent and fit to manage a horse, is not chargeable with his negligence, and contributory negligence on his part is no defence to an action against a railroad corporation for injuries resulting from a collision.” (Syl. ¶ 1.)
. (See, also, The Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. 452, 9 Am. St. Rep. 827; Hajsek v. Chicago, B. & Q. R. Co., 68 Neb. 539, 94 N. W. 609; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391, 29 L. Ed. 652; Union Pac. Ry. Co. v. Lapsley, 51 Fed. 174, 2 C. C. A. 149, 16 L. R. A. 800; Babbitt, The Law Applied to Motor Vehicles, § 608.)
The cases cited deal with the question of the personal negligence of the guest as well as the imputed negligence, and most of them are cases where the guest or passenger is seeking a recovery for injuries resulting from the negligence of a third party and to which the driver’s negligence may have contributed. In some of the cases, as in Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, and Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261, a recovery was denied because the guest or passenger did not take the required care for himself, and counsel for plaintiff inquire whether a passenger owes a greater duty towards himself than to others. A person is required to take reasonable care for his own protection, and where he is injured and seeks a recovery for the negligence of another he may be held to have been guilty of contributory negligence if he rides with one known to be a reckless driver or in a vehicle known to be unsafe. If in starting upon a trip he discovers that the driver is running the car recklessly it may devolve upon him to insist that the driver shall stop the car and allow him to alight or to take some suitable steps for his own protection, and if he failed in this regard he might be denied a recovery for injuries subsequently sustained. In such case and where the passenger has no control of the automobile he might be held guilty of contributory negligence, whereas another passenger who had likewise no control of the automobile and no relation to the driver other than that of guest or passenger would not be liable to one injured by reason of the negligence of the driver. (Simeone v. Lindsay, 6 Pennewill [Del.], 224, 65 Atl. 778; Davids, The Law of Motor Vehicles, § 236.) As already stated, if Mrs. Kiefner had undertaken to keep an outlook and failed, or if she had even a slight share in the management of the car or if the unlawful speed had been made at her instance and request, or if in any way she had personally participated in inflicting the injury, she might be held liable for the resulting injury. It appears that the unlawful speed was attained by the driver while traveling a little more than a block. She was sitting alongside of the driver, it is true, and it is said made no protest against the speed nor any effort to stop the driver. It is difficult to understand how so great a speed was attained in going from a full stop in the distance of a little over a block, but the testimony is that at the time of the collision the car was going at a rate of thirty miles an hour. It is clear that the rate was unlawful, but the question is, What could the guest have done in that distance and what should she have done? There is nothing to show that she encouraged or approved the speed, and while a guest may make a suggestion or protest against the method of operating an automobile it might be that the attempt, however well intended, to stop the car’or interfere with the control of the driver might bring greater hazards and worse results than would come from undue speed alone. There is no basis for the theory of the plaintiff and the jury that Mrs. Kiefner consented to the unlawful speed beyond the fact that she did not protest or interfere with the operation of the automobile in the few seconds that elapsed while they were traveling a little more than the length of a city block. It is clear that the finding of the jury that she was managing the car by directing its destination is contrary to the evidence and that neither the evidence nor the findings justify the verdict rendered against Ida A. Kiefner.
Whether there is any testimony which even tended to support the claim that the injury was due in part to Mrs. Kiefner’s negligence and made it a question of fact for submission to a jury is a subject about which there may be a division of opinion. It is the view of the court, however, that the testimony produced did not show that she had anything to do with the management or control of the automobile, did not tend to prove that the journey was in any sense a joint adventure of the driver and herself by which one can be regarded as the agent of the other, nor did it show that there was any personal negligence on her part which would make her liable for the collision and the resulting injury.
The demurrer of Ida A. Kiefner to the plaintiff’s evidence, therefore, should have been sustained and judgment should have been given in her favor, and hence a modification of the judgment must be made. The judgment against Lynn Kiefner is affirmed, while that rendered against Ida A. Kiefner is reversed and the cause remanded with directions to enter judgment in her favor. | [
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The opinion of the court was delivered by
Porter, J.:
On the former hearing no brief was filed by appellee, and the judgment was reversed (Atkinson v. Kuchler, 94 Kan. 438, 146 Pac. 1038) on the theory that appellant’s contention was correct and that the case is controlled by the decision in Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418, wherein it was held that the only way to obtain a review of a judgment or final order of a justice of the peace is by appeal, since the amended code has abolished petitions in error. In a petition for rehearing attention was called to the fact that three days before the amended code took effect proceedings in error were pending by which appellee sought to have a review of the judgment of the justice of the peace. The appellee was defendant in the justice court, and on the 26th day of May, 1909, when the case came on for trial, appeared specially with a motion to quash the summons. The evidence in support of his motion was undisputed and showed that he was an actual resident of Oklahoma and that the summons was served upon him in this state while he was in attendance at a trial in a justice court in Cowley county in a suit in which he was a party and a witness. He took his exceptions to the ruling of the court denying his motion and withdrew from the case, and the court on the same day rendered judgment against him. The justice was required by section 188 of the justice’s civil code to note on his docket the exceptions to his rulings on questions of law taken by either party. The appellee had ten days under the old code- in which to present his bill of exceptions for allowance. He presented it on the 5th day of June, 1909. It was allowed and filed, and on the same day he filed in the district court the transcript and his petition in error. Section 754 of the new code contains a saving clause which provides that “all proceedings in error . . . pending at the time this act takes effect shall be heard and disposed of in the manner heretofore provided,” and further provides that “no rights acquired shall be affected by the passage of this act.” It must be held that the proceedings in error were pending when the new code took effect. After having his exceptions to the ruling noted, the appellee followed up and completed his proceedings within the time allowed by the old code. As tending to support these views, see Whitney v. Power Co., 81 Kan. 174, 105 Pac. 223.
The former ruling will be set aside and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
David Kennedy brought an action upon a policy issued by the Mennonite Mutual Fire Insurance Company of Kansas. Payment was resisted upon the ground that the insured afterwards procured other insurance without the knowledge or consent of the insurer, and that this avoided the policy. The court directed a verdict for the defendant, and the plaintiff appeals.
The taking out -of the other insurance is not disputed. A by-law of the company provided that such act should avoid the policy. The plaintiff contends that this provision was not binding on him because he had not signed the'copy of the bylaws attached to the policy, such signature having been held to be necessary under the statute (Gen. Stat. 1909, § 4226) to make them a part of the contract. (Insurance Co. v. Bank of Blue Mound, 48 Kan. 393, 29 Pac. 576.) To this the defendant responds that the plaintiff had signed the written application for the policy, which included an agreement to be bound by the by-laws, an act that would render immaterial the absence of his signature elsewhere. (Smith v. Insurance Co., 82 Kan. 697, 109 Pac. 390.) The insertion of the word “not,” in the eighth line from the last in the opinion in the case just cited, is a mere clerical error, as is made obvious by the context and by the express words of the syllabus.
The insured property is designated in the policy as “all property described in copy of application hereof.” The copy of the application appears on the face of the policy, immediately following the signatures of the president and secretary of the company. It concludes with an agreement of the insured to be bound by the by-laws, and with what purports to be his- signature. The plaintiff testified that he never signed the application or in any way applied for the policy; that the company issued it and turned it over to a mortgagee of the property; that the agent of the company included the premium in a charge made against him for other indebtedness, and he paid it without knowing it; that he never knew of the existence of the policy until after the loss, when it was delivered to him upon payment of the mortgage. Assuming this to be true there was obviously no actual contract between the parties unless it resulted from the plaintiff electing to ratify what had been done in his behalf and to treat the policy as though it had been properly issued upon his request. But he was required to adopt the transaction as a whole or not at all. He could not accept its benefits and repudiate its burdens. (Lumber Co. v. Silo Co., 92 Kan. 368, 140 Pac. 867.) The policy was issued upon an application signed in his behalf, a copy of which (referred to in its body and set out in full on its face) contained the only description of the insured property. The provision concerning concurrent insurance was fair and usual, and was substantially a part of the policy. It would be inequitable to allow the plaintiff to enforce the contract with that important feature eliminated.
On the hearing of a motion for a new trial the plaintiff asked leave to amend his petition so as to ask a return of the premium. The request was denied on condition that the amount be paid. The defendant at once made a tender, which was refused. The omission to offer an earlier return is not significant, as it was not demanded and manifestly would not have been accepted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a real-estate agent’s commission. The plaintiffs prevailed and the defendant appeals.
On April 6, 1912, the plaintiffs effected a trade between the defendant and H. T. Griffee. The defendant received land in Gray county and Griffee received land in Edwards county. The commission was to be adjusted according to the terms of a written memorandum providing that if the defendant should not be willing to take for the Gray county land $1000 above the price Griffee would take for the Edwards county land the defendant would pay the plaintiffs $100 one year after the date of the trade. The petition stated that before April 6, 1913, the defendant sold and conveyed the Gray county land to a third party and prayed judgment for $100 and interest from April 6, 1913. The defendant filed a motion to make the petition more definite and certain by stating the price Griffee would have been willing to take for the Edwards county land and whether or not the defendant was willing to take $1000 above such price for the Gray county land. The motion was overruled and a general demurrer to the petition was overruled. The defendant stood on the demurrer and judgment was rendered according to .the prayer of the petition.
The defendant had the choice of two methods of satisfying the commission contract. He could take a price to be fixed in a certain way for the land he received in the trade. If unwilling to do this he could pay $100. He disclosed his unwillingness to choose the first .method by putting it out of his power to take anything for the land he received in the trade. The whole subject of a price for that land, to be determined by Griffee’s price for his land, became immaterial, and having rendered one method of satisfying the contract impossible, the defendant was bound to adopt the other.
The judgment of the district court is affirmed. | [
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108,
7,
-114,
-42,
-93,
-113,
-122,
-111,
3,
-53,
7,
51,
112,
-49,
-26,
93,
71,
50,
-109,
-114,
-68
] |
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