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OPINION MODIFYING FORMER OPINION.
The opinion of the court was delivered by
Burch, J.:
Ellen McCracken commenced an action against the Missouri Valley Bridge & Iron Company for compensation for the death of her son who was an employee of the bridge company. The district court made an award of compensation in a lump sum computed according to the terms of the workmen’s compensation act. At the instance of the Fidelity & Casualty Company of New York, which had insured the bridge company, a baseless and contumacious appeal was taken to this court. The appeal was dismissed for want of merit, and in the opinion of the court occasion was taken to comment on the practice of taking such appeals. After the opinion was filed the Fidelity & Casualty Company of New York filed a motion asking that it be relieved from censure on the ground that it was in fact willing to abide the judgment of the district court but that it was coerced by the insurance department of the state of New York to resist the claim of the aged, destitute and helpless plaintiff. Leave to make a showing was granted. (McCracken v. Bridge Co., ante, p. 353, 360, 150 Pac. 832, 834.) The showing has been made and it clearly discloses that the Fidelity & Casualty Company was not actuated by any desire to delay payment, to speculate upon the plaintiff’s misfortunes, or to abuse judicial procedure, in this case. Anything to the contrary contained in the former opinion may be considered as withdrawn.
While the court is pleased to make the foregoing statement it regrets the necessity of adverting to the proof which the Fidelity & Casualty Company has brought upon the record explaining why it acted against its own wishes. As a part of its showing the Fidelity & Casualty Company filed the affidavit of one James J. Hoey, the material portions of which read as follows:
“James J. Hoey, being first duly sworn, upon his oath deposes:
“That at all times hereinafter mentioned, he was second deputy superintendent of insurance of the state of New York. That the principal office of the department of insurance of the state of New York is located at the capital of said state, to wit, Albany, but that affiant’s office was located at the city of New York. That affiant, by virtue of the office as such second deputy superintendent of insurance, was charged with the supervision of insurance companies writing workmen’s compensation insurance within the state of New York, and among others, with the supervision of The Fidelity & Casualty Company of New York.
“That the said The Fidelity & Casualty Company of New York as a condition precedent to its doing business in the state of New York was required by the department of insurance of the state of New York to promise and undertake not to make lump sum settlements in cases arising under the workmen’s compensation statutes of the various states in which The Fidelity & Casualty Company of New York might transact business, without the approval of the department of insurance of the state of New York. That the said pledge was at all times hereinafter mentioned in full force, and that the said department of insurance of the state of New York insisted that no lump sum settlements in cases arising under workmen’s compensation acts of the various states should be made without its approval.
“That upon to wit the 30th day of April, 1915, Frank E. Law, Esq., vice-president of The Fidelity & Casualty Company of New York, came to the office of affiant, and asked permission of affiant as representing the Department of Insurance of the State of New York, to make a lump sum settlement of the liability of The Fidelity & Casualty Company of New York in this case. That the said Frank E. Law laid before affiant among other papers a certain letter from the Missouri Valley Bridge & Iron Company to the Chicago office of The Fidelity & Casualty Company of New York, in which letter the Missouri Valley Bridge and Iron Com pany urged that The Fidelity & Casualty Company of New York make a lump sum settlement in this case. That affiant stated to Mr. Law that he did not believe that the facts of the case warranted any change in the prior rulings of the Department of Insurance of the State of New York, and that the Department of Insurance of the State of New York would expect The Fidelity & Casualty Company of New York not to make a lump sum settlement in the case, but to resist the same to the utmost.”
The workmen’s compensation act is a statute of the state of Kansas, duly promulgated by its legislature for the purpose of ameliorating certain social conditions. With the wisdom or unwisdom of the statute this court has nothing to do. The legislature, however, provided that in actions for the recovery of compensation the judgment, 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.” To this legislative command was ádded the following: “or, in the discretion of the trial judge, for periodical payments as in an award.” (Laws 1911, ch. 218, § 36.) That is the law of this state, and so long as it stands on the statute book it is entitled to obedience from anyone who encounters it.
It sometimes occurs that a statute of a state is displeasing to a portion of its citizenship and to others beyond its borders. It is, however, a fundamental principle of the American system of government that when the legislature of a state has registered a decision upon a subject within the scope of its authority the decision is the will of the state to the support of which all moral forces should rally. Those who are dissatisfied may indeed continue to persuade, if they can, successive legislatures to change the law, but so long as the legislation stands public and private welfare demand obedience to it until it can be changed according to lawful methods, because the supremacy of the law is the indispensable condition of any peace, order, or justice whatever.
Upon its own showing The Fidelity & Casualty Company of New York comes into this state to transact its business under an obligation to abide, not the will of the state vesting in its district courts authority to say when lump sums shall be paid in compensation cases, but the will of a department deputy of another state. On April 30, 1915, before the district court of Barton county had an opportunity to examine the facts and to exercise its authority to determine whether or not Ellen McCracken ought to receive a lump sum or periodic payments as compensation for the killing of her son, the deputy issued his fiat to resist a lump sum judgment “to- the utmost.” The case was one which both the bridge company and The Fidelity & Casualty Company desired to settle by paying a lump sum. The facts were stated in the former opinion as follows:
“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.” (Ante, p. 357.)
The judgment of the district court was that compensation should be made in a lump sum. There was no ground for appeal. Because The Fidelity & Casualty Company of New York was under obligation to submit to something which it accepted as higher law than the statute and rules of procedure of this state, it proceeded to resist to the utmost, and required an appeal to be taken which lacked even the shadow of merit. The result was not a lawsuit, but, as the court indicated, before, a demoralizing abuse of the judicial machinery of the state perpetrated in disrespect of its laws and in an effort to .thwart the purpose of the legislature expressed in a social-welfare statute. As the former opinion stated, the court does not possess adequate means of dealing with this kind of lawlessness, the real culprit not being in court nor subject to process.
Such being the' situation disclosed by the showing made in support of the application to modify the former opinion, the closing words of that opinion are pertinent:
“Some disagreeable facts, . . . have been set down . . . plainly and in detail, which not only disclose a condition, but which ought to awaken some interest in some quarters.” (Ante, p. 359.) | [
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Johnston, J.
This was an action upon the bond given by John S. Christie as surviving partner of the late firm of Christie & Carter. The firm was engaged in the banking business from June, 1886, until July 8, 1887, when S. F. Carter, a member of the partnership, died intestate. M. A. Carter, his widow and sole heir, was appointed administratrix of the estate, and John S.. Christie, the surviving partner, was appointed and for a time acted as co-administrator; but he subsequently resigned, and M. A. Carter became, sole administratrix of th.e estate. After the decease of Carter, Christie carried on the banking business under the'same firm name without giving a bond as surviving partner, until some time in September, 1889, when M. A. Carter caused a citation to be issued from the probate court requiring Christie to execute a bond as surviving partner and to proceed with the settlement of the partnership estate in accordance with law. In pursuance of the citation a bond was executed by Christie as surviving partner, which was approved on the 24th day of September, 1889. On December 26, 1889, M. A. Carter, as administratrix, brought an action against John S. Christie in the District Court for an accounting of the banking business ; and, in addition to the facts already stated, she alleged that Christie had refused to disclose the status of the business, and had not since the giving of the bond made to the probate court any report either final or otherwise as surviving partner; that when the appraisement was made he had failed to exhibit the assets of the partnership to the appraisers or to aid them in making a correct appraisement of the property; that, although S. F. Carter had been dead for over two years and all the debts due from the firm had been paid, no steps were being taken by Christie to close up the partnership business, nor had he made payment of any portion of the amount due her as sole heir of the estate of S. F. Carter. It was alleged that there was no adequate remedy at law, and she therefore prayed for an accounting of the business between her late husband and Christie, and for judgment for the amount found to be due her. A referee was appointed, who heard the case and found that Christie was indebted to the plaintiff; and upon the report made, and on January 5, 1891, judgment was rendered in her favor for $11,732. On October 29, 1891, the present action was brought upon the bond of the surviving partner, in which she asked a recovery of the amount of the judgment together with interest thereon. In the answers filed by Christie and the sureties upon his bond it was alleged that the judgment mentioned was void in that the court rendering it had no jurisdiction ; that the subject-matter of the action was of probate jurisdiction, and, as it was pending and undetermined in that court, the District Court could not properly take cognizance of it or'render a judgment thereon.
At the trial the proceedings and judgment, including the execution with the return of nulla bona, were introduced in evidence by the plaintiff, and she having rested, the defendants demurred to the evidence, which demurrer was sustained by the Court. In sup port of that ruling it is argued that the judgment against Christie in the accounting case is void, for the reason that the estate was in process of settlement in the probate court, and that that court had exclusive jurisdiction to settle and close up the partnership estate, rrobate courts are invested with jurisdiction over such estates, and may proceed to settle the same as in cases of ordinary administration. It is true, as contended, that when the probate court has acquired jurisdiction over an unsettled estate and that court can afford adequate relief, actions in other jurisdictions against the administrator will not be encouraged. It is a general rule, too, that in cases where two courts have concurrent jurisdiction the one that first takes cognizance of the case will retain it to the exclusion of the other. Stratton v. McCandless, 27 Kan. 306; Proctor v. Dicklow, ante, p. 119. The mere giving of jurisdiction, however, to one court does not show that it must be exercised exclusively by that court. The district courts are invested with full chancery and common law jurisdiction, and there being nothing in the act concerning the administration of estates which shows that the Legislature intended to confer exclusive jurisdiction on the probate court in suits against estates or to withhold it from the district court, the latter may exercise jurisdiction over estates and over heirs, executors and administrators whenever the special circumstances bring the case under some recognized head of equity, or when adequate relief cannot be obtained in the probate court. Shoemaker v. Brown, 10 Kan. 383; Johnson v. Cain, 15 id. 532. In Anderson v. Beebe, 22 Kan. 768, a controversy arose as to an unsettled estate, and an arbitration was had which was made a rule of the District Court. It was contended that as it was a matter arising in the settlement of an estate it could only be adjudicated in the probate court. It was held, however, that —
“If a controversy exists, prima facie the district court has jurisdiction of it. Controversies between a surviving partner and the administrator and heir of the deceased partner, perhaps not all, but certainly some and probably most of them, are cognizable in that court.”
In Klemp v. Winter, 23 Kan. 699, it was decided that, while the probate courts of the State have general jurisdiction over the-estates of minors, there was nothing to indicate the talcing away or limiting the jurisdiction of the district court in that class of cases ; and where a complete remedy cannot be obtained in the probate court a party may rightfully invoice the jurisdiction of the district court. It was also held that where there is a branch of the case which must necessarily be taken to the district court, that court will, for the purpose of avoiding a division of the subject-matter or a multiplicity of suits, take jurisdiction of the whole subject-matter and dispose of the same as justice and equity require. The jurisdiction of the district court in such matters is an equitable one, and in its exercise that court will be governed by the rules of equity ; one of which is that as a general rule it will only take jurisdiction where the plaintiff has no other adequate remedy by ordinary legal proceedings in the tribunal especially provided by statute. Kothman v. Markson, 34 Kan. 542; Gafford, Guardian, v. Dickinson, Adm’r, 37 id. 287; McLean v. Webster, 45 id. 644. In the case In re Hyde, Petitioner, 47 Kan. 281, it was held “to be settled law in this state that, when certain facts exist, growing out of the liabilities of a deceased person, or it may be arising out of the settlement of the estate of a deceased person, wherein the probate court, by reason of its limited jurisdiction and restricted authority, cannot protect and enforce the rights of all persons involved in the controversy, the equitable power of the district court may be invoked in their behalf.”
The matter of taking an accounting comes within a recognized head of equity jurisdiction, and it is one in which a full measure of relief cannot always be obtained in the probate court. Especially is this true where, as in this case, the accounting appears to involve matters outside of the partnership business. The probate court could not take cognizance of an individual liability from Christie to Carter, nor of transactions occurring between them prior to the commencement of the partnership ; and claims of this character are made. The debts of the partnership appear to have been discharged and the estate appears to have been practically settled before the commencement of the accounting action, except as to the division of the assets between Christie and the administratrix. It was in such a condition that all business matters of the late firm, as well as between its members and also between the surviving partner and M. A. Carter, the representative and sole heir of the deceased partner, could be determined. It is conceded that all of these matters might be determined in a general accounting, and it was therefore proper for the plaintiff to apply to a court which had complete jurisdiction to dispose of the whole subject-matter in controversy between them. The district court could take jurisdiction" of all accounts against Christie and upon which he would be liable to M. A. Carter and dispose of them in a single case as justice and equity required. Klemp v. Winter, supra. And finally, when the case is ended, the District Court can render a judgment against Christie for any liability and enforce the same; a power the probate court is not authorized to exercise. We conclude, therefore, that the District Court was not without jurisdiction and that the judgment in question rendered by it is not a nullity.
It does not follow, however, that the judgment rendered will be conclusive against the sureties upon the bond of the surviving partner. The condition of the bond is that the surviving partner will use diligence and fidelity in closing up the partnership affairs, and further that he will account and pay over at the proper time to the administratrix the excess, if any there may be, beyond satisfying the partnership debts. Under this condition the sureties would be liable for assets of the estate in his hands when the bond was executed. They cannot be held liable upon transactions not included within the partnership, nor upon the individual liabilities of its members outside of the partnership business. More than two years elapsed after the death of Carter before the bond of the surviving partner was given. A portion of that time M. A. Carter and Christie appear to have been co-administrators of the estate and to have united in the control of the property. If there was any waste during that time and prior to the giving of the bond, M. A. Carter may be responsible for the loss, and not be in a position to insist upon a payment of the amount of the loss either from the surviving partner or his sureties. Insley v. Shire, 54 Kan. 793. As Christie is liable upon the judgment, and as the sureties are responsible for at least a portion of the indebtedness in- eluded in the judgment, there was error in sustaining a demurrer to the plaintiff’s evidence and in rendering a judgment against her.
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.
John W. Foulk appeals from a conviction upon a charge of grand larceny, and assigns as .a ground of error that the verification of the information was incomplete and insufficient. It was subscribed and sworn to by the County Attorney before the Clerk of the District Court in which the information was filed. The jurat is in proper form, duly attested by the signature of the Clerk, and is complete in every particular except that the seal of the Court appears to have been omitted. Although there was a motion to quash the information upon general grounds, it is probable that this defect was not specifically pointed out to the Court. The omission might have been of more consequence if the officer before whom the verification was made had been a stranger to the Court. It was taken before the Clerk, who was an officer of the Court, and whose signature is judicially known to the trial judge. The seal is only •evidence of authenticity ; and, as the Court could take judicial knowledge of the signature of the Clerk, further authentication by evidence was not of great importance. In any event, we do not think the omission of the seal is a fatal defect, and a judgment cannot be disturbed on account of technical errors, or defects or exceptions which do not affect the substan tial rights of the parties. ¶5355, Gen. Stat. 1889; Entreken v. Howard, Adm’r., 16 Kan. 554; The State v. Carey, 56 id. 84.
It appears that there had been two trials of the charge against Foulk previous to the one upon which he was convicted. It aiso appears that Thomas Yarrow had been prosecuted and convicted for the larceny of the hogs with the stealing of which Foulk was also charged. At a former trial of the charge against Foulk, Yarrow testified in behalf of the State. On the final trial the court stenographer was produced as a witness and permitted, over the objections of the defendant, to read from his notes the testimony given by Yarrow against Foulk on the former trial. This was a clear violation of the constitutional rights of the defendant.
The State Constitution provides that “In all prosecutions, the accused shall be allowed ... to meet the witness face to face.” § 10, Bill of Rights. These provisions secure to the accused, whose life or liberty is involved, an important right of which he cannot be deprived except with his consent. It is a personal right which he may waive, and, if to avoid continuance or delay, he had consented that the testimony of Yarrow, written down on the former trial, might be read as evidence to the jury as a substitute for the oral testimony and presence of the witness, he would be concluded by his consent. The State v. Adams, 20 Kan. 311. Here, however, there was a vigorous opposition to the reception of the testimony, and the grounds of objection were repeatedly and specifically pointed out to the Court. Yarrow’s testimony, so read to the jury, was lengthy and important, and doubtless had much to do with the verdict which was returned. Indeed, it was the most important testimony that was produced against the defendant. Much of. it would have been incompetent if the witness had been personally present in the Court, but, as produced, it was wholly incompetent.
Some other objections are made to the rulings of the Court at the trial, but none of them are deemed to be material.
For the error mentioned the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
This was an action by Thomas H. Tindall against the Atchison, Topeka & Santa Fe Railroad Company to recover for personal injuries alleged to have been suffered by him through the negligence of the Company. Tindall was a locomotive fireman engaged in the service of the Company in New Mexico, and, on the night of November 2, 1889, he was upon a locomotive with Thomas Williams, an engineer. They brought a train into the yards at Raton about midnight, and, no brakeman being present to uncouple the engine from the train or pilot it into the roundhouse, Tindall was directed by the engineer to uncouple the engine, which he did. Instead of getting back into the cab, Tindall then took a position on the front end of the engine, sitting upon the pilot beam, with his feet resting upon the pilot. The first switch to be thrown was between 300 and 400 yards from the starting point, and upon a signal from him to the engineer the engine was moved forward at a rate of about five miles an hour. There had been a storm, and snow was falling, and there was snow upon the pilot and front end of the engine. Tindall had a lantern upon his arm, and with one hand held onto the pilot-brace. While reaching to his hip pockeU with the other hand to obtain his gloves there was a jar of the engine which caused him to fall from the pilot. One of the wheels of the engine passed over and crushed his arm so that amputation above the elbow was necessary. He alleges that the injury was caused by the negligent construction and maintenance of the track at the place where the injury occurred, and that the defect in the track was such that, with proper diligence and care on the part of the Company, it could have been discovered and remedied in time to have prevented the injury. The Company denied the charge of negligence, and averred that the injury was the result of his own carelessness. At the trial, the jury found that the injury was due to the negligence of the Railroad Company, and awarded $5,500 to Tindall as damages.
The sufficiency of the testimony to sustain the verdict is the first question to which our attention is directed. On the part of the Company it is contended that the track was not defective or dangerous, and that, if there was a defect, the Company did not know, and could not by the exercise of ordinary care have known, of its existence. What the defect was is not shown, and what caused the jar of the engine is a mystery not solved by the testimony. Williams, the engineer, testified : "At the time he fell I felt a jar of the engine, as if we struck a rough place in the track. Of course I could n’t tell just what it was, but it felt like alow joint.” Again he stated: "I felt a jar of the engine as if there was a rough track. At the time of course I could n’t say exactly what kind of a track it was, but the track was rough¿there at that time; at least it felt that way.” After stating that some jars were usually felt upon the engine, he testified that the one that occurred when Tin'dall fell off the engine was "above the ordinary.” In answer to an inquiry as to how he came to fall' from the pilot of the engine, Tindall testified as follows :
“It felt like she came against something, and struck pretty hard, and I was thrown off.
“Q,. What was the matter with that track, if you. know? A. There was a rough piece of track.
“ Q. You are conversant with the condition of the tracks in the yard limits and on the main-line track? A. Yes, sir.
“ Q. State to the jury how it compares in point of roughness with the ordinary siding and the ordinary switches, if you know. A. Well, we are used to ordinary bumps on the tracks ; we don't pay any attention to those. You have always to look for ordinary track.
“ Q,. Well, what was this? A. AVell, this was over the ordinary rough track.”
As the jury have found, there was no evidence' to show that there was a low joint in the track where the injury occurred. Shortly after the injury, Tindall requested an employe in the yards, named Bennett, to make an examination of the track at the place of the injury, which he did ; but he did not find any low joint there, nor anything wrong with the rails, except that two bolts were gone from one of the joints. The rails were in their proper places, and were spiked down all right; and the jury have found that the absence of the two bolts in the fish-plates joining the rails did not render the track dangerous upon -which to run an engine at the speed of five miles per hour. It appears that the tracks in the yards are not as smooth and as solid as the mainline track ; and that they are not required to be maintained at the same standard of perfection as the main-line track, where greater speed is necessai’y, is conceded. There were employes in the yards whose duty it was to maintain the tracks in suitable condition, and, although said to be “ somewhat rough,” no particular defect has been pointed out. Wherein was the Company negligent? No one discovered any defect in the track, and no one knew what caused the jar. While to one witness it felt like a low joint, yet, upon examination, none was found ; and, at the place where the injury occurred, it is not shown that the track was out of alignment or out of repair. Whether the jar was caused by a defect in the track, or a temporary obstruction, the evidence does not show. If it be granted that there was a defect in the track, when did it become defective? Did it exist five minutes, five hours, or five days; prior to the injury? Was it so obvious that the Company or those in charge of the track should, in the exercise of ordinary care, have discovered it? There is no proof that the Company knew of the existence of a defect, and nothing to show that it had either notice or opportunity to discover it. Indeed, there was no proof at all of what the defect was- A fading of negligence cannot rest upon mere conjecture. As the court instructed the jury, “negligence can never be presumed, but must be proved.” Testimony that there was a defect in the track and that an injury occurred, does not establish culpable negligence-on the part of the company. In Harter v. Railroad Co., 55 Kan. 250, this doctrine was recognized, and Mr. Justice Allen remarked :
“This, however, is not enough to warrant a recovery against the defendant. There must be evidence-fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the-defect could have been discovered before the accident.”
This principle was held to be controlling in Gar ruthers v. Railway Co., 55 Kan. 600, where the Chief Justice said:
“It is necessary to allege and prove, among other things, that the defendant knew of the defect, or that it was of such a nature or had existed for such a length of time that in the exercise of ordinary care it should have been discovered by the defendant, in which case notice ought to be presumed; and where there is no evidence of such notice or its equivalent, a demurrer to the evidence is properly sustained.”
As it was not shown that the Company knew of any defect, or that it should have known of its existence, the proof is insufficient to sustain the charge or finding of negligence.
It is next contended that Tindall voluntarily and unnecessarily took a dangerous position on the front of the engine, when he could and should have chosen a safer place in the cab. The position taken by him appears to have been one of great danger. It was in the nighttime and it was dark and windy. There had been a snowstorm and there was snow upon the pilot. The engine was the ordinary one used on the main-line, without footboards, hand-rails or other provisions for carrying employes on the front, such as may be found on switch-engines. A position on the pilot or pilot-beam of such an engine is generally regarded to be somewhat dangerous, but the hazard must be greatly increased when the pilot is covered with snow. Tindall had no duty to perform which required him to ride on the front of the engine. The jury find that he voluntarily assumed the position, as the engineer did not direct him to ride there, and no rule of. the Company required it. The cab was the place provided for riding upon the engine, and, as the jury find, it was a much safer place than the one which he took. It was also found by the jury that he could have performed the duties required of him by riding in the cab instead of on the front of the engine; and the question of whether he should have taken the safer place is one of great importance, If he voluntarily and needlessly took a .highly dangerous place when a reasonably safe one was provided for him, he ordinarily could not recover for resulting injuries. Railway Co. v. Estes, 37 Kan. 715. The case of Railway Co. v. McCally, 41 Kan. 639, is referred to and relied upon, but the facts of that case differ materially from those of the present case. There, it was shown that the swichman would necessarily have to get on the pilot of the engine to make the couplings and perform the duties required of him, while' in the present case there was no duty which required Tindall to assume the perilous position which he took. In the McCally case the immediate cause of the injury was the reckless misconduct and gross mismanagement of the engineer in charge of the engine that was used in doing the switching, while in this case the jury have found that the engineer of the engine upon which the plaintiff was riding was not guilty of negligence. The cases differ in other respects, but, however much they may correspond, we think it was the duty of the Court, upon request, to submit to the jury the rule of law referred to in the Estes case. The following instruction was requested and refused :
“The jury are instructed that if, in the discharge of a duty, an employe of a railroad company voluntarily places himself in a dangerous position unnecessarily, when there is another place that is safer that he could have chosen, and he has time to exercise his judgment, and injury occurs by reason of his choice, he cannot recover for such injury.”
Other instructions embodying the same view of the law were requested and refused, and while the jury were told in a general way that the plaintiff could not recover if his owmnegligence contributed proximately to the injui’y, no declaration of law like the one requested was given. It is substantially the rule as laid down in the Estes, case, and, in view of all the testimony of the case, we think the Company was entitled to an instruction like the one requested.
The judgment of the District Court will be reversed and the cause remanded for further proceedings.
Allen, J., concurring. | [
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The opinion of the court -was delivered by
Martin, C. J. :
It was held by this court in Plow Co. v. Rodgers, 53 Kan. 743, 749, in accordance with numerous authorities, that an election by a party of one of two inconsistent remedies, once fairly made with lcnowl edge of the facts, is binding and conclusive, so that he cannot abandon it and choose the opposite remedy, and this case was cited and followed in City of Larned v. Jordan, 55 Kan. 124, 128, although it was held in that case that the party had not before made an election. The principle was well stated in Thompson v. Howard, 31 Mich. 309, 312, where the supreme court of Michigan said:
“A man may not take contradictory positions, and where he has a right to choose one of two methods of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again.”
In the case now under consideration, the Illinois bank had the option of accepting the security of the chattel mortgage or rejecting it. In the latter case, it might bring suit and obtain an attachment on the ground that the chattel mortgage was fraudulent and void as to creditors. It chose 'that course, and for five years it litigated against the Emporia bank to defeat the claim of the latter under the chattel mortgage, and to obtain the entire proceéds of the. sale of the goods by means of its attachment suit. The chattel-mortgage security was not only repudiated, but made the ground for the writ of attachment. The respective remedies upon the chattel mortgage and the at tachment were therefore altogether inconsistent with each other, and the plaintiff, having taken and so long pursued its remedy by attachment, must be content with the result.
The plaintiff in error claims that a party who imagines that he has two or more remedies, or who misconceives his rights, is not to be deprived of all remedy because he first tried the wrong one, and cases are cited in support of this proposition; but we think it has no application to such a case as this. The case of In re Van Norman, 41 Minn. 494, appears, however, to go beyond this, and to decide that a creditor may contest the validity of a general assignment for the benefit of creditors, and, being defeated, may afterward prove up his claim and be entitled to distribution in the same manner as other creditors. There may be a distinction between an attack upon a general assignment and one upon a chattel mortgage expressly made for the benefit of the party who afterward attacks it, but, unless such distinction obtains, we could riot agree to the doctrine asserted by the supreme court of Minnesota.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Johnston, J.
Philetus H. Smith was convicted of wounding Adelbert J. Alsop under such circumstances as would have constituted manslaughter in the fourth degree if death had ensued. In his appeal he alleges several errors, one of which is that the charge in the information was not the same as the one stated in the warrant upon which he was arrested, and that, therefore, he has not had a proper preliminary examination. There is nothing substantial in this claim. In each it is alleged that Smith unlawfully and feloniously and with malice aforethought made an assault upon Alsop with a deadly weapon, to wit: a four-tined pitchfork, and did then and there feloniously, on purpose, and with malice aforethought, strike, beat and wound Alsop. In the one it is averred that he struck, beat and wounded Alsop with intent to maim him, while in the other it is alleged to have been done with intent to wound and maim. The same fullness of statement necessary in an information or indictment is not required in a warrant or any of the preliminary papers. The defendant should have reasonable notice of the nature and character the offense charged against him, but for the of a trial it is only necessary that the defendant should be given a fair opportunity to know by a proffered preliminary examination the general character and outlines of the offense charged against him. He is required to take notice from the evidence introduced by the State on the preliminary examination, as well as from the papers in the case, the nature and character of the offense charged against him. We think the charge in the warrant afforded the defendant reasonable notice, and that the principal purposes of a preliminary examination have been subserved in his case. The State v. Bailey, 32 Kan. 83; The State v. Tennison, 39 id. 726.
The information is not open to the charge of duplicity, and the Court ruled correctly in denying the motion to quash. It set forth facts sufficient to constitute an offense under section 38 of the act relating to Crimes and Punishmentgj an(J facf¡g ag £huS Set forth were also sufficient to constitute the offense of wounding under such circumstances as would constitute manslaughter if death had ensued, under section 42 of the Crimes Act. The crime of which he was convicted was fairly included in that charged in the information. The State v. Burwell, 34 Kan. 312.
By way of a plea in bar the defendant alleged that he had previously been charged with the same offense-, before a justice of the peace and upon a trial had been adjudged guilty of assault and to pay a fine of $5 and costs. He alleged that the fine and costs had been paid and that he had been discharged from custody.
The answer to the plea was a general denial, and it was further alleged that the complaint made against, the defendant before the justice of the peace was a, pretense, filed at his request, and that he had pro cured the charge to be filed against himself so as to avoid punishment for ^he real offense committed by him. It was further averred that the complaint was filed, and the plea of guilty offered and accepted, in the absence of Alsop, and without his knowledge or consent. The demurrer to the answer was properly overruled, and the testimony was amply sufficient to sustain the averments of the answer. It appears to have been a collusive and fraudulent transaction, begun at the instance of the defendant, with a view of defeating the law and avoiding the consequences of a prosecution brought in good faith, where the State was a party in fact as well as in name. A conviction so obtained is a nullity, and the proceedings do not bar a bona fide prosecution. Commonwealth v. Dascom, 111 Mass. 404; The State v. Little, 1 N. H. 257; The Commonwealth v. Jackson, 2 Va. Cas. 501; The State of Iowa v. Green and Mann, 16 Iowa, 239; Watkins v. The State, 68 Ind. 427; McFarland v. The State, 68 Wis. 400; 1 Bishop, Crim. Law, §1010.
At the trial on the merits the defendant became a witness in his own behalf. He denied material statements made by witnesses of the State in regard to the occurrence, claiming that he acted in self-defense. Upon cross-examination he was asked whether he had not voluntarily gone before the justice of the peace and admitted that he had assaulted the prosecuting witness. An objection to the question was overruled, and of this complaint is made.
We think the testimony was competent. It would not have been admissible for the purpose of proving a record of the conviction, but it was proper to give to the jury for what it was worth as an admission by defendant against his own interests. Having taken the witness-stand in .his own behalf and testified that he had acted in self-defense, it was proper to show an admission previously made wholly inconsistent with his claim.
Complaint is also made of an instruction as to the offense punishable by section 42 of the Crimes Act, in which it was contended the Court eliminated the question of intent. This contention is not justified. The Court had previously instructed the jury with reference to the offense defined in section 38, charging that the criminal act must have been done with malicious intent. In the instruction with respect to section 42 the Court stated that to convict under that section it was unnecessary to prove that the assault complained of was made with malice aforethought. The jury were properly charged upon the different degrees of manslaughter, including the essential ingredient of intent.
The testimony appears to be sufficient to sustain the verdict and judgment, and after a careful examination of all the specifications of error we find no reason for disturbing the judgment; it will, therefore, be affirmed.
All the Justices concurring. | [
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Martin, C. J.
This was a suit brought to recover $25,000 damages for personal injuries sustained by the plaintiff August 19, 1892, about 6 o’clock p. m. at a crossing of the defendant’s Emporia Branch Railroad, about one-half mile south of Pomona, in Franklin County. A verdict was returned and judgment was rendered in favor of the defendant, January 19, 1893, and, the plaintiff’s motion for a new trial being overruled, the plaintiff brings the case here alleging error.
The record does not contain all the evidence, sufficient being preserved, however, to show the applicability of the instructions given. From this and the answers of the jury to particular questions submitted to them, the material facts appear to be as follows : The plaintiff and her sister-in-law, Lennie F. Lawrence, were driving north upon the highway in a two-horse, single-seated, top carriage, the side curtains being up or off. The plaintiff was on the right hand or east side driving the horses. The railroad crosses the highway east and west almost at right angles, bearing slightly to the north in going east. To the west the track is straight tp the Marais des Cygnes River, a mile and a half distant. The railroad embankment is 4 to 6 feet in height. The depot for Pomona station is 192 feet west of the highway crossing on the north side of the main track. The cattle-chute and pens are 302 feet west of the crossing and on the south side of the passing track, which starts out from the south side of the main track 2,057 feet west of the crossing and extends a considerable distance east thereof. The section house is 2,083 feet west of the crossing. There is a stub switch starting from the north side of the main track 725 feet west of the crossing and extending on the north side of the depot and across the highway. The distance between the passing track and the main track from center to center is 16 feet, and from the center of the main track to the north end of the stock-chute 21 feet and .10 inches. This structure extends 80 feet south to the stock-pens built of boards and posts about 6 feet high; the chute being of the same height for the first 40 feet, and from that point northward sloping upward to correspond with the railroad embankment, thus raising its northern extremity to a point 9T7g-feet above the south rail. South and west of the stock-pens and chute were growing corn and some weeds. There is a hedge fence on the west side of the highway, but it extends north only to a point 372 feet south of the railroad crossing. The ladies were driving at a trot. They saw a hand-car coming from the east and crossing the highway, and they made some remarks to the effect that the train could not be very near as the hand-car was on the main track. They drove to a point within 15 feet of the crossing, when they saw the fast freight train approaching from the west and not far away. They were frightened, and Lennie F. Lawrence struck one of the horses with the whip, and they sprang forward onto the track, when the train 'came upon them. Mrs. Lawrence was killed, as also one of the horses, and the plaintiff sustained very serious and perhaps permanent injuries. The station whistle, which was quite prolonged, was sounded about 4,500 feet west of the crossing but the ladies did not hear it, there being a slight breeze from the east. When the engine was about 2,000 feet west of the crossing, the engineer saw the team and vehicle about 250 to 300 feet south of it. The findings are not entirely satisfactory as to the point where the crossing whistle was sounded. There was no whistling post there, and in answer to one question the jury found that the whistle was blown 1,200 or 1,300 feet from the crossing, but in answer to another they stated that it was sounded about one-third of the distance from the stock-chute to the section house, which would be about 896 feet from the crossing. The bell was rung from about the end of the stub switch, and the plaintiff testified that they heard the ringing o,f the bell and the whistle almost simultaneously and this was her first knowledge of the approach of the train. The engineer endeavored to stop, but the engine had gone 20 or 30 car lengths beyond the crossing before he succeeded in stopping. The grade was slightly descending going east. The jury found that at a point 30 to 31 feet south of the crossing the ladies could have seen to the stub switch, and at a point 27 feet south to the section house ; that after passing the north end of the hedge they could have seen the train to the bridge, a mile and a half away, and could have seen the smokestack and the top of the engine and cars over the stock-pens and the cattle-chute, or by looking between the bars. The plaintiff had crossed the track very frequently. The speed of the train was about 30 miles an hour. The day was clear and the sun shone brightly.
It seems strange that this disaster should have occurred, and the jury must have believed that in driving upon the crossing under such circumstances the ladies did not exercise ordinary care. The train must have been in plain view from the time that the ladies passed the north end of the hedge ; yet when they first saw it, and Mrs. Lawrence struck the horses with the whip, it could not have been more than 200 feet distant. The case is somewhat like that of Young v. C. R. I. &P. Rly. Co., ante p. 144 (45 Pac. Rep. 583), where a demurrer to the plaintiff’s evidence was sustained by the trial court and the judgment was affirmed by this Court.
Complaint is made as to several instructions given. We have carefully considered each but find no material eirror in the instructions, especially in view of the facts found by the jury.
The judgment must be affirmed.
All the Justices concurring. | [
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Martin, C. J.
The plaintiffs in error, holding judgments against J. C. Gillham for $3,097.84 and costs, commenced their action for the purpose of subjecting 320 acres of land in Greenwood County to the payment . . . proceeding in error to obtain the relief which the District Court denied.
The essential facts are these : — J. C. Gillham, being the head of a family, owned a house and lot in Eureka, which, lie occupied as a homestead, and these judgments and others would have been a lien upon the property except for its homestead character. He was insolvent. On January 5, 1887, he traded the homestead for said land, which was incumbered to the amount of $2,000. The exchange was made, not with the intention of occupying the land, but for the purpose of executing a mortgage on it to pay off the incumbrance, and to obtain enough money, together with what he might realize from the sale of the equity of redemption, to buy another home, either in Fort Scott or Wichita. He made application to the Farmers’ Loan & Trust Company at Anthony for a loan upon the land. Its officers were fully acquainted with the circumstances, and they advised him to have the deed for the land made to William E. Gillham, his son, who was 21 years of age, so that the judgments might not appear to be liens upon it. Accordingly the deed for the land was made to William E. Gillham, who made application for the loan (that of J. C. Gillham being withdrawn), and the company made a loan of $3,000. The incumbrance was discharged, and the balance of the money was paid to J. C. Gillham. William E. .Gillham executed to the company his note for the amount of the loan, and secured the same by a first mortgage on the land; and he executed four other notes for $150 each to T. H. Stevens, who was connected with the Company, the same being given as commissions for obtaining the loan, and he secured these notes by a second mortgage upon the land. Stevens transferred these commission notes to the Company, and they, together with the second mortgage, came into the hands of Whitney R. Tucker but the $3,000 note was assigned to the Citizens’ Savings Bank & Trust Company, of St. Johnsbury, Vt.,. defendant in error ; John T. Ritchie, the other defendant in error, being the treasurer and general manager <of said bank, who transacted the business. The transfers of all the notes were by assignment, and not by commercial indorsement. After the execution of the mortgages, William E. Gillham conveyed the land, and, by mesne conveyances, the title became vested in Charles W. Spaulding, subject to the incumbrances. Tucker foreclosed upon three of the commission notes making William E. Gillham and Charles W. Spaulding parties defendant. He obtained judgment for $561.15, and an order of sale of the property subject to the first mortgage of $3,000 and interest. The land was sold at sheriff’s sale, and said John T. Ritchie becoming the purchaser at the sum of $22, subject to said first mortgage, the sale was confirmed, and on June 6, 1891, the Sheriff executed a deed to said John T. Ritchie for said land, subject to said first mortgage.
The plaintiffs contend that, when the legal title was placed in the name of the son, the equitable title vested in the father, and their judgment liens attached to it; but no liens attached to the homestead which was traded for the land, and the exchange and the loan were all parts of a transaction designed to transfer the home from Eureka to Fort Scott or Wichita, and the balance of the loan, over and above the incumbrance, and the equity of redemption together represented the value of the Eureka homestead. Monroe v. May, Weil & Co., 9 Kan. 466, 475; Harrison & Willis v. Andrews, 18 id. 535, 541. The same principle was applied for another purpose in Nichols v. Overacker, 16 Kan. 54, 58. It is well settled that one homestead may be exchanged for another free from any claim of creditors upon either. A debtor cannot commit a fraud upon his creditor by disposing of his homestead. Hixon v. George, 18 Kan. 254, 260. It may be that if J. C. Gillham had taken the title to the land in his own name, the judgment liens might have attached. Certainly, they would do so if not merely a step in the transaction of exchanging homesteads, but the loan was made at the time of vesting title in William E. Gillham. The sum of $2,000 was used to discharge the prior incumbrance, and it would be inequitable to subject the interest in the land which represented the exempt fund to the payment of judgments which never became a lien upon it, to the prejudice of the Loan Company or its assignees.
The plaintiffs have no just cause of complaint, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action begun by Charles M. Wallace against the city of Winfield to enjoin the construction ola dam across the Walnut river. The injunction was granted, and the city appeals.
Bordering upon the Walnut river is a tract of land known as the fair-ground tract, owned by the city of Winfield, and upon which is located the city’s water plant. Up the river from this tract are the Baden mills, and a dam across the river ; below it is the Tunnel mill, owned by plaintiff, with another dam across the river. In 1883 the city of Winfield condemned the right to take all necessary water from the river at a point above the Baden mills. About 1910 the city moved its intake from the Baden mill pond to its present location, opposite the fair-ground tract, and on August 18, 1914, obtained a right from a landowner to erect a dam across the Walnut river about one-half mile below its water plant and about 7836 feet up the river from the dam owned by plaintiff, and 6000 feet above his mill. The proposed height of this dam, it was shown, was about seven-tenths of a foot lower than the height of plaintiff’s dam and about nine feet lower than the Baden dam. The plaintiff’s mill was operated by water power except when the water in the river was so low as to furnish insufficient power, and then the mill was operated by steam power. During parts of 1913 and 1914 the water in the river was very low, and the city did not get sufficient water for the demand, except when the Baden dam was opened and the water permitted to flow down. Plaintiff alleged that the proposed dam would reduce the volume of water flowing in the river, interfere with its usual fall, and thereby destroy, to a large extent, his use of the water for milling purposes, to his great damage, and he therefore asked that the construction of the dam be enjoined. The trial court made detailed findings of fact and concluded that the proposed dam would be a substantial injury to the rights of plaintiff, and hence a judgment of injunction was entered.
The defendant appeals and insists that upon the findings made the defendant was entitled to judgment in its favor. It is contended, first, that the city was entitled to take all the water from the river which is needed to supply the people of the city, and that the plaintiff suffered no injury by the moving of the intake; second, that the construction of the proposed dam would not be an unreasonable interference with the natural flow of the river; and third, that the failure of the plaintiff to maintain his dam barred him from claiming any equitable relief.
The city acquired the right to take water for municipal purposes at a point above the Baden dam, but the location of the proposed dam is 6634 feet below that dam. No proceedings have been taken by the defendant to obtain the right to construct a dam or to obstruct the flow of the stream except to purchase land on each side of the river at the site of the proposed dam. Near this site the defendant at great expense built its pumping station and filtration plant, and this appears to have been done when the plaintiff was acting as mayor of defendant city, and with his consent and approval. The defendant, as we have seen, had acquired the right to take all the water it needed at a point abové the Baden dam, and it appears that there were no tributaries between that intake and the point chosen for the erection of the proposed dam. But while it may make little difference, so far as the quantity of water is concerned, whether the water is taken out above or below the Baden dam, it is insisted that the defendant never had condemned or obtained any right to take water below that dam, and besides, it had never acquired a right to obstruct the flow of the stream or to impound the water at the site of the proposed dam, which was practically within the plaintiff’s mill pond, or reservoir. The court found that in ordinary stages of water the plaintiff’s dam, when closed, backed the jvater up to the present intake of the defendant, which is one-half mile farther up the river than the site of the proposed dam. The dam owned by plaintiff has been in existence for about forty years, and has been maintained at its present height for about twenty-five years. It does not appear that the plaintiff or any of his predecessors acquired any rights as against riparian owners by purchase or condemnation. There was litigation in 1894 between the owners of the plaintiff’s mill dam and a riparian owner, in which the character and height of the dam was determined and fixed, and the owners of the dam are perpetually enjoined from changing the height of the same. As the dam has been maintained at this height for more than fifteen years a presumption of a grant or of consent by the upper riparian owners arises and gives the owner of the dam a right to its continued maintenance to the extent to which the right has been enjoyed for the period of prescription. (Whitehair v. Brown, 80 Kan. 297, 102 Pac. 783.) At the site of the proposed dam the defendant was a riparian owner by virtue of the purchase of land on each side of the river, and while a riparian owner has the right to a reasonable use of the water for domestic and agricultural purposes the city is not entitled to divert or take water from the river for the purpose of selling it to inhabitants of the city or to other persons remote from the stream. (City of Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Lord v. Water Co., 135 Pa. St. 122, 19 Atl. 1007, 8 L. R. A. 202, 20 Am. St. Rep. 864; City of Battle Creek v. Resort Ass’n, 181 Mich. 241, 148 N. W. 441.) The duty of supplying the inhabitants of the defendant city with water is imperative, and the necessity for obtaining water at this place may be pressing, but the city is vested with the power of eminent domain and may obtain the right to take water from the stream by condemnation and the payment of compensation to those who may be injured or from whom any property rights may be taken. In the Soden case the owner of the mili and dam had acquired the rights of the riparian owners for some distance up the stream, and had been in the undisturbed possession of the same for nineteen years. Without condemnation of the water privileges or compensation to the mill owner the city undertook to take water from the mill pond, claiming that it was a riparian owner, that it represented all the inhabitants of the city and was entitled to take as much water as was needed by all of them for domestic purposes. The court held that the city could not be considered a riparian owner in a representative way. It was said:
“The city, as a corporation, may own land on the banks, and thus in one sense be a riparian owner. But this does not make each citizen a riparian owner. And the corporation is not taking the water for its own domestic purposes; it is not an individual; it has no natural wants; it is not taking for its own use, but to supply a multitude of individuals; it takes to sell.” (p. 607.)
The conclusion of the court was that the proposed action of the city impaired the flow of the water and diminished the power which belonged to the mill owner and therefore the city was enjoined from interfering with his water rights, holding that before the city can interfere with the water power it must make compensation.
As the plaintiff and his predecessors in title had acquired and held the water-power rights up to and above the place in question by user and the city was proposing to obstruct the flow and to divert and use the water in excess of any right which it had as a riparian owner or otherwise the question arises, Is the plaintiff entitled to the interposition of a court of equity? If the proposed act would materially obstruct the flow of the water and diminish the power at the plaintiff’s mill he is entitled to the remedy of injunction. The trial court found Upon sufficient testimony that for a number of years the defendant had been taking from the river from a million and a quarter to a million and a third gallons of water a day, and that during droughty periods it had been taking as much as three million gallons a day, and, further, that the building of the proposed dam to a height of three feet would result in impounding at one-time about thirty million gallons of water. ■It was further found that:
... “xhe height of-water over the proposed 'dam when the Baden wheels are running at low stage would be about 114 feet, and when the city Was withdrawing for its use substantially 114 million gallons per day there would be withdrawn substantially .22 H. P.”
There was a further finding that plaintiff’s mill was operated partly by steam and partly by water power. Two wheels were operated by water power, one for the manufacture of flour, and a smaller one of meal. The large wheel had a capacity of from seventy-five to eighty horsepower, and the smaller one about thirty-five horsepower. At low stages of the river and when there was water running there was power sufficient to operate the smaller wheel, but steam power was required to the extent of about one-third or one-half , of the power necessary to operate the flour mill connected with the large wheel. The court expressly found that the water power afforded by the plaintiff’s dam had a substantial value as a water power for the purposes of running the mill. The court therefore decided that the proposed dam would be a substantial interference and injury to the rights of the plaintiff and that he was entitled to the remedy of injunction. While the volume of water taken is not very large there would be the added interference of a dam proposed to be erected in the plaintiff’s mill pond which would unreasonably detain the flow and would substantially interfere with and diminish his water power. At this place the defendant had, of course, the rights of a riparian owner and was entitled to use the water for the ordinary purposes, but not to such an extent as to unreasonably diminish its quantity and pen up its flow without compensation to the plaintiff. In the building of a dam the defendant would be exceeding its rights and materially infringing the rights of the plaintiff, and, as has been said:
“A riparian owner has no right, in order to facilitate his use of the waters of a watercourse, unreasonably to detain them by means of dams and reservoirs.”- (30 A. & E. Encycl. of L. 372.)
' (See, also, Notes, 41 L. R. A. 737; 59 L. R. A. 817; Anderson v. Cincinnati Southern Railway, 86 Ky. 44, 5 S. W. 49, 9 Am. St. Rep. 263; 40 Cyc. 571.)
Under the rule of the Soden case (25 Kan. 588), the mere fact that a riparian owner is undertaking to supply the inhabitants of a city with water and has expended large sums of money in the erection of a water plant does not confer any special or additional right to the water of the stream as against a lower proprietor or one who has acquired prescriptive rights to the unobstructed flowage of the stream.
The plaintiff did not lose his rights by the fact that the gates at the Tunnel mill had been open for a short time. It appears that shortly before this action was brought the gates were opened by parties other than the plaintiff, and that although plaintiff learned of the removal he took no steps to restore them but had plans for new gates. He further stated that he did not intend to do anything towards closing the tunnel until he1 learned what his rights in the premises are. There has been litigation between the owners of the Tunnel mill and as a result the mill had not been operated for three years before the bringing of this action, but the temporary cessation of operation did not deprive plaintiff of the water rights acquired under the law. Attention has been called to the fact that the mill-dam act provides that if a person having obtained the right to erect and maintain a dam builds the same which is thereafter destroyed and that if he does not begin to rebuild it within one year after destruction and finish it in three years after that time, or if having erected a mill shall fail to keep it in operation for two years at any one time, he shall forfeit the rights acquired under the provisions of .the act. (Gen. Stat. 1909, § 4974.) This provision, however, has no application to the case in hand as the plaintiff appears not to have acquired, any rights by virtue of the provisions of the mill-dam act. Prescriptive rights are not deemed to be abandoned or lost by temporary nonuser, and it has been held that such a right is not lost by nonuser for less than the prescriptive period. (Note, 59 L. R. A. 845.)
Under the findings of the court, which appear to be sustained by sufficient testimony, the proposed dam would be a substantial interference with the rights of the plaintiff, and in view of the character of the propo'sed obstruction and that it would necessarily entail continuous damages necessitating frequent and almost continuous litigation, injunction is a proper remedy.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff while employed in defendant’s factory was injured in an elevator shaft by being struck by a descending freight elevator. He recovered a judgment, from which defendant appeals.
The petition alleged that defendant had failed to comply with the provisions of the factory act; that the elevator and ■shaft were uninclosed, and that no means were provided for protecting employees whose duties required them to be in and about the elevator shaft; and that by reason thereof plaintiff ■sustained his injuries. At the time the accident occurred the plaintiff was at work on the first floor of the building painting parts of machinery, and stepped backwards, leaning over that part of the floor which constitutes the bottom of the shaft. The elevator was descending from one of the upper floors, and while the plaintiff was stooping over engaged in his work he was struck and injured.
Practically every claim raised by the defendant in his appeal is bottomed upon the theory that the plaintiff recovered upon a ground of negligence not set out in the petition. It appears from the evidence that the elevator is at the north side of the building, opening upon an outside platform where cars are unloaded. The doors of the building open into the elevator. The shaft of the elevator is an inclosed one, but the sides are made of movable panels. When the elevator is in use at the floor where the plaintiff was injured it becomes necessary to remove the panels on the west and the east-sides. This is required because in opening the doors of the building they swing inside and will not open unless the side panels are first removed. The elevator, therefore, can not be used at all on this floor in connection with these doors until the panels are taken out. It is supposed to be the duty of employees to replace the panels when the outside doors of the building are not being used in connection with the elevator. Part of the panels were out on the west side at the time the plaintiff was injured.
Now, the contention of the defendant is this: It insists that it came into court expecting to defend against thé general allegation that the elevator shaft was wholly uninclosed, in violation of the factory act, while, as a matter of fact, it was obliged to meet a different issue altogether; that on the trial it was shown that the elevator shaft was and is inclosed except when these panels are out for a specific purpose, and that the plaintiff’s injuries were shown to have been caused by his negligence or that of some employee who failed to replace the panels. The defendant raised the same contention by a demurrer to the evidence, a request for certain instructions, and a motion for a new trial.
We are unable to concur in this claim of the defendant. It is undisputed in the evidence that the elevator can not be used at the lower floor in connection with the outside doors unless the panels on the west and east sides of the shaft are first removed; that when these panels are out there is nothing to prevent a workman from walking under the elevator, provided the elevator is above that floor. It simply amounts to this: that when the elevator was not in use at this floor and the panels were in, the shaft was protected and the factory act was complied with, but whenever the elevator was in use on that floor in connection with the outside doors it was necessary to remove the panels, and unless they were replaced at once when the elevator left that floor, the shaft was uninclosed; and that was the situation when the plaintiff was injured. A somewhat similar contention was made by the defendant in Smith v. Cement Co., 94 Kan. 501, 146 Pac. 1026, but it was not upheld. There the defendant contended that it had furnished a cover for a conveyor box, but that the plaintiff was injured because he had neglected to use the cover and to put it in position.
It is said in the brief that “the appellant was called into court to meet the charges against it to the effect that the injury to plaintiff was caused by it wholly failing to properly guard and protect its elevator.” We think the evidence sustained the allegation of the petition that the defendant violated the factory act by wholly failing to properly guard and protect the elevator. Section 4676 of the General Statutes of 1909 requires that “every person owning or operating any manufacturing establishment which may contain any elevator, hoisting-shaft or well-hole shall cause the same to be properly and sub stantially inclosed or secured, in order to protect the lives or limbs of those employed in such establishment.” In Alkire v. Cudahy, 83 Kan. 373, 111 Pac. 440, it was held that the statute was intended to secure employees against injury from moving elevators as well as from falling down the openings. The instructions of the court were properly drawn upon this theory of the law, and the requested instructions were rightly refused.
Nor was there any variance because the evidence shows that portions of the elevator shaft were inclosed, but that the side from which the plaintiff entered the shaft remained uninclosed. In other words, in order to prove his case the plaintiff was not required to show that the elevator shaft was unprotected at all times and on all sides. It can not be said that the factory act is complied with by having three sides of an elevator shaft inclosed and one side left open, if the failure to inclose one side causes injury to an employee.
Contributory negligence is not a defense to an action under the factory act (Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657), and in this case it was no defense to show that it was the duty of the plaintiff or other employees to replace the panels which had been removed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action on a promissory note. The plaintiff recovered judgment. Defendants Burr, the two Lights, and Kirk appeal. The defense was fraud and breach of warranty.
On November 1, 1910, the plaintiff sold to the defendants a stallion under the following warranty:
“If the above named stallion does not get 60 per cent of the producing mares and Alleys with foal with proper care and handling, I agree to replace him free of charge with another of same value upon the delivery to me of the stallion in as sound and good condition as he is at present.”
The stallion was used during the season of 1911 and he did not get with foal sixty per cent of the producing mares and Alleys bred to him. Two notes of $1050 each, one due November 1, 1911, and the other due November 1, 1912, were given by the defendants for the horse. Upon each of these notes a credit of $400 was given. One of these notes was sold to the Peru Van Zandt Implement Company and judgment was-obtained thereon against the defendants. The horse was sold by the plaintiff through his agent, J. C. Gustin. Gustin organized the defendants into a stock company to purchase the horse, dividing the purchase price into seven shares of $300 each. Of these Ragsdale received two shares, Burr two shares, Light Brothers two shares and Kirk one share. To sell these shares Gustin falsely represented to Burr, Light Brothers and Kirk separately that all the other shares had been sold for $300 each, and that each of those named above was buying the last share or shares. To Burr and Light Brothers separately Gustin represented that he would sell the shares at a price less than that paid by the others. The result was that Ragsdale got two shares for $200, Burr two shares for $400, Light. Brothers' two shares for $400, and Kirk one share for $300. The note sued on. in this action is a new note given by the defendants to take the place of the note retained by the plaintiff. This note is dated November 1, 1911, but the plaintiff testified that it was signed in April, 19.12, and dated back. Some of the defendants testified that it was signed in November, 1911. Before April, 1912, the defendants knew that the horse did not get sixty per cent of the mares bred to him with foal. They did not know this in November, 1911. The horse proved to be vicious and uncontrollable and killed and injured a number of mares during the season of 1911. This the defendants learned before November, 1911. They also knew of the false representations made by Gustin before the new note was signed. What was said by the plaintiff and defendants at the time the new note was signed is a matter of serious dispute. The trial was by jury, and a separate verdict was rendered against each defendant. This resolved all facts resting on conflicting evidence in favor of the plaintiff.
The appellants contend that the court erroneously instructed the jury and erred in refusing to give certain instructions requested by the defendants, that the court erred in excluding evidence offered by the defendants, and that the court committed error in denying the defendants’ motion for judgment notwithstanding the verdict.
1. The court instructed the jury :
“If you believe from the evidence that when the renewal note was given the defendants had full knowledge of the defects of said stallion and knew that he had not complied with the guaranty, this would be a waiver of the defects.”
In 35 Cyc. 433 we find this language :
“In some jurisdictions payment of the purchase-price or the giving of a note therefor with knowledge of defects constituting a breach of warranty is regarded as.a waiver of the breach, . . . but according to the weight of authority, payment, part payment, or the giving of notes for the purchase-price is not a waiver of a breach of warranty unless an intent to waive such breach is proven, especially if made without knowledge of the defects, or if the purchaser is induced by the promise of the seller to remedy the defects. So too when seasonable demand for damages for defects has been made payment of the price will not operate as a waiver.”
A number of authorities are cited to support the text as above set out, and especially that part concerning the proof of intention to waive the breach of the warranty. We are of the opinion that giving the renewal note did not, as a matter of law, constitute a waiver of the breach of the warranty, even if it was made after knowledge of all the defects in the horse. The question of whether or not there was a waiver of this breach should have been submitted to the jury under proper instructions. (30 A. & E. Encycl. of L. 184.) This is supported to some extent by Bank v. Brown, 80 Kan. 520, 103 Pac. 102. The instruction given was erroneous and compels a reversal of the judgment.
2. The court, in substance, instructed the jury that if noth ing was said in the controversy between the parties to this action concerning the place of delivery of the horse on its return, that question would be immaterial. In this we think the district court was mistaken. The horse was sold to the defendants at Kismet. All the transactions concerning the horse were had at that place. The defendants ought not to be compelled to take the horse two hundred miles away in order to return him to the plaintiff. In Hostetler v. Bartholomew, 95 Kan. 217, 147 Pac. 1134, a stallion was sold in Wichita to a party living at Attica. The horse was warranted “as sound as a dollar and a sure foal getter.” (p. 218.) It was held that the freight paid on the horse from Wichita to Attica was a proper item of recovery on account of the breach of the warranty. It must follow that the expense of transportation from Kismet to any other place in returning the horse would be an item of damage to be recovered on the breach of the warranty. It also follows that the actual place for the return of the horse is where the transactions for the sale of the horse were had and completed.
3. Another question presented turns on the meaning of the words “of same value” found in the warranty in this connection : “I agree to replace him free of charge with another of same value upon the delivery to me of the stallion in as sound and good condition as he is at present.” A proper construction of these words is that the horse to be furnished free of charge shall be a sixty per cent foal getter. He shall be a Percheron, and in all respects shall be of the same value as the horse sold if that horse had been a sixty per cent foal getter.
4. The jury were instructed on the theory that the only right the defendants had on a breach of the warranty was to return the horse and obtain another in its place. We do not think that is the law in this state. Warranties of a nature similar to this, with a provision for the return of the horse, have often been before the courts in a number of the states. The decisions of the courts on the remedy of a purchaser of a horse with a warranty like the one in question are in conflict. Among those holding that the remedy is not exclusive are: Denver Horse Importing Co. v. Shafer, (Colo. 1915) 147 Pac. 367; Hallowell v. McLaughlin Bros., 136 Iowa, 279, 111 N. W. 429; Bracken et al. v. Fidelity Trust Co., 42 Okla. 118, 141 Pac. 6; Voris v. Gage, (Okla. 1915) 149 Pac. 150; Loisseau v. Gates et al., 31 S. Dak. 227, 140 N. W. 258; 30 A. & E. Encycl. of L. 195; 35 Cyc. 438; Note, 12 L. R. A., n. s., 540, 541.
In Hickman v. Richardson, 92 Kan. 716, 142 Pac. 964, after passing upon the warranty of a stallion sold as follows: “If the said stallion should fail to be a satisfactory sure breeder with the above treatment we agree to take said stallion back, and the said Campbell and Richardson agree to accept another Imported Percheron Stallion of equal value in his place,” etc. (p. 718), holding that the power to return the horse under the contract was the purchaser’s exclusive remedy, this court said:
“Cases will be found where the purchaser is given the privilege of returning the property within a certain time if it prove unsatisfactory, but where he makes no agreement that he will pursue that remedy. In such cases it is held that the privilege to return the property is but a cumulative remedy.” (p. 722.)
We hold that under the warranty given the defendants in this case, they were not confined to the single remedy of returning the horse after his failure to fulfill the warranty. The authorities on both sides of this question are collated in a note to 50 L. R. A., n. s., 774-778. The plaintiff by his conduct, as disclosed by the evidence, in insisting that the horse should be returned to Partridge, and in refusing to furnish another that would fulfill the warranty, has- probably waived his right to insist on a return of the horse sold by him. (Feight v. Thisler, 84 Kan. 185, 114 Pac. 249.) However, this should be determined by the jury under proper instructions.
5. The defendants offered evidence to show the cost of feeding and caring for the stallion as an item of damage sustained by them; This was excluded. Under Hostetler v. Bartholomew, 95 Kan. 217, 147 Pac. 1134, this was a proper item of damage, and the evidence was admissible. This question should have been submitted to the jury.
6. The defendants contend that the court committed error in denying their motion for judgment notwithstanding the verdict. We do not assent to this proposition. Under the evidence'there were matters for the jury to determine under proper instructions.
We do not agree with the defendants in the other matters presented.
The judgment is reversed and a new trial directed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for overdue and unpaid installments of alimony awarded the plaintiff by a decree of divorce. A second cause of action was j oined for expenditures for the support of a minor child of the parties. The plaintiff recovered, and the defendant appeals. . -
The defense to the alimony feature of the case was that the decree of divorce and alimony was procured by the plaintiff’s fraud upon the court, in which the defendant acquiesced because of certain false representations made to him by the plaintiff respecting the state of her health. A demurrer was properly sustained to this defense because the fraud consisted in sustaining fictitious grounds for divorce by false testimony, the very matters w*hich the court, with full jurisdiction of the parties and of the subject matter, had under consideration. (Bleakley v. Barclay, 75 Kan. 462, 470, 89 Pac. 906; Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Miller v. Miller, 89 Kan. 151, 156, 130 Pac. 681.)
The original decree provided that it should not be a lien on the defendant’s property. The judgment .in the present action awarded execution. It is said this changed the terms of the original decree. Such is not the case. The award of alimony is not increased or given greater efficiency. When installments became due and were not paid they became collectible by suit, judgment and execution in the ordinary way.
The plaintiff was allowed fifty dollars per month for the period of seven months as a reasonable sum for the maintenance of the minor child while with her mother. There was no allegation or proof of actual expenditures to that amount.
The plaintiff can recover nothing but her outlay made necessary by the defendant’s neglect of parental duty. Expenditures of this character can not be recovered in a simple action of debt because the propriety of all such expenditures depends upon a variety of considerations. The action must in the nature of things be equitable in character. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628.) But the fact that such expenditures must be reasonable and just under all the circumstances, to authorize recovery, does not permit recovery of what would be a reasonable sum if it had been advanced, but which was not advanced.
Doubtless because the second cause of action was tried on a wrong theory, some errors were committed in the introduction and exclusion of evidence and in restricting the right of cross-examination.
The judgment on the first cause of action is affirmed. The judgment on the second cause of action is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court, was delivered by
West, J.:
The abstract stated that the case as to the carriage company was submitted without a jury for judgment upon the pleadings and verdict of the jury and judgment thereon in the case of Stamey v. Insurance Company, but it also appears that the stipulation was stated by the court to be “and that upon the admitted facts in the case and the evidence now in, that are material, that if the carriage company is entitled to judgment against the insurance company, the court may render it.” After taking the matter under advisement the court made findings of fact and the record does not show any motion to set any of them aside. In a brief upon the rehearing the carriage company sets out a transcript of the evidence, upon which it is stated that the findings as to actions of the company in having the premises watched were based. It would seem therefore that findings of fact are before us and must be considered.
Attached to and made a part of the policy was the following clause:
“It is understood that the two hacks insured under the first item is being sold to the assured under a contract issued by The United States Carriage Company, and loss, if any, is first payable to the United States Carriage Company as their interest may appear.”
It is insisted that this is merely the standard clause under which the mortgagee became a mere appointee to receive the loss which would otherwise have been payable to the assured. Counsel is correct in his contention that Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25, was based upon the union and not upon the standard clause, and that the case of Bank v. Insurance Co., 6 Kan. App. 219, 49 Pac. 688, was based upon the standard clause and was decided in accordance with counsel’s theory, and also that Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682, and Insurance Co. v. Boardman, 58 Kan. 339, 49 Pac. 92, involved the union and not the standard clause.
It is vigorously argued that, as found by the trial court, no conditions were attached to the mortgage clause in this case, that the entire policy was attached thereto, and that by the language used the clause became a part of the policy itself, all of which should be considered in connection with such clause. From the abstract it appears that the policy contained this provision:
“If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.”
It seems clear that an. interest under the policy existed in favor of the mortgagee with the consent of the company, and also that the mortgagee had an interest in the subject of insurance other than that of Stamey, who was the insured named in the policy. The clause respecting this company was the standard clause, and according to many authorities of itself merely made the company the appointee to receive the loss on its property otherwise payable to Stamey, and which, of course, could not be claimed by the company unless Stamey could otherwise claim it. But not content with leaving this mortgage clause to govern, the insurance company inserted in its policy the provision that “the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto,” and no “provisions and conditions of insurance relating to such interest” were ever written upon, attached or appended to the policy except the mere mortgage clause itself, which was by its terms made a part of the policy. . Hence there were no conditions so far as the carriage company was concerned, for the insurer contracted without conditions to pay the loss to such company. Had the policy omitted all reference to the mortgage clause and simply attached it to the policy then the position of counsel that a mere appointment and not a contract existed would be correct. But mortgagees seldom procure or have opportunity to examine policies issued to the owners, and as contracts of insurance prepared and solicited by the insurer are to be construed strongly against such insurer it must be held that, in view of the terms of the policy, the mortgage clause and the reference thereto in the policy, the carriage company had an independent contract of insurance and is entitled to recover, and so far as that company is concerned the destruction of the property by the insured did not relieve the insurer from liability.
The former decision (references in the original opinion, 93 Kan. 707, 150 Pac. 227, to certain decisions being corrected as already indicated) is adhered to. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs in this action were engaged in the stationery and engraving business in New York City. The defendants were engaged in operating a steam laundry in Parsons, Kan. On March 21, 1912, the defendants executed and delivered to the agent of the plaintiffs a contract in the form of a written order for certain stationery and which reads in part as follows:
“You are hereby authorized to furnish the undersigned . . . 200 hundred Post Cards, 3% x 5% inches, weekly (different illustration and ad each week) for our exclusive use in advertising the Laundry business in the City of Parsons, . . . State of Kansas only, for a term of not less than one year from commencement of service, and. thereafter until notified in writing to discontinue same, for which we agree to pay to your order at New York the sum of One dollar for each hundred Post Cards. F. O. B., New York. Payments to be made at the end of each month.”
On March 27,1912, defendants wrote to plaintiffs as follows:
“We received your contract, and found one change should be made; where it says weekly the understanding was that 200 were to be sent every other week.”
Some further correspondence passed between the parties, the tenor of which was that the defendants were insisting that the-cards were to be shipped every second week and the plaintiffs insisting on the literal terms of the contract. The cards were shipped every week but the defendants refused to receive them, and at the end of the year plaintiffs filed suit setting up the contract, to which defendant J. T. Haynes answered as follows:
“J. T. Haynes, the above named defendant, for his answer to the bill of particulars filed herein says as follows: First. — He admits that he is the successor of Hart & Haynes, former partners. Second. — He admits the signature of the contract filed herein. Third. — He states that the said contract was obtained by fraud, in this, that he stated to the agent of the plaintiffs that he would take the cards on for two weeks for a period of one year; that he placed his signature upon the contract believing that it so stated; he then noticed that the contract stated every week instead of every two weeks and called the agent’s attention to it, which the agent replied by taking the contract and said, ‘I will fix that now,’ and made a mark upon the contract that the defendant believed had changed the contract as he said there, ‘That’s all right.’ The defendant further states that he never agreed at any time to take the cards as stated in said contract, and that he at once notified the said company of all the above facts as soon as they notified him of receiving the contract in its present form.”
From a decision before a justice of the peace the case was appealed to the district court and tried on the same pleadings. A demurrer to defendants’ answer was overruled and oral testimony and depositions were admitted, and the district court rendered judgment in favor of the defendants for costs.
It is agreed by the litigants that the eight assignments of error may be reduced to three propositions: (1) Did the answer of the defendants contain facts stating a good defense to plaintiff’s bill of particulars? (2) Did the court err in permitting parol evidence to be given on behalf of defendants which varied and altered the terms of a written instrument? (3) Is the judgment of the trial court supported by the evidence ?
We think that the defendants’ answer makes a very plain and simple allegation of fraud and that it gives the details showing how the fraud was perpetrated. The pleadings before justices of the peace ¿re characterized by the code as bills of particulars. (Jus. Civ. Code, §71.) In the early case of Lobenstein v. McGraw, 11 Kan. 645, Mr. Justice Brewer said :
“It is not to be expected that a bill of particulars will be drawn with the same fullness and precision as a petition. Much of the.business in justices’ courts is done by the parties themselves, and not through the instrumentality of attorneys. It is well that this is so, for thus a convenient, expeditious, and cheap method of settling minor disputes, and collecting small accounts, is furnished to all. The justices themselves are selected, not on account of their legal knowledge, but because of their good common sense. The chief value of these tribunals, to the poorer classes at least, would be lost if the rules of pleading in them were made so technical and difficult that the services of an attorney were necessary in every case.” (p. 648.)
Again, in M. K. & T. Rly. Co. v. Brown, 14 Kan. 557, it was said:
“Was the bill of particulars sufficient? It must be remembered that pleadings in a justice’s court are not to be subjected to the same strictness of construction as those in the upper courts. (Lobenstein v. McGraw, 11 Kan. 645; Kaub v. Mitchell, 12 Kan. 57.) So that if the essential facts are stated in such a way that the defendant can not be misled as to the real claim against him, the bill must be taken as sufficient. Tried by this rule, the bill is plainly sufficient.” (p. 560.)
The case of K. P. Rly. Co. v. Taylor, 17 Kan. 566, 568, is to the same effect. (See, also, Olsson v. Lawrence Township, 93 Kan. 440, 443, 144 Pac. 997.)
Applying these thoroughly established principles to the instant case, we must hold that the defense of fraud was sufficiently pleaded. We might go further and say that this particular defense, that the contract was procured by fraud, was sufficiently pleaded to satisfy any court, no matter how exacting and technical. Nor should it be necessary to cite authorities to show that a plea of fraud is a good defense to a contract. In Klemp v. Winter,. 23 Kan. 699, it was said:
“That fraud vitiates everything it touches, — final judgments, final orders, final settlements and contracts, as well as things of less consequence, — we suppose all persons will admit. And that courts, possessing general equity or chancery jurisdiction, have the power to grant proper relief in all cases of fraud, we suppose will also be admitted.” (p. 70S.)
An instructive note on the subject of fraud as affecting contracts will be found in 37 L. R. A. 593 et seq.
Passing to the next question, we do not enter any-debatable field of the law. The rule that parol testimony can not be used to vary the terms of a written instrument has no application to an issue of fraud in the making or procuring of the contract. The courts will not permit their hands to be tied in the administration of justice by restricting the realm of inquiry on an issue of fraud, and such an issue may be maintained by any testimony competent under the ordinary rules of evidence. Were this not so, fraudulent contracts could seldom be overturned if the perpetrators of the fraud had the foresight to have their contracts reduced to writing and executed.
We do not overlook the recital in the caption of the contract or order which provided that the plaintiffs could not be held responsible for any provisions not embodied in writing and that the contract could not be canceled without the written consent of the company. That recital could not limit or restrict the rights of the defendants in a defense that the contract was procured by fraud.
Was the judgment of the trial court supported by the evidence? Clearly so. It is of no consequence that the testimony might be conflicting. The determination of facts upon conflicting testimony is clearly and almost exclusively within the province of the trial court. That court sees the witnesses personally. It can examine their demeanor, their apparent frankness or want of it. A court of review is restricted to the printed pages of a record, and ordinarily it is bound to accept the findings of the trial court as the facts in the case.'
Substantial justice seems to have been done in the case at bar. Laying aside for the moment the testimony of defendant Haynes narrating how he was duped by the plaintiffs’ agent, it will be observed that he acted promptly in disaffirming the contract as fraudulent. The later correspondence showed that he was standing on his rights as he understood them. The contract provided for monthly payments. The plaintiffs persisted in sending the cards once a week, well knowing that the defendants would resist payment. Assuming that the agent acted wholly without authority in making a bargain with the defendants for a shipment every two weeks instead of a shipment every week,- plaintiffs would be in a much stronger equitable position if they had treated the contract as closed by defendants’ breach of it, the refusal to accept the shipments, and the refusal to pay at the end of the first month. There is no error in this case, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to obtain two lots on Avenue B, East, in the city of Hutchinson. In form the petition was one to compel specific performance of an oral contract to make the plaintiff an heir, liquidated by another oral contract to give the property sued for, made by the deceased parents of the defendants. The cause was tried before a jury. A demurrer to the plaintiff’s evidence was overruled, a general verdict and some special findings of fact favorable to the plaintiff were returned, judgment was entered accordingly and the defendants appeal.
John Nelson, his wife, and tWo sons lived on a farm some twelve miles south of Hutchinson. In 1882 the plaintiff, the daughter of Mrs. Nelson’s sister, came from Sweden to live with them. The plaintiff was then seven years old, and she declares in her petition that she had a contract with her uncle and aunt that in consideration of her services until she was eighteen, which she values at $3000, she was to share their estate, now valued at from $40,000 to $50,000, with their sons at their death. The Nelsons gave the plaintiff a home, sent her to school, and reared her as a member of the family until she was seventeen years old, when she married. She stayed with them another year, however, until her first child was born, and then moved to an adjoining tract of land. Some ten or eleven years afterward the Nelsons moved to town. The Avenue B property was purchased in 1888, and later a house was moved on it. The plaintiff says in her petition that a contract supplemental to but forming a part of the original contract was made whereby she was to have this specific property “and that said property was acceptable to plaintiff as recompense for her services.” No date for either of the contracts is fixed. John Nelson died in 1910 and his wife died in 1911. One of the sons, P. A. Nelson, was willing the plaintiff should have the Avenue B property, which is worth about $2500, but his brother, J. W. Nelson, was not.
The plaintiff produced no proof authorizing the jury to infer that either one of the alleged contracts had ever been made with her. There was proof enough that Mr. and Mrs. Nelson intended that the plaintiff should have some of their property after their death. The defendants introduced in evidence a paper in their father’s handwriting expressing a desire that the plaintiff should have “the house on lots where Winans live” which was not the Avenue B property. This paper did not refer to any obligation arising out of contract and all the proof was of an intention not based on any contract and an intention never legally executed. Here are samples of the plaintiffs evidence relating to statements made by Mr. and Mrs. Nelson:
“I had a conversation with John Nelson, he said he was going to give the property on Avenue B, a house and some lots to Ida [the plaintiff] for her services on the place. . . . He would always speak of Ida as his child and he often made the remark that when he was gone he wanted her to have a share of what was left, that property on East B. . . . He said he gave John a farm, Pete a farm, and Ida some property in town, a lot and house, he said he aimed for her to have that at his death. . . . Mrs. Nelson told me the same, that Ida was to have that at her death after grandpa died. . . . She spoke of their property over on B . . . and she said that was to be Ida’s. . . . When I said this about the will, why she did n’t make a will, she said Ida was to have the property on B, and I said ‘why don’t you make a will?’ and she said ‘it would be all right with the boys.’ ... I can remember hearing him say that they expected to look after her, and regarded her the same as they did their own children. Then I heard one of them, perhaps both of them, say that the house on B, they always counted that as Ida’s house.”
The plaintiff’s daughter said her “grandmother” told her of a paper her “grandfather” had written “giving this property to mamma” but nothing about any contract. While there seem to have been writings none were ever delivered to the plaintiff in discharge of Mr. and Mrs. Nelson’s contract for $3000 worth of services which the plaintiff performed by living the life of a girl in a country home more than twenty years ago.
It is not necessary to review the decisions of the court in cases of this character, extending from Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, to Scholz v. Hoth, 94 Kan. 205, 146 Pac. 339, decided in February of this year. The plaintiff’s case depended upon a contract and she failed to produce evidence from which a contract might be legitimately inferred, or, as the plaintiff prefers to say, “implied.”
The judgment of the district court is reversed and the cause is remanded with direction to sustain the demurrer to the plaintiff’s evidence. | [
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The opinion of the court was delivered by
Mason, J.:
A collision took place between an automobile driven by C. H. Glazier, an agent of the Aultman & Taylor Machinery Company, and a buggy in which Mrs. E. D. Thompson was driving. Her husband recovered a judgment against the company and its agent on account of injuries to her and to the property. The company appeals.
The principal question involved is whether there was any evidence that at the time of the accident Glazier was acting within the scope of his employment as the company’s agent. Its contention is that he had been given a vacation, which had already begun, and that with its permission he was using the automobile for his own pleasure. The plaintiff maintains that Glaizer’s headquarters were with the company at Wichita; that he had been out upon a business trip in its behalf, from which he was returning when the collision occurred; that his actual employment in the service of the company continued until he delivered the automobile to it at Wichita. We think the evidence justified submitting the question of fact to the jury, and that its decision, having been approved by the trial court, is final.
Glazier’s evidence tended to support the company’s contention. He gave testimony to this effect: About the middle of the week before Christmas he drove in the automobile from Wichita into Oklahoma on the company’s business; he had permission to take a vacation, and had decided to begin it on Sunday; he had originally planned to return to Wichita Sunday evening, but concluded to stop that day and visit relatives, with whom he stayed all night; the next day he drove to Wichita, stopping for supper with a sister, and taking with him from her home a nephew who desired to go to the city; the accident occurred on the way there at about half past eight o’clock in the evening. He also testified, however, that he did some canvassing for the company on Monday morning —that he sold machines until noon. The jury were not obliged to give full credence to all of his statements, and there was room to infer that at the time of the injury he was completing a business trip for the company, rather than engaging in a pleasure excursion on his own account. This inference justified the general verdict and several special findings in its support, to which objection is made. This view was fairly embodied in the instructions of the court.
With regard to the measure of damages the jury were told that if they found for the plaintiff he was entitled to compensation for the loss of his wife’s services, and that the word services was used “in a sense implying whatever of aid, assistance, comfort and society that wife would be expected to render or bestow upon her husband under the circumstances, as shown in this case, in the conditions in which the husband and wife were placed.” This is substantially the definition of services generally adopted. (Cooley on Torts, 1st ed., p. 226, 3d ed., p. 471; 2 Sedgwick on Damages, 9th ed., § 486a; 4 Sutherland on Damages, 3d ed., § 1252; 7 Words & Phrases, p. 6432; Note, 33 L. R. A., n. s., 1042.) The instruction does not authorize the allowance of solace money as an independent item of damages, and the jury were expressly told that the plaintiff could not recover for mental suffering.
Complaint is made of the admission of certain evidence having some bearing upon the effect of her injuries upon the plaintiff’s wife. It does not seem likely to have seriously affected the amount of recovery, the verdict being for $250, and is not thought to require specific discussion. Error is assigned with regard to excluded testimony, but can not be considered, as no affidavit of its substance was produced at the hearing of the motion for a new trial. (Civ. Code, § 307.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Does the eighteen months’ period of redemption provided by statute begin to run at the date of the sale or at the date of the confirmation of the sale ? is the principal question involved in this appeal.
The material facts in this case appear to be that a default judgment for $690 in plaintiff’s favor against defendants Frank A. and Ella Flaherty was rendered on' March 4, 1912, and a mortgage upon certain property given to secure the debt was foreclosed. A judgment by default was also rendered in favor of defendant The Central States Life Insurance Company upon three notes amounting, at that time, to $2636.80, $2636.80 and $4127.15, respectively, and mortgages upon the same property covered by plaintiffs mortgage and other property in addition given to secure the notes were foreclosed. The judgment of The Central States Life Insurance Company was adjudged a first lien upon all the property, that of the plaintiff a second lien upon the particular property, and another default judgment in favor of the Gaar-Scott Company for $1731 a-third lien upon all the property. The land was duly advertised for sale, and that part covered by plaintiff’s judgment sold on March 5, 1913. On May 26, 1913, the Gaar-Scott Company moved to set aside the sale, and on November 4, 1913, the sale was set aside without'notice to the plaintiff. On January 31, 1914, plaintiff moved to confirm the sale, but she afterwards learned that the sale had been set aside, and on October 15, 1914, filed her motion and notice to all defendants to set aside the order vacating the sale. On November 4, 1914, the court set aside the order vacating the sale, defendants Frank A. and Ella Flaherty appearing specially and objecting to the jurisdiction of the court. On January 11, 1915, over the objection of defendants Frank A. and Ella Flaherty, who appeared specially, the court confirmed the sale and ordered that they should have eighteen months from that day in which to redeem.
The statutory provision, so far as it applies to this controversy, reads as follows:
“The defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs, and taxes, as provided for in this act, at any time within eighteen months from the day of sale as herein provided, and shall in the meantime be entitled to the possession of the property.” (Civ. Code, § 476.)
There is little room for interpretation of the language used in the provision. The period of redemption is to be reckoned “from the day of sale” and not from the time of confirmation of the execution of the deed. The ordinary meaning of the phrase, “from the day of sale,” is the day when the offer is made by the purchaser and accepted by the officer, that is, the day when the property is stricken off by the,officer making the sale. This is the meaning generally applied to the term when used in connection with an execution or judicial sale. Defendants Flaherty insist that the day of sale is the time when the sale is completed by confirmation, but confirmation itself does not give the right of possession nor complete the transfer of the title where there is a right of redemption. In such a case only a certificate is issued and a deed is not executed until the period of redemption has expired. In common understanding the day of sale is not the day of confirmation nor yet the day on which the deed is made and the transfer of the title completed. While confirmation is a necessary step in perfecting a judicial sale and the transfer of title, it usually occurs days after the sale is made and at the following term of court. If the legislature had intended that redemption should be reckoned from the completion of the sale or its confirmation, it would seem that some other form of expression would have been used.
While the statutory period of redemption must be reckoned from the time when the property is stricken off by the officer, it does not follow that a court of equity may not, under certain circumstances, extend the period of redemption. It is the duty of the courts to see that parties are not deprived of the right of redemption given by statute on account of delays which are the result of proceedings in the court to determine questions affecting the right of redemption. It would seem that the time might be extended by agreement of parties (27 Cyc. 1815), and-perhaps a party by his conduct might estop himself from objecting to a reasonable extension of time in which to redeem. In Neef v. Harrell, 82 Kan. 554, 109 Pac. 188, the trial court declared a lien upon land and adjudged that the land should be sold subject to the statutory right to redeem and specifically fixed the period of redemption at eighteen months when under the law only six months’ time should have been given for that purpose. The plaintiff appealed from the order allowing eighteen months for redemption, and on the appeal it was determined that the redemption period in such a case was six months, and that time had expired when the decision was made. It was held, however, that the defendant should not lose his right of redemption on account of the action of the trial court, but that he was entitled to an opportunity to exercise the right after the final judgment in the case had been, entered. It was determined that four weeks after the decision was announced was a reasonable time, and the period of redemption was extended that length of time. In Quinton v. Adams, 87 Kan. 112, 123 Pac. 740, where redemption was interrupted by an appeal from an order setting aside a sale which resulted in the reversal of the order and a direction to confirm the sale, the statutory period of redemption had expired long before the appeal was determined, and it was insisted that the right to redeem had been lost. The court, however, held that the defendant was entitled to an opportunity to redeem after the appeal was decided and the mandate entered, and accordingly about two weeks’ time was given in which to exercise the right. The rule in these cases controls this one. The sale, as we have seen, was made on March 5, 1913, and the eighteen months’ redemption period expired on September 5, 1914. On November 4, 1913, and without notice to plaintiff, the court set aside the sale. On November 4, 1914, the court vacated the order setting aside the sale, and on January 11, 1915, the sale was confirmed and the court, proceeding on the theory that the time of redemption should be reckoned from the confirmation of the sale, ordered that redemption might be made within eighteen months after that time. The action of the court in setting aside the sale and then vacating that order, leaving the time of redemption in a state of doubt, and the protracting of the litigation by an appeal from the order as to the time of redemption afford good grounds for extending the time of redemption a reasonable time after the conclusion of the litigation. It is contended on this appeal that the court erred in vacating the order setting the sale aside after the term in which the order was made. The final judgment in the foreclosure proceeding was not disturbed. The ruling vacating the order was upon a matter which was incidental to the execution of the judgment. The judgment had not been executed, and the parties were still in court and required to appear on notice in proceedings looking towards the carrying out of the decree of foreclosure. One of the grounds of the motion was that no notice of the motion to set aside the sale was given, and that the order was therefore invalid. It was competent for the court to take up the motion to set aside the order upon due notice at any time before the foreclosure proceeding was concluded and the litigation ended. The decision of the court giving defendants Flaherty eighteen months after the confirmation of the deed can not be sustained. They will, however, be given what is deemed a reasonable time after this decision is made in which to redeem.
The decision of this court is, therefore, that the judgment of the district court is modified and the time for redemption is extended until August 15, 1915, and it is further ordered that if the property is not redeemed on or before that date the sheriff shall execute a deed to the purchaser. | [
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The opinion of the court was delivered by
West, J.:
George J. Barker died leaving certain exempt personal property. A widow, three adult children living in their own homes,- and one daughter who became of age September 7, 1913, and at his death was a member of his family, together with his widow, who was the mother of none of these children, are his heirs. The trial court held that this property would have been exempt in the hands of the deceased and had now all become the absolute property of his widow. The children appeal and claim title to and distribution of one-half. It is provided in section 1 of the descents and distributions act that after allowing to the widow and children the homestead and the personal property and other allowances provided by law respecting executors and administrators and the settlement of the estate of deceased persons “the remainder of the real estate and personal effects of the intestate, not necessary for the payment of debts, shall be distributed as hereinafter provided.” (Gen. Stat. 1868, ch. 33, § 1, Gen. Stat. 1909, § 2935.) The next section provides that the homestead continued to be occupied as a residence by the widow and children with all improvements thereon “shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the intestate, but shall be the absolute property of the said widow and children.” (§ 2936.) Section 2938 reads;
“If the intestate left no children, the widow shall be entitled to said homestead; and if he left children and no widow, such children shall be entitled to the same/’
Provision is made for partition or division when the widow marries or all the children arrive at age. Section 2952 provides in substance that the remaining estate in the absence of a will descends in equal shares to the surviving children and the living issue, if any, of prior deceased children. Section 2964 provides that;
“The personal property of the deceased not necessary for the payment of debts, nor otherwise disposed of according to law, shall be distributed to the same persons and in the same proportions as though it were real estate.”
Section 2965 reads:
“The property itself shall he distributed in kind whenever that can be done satisfactorily and equitably. In other cases, the court may direct the property to be sold and the proceeds to be distributed.”
Turning to the executors and administrators act and to article 3, concerning the inventory and allowance to the widow and children, and the debts due the estate, .section 3480 requires the appraisers to estimate and appraise the property and each item separately, but section 3484 provides that in addition to her portion of her deceased husband’s estate the widow shall be allowed to keep absolutely for the use of herself and the children of the deceased all personal property of the deceased which was exempt to him from sale and execution at the time of his death. It is then provided that if there be no children such articles shall belong to the widow, and if children and no widow, they shall belong to the children. Section 3486 refers to this property as that to which “the widow and children may be entitled” and that which “shall be retained by the widow and children.” Section 3504 requires the sale of personal property except “such as may be set apart to the widow and children, as exempt from the payment of debts.” Section 3603 reads:
“If any personal property descend, and an equal division thereof can not be made in kind, the probate court may order the sale of such personal property, prescribing the time, place, manner and terms of sale, and cause the money to be distributed according to the rights .of those entitled to distribution.”
Section 3609 provides that if upon the return of the inventory and appraisement it appears that the whole estate is not more than that to which the “widow and children are by law entitled,” without being subject to payment of debts and there are no debts due the estate, or not enough to pay expense of collection and of administration, the court may order the estate delivered to the widow.
Before section 3484 (Laws 1879, ch. 103, § 1) was given its present form the provision at one time that this property be for the widow and minor children was changed to widow and children in 1868. (Compiled Laws 1862, ch. 213, §1; Gen. Stat. 1868, ch. 37, § 49.) In one instance the court refused to insert the word “minor” (Vandiver v. Vandiver, 20 Kan. 501) and here the legislature has eliminated it, and it would seem therefore that the word children is not here confined to those under age.
It appears to be the theory of the plaintiffs that as the one surviving child of the deceased has become of age and ceased to live with the widow the intention of the statute can no longer be carried out by leaving this exempt property in the hands of the widow, and therefore they are entitled to have it partitioned or divided the same as the homestead after the youngest child becomes of age or the widow marries. On the other hand it is contended that the statutes did not .create a trusteeship in the widow but vested her with the title to this property and that it is hers absolutely, and such was the conclusion of the court below.
It was held in Barry v. Barry, 15 Kan. 587, that a widow whose husband died without issue would take the whole of his estate in case he left a will when she elected to take under the law or failed to take under the will. In Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815, it was held that after the enactment of chapter 163 of the Laws of 1883 (Gen. Stat. 1909, § 9812) providing that any married person without children may devise one-half of his or her property to other persons than the husband or wife, one-half could be willed away in such case regardless of the survivor’s election to take under the law. In Breen v. Davies, 94 Kan. 474, 146 Pac. 1147, it was ruled that a husband having no children may by will dispose of his estate, including exempt personal property, to persons other than his wife notwithstanding her election not to take under the will. Regarding this exempt property it was said in the opinion:
“Provisions for setting apart specific property to the widow on the death of her husband have been held to be entitled to a liberal construction for her benefit, and to apply where there is a will as well as in the case of intestacy.”- (p. 476.)
At the close of the opinion it was said:
“The old rule that the widow who elects not to take under the will of her childless husband gets just what the law would have given her had there been no will is modified by the new declaration, so that now in that event the will controls to the extent of one-half of the property, and by the operation of the law of descents she receives the remainder.” (p. 477.)
In Continental Ins. Co. v. Daly, Admix, 33 Kan. 601, 7 Pac. 158, holding that insurance on this class of property vested in the widow and children and did not become assets of the estate nor subject to distribution, it was said:
“Here, however, the property insured, upon the death of J. L. Daly descended to his widow and children, and absolutely vested in them and wás subject to their disposition. ... If they desired to avail.them- ' selves of the benefits of the policy, it was their duty, and not that of the administratrix, to have kept it alive and to comply with the conditions' of the policy to be performed by the insured.” (p. 608.)
Like the language just quoted from Breen v. Davies, supra, this indicates the view that the widow and children obtained title to this exempt property by descent and not by the provision of the executors and administrators act setting it apart for their use. In Donmyer v. Donmyer, 43 Kan. 444, 23 Pac. 627, the lower court held that the widow was entitled to keep absolutely for the use of herself and children of the deceased certain exempt property in addition to that mentioned in subdivision 6 of the exemption act (Gen. Stat. 1909, § 3649, sub-div. 6) and this court speaking through Mr. Chief Justice Horton said: “Giving the statute a liberal construction, we think the district court ruled rightly in holding that the widow and children were entitled to” (p. 445) the items of property in dispute. In Taylor v. Winnie, 59 Kan. 16, 51 Pac. 890, it was held that the law library of a professional man who died leaving a son more than twenty-one years of age, not dependent upon him for support, was exempt and passed absolutely to such son. In the opinion it was said that to entitle a widow or children to the benefits of the provisions in question it is not necessary that they should have been residing with.the deceased at the time of his death or dependent upon him for support.
“There are doubtless greater reasons for providing exemptions .in favor of the head of a family and extending the protection of the exemption to a widow or children who were dependent on him for a support. From considerations of public policy, however, an exemption is absolutely given to one who is not the head of a family; and the statutes provide without qualification that personal property of the deceased at the time of his death shall be kept by the widow or the children regardless of condition, age, or residence. It is contended that where there is no family relation or family needing protection there is no reason why the property of the deceased should not be appropriated to the just claims of creditors. But this is an argument to be addressed to the law-making department. It was competent for the Legislature to extend the exemption to one who was not the head of a family, and to provide that upon his decease the property should pass absolutely to the widow and children. It has done so in terms that admit of no doubt; and with the necessity or wisdom of such provision the court has nothing to do. It can not be regarded as a hardship upon creditors, as credit could not have been extended or satisfaction anticipated from the property in question.” (p. 18.)
In support of the theory that the widow takes full title, attention is called to the language of section 3484 of the General Statutes of 1909, that “in addition to her portion of her deceased husband’s estate, the widow shall be allowed to keep absolutely, for the use of herself and children of the deceased,” the exempt property. To keep absolutely is to invest one with such power and authority as may well be said to amount to full title. In the ordinary case where the husband dies, leaving a widow and children, it would be natural to suppose that whether the latter be minors or adults their mother would regard the admonition of the statute to keep this property absolutely for their use as well as for hers, and that only by this method can the ordinary affairs of the family bereaved of husband and father be properly and naturally managed. The further fact that the statute is silent as to partition when the children all become of age or the widow marries is urged as an indication that the legislature did not intend that in this respect this exempt personal property should follow the rule applicable to the homestead. A further suggestion is that the legislature was attempting by the general language used in section 3484 to make a rule applicable to all cases which would as nearly as possible in all cases bring the desired results, and it might well be in many instances that the bona fide use by the widow of the exempt property as directed would necessarily absorb and dissipate the property itself so that there would be nothing left for division or partition in any event. The facts that in this case the children were all of age but one, who soon became of age, and that the widow was not their mother do not take the case from under the rule, but leave it exactly as applicable as if the circumstances were entirely different.
A careful scrutiny of* the statutes, however, leads to a different conclusion. “To keep absolutely, for the use of herself and children of the deceased” (§ 3484), means a trusteeship in which the widow is trustee for herself and children as the common beneficiaries. If, regardless of children, this property is to belong to her how idle to say if there be no children “then the said items shall belong to the widow.” (§ 3485.) If the children are hot entitled to this property, as well as the widow, the language of section 3486, referring to this property as that “to which the widow and children may be entitled”, is certainly inapt, and if the widow is to keep or retain the property absolutely as full and complete owner the same section uses strange language when it provides that it “shall be retained by the widow and children.” Likewise section 3504, referring to this property as “set apart to the widow and children,” and section 3609 as “that to which the widow and children are by law entitled.” One definition of “entitled” is “To give a title to.” (Webster’s New Int. Dict.; Nation v. Tulley, 86 Kan. 564, 571, 121 Pac. 507.) The unmistakable meaning of these expressions, and they must all be given due force, is that this property, while entirely freed from the reach of creditors, is wholly dedicated to the use of the widow and children of the deceased, the title being in both, but the possession being in the former. It is set apart to be kept by the widow absolutely for the use of herself and children of the deceased, to whom it descends by the law of descents and distributions and for whom it is to be used and by whom it is not to be squandered. Should a case arise in which the widow should attempt to fritter away this property foolishly or divert it or deprive the children of their beneficial use no reason suggests itself why they might not proceed against her in order to maintain their rights thus vested in them by the statute. Doubtless as. long as either the widow or the children, or both, are so situated and circumstanced as to need the beneficial use of the property it is not subject to partition or division, but this in no wise militates against the title of the children, and in this case should the widow be taken away it seems perfectly clear that the property in question would'go, one half to her heirs and the other half to the heirs of George J. Barker.
This appeal presents no question whatever of improper use of the exempt property, simply that of title and present right of possession, and while the decision of the trial court was correct in denying plaintiffs’ right to partition of the property it was erroneous in denying their title to a one-half interest therein.
The cause is therefore remanded with directions to modify the judgment as indicated.
Justices Burch, Mason and Dawson dissent. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of replevin for personal property covered by a chattel mortgage. It was brought by the plaintiff against J. P. Rooney and Sadie Rooney, the makers of the mortgage. John Rooney, a mortgagee, intervened and claimed priority. Judgment was rendered for the plaintiff, and the defendants appeal.
At the commencement of the action an order of delivery was issued by virtue of which the plaintiff obtained possession of the property in controversy. It is said that the affidavit on which the order was based, and which the court permitted to be amended, was a nullity. The affidavit was entitled in the action and the opening statement, with the amendment placed in brackets, follows:
“J. R. Hyland, being duly sworn, says that he is agent for [the said plaintiff, The Washington National Bank, and that the said plaintiff is] the owner and entitled to the immediate possession of the following described property of the actual value, as follows, to-wit.”
In the body of the affidavit it was stated that the property described was not taken on execution or order “against said plaintiff, the Washington National Bank,” or for the payment of any tax, fine, or amercement assessed against it, or by virtue of any order of delivery or any other mesne or final process issued against it. A copy of the chattel mortgage was attached to the affidavit. The objection to the affidavit is that it did not state directly who was the owner of the property, nor who was entitled to possession of it.
Under the statute the chattel mortgage vested title in the bank, and the copy attached to the affidavit disclosed that ownership. The affiant stated that he was agent for the owner, so that his statements were properly referable to the bank as owner, and the body of the affidavit undertook to negative all the statutory conditions which would prevent the bank securing, possession by means of an order of delivery. The petition in replevin on file disclosed the plaintiff’s cause of action and claim to possession in full. Under these circumstances the affidavit was clearly amendable. (Civ. Code, § 140.)
J. P. Rooney was indebted to the plaintiff and to two other banks on obligations secured by chattel mortgages. The plaintiff arranged to take up all this indebtedness on his giving a note for $450 secured by the chattel mortgage in suit, which was done. At that time the record disclosed a chattel mortgage by J. P. Rooney and his wife in the usual form, reciting that whereas the parties of the first part were indebted to John and Edward Rooney, of the- second part, in the sum of $600, to be paid according to the terms of a certain promissory note payable to John and Edward Rooney, the parties of the first part sold, assigned and set over to the parties of the second part the property described, etc. This mortgage was inferior to the mortgages which the plaintiff took up. J. P. Rooney and Edward Rooney are sons of John Rooney. The plaintiff informed Edward Rooney of its negotiations with J. P. Rooney, and asked for a release of the mortgage to Edward Rooney and his father so that the new bank mortgage would retain priority. Edward Rooney gave the release, and after the new bank mortgage was filed refiled the mortgage to himself and his father. This occurred in August, 1912. About a week later Edward Rooney told his father what had been done. His father was displeased, but made no complaint to the plaintiff. The action was commenced in February, 1913. John Rooney intervened on March 27, and filed his answer on the next day.
Besides the foregoing facts, the evidence disclosed that the joint note to John and Edward Rooney was given for separate debts having distinct origins, one owed to John Rooney for borrowed money in the sum of $440, the other owed to Edward Rooney for rent in the sum of $160. The note and chattel mortgage were taken in the form they bore to save expense. There was no evidence that the bank had knowledge or notice of the several character of these instruments. The order of delivery was executed on February 14, 1913, and the plaintiff proceeded to sell the property to satisfy its claim. John Rooney claims the release of the joint mortgage was unauthorized and void as to him and that he has a superior lien on the property to the amount of $440 and interest. The court held otherwise on a demurrer to his evidence.
The intervener cites the authorities which hold that a mortgage to secure several debts to several creditors is several, that such mortgagees are tenants in common, that one can not act for the others without express authority, and that third persons dealing with such a tenant in common must ascertain at their peril his authority to bind his coowners. The plaintiff cites the authorities which hold that a mortgage running to two or more persons not shown to have distinct interests and securing what appears to be a single debt is a joint mortgage, that such a mortgage is indivisible, tender to one mortgagee alone is sufficient, payment to one alone satisfies the mortgage, and a release by one discharges the mortgage and bars the interest of the other. Both lines of authority are perfectly sound.
The intervener’s mortgage was joint in form and not several. Third persons were entitled to deal with either mortgagee as having the authority which every joint mortgagee has of controlling the security. If the mortgage had run to Edward Rooney alone he might have released it in order to permit a consolidation of prior mortgages to retain priority although John Rooney had an interest with him to the extent of $440. The change of the plaintiff’s situation arising from the release would in such a case estop Edward Rooney and John Rooney from afterwards claiming priority. By taking the chattel mortgage in unity and not in severalty with Edward Rooney, John Rooney conferred the same authority upon his comortgagee. The plaintiff was not obliged to inquire respecting a latent severalty but could rely on the agency of each for both which the face of the instrument created.
In the brief for the intervener it is said:
“There is no question in this case of innocent parties. The record shows that the Washington National Bank knew of the prior mortgage and procured its release by Edward Rooney. The Bank, therefore, had notice of the lien claimed by John Rooney.”
It will be observed that this statement does not go to the length of asserting that the bank knew how the joint mortgage was made up or that the joint mortgage really secured individual debts. No evidence is abstracted to support such a statement. The bank knew, so far as the evidence discloses, of nothing but the mortgage in the form it presented. The bank had no notice of any lien claimed by John Rooney except the joint lien of himself and Edward Rooney to secure a joint note for a joint debt. The question of innocent parties does therefore come into the case to the extent that the plaintiff could deal with either apparently joint mortgagee so long as it had no notice of their several relations.
If the intervener desired to repudiate the conduct of his co-mortgagee he should have acted promptly after he was informed of what had been done. He should not have stood silently by for months and then suffered the plaintiff to involve itself in a replevin suit and in an appropriation of the property to satisfy its claim, under an innocent belief in priority. Therefore ratification of the act of Edward Rooney might be inferred if necessary.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover taxes paid which it is claimed the city of Hutchinson lacked power to levy. A de murrer was sustained to the petition and the plaintiff appeals.
The taxes complained of were four-tenths of a mill for general improvements and three one-hundredths of a mill for a judgment fund.
The statutes relating to the government of cities of the first class were revised in 1903 by chapter 122 of the Laws of that year. Section 125 of that act provided that the mayor and council shall levy taxes each year upon all the real, personal and mixed property in the city for the purposes and not to exceed the rate on each dollar, as follows: (1) For general revenue, six mills; (2) for general improvements except improvements for which special assessments are levied, six mills; . . . (5) for the purpose of paying off judgments, one mill. Because of a change which had been made in the method of assessing property it became necessary in 1909 to limit the levy of taxes in the various taxing districts of the state. This was done by chapter 245 of the Laws of that year. Section 17 prescribed limitations on the power of cities of the first class having the population of the city of Hutchinson to levy taxes as follows: (1) For general revenue fund, two and one-half mills; (2) for general improvement fund except improvements for which special assessments are levied, two mills; . . . (5) for the purpose of paying judgments, one-half mill; . . . (8) all other levies authorized by statutes not specifically named were limited to one-fourth of the rate so levied.
In 1911 a act relating to cities of the first class was passed which amended and repealed four sections of the General Statutes of 1909. (Laws 1911, ch. 95.) To this act was appended a section making a further limitation upon the size of tax levies in cities of the first class. (§5.) These limitations were the following: (1) For general revenue, two mills; (2) for opening, widening and bringing to grade streets, avenues and alleys, for the building of bridges, culverts and sewers, and for foot walks, one mill; . . . (7) all other levies authorized by statutes not specifically named were limited to one-fifth of the rate so levied.
The argument is that item 2 of the act of 1903 and the same item of the act of 1909 were repealed by item 2 of the act of 1911.
The act of 1903 was a grant of power and a command to levy taxes for the purposes stated, at not to exceed the rates specified. The acts of 1909 and 1911 merely revised rates. The power to levy taxes for general improvements other than improvements for which special assessments were levied remained. Item 2 of the act of 1911 did not cover all the general improvements contemplated by the act of 1903, and does not cover general improvements authorized by other statutes relating to cities of the first class. It could not have been the intention of the legislature in an act merely fixing a limit to levies to cut down the power of cities of the first class to make general improvements. The act of 1911 is not generally revisory. It specifies the particular statutes which it repeals, and section 125 of the act of 1903 (Gen. Stat. 1909, § 989) is not among them. Repeals by implication are not favored. Every canon of construction is against the contention of the plaintiff, and the general improvement levy complained of was valid.
The levy for a judgment fund is likewise valid. Such a levy is specifically authorized by the act of 1903 (item 5) and the levy made was within the limit of the act of 1911 (item 7). The fact, stated in the petition, that the judgments existing against the city when the levies were made were payable out of the general fund makes no difference. Even such j udgments may be paid out of the judgment fund after other judgments are satisfied. (Gen. Stat. 1909, § 1081.) The case of Railway Co. v. Kansas City, 92 Kan. 300, 140 Pac. 1040, related to the action of a city of the second class and does not apply. In the opinion in that case the absence of a statute expressly authorizing a levy by a city of the second class to pay judgments was pointed out.
The judgment of the district court is affirmed. | [
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The opinion of the «court was delivered by
Porter, J.:
The complaint against Mary Ann Smith contained three counts charging sales of intoxicating liquor; the other was.the ordinary nuisance charge. She was convicted on all four counts and appeals.
It is seriously contended that the conviction on the first count, which charged a sale to Andrew Nolan, can not stand because Andrew testified that he had never told the officers where he bought the liquor until he gave his testimony at the trial; and, therefore, it is argued that defendant was convicted of an offense of which neither the prosecuting officer, nor the complaining witness had knowledge or notice when the information was filed. The mere fact that Nolan made no statement to the officers would not, of course, establish lack of knowledge on their part. The. complaint was sworn to by C. H. Burke, city marshal of Salina, who was a witness. The evidence shows that as soon as Nolan left the place with the liquor the marshal took it away from him. No effort appears to have been made to show that the prosecuting officers did not in fact have notice or knowledge of the offense. The law does not require an affirmative showing by the state that the prosecuting officers had notice or knowledge of the offense, non require them to disclose the source of their knowledge. The presumption is that the officer who swore to the complaint possessed the necessary information to give him notice. Of course, the presumption is, like others, rebuttable.
There is even less merit in the contention that instructions 11 and 12 authorized convictions of sales of intoxicating liquors to “any persons.” The instructions are not given in the abstract but they appear in a counter-abstract, and both required the jury to find from the evidence beyond a reasonable doubt that the defendant sold intoxicating liquor as testified by witnesses named and as charged in counts second and third.
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 defendant appeals from a conviction upon the thirteenth count in an information, which count charged in substance:
“That the defendant Richmond and one W. S. Conaway conspired together with the intent to cheat and defraud the Lee Hardware Company, a corporation, by falsely and fraudulently representing that the Lee Hardware Company was indebted to the Santa Fe Railway Company on certain freight bills, which the defendants, Richmond and W. 5. Conaway, unlawfully and feloniously presented to the Lee Hardware Company as genuine, true and correct freight bills, and that the same were issued in evidence of freight charges for freight actually carried by the said Railway Company for the Lee Hardware Company, and that by means of said felonious and fraudulent freight bills induced the Lee Hardware Company to deliver its bank check of the value of $151.69, and by means thereof did obtain from said Lee Hardware Company the sum of $70.00 thereby defrauding the Lee Hardware Company in the sum of $70.00.”
His first complaint is that a motion to quash should have been allowed because the charge is so indefinite and uncertain that he was unable to learn therefrom the' exact nature of the offense alleged against him. We can not see wherein it lacks definiteness or certainty, and are not impressed with the claim that defendant was not sufficiently informed of the exact nature of the offense charged.
The defendant also moved to require the state to elect upon which one of two charges, which he contends are contained in this count, it would proceed against him. His contention is that the count is bad for duplicity; that it charges one felony in obtaining money by false and fraudulent representations, and another in obtaining the signature to a bank check by certain false and fraudulent representations. These objections are all fully answered by the following cases: The State v. Palmer, 50 Kan. 318, 32 Pac. 29; The State v. Meade, 56 Kan. 690, 44 Pac. 619; The State v. McDonald, 59 Kan. 241, 52 Pac. 453; The State v. Briggs, 74 Kan. 377, 86 Pac. 447.
In the Meade case, swpra, it was contended that a count in an information was bad for duplicity; that it charged two separate offenses: first, obtaining a signature to a written instrument by false pretenses; and second, obtaining money by false pretenses. The court held that when the acts mentioned “have been committed by the same person at the same time, they may be coupled together in a single count as constituting a single offense. In such cases each one of the acts may be considered as representing a step or stage in the same offense, and all combined may be set forth in the same count and treated as a single violation of law. (The State v. Pryor, 53 Kan. 657, 37 Pac. 169.)” (p. 693.)
It is insisted that there was no evidence to show that when the check was obtained the Lee Hardware Company had any money in the bank or that the check was paid by the bank. It was shown by proof that in exchange for the check the bank issued a draft payable to the treasurer of the railway company, and that the draft was paid in regular course. The draft went into the hands of Conaway, the agent of the railway at Salina, who was charged in the same information with having conspired with the defendant Richmond to commit the offense. The defendants demanded and were granted separate trials. There was no error in the admission of evidence showing changes and mutilations of books and records of the railway company, the effect of which was to destroy evidence of the crime and the conspiracy. Nor was there error in the admission of evidence of statements made by Conaway in the defendant’s absence, for the reason that it was claimed by the state throughout the trial and in the information that a conspiracy existed between the two which had for its object and purpose not only the commission of the numerous felonies charged, but also the concealment of evidence tending to prove the same; and that the conspiracy continued after the Lee Hardware Company discovered that for a number of years it had been systematically defrauded by its employee, the defendant, and Conaway, the agent of the railway company. It can not be said that the state failed to establish by substantial proof, circumstantial and direct, the conspiracy and the fact that it continued and included the commission of other felonies for the purpose of concealing evidence of the original crimes. The law is well settled, and defendant’s own brief sets forth numerous citations from authorities to the effect that the acts and declarations of one conspirator are admissible against a coconspirator if they are made or performed in aid or execution of the conspiracy or while it still exists. The authorities cited in the brief holding inadmissible acts or declarations of a coconspirator after the conspiracy has ceased need not be considered. (See, however, The State v. Adams, 20 Kan. 311; The State v. Boyland, 24 Kan. 186, 188; 12 Cyc. 438; 3 Encyclopedia of Evidence, 432.)
During the trial the court stated to the jury that information had been received of an attempt to bribe the jury, and called upon any juror who had been approached to make a full disclosure of the fact. One juror arose and stated that he had received a communication. The others were sent from the room, and his examination disclosed that some person, to him unknown, had handed him a note offering him $90 to acquit the defendant. He testified that he did not believe the circumstance would have any weight in determining his verdict. Being pressed in cross-examination by defendant’s counsel to say whether he felt that the defendant or his attorneys were in any way responsible for the communication, he stated that he would be obliged to answer in the aifirmative. No evidence was offered by either side in reference to the matter. The court denied the motion of defendant to discharge the jury. The sound discretion of the trial court must determine what is the proper course in a situation of this kind, arising suddenly in the progress of a criminal trial, and unless an abuse of discretion is shown the court’s action should be upheld. Obviously, it would not do to lay down a rule that in all such situations the jury must be discharged, for that would offer a premium upon corruption and encourage attempts to tamper with juries. The record contains nothing to indicate an abuse of discretion in denying the motion to discharge the jury. We find no error in the instructions and conclude that defendant was given a fair and impartial trial, and the judgment is therefore affirmed. | [
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Allen, J.
This action was brought by the defendant in error, as plaintiff below, to enjoin the collection' of taxes on the unpaid balance of a judgment in his favor rendered by the District Court of Kingman County. The judgment was rendered in an action to recover the amount of a promissory note and to foreclose a mortgage given to secure it, The mortgaged property was sold, and, after the application of the proceeds of the sale to the payment of the judgment,, there remained a balance ; and the balance remaining, unpaid was assessed in the city of Kingman — the county seat of Kingman County — for taxation. The plaintiff is a resident of Missouri.
The question presented for our consideration, is, whether judgments rendered by the courts in this. State in favor of non-resident parties are taxable while they remain unsatisfied. There is no claim in this case that the party against whom the judgment was rendered is insolvent or that the valuation placed on the judgment is excessive.
Pías the Legislature assumed the power to tax such judgments and provided for their taxation?
Section 1, chapter 107, (¶ 6846,) of the General Statutes of 1889, reads: “All property in this state, real and personal, not expressly exempt therefrom, shall be subject fo taxation in the manner prescribed by this act.” In section 2, the term “personal property ” is defined as follows :
“The term ‘personal property’ shall include every tangible thing which is the subject of ownership, not forming part or parcel of real property ; also, all tax-sale certificates, judgments, notes, bonds, and mortgages,.and all evidences of debt secured by lien on real estate ; also, the capital stock, undivided profits,, and all other assets of every company, incorporated or. unincorporated, and every share or interest in such stock, profit or assets, by whatever name the same may be designated : Provided, the same is not included in other personal property subject to taxation, or listed as the property of individuals; and also every share or interest in any vessel or boat used in navigating any of the waters within or bordering on this state, whether such vessel or boat shall be within.the jurisdiction of the state or elsewhere ; and also all ‘ property' owned, leased, used, occupied or employed by any railway or telegraph company, or corporation within this state, situate on the right of way of any railway.”
Section 7 of the same chapter provides where property shall be listed for taxation, and the part of the section material to this inquiry reads as follows :
“Every person required to list property in behalf of others shall list such property in the same township, school district or city in which said property is located ; but he shall list such property separate and apart from his own, specifying the name of the person, estate, company or corporation, to which the same may belong. All toll bridges shall be listed in the township or ward where the same are located; and if located in two wards or townships, then one-half in each of such wards or townships. And all personal property shall be listed and taxed each year in the township, school district, or city in which the property was located on the first day of March, but all moneys and credits not pertaining to a business located shall be listed in the township or city in which the owner resided on the first day of March.”
It will be observed that the provisions with reference to what property shall be subject to taxation are very sweeping ; and that judgments, as- well as other forms of intangible property, are not only included within the general terms used but are specifically mentioned as included in the term “personal property.” Sections 9 and 10 of the act require the own ers of property subject to taxation to make lists thereof ; and section 10a provides that the statement shall set forth the number of the school district, or districts, in which such property was situated on the first day of March. It is ably and earnestly argued that the common-law rule embodied in the maxim mobilia personam sequuntur applies with full force in this case, and that the situs of the intangible property evidenced by the judgment is at the domicil of the owner, and subject to taxation there only. This rule of law is subject to so many exceptions and limitations that it is quite as liable to mislead as to furnish a correct guide when considered alone. In the distribution of the estates of deceased persons it is generally, if not universally, given full force and effect both as to tangible and intangible property ; and from comity, nations foreign to each other generally recognize the law of the place of the owner’s domicil as controlling in the distribution of the personal estate of the deceased owner. To questions of taxation the maxim has very little application. Every sovereignty asserts the right to levy taxes on persons and property within its protection ; and the ground on which all taxation is justified is, that it is a burden necessarily imposed by the sovereignty in order to enable it to perform its duty in protecting persons and property. 1 Desty, Tax. 59; Cooley, Tax. 19 et seq.; Story, Confl. Laws, 543, note a, and cases cited.
We think it now quite well settled that dioses in action belonging to a nonresident, in the hands of a managing agent within the State, are taxable. City of New Albany v. Meekin, 56 Am. Dec. 522, note, page 530, and cases therein cited; 1 Desty, Tax. 64; Finch v. Yorlc County, 19 Neb. 50.
The power to tax residents of the State on credits due from citizens of other States is often upheld. Kirtland v. Hotchkiss, 42 Conn. 426. And this even where it results in duplicate taxation. Dyer v. Osborne, 11 R. I. 321; note to People v. Worthington, 74 Am. Dec. 95, and cases cited. The cases upholding the power to tax promissory notes and other written securities held within the State, though owned by a nonresident, sometimes lay stress on the fact, that the securities are in a certain sense property, and are subject to seizure for debt, and that a title may be made to the intangible debt by delivery of the written evidence of it.
We perceive no valid objection to the power of the Legislature to tax all judgments by domestic courts and remaining unsatisfied, whether owned by citizens of this State, or other States, or foreign countries, provided the rate of taxation be the same as that imposed on other forms of property belonging to citizens of this State. The question here, however, is whether the Legislature has expressed a purpose to tax judgments in favor of a citizen of another State, rather than as to the power to do so. Judgments are included by the express provision of section 2, in the term “ personal property.” Does this mean judgments owned by citizens of this State, or those rendered by courts within the State without reference to ownership? In answering this question,- some weight at least should be given to the rule that credits are generally regarded as residing with the creditor. The case of Fisher v. Comm’rs of Rush Co., 19 Kan. 414, is an extreme one, and has been criticized. A resident of this State may undoubtedly be taxed on moneys due him from citizens of other States, and this would be equally true after the claim is reduced to judgment in a foreign jurisdiction. Under the provisions of section 7, where the owner of a domestic judgment resides in this State, it seems clear that it must be taxed at the place of his residence, provided it does not pertain to a business located at some'other place. Where the owner is a nonresident, if taxed at all, it must be taxed in the township, school district, or city-in which it is located ; and to be taxable it must be held to have a situs of its own. The authorities with reference to the situs of a judgment are not numerous, and no case is called to our attention where the precise point now under consideration has been decided in an action where the owner of the judgment resided out of the State. But in cases where the owner resided in the State it has been held that the situs of the judgment for purposes of taxation is at the residence of the judgment creditor. V. & A. Meyer & Co. v. Sheriff and Tax Collector, 41 La. Ann. 645; People v. Eastman, 25 Cal. 601.
When this case was first considered, the writer was strongly inclined to the opinion that a judgment should be held to have a situs of its own at the place where the record of the court rendering it is kept; but it seems quite clear that, if the owner be a resident of this State, its situs is with him at his place of residence, and there is no purpose expressed by the Legislature to give judgments in favor of nonresidents a situs for the purpose of taxation. If the Legislature wishes to change the rule, and establish a situs for taxation for all judgments rendered by the courts of this State, it ought to employ language expressive of its purpose to do so. The natural implication from the language in fact employed, would seem to be that, as to the situs of credits for taxation, the rules generally recognized were intended to be followed.
The judgment is affirmed.
All the Justices concurring-. | [
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Allen, J.
This is a proceeding to obtain a reversal of an order of the District Court of Cowley County confirming a sale of lands made by the Sheriff of Sumner County. A motion, made to dismiss the petition in error, is overruled on the authority of Hammerslough v. Hackett, 30 Kan. 57; Hill v. National Bank, 42 id. 364; Bridge Co. v. Fowler, 55 id. 17.
On the 7th of September, 1889, Prank G. Lombard brought suit against the Geuda Springs Town and Water Company, George A. Masters, the Crane Brothers Manufacturing Company, L. C. Fisher and O. B. Taylor, to recover the amount of a certain installment note executed by the Town and Water Company, and to foreclose a mortgage securing the same. On the 3d of May, 1890, judgment in accordance with the prayer of the petition was duly entered in favor of the plaintiff for $3,385.93 and ordering the lands described in the mortgage, part of which were located in Cowley County, and part in Sumner County, to be sold subject to a prior mortgage for $20,000 held by the Farmers Loan & Trust Company of New York. The case was continued for service of summons on the Crane Brothers Manufacturing Company, Fisher, and Taylor. On the 25th of September, 1890, a judgment was entered declaring the lien of the plaintiff superior to that of all the defendants,., directing a sale of the mortgaged premises, and barring and foreclosing all the defendants of any interest therein. Afterward, on the motion of O. B. Taylor, the judgment as to him was opened and set aside, and on the 7th of June, 1892, an order was entered dismissing the action as to him without prejudice. The order of sale, under which the sale confirmed by the Court was made, was issued on the 14th of October, 1892, and the first contention is, that the sale was made without appraisement within six months after the rendition of final judgment in the case. The judgments against all the defendants, except Taylor, were rendered more than two years before the date of the order of sale under which the sale was made. The date of the dismissal of the case as to Taylor is unimportant. The plaintiff in error has had the benefit of a much longer stay than the law requires.
The second ground relied on is that a number of separate lots and parcels of land were sold together. It does not appear that any request was made by the plaintiff in error at the sale that the land be sold in separate tracts. The rule requiring a sale of disconnected pieces of land to be made separately is not an arbitrary one, but is enforced when necessary to protect the rights of the debtor, and to insure the best prices that can be obtained for the property. Circumstances may exist which render it altogether impracticable to realize reasonable prices from separate sales, and this case appears to be such an one. The property consisted of a tract on which there was a large bathhouse, and a considerable number of town lots, all of which were covered by a mortgage for $20,000. It is not probable that the lots, which some of the evidence tends to show were not worth more than about $5 a piece, could have been sold separatbly at any price, under the circumstances. Burdened with such a heavy incumbrance, a sale of the whole property together would seem to be most advantageous to all parties concerned. Bell v. Taylor, 14 Kan. 277; Johnson v. Stevens, 7 Cush. 431; Webster and others v. Foster, 15 Gray, 31; Wilson v. Twitty, 14 Am. Dec. 569. The rule requiring each parcel to be offered separately is a wholesome one, and should be rigidly enforced when there is no valid reason for a sale of all en masse. But where there is a blanket incum brance exceeding in amount the value of any separate parcel, each purchaser would be subjected to the danger of a sale of his tract to satisfy the prior incumbrance, and it might be a matter of much difficulty, if not of impossibility, to obtain an apportionment of the lien.
The third objection is, that the sale was made while the Taylor foreclosure-suit was pending in Sumner County. If the plaintiff in error had desired protection against the disadvantages arising from the pendency ox that suit, and from any controversy over the priority of the Taylor mortgage, it should have been sought when the order was made dismissing the case as to Taylor. The judgment under which this sale was made, directed that the lands be sold subject to the $20,000 mortgage ; and it was too late, when the motion to confirm the sale was heard, to ask the Court for protection against the Taylor mortgage. Under the judgment rendered the sale was, in this particular, entirely regular, and in this proceeding no error is predicated on the judgment rendered in the District Court.
The order of the District Court is affirmed.
All the Justices concurring. | [
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Allen, J.
The pleadings, evidence and instructions in this case, squarely present -the question, whether a prior parol agreement made with the general agent of an insurance company concerning the amount of concurrent insurance to be carried on the property insured, controls and defeats the express terms of the policy. It appears, without dispute, that one of the conditions of the policy was, that it should be void if the insured should procure any other insurance on the property without the consent of the insurer, and that consent was indorsed on the policy for only $32,500 of concurrent insurance. The prior parol agreement with Ormandy with reference to the total amount of insurance to be carried on the property, and the fact that the plaintiffs had neglected to read the policy before the fire, are alone relied on to avoid the condition above mentioned. There is no more wholesome or well-settled rule of law than that parol evidence of prior or contemporaneous conversations and oral agreements is inadmissible to contradict or vary the terms of a written contract. Drake v. Dodsworth, 4 Kan. 159; Cornell v. St. L. K. & A. Rly. Co., 25 id. 613; Brenner v. Luth, 28 id. 581; Hopkins v. St. L. & S. F. Rly. Co., 29 id. 544; Windmill Co. v. Piercy, 41 id. 763; Willard v. Ostrander, 46 id. 591; Safe and Lock Co. v. Huston, 55 id. 104.
Provisions in policies of insurance providing that the policies shall be void if other insurance be taken without the consent of the insurer, are valid. 2 May, Ins. § 364. And subsequent insurance, taken out without the consent of the insurer, either expressed or implied, avoids the policy. Allen v. Merchants’ Mutual Ins. Co., 31 Am. Rep. 243; Funk v. Insurance Association, 29 Minn. 347; Bard, Appellant, v. Penn. Mut. Fire Ins. Co., 153 Pa. St. 257. And taking insurance in excess of. the amount consented to avoids the policy. Allen v. G. A. Ins. Co., 123 N. Y. 6; Union Nat’l Bank v. German Ins. Co., 71 Fed. Rep. 475. Counsel for the defendant in error do not question these propositions, but they insist that the Company had notice of the intention to take out insurance to the amount of $40,000, and expressly assented thereto, and that it is estopped from denying liability by the parol agreement made with Ormandy, as agent. The cases of Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 549; Continental Ins. Co. v. Pearce, 39 id. 396; Insurance Co. v. Wood, 47 id. 521, and numerous other cases decided by courts of other States, are cited in support of this position. We are entirely satisfied with the law as declared in all the cases heretofore decided by this Court, cited on behalf of the defendants in error. The difficulty in this case is, that there is no proof, either of the existence of insurance on the property in excess of the amount authorized at the time the policy was issued, or that the Company, or its agent, was informed at any time before the fire of the full amount of insurance taken out. It appears that of the policies mentioned in the proofs of loss, five policies aggregating $17,300 were issued prior to the one sued on; that another for $2,500 was issued on the same day, and that all the others bear date subsequent to the one issued by the defendant. Altough it is shown that the plaintiffs had carried $40,000 insurance during the preceding year, it nowhere appears from the evidence whether the whole or any part of the old insurance was still in force when this policy was issued. It was incumbent on the plaintiffs when seeking to charge the Insurance Company with knowledge that the property was insured at the time the policy was issued, to an amount exceeding that authorized by the consent indorsed on it, to prove the fact. This was not done ; and, so far as we are informed by the evidence in the record, the whole amount of concurrent insurance, at the time this policy was issued, was $19,800. Although Norwood testified that he got 10 policies from Ormandy, the agent of the defendant, it does not definitely appear that the last one received from him. rendered the whole amount of insurance on the property more than $35,000. It cannot be said then, that, at the time the policy was issued, either the-Company or its agent, Ormandy, had notice of the existence of so much insurance as would avoid the policy; nor can it be said that at any subsequent time, Ormandy knew that the condition of the policy had been violated, and received or even retained the premium paid on it. There is, therefore, no element of estoppel in the case. The plaintiffs rested on timbare proposition that Ormandy had verbally agreed, prior to the date of the policy, that there should be-$40,000 insurance on the property. Afterward, when the written contract was made, the total insurance-was limited to $35,000. Do the prior parol negotiations control, or the subsequent written contract ?' Unquestionably the latter.
We have carefully considered the case of Fireman’s Fund Ins. Co. v. Norwood, 69 Fed. Rep. 71, which arose on one of the policies of insurance on this same-stock of goods, issued on the 5th of November, 1891. We.find ourselves unable to concur in the conclusion reached by that eminent Court that, “by delivering the policies with knowledge, through their agent, of the amount of insurance intended to be taken, the companies waived the condition as to other insurance,- and were estopped to set the same up after a loss.” We think there is a clear distinction between a case where there is knowledge of the existence of a fact -which would avoid the policy and this, in which it is merely claimed that there was a prior agreement contradicting the terms of the written contract as to the amount of insurance the party should be permitted to carry. We are better satisfied with the reasoning of Judge Sanborn, in his dissenting opinion, than with the views of the majority of the Court.
In the case of Union Nat’l Bank v. German Ins. Co., 71 Fed. Rep. 473, it was held, that “parol negotiations leading up to a written contract of insurance are merged in the contract, which cannot be controlled by parol evidence of the understanding of the parties.” If it were claimed that the indor semen t on the policy was a mistake, under proper averments and proof it might have been corrected, and the policy enforced according to the real agreement and intent of the parties. But no such claim is made in this case. The plaintiffs maintained from first to last that the prior parol agreement overturned the written contract on which they based their suit. This position is untenable.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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Johnston, J.
Marion Asbell was convicted upon a charge of the murder of his wife at their home in Labette County on January 29, 1896, and from the judgment of conviction he appeals. They were married nearly two years before the death of Mrs. Asbell, and during that time had resided upon a farm which was situated about four miles from Chetopa. Each of them had been previously married, and by the first marriage the wife had two children living at the time of her death, named Maggie Whitehouse, about 17 years old, and Carson Whitehouse, whose age was about 15 years. By her marriage with the defendant she had one child, which was nearly 11 months old at the time of her death. Maggie made her home with the defendant after his marriage with the deceased, but the testimony tends to show that Carson’s presence was not agreeable to the defendant and that prior to the marriage it was agreed that he should not live in their home. He lived in a number of places, and it appears that his conduct was such as to give his mother much concern and worry. Testimony was offered tending to show that previous to the defendant’s marriage to the deceased he had had sexual intercourse with Maggie, and that illicit relations between them continued until the death of his wife; that, as a result of these relations she became pregnant, and the defendant took her to a doctor, where an abortion was produced ; that, within a few months after their marriage, the wife suspected improper relations between her husband and Maggie, and at one time, and for this reason, some steps were taken toward obtaining a divorce, but the effort was abandoned. There is testimony to the effect that the conduct of her hus band and daughter caused her great anxiety, and some also that she was contemplating the commencement of legal proceedings against them as soon as sufficient proof of their wrongdoing could be obtained. She was also worried by her son, who had been living with the father of the defendant, where he was charged with purloining money, and on returning home the day previous to the death of his mother, had a difficulty with the defendant and was ordered to leave the premises and not return again.
On the morning of January 29, 1896, Mrs. Asbell arose early and assisted Maggie in preparing breakfast, but she declined to eat any, and while the defendant and Maggie were eating she was bowed down, holding her head in her hands, and was apparently in a troubled and despondent state of mind. On that morning she asked the defendant for a horse and buggy with which to go to Oswego, the county seat, and also to one of her brothers who lived about six miles distant, but both of her requests were refused. He gave the horse and buggy to Maggie with which to go upon an errand, and, taking another horse, he rode out to his work upon the farm. Maggie returned home about 10 o’clock and found that her mother was missing and that the baby had been placed at the window and hemmed in with a trunk and sewing-machine in such a way that it could scarcely move. It had evidently been in this position for some time, as it had cried until it was hoarse and exhausted. Not finding her mother, Maggie called the defendant from the field, and without making any search about the premises he went to the homes of two of the neighbors and made inquiries as to the whereabouts of his wife. Dinner was prepared and eaten, after which a neighbor called and suggested that a search be made in the cellar of the house, which was accordingly done. There the body of Mrs. Asbell was found, lying on its back, the right arm partially extended ; and a revolver was found lying a few inches from the right hand, with a pool of blood under the head and neck. It was discovered that she had been shot through the head, the bullet entering back of the right ear and passing downward and slightly toward the front, fracturing the skull on the left side of the head, where it was found about three-fourths of an inch lower than a point opposite the point of entrance and one-half an inch in front of it. At the coroner’s inquest Maggie denied that illicit relations had existed between her and the defendant; but she subsequently testified that such relations had existed, and that the defendant had suggested that when he got rid of his wife he would marry Maggie, and move to another location, where they would live together as man and wife.
The theory of the State is that he desired to be rid of his wife in order to live with Maggie, and further, that the wife had long suspected the improper relations between her husband and daughter, which continued until the previous night, and was about to institute a prosecution against them; that, after Maggie had been sent from home, he returned to the house, killed his wife, placed her body in the position in which it was found, and then returned to the field to await the discovery.
The theory of the defense is that, becoming despondent over the conduct of her children and husband, Mrs. Asbell had taken her own life.
At the opening of the trial the defendant insisted that the cause was not triable at the February term of court. The term began on February 4, 1896, seven clays after Mrs. Asbell was killed and three days after the defendant was arrested upon the charge of killing her. The preliminary examination was held on the 13th and 14th days of February. The information was filed on February 15, and the trial was begun on February 24. It is contended that the-case was not triable until a term or court-beginning after the preliminary examination was concluded. This contention is based on. section 57 of the Criminal Code, which provides :
“When the prisoner is admitted to bail, or committed by the magistrate, he shall also bind, by recognizance, such witnesses against the prisoner as he shall deem material, to appear and testify at the next term of the court having cognizance of the offense, and in which the prisoner shall be held to answer.”
The words “next term” ordinarily mean the next subsequent term, and if there was no other provision on the subject there would be much force in the defendant’s contention. We are not to determine the question, however, upon inferences drawn from provisions with reference to other subjects, for the Legislature has specifically declared when a criminal cause is triable, as follows :
“All indictments and informations shall be tried at the first term at which the defendant appears, unless the same be continued for cause. If the defendant-appear or is in custody at the term at which the indictment or information is found, such indictment or information shall be tried at that term, unless continued for cause.” §157 Crim. Code.
The language is plain and direct, leaving no doubt-that the cause was properly triable at the February term. The defendant was in custody at the February-term, when the information was filed, and under the-statute the Court was required to try the cause un less cause for continuance was shown. The two sections seem to be somewhat inconsistent, but the express provision of section 157 must prevail over a mere inference drawn from section 57. The word “next” means nearestj and the words “next term,” as used in section 57, when construed in connection with section 157, may be taken to mean the nearest term at which the cause is triable.
An application for a continuance was made, based mainly on averments that the killing of Mrs. Asbell and the charge that it had been done by her husband had aroused great indignation in the community toward him and that there was such excitement and passion as to prevent a fair trial. The time for preparation was quite brief, and it would seem as if the application might properly have been granted. It was not stated that there was testimony which the defendant was unable to procure at that term, nor did the affiant express a belief that the defendant could not then have a fair trial. No application for a change of venue on account of public prejudice was made, and there appears to have been no trouble in securing jurors who had not forzned or expressed an opinion upon the merits of the case. We cannot say that the Court abused its discretion in refusing a continuance.
Many objections are made to rulings admitting and excluding testimony, but some of them are not of sufficient consequence to require special comznent. There is complaint that the statements and suspicions of the neighbors as to illicit relations between the defendant and Maggie Whitehouse were admitted in evidence. Some questions tending in that direction were asked, but the testimony elicited was not important or prejudicial. Direct testimony was given as to the illicit relations, and none of the questions raised upon the testimony concerning these relations are deemed to be material.
The objection to the testimony of Maggie that her mother was ordinarily willing to do what defendant requested her to do, is without force. It was competent and material to show the relations which existed between them, and the only objection made to this testimony is that it was immaterial. It was also competent to show the condition of things in the house at the time the body was found, and the surrounding circumstances, and hence the testimony that partly burnt cloth was found in the cook-stove was received. It could not have been very material, but certainly its admission is no good cause for complaint.
A witness of the defendant who had talked with the deceased some time before she was killed, was asked what she had said about her children’s conduct and the effect it had upon her, but an objection to the inquiry was sustained. It is contended that the theory of the defense was that the deceased came to her death by her own hand, and it was competent for them to show not only a purpose to take her own life, but that the conduct of her children was such as to lead her to suicide. As the manner of death could not be established by direct testimony, and as some of the circumstances of the case were not inconsistent with suicide, the declarations of'the deceased shortly before her death, evincing an intention to commit suicide, were admissible. The question asked, however, did not indicate that such evidence was desired, nor does it appear that the Court was informed what was intended to be drawn out by the inquiry. A narrative of what the deceased said about her children’s habits would ordinarily be inadmissible, and probably the objection to the question was sustained because its purpose was not disclosed. This is the more apparent from the fact that the Court did permit a full investigation as to the conduct and statements of the deceased showing her state of mind or an intention to take her own life.
No error was committed in excluding a conversation between the defendant and his father in regard to trouble which the father had with Parson Whitehouse. This testimony an(j the reasons proposed to be given by the defendant for excluding the boy from his home were in the nature of self-serving declarations and were not admissible under any rule of evidence.
Several months prior to the death of Mrs. Asbell, there was some talk between her and the defendant in regard to obtaining a divorce. The defendant took his wife to the count}? seat 'and there they consulted a lawyer about divorce proceedings. After stating these facts the defendent was asked what conclusion he and his wife reached concerning divorce after the consultation was had, and if they did not leave Oswego on that day agreeing that no steps for a divorce should be taken. The objection to these questions was properly sustained, as a witness must state the facts so far as they are competent and material, and is not permitted to give his own conclusions.
Some questions of an objectionable character were asked, but no objections were made to them, and hence no error can be predicated thereon; nor is a general objection to testimony available. A picture which had been in the possession of the defendant was introduced in evidence over an objection, but the grounds of the objection were not stated, and it was therefore properly overruled. Humphrey v. Collins, 23 Kan. 549; Stout v. Baker, Sheriff, 32 id. 113; Smith v. Morrill, 39 id. 665.
A witness named Rambo gave testimony as to experiments made by him with the pistol with which Mrs. Asbell was killed and with cartridges similar to those which were found therein after her death. The first shot was at a bunch of hair placed six inches from the muzzle of the revolver, and the result was that it was torn from its fastenings and scattered so that the effect upon the hair could not be told. The next was at a piece of paper 30 inches away, and it was found, that it was badly powder-burnt, some of the powder going clear through the paper. The next was at a distance of four feet, when the paper was considerably powder-burnt, a portion of the powder going through the paper. One fired at a distance of six feet showed powder marks upon the paper ; and there were slight powder marks on a paper that was eight feet away. A shot fired 10 feet away left no impression on the paper. The last experiment was firing at a bunch of hair .30 inches away, and there the hair was considerably singed and burnt. After the testimony was received the Court for some reason excluded it from the consideration of the jury. It is contended that the testimony was improper and the withdrawal of the same did not cure the error. We think the testimony was competent for the purpose of determining the effect of a pistol shot fired at human hair, and to show how much the powder marks from that particular pistol would scatter. It appears that it would have been very difficult for Mrs. Asbell to have held the pistol in such a position as to make the wound that was found in her head. If it was possible at all, the pistol must have been close to her head, and must necessarily have left powder marks and singed and burnt her hair. No powder marks were found upon her head, nor could it be ascertained that the hair was singed or burnt. The experiment, having been made under similar conditions and circumstances, threw light upon the effect of a pistol shot fired at human hair from a given distance, and also enabled the jury to ascertain how much the powder marks would scatter in a given distance. It was not offered for the purpose of showing that the wound itself was a near wound, but there was an abundance of other testimony introduced for that purpose. In The State v. Jones, 41 Kan. 309, it became important to ascertain the distance that the defendant was away at the time he fired a musket-and killed the deceased. Persons, who had experimented to ascertain how far guns and muskets would carry shot compactly, were held to be competent to testify to the experiments made and to give their opinions based on such experiments as to how much shot would scatter in a given distance. See, also, Sullivan v. Commonwealth, 93 Pa. St. 284; Boyd v. The State, 14 Lea (Tenn.) 161; 1 Witthaus & Becker’s Med. Jur., 609; Mo. Pac. Rly. Co. v. Moffatt, 56 Kan. 667. The witness in this case had had experience with firearms, and his testimony giving his opinion and the results of the experiments aided the jury in determining one of the important issues in the case. Under the authorities we think the defendant has no cause to complain of the admission of this testimony.
Medical experts who examined the wound soon after it was made testified as to the appearance and character of the wound, and also as to whether the pistol which made it was fired close to the head, or from a distance. They described without objection the appearance and indications of near wounds, and their testimony made it clear that the characteristics of such wounds are well known to those who nave made a study of gunshot ° ° wounds, and whose observation and experience qualify them to express an opinion. Some of these characteristics are the discoloration of the skin, the powder marks in and around the wound, the burning of the flesh or hair, the form and size of the wounds, and the condition of the tissues along the course of the bullet. It was not denied that the expert testimony was competent to show the characteristics of near wounds, and we see no good reason why qualified witnesses may not give their opinion whether a particular wound was produced by a near shot or one fired from a distance. These symptoms and characteristics do not lie within the range of common experience or common knowledge, and inexperienced persons are not as liable to reach a correct conclusion as persons who have been instructed by study and experience. The characteristics of the wound, such as the color and condition of the skin around it, the coagulation of the blood mixed with powder, the depth of the wound, and the disturbance of the tissues throughout, cannot easily be communicated, to the jury; and some of the indications which would mean much to the expert could not well be described to an inexperienced person. It is well settled that medical experts may give an opinion as to the means by which a wound was inflicted. Rogers, Expert Tes., §53, ánd cases cited; 1 Greenl. Ev., §440; Hammond v. Woodman, 66 Am. Dec. 235, and note. The question upon which the opinions were given was not a matter directly in issue before the jury, but these opinions were given upon an incidental matter in order to enable the jury to determine the main issue in the case. We think the law relating to expert testimony was not violated by the admission of these opinions.
Some exceptions were taken to the rulings of the Court in charging the jury, but only one of the instructions given is criticised. In charging the jury that the opinions of the experts were not to be taken as conclusive, but were to be considered in connection with the other evidence, the judge remarked: “You have further observed that some of the witnesses have given testimony in this case as to whether or not the deceased, Maria A. Asbell, came to her death by her own hand,” etc. In this respect the Court went astray. It is evident, however, that the remark was inadvertently made, and that the Court was not endeavoring to construe the expert testimony. None of the experts had given such testimony, and from all the remaining part of the charge it is clear that it was not -the purpose of the Court to assume the existence of that or any other disputed fact. Under the circumstances we do not think that the jury could have been misled by the inadvertent remark, and unless the jury were misled it furnishes no ground for a reversal.
Complaint is made of the refusal of the Court to give certain instructions upon circumstantial evidence that were requested. In these the Court was asked to instruct the jury in substance that before they could convict the defendant upon the evidence they must be satisfied that the State had as proved every essential circumstance beyond a reasonable doubt. We think the charge given was not defective in this respect. Besides giving a general definition of circumstantial evidence, the jury were told that, if they entertained a reasonable doubt upon any one or more of the facts and elements necessary to constitute the offense, they must give the defendant the benefit of such doubt and acquit him. In addition to that they were instructed “that to authorize a conviction of the defendant on circumstantial evidence each of the circumstances should not only be consistent with the ■defendant’s guilt, but they must be inconsistent with any other rational conclusion or reasonable hypothesis and such as to leave no reasonable doubt in your minds or the mind of either of you of the guilt of the defendant.” The doctrine of the remaining instructions requested, so far as they were proper, was fairly included within the charge that was given, and we think no error was committed in the refusal.
It is earnestly insisted that the verdict is not sustained by the evidence. After a careful reading and consideration of the same we are united in the opinion that the testimony sustains the finding that the defendant committed the offense charged. The relations which existed between the defendant and Maggie as well as between him and the deceased furnished a motive for the commission of the offense. The testimony makes it very improbable that it was a case of suicide, and there is much in it which tends to connect the defendant with the killing. His conduct before the death of his wife and his conduct immediately after her body was found tends to support -the finding of the jury.
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
Marshall, J.:
This is an action for damages for personal injury. The plaintiff recovered judgment for $12,000. The defendant appeals.
The defendant was engaged in drilling for gas in Montgomery county, Kansas, and had laid an inch gas pipe line from a gas well on near-by premises' to its drilling machinery. This pipe was laid on the surface of a public highway, about seven feet from a hedge fence on the west side of the highway. On the east side was a wire fence. The road was about forty feet wide, about twenty feet of which, in the center, had been graded, leaving shoulders on the sides of the graded work eight or ten inches high. The accident occurred on the 23d day of July, 1914. Growing weeds and grass to the height of about six or eight inches concealed the gas pipe. The plaintiff, a boy fifteen and a half years old, was working for his father, assisting in drawing a threshing machine outfit out of an adjoining field onto the highway at the place of the accident. The plaintiff was seated on the engine, .guiding it by the steering gear, under the direction of his father, who was also on the engine controlling the power. The length of the outfit was 30 to 35 feet. The engine was a coal-burning steam engine equipped with a damper to shut off air from the firebox. Two workmen were sent ahead to prepare a way to the road. This they did by pulling staples out of posts that held the wires and standing on the wires so that the engine and separator could pass over them. Neither the plaintiff nor his father, nor any of the workmen, inspected the road for any purpose. The road was approached from a northeasterly direction. To get the threshing outfit into the highway it was necessary to cross the graded portion of the road with the traction engine and get it onto the ungraded portion on the west side. There the engine ran onto the gas pipe. A hind wheel broke the pipe, releasing the gas. The engine’s damper was open, and through it some of the escaping gas got into the firebox, when it exploded. The explosion threw the plaintiff from his seat on the engine to the ground in the flame, where he was momentarily unconscious. Upon recovering consciousness he rolled out of the flame, attempted to extinguish the fire in his clothing, could not do so, ran to one of the workmen, who tore the burning clothing from the plaintiff’s body. He was badly burned, although there were no internal burns. He was burned on his knees, on his right hip, on his right side below the arm, on both arms and shoulders, across his breast, and on his face, neck and ears. These bums were of first and second degree; a first-degree burn varying from redness to a blister, and a second-degree being where a portion of the skin is charred or killed. The burn on the right arm was mostly second degree, and on the hip was a second-degree burn several inches square. On the right side of the face, under the jaw and ear and on the rim of the right ear, were burns of second degree. All the rest were first-degree burns. There were no third-degree burns. The bums were very painful. During the first three weeks after his injury the plaintiff was obliged to lie on his back most of the time with his arms extended and supported on pillows, and during the second week for a while it was necessary to grasp his right hand and hold the arm off the bed to relieve the pain. In order to induce sleep, the doctor' gave the plaintiff morphine at night during the first two weeks. The right ear had been burned worse than any other part of his body. Abscesses formed in the upper part of this ear, due to infection. There were no other abscesses. About five weeks after the injury there was a swelling in the left leg due to an interference of circulation, possibly due to infection. To correct this' condition the doctor advised the use of an elastic bandage on the leg, and the plaintiff was wearing it at the time of the trial. At this time, six months after the accident, all the plaintiff’s burns had healed. He had several large scars on his body and in his face. A portion of his right ear was gone. There was a drawing of the skin about the chin, neck, and throat. His scars were exhibited to the jury. The appearance of the plaintiff’s face and body does not seem to be described in the record, beyond the statement of the scars left. It does appear that these scars will never entirely disappear, and that the skin tissue of the right arm has been destroyed and can not perform its function. It appears that none of the muscular tissues was burned, but the muscles of the right arm and of the left leg were affected by the burns, and they probably will never be restored to their normal condition.
The first complaint is of the following language used in the instructions:
“To entitle plaintiff to a recovery in this action, he must show by the evidence that the injury complained of was occasioned by the carelessness and negligence of the defendant alleged and set up in the petition.”
This is about half of the sentence from which it is taken. It is but a small part of the instructions on the defendant’s negligence. Neither the sentence from which this quotation is taken nor the whole of the instruction concerning negligence is objectionable. This court has said many times that instructions are to be construed as a whole, and if not erroneous when so construed, no one of them will be held erroneous. (The State v. Dickson, 6 Kan. 209; The State v. Miller, 35 Kan. 328, 10 Pac. 865; Lawder v. Henderson, 36 Kan. 754, 14 Pac. 164; The State v. Yarborough, 39 Kan. 581, 588, 18 Pac. 474; C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276; Cain v. Wallace, 46 Kan. 138, 26 Pac. 445; Hays v. Farwell, 53 Kan. 78, 35 Pac. 794; The State v. Atterberry, 59 Kan. 237, 52 Pac. 451; Railway Co. v. Brandon, 77 Kan. 612, 95 Pac. 573; Meyer v. Rosedale, 84 Kan. 302, 113 Pac. 1043.) Other cases to the same effect might be cited. The instructions, as a whole, on this subject are not complained of. They appear to state the law correctly.
The next complaint is that the court did not limit the amount of the plaintiff’s recovery-to $5000 for pain and anguish, and to $10,000 for temporary and permanent injury. The petition alleges damages in the sum of $5000 for pain and anguish, and $10,000 for temporary and permanent injury and incapacity to earn a livelihood. The prayer of the petition is for $15,000 and costs. The court in stating the issues instructed the jury that the plaintiff alleges “that Roy Murphy was severely injured and burned in various parts of his body and suffered intense pain and permanent injury, all to the amount of $15,000, for which he seeks a verdict at your hands.” The defendant contends that it was the duty of the court to instruct the jury that the plaintiff could not recover more than $5000 for physical pain and mental anguish, nor more than $10,000 for temporary and permanent injuries. No instruction limiting the amount of the plaintiff’s recovery for each of these items to the sum named was given. The abstract does not show that any such instruction was requested. As far as they went, the instructions on this subject were correct. If the defendant desired other and additional instructions, it should have asked for them. In Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648, this court said:
“A judgment will not be reversed because of complaint that the court did not properly, correctly and fully instruct the jury, where the instructions given correctly stated the law and no request was made for other or additional instructions.” (Syl. ¶ 4.)
See cases there cited.
In Hoyt v. Dengler, 54 Kan. 309, 38 Pac. 260, this language is found:
“Where no instructions are asked, a failure to make them as full as the plaintiff would like is not ground of error.” (Syl. ¶ 1.)
It does not appear that the substantial rights of the defendant have been prejudiced by the failure of the court to instruct the jury concerning this matter. Section 581 of the code of civil procedure requires that all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining shall be disregarded, where it appears upon the whole record that substantial justice has been done by the judgment or order of the court. (Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552; Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125; Berhenke v. Penfield, 94 Kan. 532, 146 Pac. 1187.)
The next complaint also concerns the instructions, and, quoting from the defendant’s brief, is as follows :
“They did not limit the recovery for inability, if any, to work and earn money after the accident to the period commencing with plaintiff’s 21st birthday, March 5, 1920, plaintiff’s father having brought separate suit in the same court against the defendant and having been compensated in full for loss of services of the plaintiff in the case at bar up to that date.”
On the .amount of recovery the court instructed the jury as follows:
“If you find that the plaintiff is entitled to recover in this case, the next question for your consideration is the measure of his recovery. He may recover for pain and suffering and for permanent injury.
“There is no actual rule for the computation of damages upon claims for permanent disability or for pain and suffering in a case of this kind; the nature and elements of recovery are for physical pain, if any, which has resulted up to the time of the commencement of the action, and if you find that plaintiff is still disabled from such alleged injuries and still suffers pain, such further damages as may appear to you from the evi.dence to be the natural or probable result of such injuries.
“You should in arriving at your verdict, consider the physical pain, if any, suffered by the plaintiff, the age, physical condition and work of the plaintiff at the time of the alleged injury and his ability at that time to work and earn money, his age, health and physical condition at the time subsequent to the alleged injury and his ability then to work and earn money, as affected, if at all, thereby. In fact you should consider all the circumstances in the light of all the evidence and the instructions of the court.”
It is contended that the plaintiff’s father is entitled to the plaintiff’s services until he is twenty-one years old, and that these instructions permit the plaintiff to recover for his incapacity to work from the time of his injury until he reaches that age. Although the father is entitled to the plaintiff’s services until he is twenty-one years old, that does not preclude the plaintiff from recovering damages for the permanent injuries he has sustained. There is no claim in the petition for loss of time or of wages. These instructions permit the plaintiff to recover for pain and suffering and for permanent injury. Nothing else is included. The court instructed the jury to take into consideration the age, health, physical condition, and ability of the plaintiff to work and earn money, both at the time of the injury and afterward. The verdict could not have been properly arrived at without so doing. It is a strained interpretation of these instructions to hold that they include compensation for loss of time and of wages of the plaintiff during his minority. The last part of subdivision 5 of section 285 of the code of civil procedure reads:
“Before reading the instructions to the jury, the court shall, when requested, submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.”
The abstract does not disclose that the defendant requested that the instructions be submitted to it before being read to the jury, nor that the defendant suggested any modification thereof or requested an instruction excluding the plaintiff’s right to recover for inability to work or earn wages before he was twenty-one years old. No such instruction having been requested, the defendant can not now complain of the failure of the court to give it. (Hamilton v. Railway Co., 95 Kan. 353, 148 Pac. 648; Hoyt v. Dengler, 54 Kan. 309, 38 Pac. 260.)
The defendant next contends that the instructions were misleading on the question of the degree of care and prudence to be exacted of the plaintiff. He was fifteen and a half years old. The court instructed the jury that it was the plaintiff’s duty to exercise that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances, gave the rule in regard to the negligence of an adult and in regard to the negligence of an infant of tender years, and told the jury to determine from all the facts the plaintiff’s capacity and the degree of care and prudence that should have been expected of him. This instruction was properly given,
The last complaint concerning the instructions is that they were misleading on the subject of contributory negligence. The defendant’s complaint in this regard is without merit. .
The next complaint is that the court erred-in refusing to. submit to the jury certain special questions requested by the defendant. It was sought by these questions to show that the plaintiff was guilty of negligence in running the engine into the highway and upon the gas pipe without making an examination for the purpose of ascertaining whether or not the threshing outfit could be safely taken into the highway at the place of the injury. So far as the defendant is concerned, .the plaintiff had the right to assume that the public highway was a safe place on which to travel, and that he could enter on it at any place along it. Other questions sought to elicit answers to show that the plaintiff could have entered upon the highway at another place with less danger. We think these questions were wholly immaterial.
The next contention is that the verdict of $12,000 is so excessive that it can only be explained on the theory that it was the result of the jury’s passion and prejudice. We do not agree with this contention. The plaintiff’s injuries were severe. His pain was intense. He is permanently disfigured. He probably will never entirely recover. We can not say that the verdict for $12,000 was excessive.
The defendant contends that it was reversible error for the court to exclude evidence offered to show the general practice and the usual and customary method of laying gas pipe lines, such as the one in question, on the ground along the sides of highways in rural communities, only burying such pipes where they cross other highways. The defendant cites a long list of authorities in support of this proposition. We have examined them. The rule established by them is concisely stated in 29 Cyc. 609, where this language is found:
“As a general rule custom and usage -of well-appointed and well-managed concerns in the business under investigation is competent evidence on the question of the care and diligence required in the proper conduct of the business.”
But this rule, as there stated, is modified by the sentence immediately following, which reads:
“This rule is, however, subject to exceptions, among which is the exception that it can not be allowed to contradict matters of common knowledge, or to prove a custom which is so obviously unreasonable or dangerous as to be at once recognized as such by all intelligent persons.”
We do not think the rejection of this evidence constituted material error, for reasons which are hereinafter stated.
The defendant contends that it had the right to lay its gas pipes along the highway. This is correct, under a former decision of this court; but with that right went the obligation to lay the pipes in such a way that no person would be injured by gas escaping therefrom. This court, in The State v. Natural-gas Co., 71 Kan. 508, 80 Pac. 962, said:
“As against the state, a natural-gas company incorporated under the laws of Kansas for the purpose of transporting and distributing natural gas for fuel, light, and power, may bury its pipe-line in the public highway, where such use does not inconvenience, endanger or obstruct public travel.” (Syl.)
To come within this rule, the defendant should have buried its pipe line in the public highway. To show what the legislative idea is concerning transporting natural gas along public highways we cite section 3904 of the General Statutes of 1909, which reads:
“Whenever any tract of land not in an incorporated city shall be laid out in lots or other subdivisions as now required by law, the owner of such lands or his assigns is authorized to lay, maintain and operate natural-gas pipes along and across the streets and other grounds dedicated by such owner to public use for the purpose of furnishing natural gas for light and fuel to the residents of said land, and for such purpose is authorized to lay, maintain and operate natural-gas pipes across any public highway: Provided, That the said pipes shall be laid under the surface of said streets, public grounds, and highways, and that said streets, grounds and highways shall be restored so as not to impair their usefulness: And provided further, That nothing herein shall be construed as granting to such owner or his assigns the exclusive right to furnish said residents with natural gas for light and fuel.”
It can hardly be contended that gas operators laying pipe lines in.public highways for private purposes have greater rights than gas companies laying the same kind of pipe for public service. A case closely parallel with the one we are now considering is Indiania, etc., Gas Co. v. McMath, 26 Ind. App. 154, where the court said:
“One who maintains an exposed gas pipe through which natural gas is flowing on the surface of the ground within the limits of a public highway does an unlawful act and is liable in damages to one who, without his fault, breaks the pipe by driving a traction engine over it and is injured by an explosion of the escaping gas.” ' (Syl.-¶ 1.)
Another case, analogous in principle, is Omslaer v. Philadelphia Co., 31 Fed. 354. The first section of the syllabus to this case is .as follows:
“The defendant company, having authority under the laws of Pennsylvania to lay and maintain pipes for transportation of natural gas across the Allegheny river, laid an eight-inch main across and resting on the bed of the river, wholly exposed, so as to interfere with the free and safe passage of boats. Held, that the pipe should have been buried underneath the river bed, and as laid it was a wrongful obstruction to navigation.”
Natural gas is a dangerous agency, whether ignited or not, and it is known to be as liable to explosion as powder when it comes in contact with fire, and that its destructive effect is almost as great. In Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468, this court used this language:
“Natural gas, as all know, is inflammable and explosive in a high degree — a very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in safe condition, and to detect and repair any leaks or defects in them.” (p. 331.)
In Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635, this court said:
“Defendant was employing for its profit a subtle and highly explosive agency. The rule at common law is that, where an agent so introduced is controllable by care, attention, or science, he who receives the benefit must assume the responsibility.” (p. 568.)
Again, in Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032, this court, in speaking of the care required of gas companies, said:
“Care was required commensurate with the dangerous character of the agency and the consequences that ought to have been apprehended from its escape.” (p. 872.)
The rules governing the handling of dangerous agencies should be applied in cases of this kind. In Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, this court said:
“The owner of so inherently dangerous a commodity as solidified glycerine is required to exert the highest degree of care to keep it in close custody to prevent its doing mischief, and that duty never ceases; and such owner is liable for all the natural and probable consequences which flow from any breach of that duty.” (Syl. ¶ 2.)
Again, in Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63, this court said:
"Electric companies that suspend wires charged with a high voltage of electricity over or along the highway are required to exercise the highest care in constructing and maintaining their poles and wires so as to avoid injury to those using the highway for work, business and pleasure.” (Syl. ¶1.)
We do not see how the defendant can be excused from the consequence of its' act by showing that other persons engaged ih the same business in the same community were guilty of similar acts.
It is contended that the evidence as to the general custom of laying gas pipes in highways was admissible on the question of the plaintiff’s contributory negligence; that whether or not the plaintiff or his father knew of the existence and location of the gas pipe, or in the exercise of ordinary care should have known thereof, was a material question, on which the jury should have been permitted to consider this evidence. The plaintiff had a right to assume that the highway was safe from one side to the other. He was under no obligation to' make an examination of the highway for the purpose of ascertaining whether or not gas pipes were laid thereon. The evidence shows that neither the plaintiff nor his father knew of the existence of the gas pipe before the explosion.
“To be free from contributory negligence it is not necessary that one using a highway known by him to be defective exercise more than ordinary care, but he must adapt his conduct to that condition and employ such care as may justly be regarded as ordinary, in view of his knowledge of such defect.” (Cunningham v. Clay Township, 69 Kan. 373, syl. ¶ 6, 76 Pac. 907.)
If the plaintiff had known that the gas pipe was in the public highway and had used ordinary care in attempting to drive his traction engine over it he would not have been guilty of contributory negligence, under Cunningham v. Clay Township, supra; Telephone Co. v. Vanclervort, 71 Kan. 101, 79 Pac. 1068; and Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070. Whether or not the plaintiff exercised ordinary care, after having knowledge, would have been a question for the jury. We do not think the evidence was competent for the purpose of showing contributory negligence on the part of the plaintiff.
We have examined every complaint made, and do not find anything warranting a reversal of the judgment in this case. Upon the whole, we are of the opinion that substantial justice has been done by the verdict of the jury, and that the defendant has no just ground for complaint on account of the verdict or the manner in which it was reached. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this proceeding the petitioner, Cornelia V. H. McCoun, seeks to-secure the custody of Charles Edmonds and Anna Harriet Sparling, the .two infant children of Earl J. and Harriet E. Sparling, deceased.
From the agreed facts it appears that Earl J. Sparling and Harriet E. Hueberer were married in July, 1911, at Garden City. Shortly afterwards they removed to Denver, Colo., and lived there about fifteen months, and while there, and on March 17, 1912, Charles Edmonds Sparling was born to them. In the fall of 1912 they returned to Garden City and lived for a few weeks with his parents, Robert J. and Carrie E. Sparling. About December 1, 1912, they moved to another house and lived there until the birth of their twins, Anna Harriet and Robert V., on February 14, 1913, and up to the death of the mother, Harriet E. Sparling, on March 14, 1913. Earl J. Sparling took his wife’s body to Somerville, N. J., for burial and then went to New York city where he remained until January, 1914, the three children being left meanwhile in the custody of his parents, the respondents. In January, 1914, Earl J. Sparling came to Topeka and soon engaged in business there, which he carried on until the time of his death on January 28, 1915. About February 1,1914, he sent for his children, and the respondents then moved to Topeka, bringing the three children with them, but on June 26,1914, Robert V., one of the twins, died. The respondents lived there until about September 1, 1914, part of the time with Earl, when they went back to Garden City and were permitted to take with them the two living children who have since remained in their care. Earl J. Sparling, it appears, paid his parents approximately $779 for the maintenance of his children. It also appears that the petitioner, the sister of his deceased wife, loaned him money from time to time to be used in his business, amounting to about $5000. Earl J. Sparling obtained insurance on his life with one company for $3000 in which his three children were named as beneficiaries. He obtained insurance in another company for $2000 in favor of the two children then living, and later obtained a policy in another company which provided for a sick and accident benefit in favor of his two children, but the benefit under that policy only amounted to $15 and that has been paid. It further appears that on January 25, 1915, three days before his death, Earl J. Sparling executed his last will and testament, wherein he bequeathed all of his property, save $50 each to his children, to Cornelia V. H. McCoun, his sister-in-law, and also named her as sole executrix of his estate. In his will he requested that she be appointed guardian and given the care, custody and control of his children. This will was filed in the probate court of Shawnee county on January 30, 1915, and was duly probated on February 3, 1915, and on February 16, 1915, the court appointed Cornelia V. H. McCoun as guardian of the persons of Charles Edmonds and Anna Harriet Sparling, and The Prudential Trust Company as guardian of their estate. Prior to the burial of his son, and on January 30, 1915, Robert J. Sparling presented an application to the probate court of Finney county for an appointment as guardian, and on that day he was appointed as guardian of the persons and estate of the children. On February 17, 1915, the respondents refused to surrender the children of Earl J. Sparling to the petitioner on her demand, and she seeks to obtain their custody in this proceeding.
The first question presented for determination is, Which one of the probate courts that assumed to act had the authority to appoint a guardian? It is settled that the probate court of the domicile of minor children possesses the jurisdiction to appoint a guardian for them. (Modern Woodmen v. Hester, 66 Kan. 129, 71 Pac. 279; Connell v. Moore, 70 Kan. 88, 78 Pac. 164, 109 Am. St. Rep. 408.)
The next inquiry is as to the domicile of the minor children. They could not select a domicile for themselves, nor could the fact that they were temporarily outside of the domicile of their father at the time of his death affect the question. Clearly the domicile of the father fixed the domicile of his minor children. In Modern Woodmen v. Hester, supra, it was said:
“During his lifetime the domicile of the father established the domicile of his children. Had they resided apart from him their domicile would not have been changed, and could not have been changed, from his own, except for faithlessness to the parental relation under such circumstances as to indicate a total renunciation of his duty and authority. Upon the death of the father the domicile of the mother fixed that of the children.” (p. 133.)
Here the domicile of the father, the surviving parent, was undoubtedly in Shawnee county, the jurisdiction in which the petitioner was appointed. He established- a residence in Topeka in January, 1914, and resided and exercised the rights of citizenship there until his death. The father might by consenting to an adoption or by taking other steps to change the legal domicile of the children have effected a change* but the proof satisfactorily shows that he had no purpose of surrendering the control and custody of the children but did intend to have them returned to his immediate care as soon as he could make suitable provision for them. His parents were entrusted with the care of the children, but it was a temporary-arrangement, and the testimony is to the effect that, for certain reasons, he did not desire them to remain with his parents a great length of time. It also appears that he paid his parents regularly for the care they gave his children. It must be held then that the domicile of the children was in Topeka and that the probate court of Shawnee county was the one that had the jurisdiction and authority to make the appointment of a guardian. However, the matter of the appointment of a guardian in this instance appears to be controlled by a provision of statute on the subject of guardianship. As we have seen, the father, who had the sole control of his children, provided for the appointment of a testamentary guardian in his will. The statute provides:
“The father and mother are the natural guardians of the persons of their minor children. If either dies, or is incapable of acting, the natural guardianship devolves upon the' other.
“The survivor may, by last will, appoint a guardian for any of the children, whether born at the time of making the will or afterward, ■ to continue during the minority of the child, or for a less time; and every such testamentary guardian shall have the same power and shall perform the same duties with regard to the person and the estate of the ward, as natural guardians, subject to the provisions of the will. If without such will both parents be dead or disqualified to act as guardian, the probate court may appoint one.” (Gen. Stat. 1909, §§ 3966, 3967.)
In his will Earl J. Sparling, the survivor, appointed the petitioner as guardian for his children, which appointment has been confirmed by the probate court, and under the statute quoted it follows that she has the same power and is charged with the same duties toward the children as a natural guardian. Her powers, rights and duties as to the care, control and custody of the children are substantially like those of their father in his lifetime.
The question remains, however, whether the testamentary guardian, who has the technical legal right to the custody of the children, is a fit person to be entrusted with their care, culture and education. She was deemed to be a fit and proper person by the father, who selected her as guardian, and the probate court, which had jurisdiction to inquire into her fitness and make an appointment, has determined that the children might be safely entrusted to her care. It is true, as the respondents contend, that the validity of the appointment and her technical legal right as testamentary guardian do not conclude the inquiry. It has been determined that in controversies over the custody of children the paramount consideration is their welfare, and hence children have been taken from one parent and given to another, and in some instances have been taken from both parents and given to strangers. (In re Bort, Petitioner, &c., 25 Kan. 308, 37 Am. Rep. 255; Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321; In re Bullen, Petitioner, &c., 28 Kan. 781; In re Beckwith, Petitioner, 43 Kan. 159, 23 Pac. 164; Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987.) The technical legal right is in the petitioner and the lav-clothes her with the power and rights which the father possessed, and she is entitled to their custody unless it can be said from the evidence that her condition, habits, temperament and character render her unfit for the trust confided in her. It is said that she is lacking in affection for the children and has exhibited much more affection for Earl J. Sparling than she has for his children. She may not have been as demonstrative as' some in her expressions of interest in and love for them, but the effort of respondents to show that she is cold or without the ordinary impulses of mankind — a love for children— was a failure. The minors are the children of a sister to whom the petitioner was greatly devoted, and naturally she has more than an ordinary interest in and affection for them. She testified that she took up her residence in Topeka in order to be near to them, and that she had made a will making them the beneficiaries of her estate.
In order to prevent her from gaining the custody of the children an attempt has been made to show that she is immoral and had been guilty of misconduct with the father of the children. This is met by the evidence .of disinterested witnesses who had an opportunity to judge of her habits and character, which tends to show that the attacks on her character have not been sustained. The court would hardly be warranted in setting out at length the testimony offered in support of the charges or in discussing the probabilities and improbabilities in it, but it can be said that the court is not satisfied that the charges of immorality have any substantial foundation. Among other things it was shown that she was separated from her husband and had been living with her father for some time, but it was not shown that the separation was due to any misconduct or wrong on the part of the petitioner.
The respondents appear to have taken good care of the children while they have had charge of them, and naturally have' more interest in them than if they were the children of a stranger. Mrs. Sparling testified that the mother of the children expressed a wish that Mrs. Sparling should take care of them, but this is one of the disputed matters in the case. It appears that the respondents do not own a home, and have little income beyond a pension, which is paid to Mr. Sparling by the government. He is over sixty-five years of age, and hence there is little prospect that he will acquire a great deal of property or that his ability to provide for the children will be much better than it is at the present time. It has been satisfactorily shown that Earl J. Sparling did not wish nor deem it to be wise or prudent to give the respondents the permanent custody of his children or to leave them with the respondents for a considerable length of time. One of his reasons for this view, it appears, was the hostility of Mrs. Sparling towards his wife, the mother of his children, and on account of the imputations which she had made against the character of his wife. In the last hours of his life, and when he realized that the end was near, he decided that the welfare of his children would be best subserved by giving them into the care and custody of the petitioner. The appointment has been legally made, and the court is unable to say, upon the testimony presented, that she is not a fit or proper person to execute the important trust that has been confided to her. The court, of course, retains supervision over the minor children as well as the guardian, and in the future may make any further orders that circumstances or changed conditions may require.
The judgment of the court is that the custody of Charles Edmonds Sparling and Anna Harriet Sparling is awarded to the petitioner, Cornelia V. H. McCoun. | [
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The opinion of the court was delivered by
Marshall, J.:
In 1912 the board of county commissioners and the county superintendent of Haskell county determined to aid school district 23 in that county in maintaining a high school under chapter 263 of the Laws of 1911. (See The State, ex rel., v. Haskell County, 92 Kan. 961, 142 Pac. 246.) A tax of one-half mill was levied by the county commissioners for the school for that year. For the school year of 1913-U4 the district board of the school district paid out $1581.85 to operate the high school. It will cost $1650 to run the school for the present year.
At the time required by law, defendant George B. Levitt, county superintendent, certified to the county commissioners that a total sum of $500 would be sufficient to aid the high school for the year ending June 30, 1916. This action is brought to compel him to certify that $1650 is necessary to maintain the high school, to compel the county commissioners to levy a tax, and to compel the county clerk to enter the same on the tax rolls.
The question for our consideration is one of statutory construction, and turns on the meaning of the word “aid” as used in chapter 263 of the Laws of 1911. The plaintiff contends that the word, as used in this statute, means to “maintain,” while the defendants argue that it means to “assist in maintaining.” The title of the act reads, “An act to provide county aid to schools in counties having a population of less than 10,000.” The first section provides that “county commissioners . . . are hereby authorized to make provision for aid to a certain high school or high schools.” The second section, in part, reads: “Such high schools when aided shall adopt a course of study.”
The fourth section is:
“Such high schools when aided shall be under the supervision and control of the county superintendent and district board, or board of education of the district or city in which the school is located.”
In section five it is provided that:
“No high school . . . shall be eligible for such aid except upon a petition to the county superintendent and county commissioners of the county in which such school or schools are sought to be aided, signed by a majority of the school electors of the county in which the school is sought to be aided.” . . .
Section ten reads:
“If, upon the presentation of .a petition addressed to the county commissioners of any county by a majority of the school electors of sueh county, asking that certain aid be extended to a certain school district or school districts therein, as provided for herein, and said county superintendent and county commissioners decide to provide the aid petitioned for.” . . .
Section eleven reads:
“It shall be the duty of the county superintendent to certify to the county commissioners and to the county treasurer on or before the first day of July in each year, the amount of money necessary to aid the district or districts maintaining high schools.” . . .
The word “aid” has a definite meaning, and means to assist or to help. It does not mean to do all there is to be done. As used in chapter 263 of the Laws of 1911, it means to assist or help the school district in maintaining the high school. It does not mean to maintain the high school. In no place in the act is the word “aid” used with any other than its ordinary meaning. This word is defined in 2 C. J. 1022, as follows:
“To help; to support;, to sustain; to succor or to relieve; to assist; to supplement the efforts' of another; to help or assist or strengthen; to support by furnishing either strength or means to help to success; the doing of some act whereby the party is enabled, or by which it is made easier for him, to do the principal act or effect some primary purpose.”
'Subdivision 2 of section 9037 of the General Statutes of 1909 in part reads as follows:
“Words and phrases shall be construed according to the context and the approved usage of the language.”
(See, Olson v. City of Topeka, 42 Kan. 709, 713, 21 Pac. 219; Larned v. Boyd, 76 Kan. 37, 40, 90 Pac. 814.)
There is no ambiguity in this statute.
“Where the statute is plain and unambiguous, there is no room left for a judicial construction so as to change the language employed therein.” (Ayers v. Comm’rs of Trego Co., 37 Kan. 240, syl. ¶ 2, 15 Pac. 229. See, also, Larned v. Boyd, supra.)
“We have not the right to change the statute where it is clear and free from ambiguity, by any judicial interpretation.” (Ayers v. Comm’rs of Trego Co., supra, 242.)
The last is quoted in McAllister v. Fair, 72 Kan. 533, 535, 84 Pac. 112, 3 L. R. A., n. s., 726, 115 Am. St. Rep. 233.
It is not shown that the county superintendent acted other than in good faith. It was his duty to certify the amount of money necessary to aid the district under the act. A fair construction of the act is that it is his duty to determine the amount that shall be necessary. He must exercise his judgment on this matter. This he has done. Errors of judgment on the part of those who must exercise judgment under the law can not be corrected by mandamus. Under section 7796 of the General Statutes of 1909, the Barnes high-school law, it is made the duty of the county superintendent to certify to the county commissioners the amount necessary' for the maintenance of the high school. This is the same duty as that prescribed in chapter 263 of the Laws of 1911. In Board of Education v. Shepherd, 90 Kan. 628, 135 Pac. 605, the duty of the county superintendent under the Barnes high-school law was involved, and this court there said:
“The certificate of a county superintendent of the amounts necessary for the maintenance of the high schools established under that act determines the amount to be levied for that purpose.
“The action of the county superintendent in the exercise of this authority can not be overruled unless he abuses his discretion by acting arbitrarily, capriciously or fraudulently, or in other words, acts in bad faith.” (Syl. ¶¶2, 3.)
(See, also, School District v. Wilson County, 82 Kan. 806, 812, 109 Pac. 168; The State, ex rel., v. Haskell County, 92 Kan. 961, 142 Pac. 246.)
The writ is denied. | [
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The opinion of the court was delivered by
West, J.:
James Pierce devised to his wife his quarter section of land for life and an undivided one-half at her death to his friend L. D. Compton. After his death and the death of his widow, who had elected to take under the will, Compton took possession of the entire quarter section, and by this suit attempted to quiet his title against the heirs of Mrs. Pierce on the theory that by her election she barred herself and her heirs from all interest in the land except her life estate. The appeal presents the one question whether or not, such election having been made, her heirs can inherit.
There is no dispute that under ordinary circumstances the election by the widow precludes her from all rights of inheritance under the law, and this is made plain by the statute of wills. (§ 42, Gen. Stat. 1909, § 9819.) But the real question concerns the effect of such election upon property not disposed of by will. The court below held that the widow’s heirs could not inherit.
While the matter of election has been ruled on, the point now raised has not been previously presented in this state. (Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 847, 71 Pac. 815; Moore v. Herd, 76 Kan. 826, 93 Pac. 157; Ashelford, v. Chapman, 81 Kan. 312, 105 Pac. 534; Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235; Martin v. Battey, 87 Kan. 582, 125 Pac. 88.)
Of the numerous cases cited and examined and others which have come to our notice, quite a number are governed by the provisions of statutes which make it a matter of merely giving effect to legislative direction, while others involve an election to take under the law and can not therefore furnish much light or assistance. Those most nearly parallel and applicable will be briefly noticed. Ragsdale et al. v. Parrish, 74 Ind. 191, involved an election by a widow to take under the will of her husband which gave her only a life estate in certain of his land, and it was claimed that this did not preclude her from inheriting other land not disposed of by the will, but it was held that the statutes governing the matter were such that when construed together they must "be held to mean that when a substantial provision was made for the widow by the will she could not, in the absence of a plainly expressed intention to the contrary, take both under the will and under the statute, and the case was distinguished (p. 196) from Armstrong v. Berreman, 13 Ind. 422, to be noticed later. In Langley v. Mayhew et al., 107 Ind. 198, 6 N. E. 317, it was held that when a widow accepts the provision made by the will which declares that it shall be in lieu of all other interest she may have in the estate, and she gives a receipt expressly agreeing to take under the will in lieu of all other claims, she can not take under the statute. • On rehearing the original opinion was adhered to (107 Ind. 204, 8 N. E. 157), the court stating that as then constituted it would not follow some of the decisions previously made, but was inclined to accept the rule laid down in Morrison v. Bowman, 29 Cal. 337. That rule is that “if the husband, by his will, undertakes to dispose of the wife’s half of the common property, as well ás his own, to her and others, and she elects to accept the benefits intended and provided for her by the will, she thereby becomes divested of her title in and to the undivided half of the common property, provided an assertion of her community right and interest would necessarily defeat the objects of the will.” (Syl. ¶ 3.) This is a well-considered opinion citing and relying largely upon Jarman, Story, and Kent, besides numerous early decisions discussed and followed. In Jackson’s Appeal, 126 Pa. St. 105, 17 Atl. 535, the testator gave one-third of the estate to his wife, and gave certain other legacies to others, and died without issue, leaving property un disposed of. Shortly thereafter the widow died without having-made an election. It was held that as she would be presumed to take under the will her administrator could claim only one-third of the entire estate and was not entitled to any part of that left undisposed of by the will. In Matter of Hodgman, 140 N. Y. 421, 35 N. E. 660, it was decided that :
“Where a testator bequeaths his widow a certain sum ‘in full satisfaction and recompense of and for her dower or thirds’ in his estate, and the widow accepts such bequest, she is estopped from claiming a share as distributee in certain legacies of the testator that had become lapsed.” (35 N. E. 661, headnote, ¶4.)
In Walker v. Upson, 74 Conn. 128, 49 Atl. 904, it was ruled that when a testator gives his wife one-half his estate, allowing her to select it as she may choose, and dies intestate as to the residue, her acceptance under the will precludes her from sharing in such residue. In Smith v. Perkins, 148 Ky. 387, 146 S. W. 758, it was held that a widow who received a provision made for her in her husband’s will, and took no steps for more than a year to repudiate such provision and take dower, could not thereafter recover dower in lands as to. which her husband died intestate, the statute requiring that such relinquishment given by the will must be made within twelve months, and the court said:
“ ‘The mere fact that the amount devised to the widow is less than her dowable and distributable share would have been in her husband’s estate can not alter the legal effect of her act in failing to renounce the provisions of the will.’ (Bayes, &c. v. Howes, &c., 113 Ky. 465, 68 S. W. 449.)” (p. 391.)
In another part of the opinion it was said :•
“It is wholly immaterial whether the will disposes of the entire estate of the husband or not, for, having made such provision for her as he desired her to have, if she is not satisfied with it, she must renounce it and take under the law. Failing to do this, she loses her rights.” (p. 393.)
In Ellis v. Dumond, 259 Ill. 483, 102 N. E. 801, it was held that:
“Acceptance by the widow of the provisions made for her in the will bars her right to dower, not only in the estate disposed of by the will, but also in intestate property which the testator acquired after the will was made but did not dispose of.” (Syl. ¶ 1.)
There certain statutes referred to provided in substance that any provision in the will made for the wife should, unless otherwise therein expressed, bar the right of dower in the lands of the deceased, unless such provision should be renounced. In Malone adm’r. v. Majors, 8 Humph. (27 Tenn.), 577, the statute provided that unless the widow within six months declared her dissent from the provision made by the will, the will would be considered fully satisfactory, and it was decided that she coüld not thereafter claim any portion of the property as to which her husband died intestate. In Armstrong v. Berreman, 13 Ind. 422, the facts were that Armstrong died leaving his widow, Sarah, and no children, having made a will by which he bequeathed to his wife “all the rest of his estate, both real and personal, during her life, and to be disposed of by her at her pleasure.” (p. 423.) He also appointed her his executrix. Sarah qualified and returned an inventory showing that the personal estate amounted to $7540, with practically no debts. In a short time she died intestate, and it appeared that certain real estate was left by the husband, and out of the controversy over the estate it became necessary to construe the following provision of the statute:
“If a husband or wife die intestate, leaving no child, and no father or mother, the whole of his or her property, real and personal, shall go to the survivor.” (Syl.)
The court said:
“Suppose a man die, leaving no child, nor father or mother, but having made a will bequeathing a small portion of his estate to a friend, there being a large residuum undisposed of. Shall the surviving wife not take it under the provisions of the section quoted, because of the bequest? As before remarked, we think that, in such case, the surviving wife should be held entitled to the property, so far as it was not otherwise disposed of by a will.” (p. 424.)
, This was said to be in accordance with the spirit of the statute and the intention of the legislature, and it was suggested that in case of a person dying intestate, disposing of a small part of his property by will and leaving all the remainder undisposed of, it should descend to his children as property of the person dying intestate. The court took up then the question of escheat and said:
“But suppose a will be made in such case, disposing of a part only of the estate, where shall the remaining portion go? Will the state not be entitled to it for the support of schools, under this section, although the deceased did not literally die intestate? . . . We are of the opinion that the simple fact that Benjamin Armstrong made a will, is no reason why the provision first above quoted, should not apply in favor of his surviving- widow. So far as the property was undisposed of by will, the deceased may be said to have died intestate.” (p. 425.)
The court then discussed the matter of election, which was practically the same as now provided by section 9818 of our General Statutes of 1909, and held that it had no application to the case of the surviving wife, who claimed the whole estate as an heir, there being no others capable of inheriting before her, the result of the entire decision being that the widow inherited the property not disposed of by the will. In Lindsay et al. v. Lindsay et al., 47 Ind. 283, in considering a case of an election under the law the rule in Armstrong v. Berreman, 13 Ind. 422, was followed, and it was said:
“We are entirely satisfied with Armstrong v. Berreman, supra, and adhere to it. We think that section 26, supra, should be construed as if it provided that if a husband or wife die, leaving any estate undevised, and leaving no child, and no father or mother, the whole of such estate shall descend to the survivor.” (p. 285.)
In Dale, Adm’r de bonis non, etc., v. Bartley et al., 58 Ind. 101, considering a case of election to take under the law, the court cited (p. 105) with approval Armstrong v. Berreman and Lindsay et al. v. Lindsay et al. Collins v. Collins et al., 126 Ind. 559, 564, 25 N. E. 704, 28 N. E. 190, was a case in which a husband devised all his real estate to his wife for life and a certain portion of the fee to his son and daughter. The daughter and her only son died in the testator’s lifetime, and the son soon after the father. The widow elected to take under the will. It was held that the devise to the daughter lapsed, and as to the real estate devised to her the testator died intestate. It was held that as to the land devised to the daughter, the will being inoperative, the same was cast upon the heirs of the decedent, one-half going to the widow, the other half to the son; that her election to take under the will divested her of her one-third of the land devised to the daughter, but she still retained her interest in excess of the one-third which was the one-sixth. In Sutton v. Read, 176 Ill. 69, 51 N. E. 801, the will gave all the property to the wife to be accepted by her in lieu of dower during her natural life. There was no further disposition made of the real estate, and there was no residuary clause, the fee in the realty being left undisposed of. It was held that the statute applied that all estate not devised or bequeathed should be distributed in the same manner as the estate of an intestate, and that her failure to elect under the statute relating to dower could effect none of her interest except her dower. It was further held that the provision of the statute that if one died testate, leaving no descendents, the surviving spouse may in lieu of dower take one-half of the realty, did not bar the widow who took under the will from also taking under the statute as to the realty as to which testator dies intestate.
It is laid down as the general rule that unless there is a manifest intention to the contrary the presumption is that the testator intended that his property should go in accordance with the laws of descents and distributions, and that heirs at law will not be disinherited by mere conjecture, but only by express words in the will or by necessary implication arising from them. (40 Cyc. 1412, 1498.) It is also stated that the widow is not put to her election between the provision for her under the will and her rights as heir to the property undisposed of unless “she is put to her election by statutes providing for such cases. But a widow taking under the will is barred of her dower in the property undisposed of, and the widow is not entitled to take both her dower interest and her interest as heir or distributee of property not disposed of.” (40 Cyc. 1970.) Gardener on Wills says:
“The prevailing rule is that, where a widow elects to take under the will, she thereby loses all interest in property in regard to which the testator died intestate, as well as in that upon which the will operates other than that given her in lieu of dower.” (p. 611.)
The will itself after giving the wife all of his personal property except one large bay horse, named Charley, provides as follows:
“2nd. I also give and bequeath unto her the rents, use occupancy and right of possession and complete control of the farm on which we now reside during her natural life time.
“3. I give and bequeath unto L. D. Compton of Wichita, Kan. who is now occupied as a Rock Island R. R. employee, the undivided one half interest in and of the north East quarter of section twenty-three (23) in township thirty one south range one east in Sumner County, Kansas. This bequest is to take effect and be in force at and after the death of my wife, Elizabeth. I also give unto him my bay horse ‘Charley’ which he is to have possession of at the time of my death.
“4. I hereby appoint my wife Elizabeth Pierce Executrix of this my last will and request the Court granting letters hereon to not require of her any bond.”
There is certainly nothing in this will indicating any intention that any of the fee in the land should go to the wife, and it would seem that the testator forgot or neglected to provide where the fee in the remaining undivided half should go. It seems natural and proper that it should go to his heirs as if he had died intestate, which he did in respect to this portion of his property, but other instances might arise in which it would not seem so natural or so proper. If a husband owning large bodies of land should devise all but a small tract to his wife and leave that undisposed of it would seem perfectly fair and proper that her election to take under the will should bar her heirs from inheriting such small tract.
But it will be observed, as already suggested, that in the cases referred to it was usually a matter of statutory construction, and indeed “to this complexion must it come at last,” so that the real point before the court is whether the letter of the statute is controlling or whether it is to be construed to mean that the election bars the widow of her inheritance only as to property disposed of by the will. The statute of descents and distributions and the statute of wills have been in force since 1868 and no legislature has seen fit to modify or amend the requirements so far as they affect this case, but it is ordered that “words and phrases shall be construed according to the context and the approved usage of the language.” (Gen. Stat. 1909, § 9037, subdiv. 2.)-
Section 9818 of the General Statutes of 1909 provides that if any provision be made for a widow in the will of her husband the probate court shall after the probate of such will cite her to appear “and make her election,' whether she will accept such provision or take what she is entitled to under' the provisions of the law concerning descents and distributions, . . . but she shall not be entitled to both.” This would seem to make the statute of wills superior, in case of such election, to the statute of descents and distributions, and to preclude her from resorting to both.' Section 9819 requires the probate court to “explain to her the provisions of the will, her rights under it, and also her rights under the law, in the event of her refusal to take under the will. . . . And if the widow shall fail to make such election she shall retain her share of the real and personal estate of her husband as> she would be entitled to by law in case her husband had died intestate. If she elects to take under the will, she shall riot be entitled to the provisions of the law for her benefit, but shall take under the will alone.” But this is not all. The next two succeeding sections provide that if the widow be unable to appear in person a commission may be issued with a copy of the will annexed to take her election, and “it shall be the duty of the court, in said commission, to direct such person to explain to said widow her rights under the will and by law” (§ 9820), and in case of the widow’s insanity or imbecility the court must appoint some reliable person “to ascertain the value of the provision made by the testator for her in his will in lieu of the provision made by law, and the value of her rights by law in the estate of her husband” (§ 9821), and if the court is satisfied that the devise is more valuable than the law’s provision it shall elect for the widow to take under the will.
Language less free from ambiguity or more clearly understandable would be hard to find, and we see no sufficient ground for the .interpolation of an exception in case of property undisposed of by will.
The ruling of the trial court that the heirs of the widow can not inherit is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An information undertaking to charge V. L. Snodgrass with a violation of the medical practice act was quashed, and the state appeals. In several counts the defendant is charged with practicing medicine and surgery without having a certificate of medical registration, by attempting to treat for a fee a sick person by “pretending to adjust the vertebra” of such person. Other counts are in the same language, except that they charge that the acts complained of constituted the practice of osteopathy, without having obtained a certificate therefor. Still another count charges the defendant with having advertised himself to be engaged in the unauthorized practice of medicine by inserting an advertisement in a newspaper offering in effect to treat disease by “Chiropractic,” signed by himself as “Dr. V. L. Snodgrass, Chiropractor.”
In the argument in. the district court it was conceded by the state “that the defendant claimed to be a ‘Chiro’ and to heal the sick by adjusting the spine.”' Practicing, or advertising to practice, what is called “chiropractic,” by one not having a' certificate, authorizing him to practice medicine, surgery or osteopathy, was a violation of the law as it stood in 1911. {The State v. Johnson, 84 Kan. 411, 114 Pac. 390.) The defendant maintains that the facts stated in the information do not constitute an offense by reason of a provision of the statute invoked, as amended in 1913, reading: “This act shall not apply to any registered osteopathic physician or any chiropractic practitioners of the state of Kansas.” (Laws 1913, ch. 290, § 10.) Exceptions of this character need not be negatived in the information. Therefore the state was not required to allege that the defendant was not a “chiropractic practitioner of the state of Kansas,” even if that fact would constitute a defense. (The State v. Buis, 83 Kan. 273, 111 Pac. 189.) For this reason the motion to quash should have been overruled. The court deems it unnecessary to pass upon any of the other questions argued. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one for bastardy. The defendant was found guilty, and the principal errors assigned are that the child was exhibited to the jury as evidence in the case and that the county attorney in his closing argument discussed the subject of its resemblance to the defendant.
The child was born on December 24, 1913, and the trial occurred on May 11,1914. There are instances in which physical characteristics of a father are stamped upon his child so definitely that they distinctly appear at birth, or even before birth. In some instances resemblances may not appear until late in the course of the child’s independent development, and in still other instances resemblances • may never appear with recognizable certainty. Sometimes a child may strongly resemble one not its father and not related to it. The result is that the evidence of paternity furnished by the features of the child may be strong, or weak, or inconclusive, or worthless.
No arbitrary age limit for the exhibition of a child in evidence can be fixed, because maturity and permanence of features may be of slow or of rapid attainment and because marked resemblances appearing early may fade with the changes incident to growth. There is no other test that can be applied, and it becomes the province of the trial court to exercise its discretion in the matter. If in the judgment of the trial court the exhibition of the child to the jury would appreciably tend to promote the purpose of the proceeding the exhibition should be permitted. If, however, the trial court should be satisfied that no substantial advancement toward the truth would result from the exhibition it should be forbidden.
An exercise of the trial court’s discretion can seldom be reviewed by this court, because it can seldom be shown either that power was abused or that prejudice resulted. Like a scene viewed by the jury or the demeanor of a witness while testifying, the matter can not be presented to this court in such a way that it is authorized to substitute its judgment for that of the district court. Should it be admitted that the evidence was weak or inconclusive or worthless, the presumption would be that the jury appreciated the fact and gave it no more weight than it was entitled to receive.
Substantially the foregoing conclusions respecting the- authority of the trial court and the attitude of this court toward an exercise of such authority were reached in the case of Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, in which it was said:
•“While in. most cases evidence of family resemblance by view and comparison of the jury is of little value in proof of parentage, yet it has often been held admissible where the child has attained an age when its features have assumed some degree of maturity and permanency. Where the child is a young infant, it has been held best not to exhibit it to the jury. Much must be left to the discretion of the trial court, however, as to the proper age, and we would not feel warranted in a reversal of the judgment in this case on account of the child’s appearance before the jury.” (p. 48.)
Whenever the child is exhibited to the jury as proof of paternity counsel are at liberty to discuss the subject.
The j udgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
In a petition for rehearing counsel for the defendant insist that the court was in error both in the opinion and in the syllabus in its statement to the effect that Wickham was doing business in the name of the Wickham Grain Company, instead of saying that the company itself was doing such business and that the company itself executed the mortgage in question. There was evidence tending to support counsel’s contention, but J. F. Ollinger testified, among other things, that he “sold automobile to Harry Wickham for $1500.00, paid part cash and gave mortgage for balance.” C. B. Kirtland, one of the defendant’s witnesses, testified: “Was acquainted with H. W. Wickham; he did business at the Traders State Bank; am familiar with his hand writing; witness shown Mortgage marked ‘Exhibit D’ and states that the signature thereto is in the hand writing of H. W. Wickham; witness shown paper marked ‘Exhibit E’ and states that the signatures thereto are in the hand writing of H. W. Wickham. That there is still due the bank on ‘Exhibit E’ something over $7000.00. Took automobile under mortgage and sold for $600.00 and the balance of Wickham debt (italics ours) was made good to the Bank by the stock holders.” It appears from the abstract that on the back of the note was indorsed a statement closing and signed as follows:
“It is understood that the profits of this business are subject to withdrawal for incidental expenses after 25 cts. per hundred has been deducted as a sinking fund guarantee. H. W. Wickham.”
The county assessor testified that the tax statement from the Wickham Grain Company in 1912 was signed and sworn to by H. W. Wickham, and the city clerk testified that H. W. Wickham applied to him personally for license for the car and told him to register the car in the name of the Wickham Grain Company.
C. B. Kirtland testified further:
“Went into the Traders State Bank in September or October, 1910; there was an account carried by the Wickham Grain Company and also one carried by the Western Brokerage Company. H. W. Wickham 'had charge of both accounts; he was president of both companies. And signed all checks and made all deposits.”
Mrs. Wickham testified:
“There was no Wickham Grain Company, there was a blue sky Wick-ham Grain Company. My husband was the The Wickham Grain Company.”
C. B. Kirtland testified that Wickham was the.president of the Wickham Grain Company and said that he was “the whole company so far as I could tell.” The court instructed the jury that if they found that Wickham was the owner of the car at the time of the execution of the mortgage and that it was exempt, the mortgage would be void because not signed by the wife. The verdict was in favor of the plaintiff, the jury thereby finding in effect that Wickham was doing the business which was ostensibly that of the Wickham Grain Company and that he owned the automobile, which conclusions were supported by the evidence already referred to.
Criticism is made of an expression in the opinion, “For which company a charter was at one time procured, but it never perfected its organization.” (Wickham v. Bank, 95 Kan. 657, 658, 149 Pac. 433.) The counter-abstract contains the following statement:
“There was no evidence offered that proved or tended to prove that The Wickham Grain Company ever had a business existence or ever transacted any business, or ever progressed farther than to file a charter.”
True, the “additional abstract” of the appellants contains a statement that “Exhibit L” was introduced in evidence “and shows, that between October 29, 1910, and July 16, 1912, the amount of business transacted by the Wickham Grain Company amounted to about $600,000.00,” but .under the statute (Gen. Stat. 1909, § 1709) this company, whose charter was granted February 15, 1911, had no right to begin business until it had filed with the secretary of state the required affidavit that not less than twenty per cent of its authorized capital had been paid in actual cash or property equivalent thereto accompanied by a schedule of such property, and under section 1729 if it failed to begin operations within one year it became dissolved by operation of law. The car was purchased by Wick-ham several months before the charter was issued, and the note and mortgage were executed April 26, 1912, more than one year after the charter was taken out. Of course, under ordinary circumstances, in the absence of anything tending to show a mere nominal corporation the introduction of a charter would be sufficient to show corporate existence, but in view of the statement referred to in the counter-abstract, the testimony in the case and all the circumstances and transactions shown this court, like the jury and the trial court, was and is convinced that Wickham was using for the transaction of his business the name of á mere paper concern having no legal substantial existence. It follows therefore that the contention of counsel that Wickham mortgaged the car merely as agent, and manager of the corporation does not appear to be justified by the facts.
It is suggested in the petition for rehearing that the question, ought to be fully decided whether or not the wife under the-exemption laws has any greater right to exempt property than the husband, and whether or not when he is estopped by his. own representations as to title she is not also estopped. In the former opinion it was said:
“If the car was exempt the husband had no right to mortgage it, the-mortgage was void and it did not deprive the wife of her interest in it. and neither could the husband’s representations as to its ownership impair her rights.” (p. 659.)
We know of no way to decide the question more clearly-than we have done by the language quoted.
The question is further asked why Wogan v. Sivey, 95 Kan. 774, 149 Pac. 411, does not settle this case. The question there was between mortgagees and not one involving the wife’s right to exempt personal property.
Because certain cited authorities were not expressly mentioned in the opinion counsel assume that they were not considered. It may be said that with all the consultation and consideration given to a case by this court it is frequently, if not generally, true that not only the authorities cited by counsel for both sides, but very many more found by the court are examined. However, it is not usually deemed necessary to mention all the cases cited or found or to call attention to the fact that they have been examined. Assiduous and conscientious efforts are made with all the means within our power to reagh proper conclusions, and not only oral arguments but briefs of counsel, with the quoted and cited text and decisions, are welcomed and are availed of to the fullest extent in the attempt to do justice and declare the law correctly.
Having again considered this case and finding no cause to change the former decision it is adhered to and the motion for rehearing is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in the district court of Leavenworth county brought by Lulu Perkins, widow of Louis Perkins, to recover on an accident-insurance policy for $750 issued by the defendant. Plaintiff’s petition alleged that Louis Perkins, who was the holder of an accident policy issued by the defendant, “died on March 24, 1912, as a result of a wound received through external, violent and purely accidental means, to-wit: the accidental and unintentional discharge of a pistol, and that by the terms of said policy said defendant became indebted to said plaintiff, now his widow, in the sum of $750.”
Defendant’s answer was: first, a general denial; second, “For second and further defense to said petition defendant alleges that the assured, Louis Perkins, committed suicide and died by his own hand, by his own voluntary act, by shooting himself with a gun or pistol, and that his death did not result from, nor was it caused by a wound received through external, violent and purely accidental means, nor by or from any cause or causes, or from any accidental means that are within any of the terms of the policy set forth in the petition.”
A jury was waived, and on the evidence adduced the court in part found:
“And the Court finds for the plaintiff and against the defendant, and finds that the death of the insured, Louis Perkins, resulted from and was caused by intentionally self-inflicted injuries within the exceptions noted in the accident policy, sued on, and that defendant is indebted to the plaintiff in the sum of one dollar as stipulated in said policy, and is entitled to a judgment against the defendant for said sum and costs.”
Two specifications of error are assigned:
1. That the judgment should have been for $750 instead of one dollar and costs. 2. Error in overruling plaintiff’s motion for a new trial.
1. The first error assigned could only be the basis of a reversal if there was no substantial evidence upon which the trial court’s finding was based. The appellant contends that there is a presumption that a rational person will not commit self-destruction, and that this presumption must be overcome by evidence. This is settled law. (Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996; Knights Templars Indem. Co. v. Crayton, 209 Ill. 550, 70 N. E. 1066; Stephenson v. Bankers Life Assn., 108 Iowa, 687, 79 N. W. 459; Union Casualty & Surety Co. v. Goddard, 25 Ky. Law Rep. 1035, 76 S. W. 832; Stevens v. Continental Casualty Co., 12 N. Dak. 463, 97 N. W. 862.) But there was evidence which, in the opinion of the district court, was sufficient to overcome that presumption and to base a finding of suicide. It can avail naught that this court might think the evidence rather meager to warrant that conclusion. This was a case where judges might entertain an honest difference of opinion, but the determination of the facts was strictly within the province of the trial court, and its finding is conclusive. (Heath v. Life Association, 89 Kan. 634, 132 Pac. 147.)
In Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542, it was said:
“Counsel for plaintiff in error contend that the court below erred in its view of the evidence. We ourselves could wish it more strong-ly preponderating in favor of defendant in error. . . . The ordinary rule for us is that when a case has been tried in the court below without a jury and there is some testimony in proof of every fact necessary to sustain the general finding, the finding will be upheld without undertaking to review the evidence. (Wood v. Davis, 12 Kan. 575.)” (p. 28.)
2. It is suggested by appellee that this appeal should be dismissed because the motion for a new trial was not filed in time. The judgment of the district court was rendered on April 12, 1914. The motion for a new trial was filed April 28, 1914. This motion was filed.too late. (Civ. Code, §306; Harder v. Power Co., 93 Kan. 177, 148 Pac. 603.) Of course, on an issue of law no motion for a new trial is necessary. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718.) So too where the judgment is based upon the ascertained and undisputed facts a motion for a new trial is unnecessary, for in such case the sole question is the application of the law to established facts. (Filter Co. v. Bottling Co., 89 Kan. 645, 132 Pac. 180.) Ordinarily the failure to file a motion for a new trial does not authorize a dismissal. It merely restricts the scope of the review.
No reversible error appearing, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Martin, C. J. :
About 6 o’clock on the evening of November 6, 1890, as it ivas getting dark, the plaintiff, M. B. Young, a married lady of the age of 23 years, was injured at a crossing of the defendant’s railway coming into McPherson. Her home was about eight miles northeast of town, and she left there near 5 o’clock, driving alone in a one-horse buggy, the top being down. The tracks of the Atchison, Topeka & Santa Pe railroad and the defendant’s railroad are about 75 to 100 feet apart at this point. She testified that she crossed the Santa Fe track and knew that the Rock Island train was about due, and when between the two tracks she looked and listened three or four times for the Rock Island train, and the last time, when about 10 or 15 feet from the track, she stopped and looked and listened for the train, but she did not see or hear it, although she saw the whistling-post on the side of the track 80 rods away. She stated that she was driving in a slow walk, not as much as three or four miles an hour, but the horse and buggy were struck by the train, although she had not seen it at all. There was evidence that no whistle was sounded or bell rung for the crossing, and that the train was running 30 to 45 miles per hour, with the headlight burning. The court sustained a demurrer to the plaintiff’s evidence, upon the ground, we suppose, of the' contributory negligence of the plaintiff, there having been abundant evidence to establish prima facie the negligence of the defendant. It is earnestly contended that the case should have been submitted to the jury as to whether or not the plaintiff was guilty of contributory negligence.
The case must be decided upon the plaintiff’s own evidence, no other having been given as to what she actually did. There was a board fence five feet high between the Santa Fe and the Rock Island tracks, but this could have been no obstruction to the vision when she was within 10 or 15 feet of the Rock Island track, if, indeed, it could be any practical obstruction, from any point of view, to obscure the sight of a train. She testified that she looked along the track for a quarter of a mile to the whistling-post, but saw no train approaching. If she looked in the direction of the train, as she testifies, and saw the whistling-post, it would seem that she must have seen the train, and she had ample time to get across the track or to turn back before it arrived at the crossing, even if her horse was going only two miles while the train was running 45 miles per hour. No doubt the trial court was forced to the conclusion, either that she did not look and listen as the law requires, or that, having looked and listened, she saw the train, or ought to have seen it, in time to have avoided the injury. If by reason of the twilight the train itself was not visible as far as it would be at midday, still the headlight might have been seen for a long distance; but she testifies that she looked along the track and saw nothing at all. This is not a case of conflicting testimony, and we must accept the same view entertained by the court below, namely, that upon the plaintiff’s own evidence she must have been guilty of contributory negligence. If several minds might reasonably arrive at different conclusions respecting the question of reasonable care of the plaintiff in crossing the track, then the case ought to have been submitted to the jury, but this is not such a case.
In Artz v. C. R. I. & P. Rld. Co., 34 Iowa, 153, 159, the court says:
“It is urged by the appellee’s counsel that the plaintiff testifies that he did both look and listen to see and hear the train, but did not; and that this testimony shows that he was not guilty of contributory negligence, or, at the very least, it made that a question of fact for the jury. The difficulty, however, with the position is, that the conceded or undisputed facts being true, this testimony cannot, in the very nature of things, be also true. It constitutes, therefore, no conflict.”
In C. C. C. & I. Rly. Co. v. Elliott, 28 Ohio St. 340, 355, the court says :
“ It is nothing to the purpose that he should say he looked this way and that, when the object he seeks to discover is plainly and palpably before him, and he fails to see it. Either his statement is not true, or his exercise of vision was such as to be not only negligent but culpable.”
In Chicago & E. I. Rly. Co. v. Hedges, Admr., 118 Ind. 5, 11, the court says :
‘ ‘ The law presumes that one having the ordinary sense of sight must have seen that which was within the range of his vision, if he gave attention and looked, and if he saw the train approaching and pursued his way notwithstanding, he is to be regarded as taking the risk upon himself.”
See, also, Kelsay v. Mo. Pac. Rly. Co., 129 Mo. 362; Roach v. St. J. & I. Rld. Co., 55 Kan. 654, 659, and cases cited. In the last-named case the writer dissented, being of opinion that the question of contributory negligence should have been submitted to the jury; but there the driver of the team was killed, and the evidence was not entirely clear as to the circumstances under which he drove upon the track. In this case, however, we have the testimony of the plaintiff herself, from which it appears that she was guilty of negligence contributing to her own injury. No presumption arises in her favor, as in A. T. & S. F. Rld. Co. v. Hill, ante, p. 139.
The judgment of the district court must therefore be affirmed.
C. R. Young was the husband of M. B. Young, and the ©wner of the horse and buggy which she was driving. He commenced his action to recover damages for the killing of the horse and the injury to the vehicle, and also for loss of services of his wife. The evidence in both cases was submitted together, and the demurrer to the evidence was sustained in this case also, and, upon the principles announced in the foregoing opinion, the judgment in this case must likewise be affirmed.
All the Justices concurring. | [
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Martin, C. J.
On January 5, 1892, the plaintiff, a boy 10 years of age, was scalded and badly injured by falling into a barrel partly full of hot water formed by the exhaust steam from the engine used as a motive power for the defendant’s elevator at Kansas City, Kansas. On January 18, 1892, he commenced his action to recover damages in the sum of $15,000 on account of said injury. The defenses were a general denial and a plea of contributory negligence, which latter was put in issue by the reply of the plaintiff. The case was called for trial on June 14,1892, and the plaintiff introduced his evidence, to which the defendant demurred, and the demurrer was sustained and the jury discharged. The plaintiff’s motion for a new-trial was overruled October 15, 1892. Exceptions were duly taken to the rulings of the Court, and the case is now here for review.
The evidence tended to show the following facts : The Elevator Company occupies a strip of ground about a quarter of a mile in length east and west, and about 60 feet in width north and south. There are railroad tracks on each side of the elevator, and the engine house and the office are separate buildings varying in distance from about 35 to 75 feet from the east end of the elevator. A boxed-in shaft about three feet from the ground transmits the power from the engine to the elevator, crossing the vacant space between the buildings-. The exhaust-steam barrel was sunk in. the ground so that its top was level with the surface and close to the elevator. The pipe led into the barrel just beneath the top, and the only covering of this barrel was either the original heading or something of the same shape and character, which lay loose on top. On each corner of the elevator building a sign was nailed about 14 feet from the ground with the words “Danger, Keep Away!” There was no guard or railing about the barrel, and no special warning of danger in reference to it. There was more or less passing of employees and others from the elevator to the engine house and the office, and some persons crossed the ground north and south, stooping to go under the boxed-in power shaft. There was no well-defined path north and south, but there was no obstruction in that respect except the shaft and its boxing. The neighborhood of the elevator was dangerous on account of the frequent movement of cars on either side. The plaintiff had been making his home for a week or two with John McQuillan, who, for a consideration paid by him to the Elevator Company, had the privilege of sweeping out the grain cars after they had been -unloaded and obtaining the grain procured from the sweepings. The work was done mostly by two or three boys employed by McQuillan, including the plaintiff who worked for his board. The sweeping was done mostly east of the elevator on both sides and opposite the vacant space between it and the engine house and the office. The plaintiff and the other boys were forbidden by McQuillan from going into the office and the engine house, but were not warned about the exhaust-steam barrel, and the plaintiff never noticed it until the day of his injury. Hé and Walter Freeman, another' boy, had been sweeping cars all day, and McQuillan had gone to his house for a lantern because it was necessary to continue work after dark. They got through with a car on the north side and were next to work on the south side, and McQuillan told them to remain until he came back. The day was cold, and shortly after he left, a little girl about eight years old told the plaintiff that the barrel was a good place to warm his feet. He noticed a little steam coming out of the top of the barrel, and he and Walter Freeman went toward it — the little girl going away. The plaintiff stepped upon the cover, which tipped up and he fell into the barrel with both feet. Walter Freeman helped him out and they went to McQuillan’s house. The plaintiff was so badly scalded that the skin nearly all came off both legs from the knees to the ankles, as also some of the flesh. He was afterward taken to a hospital where the process of skin grafting was commenced; but at' the time of the trial only partial progress had been made and he was unable to stand on his feet, and he will always be at least partially disabled.
If in the foregoing there was any evidence from which a jury would have a right to infer negligence of the defendant toward the plaintiff in maintaining the steam-exhaust barrel in that particular place and condition, then the case ought to have been submitted to the jury, unless contributory negligence of the plaintiff was also conclusively shown thereby. U. P. Rly. Co. v. Rollins, 5 Kan. 167, 181; Caulkins v. Mathews, 5 id. 191; St. L. & S. F. Rly. Co. v. Richardson, 47 id. 517, 519. The maxim sic utere tuo ut alienum non Isedas has been applied in a great variety of cases, and persons and corporations have often been held liable for the use or exposure of their own property in such manner as to produce injury to the person or property of another. The exposure of dangerous implements or machinery unguarded and in such a position as to be attractive to trespassing children has frequently been the sole ground of liability for injuries to them. To this class belong the cases of K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686; U. P. Rly. Co. v. Dunden, 37 id. 1, and Osage City v. Larkin, 40 id. 206. Another class of cases more nearly allied to the present one is where traps or pitfalls are maintained on one’s premises unguarded and in such position that others are liable to be injured thereby, as in Penso v. McCormick, 125 Ind. 116; Bennett v. Railroad Co., 102 U. S. 577; Bransom’s Adm’r v. Labrot, 81 Ky. 638; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Schilling v. Abernethy, 112 id. 437, and U. P. Rly. Co v. McDonald, 152 U. S. 262. In the case last cited a boy was injured by running into a slack-pit not apparently dangerous on its surface but composed of live embers underneath. The statute of Colorado required such places to be fenced ; but the Court, through Justice Harlan delivering its opinion, discussed the general ground of liability in such cases without regard to any statute, and we are led to believe that the judgment in favor of the boy would have been affirmed even had there been no statutory duty imposed upon the railwmy company.
In the case of Hydraulic Works Co.v. Orr, supra, the Court thus lays down the rule :
“While it is time, in general, that where no duty is owed no liability arises, this rule varies with circumstances, and where, therefore, an owner has reason to apprehend danger from the peculiar situation of his property and its openness to accident, the question of duty then becomes one for a jury, to be deter mined upon all its facts of the probability of danger and the grossness of the act of imputed negligence.”
In the foregoing cases the plaintiffs were either trespassers or had no more right to be where they were than the plaintiff in this case had to be at the barrel. The plaintiff was employed by the licensee of the defendant, and he had the same right as his employer to be on the premises while engaged at his work. Powers v. Harlow, 53 Mich. 507. The defendant should have known that McQuillan employed boys to assist in sweeping the cars, for they had been so engaged for months past. In Powers v. Harlow, supra, it was held that “a license to come upon one’s premises, especially if in the licensor’s interest, imposes upon him the duty to warn those who come, of any danger in coming of which he knows or ought to know and they do not.”
The barrel had two elements of attractivness in the winter time, namely, the issuing steam and the heat. And with its defective head or cover level with the •surface of the ground and ready to fall upon being touched, it was in the nature of a trap or pitfall.
The cases cited by counsel for defendant are not inconsistent with the foregoing. In Brinkley Car Co. v. Cooper, 60 Ark. 545, it was held that in an action by a child against the owner of land for injuries received by.walking into a pool of hot water and being scalded, the jury should be directed in determining defendant’s liability to consider whether the condition and situation of the pool were such that defendant, as a reasonable man, ought to have known that children of the age of plaintiff would probably be attracted to it, and would receive such injuries as plaintiff did receive. The judgment was reversed on account of misdirection to the jury. In Schmidt v. K. C. Distilling Co., 90 Mo. 284, there was no avennent showing that the place where the child lost her life was attractive to children, or that, to the knowledge of the defendant, children were in the habit of resorting to it for amusement or otherwise; and on a rehearing the case was remanded for another trial so as to allow such amendments to be made. In the case under consideration averments were made fully covering these points, and it was further alleged that this barrel as maintained was a dangerous trap. In Birge v. Gardner, 19 Conn. 507, a recovery by the plaintiff was sustained. In Witte v. Stifel, 126 Mo. 295, a recovery by the plaintiff was reversed, but it was a case so unlike the present one that we need not further consider it. We think it ought to have been submitted as a question of fact for the jury to determine upon the evidence whether the defendant was guilty of negligence or not in placing the barrel in that position and in maintaining it with such an insecure cover; and also, whether or not, considering the age and capabilities of the plaintiff, he was guilty of contributory negligence in stepping upon the cover.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Johnston, J.
This is an action brought by the State of Kansas, on the relation of the County Attorney, against the City of Emporia, its Mayor, City Clerk, City Treasurer, and the Councilmen of said city, to restrain them from transferring a certain fund, raised by taxation for the erection of a city building, to the general fund, and the disbursement of the same for purposes other than the erection of a city building.
On August 19, 1895, an ordinance was duly enacted levying a tax of two and one-half mills on the dollar on all property within the city for the purpose of raising a building-fund, which it was provided should be “used only for the erection of a city building.” In pursuance of the ordinance the tax was levied and extended on the tax-roll, and the amount collected was $5,900, which has since been carried on the treasurer’s books and known as the “building-fund.” No steps were taken by the mayor and council for erecting a building, although it is conceded that the City of Emporia has no adequate city building and is compelled to rent rooms for its officers. In July, 1896, the Mayor and Council undertook to transfer the money derived from' the levy to the general fund; and, to that end, submitted to the electors of the city the question whether such transfer should be made. At the election 287 votes were cast in favor of the proposition and .228 votes against it. Emporia is a city of the second class, and has a population of about 9,000, and the usual vote in the city is about 2,000. When the action was begun, a temporary restraining order was issued, requiring the defendants to refrain from transferring the fund, or from paying out any portion, of it for any purpose other than the erection of a city building. At a hearing subsequently had, a temporary injunction was denied; and of this ruling the plaintiff complains.
We think the transfer would have been an improper diversion of the public moneys. The City exists under a general law of the State, and the tax for the erection of a city building was levied under an ordinance passed in pursuance of a general law. The authority for the erection of city buildings and the provision of a fund for that purpose is explicit and unquestioned. ¶ 813, Gen. Stat. 1889. The transfer of the building fund derived from the levy to the general fund, with or without a vote of the electors, would be a direct violation of section 4, article 11, of the State Constitution, which provides that “no tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same ; to which object only such tax shall be applied.” Graham, State Treasurer, v. Horton, 6 Kan. 343; The State, ex rel., v. Comm’rs of Marion Co., 21 id. 419; National Bank v. Barber, Treas., etc., 24 id. 534. The tax was levied in pursuance of a State law, supplemented by a local law of the city, and for a specific object; and even the ordinance making the levy provided that the fund derived from the tax should “be used only for the erection of a city building.” The transfer of the building fund to the general fund would be a clear misapplication, a diversion to a wholly different ob ject. The general fund is provided to meet the current expenses of the city, while the erection of a permanent building is an extraordinary and exceptional expense, and is not intended to be covered by the general fund. The State, ex rel., v. Comm’rs of Marion Co., supra. The levy for the public building was independent of, and additional to, that made for general purposes; and, as to the latter, there is an express limitation. ¶ 796, Gen. Stat. 1889. A transfer of the building fund to the general fund by the city officers, if permitted, would make_ it possible for them to wholly defeat the limitation of the statute. If that were allowed, the officers, after levying up to the full limit of the law for general purposes, could transfer into the general fund a fund’ levied and provided for another purpose, and thus destroy the limitation and thwart the legislative will. No reason is seen why funds derived from municipal taxation are not protected, to the same extent as any other, by the constitutional limitation prohibiting the application of such funds to purposes other than those for which they were levied. They are raised by legislative authority, and constitute a large part of the taxes levied and collected within the State. The constitutional provision was designed to prevent the misapplication of all taxes levied in pursuance of law; and it is easy to understand that taxes levied by city councils' need the same protection, and as many safeguards, as other taxes, levied by county commissioners or other officers.
We think the injunction should have been granted, and therefore 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.
It is earnestly contended that the testimony does not sustain the verdict and judgment, but, as the record fails to affirmatively show that all the testimony is preserved, that question is not open for examination. No statement is found in the case-made to the effect that it contains all the evidence; and although it is claimed that the recitals at the opening and closing of the testimony for each party furnished an equivalent of the statement, there are several breaks in the continuity of the testimony, so we cannot say that other witnesses were not examined or other testimony may not have been received. It cannot be presumed that all the evidence is preserved. That fact must affirmatively appear from a fair construction of the record. Moody v. Arthur, 16 Kan. 419; Greenwood v. Bean, 20 id. 240; Winstead v. Standeford, 21 id. 270.
Willig testified that he was not informed about the $17,000 mortgage, and had no knowledge of its existence until he went to the Lombard Investment Company in the early part of April, 1891. He states that he went there with a view of making an interest payment on the mortgage debt against the lots, and that he was then told of the existence of the mortgage and that payments could only be made as the mortgage stipulated. He did not then nor at any time afterward offer to pay the $1,216.65 mortgage debt that was mentioned in the. deed and which he had assumed as a part of the consideration for- the lots. On the other hand, Ferguson testifies that he explained to him the character of the incumbrance, and the manner in which a lot could be released by paying a proportionate share of the mortgage debt, substantially as the release in the mortgage provides. The contract for the exchange of properties provided that Ferguson should furnish to Willig an abstract of title. This was furnished, and upon its face it showed the $17,000 mortgage. Other witnesses testified that Willig examined the abstract, and spoke of the $17,000 mortgage and the manner in which lots could be released from its obligation. The mortgage itself, containing the release clause, was of record; and appended to the mortgage was the appraisement of the property, by 'which it appears that the proportionate share of the mortgage debt against the lots in controversy was exactly the amount of mortgage debt assumed by Willig and mentioned in the conveyance to him. There was testimony, too, from the managers of the Lombard Investment Company that Willig had never proposed to pay his share of the mortgage debt, and that if he had tendered the same it would have been accepted and the lots would have been released from the mortgage. In this state of testimony an instruction was given that “the burden of proof is upon the plaintiff in this action, and he must make out his case by the preponderance of the evidence ; but where the defendant attempts to show knowledge by plaintiff of the existence of the $17,000 mortgage he must show this by the greater weight or preponderance of the evidence. ’ ’ In this we think th ere was error. The plaintiff asked a rescission on account of misrepresentation and concealment concerning the $17,000 mortgage. It was the principal fact in the case, and the burden of proving it was upon him. He avers and insists that the character and amount of the mortgage were misstated to or withheld from him by the defendant below. If he was correctly informed, as much of the evidence tends to show, he has failed to support the main fact in the case and the one which is essential to a recovery. The alleged fraud depended upon whether he was informed or misinformed about this mortgage ; and this fact was necessarily involved in the issue which he tendered. He held the affirmative of the issue, and if no proof had been offered to sustain it his action must have failed. He who alleges that a transaction is fraudulent takes upon himself the burden of proving every necessary element of the fraud. If the defendant conceded the misrepresentation, and claimed that the plaintiff had full knowledge of the fraud and had therefore acquiesced in or waived it, it might well be argued that the burden of showing the knowledge would rest upon the defendant. In this case, however, the misrepresentations constitute the fraud relied upon by the plaintiff; and the matter of whether he was misinformed and deceived is an essential feature of his case. The mortgage itself was a matter of public record and revealed its own character. He had possession of an abstract which pointed ■out the existence of the mortgage ; and in view of the nature of the action and the issue which he tendered, the burden of showing the deception or that he was without knowledge of the mortgage was upon him.
Other objections are argued, some of which might be deemed to be serious if we could say that all the -evidence in the case was before us, but owing to the -condition of the record we will not undertake to con.sider or decide them.
For the error 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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Martin, C. J.
This case originated in the District Court of Jackson County. It was ejectment brought by A. D. Walker and James H. Lowell against John C. Douglass and Hattie R. Douglass to recover an 80-acre tract of land and damages for its use and occupation.. The plaintiffs below relied on two tax deeds covering the same tract — the first being based on the taxesfor 1885, and the second on the taxes for 1886,1887 and 1888. The Court made conclusions of fact and of law, but the evidence is not preserved in the record. The conclusions of law were as follows :
“ 1. The tax deed issued upon the sale for the taxes of 1885 is invalid, because there was included in such taxes a township road tax levied in 1884, under the 8th subdivision of section 22,- chapter 110, Compiled Laws of 1879 and carried over to and added to the taxes of 1885, such road tax being illegal because the said subdivision of section 22 was unconstitutional.
“2. The tax deed issued upon the sale for the taxes of 1886 is invalid because a township road tax, levied in 1885, was not collected as other taxes levied for that year, but was carried over to 1886 and constituted a part of the taxes for which the land was sold in the latter year.
“ 3. There should be a judgment for the defendants that they are the owners of the lands and for costs.”
Judgment was rendered accordingly in favor of the defendants below. The Court of Appeals sustained the view of the court below as to the first tax deed, but reversed the judgment as to the second; holding that the reason stated in the second conclusion of law was insufficient to avoid it. No mention is made of the third conclusion of law, nor of any of the conclusions of fact except those covered by the first and second conclusions of law. 2 Kan. App. 706.
I. It is argued by the defendants in error here that the Court of Appeals was justified in ignoring the third conclusion of law, and in considering only the specific reasons assigned by the court below for the invalidity of the two tax deeds. This contention cannot be sustained. Each conclusion of law is separate and independent; and the third conclusion was broad enough to cover any of the conclusions of fact by which it was supported. In Blanchard v. Hatcher, 40 Kan. 350, 352, the only conclusion of law was that “ the defendant in error ought to recover costs ” ; and yet this Court reversed the judgment on the ground that this conclusion of law was not justified by the conclusions of fact. Certainly if a judgment of reArersal is proper when the conclusions of fact do not justify such a conclusion of law, a reviewing court should not hesitate to affirm a judgment when such conclusion of law is properly drawn from the conclusions of fact.
II. The eighth conclusion of fact was as follows :
1 ‘ The printer who printed the delinquent tax-lists for the taxes of the years 1885 and 1886 did not within 14 days after said publications were last made or at any time thereafter transmit to the treasurer an affidavit of such publication, but such affidavit of publication was in each instance transmitted directly by the printer to and filed in the office of the county clerk of said county within 14 days after the last publication by said printer; and in each case his fee of 25 cents was included in the sum charged against said lands as costs and for which the land was sold.”
Under the construction given by this Court to section 108 of the Tax Law’ (¶ 6957, Gen. Stat. 1889), both the tax deeds were voidable. Fox v. Cross, 39 Kan. 350; Blanchard v. Hatcher, supra; Jackson v. Challiss, 41 id. 247, 257. The transmission of the affidavit of publication to the County Clerk within the time required by law to transmit it to the County Treasurer was not a compliance with said section 108, and did not justify the * Treasurer m selling the land for a lince including the 25 cents charged for the fee of the printer. In proceedings for the enforcement of tax liens upon real estate nothing can be considered an irregularity cured by section 139 of the Tax Law (¶ 6993, Gen. Stat. 1889), which substantially and intentionally increases the charge for which the land is sold. Genthner v. Lewis, 24 Kan. 309; Hapgood v. Morten, 28 id. 764, 767; Harris v. Curran, 32 id. 581, 588; Ireland v. George, 41 id. 751, 755. The fact that under section 121 of the tax law (¶ 6970, Gen. Stat. 1889) the County Cleric is the ultimate custodian of the affidavit of publication, together with all affidavits, notices and papers referring to the tax sale, does not dispense with the requirement of section 108 ; for unless the printer’s affidavit be transmitted to the County Treasurer within the time required by law he is not authorized to include the advertising fee in the tax sale. The amount’of the charge upon the land is not affected by the filing of the Treasurer’s affidavit with the Cleric, and the omission to file it may therefore be treated as an irregularity only under section 139. Stout v. Coates, 35 Kan. 382, 385. The failure of the printer, however, to transmit his affidavit to the proper officer in due time materially affects the legal charge upon the land, and therefore cannot be treated as a mere irregularity.
The judgment of the Court of Appeals must therefore be reversed, and the judgment of the District Court in all things affirmed.
All the Justices concurring. | [
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Doster, C. J.
This suit is upon negotiable promissory notes, executed by the defendant in error to one S. J. Rice, and by him indorsed and delivered, before their maturity, to the plaintiff in error, which instituted the action thereon. An answer was filed, alleging that the notes had been given to Rice in part payment for land ; that the consideration therefor had failed ; that an action had been instituted against Rice to recover a cash payment upon the land; that judgment had been rendered against him therefor ; that plaintiff knew of the failure of consideration of such, notes before it acquired them, and was not a bona fide holder of the same, but had entered into a conspiracy with Rice to take such notes, and, pretending to be the owner therepf, to bring suit thereon ; that for the purpose of harassing the defendant and injuring him in his business, and in pursuance of such conspiracy, it had instituted action upon such notes ; for doing which, the defendant demanded damages as upon a counter-claim. In reply to this answer a general denial was filed.
On the trial the plaintiff objected to any evidence in support of the counter-claim, for the reason that such counter-claim did not arise out of the contract or transaction set forth in the petition, and did not exist at the time of the commencement of the suit. This objection was overruled ; and a verdict was returned and judgment was rendered against the plaintiff on the counter-claim..
The plaintiff's objection should have been sustained. In the case of the Kansas Loan & Investment Co. v. Hutto et al., 48 Kan. 166, this Court held:
‘‘ Where an action is brought to recover damages for the removal of a house from real estate upon which the plaintiff claims a mortgage, and the defendants answer by a general denial, and also set up a counterclaim, alleging that they have been prevented from making a loan by reason of the bringing of such action, and have been thereby damaged, and the plaintiff fails to reply or appear when the case is set for trial, it is error for the trial court to render judgment in favor of the defendants and against the plaintiff upon such answer, for the reason it does not state facts sufficient to constitute a counter-claim or cause-of action for affirmative relief.”
In the opinion, page 167, it is said:
“It is argued that the answer did not state facts sufficient to constitute a counter-claim or a cause of action for affirmative relief. It is urged that the liability alleged in the counter-claim shows upon the face of the answer that it did not exist at the time the action was brought, but if there were any liability, it arose subsequently, and as a consequence of the action; that the defendant’s claim for damages did not arise out of the transaction set forth in the petition, and had no connection with it, as required by section 95 of the Code.”
The contention thus stated was held to be well founded.
In the case under consideration, the defendant’s right of cross-action had no existence until the bringing of the suit against him. The right to maintain the same arose only as a consequence of the institution of the plaintiff’s suit. It did not, therefore, in the language of the Code, “arise out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim.”
The defendant’s counsel endeavors to shift the ground of contention, by claiming that his pleading is in the nature of an off-set of damages growing out of .the conspiracy between the plaintiff and Rice. Admit the conspiracy as alleged, yet such conspiracy could become effectual only through the bringing of the suit. As long as such conspiracy existed in intent only, it could not be harmful. It was the act of bringing the suit, not the conspiracy to bring it, which was harmful. Until the intent culminated in the act, no legal wrong was done. The case of Green v. Dunn, 5 Kan. 254, is cited by defendant’s counsel as supporting his right to counter-claim damages for the bringing of the suit. It does not do so, however. In that case the plaintiff filed an amended petition setting up a cause of action which accrued subsequently to the filing of the original petition. The de fendant raised no objection in the court below to a consideration of the matters set forth in the amended petition, but took issue thereon. It was held that by so doing he had waived his rights, and could not be heard in the Supreme Court, for the first time, to object that the cause of action set up in the amended petition was prematurely brought. In this case, the plaintiff objected to the reception of any evidence under the answer in counter-claim, “on the ground and for the reason that the same does not state facts sufficient to constitute a cause of action in favor of the defendant, and against the plaintiff.” This was amply sufficient to raise the question.
Certain other objections, to specific portions of evidence, were made by plaintiff and overruled ; but the questions raised are appendant to the one above discussed, and therefore need not be noticed, further than to say that they should have been decided as the principal one has herein been determined.
It was also objected that no evidence of a lack of bona fides upon the part of the plaintiff in acquiring the notes in suit had been shown ; and, upon the part of the defendant, it is urged that the evidence shows that the notes, if really negotiated to the bank by Mr. Rice, had been transferred as collateral security for an obligation held by it against him, but which he had discharged before the institution of'this suit. It is not necessary, however, to examine the evidence to determine either of these contentions. Their determination would in nowise assist in the new trial, which, for the error pointed out, must be had.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
It is insisted on behalf of the city that there was not sufficient evidence to support the verdict in this case. The witnesses do not all agree as to the condition in which the street was left on the evening the plaintiff was injured, but there is testimony showing that there were piles of stone extending diagonally across the street, and that most of the travel was off the macadamized part of the street on the dirt. The strongest evidence in favor of the plaintiff is to the effect that it was impracticable to drive on the macadam, and that it was necessary to go to the side. It was clearly shown that the night was dark, and that no lights were placed at this point at the time, nor were there any barriers to warn a person approaching of danger. We think there is evidence tending to show that the work was being carried on in a negligent manner, and that the street was in a dangerous condition. The question of fact, so far as there is dispute in the evidence, has been resolved by the jury in the plaintiff’s favor.
The principal question of law presented is whether the negligence of the driver, if he was negligent, should be imputed to the plaintiff and held to bar her recovery. The court instructed the j ury that if the driver had sole charge of the vehicle, and she had no control over him, his negligence could not be imputed to her and would not bar her recovery. Counsel for plaintiff in error cite in support of their position the case of Prideaux v. City of Mineral Point, 43 Wis. 513; Slater v. Burlington, C. R. & N. Rly. Co., 71 Iowa, 209; Morris v. Chicago, M. & St. P. R. Co., 26 Fed. Rep. 22. These cases, it must be conceded, give some countenance to the contention of the plaintiff in error, but, so far as they do, we think they are in conflict with the current of decisions on the question. (Tompkins v. Clay Street Rld. Co., 66 Cal. 163; Danville, L. & N. T. R. Co. v. Stewart, 2 Metc. [Ky.] 119; W. St.L.&P. Rly. Co. v. Shacklet, Admx., 105 Ill. 364; Transfer Co. v. Kelly, 36 Ohio St. 86; Bennett v. New Jersey Rld. & T. Co., 7 Vroom, 225; Cuddy v. Horn, 46 Mich. 596.) The foregoing were cases in which the plaintiff was a passenger in a public conveyance, and it was held that the servant in charge of the conveyance in which he was riding was not his servant in such sense that his-negligence ought to be imputed to the plaintiff. See, also, C. R. I. & P. Rly. Co. v. Groves, 56 Kan. 601; C. K. & W. Rld. Co. v. Ransom, 56 id. 559. In the case of Dyer v. Erie Rly. Co., 71 N. Y. 228, it was held:
‘‘ Where one travels in a vehicle over which he has no control, but at the invitation of the owner and driver, no relationship of principal and agent arises between them ; and, although he so travels voluntarily and gratuitously, he is not responsible for the negligence of the driver where he himself is not chargeable with negligence, and where there is no claim that the driver was not competent to control and manage the team.”
In the case of Little v. Hackett, 116 U. S. 366, the authorities were very fully reviewed in an opinion by Mr. Justice Field, and it was held :
“A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver.”
We think the law well settled that where the person injured has no right to control the movements of the driver, and does not, in fact, exercise any control, the negligence of the driver cannot be imputed to him.
Complaint is made of the refusal of the court to give other instructions, but we think so much of those asked as was good and applicable to the case was given in the general charge.
Complaint is also made of the statement to the jury that the plaintiff might recover any amount not exceeding $5,000, because it is said that only $4,500 was asked in the petition for the injuiy, and that there was no proof whatever concerning the value of the medical services and expense for nurses. If the verdict and judgment exceeded $4,500, this might present a question requiring consideration, but as the verdict is for only $3,200, we fail to see any substance in the complaint, there being no complaint that the court gaye any other erroneous charge as to the measure of damages.
The judgment is affirmed.
All the Justices concurring. | [
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Allen, J.
Before undertaking to pass upon the specifications of error in this case, it is necessary to consider the nature and extent of the jurisdiction of the District Court, where the assignment over the assignee and the assigned estate. The grounds on which the removal of the assignee was ordered are not such as are specifically mentioned in the statute relating to assignments. Section 30, of the Act to Regulate Voluntary Assignments for the Benefit of Creditors, authorizes the Court to dismiss the assignee for failure to file an inventory or to give bond, and section 31 provides for like proceedings in case any security on the bond of the assignee becomes insolvent or removes from the State. Section 35 authorizes the removal of the assignee for failure to pay dividends. Section 36 requires the assignee to exhibit, to any person entitled to a demand allowed against the estate, the condition of the assets; and section 37 reads as follows :
“Upon petition in behalf of any such person, to the district court in whose clerk’s office the inventory is filed, showing good cause therefor, verified by affidavit, such court shall cause any assignee to be cited to appear before it at such time as may be designated, to answer the allegations in such petition, and to do and abide such order as shall -be made by such court in the premises ; and upon the hearing, such court shall make such order as to it shall seem fit and lawful in the premises for enforcing the provisions of this chapter.”
Section 12 of chapter 114, General Statutes of 1889, ¶”7170, Concerning Trusts and Powers, reads as follows :
“Trustees having violated or attempted to violate any express trust, or becoming insolvent, or of whose solvency or that of their sureties there is reasonable doubt, or for other cause, in the discretion of a court having jurisdiction, may, on petition of any person interested, after hearing, be removed by such court; and all vacancies in express trusteeships may be filled by such court.”
That an assignee for the benefit of creditors is a trustee of the assigned estate is obvious. That courts of equity have general supervision and control over all matters of trust and confidence is settled law ; and it also seems to be settled that, unless in conflict with some express statutory provision, courts of equity have general supervision over and power to remove assignees for misconduct and violation of their duties. Burrill, Assignments, §419; McIlhenny Co. v. Todd, 71 Tex. 400; Cohen & Co. et al., v. Morris & Co. et al., 70 Ga. 313; Golden’s Appeal, 110 Pa. St. 581.
An assignee-for the benefit of creditors is the trustee of an express trust. “Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed, or will.” 2 Story’s Eq. Juris. [13 ed.] 283. Implied trusts are those which are deducible from the transactions of the parties where there is no express purpose to create a trust. 27 Am. & Eng. Encye. Law, 6. That the duties of the assignee in disposing of the trust estate are regulated by law, rather than by express terms of the deed of assignment, does not render the trust any the less an express one. It is as though the assignors had incorporated the act into the deed of assignment, for the estate is transferred as a trust for the benefit of creditors, to be administered and distributed among them as the law directs. While the statute regulates the management of the trust, it is created by the deed of assignment. Nor does the fact that the permanent assignee is selected by the creditors, who are the beneficiaries of the trust, render it any the less an express trust. It is in effect like any other substitution of a trustee. The nature of a trust does not depend in any degree on the particular individual who is to administer it.
The acts Regulating Assignments for the Benefit of Creditors and Concerning Trusts and Powers were both parts of the General Statutes of 1868, and have remained in force ever since, except the provisions relating to the election of an assignee. We think the two acts may well be construed together, and that section 12 of the Act Concerning Trusts and Powers gives ample authority for the removal of an assignee for any violation of his trust. To hold that an assignee could only be removed for the causes expressly named in the Assignment Act, would require us to engraft on section 12 of the Act Relating to Trusts and Powers an exception which it seems to us clear, the Legislature never intended. Section 12 is broad and general in its provisions, reaching all cases of express trusts. Assignments for the benefit of creditors are but one of many kinds of express trusts.
Much space in the brief and much time on the oral argument were devoted to the sufficiency of the proof to warrant a removal. It would serve no purpose to recite at length in this opinion the findings of the referee or the trial court. The substantial basis on which the order of removal rests is, that the assignee had been extravagant, and needlessly wasted the estate ; that he had paid out more money for expenses than was necessary, thereby depriving the creditors of dividends they ought to have received. This finding of the Court is abundantly sustained by the assignee’s report. The expenditure of more than $14,000 in the collection of less than $30,000 seems on its face altogether unreasonable, and this sum was likely to be increased by unpaid bills yet to be presented. There does not appear to have been any necessity for the employment of any such number of persons as the assignee kept on his pay-roll to assist him. While there would necessarily be somewhat heavy expenses connected with the management and disposition of so many pieces of encumbered real estate, there were many bills receivable, such as installment notes for loans negotiated, tax-sale certificates, and other items, which would not necessarily require any considerable labor or expense ; and, in fact, many of the in stall - ment notes were collected by the Matthewson-Snyder Investment Company and turned over at intervals to the assignee. It is not necessary to pursue the evidence in detail. We know of no better ground for removing an assignee, or one calling for more prompt and decided action, than that of needlessly wasting the estate. His motive in doing so is not of first importance. The principal thing sought to be accomplished by the assignment is the application of the estate to the payment of the assignor’s debts. If it is to be dissipated in expenses there is little use in having an assignee.
Much is said in argument about the hostility between Matthewson and the assignee, and the cause of it. The fact of the existence of this feeling having been mentioned by the Court is taken as a basis for arguing that the only real ground existing for the removal of the assignee was this condition of hostility. It is further argued that this was caused entirely by the prosecution of a suit by the assignee against Matthewson’s wife to recover certain bills receivable, which she claimed the right to hold as security for money due her. It is urged that, in this matter, the assignee was serving the creditors faithfully; that Matthewson. was incensed because he brought the-suit, and that this furnished the only motive for the-attack on him. So far as appears from the record, the course of the assignee in this matter was entirely proper, but there seems to have been other matters-tending to create ill-will between the assignor and assignee. It is evident from the remarks of the Judge, incorporated in the record, that the removal was-based on the management and disposition of the-estate by the assignee.
It is strenuously insisted that, even conceding that-the Court had power to remove the assignee, the proper practice was not pursued in this case, and that there are substantial errors in the proceedings requiring a reversal of the order of removal. It is insisted that-an action must be brought in the regular manner, by petition setting forth specifically the grounds for removal ; that security for costs should be given as at the commencement of a civil action; and that a summons should be issued and served in the usual way. There would be much force in this contention were it not for the fact that there is but one court having general jurisdiction over the assigned estate, and that is the District Court of the county in which the deed of assignment is recorded. Section 12 of the Act Concerning-Trusts and Powers does not require that the proceeding-to remove shall be by civil action, but provides that it shall be in the court having jurisdiction, after hearing, on petition of any person interested. The essentials of the procedure are, that a petition shall be presented to-the proper court by some person interested in the estate stating the ground for, and asking the removal of theassignee ; that he shall be given reasonable notice, and shall have a fair opportunity to defend against the-charges. The precise form of the petition is not of great- importance in matters of this kind. National Bank v. Branch, ante, page 27. In this case there certainly was no want of notice. There were multifarious petitions and amended petitions affording the defendant ample notice of what was alleged against him ; and the trial was finally had on a consolidation of all the charges incorporated into one petition. Nor do we think the jurisdiction depended on the filing of a cost bond. Whether the Court, in its discretion, might ha,ve required the petitioners to furnish security for costs, we are not called upon to decide. But the District Court of Labette County had jurisdiction of this estate long before any of these petitions for removal were filed. Of that jurisdiction none of the parties had power to deprive it. It alone had authority to pass on the conduct of the assignee and to order his removal for sufficient cause. Its "power to act did not depend on filing a cost bond, or a petition technically complying with the rules concerning pleadings in civil actions.
The order of removal is affirmed.
All the Justices concurring. | [
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Allen, J.
This action was brought in the District Court by The George R. Barse Live Stock Commission Company, a corporation, against W. H. Ketcham, B. R. Davis, Sheriff of Marion County, and Charles Marsh, his deputy, to recover the possession of 109 head of steers, on which the plaintiff claimed to have a chattel mortgage given to secure the sum of $2,-978.26. The original petition was filed on the 9th of May, 1890. On the 4th of September, 1891, an amended and supplemental petition was filed, alleging the execution of a note for $2,978.26, and a chattel mortgage securing the same, by Gf. W. Campbell, and that
‘ ‘ plaintiff has at all times been the owner and holder of said mortgage, but at the time of the commencement of this action one W. E. Thorn was in possession of said note under the following circumstances : About one year and a half prior to the commencement of this action a verbal contract and agreement was entered into between said W. E. Thorn, who is a stockholder and director in the plaintiff corporation, and the plaintiff, by which said W. E. Thorn would advance money from time to time to the plaintiff, which plaintiff was at liberty to return at any time. The notes held by plaintiff were to be turned over to said W. E. Thorn, to be held by said Thorn as security for such advances, but the said Thorn should be under no obligations to present said notes for payment at the time of maturity thereof; nor was he to have anything to do with any mortgage that might have been.given to secure said notes, but that the same were to be retained by the plaintiff to enable it to preserve and take care of the mortgaged property. Soon after the commencement of this action the plaintiff did return to said Thorn all of the money advanced by him and took up said note, and is now in possession of the same.”
The proof tended to support these averments of the petition, and the jury found that they were true, and rendered a general verdict in favor of the plaintiff. The principal controversy in this Court is as to whether the plaintiff had a right to the possession of the cattle at the time they were levied on by the Sheriff under an execution in favor of Ketcham ; the note secured by the mortgage being then in the possession of Thorn, and he having advanced the full face of it to the plaintiff.
Many authorities are cited to the effect that the indorsement of a negotiable promissory note, secured by mortgage, passes the title to the mortgage as well. This seems to be a well-settled rule of law. Other authorities are also cited sustaining the proposition that an assignment of a mortgage, where the assignor retains the note secured by it, is of no validity. In the absence of any special agreement, it has been held that the payee who has indorsed a note to a bank as collateral security cannot maintain replevin for property covered by a chattel mortgage securing the note so indorsed ; that the right of action is in the bank. Kavanaugh v. Brodboll, 40 Neb. 875.
The question to be determined in this case is whether, under all of the facts stated, the plaintiff had a right to the mortgaged property at the time the suit was instituted. Unless it had such right, the fact that it afterward paid Thorn the full amount of his advances and regained possession of the note would not enable it to recover in this suit; for its rights must be determined as of the time when the action was commenced. At that time Thorn held the note with the plaintiff’s indorsement. He also had the plaintiff’s prior parol agreement to be held absolutely on all notes so transferred, the plaintiff being allowed to retain the mortgage for the purpose of protecting its indorsement. The contention on behalf of the plaintiff in error is, in substance, that the plaintiff below was not the real party in interest; that, hav ing indorsed the note to Thorn and received the value of it, he became the real party in interest, and could alone maintain a suit on the mortgage. Can it be said that the agreement between Thorn and the Barse Company was an absolute nullity, and that the rights of the parties must be determined by the general rule apjolicable to the transfer of negotiable securities ? It needs no argument to prove that the Barse Company, being financially responsible, and liable to Thorn on its indorsement of this note, was interested in preserving the lien on the cattle. In fact, it appears that Campbell was in debt, and that a judgment creditor sought by the levy to take these very cattle' and apply the proceeds of them to the payment.of his judgment. For anything disclosed in the case, the safety of the Barse Company in this transaction depended entirely on the preservation of the mortgage lien and the mortgaged property. Certainly, the Barse Company, in an equitable action, would have had a standing in court to compel the application of the mortgaged property to the payment of the debt while the note was in the hands of Thorn, if it were then due, in order to relieve it from loss because of its indorsement of the note. It being agreed that the Barse Company, for its protection, should hold the mortgage and be entitled to pursue all the remedies afforded for its jsrotection, must it be held, as a matter of law, that it still had no right to the possession of the mortgaged property as against the Sheriff, who sought to appropriate the cattle to the payment of the debt of another? Under the testimony and the findings it is shown that the plaintiff had full authority to hold the mortgage, and to take the mortgaged property, when necessary, and dispose of it as the plaintiff might see fit, to protect itself, and not as a mere agent of Thorn. He consented and agreed to look to the plaintiff, only, for his money ; and it appears that he in fact received it in full between the time when this action was brought and the trial of the case. It must be borne in mind that this is not a controversy between parties to the note and mortgage, but between the original mortgagee and a stranger. All the parties to the note and mortgage were consenting to the arrangement made and insisting on the right of the plaintiff to the possession of the property. It was claimed by the defendant below, and proof was offered tending to show, that Campbell, the mortgagor, was paying the expenses of the litigation in behalf of the plaintiff. If the mortgaged property had been in possession of the plaintiff, under such an arrangement, at the time it was levied on by the Sheriff, can it be doubted that the plaintiff would have had a right to protect its possession, and to institute an action in its own name to recover the property if actually taken from its custody ? The plaintiff alone would be subjected to loss by the diversion of the cattle to any other purpose than the payment of the mortgage debt. Had the cattle been actually held by the plaintiff under this mortgage, or as a pledge to secure the payment of the note, what right would the Sheriff have had to seize them and'take them from the plaintiff’s custody? Certainly, the plaintiff’s right to possession would have been superior to that of the Sheriff. Does the fact that Campbell held them in accordance with the provisions of the mortgage, subject to be taken by the mortgagee whenever he should deem himself insecure or in case of an attempt to sell or dispose of the same, impair the plaintiff’s 'security, and give to the ■ Sheriff a right to take the property from the possession of Campbell when he would have had none to take it from the plaintiff ? If the Barse Company had no standing to protect its rights to the possession of this property, it must be because .of some stern and inflexible rule of law, and one which in this case defeats justice. It cannot be said that, in good morals and sound ethics, a stranger, holding a judgment against Campbell, had a right to take these cattle, which had been bought and paid for with money furnished by the Barse Company, for the satisfaction of his debt. We think the special agreement made by the plaintiff and Thorne, and assented to by Campbell, was valid as to all outside parties ; and that, as against a wrongdoer, the plaintiff was entitled to the possession of the property at the time the suit was commenced. Being entitled to bring the suit to protect its possession at the time it was commenced, and having subsequently taken up the note and thereby become restored to all its rights in the note and mortgage, when the action was finally tried the plaintiff -was entitled to recover the whole value of the mortgage lien. We base the decision of this case on its special facts, which we hold distinguish it from the cases cited by the plaintiff in error.
It is urged that at the time the levy was made the property was in the possession of Campbell; that the note which the mortgage secured was not due; that he had an interest in the mortgaged property which was subject to levy and sale ; and that the Sheriff had the right to levy on the property and take it into his possession and sell it, subject to the mortgage. If this had been the purpose of the Sheriff, and if Campbell had had a substantial interest in the property, there would be much force in the contention. But the levy was made, not in subordination to, and with a recognition of, the rights of the mortgagee, but in hostility to them. The purpose of the defendant was to seize not merely Campbell’s interest, but that of the mortgagee as well. It further appears that, at the time of the trial, the property was not of sufficient value to pay the mortgage debt. Under the provisions of the mortgage, the plaintiff had a right to the possession of the mortgaged property whenever it deemed itself insecure ; and this right it might assert with entire propriety when the Sheriff seized the cattle and sought to sell them to satisfy Ketcham’s judgment. Nor is there any force in the contention that a demand was not made. After contesting the plaintiff’s rights under the mortgage through repeated trials the defendant may not now escape liability because of a lack of a formal demand, if it was not in fact made.
It is contended that the judgment against Ketcham, and Marsh, the deputy sheriff, is unwarranted. Mr. Ketcham, himself, testified that he directed the Sheriff t.o levy on Mr. Campbell’s cattle, and that he had made arrangements for a redelivery bond in the replevin action. It is very clear that the levy was made by his direction, and that judgment was properly rendered against him. The deputy who also took part in the conversion of the cattle was liable with the Sheriff.
We find ho reversible error in the instructions given by the Court, and nothing in the special findings of the jury conflicting with the general verdict. Complaint is made of the form of the verdict, but it appears to be sufficient. There is a little apparent conflict in the findings that the plaintiff’s interest in the mortgaged property was $3,710.41, while the value of -the property itself at the time it was taken is fixed at only $3,510. The discrepancy, however, is not real, for the value of the property is fixed as of the time of the conversion, and the amount of the plaintiff’s special interest is the amount of the note and interest computed to the time of the trial. The value of the property, with six per cent, interest from the time of the conversion, exceeds the amount of the note and mortgage, and the defendant was therefore liable for $3,710.41, for which judgment was rendered.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C, J.
I. It was assumed but not decided in Renz v. Drury, ante, page 84, that a child adopted in a sister state in substantial compliance with her statutes, would inherit lands of the deceased adopting parent in this State on equal terms with a child of such parent born in wedlock. This proposition, however, is now earnestly controverted by the plaintiffs in error. Counsel says that Alice Ann Adamson could not have inherited from Adam Huffman in the absence of sections 6 and 7 of chapter 67 of the General Statutes of 1889 ( ¶ ¶ 3873, 3874), relating to the adoption of minor children”; that only children adopted in the Probate Court in accordance with our statute are ‘' entitled to the same rights of person and property as children or heirs at law of the pferson thus adopt ing them” ; and that Alice Ann was not adopted in this way, but only by deed. This, however, was the method prescribed by chapter 29 of the Revised Statutes of Missouri, 1889, then in force; and the Supreme Court of that State, in Fosburgh v. Rogers, 114 Mo. 122, held that a child adopted in accordance with the statute acquires a right to inherit from the -adopting parents upon their intestacy, and that this right does not conflict with the Statute of Descents, but only points out who are to be deemed children under that statute. See also Moran v. Stewart, 122 Mo. 295. Now, although the method of adoption in Missouri essentially differs from our own, yet the rights conferred upon the child are substantially identical in the two states. A personal or relative status lawfully acquired in one state or country will generally be recognized by the courts of another state or country. This proposition was clearly stated by Chief Justice Gray in Ross v. Ross, 129 Mass. 243, 246, as follows:
‘ ‘ It is a general principle, that the status, or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other’s property, is fixed by the law of the domicil; and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired; his personal property is indeed to be distributed according to the law of his domicil at the time of his death, and his real estate descends according to the law of the place in which it is situated; but, in either case, it is according to those provisions -of that law which regulate. the succession or the in.heritance of persons having such a status.”
The opinion is replete with learning upon the whole-subject of the law of place as affecting the status of a-person changing his domicil, or having property rights-in other states or countries, and it was held that a child adopted under the laws of Pennsylvania would be recognized as such upon the removal of the adopting father with the child into the State of Massachusetts. This case was cited with approval by the Supreme Court of Illinois in Van Matre v. Sankey et al., 148 Ill. 536, where it was held that a decree adopting-a child is a declaration by competent authority operative to change its status, and ipso facto, to render it that which the law declares it to be — an heir of the person adopting, and to make it capable of inheriting from him in all respects as if it were his own child, born in wedlock; and it may inherit property in other-states than that in which the adoption was had from its adopting parent. The Supreme Court of Rhode Island, following the Massachusetts and Illinois cases,, held in Melvin v. Martin, 18 R. I. 650, that the status of a person is to be determined by the law of his domicil, and such status, with its incidental rights of succession and inheritance, should be recognized in another state, when there is nothing in its laws to-prevent it. We consider these cases to be founded upon indubitable reasoning and that their authority should be followed in this State.
II. The .nest contention of the plaintiffs in error is-that, even if Alice Ann might have inherited from Adam Huffman, yet the adoption conferred upon her heirs no right to inherit from him, because^ie statute relating to descents in the use-°f the word "children” had no reference-to others than children by blood. But this-position is inconsistent with the reasoning in the fore going cases, and with the fair interpretation of our statute. The adoption of children is an invention usually accredited to the Civilians. It is not of common-law origin. It is now common in Europe, and is recognized and regulated in most of the states of our Union by statute. In Vidal v. Commagere, 13 La. Ann. 516, it is stated on the authority of the Digest that,
“ Under the Roman law, the person adopted entered into the family, and came under the power of the person adopting him. And the effect was such, that the person adopted stood not only himself in relation of child to him- adopting, but his children became the grandchildren of such person.”
In Power &c. v. Hafley &c., 85 Ky. 671, the Court of Appeals of Kentucky held that where an adopted child, made capable by a special act of taking and holding by descent the estate of the person adopting him, dies before such person, leaving children, those children inherit the estate of the person who adopted their deceased parent, as if they were his grandchildren, the jus representations attaching as fully to the adopted child as to the child by blood. In the construction of a statute founded upon a principle of the Roman Law, we are authorized to appeal to that law as an aid in the interpretation of the statute ; and we think it plain, from the language of our statutes construed in the light of the adjudged cases and the principles of the Civil Law, that the widower and the child of Alice Ann inherited through her an interest in the estate of Adam Huffman.
III. The plaintiffs in error further claim that Elizabeth E Huffman, as the widow of Adam Huffman, and B. W. Gray, the grandfather of William H. Huffman, inherited a portion of the estate of Adam Huffman through William H. Huffman by representation: but this claim is unfounded. Under section 18 of the statute of 1859 regulating descents (Comp. Laws 1862, 47.0), the only heir of William H. Huffman was Adam Huffman, his father. If the child had died seized of any property, no person but Adam Huffman would have been entitled to any of it. If at the death of the child his father had been “ previously dead,” then the principle contended for by the plaintiffs in error might have some force under section 19 of the statute. The doctrine of Delashmutt v. Parrent, 40 Kan. 641, has no application.
The Court below correctly applied the law to theuncontroverted facts in the case, and the judgment-must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The answer of the defendant presented two principal issues : (1) That the land described in the contract was incumbered, and the plaintiff therefore unable to convey a perfect title; (2) that the authority of the arbitrators was revoked before an award was made. The principal question for our consideration is whether or not either of these defenses was good under the facts disclosed.
1. It appears that the land was incumbered by mortgages amounting to $10,000 and some interest. Does the existence of an incumbrance on land contracted to be sold defeat specific performance of the contract, where the amount of the incumbrance is much less than the amount of the purchase-money, so that the incumbrance can be completely discharged from the proceeds of the sale? It is well settled that the purchaser will not be compelled to receive and pay for a defective title. (Fry, Spec. Perf. §859; Watts et al. v. Waddle et al., 6 Pet. 391; Jeffries v. Jeffries, 117 Mass. 184; Bowen v. Vickers, 1 Green Ch. 520.) Nor can a purchaser be compelled to accept a title subject to incumbrances, for the payment of which out of the purchase-money provision cannot.be or is not in fact made. (Hinckley v. Smith, 51 N. Y. 21; Walsh v. Bar ton et al., 240 Ohio St. 28; Mayer & Morgan v. Adrian & Vollers, 77 N. C. 83.) Nor can the purchaser be compelled to receive a deed conveying an incumbered title, and be forced to rely on the vendor’s covenants for his security against existing incumbrances, unless he has expressly agreed to do so. But where an incumbrance can be removed merely by the application of the purchase-money, and the court is able to provide for the conveyance of a clear title to the vendee, the mere fact that incumbrances exist which the plaintiff has not removed, or even is unable to remove without the application of the purchase-money for that purpose, will not prevent a decree for a specific performance. (Guynet v. Mantel, 4 Duer, 86; Halsey v. Grant, 13 Vesey, 73; Oakey v. Cook, 7 Atl. Rep. [N. J.] 495; Thompson v. Carpenter, 4 Pa. St. 132.) It appears from the evidence of Dunn that the fact that the property was incumbered by a mortagage was known to Robinson, who said that would make no difference ; that it could be arranged out of the proceeds. This evidence is uncontradicted. As the amount of the incumbrances was but little more than one-third the proceeds of the sale, especially in view of the defendant’s knowledge and statement with reference thereto, they did not constitute a valid ground for refusing specific performance of the contract. Nor does the fact that one-half the taxes for the year 1890 remained unpaid, even though unknown to the defendant, furnish any obstacle to the performance of the contract. The fund was ample for their payment.
II. The contract executed by the parties provided for the sale of the plaintiff’s land to the defendant at a price to be fixed by what are denominated, in the contract, as arbitrators. It is not disputed that Mr. Bonebrake was named as one of the arbitrators by the defendant, and that Mr. Whitaker was named as another by the plaintiff, though the appointment of Mr. Jewell, as the third, is questioned. We think the evidence clearly shows his selection by the other two as the third arbitrator, and that he was recognized as such by both parties. The evidence shows that Bone-brake and Whitaker first attempted to fix a pi'ice ;• that they were unable to agree; that, thereupon, Jewell was selected, and that the three had two or more consultations, at which they endeavored to agree on a price. Bonebrake’s figures were lower than those of the others. The railroad company attempted to revoke the authority of the arbitrators. A question is presented whether they were arbitrators, or merely appraisers selected to value the property, and if the latter, whether the defendant could still revoke their authority before the appraisement was actually made. An arbitration is properly a submission to the decision of one or more persons of a matter in controversy or dispute between the parties. The only matter these persons were called upon to. decide was the value of the land, which, according to the evidence, had not been discussed by the parties. Before the execution of the contract the defendant had taken possession of a portion of this land, and constructed its tracks along the edge of it. The plaintiff was claiming damages for the use and occupation of his property, and insisting on their payment. With reference to this claim there was a controversy, but by the written contract it was agreed that the claim should be waived, and that the land should be sold by the plaintiff to the defendant at a price to be fixed by arbitrators. The arbitrators were not named in the contract, and, of course, there could be no specific performance of it until they were se lected. They were, however, afterward named. The question is, then, whether or not the. defendant, by revoking the appointment, could in effect annul the contract.
It must be borne in mind that the railroad company was still in possession of a part of the property, wholly without right, and Avas during all of the time liable to the plaintiff for whatever actual damage he had sustained by reason of the defendant’s occupation of his property. The contract contemplated, and provided, not merely that the plaintiff should sell and the defendant should buy the whole tract of land, but that such purchase and sale should cancel all demands of the plaintiff for what had already been'done. The authorities recognize a distinction between appraisers of value or persons selected to make a measurement or computation under such a contract, and arbitrators properly so called. Conditions are frequently attached to policies of insurance providing that, in case differences arise between the parties touching a loss, the matter shall be submitted to arbitrators. Where these provisions are in such form that they require the submission of every controversy that may arise under the policy to arbitrators, and thus in terms oust the courts of all jurisdiction in the matter, they are held invalid ; but where they merely provide for the submission to arbitrators of the question as to the amount of loss sustained, so that the arbitrators have nothing to do but make an appraisemeht of the property destroyed, if definite and reasonable in their provisions, they are generally sustained, and held to be, when so expressly stated in the policy, conditions precedent to a recovery. (Insurance Co. v. Clancy, 71 Tex. 5; Chippewa Lumber Co. v. Ins. Co., 80 Mich. 116 ; Manu factoring Co. v. Assurance Co., 106 N. C. 28; Wolff v. Insurance Co., 50 N. J. L. 453; Chandos and another v. American F. Ins. Co., of Philadelphia, 84 Wis. 184.) If appraisement maybe made a valid condition precedent to the maintenance of an action, of course, when the appraisement is made in accordance with the contract, it is binding on the parties. For other instances in which the distinction between an arbitration, which shall have the effect completely to dispose of a matter in controversy between the parties, and an appraisal of property, or determination of any matter of quantity or the like, see the following authorities: Russ., Arb. 40 ; Garred v. Doniphan, 10 Mo. 161; Curry v. Lackey, 35 id. 389; Atkinson v. Whitney, 67 Miss. 655; Collins v. Collins, 26 Beav. 306; Garr v. Gomez, 9 Wend. 649. In Morse v. Merest, 6 Madd. 27, it was held that, where a defendant refused to permit appraisers to go upon the land, the court would remove the impediment and direct the defendant to permit valuation to be made. Smith v. Peters, (L. R.) 20 Eq. Cases, 511, is to the same effect. In Rochester v. Whitehouse, 15 N. H. 468, it was held that the appointment of appraisers might be revoked the same as that of arbitrators. On the other hand, see Orne, Appellant, v. Sullivan, 4 Miss. 161. Where the parties to an action have entered into an arbitration and made the same a rule of the court, the submission is not revocable. (1 Am. & Eng. Encyc. Law, 664; Morse, Arb. 232.) But mere naked arbitration is generally held revocable at the pleasure of either party at any time before an award is made. (Boston & L. Rld. v. Nashua & L. Rld., 139 Mass. 463; Morse, Arb. 229; Russell, Arb. 156.)
It would seem to be settled, under the authorities, that where there is an agreement for the purchase and sale of lands or chattels to be appraised by third parties, and such agreement is upon a valid consideration, and where the appraisement is rather an incident of the contract than a single subject of agreement between the parties, one party may not retain an advantage gained by the contract and revoke the authority of the appraisers. (McGheehen v. Duffield, 5 Pa. St. 497; The Bank of Monroe v. Widner, 11 Paige Ch. 529; Atkinson v. Whitney, supra.) The English cases go so far as to hold that a court will remove obstacles placed by the vendor in the way of the appraisers in performing their duties, as held in Morse v. Merest, and Smith v. Peters, supra.
The plaintiff had agreed that he would sell his land to the defendant at a price to be fixed by the appraisers. He had also agreed that, in consideration that the defendant would }:> urdíase on those terms, he would relinquish all claims for damages already due him from the defendant for the use of it. After the appraisers were appointed in accordance with the terms of the contract, he could not have sued the defendant for the occupation of his land without revoking not merely the appointment of the appraisers, but his solemn written agreement. This he had no right to do. Nor had the defendant any better right to retreat from and annul its solemn agreement than had the plaintiff. The settlement of past differences on the basis of the purchase and sale of the land at a value to be fixed by the appraisers was a valid consideration for the agreement, and sufficient to render the contract irrevocable. An appraisement having been made by a majority of the appraisers, the contract became complete in all its parts and enforceable specifically, unless other equitable considerations are found constituting a valid defense.
III. On cross-examination, the appraiser Whitaker made statements indicating partiality. If the appraisement had been challenged by the answer for fraud, mistake, or misconduct of the appraisers, we might hesitate about holding . .... .. , ,. the appraisement binding. But there was no such claim put forth in the answer, and it is clearly necessary that misconduct should be pleaded if relied upon. It seems to us evident that the trial court decided either that the incumbrances constituted a bar to the plaintiff’s action, or that the defendant could lawfully, and did in fact, revoke the authority of the arbitrators, and that the case was decided on the issue presented by the pleadings under an erroneous conception of the law.
The judgment is therefore reversed and a new trial awarded.
Martin, C. J., concurring. | [
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Martin, C. J.
On August 11, 1887, Garrett commenced an action in the District Court of Stafford County against Struble as indorser of three promissory notes, and caused to be attached a section of land in said county to satisfy any judgment that might be obtained. The only service was by publication, and the body of the notice ivas as follows :
“William J. Struble, a nonresident of the state of Kansas, will take notice that the said William Garrett, plaintiff, did, on the 11th day of August, 1887, file his petition in said District Court, within and for the County of Stafford in the State of Kansas, against the said William J. Struble, defendant, and that said defendant must answer said petition filed as aforesaid, on or before the 10th day of October, 1887, or said petition will be taken as true, and judgment rendered in said action against said defendant, William J. Struble, for the sum of eight hundred and twenty - eight and -¡-6-0-%- dollars, with interest thereon at the rate of 7 per cent, per annum from the 23d day of July, 1887, and for the sale of certain real property attached in this action.”
A judgment quite informal in character was rendered in the case November 4, 1887, for the sum of $842 ; and it was ordered and adj udged that the real property attached, or so much thereof as necessary, be sold to pay said judgment. The finding of the Court was that said sum was due from the plaintiff to the defendant; which was evidently a clerical error. The land was sold by the Sheriff and bid in by Garrett. The sale was confirmed and a Sheriff’s deed was executed to him. Garrett and wife afterward conveyed the land to Joseph R. Thomas; Thomas and wife conveyed the same to Richard Clayton; Clayton conveyed to William J. Harbert; Harbert and wife conveyed to Margaret C. Hunt, and she and her husband conveyed to William Atkenson. On March 18, 1891, Struble commenced his action against Garrett and wife and said several grantees down to Atkenson to set aside said judgment, the Sheriff’s deed based thereon and the several conveyances thereafter ; alleging all to be fraudulent and void as against him. Service was obtained by publication, and, at May term, 1891, Struble recovered a judgment by default against all the defendants. Afterward, at October term, 1891, Garrett made application to the Court to open up said judgment and that he be let in to defend. He was allowed to do so, and he filed an answer to which Struble replied. The action was tried at May term, 1892. The Court found that the publication notice in the case of Garrett against Struble was void because it contained neither a description of the land attached nor a statement that it belonged to the defendant Struble; and that in consequence thereof the judgment rendered in the case was void. All the other issues were found in favor of Garrett, but judgment was rendered against him.
The only question which we deem necessary to consider is whether said notice was void.or not. It was complete in all respects, except those pointed out by the trial court. In these it was irregular, defective and at least voidable. It could not have withstood a direct attack, because it did not sufficiently state the nature of the judgment which would be rendered upon default of answer. It indicated the amount of the judgment that would be taken and that certain real property attached in the action would be sold, but it did not describe the land.
As against a direct attack the notice was insufficient under the authority of Adolph Cohen v. C. B. Trowbridge, 6 Kan. 385 and Cackley v. Smith, 38 id. 450. This Court has frequently considered the validity of service by publication, but most.of the cases have involved the sufficiency of the affidavit for publication, and generally the attacks upon the service have been direct and not collateral. The following are some of the cases: Repine v. McPherson, 2 Kan. 340; Shields v. Miller, 9 id. 390; Foreman v. Carter, 9 id. 674; Deitrich v. Lang, 11 id. 636; Claypoole v. Houston, 12 id. 324; Pierce v. Butters, 21 id. 124; Gillespie v. Thomas, 23 id. 138; Rapp v. Kyle, 26 id. 89; Harris v. Claflin, 36 id. 543; Grouch v. Martin, 47 id. 313.
In Harris v. Claflin, supra, it was held that if there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable. The same prin ciple as nearly as may be should be applied as the test of the sufficiency of a publication notice. If there is a total failure to state in the notice any material matter required by section 74 of the Civil Code, the service is void ; but if there is not an entire omission of such material matter and it is inferentially or insufficiently set forth, the notice is merely voidable and not void. Following this rule, we hold that the notice in the case of Garrett against Struble was irregular, defective and voidable, but that it was not void, and therefore must be held sufficient as against a collateral attack.
The judgment will be reversed, and the court below ordered to render judgment in favor of the plaintiff in error, who was defendant below.
All the Justices concurring. | [
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Johnston, J.
W. T. Branch was appointed assignee of the Security Investment Company of Cawker City in February, 1891, and made his first annual statement or report in March, 1892. Branch v. American Nat. Bank, ante, p. 27. In 1893 he made his second annual report; and on April 17, which was the first day of the April, 1893,.term of the District Court, he obtained an ex parte order approving and allowing the report. Three days later, during the same term of court, the creditors appeared and asked that the order be set aside and the approval and allowance of the report be reopened for consideration. The application was granted and the matter was set down for hearing at a fixed time, due notice of which .was required to be given. This ruling is assigned for error ; but, is it reviewable?
The estate is unsettled, and the question of the approval of the report is before the District Court for determination. The ex parte order, which may have been improvidently granted, was promptly set aside, leaving the matter open for consideration upon the merits at an early day, when all interested parties could appear and be heard. The ruling re-opening the matter is not a final order, nor is it one of the reviewable orders mentioned in the Code. §§542, 543 Civil Code; McCulloch v. Dodge, 8 Kan. 476; Short v. Nooner, 16 id. 220; Kermeyer v. K. P. Rly. Co., 18 id. 215; Flint v. Noyes, 27 id. 351. See also, Branch v. American National Bank, supra. The questions argued by the plaintiff in error are therefore not open to our consideration ; but even if the ruling were reviewable, it would hardly avail the plaintiff, as the District Court is invested with a wide and extended discretion in opening up and in revising or setting aside orders during the term at which such orders are made. The State v. Hughes, 35 Kan. 626; The State, ex rel., v. Sowders, 42 id. 312.
The proceedings in error will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered for an inj ury to his foot caused by the sudden starting of a traction engine on which rested a concrete mixer. The errors covered by the defendants’ brief are: (1) Misconduct of counsel in starting to say in his opening statement to the j ury that the defendants suffered no pecuniary loss by reason of being indemnified; (2) receiving certain testimony after the demurrer to the plaintiff’s testimony had been overruled; (3) variance between the allegations and proof as to the location of plaintiff’s foot just prior to the injury and as to the exact position of his body and the precise manner in which the lever of the mixer was operated by him; (4) instructing as to the duty of defendants to provide help and to establish rules; (5) in instructing that contributory negligence was to be established by the defendants; (6) measure of damages; (7) that the findings were inconsistent with the general verdict; (8) the refusal to render judgment on the special findings.
As to the first, there had been no request to have any other party made defendant (Civ. Code, §§ 35, 36), counsel was interrupted before completing his sentence and the jury were carefully instructed to disregard what was said touching the matter. For this reason it does not appear that any prej udice was suffered by the defendants, and aside from this it was not like Smith v. Cement Co., 86 Kan. 287, 120 Pac. 349, an attempt by counsel in the argument of a case to refer to matters not proved and not proper for consideration. (See Swift v. Platte, 68 Kan. 1, 10, 72 Pac. 271, 74 Pac. 635.)
There was no abuse of discretion in permitting the testimony complained of after the evidence of the plaintiff had first been closed. Neither can it be said from the record that in respect to this matter counsel for the plaintiff was guilty of misconduct.
The alleged variances between the allegations and the proof were not sufficient to prevent a recovery by the plaintiff, for whatever the inaccuracy of statement touching these matters found in the pleading or in the evidence, it was left sufficiently clear that the jury had abundant testimony on which to find that the plaintiff’s injury was caused without his fault and by the negligence of the defendants substantially as alleged.
One or two unnecessary matters were mentioned in the instructions as incumbent upon the defendants, but a careful examination of the entire charge discloses that the law applicable to the case was substantially given with such clearness that the j ury were fairly advised and were not led astray.
Defendants’ counsel makes the novel and ingenious suggestion that in view of the workmen’s compensation act the damages therein provided for should be deemed as the legislative estimate of what may be recovered in an action like this, and complains that the court instructed in accordance with the general rule of common-law actions and did not restrict the jury to the amount which might be recovered in actions brought under the workmen’s compensation act. It is sufficient to say that the legislative estimate of the amount to be recovered was intended to and can apply only in actions brought under the statute enacted by the legislature.
An examination of the special findings fails to show that they were unsupported or inconsistent with the general verdict or that a judgment founded thereon should have been rendered, as requested by the defendants.
The j udgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by Plummer, as the holder of a certificate of purchase of school land, to enforce Ms rights against John Scott, grantee of Buell Scott to whom a patent for the land was issued. The plaintiff recovered and the defendants appeal.
The plaintiff purchased the laúd and received his certificate on August 16, 1905. Under peculiar circumstances, which are not now material, the records indicated that interest on the school-land contract and taxes on the land were not Raid for the years 1910 and 1911. In August, 1910, the board of county commissioners adopted the resolution relating to the purchase of land sold at tax sale authorized by chapter 162 of the Laws of 1891. At the tax sale of September, 1911, the land was sold to the county. On June 22, 1912, the board of county commissioners undertook to revoke the resolution of August, 1910, so far as it related to school land, and on the same day assigned the tax-sale certificate to Buell Scott, who made the payments and gave the bond required in such cases. On September 3, 1912, the plaintiff commenced an action against the county treasurer to compel him to issue to the plaintiff a tax-redemption certificate and a receipt for the payment of interest on the school-land contract. Tenders of interest on June 22, 1912, of taxes on July 22, 1912, and of both interest and taxes on August 30, 1912, were pleaded. Actual payment of both taxes and interest, so that there had in fact never been any default, were also pleaded. . The attempted revocation by the board of county commissioners of its resolution of August, 1910, and the assignment of the tax-sale certificate to Buell Scott were specifically assailed as unauthorized and void. The issues tendered by the petition were accepted in the answer, and it was expressly alleged that the action of the board of county commissioners constituted Buell Scott the owner of the land. The-journal entry of judgment reads as follows :
“Thereupon this cause comes regularly on for hearing and trial upon the pleadings filed in this action. Whereupon it was agreed and admitted in open court by P. H. Loomis, attorney for defendant, that a proper tender had been made to the defendant as alleged in plaintiff’s petition in a sum or sums sufficient to pay all taxes, interest .and penalties then due the office of said treasurer of said county on the land described in said petition under said certificates of sale.
“It was stipulated and agreed in open court on said 5th day of September, 1912, that the said plaintiff and defendant by their respective attorneys should submit to this court an agreed statement of facts. Whereupon this cause of action was continued.' ' '
“And afterwards, on the 5th day of December, 1912, the same being a day of the regular December term of said court for said year, this cause comes regularly on for final hearing and determination:1' The court further finds that the parties hereto had failed to file or1 present said' agreed statement of facts, and thereupon said order, as herein-before made with reference to said agreed statement of facts, is set aside.
"Thereupon the court finds that the material allegations alleged in plaintiff’s petition are true; and the court further finds for the plaintiff generally and against the defendant, and it is ordered and adjudged that the petition for the peremptory writ of mandamus be allowed. It is' further ordered and adjudged that a peremptory .writ issue to the defendant, J. B. Reynolds, as treasurer of Stanton county, state of Kansas, commanding him to issue to the plaintiff on the payment of a sufficient sum .of money to pay all interest, taxes and penalties due on said land proper receipts for the payment of said interest with penalties thereon due the state of Kansas on the real estate described, as prayed in plaintiff’s petition, and further commanding him to issue to plaintiff proper tax redemption receipts for the payment of said taxes together with all penalties due thereon as prayed in said petition, and to issue the same to plaintiff at once, on the payment of a sum sufficient to cover' all interest, penalties and costs.”
The plaintiff did not immediately make the payments necessary to clear his title to the land, and on May 20, 1913, Buell Scott paid the treasurer the entire sum called for by the school-land contract. On. June 16 a patent was issued to him, and on July 30 this suit was commenced.
The petition in the present case pleaded substantially the samé facts, contained in the former petition. Besides this, the judgment in the former suit was pleaded as an adjudication of the illegality of the conduct of the board of county commissioners in which the title of the defendants originated. The defendants denied the averments of the petition, denied specifically the adjudication pleaded, and claimed the patent for the' land was regularly obtained and was valid. There was no evidence outside the record of the cause to show that the matters claimed to have been adjudicated in the former action were not there determined. At the conclusion of the trial the following judgment was entered:
“And the court, being fully advised in the premises, and upon due consideration and deliberation, finds that the tax proceedings pursuant to which the defendant, Buell Scott, secured the school land patent of the land in controversy, to-wit: Section Sixteen (16), Township Twenty-eight (28) Range Forty (40) west of the 6th P. M., and introduced in evidence by the defendants, were insufficient, invalid and void for the reasons^ stated in plaintiff’s amended petition; that the defendant, John Scott, js the holder of the legal title to the said land for the benefit of plaintiff; that said defendant, Buell Scott, in and about the procurement of said patent, paid principal, interest and taxes on said land as follows:
June 22,' 1912, taxes of 1910 and 1911 with interest thereon to . that date............................................... $47.48
June 22, 1912, Interest due the State School fund on certificate of purchase ............................................ $103.68
May 21, 1913, Interest and balance of principal due the State School fund............................................ 955.44
May 29, 1913, taxes of 1912................................. 24.72
“And further that plaintiff is entitled to a deed of conveyance of the legal title of said land from said defendant, John Scott, and his wife, upon payment of the aforesaid several sums of money, with interest thereon, and within the time, as hereinafter stated; that plaintiff should havé further judgment against said defendants for the costs of this action, taxed at $....... and that execution issue therefor.
“It is, therefore, considered, ordered and adjudged by the court,” etc.
It is said that none but the material issues were adjudicated in the former suit and that the issue regarding the validity of the action of the board of county commissioners and the validity of the assignment of the tax-sale certificate to Buell Scott was not material. The issue was material and was adjudicated.
The plaintiff rested under distinct duties to the state having separate origins. He was under a contract obligation to pay interest on his school-land purchase. As a landowner he was obligated to pay taxes. Having defaulted in the payment of faxes he could redeem by paying a sum equal to the cost of redemption computed in the usual way, and a tender of that sum would protect his rights. He could take care of the interest on the school-land purchase at any time before forfeiture and receive a receipt for his payment. The contention of the treasurer was that the plaintiff was a stranger to the land, which belonged to Buell Scott. If the action of the board of county commissioners were valid and Scott were the holder of a valid tax-sale certificate of the land the plaintiff could not redeem from the tax sale by paying the cost of redemption, and a fender of taxes alone, such as he had alleged, amounted to nothing. Besides paying into the treasury a sum equal to the cost of redemption he was obliged to pay to the treasurer for the use of Buell Scott all installments of interest on the school-land contract which Scott had paid. (Gen. Stat. 1909, § 7669.) The plaintiff distinctly disputed the need to pay anything into the treasury for the benefit of Buell Scott. He claimed the right to receive an ordinary redemption receipt showing he had redeemed his land from taxes, and he claimed the right to receive credit in the usual way for payments of interest due according to the terms of his school-land contract. He could not maintain these rights without impeaching the action of the board of county commissioners and the tax-sale certificate assigned to Scott. That the issue was determined is demonstrated by the terms of the judgment itself, which provided for separate receipts for interest and for taxes. Indeed it is quite manifest from the record that the real issue tendered, accepted and decided was not simply whether or not the treasurer should take the plaintiff’s money, but whether or not Buell Scott had crossed the relations of the' plaintiff with the state in such a way as to vest in him rights to the land which required recognition.
That the defendants are concluded by the former adjudication is not disputed. The judgment in mandamus established the plaintiff’s relation to the state, the owner of the land, and placed limitations upon the power of the state’s receiving agent, the county treasurer, which rendered the receipt of Scott’s payment nugatory.
The present judgment recites that the tax proceedings upon which the patent was based were void for the reasons stated in the plaintiff’s petition. One of the reasons was that the tax proceedings had been adjudged to be void. If the court passed independently on the validity of the tax proceedings by interpreting the statutes relating to the power of the board of county commissioners and did not in fact rest its judgment oía the former adjudication,, the result is the same even if its interpretation of the statute be wrong. If the cause were to be returned to the district court the former adjudication would entitle the plaintiff to judgment.
It is said the plaintiff was guilty of laches in making the payments and taking out the receipts contemplated by the former judgment. If so the state might have complainéd but the Scotts have no standing to do so.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, G. J.:
This is an appeal from the judgment of the district court of Brown county sustaining the probate court of that county in the latter’s refusal to admit to probate a certain instrument purporting to be the last will and testament of Patrick Gleason, deceased.
It appears that Patrick Gleason and Margaret P. Gleason, his wife, were aged people who had for many years prior to their death resided in Brown county, and for the last twelve or fifteen years of their lives in Horton. They had no children. Patrick Gleason was about eighty-six years of age and was worth, at the time of his death, about $12,000. On February 1, 1910, he executed a will by which he gave all his property, both real and personal, to his wife, and in the will he nominated her as sole executrix. In the first dr second week of December, 1912, Gleason went to Kansas City, Mo., for medical treatment and to arrange for the care of his wife and himself at a hospital. He went, to the home of his sister, the mother of plaintiff Anna McCarthy, and there he rapidly became worse, and died at his sister’s home on January 16, 1913. Prior to his death, and on January 7, 1913, he executed an instrument purporting to be his last will, then he executed another on January 13, 1913, and yet another on January 14, 1913. The instrument of January 7, 1913, purported to give all of his property to Anna McCarthy and she was named as executrix. The will executed on January 13, 1913, purported to give all of his property to Anna McCarthy except that portion to which his wife was entitled under the law, and named Peter Weber as executor. The will of January 14, 1913, purported to give his entire estate to Anna McCarthy, and Peter Weber was named as executor. On January 23, 1913, the will of February 1,1910, was admitted to probate, and Mrs. Gleason declining to serve as executrix Peter Weber was appointed administrator with the will annexed, and he duly qualified and entered upon his duties. On March 27, 1913, Anna McCarthy offered for probate the instrument executed or dated on January 14, 1913. Objection to its admission to probate was made by Margaret P. Gleason, the surviving wife. A hearing was had on June 30, 1913, and the probate court refused to admit the purported will to probate. An appeal was taken to the district court, during the pendency of which Margaret P. Gleason died and Peter Weber and Mary F. Sheridan, her executor and devisee, respectively, were substituted. Much evidence was introduced tending to show that Gleason had capacity on January 14, 1913, to make a will, and that he was not under any restraint; but, on the other side, it was shown that Gleason was quite deaf and very feeble, that when the instrument as dra\vn was read to him it was done in an ordinary tone of voice which could not be heard by him, and further, that in drawing the will the scrivener adopted the suggestions of the plaintiff and her brother and sister, while they were in a room other than the one occupied by Gleason, as to the disposition of the property, instead of taking the direc tions of Gleason, who, it appears, was in an upstairs room in a dying condition and not conscious of what was transpiring there. The court found that the instrument was not the last will of Patrick Gleason, and upheld the probate court in denying it to probate. Plaintiff’s motion for a new trial was overruled, and she appeals.
Plaintiff contends that sufficient testimony was offered to require the admittance of the will of January 14,1913, to probate. It appears that more than two months before the application of plaintiff the probate court had admitted to probate the will executed by Gleason on February 1, 1910. The plaintiff, however, was entitled to present the will which purported to have been executed on January 14,1913, but it devolved upon her to establish that it had been duly attested and executed and that when it was executed Gleason was of sound mind and memory and not under any restraint. (Gen. Stat. 1909, § 9791.) It is true, as plaintiff contends, that ordinarily the testimony of the subscribing witnesses makes a prima facie showing of competency and validity which warrants the admission of a will to probate. Originally only an ex parte probate was provided for, the application being made and the witnesses called by those interested in having the will admitted to probate. (Gen. Stat. 1868, ch. 117, § 12.) In 1905 the section was amended making the probating of a will an adversary proceeding. Now the court is required to subpoena not only the witnesses called by persons desiring to have the will probated but also those requested by persons opposed to the admission of the will to probate; and it is further provided that the depositions of witnesses may be taken and used in the hearing in the same manner and to the same extent as is provided in the civil code. (Laws 1905, ch. 526, § 1, Gen. Stat. 1909, § 9787.) In such a trial there is presented to the probate court for its decision the issue of the testamentary character of the paper offered, involving the competency of thé testator and his freedom from restraint when the paper was executed. The amendment making the proceeding adversary did not enlarge the issues nor change the effect of the probate. In a contest an order allowing a probate is no more than prima facie evidence of the due attestation, execution and validity of the will. (Wright v. Young, 75 Kan. 287, 89 Pac. 694; Kerr v. Kerr, 80 Kan. 83, 101 Pac. 647.) A real issue is presented for determination in an application for probate, and in most cases it ends the inquiry as to the validity of the will. The case of Sellards v. Kirby, 82 Kan. 291, 108 Pac. 73, is illustrative of the importance and scope of the inquiry in such a proceeding. An appeal may be taken from an order of the probate judge allowing or refusing a probate, but when the appeal is taken from such an order and the issue is retried at length in the district court it is still regarded as a preliminary proceeding, and whether the trial results in the probate of a will or the refusal to probate, it may thereafter be contested in a civil action if brought within three years after the making of the order probating or refusing to probate the will. (Gen. Stat. 1909, § 9796; Durant v. Durant, 89 Kan. 347, 131 Pac. 613.) In this preliminary hearing a prima facie showing, if not contradicted or evercome by other testimony, is sufficient to establish the will and warrant the admission of the same to probate. In case rebutting evidence and discrediting circumstances are produced as against the prima facie evidence offered by the proponent of the will the probate court, or the district court on' appeal, must then determine the issue the same as in any other case. It must determine upon all the evidence introduced whether the will offered was legally executed by a testator who was of sound mind and free from restraint. While the prima facie showing for probate was made by the proponent there was contradictory evidence produced and circumstances were brought to the attention of the court which strongly tended to show testamentary incapacity in Gleason and that his will was not expressed in the paper to which his name was attached. The court decided that Gleason was not competent to make a will, and was not free from restraint when the scrivener wrote Gleason’s name on the paper and caused his hand to touch the pen while a mark was being made. The findings of the trial court on these issues, based as they are on competent and substantial testimony, are binding on this court. In Gordon v. Gordon, 92 Kan. 730, 142 Pac. 242, which was an appeal from a refusal to probate a will, there was conflicting testimony as to the testamentary capacity of the testator, and it was held that on the trial of that issue the ordinary rule applies, namely, that a finding of fact of a trial court based on conflicting evidence will not be set aside upon review.
Following this rule the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The state, on the relation of H. Y. Wheeler, as treasurer of the library board of Wichita, brings this action in mandamus to compel the city commission to approve his bond and to require the city treasurer to turn over to him the library fund in his hands.
The material averments are that pursuant to chapter 122 of the Laws of 1915 the commission, on April 5, 1915, adopted a resolution to maintain and govern the city library thereafter under the provisions of chapter 121 of the Laws of 1903 and acts amendatory of and supplemental thereto; that a library board was appointed which chose the relater as treasurer; that he prepared his bond, which was approved by the board and presented to the city commissioners, who refused to approve it for the reason that they had been advised that the act of 1915 is void because the title is insufficient, for which reason the city treasurer refused to turn over the library fund.
The incoming administration undertook by resolution to rescind the one adopted by the outgoing mayor and commission, and it is claimed that this action leaves the library in control of the commission.
The right to the writ depends upon the construction of the statutes relating to public libraries.
By chapter 72 of the Laws of 1886 (Gen. Stat. 1909, §§ 735-743) provision was made for establishing and maintaining free public libraries and reading rooms when a certain petition was presented to the mayor and city council of any city, and provision was made for the appointment of a board of directors. Section 1 of this act was amended by chapter 250 of the Laws of 1901 (Gen. Stat. 1901, § 643) in reference to the tax to be levied for a library fund. This was amended by chapter 121 of the Laws of 1903, providing that upon presentation of the proper petition the mayor and council should submit to the legal voters the question of establishing and maintaining a free public library, and reading room and provide for the levy of a tax in case such proposition should carry. This in turn was amended by chapter 104 of the Laws of 1905 (Gen. Stat. 1909, § 734) in reference only to the taxes to be levied in cities of the different classes. In the city commission act of 1907 the commission was given power to provide for the maintenance and support of free public libraries and to prescribe all reasonable rules and regulations relating thereto “where said library is not under the control of a library board.” (Laws 1907, ch. 114, § 43, Gen.. Stat. 1909, § 1259.)
Chapter 78 of the Laws of 1911 provided for the election of a treasurer by the directors of such library and the turning over to him by the city treasurer of the library fund; also for the approval of his bond by the city council. Chapter 80 of the Laws of 1913 amended chapter 104 of the Laws of 1905 (Gen. Stat. 1909, § 734) and section 2 of chapter 72 of the Laws of 1886 (Gen. Stat. 1909, § 735), providing in substance for an election upon presentation of a proper petition, which if successful should be followed by a tax levied by the mayor and council in such sum as might be fixed by resolution by the directors of the library, not exceeding certain named limits, and providing for the appointment by the mayor of a board of nine directors, the mayor to be ex officio member, fixing for their term of office, and providing for their removal by the mayor by and with the consent of the council. The legislature of 1915 enacted chapter 122, authorizing a city of the first class having a population of less than eighty thousand and then maintaining a public library or reading room to place its maintenance under the provisions of chapter 121 of the Laws of 1903, and any acts supplementing and amending such chapter, and provided that after the adoption of such resolution the mayor or council or board of commissioners “may levy such taxes and appoint such directors or library boards as are or may be authorized by law; and such libraries shall thereafter be governed and maintained hereunder and under the provisions of said act and acts amending and supplementing same, or acts hereafter adopted for such purpose.” This took effect March 13, 1915.
The title of chapter 122 is: “An act authorizing certain cities to maintain public libraries under the provisions of chapter 121 of the Laws of 1903, and amendments thereto.” The effect of this act is to authorize the maintenance of public libraries in accordance with the provisions of the act of 1903, and the closing requirement that after the adoption of the resolution such libraries shall be governed and maintained in accordance with such act of 1903 and amendments thereto puts it beyond the power of the incoming commissioners to take the library out from under the operation of such statutes, hence the attempt to rescind the resolution adopted by the outgoing administration was futile, and the library board being a proper body under the law, its treasurer has the right to the approval of his bond and possession of the library fund.
The title of the act is sufficient.
The writ is allowed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover overpayments made on purchases of wheat. The plaintiff recovered a portion only of the amount claimed and appeals. Several similar transactions were involved and a consideration of one disposes of all.
On July 12, 1912, the plaintiff’s agent at Coffeyville had a telephone conversation with the defendant at Leroy, the result of which was the purchase by the plaintiff from the defendant of two cars of wheat, to be billed according to instructions, the ultimate destination of the wheat, however, being St. Louis, Mo., or East St. Louis, 111. Pursuant to a general custom in the grain business, with which the defendant was familiar, the plaintiff, on July 12, sent the defendant a written confirmation of the purchase, the material portions of which read as follows :
“purchase contract.
6971 Coffeyville, Kans.,......July 12th......1912. G. W. Ringle,
Leroy, Kansas.
Gentlemen: — This confirms purchase from you today by telephone as follows:
Two 60000# cars #2 red wheat, market differences for lower grades date of inspection, basis of 91 %c-per bus. F. O. B. Leroy, Kansas. Station Mo. P. track. Shipment on or before July 20th 1912 destination official weights destination official grades.
Billing instructions: S/O notify B. Strong Grain & Coal Co., St. Louis, Mo.”
A printed form of confirmation was used, the blanks of which were filled with typewriting. The printed portion is indicated by italics.
The defendant received the confirmation the following day, read it, retained it without objection, and subsequently shipped grain according to the billing instructions given. The custom required the defendant on receipt of the confirmation to object to its terms if they were not correct and to notify the plaintiff he would not ship- on such terms. At the time of shipment drafts were drawn on the plaintiff for the price of the grain, leaving a small margin for difference between invoice and destination weights, which drafts the plaintiff paid. The wheat did not grade No. 2 red on official inspection at St. Louis, and the plaintiff sued for the market difference for the lower grade at the date of inspection.
At the time of the trial, in April, 1914, the plaintiff’s agent had no clear recollection of the transaction independent of his office records and the custom of the business. The defendant, however, undertook to state in detail the very words used in the telephone conversation, and testified in substance that he expressly refused to sell on the basis of St. Louis official grades, whereupon the plaintiff’s agent agreed to accept the wheat which the defendant was offering. The court instructed the jury that “custom can not make a contract,” and that if a complete oral contract were made by means of the telephone conversation the defendant was not bound to reject the confirma tion or advise the plaintiff that shipment would not be made pursuant to it, and the only material feature of the confirmation was the billing instructions. The jury found specially the existence of the custom and the facts making it applicable to the transaction, but found the telephone conversation to have been as the defendant stated it. The verdict was for the small sum admitted to be due the plaintiff, and judgment was rendered accordingly.
The portion of the instruction quoted above was doubtless suggested by a statement occurring in the syllabus and the opinion in the case of McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121. The defendant’s brief makes this court say, “usage or custom cannot make a contract when the parties themselves have made one.” The language of the court was, “usage or custom cannot make a contract when the parties themselves have made none.” (p. 312.) It is true that the terms of an express contract cannot be contradicted by proof of an antagonistic custom. It is likewise true, however, that custom may make a contract in the sense that it may define the rights and duties of the parties with respect to a matter upon which the contract is silent. The rule is well stated by the supreme court of the United States in the case of Robinson v. United States, 80 U. S. 363:
“Parties who contract on a subject-matter concerning which known usages prevail, by implication incorporate them into their agreements, ii nothing is said to the contrary.” (p. 366.)
The custom of grain dealers is not invoked here to make a contract between the parties or to contradict any contract they did make. There was a contract, and the question is, What were its terms? The parties' now dispute about some of them. In order to avoid the consequences of misunderstandings, defects of memory, in some instances hypertrophy of memory, and in other instances equivocation or downright untruthfulness, those engaged in the grain business have adopted a method of rendering the result of their oral negotiations definite and certain. After oral negotiations have been concluded one of the parties immediately states the result in writing and submits the writing to the other for approval. It is the duty of the recipient of the writing to communicate his objections to the other party, if he have any, and to decline performance if unwilling to be bound by it. Formal approval need not be communicated, and performance without objection constitutes assent to the correctness of the written statement of the contract. The same custom obtains in other branches of commerce and forms a self-imposed statute of frauds of the most salutary character.
In the case of McSherry v. Blanchfield, supra, and in the case of Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579, the proper office of usage and custom was touched upon far enough for the purpose of those decisions, and a few pertinent authorities were cited. The subject was by no means exhausted. The general function of usage and custom is definition, explanation, elucidation. Whenever the matter is clear there is no function to be performed. Usually proof of custom is offered to elucidate the true intention of parties to contracts whose oral or written expressions, whatever they may have been, are known. The custom under consideration is informed by essentially the same spirit and fulfills essentially the same office. By entering into the relations of contracting parties at their very inception it clarifies them before complications arise and establishes intention beyond the need of definition, explanation or elucidation, and beyond dispute. It is, therefore, good business, good morals, and good law that when parties undertake to conclude a contract, the formation of which is governed by general usage, the implication is they intended to proceed according to the usage if nothing be said to the contrary.
The position of the defendant is that the plaintiff put a “joker” in the written confirmation and now seeks to bind the defendant by a contract which he refused to make. This, of course, begs the entire question. The very purpose of the custom is to eliminate all possibility of “jokers” by securing an agreed statement of the terms of the contract in advance of performance.
The judgment of the district court is reversed and the cause is remanded with direction to ascertain the amount the plaintiff should recover under the terms of the portion of the written confirmation printed above and to render judgment in favor of the plaintiff therefor. It ought not to be necessary to impanel a jury for this purpose. | [
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The opinion of the court was delivered by
West, J.:
This appeal presents the question whether or not the defendant company is liable to the plaintiff by virtue of its contract with The Security Life Association and the certificate issued by the latter to the plaintiff’s husband, Olaf B. Runbeck. It is claimed by the plaintiff that the issuing company was liable on the certificate notwithstanding the fact that the monthly premium was unpaid at the time of her husband’s death, because of a custom long practiced of receiving past-due payments, and that the defendant company is liable by reason of its contract with the issuing company, and also because it took over its entire assets and thereby assumed its liabilities.
The certificate was issued August 1, 1907, and by its terms was made “absolutely incontestable for any cause whatever” after two years, but providing also that it would be void and all payments would be forfeited if not made on or before the date due, with privilege of reinstatement in case of delay upon a certificate of good health and payment of all dues and assessments in arrears.
The first four payments were made promptly; the next two days late; the next eight days latethe next thirty-four days late, and never after that, with one exception, was an assessment paid when due, but no complaint was made and no demand for evidence of good health or notification of lapse, but the regular receipt always came. The last payment made before the holder’s death was due October 1, 1911, and was paid and accepted in the regular way October 20. During the last two years of Mr. Runbeck’s life his payments averaged a little over thirteen days late, but without complaint on the part of the company. A payment was due December 1, but relying upon the custom he failed to pay it upon that date and died on December 6. Immediately thereafter the premium was tendered and a demand made for blanks for proof of death, which tender and demand were refused and liability denied. It was stipulated that the secretary and treasurer had, with the knowledge of Runbeck, “formed a custom of receiving assessments from members aftey their due dates, without requiring evidence of good health as a condition to reinstatement, if he believed that such [members] were in good health, but if he had reason to believe that such members were not in good health,» he required a certificate of good health as required by the certificate so held by the members, and would not accept their assessments in arrears without such showing, it being discretionary with him to require such evidence of good health or not.”
But it was also agreed that past-due payments were received in the manner already indicated, and we have no hesitation in holding that this amounts to a waiver of prompt payment and that such long course of permitting the certificate holder to pay at the times indicated without protest amounted to the adoption of a practical rule that until otherwise notified his payments would be received if made within a reasonable time after they became due. (Fenn v. Life Insurance Co., 90 Kan. 34, 133 Pac. 159; Edmiston v. The Homesteaders, 93 Kan. 485, 144 Pac. 826.)
One of the provisions of the contract between the defendant and the issuing company was “To assume the liabilities of The Security Life Association to the certificate holders of said Security Life Association, in force as of the day of this contract, in accordance with the terms of said certificates.” The contract was dated January 4, 1912, and, as already indicated,, The Security Life Association was at that time liable on the certificate in question.
Various other matters are argued in the briefs, and while they have all been considered they are not vital to the issues and need not be discussed. It may be said, however, that in addition to the facts agreed upon the trial court found that from November 20, 1911, to January 4,1912,.the secretary and treasurer of The Security Life Association consulted with the officers of the defendant company and advised with them as to the facts concerning the claim involved in this action; that in the assets turned over to the defendant company all the receipts of the other company during the period mentioned after the deduction of proper disbursements were included, and that on January 4, 1912, all of its assets of every kind were turned over and accepted by the defendant company.
Finding no error, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This is a partition-fence lawsuit under the guise of an action, for damages by trespassing live stock. The plaintiff owns an eighty-acre tract of land bounded on the north by a tract owned by defendant Henry Ellerman, west of whose tract is another owned by Ed Ellerman. There was much evidence and controversy about a road and a fence between the Noll and the Henry Ellerman tracts, and it is quite manifest that the stock in question was taken up and this action brought as a means and for the purpose of settling a fence controversy and is not a question of damages. Indeed the jury found that no damage was suffered by the plaintiff, and the general verdict was for the defendant. There is nothing whatever in the pleadings to indicate the real nature of the controversy, and when the voluminous evidence is examined it becomes apparent that the matter of damages was about the last thing thought of.
The first assignment of error is in sustaining the demurrer of defendant Henry Ellerman to the evidence of the plaintiff. We have searched the index in vain to find that the demurrer was either filed or sustained, but a careful examination of the abstract itself discloses that such a ruling was made. In the brief the principal contention is1 that the court erred in giving fourteen instructions and in refusing four requested by the plaintiff. Those requested have no reference whatever to anything but partition fences, while those given covered this subject quite fully and fairly and charged the jury that should they find that the fence in controversy was a partition fence, before they could find for the plaintiff they must find that he had sustained damage by reason of the trespassing of the stock of the defendants upon his land. As the jury found adversely to him, it hardly seems necessary to go into these interesting but useless fence discussions.
The contention that nominal damages should have been recovered is answered by the rule that reversals will not be ordered for failure to award nominal damages. (Hickman v. Richardson, 92 Kan. 716, 724, 142 Pac. 964.)
Such examination of the record as the situation justifies has been made, however, and on the ostensible theory of the controversy no error appears, while on the real theory we have discovered nothing to show that prejudicial error was committed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This vras an action of partition in which a controvery arose among the heirs of Charles T. Kruse, deceased, as to the ownership of an eighty-acre tract of the land involved. There was no contention as to the heirs of Charles T. Kruse nor as to the respective shares of each in the land owned by him at the time of his death, but one of the heirs, a daughter, Louisa L. Rose, alleged and offered evidence to prove that although the legal title stood in the name of her father when he died the equitable title and real ownership was in her. It appears that Charles T. Kruse conveyed tracts of land to several of his children and had executed a deed conveying the tract in controversy to Louisa. In 1901 she signed a deed which purported to transfer the title of the land back to her father, but she alleged that she was induced to sign the deed by undue influence and by representations that she would con tinue to be the equitable owner of the land and that it would be reconveyed to her in the future. On the trial it was found that undue influence had been exerted’to procure the execution of the deed, that there was an understanding between her and her father that she was the owner-of the land although the legal title had been placed in him, and also that it should be re-conveyed to her. It was further found that her father paid no consideration to her for the execution of the deed. The court therefore adjudged that she was the owner of the land and that the title, both legal and equitable, be quieted in her.
It is contended that the findings and judgment are not sustained by the evidence. There was testimony that the land was owned by Louisa when it was conveyed to her father in 1901, that no consideration was paid by him for the conveyance, that he frequently stated to others that the land belonged to Louisa, and that during the time that the legal title was in him permanent improvements of considerable value were made by her.
On the question of undue influence there was testimony to the effect that she was afflicted with a nervous illness and occasionally had spells which weakened her so that she did not understand what she was doing or what was transpiring about her; that some members of the family urged her to deed the land to her father on the ground that part of the time she was not conscious of what she was doing and that some one would get her land away from her; that they pressed her to do so when she was nervous and sick as often as once or twice a day; that a man had called upon her and proposed marriage, one whom her folks did not like, and they insisted that if she got married her husband would get the land away from her. She testified further that she signed the deed to the land with no intention of giving it to her father but because she had been led to think “somebody might get it away from me.” Although there is conflicting testimony there appears to be sufficient to support the findings that she was induced to sign the deed by undue influence which overcame her will, so that the deed did not express her mind and intent, but rather that of others. Her evidence was sufficient to bring the case within the rule of the decided cases, and the instruction of the court upon the subject was in line with the rule heretofore declared in this court. (Mooney v. Olsen, 22 Kan. 69; Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A., n. s., 1024.)
The plaintiffs insist that in no view should Louisa have been awarded more than a life estate in the tract. This contention is based upon a remark made by Louisa in giving her testimony to the effect that if she would deed the land to her father they, the family, would fix it so that it should be hers as long as she lived. Another witness quoted a similar remark. It is clear from all the testim'ony, however, that she was not thinking or speaking of a life estate in the land, but rather that the land was to be hers always notwithstanding that the legal title stood in the name of her father. The entire testimony, accepted by the court, indicates that she was to have the owfiership of the land just as she did before the deed to her father was executed.
Complaint is made of the admission of testimony that in the neighborhood Louisa was generally reputed to be the owner of the land. It is true, as plaintiffs contend, that title itself can not be established by reputation of ownership, but it is also well settled that evidence of notoriety of claim of title in the vicinity of the land may be received to show the character of the possession and to charge residents of the neighborhood and those dealing with the claimant with notice of the claim. Competent evidence of title to the land in Louisa had been produced before testimony of neighborhood notoriety of her claim had been produced, and sufficient proof of title having been made it is not improper, or at least not prejudicial, to show reputation and notoriety of her claim of ownership. (Harvester Co. v. Myers, 86 Kan. 497, 121 Pac. 500, 39 L. R. A., n. s., 528; Maxwell Land Grant Co. v. Dawson, 151 U. S. 586, 14 Sup. Ct. Rep. 458, 38 L. Ed. 279; Tennessee Coal, Iron & Railroad Co. v. Linn, 123 Ala. 112, 26 South. 245, 82 Am. St. Rep. 108; Knight v. Knight, 178 Ill. 553, 53 N. E. 306; Sparrow v. Hovey, 44 Mich. 63, 6 N. W. 93; 1 Cyc. 1151; 2 C. J. 275.) Her father and the other members of the family had knowledge of her possession of the land and of the permanent character and value of the improvements made by her upon it, and from the notoriety of her claim of ownership in the neighborhood it may well be assumed that it came to the notice of the father as well as the appellants herein.
We find nothing substantial in the claim that the findings of the jury are inconsistent, or in the criticisms of the instructions, nor in any of the other errors alleged.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by The German American State Bank against George S. Badders as maker and Thomas W. Andrews as endorser of a promissory note made by Badders in favor of Andrews, and endorsed by Andrews and sold by him to the plaintiff before maturity. A copy of the note was attached to the petition, and it was alleged that the following words, “Presentation, demand, protest and notice of protest waived,” preceded the signature of Andrews at the time of his endorsement. Defendant Andrews pleaded that no such recital was on the note when he endorsed it. In answer to a special question the jury found that Andrews’ contention on this issue was true.
Plaintiff’s petition in part reads:
“Further complaining, plaintiff says that said note is now long past due and unpaid; that demand has been made upon said defendant, George S. Badders, and upon the defendant, Thomas W. Andrews, for the payment of the same, and said parties and each of them have wholly failed and refused to pay said note.”
Part of defendant’s answer reads:
“Further answering, defendant alleges that said note by its terms became due and payable on November 25, 1911, and that on said date and at all times thereafter plaintiff was the owner and holder of the same, and that on said November 25, 1911, and at all times since said date, plaintiff .has failed and neglected to legally present said note to George S. Badders for payment, and at said time and at all times thereafter has failed .and neglected to demand payment of said defendant George S. Badders, and on said 25th day of November, 1911, and at all times thereafter plaintiff has failed and neglected to give to this defendant any legal notice of the dishonor and nonpayment of said note by said defendant George S. Badders, and on November 25, 1911, and at all times thereafter said plaintiff has failed and neglected to legally protest said note for nonpayment and to give any notice of any protest to the defendant Thomas W. Andrews.”
This action was filed in the district court on May 6, 1912. An amended petition was filed January 15, 1913. The answer was amended and a reply to the amended answer was filed May 1, 1913. The answer was refiled February 23, 1914. We note these details because of the court’s refusal to permit another amendment to plaintiff’s petition on February 24, 1914, which was the day of the trial. The proposed amendment reads:
“That at the time said defendant, Thomas. W. Andrews,' endorsed said note he informed the plaintiff he was about to leave for California for an indefinite length of time, and that said defendant did immediately leave for California, but that said defendant never told plaintiff he was leaving for California to establish his residence, whereas the said defendant, Thomas W. Andrews, then and there left Kansas to make a permanent residence in the state of California; that when said defendant, Andrews, left Kansas at said time and before the maturity of said note, he did not leave with the plaintiff his address in California and never thereafter sent or notified the plaintiff of his address; that as soon as the defendant, Badders, upon presentment, failed to pay said note, plaintiff diligently sought to locate the whereabouts of said Andrews in California, and was unable to do so until about the eighteenth of December, 1911, when said plaintiff duly notified said defendant, Andrews, of the nonpayment of said note by defendant, Badders, by letter then and there deposited in the United States mails at Topeka, Kansas, and addressed to said Thomas -W. Andrews at what the plaintiff was informed was his residence in the city of Los Angeles, California; that by due diligence said plaintiff was unable to locate the residence of said defendant, Thomas W. Andrews, until said date; that said plaintiff exercised all reasonable diligence in attempting to locate said defendant, Andrews, and that the delay of notice of dishonor was caused by cir cumstanees beyond its control, and not imputable to his fault, misconduct of negligence; that at the time said note was dishonored it learned for the first time that said defendant, Thomas W. Andrews, had removed his permanent residence to the state of California, but was unable to learn his exact address until the eighteenth day of December, 1911, when said notice was mailed to him.”
Aside from the one special finding on the question of the existence of the recitals of waiver on the note at the time Andrews endorsed it, the verdict was a general finding for defendant.
The bank appeals on the following assignment of errors:
“1. The court erred in denying the plaintiff the right to amend its petition, whereby plaintiff sought to show an effort 'to serve notice of the default in the payment of said note by Badders, the exact residence of the endorser being unknown.
“2. The court erred in holding'that the facts in the proposed amended petition did not constitute a cause of action in favor of the plaintiff and against the defendant, Thomas W. Andrews.
“3. Abuse of discretion in denying the plaintiff the amendment of its petition after allowing an amendment the day before by the defendant, Thomas W. Andrews, raising a new issue in defendant’s answer.”
1. Touching the first error assigned, the abstract and counter-abstract show that the trial court did permit the introduction of evidence on the matters alleged in the proposed amendment; in other words, the record shows that the court treated the amendment as made. The president and vice-president of the bank testified as to their efforts to locate and notify Andrews in California and as to their misunderstanding that he resided in Rossville, Kan. Andrews was cross-examined on the same subject; and we must hold that this assignment does not approach any serious error.
2. On the second assignment, it may be conceded that the objection offered to the proposed amendment, “that the facts stated therein do not constitute a- cause of action,” was hardly the precise objection to make. The amendment did not profess in itself to be a cause of action; it was merely some precautionary recitals to perfect a cause of action already pleaded, but whatever the ground of the objection, the ruling was not prejudicial since the court permitted evidence on the subject-matter of the proposed amendment, and the issue thus raised was submitted to the jury and covered by the court’s instructions.
3. Was there an abuse of the court’s discretion in refusing to allow the amendment proposed on the day of the trial? It will be noted that the court treated the amendment as made by permitting evidence on the matters set out in the proposed amendment. The want of notice of the maker’s default had been pleaded many months before the trial. Moreover, plaintiff had pleaded demand upon both Badders and Andrews, and that issue had been traversed long before the trial. By that issue plaintiff was fully apprised that the liability of Andrews would turn on the question of notice to him or a sufficient reason for delay in notifying him of Badders’ default. Plaintiff had already been permitted twice to amend its petition. The abstract reads:
Counsel for plaintiff:
“The plaintiff now offers to amend its petition in conformity with the motion filed herein—
“The Court: When the case is called for trial.”
Counsel for plaintiff:
“That in pursuance of the motion to amend, by inserting paragraph four and a half. Plaintiff now offers to amend — plaintiff having examined same, now on the morning the case is ready for trial—
“The Court: Let the record state as the court says, when the case is called for trial — the case having been called fpr trial, the plaintiff asked to amend his petition — ”
Counsel for defendant:
“That is not correct — to amend its second amended petition.
“The Court: All the court wants is for the record to state the facts.” Counsel for plaintiff:
“That is all I want, but I want them to state it correct.
“The Court: The case having been called for trial, the plaintiff asked to amend his second amended petition. Now that, is the fact as I understand it.”
As this court has often held, the allowance or refusal of amendments to pleadings is within the sound discretion of the trial court. (Wands v. School District, 19 Kan. 204; Krouse v. Pratt, 37 Kan. 651, 16 Pac. 103; Insurance Co. v. Warbritton, 66 Kan. 93, 71 Pac. 278; Land Co. v. Rathburn, 84 Kan. 664, 114 Pac. 862; Benfield v. Croson, 90 Kan. 661, 136 Pac. 262; Alexander v. Clarkson, 96 Kan. 174, 182, 150 Pac. 576.)
But it is said that an amendment to defendant’s answer was permitted on the day before the trial, which raised a new issue, thus putting the plaintiff at a disadvantage, and that plaintiff’s proposed amendment should have been allowed on that account. This conclusion is to be inferred rather than positively urged. Defendant’s amendment was merely an allegation that if the recitals of waiver were on the note when endorsed they were so dim that they could not be seen. Since the jury found that the recitals of waiver were not on the note at the time of Andrews’ endorsement, this amendment was of no consequence, and furnished no reason for the belated amendment proposed by plaintiff.
We can discover no abuse of discretion on the part of the district court, nor are we able to discover any reversible error in this case. The general verdict must control, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In December, 1897, Annie M. Greenwood, as plaintiff, obtained a divorce from Ashford W. Greenwood. She was given the custody, maintenance and education of the minor children, Grace and Helen, . Helen being the younger. The decree provided further as follows:
“And it is further ordered and decreed that the said plaintiff shall have, and there is hereby set apart to her as her separate estate, as and for her alimony in said action the following-described real estate [describing it], to be held by the said Annie Greenwood, in trust for Grace and Helen Greenwood until the said Helen Greenwood shall attain her majority, and at the expiration of said time or upon the death of both of said children before said time the title to said property shall vest in the said Annie Greenwood absolutely and in fee.”
In February, 1909, Annie M. Greenwood, desiring to dispose of the land on contract and to convey the full title thereto when she became absolute owner, contracted to sell and convey the land by warranty deed to her former husband for a stated consideration payable in installments which bore interest. Possession was to be delivered at once. One thousand dollars of the consideration was to be paid to the children, Grace and Helen, on or before March 1, 1914, and a further sum of $125 was to be paid to them on delivery of the deed. The younger child became of age on October 17, 1913. Possession was not delivered to the vendee and his timely tenders of payments to the vendor were refused. On October 18, 1913, the vendee commenced this action for specific performance and for rents and profits. The defendant answered that the contract was procured by false representations and that it was executed in violation of the terms of the divorce decree. The reply pleaded former adjudication of the subject of false representations. The court made elaborate findings of fact and stated conclusions of law favorable to the plaintiff. Judgment was rendered against the defendant for rents and profits. The plaintiff was required to deposit the portion of the purchase price due the defendant, less the sum allowed for rents and profits, with the clerk of the court, to be paid to the defendant on execution and delivery of her warranty deed. The sums which the plaintiff agreed to pay to the children were made a lien on the land. The defendant appeals.
In October, 1909, the defendant commenced ah action in the district court of Wabaunsee county to cancel the contract on the ground that it was induced by false and fraudulent repre- ■ sentations concerning the value of the land made by the vendee and relied on by the vendor. The cause of action stated in the petition in that case was identical with the ground of defense' stated in the answer in this case. In this case the court found: that the issue was tried and determined against the defendant; in the former suit on substantially the same evidence as that produced in this case. That should have ended the defense of fraud. The court, however; found with great care all the facts relating to the alleged fraud, and then specifically found as an ultimate fact that the plaintiff did not make fraudulent representations to the defendant in the matter of the purchase of the land in controversy. The defendant argues that the latter finding was a conclusion of law and desires this court to canvass the evidentiary findings and to conclude from them that the defendant was defrauded. The district court knew perr fectly well what it was doing, and when finding with respect to the issues of fact determined this one and determined it against the defendant.
The defendant argues that the former adjudication extended no further than that sufficient cause for cancellation was not established, that sometimes specific performance will not be decreed although cancellation would not be ordered on the same evidence, and consequently that the charge of fraud based on the same facts as before was open to investigation in this suit. The premises may be conceded, but the conclusion does not follow. The case of Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202, is cited. In that case Burnside employed the granddaughter of a woman eighty years old and wholly ignorant of a sudden rise in the value of her land to induce her to consent to a sale of the land to him at about one-half its value. It was held that specific performance should be denied, although the vendee had not been guilty of actual fraud. The syllabus reads:
“Specific performance is not a matter of right but of equity, and rests in the sound legal discretion of the court. Before the relief will be granted the contract must appear to have been entered into with fairness and' without any undue advantage or imposition, and the facts and circumstances must be such as appeal to the conscience of the court and compel its discretion.” (¶ 1.)
In the opinion it was said:
“Although the proof might come far short of a showing sufficient to authorize the court to grant a rescission or cancellation of a contract, still on the same proof equity will often refuse to compel performance. For instance, a court of equity will not decree a rescission of a contract except for fraud or mistake. Inadequacy, improvidence, surprise and hardship are not sufficient, yet the presence of these, amounting to unfairness, even without fraud or mistake, will prevent a court of equity from ordering performance. While inadequacy of price is not sufficient of itself to avoid a decree for performance, it is a circumstance which will be taken into consideration with all the facts in determining whether a court of equity is called upon to afford relief.” (p. 876.)
Suppose, however, an attempt had been made to inject into the controversy some alleged fact which had been adjudicated not to exist in a previous action for cancellation. For example, suppose inadequacy of price had in fact been one of the former issues necessary for determination and it had been adjudicated that the price was fully equal to the value of the land. Suppose mental capacity of the vendor to contract had been in issue and had been adjudicated. The public policy which is the basis of the doctrine of res judicata would have forbidden the relitigation of those issues. So here, fraudulent representations of the vendee to the vendor concerning material facts, whereby the vendor was induced to contract, were excluded from the facts and circumstances which the court was called upon to weigh in determining whether or not specific performance should be decreed. That was the sole issue in the former action, ¿nd, not as in a specific-performance case, the granting or the refusing of the relief sought depended on whether or not that issue was sustained. Having successfully met the issue once, the plaintiff was not required to meet it again.
With the issue of fraud disposed of there was little left of the defense. The price paid was $90 per acre and it is said the price was grossly inadequate. An attempt was made at the trial in 1914 to establish the fair value of the land in February, 1909. A gradual advance in land values had been continually going on and witnesses differed in their estimates as much as $45 per acre. From all the evidence the court was unable to do more than fix a range of value of from $100 to $105 per acre. The defendant was a capable and experienced business woman who for some years had been operating successfully in city real estate in Topeka. The land consisted of a tract of seventy-six acres and was situated thirty miles away from the scene of the defendant’s business operations. She had trouble with her tenants and was unable to secure from them proper returns. She knew the physical condition of the property, the improvements upon it, and its productiveness, and she was not prevented by the plaintiff or any one else from ascertaining its true value. She herself initiated the negotiations which led to the making of the contract. While negotiations were pending, and in December, 1908, she received a tax receipt which disclosed an assessed valuation of the land of $87.50 per acre. After that she held it at her own price of $7000, refused the plaintiff’s offers of $80 and then $85 per acre, and finally accepted his offer of $90 per acre, or $6840, to which $125 as interest was afterwards added. Interest on the contract price at five per cent, the rate^which the plaintiff agreed to pay, would produce an income greater than the net income the defendant was receiving from the land when she sold it.
In actions for specific performance the term “adequate consideration” does not mean the full equivalent of value. It means a consideration which is not so greatly disproportionate to value as to offend against the fair dealing which should characterize business transactions. Measured by that standard the plaintiff paid an adequate consideration for the land. Besides, this, something more than inadequacy of price is necessary before specific performance will be refused.
It is possible the defendant may now; regret that she agreed to divide the consideration to be received for the land with her children. If so such stress of mind affords no basis for relief from the obligation of a contract.
The fact that the value of the land has greatly increased with the general rise in land values since the contract was made affords no ground for denying specific performance. The plaintiff is entitled to the fruits of his bargain precisely as the defendant would have been entitled to the fruits of her bargain if land values had fallen. (Niquette v. Green, 81 Kan. 569, 106 Pac. 270.)
So far as the interest of the children in this controversy is concerned specific performance is distinctly beneficial to them. In December, Í909, the children, ostensibly, and by a next friend, moved in the district court of Riley county, the court which granted the divorce, for a cancellation of the contract on the ground that their means of support was jeopardized. The court undertook to cancel the contract, but it was held on appeal that while the interests of the children might be protected by the divorce court it had no jurisdiction to annul the contract. (Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828.) The proceeding was afterwards abandoned.' If its Object had been attained the children would now be poorer in the sum of $1380.56.
The circumstances that the grounds of the divorce were extreme cruelty on the part of the plaintiff, that except for Christmas and holiday presents to the children of not more than $50 per year .the plaintiff permitted the burden of supporting them to rest where the court had placed it until about the time the children entered college, and that the defendant and one of the children had typhoid fever at the same time and the plaintiff did not contribute to their hospital expenses, are mere stage properties employed to give scenic effect to the defendant’s presentation of her case. They have nothing whatever to do with the merits of the book.
There is nothing else worthy of notice in the findings of fact to sustain the defendant’s position that the court abused its judicial discretion, enforced an iniquitous contract, and thereby produced a result “abhorrent to the dullest sense of justice and contrary to law and equity.” This court is of the opinion the district court did right.
There remains to be considered the defense that the contract was void because it violated the terms of a trust. As this court observed in the case of Greenwood v. Greenwood, supra, the divorce decree was very indefinite respecting the interests the children were to have in the land. The nature and quantity of their interests were not defined, and the manner in which the trust was to be performed was not described. These are necessary elements in the declaration of a trust, and when the language is so vague, general or equivocal that they are left in uncertainty the trust fails. (3 Pomeroy’s Equity Jurisprudence, 3d ed., § 1009; Simpson v. Simpson, 80 Cal. 237, 22 Pac. 167.)
The divorce decree charged the defendant with the duty of maintaining and educating the children. In order that the defendant might have means with which to discharge that duty the court gave her the land in controversy. It was supposed the land would be a source of income, and the purpose' was that such income should be devoted so far as might be necessary to the support of the children during their minority. That was the full extent of their interest. This court so interpreted the decree when the children were here contending for their rights, and is now satisfied that the interpretation was as favorable to the children as was permissible. If this were not the case the court would hesitate to change the interpretation now, increase the interest which the children formerly had, but which has expired, and thereby enable the defendant to defeat the interest they now have in her contract with the plaintiff. The only limitation on the defendant’s proprietorship was that the land should form a source of income to be devoted to the support of the children so far as might be necessary until the younger child became of age. With the occurrence of that event oh October 17, 1913, the limitation was to cease, and did cease. Manifestly here was an estate in land concerning which the defendant was at perfect liberty to contract. She could sell or could give away her personal interest according to her own will. Besides this, she could bind herself by a contract concerning the entire estate without violating any rule of law or morals. She could even contract to give immediate possession to a purchaser, depending, perhaps, on securing approval of a sale whereby the land might be converted into a fund which would produce an income during the minority of the children and which would finally be shared with them. Should she fail in securing such a substitution the purchaser might not be able to secure or hold possession. The land might still stand as a source of income for the support of the children during minority, but it is elementary law that the contract would nevertheless be a valid contract between the parties. The purchaser could compel a conveyance of all the interest the vendor possessed, and' could recover by way of damages the value of the use of the land for the time he was deprived of the possession contracted for. That is this case.
It so happens that the plaintiff was not entitled to a deed until the younger child attained her majority and the defendant’s ownership became absolute. The defendant has kept the plaintiff out of possession, and it is not now material what courses might have been pursued for the protection of the children under other circumstances. The defendant has no interest in the portion of the purchase money belonging to her adult children and can not question the character of the order of the court made for their benefit.
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 begun by Jasper Helms against The Southwest Missouri Railroad Company to recover damages for personal injuries alleged to have been received while alighting from one of defendant’s cars. The defendant company operates a line- of street cars extending from Carthage, Mo., to Galena, Kan. On September 24,1912, plaintiff, a man between fifty-five and sixty-five years of age, boarded one of defendant’s cars in Joplin, Mo., paid his fare and told the conductor where he wanted to get off in Galena. When near Wood street in Galena he arose from his seat in the car and informed the conductor that he desired to alight at Wood street. The car began to slow down and plaintiff stepped down onto the lowermost step. As the car passed over the street intersection plaintiff alighted and fell, sustaining an injury to his right arm, and to recover damages for this injury this action was brought. Defendant moved for a continuance because of the absence of one of its principal witnesses, but this was denied. Plaintiff moved to quash the deposition of one of defendant’s witnesses on the ground that insufficient time had been given in the notice and also that the notary public had failed to attach her seal to the certificate. The court sustained plaintiff’s motion and suppressed the deposition. On the trial plaintiff offered evidence tending to show that his fall from the car was caused by a sudden jerk of the car, whereas defendant’s witnesses testified that plaintiff deliberately stepped from the car while it was yet in motion despite warnings from the conductor not to do so, and also that the conductor undertook to catch hold of plaintiff and prevent him from falling. The jury made special findings of fact and fixed the amount of plaintiff’s recovery at $400, allowing $30 for loss of time and $370 for pain and suffering. The defendant appeals.
Defendant’s first complaint is of the adverse rulings on its motion for a continuance and on plaintiff’s motion for the suppression of its deposition. While the court was in session on Monday, March 2, 1914, the defendant gave notice that the deposition of a witness would be taken in Sapulpa, Okla., on Wednesday, March 4, at eight a. m. The law requires that notice must be given so that the adverse party shall have a fair opportunity to attend, going by the usual route of travel, and one day for preparation, exclusive of Sundays and of the day of service. (Civ. Code, § 343.) Excluding Monday, the day of service, and Tuesday, the day of preparation, the plaintiff to reach Sapulpa at eight o’clock Wednesday morning by any route would have been required to take a train from Galena on Tuesday night, or rather Wednesday morning, at 1:20 a. m., go to Baxter Springs and there transfer to another line at 2:12 a. m., and if that train was not late he would arrive at Sapulpa Wednesday morning shortly before eight o’clock. Within the contemplation of the law the time given was not reasonable or sufficient. The plaintiff was entitled to all of Tuesday for preparation and a reasonable opportunity thereafter to reach Sapulpa, Okla., according" to the ordinary conveniences and usual route of travel. It is not reasonable to require unusual exertion by the adverse party in order to reach the place where the depositions are to be taken within the time fixed by notice. To compel the plaintiff to start shortly after midnight of Tuesday, change to another train an hour later, and begin the taking of depositions shortly after the arrival on Wednesday morning can not be regarded as reasonable. It was held in Hartley v. Chidester, 36 Kan. 363, 13 Pac. 578, that it was unreasonable to require a party to use the day fixed for the taking of the depositions in traveling to the place where they were to be taken. No error was committed in suppressing the deposition.
A continuance was asked because of the suppression of the deposition, and the testimony given by the witness in the deposition was made a part of the motion. An examination of it shows that the proposed testimony was cumulative in character, and the exclusion of the evidence, even if it had been properly taken, could hardly have affected the result. No error can be predicated on the ruling refusing the continuance on that ground.
A motion for a continuance was also based on the absence of witness Pickett, but the affidavit reciting the testimony he would have given if he were present was admitted and read to the jury, and the refusal of the continuance upon that ground is not error.
Complaint is made that the court erred in overruling the demurrer to plaintiff’s evidence and in holding that there was evidence to sustain the findings and verdict of the jury. There appears to have been sufficient evidence to take the case to the jury and to uphold the findings. The evidence was conflicting as to whether there was an unusual jerk of the car after it had slowed down and as the plaintiff was about to alight from it. It is true, as defendant contends, that more witnesses testified in support of the theory of the defendant that there was no unusual jerk, but competent witnesses that were believed by the jury testified that there was a jerk when the plaintiff was on the steps of the car and about to alight from it. The credibility of these witnesses and the truth of their statements have been determined by the jury. The company was required to exercise the highest degree of care in carrying the plaintiif and other passengers and is responsible for injuries resulting from the failure to exercise such care towards them. In view of the testimony it must be held that whether the defendant failed to exercise due care towards the plaintiff was properly left to the decision of the jury.
It is contended that plaintiff was chargeable with contributory negligence in placing himself in a position of danger by leaving his seat and going out upon the rear platform and upon the steps preparatory to alighting from the car while it was in motion. It has been held that it was not contributory negligence per se for a passenger to attempt to alight from an ordinary railway train while it was running slowly, and whether the act constituted negligence which would bar a recovery was a question to be determined by the jury after considering the speed of the 'train, the conduct of those in charge of it and all of the circumstances connected with the attempt to alight. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) In another case the plaintiff suffered an injury while she was boarding a street car, and which resulted, she alleged, from starting the car with a sudden jerk. At the time she was stepping from a running-board to the floor of the car, and she claimed that she was thrown off by the violent jerk, and upon the question as to whether her act was negligence or a question for the jury to decide it was said:
“ ‘Safety on’ is a relative term. Most passengers are safety on when clear of the ground. Some ride safety on the running-board. Certainty it is not necessary to hold a car until an incoming passenger goes through it, inspects the seats and the passengers already aboard, chooses a location, and sits down. Then, the manner in which the car is started and moved may be considered in connection with the situation of the passenger. It may be started without jerk or shock and proceed by such slow and gentle motion that his progress into the car is not disturbed. . . . The jury should be allowed to say not only what the facts are but whether under all the circumstances the conduct of the defendant was negligent.” (Railway Co. v. Warren, 74 Kan. 244, 249, 250, 89 Pac. 656.)
To make preparation to leave a street car while it is in motion can not be declared to be contributory negligence as a matter of law. It is a common practice among passengers to leave their seats as the car approaches the stopping place, a practice which is not regarded to be necessarily dangerous by either carriers or passengers. Travel would be greatly impeded if passengers proposing to alight from street or interurban cars should keep their seats and make no preparation to leave until the car was brought to a standstill. According to the plaintiffs testimony he had notified the conductor of his desire to alight at the street crossing. The car began to slow down, and the plaintiff therefore assumed, and had a right to assume, that the car was about to stop. Acting on that assumption he moved to the exit and out upon the steps, from which he was to alight. While in this position, after the car had slowed down almost to a stop, there was a sudden jerk which threw plaintiff upon the ground and caused the injury. Accepting his testimony as true, as we must, the court can not say that he was negligent as a matter of law nor that there was no basis for the finding of the jury against contributory negligence.
Defendant contends that the judgment should be set aside because the jury had brought in what is called a quotient verdict. It appears that there was some difference of opinion as to the amount which should be allowed to the plaintiff for loss of time and for pain and suffering. No other damages were awarded. It appears that after learning of this division each juror marked down on paper his estimate of the damages. These were added together and divided by twelve, and the result was $400. This result was not accepted as a verdict, but later upon further consideration another ballot was taken and an agreement was reached that $400 should be the extent of the recovery. Consideration was afterwards had as to the items that entered into the verdict, and it was agreed that $30 was the allowance for loss of time and $370 for the pain and suffering endured by plaintiff. Under the rule of former cases the court was warranted in approving the verdict. (City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222; Campbell v. Brown, 85 Kan. 527, 117 Pac. 1010; Rambo v. Electric Co., 90 Kan. 390, 133 Pac. 553; Sims v. Williamsburg Township, 92 Kan. 636, 141 Pac. 581.)
All the assignments of error have been examined, and we find no substantial error in any of them.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This suit was brought to enjoin the enforcement of an ordinance enacted by the city of Wichita prescribing certain regulations and requiring certain licenses from persons operating jitneys and other motor vehicles. The ordinance is attacked as void because prohibitive and unreasonable.
Without going into unnecessary detail it is sufficient to say that .numerous regulations are laid down for the control of the vehicles in question, and a license of $25 to $35 is required according to their capacity. Section 4, however, requires that before the owners of such vehicles shall be permitted to solicit or receive passengers on or along the paved portions of certain designated streets they shall pay an additional license of $300 to $400, according to the capacity of the vehicle. It is asserted and we are convinced that as to these specifically designated places the requirement is and doubtless was- intended to be practically prohibitive. We find no other feature of the ordinance about which serious question could arise as to reasonableness, and it is convincingly apparent that regardless of this requirement of section 4 the ordinance would have been enacted and would be valid. So the validity of this one provision is the sole question for determination.
It is not only suggested and to some extent proved, as shown by the record, but it is well known that the street-car system in the city of Wichita is one long established, that the company is required to pay taxes, to keep up and maintain its tracks and to submit to such reasonable regulations as may be prescribed for its operation. Its maintenance and continuance involve not only the investment and profit or loss upon a large sum of money but to a great extent the convenience and necessity of the city and its inhabitants. Jitneys and similar vehicles run not upon tracks laid at their owners’ expense but upon the public streets, with no burden of providing depots or waiting stations, or outlay except the mere cost of vehicles and their operation. No doubt persons thus operating these conveyances for hire must be classed as and are common carriers. Being such they are of legal necessity subject’to regulation and control as are other common carriers of passengers for hire.
The presumption of good intention must be accorded the city in passing the ordinance. The same rules of construction apply as to a statute, and unless clearly void the enactment must be upheld. (Swift v. City of Topeka, 43 Kan. 671, 23 Pac. 1075; Denning v. Yount, 9 Kan. App. 708.)
That the effect of section 4 is incidentally or necessarily to benefit the street railway company is not the last word to be said. It is of interest quite vital to the municipality that a street-car system not only exist there but that it be able to subsist and furnish proper and needed service. It is not a misuse of power so to legislate that this result can be accomplished, merely because it involves an advantage to the utility in question as well as to the municipality.
There is no attempt to exclude from all the streets. On the contrary, all streets and parts thereof except those thus specially reserved are expressly permitted to be traversed at will.
The constitution vests in the legislature authority to make provision by general law for the organization of cities, towns and villages. (Art. 12, § 5.) This has been held to add nothing to the general grant of legislative power expressed in section 1 of article 2. (Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207.) The legislature may rightfully prescribe the powers of a city “subject only to constitutional restrictions.” (Roby v. Drainage District, 77 Kan. 754, 759, 95 Pac. 399.) It can act directly or through some other body. (The State v. Railway Co., 81 Kan. 430, 105 Pac. 704; The State, ex rel., v. City of Hutchinson, 93 Kan. 405, 410, 144 Pac. 241.) In pursuance of this power the legislature has conferred on cities authority to do a variety of things.
“To ... do all other acts in relation to the . . . concerns of the city necessary to the exercise of its corporate or administrative powers.” (Gen. Stat. 1909, § 1214, subdiv. 4.)
To adopt all necessary measures for the protection of the traveling public. (§ 1254.) To fix the rate of carriage of persons. (§ 1255.) To vacate and close any street or alley or portion thereof. (§ 1286.) To require the construction of viaducts or tunnels over and under streets or tracks. (§ 1289.) To levy and collect a license tax upon and regulate all occupations conducted in the city, “including . . . hackney or livery carriages . . . and all wagons and other vehicles transporting . . . passengers for pay.” (§998. See, also, § 1334.) To issue bonds for the purpose of purchasing, constructing or extending utilities, including a street railway. (Laws 1913, ch. 123; Senate J. R. No. 15, Laws 1913, p. 199.) To construct viaducts and assess the cost to a street railway company. (Laws 1913, ch. 106.) To acquire title by purchase, gift or condemnation of lands for public feed lots and to have supervision and control -thereover. (Laws 1915, ch. 127.) In Kansas City v. Overton, 68 Kan. 560, 75 Pac. 549, an ordinance was upheld requiring hucksters or hawkers to pay a license of $35 a month and a helper or assistant to pay a license of $15, and exempting from its operation those who personally sold the produce of their own or leased lands. In Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, upholding the validity of the statute authorizing the charter board to refuse a bank charter where it deems that no public necessity therefor exists, it was pointed out that the alleged common-law right to engage in the banking business must be governed by the wants and conditions of the people, and that it is one of the functions of the legislature to provide such new rules subversive of the common law as it may deem proper for the welfare of society in the changing conditions incident to progress. It was said that to decide the act in question void would be merely to substitute the court’s opinion for that of the deliberate judgment of the legislature; further, that the act does not prohibit persons from engaging in the banking business but from needlessly duplicating an established business regardless of the public necessity. The same doctrine applies here. Modern requirements for municipal transportation render it essential that the power to regulate by the governing body be broad. In Telephone Co. v Telephone Association, 94 Kan. 159, 146 Pac. 824, involving the establishment of a competitive telephone service in a field already occupied, it was suggested in the opinion (p. 165), that a mere rival can have no such interest as will permit it to maintain an action to prevent competition; that such matters are to be controlled by those acting for the public, in that case the Public Utilities Commission, the statute having provided as a matter of public policy that a telephone company, unless a mutual one, will not be authorized to do business until it has obtained a certificate or a license of authority “as a public convenience and necessity within the community where it seeks to do business.” (p. 166.) More closely analogous, perhaps, is O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551, to the effect that under a statute giving power to make regulations to secure the general health, to prevent and remove nuisances and to compel and regulate the removal of garbage beyond the corporate limits, a city may grant an exclusive right to the highest bidder to remove all the garbage. It was vigorously contended that citizens have a natural or inherent right to remove the garbage from their own premises if they so desire and that discrimination and favoritism were not in contemplation when the power referred to was vested in the municipality. But the court declared that, “The decided weight of authority supports the right of a municipality either itself to take over the conduct of a business, the manner of operating which may affect the public welfare, or to put it entirely in the hands of a single individual or company.” (p. 340.) It was also said (p. 342) that while monopolies are against public policy this is a rule of the common law not binding upon the legislature.
Underlying all this authority is the substratum of reasonableness, for arbitrary, unreasonable or capricious enactments are not a use but an abuse of legislative power. Nevertheless, those who pass ordinances for a city, like those who enact statutes for a state, are primarily the judges of what reasonable requirements are, and it is not for the courts to interfere unless and until it appears beyond question that the thing done was not a use but a misuse of power.
“Before, however, courts will interfere and declare a license tax to be unjust or unreasonable, a flagrant case of excessive and oppressive abuse of power by the city authorities in the levying of the license tax must be established.” (City of Lyons v. Cooper, 39 Kan. 324, syl. ¶ 1, 18 Pac. 296.)
(See, also Lebanon v. Zanditon, 75 Kan. 273, 275, 89 Pac. 10; Stark v. Geiser, 90 Kan. 504, 506, 135 Pac. 666.)
Whatever natural right a citizen may have to traverse the streets of his city with a motor vehicle for the conveyance of his-family or his friends, no inherent right exists to devote his vehicle to the public use of carrying passengers for hire and to appropriate to himself the use of all the streets for purposes of profit.
Beyond question, the city could vacate one or more of the streets over which he might desire to operate. It can not only require him to pay a license tax but it may also regulate the manner of his carrying on his enterprise. Why may it not classify motor vehicles by themselves and refuse to permit them to crowd congested portions of the business streets where patrons of another class of vehicles — street cars — must alight and take passage ? Suppose, indeed, a company or corporation owning motor vehicles had the facilities and the desire to occupy all the streets to the utter destruction of the street-car business. Would the city have nothing to say? Is the municipality a mere automaton, helpless in the presence of crowding and conflicting enterprises and scrambles for business which involve the comfort, the convenience and the safety of the traveling public ? Not so.
The power to regulate livery and sales stables has been held to include the right to designate their location and to prohibit their erection at other places. (City of St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, 20 L. R. A. 721.) In licensing the use of vehicles on streets it has been held that the city is exercising its police and not its taxing power. (Tomlinson v. City of Indianapolis, 144 Ind. 142, 43 N. E. 9, 36 L. R. A. 413, and Note as to authority of municipalities.) It was held by the Texas court of criminal appeals in Ex Parte Savage, 63 Tex. Crim. Rep. 285, 141 S. W. 244, Ann. Cas. 1913 D, 951, that an ordinance providing for an official bill poster who shall have the sole power to post bills and advertisements does not violate the Texas statute against monopolies. While denying the validity of the particular ordinance in question for other reasons, it was declared that the city might regulate the erection and maintenance of billboards and prevent the maintenance, of others, except as authorized substantially by the ordinance, and require persons before pursuing such business to procure proper license therefor. In McFall v. City of St. Louis, 232 Mo. 716, 135 S. W. 51, 33 L. R. A., n. s., 471, an ordinance was upheld which licensed hack drivers who could procure the consent of abutting property owners and denied the same privilege to those who could not obtain such consent. As to the power of the city to establish exclusive hackstands, see Note, 33 L. R. A., n. s., 471. Many exclusive franchises are held not be unlawful although creating legal monopolies. (27 Cyc. 896.) In the case of In re William Hoffert, 34 S. Dak. 271, 148 N. W. 20, 52 L. R. A., n. s., 949, the statute under consideration imposed a registration fee of six dollars on all motor vehicles used upon the public highways of the state, twelve and a half per cent thereof to be forwarded to the secretary of state, the remainder to be placed in the county motor vehicle road fund and expended only for the repair and maintenance of public highways beyond the limits of cities and towns. The power of the legislature to impose this license in addition to an ad valorem tax was upheld. The road tax of eighty-seven and a half per cent was held to be a proper charge for the privilege of using such vehicles upon the pubic high way. Also, that the placing of self-driven vehicles in a class by themselves is not an unlawful discrimination. The footnote (p. 949) has numerous recent decisions touching the control and classification of motor vehicles upon public highways. The city of San Antonio passed an ordinance regulating the operation of street cars, jitneys, motor omnibuses and other vehicles using its streets for local street transportation. The court exhaustively discussed the power of cities to control such transportation. It seems that the particular provision complained of was one requiring a bond for the protection of citizens, and in an opinion denying a rehearing it was said:
“Appellant desired to use the streets for private purposes of gain, and the city has the absolute right to prohibit the use of the streets for his private business, and in case it gave permission for such use had the right to compel the payment of a license fee.” (Greene v. City of San Antonio, [Tex. Civ. App. 1915] 178 S. W. 6, 11.)
Certified copies of opinions of the supreme court of Tennessee in Memphis St. Ry. Co. v. Rapid Transit Co., 179 S. W. 635, and City of Memphis v. State, 179 S. W. 631, have been furnished. These decisions, recently rendered, validate the statute of Tennessee declaring those operating jitneys to be common carriers and that their operation should be unlawful within incorporated cities or towns without first obtaining a permanent license under, ordinances from such city or town, and that no such license should be issued unless the owner should file with the clerk of the county court a bond of not less than $5000 to cover loss of life or injury to person or property inflicted by such carrier or caused by his negligence, and that such license should embody such rights, terms and conditions as the city or town might elect to impose. Complaint was made because the city of Memphis had passed no ordinance pursuant to this statute, but the court said it was véry clear then that the defendant had no right whatever to do business on the streets of Memphis. In the first of the cases mentioned it was held that the street railway company could enjoin jitney owners from operating upon the streets without license. In the other the city prosecuted for violation of the statute and the defendant sought release by writ of habeas corpus. The same conclusion was reached as to the validity of the enactment, and the opinion contains a thorough discussion of the recent development of jitney transportation and the propriety of separate classification. In Ex Parte Dickey, (W. Va. 1915) 85 S. E. 781, the city of Huntington through its commissioners passed an ordinance for the regulation and licensing of “jitney' busses,” the licenses being graded somewhat on the capacity of the vehicles, requiring a bond of $5000 to pay all lawful claims for damages, the commission reserving to itself the right to refuse or grant such license as applied for or to change the route or hours set forth in the application and then granting the license upon such changed route, or hours or both. It was held that one who makes the highway his place of business and uses the streets for his private gain in running a stage coach or omnibus may be utterly denied such right or that it may be permitted to some and denied to others. In the opinion it was said:
“Conveyances on the streets, for the use of the general public, are of the same character, and, in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous interfere with ordinary traffic and travel and obstruct them. Prescription of routes or places of business for them is a fair, reasonable, and efficacious means of preventing such results. . . . They are engaged in a public service which the legislature may always regulate.” (p. 785.)
The foregoing serve to demonstrate the principle which must control.
In view of all the facts and circumstances it would be difficult to find an expression more apt than the following from the decision in the case of In re Martin, 62 Kan. 638, 64 Pac. 43:
“There is unquestioned power in the legislature to impose a license tax on occupations, whether it be laid for regulation or purposes of revenue. . . . Being a license tax, the express constitutional restrictions as to equality and uniformity of rate do not apply, and the amount of the tax, as well as the method of imposing it, is left to legislative judgment and discretion. ... If the license tax imposed were flagrantly unreasonable, unjust, and oppressive, courts might properly interfere; but we have no such case before us.” (p. 640.)
The trial court denied the injunction sought by the plaintiffs. The requirement of section 4 is within the power of the municipality and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant sued the appellees on a promissory note for $300. They answered, setting forth an agréement between appellant Ferd Rindt, his brother Robert Rindt, and wife, and the appellees, by which Robert and wife were to sign the note as principals because they owed the debt, and the appellees were to sign it as sureties, and that the note was not to be delivered to the appellant until Robert Rindt and wife first signed it. It was alleged that in violation of this agreement Robert Rindt delivered the note to the appellant without himself and wife having signed it. The appellant replied to the answer with a general denial. The case was tried before a jury and a verdict rendered in favor’ of the appellees. A motion for a new trial was filed, supported by a number of affidavits of witnesses to the effect that after the trial Herman Kickhafer and Amelia Kickhafer had said that they had not testified correctly concerning the agreement between the appellant and the appellees and upon another trial they would testify differently. The appellees presented the affidavits of the Kickhafers, in which they denied having said anything of the kind and stating that what they testified to on the trial was true and they would swear to the same again. The court denied the motion for a new trial. An independent action was then brought under section 308 of the civil code for the purpose of obtaining a new trial, and this is an appeal from a judgment in that proceeding denying a new trial.
The first and second assignments of error relate to a ruling sustaining objections to testimony of certain witnesses by which appellant offered to prove that subsequent to the ruling denying the motion for a new trial in the original case the Kickhafers had stated that they knew nothing about the $300 note when they testified. The court heard the evidence in the original case and the affidavits in support of the motion for a new trial, and it was obvious that the testimony, if admitted, could not in any respect change the result because the t Kickhafers were not present when the note was signed, never claimed that they were, and at the original trial merely testified to the agreement between the appellant and all the parties as to the basis of the settlement agreed upon and the arrangement for the giving of the note. The testimony offered did not tend to sustain a claim that the Kickhafers had testified falsely to any material fact in the original case.
The remaining contention of the appellant is that the court erred in sustaining appellees’ motion for judgment on the evi dence offered by appellant. The trial court was not concluded by the petition and proof offered by appellant in the independent action, but properly considered the evidence received on the original trial as well as that offered in support of the motion for a new trial in the original case. (Sexton v. Lamb, 27 Kan. 432; Railway Co. v. Mosher, 76 Kan. 599, 92 Pac. 554.) We are unable to find any substantial ground for the claim that the court erred in denying the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover damages for injury to real property caused by the improvement of a street in Kansas City, Kan. The plaintiff recovered judgment for $200 and costs. The defendant appeals.
In 1901, Kansas City, Kan., graded Ninth street and bridged Jersey creek, both adjacent to the plaintiff’s property. This improvement caused the water to- overflow this property during heavy rains. On July 2, 1910, the plaintiff filed with the city clerk-a written statement setting out the damage sustained by him on account of the improvement of Ninth street and. the building of the bridge, stating that on the eighth day of June, 1910, large bodies of water were thrown over and onto the plaintiff’s premises; that the underpinning was washed from under his house and the house and property rendered uninhabitable and valueless; and that he had been injured and damaged in the sum of $2200. No written claim against the city was filed, as is required by section 1053 of the General Statutes of 1909. Evidence was introduced to prove damages sustained by the plaintiff during the entire two years prior to October 20, 1910, the day this action was commenced.
Was it proper to render judgment against the defendant for the costs in this action? Section 1053 of the General Statutes of 1909 reads:
“All claims against the city must be presented in writing, with a full account of the items, and verified by oath of the claimant or his agent that the same is correct, reasonable, and just, and no claim or demand shall be audited or allowed unless presented and verified as provided in this section: Provided, No costs shall be recovered against such city in any action brought against it for any unliquidated claim which has not been presented to the city council to be audited, nor upon claims allowed in part, unless the recovery shall be for a greater sum than the amount allowed, with the interest due: And provided further, That no action shall be maintained against such city in exercising or failure to exercise any corporate power or authority in any case' where such action would not lie against a private individual under like circumstances.”
No attempt was made to comply-with this statute, and for that reason no judgment could properly be rendered against the city for costs. (City of Atchison v. King, 9 Kan. 550; Fort Scott v. Elliott, 68 Kan. 805, 74 Pac. 609.)
In the introduction of evidence no attempt was made to confine the evidence to injuries sustained during the period of four months previous to filing the statement with the city clerk. Section 1218 of the General Statutes of 1909 reads:
“No action shall be maintained by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto.” .
In the instructions to the jury the court said nothing about the plaintiff being limited to his right to recover for damages sustained during that period. The defendant requested this instruction :
“If you find from the evidence that defendant is guilty of negligence as hereinbefore defined, and that the plaintiff is entitled to recover, he cannot recover for any damages which accrued to him more than two years prior to the commencement of this action, to-wit: October 25, 1910, and in no event can the plaintiff recover for any damages to his property for which he has not first given the defendant written notice within four months after the damages occurred.” ■
If section 1218 of the General Statutes of 1909 is to be given force and effect its provisions should have been observed in the trial of this case, and an instruction, embodying those provisions should have been given to the jury.
An action of this character comes within the provisions of subdivision 3 of section 17 of the code of civil procedure, and is therefore barred unless commenced within two years after the damage has been sustained. In Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, this court said:
“Where a permanent improvement is made by a city on the bank of a water course in such a way as to narrow the channel and wash and injure private property on the opposite bank, the city is liable for the injury; but an action therefor can only be brought within two years after the erection of such improvement.” (Syl. ¶ 4.)
(See, also, McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899.)
It follows that nothing can now be recovered for damages sustained on account of the improvement of the street or the erection of the bridge.
The defendant contends that under Parker v. City of Atchison, supra, and McDaniel v. City of Cherryvale, supra, the plaintiff can not recover for damages sustained by reason of his premises being overflowed at any time during the four months covered by the notice. In Parker v. City of Atchison it was assumed that the improvements made injured the complaining parties’ property, and on that assumption it was held that the right to recover for the damage sustained was barred. In McDaniel v. City of Cherryvale, the complaint was that the defendants had by their improvements polluted the water of a stream flowing through the plaintiff’s land. The opinions in those cases are based on the fact, assumed in one case and proved in the other, that the improvements made in and of themselves damaged the party complaining. In the present case the improvements do no damage. The damage is caused by overflowing water. Until that comes there is no damage. The plaintiff in this case is seeking to recover for the damage caused by overflowing water on at least one specific occasion. Such an action can be maintained. (Union Trust Company v. Cuppy, 26 Kan. 754, 765; King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88; Kansas City v. King, 65 Kan. 64, 68 Pac. 1093; Manufacturing Co. v. Bridge Co., 81 Kan. 616, 627, 106 Pac. 1034; Kansas City v. Frohwerk, 10 Kan. App. 116, 62 Pac. 252; Smith v. The City of Atlanta, 75 Ga. 110; Peck v. The City of Michigan City, 149 Ind. 670, 682, 683, 49 N. E. 800; Note, 5 L. R. A., n. s., 379-383; 23 Cyc. 449, 1186; 25 Cyc. 1137, 1138, 1146.) This action is not barred until two years after the time of the specific injury.
The plaintiff must be limited in his recovery to those damages sustained by reason of overflowing water within the period of four months prior to filing his written statement with the city clerk. The judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action on a negotiable promissory note. Judgment was rendered in favor of the defendant. The plaintiff appeals.
The petition alleges that the note was duly indorsed, transferred and delivered to the plaintiff before maturity, for value; that the plaintiff is the owner and holder thereof in good faith; and that no part of it has been paid. The note was signed by the defendant, was made payable to the order of the Colorado-Wyoming Coal Company, and bears the following indorsements:
“Payment guaranteed; protest waived. The Colorado-Wyoming Coal Company, by A. J. Spengle, Treasurer. Northwestern Land and Iron Company, by A, J. Spengle, Treasurer. Pay to the order of any bank or banker, all prior indorsements guaranteed. 99-20 Laramie, Wyoming, 99-20. A. C. Jones, Cashier.”
The answer admits the execution of the note; idenies each and every and all material allegations of the petition save such as are admitted, modified or explained; denies that the note was indorsed to the plaintiff before maturity for value; and denies that the plaintiff is the owner of the note in good faith for a valuable consideration, before maturity. The answer also alleges that the note was given for stock in the Colorado-Wyoming Coal Company, and that the note was procured by that company through fraudulent respresentations. The answer is verified by the affidavit of the defendant, in which he states that the facts and denials set forth in the answer are true. The plaintiff did not introduce any evidence to prove any of the indorsements on the note. The jury found that the note had been procured through fraud.
.The plaintiff complains of a number of matters, but they can be reduced to five propositions. First, the court erred in denying the plaintiff’s motion for judgment on the pleadings; second, the court erred in the admission of evidence; third, the court erred in compelling the plaintiff to assume the bur den of proof; fou;rth, the court erred in holding that the verification of the answer put in issue the indorsements on the note; and fifth, the court erred in the instructions to the jury. We will discuss these in the order named.
1. The argument advanced by the plaintiff in support of its contention that the court erred in denying the plaintiff’s motion for judgment on the pleadings is, that the defendant did not offer to return the stock in the Colorado-Wyoming Coal Company, received by him when he executed the note. There is no allegation in the answer that he did offer to return this stock. There is an allegation that the stock had become worthless and valueless, because of the facts which the defendant set up as a fraud upon him. Under these circumstances it was not necessary for him to offer to return this stock. (National Bank v. Peck, 8 Kan. 660; Smith v. McNair, 19 Kan. 330; Wicks v. Smith, 21 Kan. 412, 415; Babb v. Lindley, 23 Kan. 478, 481; McKee v. Eaton, 26 Kan. 226, 232; Mfg. Co. v. Lewis, 30 Kan. 541, 544, 1 Pac. 812; Taft v. Myerscough, 197 Ill. 600, 64 N. E. 711; Defenses to Commercial Paper, Joyce, § 211.)
It appears from the brief of the defendant and from the transcript of the evidence that by the terms of the contract between the defendant and the Colorado-Wyoming Coal Company, entered into at the time the note was executed, the stock was not delivered to the defendant, and was not to be delivered to him until the note was paid. He had nothing to return.
2. It is contended that the court erred in denying the motion of the plaintiff to quash the depositions of witnesses Grant and Hopkins, and that the court erred in receiving the evidence of witness S. S. Vaughn. We have read the depositions of witnesses Grant and Hopkins, and have examined the transcript of all the evidence. There was no substantial or prejudicial error in the admission of evidence. None of the evidence complained of concerned the indorsements on the note. There was ample competent evidence to establish fraud on the part of the Colorado-Wyoming Coal Company in obtaining the note.
3. The plaintiff argues that the court erred in compelling it to assume the burden of proof on all the issues. The journal entry of judgment recites that the court required the plaintiff to assume the burden of proof on all the issues of fact joined by the pleadings. This is contradicted by the instructions to the jury. The court instructed the jury that the burden was on the plaintiff to prove the indorsements on the note, and that it was upon the defendant to prove fraud, after which the burden would shift to the plaintiff to prove that it was the holder of the note in due course. From the instructions set out it appears that the court properly instructed the jury concerning, the burden of proof, and from an examination of the transcript it appears that the burden was either properly imposed or voluntarily assumed by the parties. The burden of proof actually imposed or voluntarily assumed on the trial as shown by the transcript, and as given to the jury in the instructions, must control a recital of the court’s ruling thereon set out in the journal entry of judgment.
4. Did the verification of the answer put in issue the indorsements on the note? Section 110 of the code of civil procedure in part reads:
“In all actions, allegations of the execution of written instruments and indorsements thereon, . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.”
In Kurth v. Bank, 77 Kan. 475, 94 Pac. 798, 15 L. R. A., n. s., 612, this court said:
“A verified denial of the execution of a promissory note is sufficient to put in issue the execution as well as alterations of indorsements of credits written on the back of the note contemporaneously with its execution and before its delivery.” (Syl. ¶ 2.)
This was quoted in White v. Smith, 79 Kan. 96, 101, 98 Pac. 766. Under these authorities and those hereinafter cited, the answer, with its verification, was sufficient to put in issue these indorsements. (Savings Association v. Barber, 35 Kan. 488, 11 Pac. 330; Hayner & Co. v. Eberhardt, 37 Kan. 308, 15 Pac. 168; Threshing Machine Co. v. Peterson, 51 Kan. 713, 33 Pac. 470; James v. Blackman, 68 Kan. 723, 75 Pac. 1017; Bank v. Robinson, 93 Kan. 464, 470, 144 Pac. 1019.)
The plaintiff did not prove either of the indorsements on the pote. The defendant introduced evidence to prove, and the jury found, that the note was procured by fraud. The plaintiff, by its failure to prove the indorsements, failed to show that it was the holder of the note in due course. The defendant, by his proof of fraud, established his defense to the note.
This disposes of the plaintiff’s contentions that the court erred in refusing to direct the jury to return a verdict in its favor, that the court erred in refusing to permit the indorsements on the note to be submitted to the jury, and that the verdict was contrary to the evidence.
5. The plaintiff’s last contention is that the instructions were entitled “The Colorado-Wyoming Coal Company vs. Riggs Vaughn.” Entitling the instructions in this matter was a mistake, but we do not see how it in any way affected the rights of the plaintiff.
Two instructions are complained of:
“Instruction No. 6. You are instructed that if you find from' the evidence that after the maturity of the note in suit, the plaintiff required the Colorado-Wyoming Coal Company to give its note to said plaintiff, covering the amount of the note in suit and other notes, and that thereafter the note in suit was held as collateral to said company note, then the plaintiff would not be in the position of an innocent purchaser for value before maturity so as to shut off such defense.
“Instruction No. 8. The title of a person who negotiates an instrument is defective within the meaning of the law when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an alleged consideration, or when he negotiates it in breach of faith; or under such circumstances as amount to a fraud.”
Instruction No. 6 is probably erroneous under Best v. Crall, 23 Kan. 482; National Bank v. Dakin, 54 Kan. 656, 662, 39 Pac. 180, and Birket v. Elward, 68 Kan. 295, 74 Pac. 1100. But admitting that one who holds a note as collateral security may hold it in due course and have all the rights of such holder, wherein did this instruction harm the plaintiff? It did not prove that it held the note by indorsement. In order to be a holder in due course, the note must be held by indorsement. (Gen. Stat. 1909, §§ 5283, 5305.) The defendant proved fraud on the part of the payee in procuring the note. This was a complete defense to the note, when the plaintiff failed to prove the indorsements. It then became immaterial whether the plaintiff held the note as collateral or in some other capacity. We do not think this instruction prejudiced the substantial rights of the plaintiff, and under section 581 of the code of civil procedure this error must be disregarded.
The eighth instruction correctly states the law if we substitute the word “illegal” for “alleged” in the phrase “or for an alleged consideration,” and make it read “or for an illegal consideration.” (Gen. Stat. 1909, § 5308.) The use of the word “alleged” was a mistake on the part of some one. The word “alleged” spoils but one clause of the instruction, and that is not sufficient to warrant a reversal of the judgment, because that clause does not touch any vital question in the case, under the findings of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This case as originally presented involved a large number of questions of law. The view that was taken by this court of a few of them made it unnecessary to pass upon the others. A petition for a rehearing was granted largely in order that counsel, being advised as to what issues were regarded as determinative, might have a fuller opportunity for their discussion than was practicable when the entire field was to be covered. Upon consideration of the reargument the court adheres to the judgment of reversal previously announced, upon the grounds already stated. Some additions to the former opinion are deemed advisable to make clearer the basis of the decision.
The instruction that the jury might consider the adequacy or inadequacy of the amount received, as bearing upon the question of the plaintiff’s competency or incompetency to make the settlement, is regarded as prejudicial, not because it amounted to a comment on the evidence, or violated any general rule against calling particular attention to one matter out of a number; but because it carried the suggestion that if the amount was inadequate to compensate the plaintiff for the loss she had sustained, the fact was strong evidence of incapacity, whereas it had little or no legitimate weight in that connection in view of the many apparent obstacles to a recovery, and of the circumstances attending the settlement — the intervention of an administrator, an attorney, and the court. There was direct testimony that the plaintiff was not competent to transact business, and she accounted for the letters written by her following the settlement by saying that she had no recollection concerning them, but had been told she wrote them from dictation; but upon the whole record there was abundant room for the inference that although she was in a highly nervous condition she was capable of understanding the nature of the settlement. The suggestion as to the adequacy of the amount may well have been a determining factor. But the conclusion reached regarding the effect of the court proceedings in Iowa makes this phase of the matter of comparatively little practical consequence.
The answer made no reference to the proceedings of the Iowa court relating to the dismissal of the action against the railway company in consequence of the settlement. No reference to this omission was made in the original opinion, because nothing was said about it in the plaintiff’s brief, where the effect of the court record was contested upon its merits. The argument is now strongly pressed that the defendant should not be allowed to rely upon what amounts to a defense of former adjudication, because it was not pleaded. When the record was offered in evidence the plaintiff objected on the ground that it was not within the issues. The objection was at first sustained, but afterwards overruled. The evidence having been admitted by the trial court, notwithstanding the objection based on the state of the pleadings, it should not be disregarded on review. The controversy in this regard has to do with the legal effect of what was done in the Iowa court. The fact is not open to question, the record being unassailable, and the circumstance that it was not referred to in the answer ought not under the circümstances to prevent its consideration.
The plaintiff contends that the proceedings in the Iowa court are not in any event binding upon her, because that effect could not follow unless she had given her sanction to the action brought by the administrator, and that her want of capacity made this impossible. A recent opinion of the United States supreme court, and the cases there cited, are relied upon in support of this proposition. (Spokane Inland R. R. v. Whitley, 237 U. S. 487.) The federal decision was based wholly upon the interpretation placed by the state court upon the Idaho statute, which provides that the “heirs or personal representatives may maintain an action for damages” where a death has been occasioned by a wrongful act. This is held in the state cases cited to mean that the heirs have the first right to sue, and that an administrator “is not entitled to recover unless it is shown that the direct beneficiaries have sanctioned the bringing of the action.” We do not regard this rule as applicable to our own statute, which originally vested the right to sue solely in the personal representative (Civ. Code, §419), and was afterwards supplemented by a section providing that the action may be brought in some cases by the widow for herself and children, if any, and where there was no widow, by the next of kin (Civ. Code,- § 420). The new provision has been held to afford a cumulative and not an exclusive remedy. {Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553.) The settlement here made is characterized in the plaintiff’s brief as “inequitable and unconscionable.” We can not acquiesce in that view. The amount paid was small in comparison with the verdict returned by the jury, but it was substantial, and was the result of negotiations conducted through an attorney, and approved by a court. Compromises so arranged are not to be discouraged.
The judgment of reversal is adhered to. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought by appellant in her own name for the benefit of the members of an unincorporated church society, of which she claimed to be the treasurer, to recover upon two certificates issued by The Sumner County Building & Loan Association. The building association disclaims any interest in the controversy and holds the fund by order of the court pending the action. The First Baptist Church of Wellington filed an interplea, claiming the fund and alleging that the money had been raised by the women of' the congregation for the purpose of erecting a church building. The certificates were issued originally in the name of Carrie M. Carr, as treasurer of the Ladies’ Aid Society of the church, and Mrs. Carr filed an interplea claiming the-money for the society. The case was tried by the court largely on oral evidence given by persons affiliated with various factions of the church, including members of several aid and missionary societies organized at different times by the women of the congregation. Upon conflicting evidence the court found against appellant and also against the society represented by Mrs. Carr, and held that the fund is the property of the church.
No substantial ground for reversal of the judgment is suggested in appellant’s brief. Mr. Rogers, who is one of the attorneys for the church, was secretary of the building association and made the affidavit showing that other parties claimed the fund and should be interpleaded. He was also called as a witness to identify certain church records. But these matters furnish no basis for appellant’s claim that there was collusion between the association and the church. The building and loan association has never claimed any interest in the money represented by the certificates and is not concerned in the result of the litigation. '
One objection urged by appellant is that the church as a corporation offered no evidence and yet recovered a judgment. It appeared by its counsel and satisfied the court from evidence, for the most part oral, given by numerous witnesses that the women of the church raised the money through suppers, social gatherings and various enterprises, and intended it to be used for the purpose of building a church. The evidence shows that the appellant and those acting with her have voluntarily withdrawn from the church. It is settled law that they have no interest in the property of the church, and of course they have no claim to any portion of this fund if it was in fact raised for the benefit of the church. (34 Cyc. 1167; 24 A. & E. Encycl. of L. 353, 355.)
The sole question before the court was one of fact, whether these certificates represent a fund which was accumulated for church purposes. For the first few years the money raised by the church society (sometimes called the Ladies’ Aid Society and sometimes the Ladies’ Aid and Missionary Society) was used for various purposes, but always for the benefit of the church. At times part of it was used to pay the pastor’s salary ; again, to repair or furnish the church building. Many of the witnesses testified that a few years later it was determined to use the fund to aid in erecting a new church, and the records of the church showed that in 1910 the congregation adopted a resolution to build a new church and that the Ladies’ Aid Society had voted to contribute $1000 for that purpose. Witnesses for appellant testified that the money was not raised with any intention that it should be used to erect a building. Upon conflicting evidence the court found against the appellant, and we shall not waste any time in considering the claim that the judgment is not supported by the evidence.
Appellant claims the court erred- in permitting the members of the Ladies’ Aid Society to testify to their intention in raising the money and the purpose for which it was to be used. Where the intention with which an act was done is the material fact in issue, a witness who did the thing may testify what his intention was. (Bice v. Rogers, 52 Kan. 207, 34 Pac. 796. Seven additional Kansas cases to the same effect are cited in Williams v. Railway Co., 90 Kan. 478, 135 Pac. 671.)
In Commonwealth v. Walker, 108 Mass. 309, it was said: “A man’s intention is a matter of fact, and may be proved as such.” (p. 312.) Apparently the trial court could see no reason why a different rule should apply to a woman. Since we are of the same opinion the judgment will be affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
On March 19, 1910, the plaintiffs, who are husband and wife, purchased from the defendant a house and lot in Westport Annex, Johnson county, and entered into possession and have occupied the premises ever since as a homestead.
The purchase price was $1250, on terms of $5 cash, $20 per month for eight months, balance $10 per month and six per cent interest. A warranty deed was to be executed- and delivered to plaintiffs when the payments were completed.
On July 5, 1913, after the plaintiffs had paid $800 under this contract, the defendant secretly sold the property to a stranger by warranty deed, which deed was withheld from the record until April 28, 1914.
One month later the plaintiffs brought this action for damages, alleging these facts, and charging fraud in somewhat indefinite terms, but grounding their grievance chiefly upon the fact of defendant’s conveyance to the stranger whereby he had disabled himself from performing his contract with plaintiffs. The petition also contains an allegation that the defendant’s conduct has subjected the plaintiffs “to great expense in money, loss of time, labor and costs and attorney’s fees.” What these might be is uncertain and not very well pleaded.
A demurrer to the petition was sustained and plaintiffs appeal.
It seems to us that this petition stated a cause of action. It may be conceded, as defendant contends, that the conveyance to the stranger did not deprive the plaintiffs of their property nor the possession of it nor imperil their right of -possession. It is true that appellants did not allege that they had made a demand for a conveyance nor that defendant had refused to convey. It is true, also, that they do not plead their readiness to comply with their contract. They have complied with their contract thus- far; the time has not come to complete it and to make their demand. All these matters may await their time, and season. Meanwhile, as conceded by the demurrer, the defendant has put it out of his power to comply with his contract. It does not affect the matter that the stranger purchased the property charged with notice of the rights of plaintiffs in possession, nor that some action for specific performance or to quiet title may yet be maintained against the defendant and the stranger when plaintiffs have completed their payments. Neither does it affect the matter that the stranger did not acquire very much as against the plaintiffs in possession by his deed from the defendant; and it may be that plain tiffs have not been seriously damaged by defendant’s wrongdoing. Their damages may be only nominal. That depends upon the evidence. That they have been damaged as a matter of law is clear. (Tracy v. Gunn, 29 Kan. 508, syl. ¶ 3.)
We dó not intend to intimate that the defendant could not sell or assign his interest in the property in good faith and subject to plaintiffs’ rights. We only hold- that the plaintiffs’ petition is good against a demurrer.
This cause is reversed and remanded with instructions to set aside the judgment on the demurrer and to proceed with the cause. | [
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The opinion of the court was delivered by
BURCH, J.:
The defendant employed a large number of Mexican laborers to perform work on its track and road bed. These laborers, with their families, were allowed to live on the defendant’s right of way. Some of them maintained open fires. From one of these fires fire was communicated to a near-by building owned by Ireton and occupied by Schwantes for a store. The building and its contents were destroyed, and separate suits for damages were brought by the respective owners. Ireton was defeated, and appeals. Schwantes recovered, and the railway company appeals.
In the Schwantes case the jury returned the following special findings of fact:
“Q. 3. If you find that plaintiff’s property was destroyed by fire communicated from fires on defendant’s right of way, state what officers, agents or employees set out such fires? A. 3. Mexican laborers.
“Q. 4. If you find that such fires were set out by any of defendant’s employees, state for what purposes such fires were built or maintained? A. 4. Cooking and other purposes.
“Q. 5. If you find that plaintiff’s property was destroyed from fires on defendant’s right of way, state for whose benefit such fires were maintained? A. 5. Mexican laborers.”
The evidence upon these material and determining facts was substantially the same in both cases. There was no evidence in either case that any one but the laborers set out the fires, or that the fires were maintained for other than cooking, washing and similar purposes, or that the fires were maintained for the benefit of any one but the laborers themselves.
The theory of the trial court was that the defendant was liable for the consequences of the negligent escape of fire maintained on its right of way with its knowledge and consent. This could be true only in the event that the fire was maintained for the benefit of the defendant in the conduct of the work which the laborers were hired to do, or perhaps in the event that the railway company permitted the creation of a common nuisance on its premises by .its licensees, from which the damages sued for resulted. The petitions were drawn and the cases were tried and submitted on the theory of negligence,. and liability for nuisance need not be considered. Liability for negligence rests on the doctrine of respondeat superior, the limits of which have just been stated. The defendant’s laborers were employed to lay steel, distribute ballast, and surface track. When they were not doing this they were not Working for the defendant and the defendant was not their superior. Their camp fires were no more factors of this work than they would have been if they had been maintained for domestic purposes of the laborers elsewhere than upon ground owned by the defendant, and the defendant can be .called upon to respond for a negligent act of an employee only when the act was committed in the prosecution of work which the employee was hired to do for the defendant.
The case of Morier v. St. Paul, Minneapolis & Manitoba Ry. Co., 31 Minn. 351, 17 N. W. 952, is a leading one on the subject under discussion. Railroad section men'in charge of a section foreman, engaged in repairing track, built a fire on the railroad right of way to warm their coffee for dinner. After dinner they resumed work without extinguishing the fire, which spread to adjoining premises and burned the plaintiff’s hay. In holding that the railroad company was not liable the court said:
“Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. A master is not responsible for any act or omission of his servant which is not connected with the business in which he serves him, and does not happen in the course of his employment. And in determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was at the time engaged in serving his master; If the act be done while the servant is at liberty from the service, and pursuing his own ends exclusively, the master is not responsible. If the servant was, at the time when the injury was inflicted, acting for himself, and as his own master, pro tempore, the master is not liable. If the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all authorities. . . . It would seem to follow, as an inevitable conclusion, from this, that on the facts of this case the act of these section-men in building a fire to warm their own dinner was in no sense an act done in the course of and within the scope of their employment, or in the'execution of defendant’s business. For the time being they had stepped aside from that business, and in building this fire they were engaged exclusively in their own business, as much as they were when eating their dinner; and were for the time being their own masters, as much as when they ate their breakfast that morning, or went to bed the night before.” (pp. 352, 353.)
The Minnesota court cites (p. 358), among other authorities, the English case of Williams v. Jones, 3 Hurl. & C. 256. There the plaintiff let to the defendant a shed in which to make a signboard. The defendant employed, a carpenter to do the work. The carpenter lighted his pipe with a burning shaving ignited by a match, and then dropped the shaving in the midst of others, with the result that the shed was burned. It was held that the defendant might be responsible for the negligence of the carpenter in the course of his employment, but not for his negligence in the personal matter of lighting his pipe. The laborers in these cases w'ere not hired to cook or to do washing or to supply other of their personal needs through the agency of fire any more than the carpenter in the English case was hired to smoke his pipe, and the fact that they were “blanket Mexicans,” that the defendant furnished them with tents and stoves when the weather grew cold, that they used old ties for fuel, or that the defendant’s foreman required the fires to be removed from close proximity to the depot, does not bring the maintenance of the fires within the service which the Mexicans were employed to perform for the defendant.
It is not necessary to discuss the assignments of error in the Ireton case. None of them relates to the fundamental subject which has just been discussed, and judgment should have been rendered for the defendant on the defendant’s demurrer to the evidence, for the reason that no cause of action against the defendant was proved. Therefore, the judgment in the Ireton case is affirmed. The judgment in the Schwantes case is reversed and the cause is remanded with direction to render judgment for the defendant on the findings of fact. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the state live-stock sanitary commissioner to issue orders for sums of money to which the plaintiff claims he is entitled on account of certain cattle killed by order of the commissioner after having been tested for tuberculosis, and to compel the board of county commissioners to accept and pay such orders. The livestock sanitary commissioner resists the action on the ground that the cattle killed were brought into the state in violation of law and of a rule duly promulgated governing the admission of cattle for dairy and breeding purposes from a foreign state. The board of county commissioners resists the action on various grounds.
The statute, so far as applicable for present purposes, and the rule referred to read as follows:
“That when any animal or animals are killed under the provisions of this act by order of the commissioner, the owner thereof shall be paid therefor such porportion of the appraised value as fixed by the appraisement hereinbefore provided for; provided, that the right of indemnity on account of animals killed by order of the commissioner under the provisions of this act shall not extend to animals killed on account of rabies, nor to the owner of animals which have been brought into the state in a diseased condition, or from a state, country, territory or district in which the disease with which the animal is infected or to which it has been exposed exists; nor shall any animal be paid for by the state which has been brought into the state in violation of any law or quarantine regulations thereof, or the owner of which shall have violated any of the provisions of this act or disregarded any rule, regulation or order of the live-stock sanitary commissioner, nor shall any animal be paid for by the state which came into the possession of the claimant with the claimant’s knowledge that such animal was diseased or was suspected of being diseased or of having been exposed to any contagious or infectious disease; nor shall any animal belonging to the United States be paid for by the state.” (Laws 1911, ch. 312, § 7.)
“Rule 10. No cattle to be used for dairy purposes or pure-bred or registered cattle to be used for breeding purposes shall be admitted into Kansas unless accompanied by a certificate of satisfactory tuberculin test showing them to be free from tuberculosis, applied within thirty days prior to movement, by a veterinary inspector of the Bureau of Animal Industry or by a veterinarian whose competency and reliability are certified to by authorities charged with the control of diseases of domestic animals in the state where the cattle originate. One copy of such certificate shall be given to the owner or person in charge, one sent to the Live Stock Sanitary Commissioner at Topeka, and one to the common carrier to attach to the way-bill.”
The cattle which were killed were purchased in the vicinity of Algonquin, 111., for dairy and breeding purposes in this state. The following facts were agreed to by the parties:
“2nd. That all said animals . . . were tested for tuberculosis by the use of Pasteur’s tuberculin applied subcutaneously by W. W. Welch' of Elgin, Illinois, who was a graduate veterinary surgeon, holding a license to engage generally in the practice of veterinary medicine and surgery in Illinois, issued by the Board of Live-stock Commissioners of the State of Illinois, on the recommendation of the Board of Veterinary Examiners of said State, and from certificates issued by said W. W. Welch and attached to the various way-bills of the shipments in which said animals were made, such tests were shown to have been made within thirty days prior to shipment in each instance and each of said animals certified by said Welch to be free from tuberculosis. Such certificates were not made upon any form provided by or in accordance with the rules of the Board of Live-stock Commissioners of Illinois, nor was said W. W. Welch at the several dates thereof an assistant State Veterinarian of Illinois, nor did he hold any special commission to test cattle for tubei’culosis, only being licensed generally as a veterinary surgeon, as above set forth.
“21st: That by an act of the Legislature of the State of Illinois in force since July 1st, 1909, the diseases of domestic animals in that state is placed under the control and supervision of a board of three members appointed by the Governor and known as The Board of Live Stock Commissioners; that by such act such Governor is also authorized to appoint a competent veterinary surgeon as State Veterinarian, who, together with his assistants are under the direction of the above named board; that under said act only said State Veterinarian and his assistants, who are appointed with the advice and consent of said Board, have authority to act for said Board in the matter of the investigation of the existence of .communicable diseases .among domestic animals in said State, or to declare and enforce quarantines with respect thereto.
“22nd: The following rules of said Board of Live Stock Commissioners were in force during all the time concerned in this action:
“ ‘1st: All tuberculin and mallein for the testing of cattle, horses and mules for interstate shipments must be secured through the State Veterinarian.
“ ‘2nd: All certificates and test sheets must be made on the forms prescribed and furnished by the State Board of Live Stock Commissioners.
“ ‘3rd: In ordering tuberculin or mallein from the State Veterinarian he must be advised of the number of cattle, horses or mules as the case may be, and into what State the shipment is to be made.
“ ‘4th: Each lot of cattle, horses or mules, whether physically inspected, mallein or tuberculin tested must be reported. There must be five test sheets or certificates made out and forwarded to the State Veterinarian- for his approval. When the same .are returned one copy or two must be forwarded, as the .State may require, to the State Veterinarian or Chief Sanitary officer of the State into which the shipment is made; one copy to be given to the owner or person in charge to be attached to the railroad way-bill and one copy forwarded to the Board of Live Stock Commissioners.
“ ‘5th: The States of Minnesota and North Dakota do not accept certificates from veterinarians in this state. Certificates or test sheets for these two states must be signed by a Bureau of Animal Industry officer.’ ”
From the foregoing facts it conclusively appears that the cattle were not tested by a person qualified under rule 10 of the state live-stock sanitary commissioner of this state, and no copy of the certificate of the test which was made was sent to the commissioner of this state.
The plaintiff argues that rule 10 was substantially complied with in that the veterinarian who made the test was licensed to practice by the very board whose certificate of competency and reliability is required, that the cattle were in fact tested and found to be free from tuberculosis, and that the failure to send a certificate to the live-stock sanitary commissioner of this state was entirely without prejudice. The court concurs in the live-stock sanitary commissioner’s view that rule 10 •should be strictly complied with. This done, liberality in making indemnity to owners for cattle killed to prevent the spread of disease may well be indulged, but before the state can be called upon to pay, lawful conditions imposed upon importation should be fully met in order that the state may not become a standing buyer of the diseased stock of other states.
There are veterinarians and veterinarians. As in other professions some members are competent and reliable and some are not, and it is not inconceivable that an unscrupulous dealer in Illinois might be able to secure without difficulty certificates of health for a herd of diseased cattle which he desired to dispose of. The law of Illinois authorizes the governor to appoint a competent veterinary surgeon to be state veterinarian, thus distinguishing between veterinarians, and limits the right to investigate the existence of communicable diseases among domestic animals to a class of veterinarians. Rule 10 of the commissioner of this state makes the same distinction. The required certificate must be made not merely by a veterinarian, but by a veterinarian who holds a certificate of competency and reliability from the proper Illinois authorities. The state veterinarian of Illinois and his assistants would doubtless be regarded as qualified under rule 10. Any other veterinarian should possess a special certificate covering competency and reliability with respect to making tuberculin tests and certifying the results.
The court is not able to say that no prejudice resulted from nonobservance of rule 10. The manner in which the laws and regulations of both Illinois and Kansas were ignored might well cast doubt on the tests made of the plaintiff’s cattle. It is not the purpose to impugn the character or motives of any one connected with these importations, but the course pursued was just that which might be adopted to accomplish an evasion. The certificates attached to the bills of lading of the plaintiff’s cattle having proceeded from an unlicensed source and copies having been withheld from both the Illinois commissioner and the Kansas commissioner, they are not evidence of freedom from disease, and the plaintiff is not in a position to say that copies of these certificates would have been accepted contrary to rule 10 if they had been forwarded to the commissioner of .this state.
Scientific tests of the plaintiff’s cattle, twelve in number, recognized as proper and reliable, were made by a duly licensed and qualified veterinarian commissioned by the state live-stock commissioner to make inspections and tests for tuberculosis. These tests disclosed that each animal was afflicted with tuberculosis. On reports of the tests the commissioner ordered the cattle destroyed. After appraisement they were shipped to Kansas City, Mo., and were sold and slaughtered under federal inspection. Post-mortem examinations showed that three of the animals, appraised at $365, were free from tuberculosis. The plaintiff asks for warrants for the appraised value of the healthy animals. Section 23 of the statute of 1911, quoted later in this opinion, contemplates that a post-mortem examination may sometimes disclose that a condemned animal was not afflicted with tuberculosis, and provides that in such cases the owner shall receive the full amount of the appraisement.
• The difficulty is that the cattle were imported in violation of section 5 of the statute and of rule 10. The liability of the state is expressly conditioned by the statute, and the plaintiff ■is an owner to whom the right of indemnity from the state is expressly denied.
The cattle were not taken for public use after the analogy of eminent domain. They were destroyed for the public good under the police power. They were not destroyed until a scientific test recognized as proper and reliable and applied by a person appointed for the purpose had shown, and the livestock sanitary commissioner, acting in good faith, pursuant to authority duly conferred had rendered his decision that they were afflicted with a contagious disease endangering the public welfare. (Laws 1911, ch. 312, § 22.) The live-stock sanitary commissioner’s decision in such cases is equivalent to the judgment of a court of condemnation. No duty to make reparation to the owner existed although the character of the test and its application and the decision of the commissioner may have contained a margin of error. Absolute certainty is possible in but few mundane affairs, and the statute would have been constitutionally valid if it had contained no provision for indemnity to the owner. The state, however, undertook to assume one-half of the owner’s loss in all cases and all the loss in case error should be discovered by means of a post-mortem examination. But the statute did this on condition that cattle killed should not be present in the state in violation of its laws and sanitary regulations. The plaintiff’s cattle weré unlawfully within the state, and the state is under no obligation to pay for their destruction.
A part of the relief asked against the board of county commissioners is that it be required to accept and pay an order issued by the live-stock sanitary commissioner and duly presented for one-half the appraised value of a registered Holstein cow named Piebe. This animal went down under the tuberculin test, was shipped and slaughtered, and upon post-mortem examination was found to be afflicted with tuberculosis. The board of county commissioners resists payment on the ground that the animal came from a district in the state of Illinois infected with tuberculosis; that the importation was made in violation of rule 10, and that the appraisement was excessive and was made on a basis contrary to the statute. These defenses are not available to the board of county commissioners.
The animal in question was only three months old when imported, and a tuberculin test was not required because the prevailing opinion was that animals of that age would not respond to the test. In the judgment of the live-stock sanitary commissioner rule 10 did not apply.
It is true that the statute denies indemnity to an owner who ships an animal into this state from a district infected with the disease on account of which the animal is killed. The court, however, has no standard by which to determine when a district of another state is infected. A few isolated cases would scarcely render a district infected. If a disease were so far epidemic as to result in the establishment of quarantine regulations the district might well be said to be infected. Between these extremes the fact of infection is a matter of opinion and judgment on the part of those experienced in such matters and depends upon many circumstances and conditions. Presumably the live-stock sanitary commissioner is qualified to determine the fact, presumably he does so before issuing an order for the payment of the appraised value of a condemned animal, and neither the board of county commissioners nor the court is authorized to substitute its judgment for his. The legislature has laid upon the live-stock sanitary commissioner the duty and the responsibility of determining the facts upon which the liability of the state to indemnify an owner depends, and in the absence of fraud, collusion, or similar misconduct on the part of an owner or of the live-stock sanitary commissioner it is a duty of the board of county commissioners on presenta tion of a certificate in due form to draw its warrant on the county treasurer for the amount therein stated'. (Laws 1911, ch. 312, §§ 8, 23.) The legislature has invested the live-stock sanitary commissioner with very extensive powers for the protection of the health of the domestic animals of the state, and an error of judgment on his part may be quite disastrous to public or private interests, or both. But so long as he acts in good faith and within the scope of his authority his conduct can not be reviewed by the courts, and the board of county commissioners has no more standing to impeach his certificate to an owner for cattle killed by his official order than the county treasurer has to impeach the warrant which the board of county commissioners is required to draw. The result is that the evidence produced showing that the plaintiff’s cattle came from an infected district in the state of Illinois can not be considered, there being no charge of fraud or the equivalent of fraud in the answer of the board of county commissioners.
Included within the proceedings preliminary to the issuance of a certificate or order to an owner for the appraised value of condemned cattle is an appraisement. The subject is governed by sections 6 and 23 of the act of 1911, which read as follows:
“Sec. 6. That whenever as in this act provided the commissioner shall direct the killing or disposition of any domestic animal or animals, it shall be the duty of the commissioner in conjunction with the chairman of the board of county commissioners of the county in which the said animals are located and the owner of the condemned animal to appraise the animal or animals to be killed, or disposed of and he shall make an inventory of the animal or animals condemned, and in fixing the value thereof the commissioner and chairman shall be governed by the value of such animal or animals at the date of appraisement; provided, that unless otherwise expressly provided only one-half of such appraised value of such animal shall be paid to the owner.
“Sec. 23. That whenever the live stock sanitary commissioner shall have decided that any domestic animal is affected with tuberculosis he shall at once proceed to appraise the same in the same manner as is hereinbefore provided for appraising animals affected with other contagious or infectious diseases. Whereupon, the owner may exercise his option to sell such diseased animal for immediate slaughter under state or federal inspection subject to a post mortem examination under the direction of the live stock sanitary commissioner, or to deliver such animal to the live stock sanitary commissioner, upon receiving from such live stock sanitary commissioner an order drawn in the owner’s favor on the board of county commissioners of the county in which the animal was situated for an amount equal to fifty per cent of the appraised value of such animal. In the event of the owner choosing the latter alternative the live stock sanitary commissioner in the careful exercise of his discretion shall forthwith destroy the said animal, or sell the same for immediate slaughter, under his supervision. The net proceeds of such sale shall he paid by the live stock sanitary commissioner into the treasury of the county in which said animals were situated and shall become a part of the general fund of such county; provided, that, if the said post-mortem shall disclose that said animal was not afflicted with tuberculosis, the live stock sanitary commissioner shall draw his order in favor of the owner upon the board of county commissioners for the full appraisal value of such animal. The board of county commissioners referred to in the provisions of this section is hereby authorized and directed to accept and pay orders drawn upon it by the live stock sanitary commissioner under the provisions of this section.” (Ch. 312.)
Appraisement being an incident to the carrying into effect of an order of destruction, it may be made by a person employed for the purpose by the state live-stock sanitary commissioner at the expense of the state. (§17.) Should the chairman of the board of county commissioners decline to act, as occurred in this case, the appraisement may be made by the live-stock sanitary commissioner, or his deputy, and the owner. In making the appraisement the rule prescribed by the statute governs, but the statute does not contemplate that a condemned animal shall necessarily be appraised at the value of the carcass because diseased and because it is to be slaughtered at once. If this were true, the alternative given the owner by section 23 would amount to nothing. In this case some of the plaintiff’s cows were carrying calves and their destruction was delayed until the calves were born. The animal, Piebe, was appraised at $190. So long as the appraisement is the result of an effort made in good faith to determine the value of the condemned animal or animals at the date of the appraisement, the certificate or order issued by the live-stock sanitary commissioner is conclusive on the board of county commissioners.
A contention is made that plaintiff waived his right to an appraisement. The court finds to the contrary. There was a misunderstanding between the plaintiff and the live-stock sanitary commissioner with reference to the sale and slaughter of the animals for which no orders- were given, which need not be discussed here. The plaintiff is not entitled to the orders claimed. Orders on the board of county commissioners not having been issued, the county is not entitled to the net proceeds of the sale of the animals. The live-stock sanitary commissioner has held the money for the plaintiff, who is entitled to receive it. The net proceeds of the sale of the animal, Piebe, should be paid into the county treasury.
The writ is allowed directing the board of county commissioners to accept and pay the order for one-half the appraised value of the animal, Piebe. With respect to other matters in controversy the writ is denied. The costs are divided between the plaintiff and the board of county commissioners.
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The opinion of the court was delivered by
MASON, J.:
On November 1, 1905, F. M.. Claudel was the owner of a number of tracts of land upon a part of which he had given to Preston Paris a mortgage securing his note for $1500. On that date he entered into a written contract to convey all the land by warranty deed to L. A. Golden for $31,600. He failed to carry out the agreement, and on March 16, 1909, Golden brought an action for specific performance in which he obtained a judgment which was affirmed by this court. (Golden v. Claudel, 85 Kan. 465, 118 Pac. 77.) The court ordered Caudel to make “a deed of conveyance” of the land to Golden, and provided that in the event of his failure to do so the decree should “stand as and for such conveyance,” “as effectively as if the conditions . . . imposed upon the said F. M. Claudel had been wholly complied with upon his part by the execution and delivery of the deed of conveyance to the said L. A. Golden.” Claudel executed no deed, but Golden paid the agreed price and obtained title and possession by virtue of the decree.
On July 15, 1913, Paris brought an action to foreclose the mortgage, which developed a controversy between Claudel and Golden. Claudel maintained that Golden had accepted the property subject to the lien, and must take care of it himself, or submit to its being enforced against the land, without recourse on any one. Golden contended that if he should be compelled to pay the claim, Claudel was liable to him for the amount, in virtue of being a warrantor of his title. The court decided in favor of Claudel, and Golden appeals.
The conveyance which Claudel was ordered to make was not described in the decree as a “warranty deed,” but as a “deed of conveyance.” Although the decisions elsewhere are in conflict (36 Cyc. 791), in this state a'contract to make a deed, nothing being expressed as to its character, implies that the usual covenants of warranty are to be given (Putnam v. King, ante, p. 109, 150 Pac. 559). It would seem logically to follow that the term should receive the same interpretation when used in such a decree as that here involved. But however that may be, a judgment is to be construed in the light of the pleadings on which it is based. (Clay v. Hildebrand Bros. & Jones, 34 Kan. 694, 9 Pac. 466; 23 Cyc. 1102.) The pleadings in the specific performance suit showed that Claudel had agreed to give a warranty deed passing a clear title,-and the judgment enforcing the contract should be interpreted as requiring that kind of a conveyance, in the absence of anything to indicate the contrary. The decree of the court by its own terms was to have the same force as a deed executed by Claudel, and the statute gives it that effect. (Civ. Code, § 398.) Golden was therefore entitled to look to Claudel as the warrantor of his title.
But it is urged in behalf of Claudel that in the action for specific performance Golden had agreed to accept such title as Claudel had, and that this bound him to take the land subject to the mortgage lien. The contention is based upon this language of the petition in that case: “The said plaintiff further alleges that, on the 1st day of March, A. D. 1906, he was ready, able and willing, and has ever since been and still is able, ready and willing to perform all of the terms and conditions of said contract of sale upon his part and pay the full purchase price of said land and accept a warranty deed conveying the title to said lands and tenements, of which the said defendant was seized on the 1st day of March, A. D. 1906, or such title as the defendant had in said above-described premises at the time of the commencement of this action.” It is to be observed that the plaintiff declared himself willing to accept a warranty deed conveying the defendant’s title as it had existed before the action was brought. The sentence quoted can not be regarded as meaning that Golden would accept whatever title Claudel had, subject to any existing liens, and pay the full price agreed upon. That thought is not fairly to be derived from the language, and such an interpretation would allow no force whatever to the restriction that the conveyance was to be by warranty deed. That a buyer is willing to take a defective title without an abatement in price does not justify an inference that he assents to standing the loss himself. The presumption is to the contrary. Thus, in a Note in 10 L. R. A., n. s., 121, it is said:
“Of course,'if the vendee is willing to take the vendor’s defective title without asking for an abatement in the purchase price, presumably relying upon possession and the covenants for title in his deed, the vendor will not be permitted to set up his defective title or insufficient estate as a defense to an action for the specific performance of his contract.”
The petition in the specific-performance suit referred to the existence of the mortgage in question, but nothing wag actually litigated in that connection. A different cause of action is now being prosecuted, and the rule does not apply that everything is concluded that might have been there determined. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.) It is true that in that action Golden might have had the amount of the mortgage lien ascertained, and might have exacted a corresponding deduction from the purchase price. (36 Cyc. 745.) But he was not required to do so. The option lay with him. “The vendee [seeking specific performance] in all cases, whether he was aware of the defect in the vendor’s title or not, may, on payment of the full contract price, elect to take such title as the vendor is able to convey, and rely for his relief upon his legal action on the covenants in the vendor’s deed.” (36 Cyc. 746.)
The mortgage secures the personal note of Claudel. The primary obligation originally rested upon him to pay the debt, the mortgage-being only a security. This primary obligation did not shift to Golden by the mere fact that he became the owner of the property. (27 Cyc. 1335.) To bring about that result he must have accepted it subject to the mortgage. (27 Cyc. 1343.) He did not do this expressly, and the fact that he paid the full amount agreed upon as the price for a clear title excludes the notion of his having done so by implication. The fair inference is that Golden assumed that Claudel would pay his note, thus dispensing with any controversy regarding the mortgage.
■ “If the property is sold without any agreement or understanding as to the payment of the mortgage, and without any allowance for it in the purchase-price, the burden of the mortgage debt is not shifted to the purchaser and the mortgagor will not be entitled to charge it upon him.” (27 Cyc. 1340.)
In April, 1912, Golden sued Claudel for the rental value of the land during the time he'had been kept out of possession. In his original petition in that action he included a claim by reason of the existence of the mortgage, but as the count relating thereto was dismissed before judgment the fact does not affect the present rights of the parties.
Golden makes a contention that if he is held to have become the principal debtor, no action was brought against him until more than five years after the situation arose, and that therefore the statute of limitations protects him. As we “hold Claudel to be still primarily liable, this question need not be considered.
The judgment is reversed and the cause remanded with directions to render judgment in favor of Golden against Claudel for the amount of the lien, upon its being paid by Golden, or from the proceeds of a judicial sale of the land. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiffs, who are appellees, sued in the district' court in ejectment and for partition of certain real estate and asked for the construction of the will of Hannah Dodson, deceased. Five of the defendants being nonresidents were served by publication only; the others were personally served, and appeared and answered. The court rendered judgment against the plaintiffs in favor of all the defendants who appeared and answered, but gave judgment in plaintiffs’ favor and against the defendants who were in default. Palmer, executor of the will, and John Walden are the only parties who appeal. They were among the defendants who appeared and in whose favor a general judgment was rendered, and there is a motion to dismiss upon the ground that the only parties against whom judgment was rendered have not appealed and are not before the court.
A brief statement of the facts will be necessary in order to understand the contentions of the parties on the motion to dismiss.
Hannah Dodson, a resident of Cloud county, died in October, 1910, owning a farm which she undertook to dispose of by her will. Shortly after her death Eugene S. Knapp who had married her in 1865, but who had lived apart from her since 1875, executed a quitclaim deed to the plaintiffs conveying whatever interest he had in the land in question, and this deed is the plaintiffs’ source of title by which they claim a one-half interest in the farm described in the will. The defendants are the executor of the will and certain heirs and legatees of Hannah Dodson who are mentioned in her will. When the case came on for trial the plaintiffs were met by a judgment of divorce rendered by the circuit court of Michigan in a suit brought there by Hannah Dodson, then Hannah Knapp, divorcing her from her former husband, Eugene S. Knapp. The district court giving to the Michigan decree full force and credit found that the plaintiffs, as against the answering defendants, acquired no title to the real estate in question, and therefore rendered judgment as stated against the plaintiffs and in favor of all the answering defendants. At the same time,- however, the court held that as to those defendants who had failed to appear and answer the plaintiffs were entitled to recover, and the judgment which is complained of here recites that as against any right or claim on the part of the defendants (those defaulting) the plaintiffs are the owners of the real estate described in their petition.
It should be stated that subsequent to the Michigan divorce the testatrix married Dodson. Her will directs the executor, Palmer, to pay certain specific legacies aggregating $600 to certain persons living in Cloud county, all of whom appeared and answered. The will then directs that the farm be rented, for a period of five years or such time as may be necessary to raise a sum sufficient to pay the bequests together with expenses of administration, and the executor is then directed to sell the farm and to divide the proceeds among certain other legatees mentioned. Palmer, the executor, contends that he was made a trustee as well as executor; that he has a right to appeal because he represents those of the defendants who did not answer. The will, however, vests no title in him and he has no interest in the ultimate disposition of the proceeds of the sale of the real estate. There is no merit in his contention that he will not be able to make a satisfactory sale of the real estate because the judgment affects the title. The will directs him to sell the farm and divide the proceeds among certain legatees. The judgment in no manner interferes with his duty to carry out the provisions of the will except that in effect it orders certain payments to be made by him to plaintiffs instead of to certain of the legatees named in the will. He has no right to complain of this part of the judgment because it does not concern him personally nor affect his duties as executor or trustee. The motion to dismiss as to the executor is well taken.
As to John Walden, the other defendant who appeals, a different.situation is presented. The first contention against him is that not having filed a motion for a new trial he can not appeal. He makes no claim of error as to any findings of fact, and his sole claim is that the court erred in a matter of law. A motion for a new trial was not necessary. (Nichols v. Trueman, 80 Kan. 89, 101 Pac. 633; Filter Co. v. Bottling Co., 89 Kan. 645, 132 Pac. 180.)
The will, after providing for the payment of the specific legacies to the defendants who reside in Cloud county, directs the executor to divide the proceeds as follows:
“To my sister Almira Knapp of Le Grande, Oregon, a widow, the sum of $300.00, but if my said sister, Almira Knapp shall not be living at the time of such division of the proceeds from the sale of my said farm, I direct that the above mentioned $300.00 be paid to my three nephews, Bert Elliott, Frank Elliott and George Elliott, now residing in Sand Creek, Michigan, in equal shares.
“T direct that the balance remaining from the proceeds of said sale after said $300.00 be paid, shall be divided as follows, to wit:
“One-half (%) to my son John Walden, now residing at La Grande, Oregon, or if not living, to the children of said John Walden in equal shares.
“One-fourth (%) to my son Ladd Almon Knapp, present address not known.
“One-fourth (%) to my grandson, Leo Knapp, who, when last heard from was residing in Oregon.
“But if either of the last two named beneficiaries are dead or can not be located at the time of said division, then his share shall be paid to the other, and if both the last two named beneficiaries be dead or can not be located at the time of said division then their shares shall be paid to my son, John Walden, or if not living, to his children.”
It appears, therefore, that John Walden is made the residuary legatee under the will upon the happening of certain contingencies. The judgment in his favor gives him one-half of the balance remaining from the proceeds of the sale after the payment of the legacies, but he is also to receive the one-fourth of such balance bequeathed to Ladd Almon Knapp and the one-fourth bequeathed to the grandson Leo Knapp “if both the last two named beneficiaries be dead or can not be located at the time of said division.” The terms of the judgment are broad enough to furnish some ground for future controversy, and possibly for the contention that plaintiffs take immediately the interests bequeathed by the will to these two beneficiaries, Ladd Almon Knapp and Leo Knapp; whereas, giving the judgment rendered by the court all the effect to which it is entitled, plaintiffs would only take these interests provided the last two mentioned beneficiaries are living and can be located at the time the division is made. There is some force in the contention that it is a harsh doctrine that a court of justice, after having decided that the plaintiffs acquired no title whatever to this real estate by the quitclaim from Eugene Knapp because he was not the husband of the testatrix at the time of her death, may in the same breath pronounce a solemn decree that the plaintiffs nevertheless are entitled to take the interest of the nonanswering defendants in the real estate. Authorities are cited in support of the doctrine that it is only a general rule that failure to answer admits all the material allegations of the petition, and that the rule must not be permitted to authorize a court to render an absurd judgment in direct violation of natural laws. It is said that the rule does not prevail where two or more persons are sued and one makes a defense which, if sustained, will defeat the entire right of recovery. In such a case the defense inures to the benefit of all the defendants, as well those who defend as those who suffer default. The authorities cited, however, are cases arising ex contractu, or cases where it is essential to the plaintiff’s right to recover against any defendant that he establish a joint liability, and must recover against all or none. Thus we are cited to the text in 23 Cyc. 808, where it is held that the test is “whether a separate action against the particular defendant could have been maintained.” But this citation is from a paragraph considering judgments under joint liability acts, and expressly refers to a case where “plaintiff sues on a joint contract or obligation, which is not also several,” and it is said that he must recover in such a case against all or none, as at common law. .
In a suit like this, however, we think the judgment was not necessarily upon a joint cause of action, although if all the defendants had answered and set up the same defense the same general judgment would have been rendered fin favor of all the defendants and against the plaintiffs because of the Michigan decree. In an action of this kind the plaintiffs might have recovered as against some of the defendants and failed to recover as against others on any other theory except the one mentioned. The petition stated in general terms a cause of action against all the defendants. As to those who failed to appear and answer, the plaintiffs were entitled to take judgment at the first term and without waiting for a trial of the case as to the answering defendants, and a separate judgment might have been entered before proceeding to the trial on the merits as to those who answered. Since the petition did state a cause of action against the nonanswering defendants it can not be said, we think, that the court should have interposed the same defense made by those who answered and have refused to give the plaintiffs judgment as against those who failed to answer.
It follows from what has been said, however, that the judgment will be modified and the court directed to protect the rights of John Walden in accordance with the views expressed in the foregoing opinion, and as so modified the judgment will be affirmed.
West, J., Marshall, J. and Dawson, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
This action is brought to recover damages for personal injuries sustained by the plaintiff while working in a coal mine. A demurrer was sustained to the plaintiff’s petition. He appeals.
We quote from the defendant’s brief:
“The allegations of the negligence of the Coal Company are in substance that Brooks, the appellant, who was working in a room in Mine No. 42 of the Coal Company, the appellee, left his room securely propped and timbered and in a reasonably safe condition on the evening of May 19, 1913, and that by reason of the firing of the shots which Brooks had put in the face of the coal in his room, the props were knocked down, and that when Brooks resumed work in his room the next morning, while attempting to replace the first prop he found misplaced, the roof of the room fell and injured him; that the negligence of the Coal Company consisted in not inspecting Brooks’ room after the shots were fired, and in not setting up the props which had been knocked down by reason of the explosion of the shots, and in not providing Brooks a reasonably safe place in which to work. The appellee at the time of the injury complained of was not within the provisions of the Workman’s Compensation Act of Kansas.”
It is argued that the petition does not charge any act of negligence, and it is contended that the operator of a coal mine, not operated under the workman’s compensation act (Laws 1911, ch. 218), must be guilty of some act of negligence before he can be held liable for any injury to an employee.
1. We will discuss the acts of negligence charged in the order above set out. Was the defendant negligent in not inspecting the mine after the shots were fired? The plaintiff placed these shots. It was the defendant’s duty to furnish a man to fire the shots. This the defendant did. The shots were fired. The roof was damaged and the props knocked down by the explosion of those shots. This was in the plaintiff’s room, at the place where he was working. The plaintiff was the first man to enter the room after the shots were fired. It was his duty to inspect his room at the place at which he was working, for the purpose of discovering anything that might be dangerous. He could discover this as quickly, or more quickly, than any other person. He left his room with its props in proper and safe condition. When he returned he found them down. He should have then inspected the roof of his room to ascertain its condition. If he found it defective, he must have acted accordingly. While attempting to reset the props he was injured. We are of the opinion that it was not necessary for the defendant to inspect the plaintiff’s room after the shots were fired, before he returned to his work.
What has been said concerning the defendant’s duty to inspect may likewise be said of its duty to replace the props after they had been knocked down by the explosion of the shots. It was not necessary that any specified time intervene between the firing of the shots and the return of the .plaintiff to his work. He could go back to his work as soon as the smoke and gases caused by the explosion escaped from the mine. He would be the first man to discover that the props placed by him were down.
What we have said must of necessity refer to the plaintiff’s room at the place in which he was working, and not to that portion of the room that had been completed and abandoned by him.
2. The last allegation of negligence is that the defendant did not provide the plaintiff a reasonably safe place in which to work. The rule that an employer must furnish an employee a reasonably safe place in which to work does not apply where the employee furnishes his own place, or where the place is continually changing by reason of the work itself. As the plaintiff removed the coal from his room he made a place in which he would work after that coal was removed. He was continually changing the place by reason of the work he was doing. He removed the coal as he went forward and put in props to support the roof. The rule is clearly stated in a note to Wellston Coal Company v. Smith, 65 Ohio St. 70, 61 N. E. 143, 87 Am. St. Rep. 547, as follows :
“This rule that the mine owner is bound to use all reasonable care to render safe the place furnished by'him to his employes is applicable only when the place in which the latter are at work is such that it can be said to be a place ‘furnished’ by the mine owner. When, therefore, the employes are engaged in making their own place, the rule does not apply. Where, for instance, miners are engaged in cutting down or blasting out the face of a drift, it would be entirely unreasonable to demand of the owner that immediately after each blast he makes safe the place which the explosion has created. In such case the miners may with reason be said to be furnishing their own place. The .character of the place is continually changing by reason of the work itself. It is, therefore, uniformly held that as to those places which the employe in the progress of his work furnishes ’ for himself, it is his duty, and not that of his employer, to use reasonable care to render them safe for the further prosecution of the work.” (p. 566.)
In 98 S. W. 141 we find the following headnote to Rolla v. McAlester Coal Co., 6 Ind. Ter. 404:
“Where a miner stood in the main slope of a mine while turning a room off from it, the portion of the slope occupied by him was his working place, in the sense that he was required to keep it safe from falling rock, loosened by his own efforts in turning the room, and the master was not liable for injury from such cause.”
We are of the opinion that the petition did not state a cause of action, and for that reason the judgment is affirmed. | [
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Martin, C. J.
I. The action in the court below was brought by Conrad Seim for the purpose of setting aside a deed to certain real estate in Parkerville, Morris County, alleged to have been forged, and enjoining the Pegister of Leeds from filing and recording any deed from Thomas Maclellan for said property. Maclellan filed an answer setting up a right to the real estate, and asking that his title be quieted, or that he be decreed to hold a first lien thereon for the sum of $750 and interest, and also for $38.01 for taxes paid on the property for the year 1889. The case was called for trial at March term, 1892, when the plaintiff below demanded a jury; to which the defendant objected, insisting that the case should be tried by the Court. A jury was called, however, to try the issues, although no general verdict was returned. The plaintiff in error claims that it was error to try. the issues by a jury. The cause was equitable in character, and might have been tried by the Court alone, notwithstanding a demand for a jury by either party ; as neither could demand it as a matter of right. It is usually the better practice for the court to try such issues alone; but the court may in its discretion order any issue or issues of fact to be tried by a jury, and error will not lie unless for an abuse of such discretion. §§ 266, 267 Code; Hixon v. George, 18 Kan. 253, 256; Hunt v. Spencer, 20 id. 126, 129; Yeamans v. James, 27 id. 195, 212; Drinkwater v. Sauble, 46 id. 170, 174.
II. The plaintiff in error claimed that Seim and wife executed and delivered the deed to William Allaway, leaving a blank for the name of the grantee, which was for the time being filled in with the name of Allaway in pencil with authority to him to insert the name of his grantee; that Allaway owed plaintiff in error $750, and as collateral security for the same delivered said deed to him, and his name was inserted as grantee ; and that Allaway had never paid the debt, but plaintiff in error paid the taxes on the property for .1889, amounting to $38.01. The jury found, however, in substance, that Seim, in pursuance of an agreement with William Allaway, deposited said blank deed with Maclellan until Allaway should remove certain judgment liens from property traded to Seim by Allaway; that said liens were not removed, yet Maclellan without authority from Seim wrote his name as grantee in the deed and caused the same to be recorded ; that Seim did not authorize Allaway to insert the name of any other grantee, and that Maclellan did not receive said deed from Allaway in good faith and for a valuable consideration. The evidence shows that Maclellan paid the taxes on the Parkerville property for 1889, amounting to $38.01; and the testimony of Allaway and Burnett was strongly confirmatory of Maclellan’s as to the transaction, while Seim was the only witness to it in his own behalf; but Maclellan and Burnett were both clerks in the real estate office of Allaway at Topeka where the transaction occurred, and the jury had a right to accept Seim’s testimony although apparently overborne by that of the three other witnesses. There was evidence to support the findings, and as they were approved by the trial court it is not our duty to set them aside. Seim did not authorize Maclellan to pay the taxes of 1889 ; and under the findings of the jury the payment must be regarded as voluntary, and Maclellan cannot recover the amount thereof. The right of the plaintiff to prove, under the pleadings, that Maclellan held the deed in escrow is challenged, but we think the general allegation of forgery was broad.enough to cover the circumstances detailed in the evidence and in the findings of the jury.
The judgment must, therefore, be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The complaint filed against the defendant does not charge an offense under either paragraph 2241 or 7157 of the General Statutes of 1889, and the court ruled correctly in quashing it. Nor was there any error in refusing to permit the state to amend. There is nothing in the record showing in what particular the state desired to amend the charge, and counsel in this court fail to indicate any public offense of which, the state claims the defendant was guilty. There is no statute making it a misdemeanor to drive horses across the land of another and allow them to destroy growing grass thereoD, even though it be wilfully and maliciously done. The act does not fall within any provision of the sections of the statute cited. The injured party has his remedy by civil action for trespass.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit has arisen over the terms of an accident insurance policy.
H. Bruce Barnes, in his lifetime, was a barber in Wichita. He held a policy of insurance issued by the defendant company. On May 5, 1913, he fell off his bicycle and was injured. Notwithstanding his injuries, he continued to go to his place of business from day to day, although not in his accustomed health and vigor, until May 18, when he died.
No demand was made by Barnes on the defendant company for any payment on account of his accident and injuries. On June' 10, his widow, the plaintiff, presented to the defendant company the proof of her husband’s death and the cause of it and demanded payment under the terms of the policy. This was refused, and this action is the result.
The defendant denied liability because of a breach of the following provision in its insurance policy:
“ (m) Written notice of any injury, fatal or non-fatal, or of any illness for which claim can be made, must be given to the Company at Philadelphia, Pa., within ten days of date of accident or beginning of illness. Failure on the part of the assured or beneficiary to comply strictly with said notice requirement shall limit the liability of the Company to one-fifth the amount which would be otherwise payable under this policy. Notice to an Agent does not constitute notice to the Company.”
The plaintiff recovered judgment, and defendant appeals; and the alleged error involves the proper interpretation of the clause above quoted.
1. No notice of the accident or injury was given by the assured or by the plaintiff within ten days of its occurrence. Neither was any notice given within ten days of the assured’s death. He died on May 18. Notice to the company was given on June 10. What does the policy require?
“Written notice of any injury, fatal or non-fatal, or of any illness for which claim can be made, must be given . . . within ten days of date of accident or beginning of illness.”
No claim for indemnity or benefit was made by the assured for the accident or injury or illness. The provision in controversy does not say what notice must be given in case of death. Shall we amend this provision and read into it some duly to be performed by the beneficiary when a claim arises under the policy on the death of the assured? Touching this provision under discussion, the district court instructed the jury (in part) :
“You are instructed that this paragraph applies to the claim which could be recovered by the insured himself, and that it does not apply to the claim of the plaintiff in this case, which is for the death of the insured and, of course, arises only after his death and after the accident which caused his death. To enable the plaintiff to recover in this case it is not necessary for her to comply with the provisions of this paragraph, and it is not necessary that notice of the injury or illness for which a claim is made to have been given to the Company within ten days of the date of the accident or the beginning of the illness.”
In Casualty Co. v. Colvin, 77 Kan. 561, 95 Pac. 565, it was held that in a clause in an accident insurance policy requiring notice by the insured or the beneficiary within fifteen days from the date of the accident, the time did not begin as against the beneficiary until the death of the assured. In the opinion-it was said:
“It is also contended that, if this right of action existed, it has been lost by failure to give notice as required by clause 4, above set out. No notice was given to the company until more than fifteen days after the insured was injured. If such notice was necessary, the failure to give it worked a forfeiture of all rights under the policy. It will be seen from clause 4 that notice of the claim must be given by the insured or by the beneficiary. These parties cannot both have a claim at the same time. It would be a useless thing for the beneficiary to give notice of a claim which is not in existence and which may never arise. Such a proceeding cannot be fairly assumed to have been contemplated by the parties, and it does not seem to be clearly expressed by the language of the policy. Until the death of the insured the beneficiary had no interest in, or claim to, the policy, and no rights under its provisions. A claim in favor of the insured arose after he received the injury, and to preserve that claim it was incumbent upon him to give the required notice. But the beneficiary, during the life of the insured, had no claim against the company nor any right under the policy to be protected. The language of the clause evidently contemplates that this duty will in some cases rest upon the insured and in others upon the beneficiary, for they are both mentioned.” (p. 569.)
Since the provision in controversy does not literally provide that notice must be given within ten days of the death of the assured, let us see if the duty of the beneficiary is not elsewhere prescribed in this policy. One paragraph, in part, reads:
“(n) Proof, satisfactory to the Company, affirmatively establishing the fact that the injury, loss or disability, is such as comes within the provisions and conditions of the policy, must be furnished to the Company at Philadelphia, Pa., (on blanks provided on request, by the Company), within thirty days from date of death. . . . Any claim not brought in conformity with the conditions of this paragraph shall be forfeited to the Company.”
This clause seems pertinent. It requires that within thirty days of the death of the assured proof shall be furnished to the company showing the fact of the injury, loss or disability. The plaintiff complied with this requirement.
Which clause controls ? The one which does not clearly nor even fairly prescribe notice touching the death of the assured, or the one which does? It is not disputed that this latter clause was conformed to by the plaintiff, and it appears to us that it is the clause which directed the conduct of the claimant after the death of her husband.
The authorities cited by counsel for plaintiff and defendant seem to be in confusion, and it seems better to resort to the clear and precise doctrine of an analagous case of this court for a precedent. Such is the case of Nesbit v. City of Topeka, 87 Kan. 394, 124 Pac. 166. There the husband of the plaintiff had been injured and died through the negligence of the city. The statute provided that no action could be brought against the city unless a written statement giving the time, place and circumstances of the accident or injury was filed with the city clerk within four months. While this statute was held to be mandatory on the injured party before he could claim damages, a failure on the part of the widow to file such written statement within four months of the injury did not bar her recovery.
A case somewhat-like the present was Hoffman v. Accident Indemnity Co., 56 Mo. App. 301. There the policy provided:
“ ‘In the event of an accident or injury for which or from which, directly or indirectly, any claim may be made under this certificate, either for weekly indemnity or loss of limbs or loss of both eyes or for the death benefit, immediate notice shall be given in writing signed by the member or his attending physician, or in case of death by the beneficiary, addressed to the secretary of the company, at Geneva, New York, stating the full particulars as to when and where and how it occurred, and the occupation of the member at the time, and his address; and failure to give such immediate notice, mailed within ten days of the happening of such accident, shall invalidate all claim under this certificate.’ ” (p. 303.)
The assured lived for forty days after his injuries, but no notice was given to the company under the clause just recited. The court held that this provision did not apply where the claim was made in behalf of the beneficiary after the death of the assured, and that notice within reasonable time thereafter was sufficient. Two sections of the syllabus read:
“A condition in an accident insurance policy, requiring the beneficiary to give notice of the death, within ten days of the happening of the accident causing it, is impossible, and, therefore, unreasonable, in a case where the death does not occur within ten days after such accident, and such condition is invalid.
“When a stipulation in a policy of insurance, emanating from the insurer, is capable of two meanings, that meaning is to be adopted which is most favorable to the insured, and doubt must be resolved in favor of the interpretation of the assured, although intended otherwise by the insurer.” (Syl. ¶¶ 1, 3.)
Construing paragraphs “m” and “n” together, it seems clear that paragraph “n” is the one which governs the beneficiary, and since it is conceded that she complied with its terms within the time therein specified, the judgment in her behalf can not be disturbed. It is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action for damages under the federal employer’s liability act. The plaintiff, as administratrix of the estate of the deceased, recovered judgment. The defendant appeals.
Rolla Earl Hackney, a fireman on the defendant’s passenger train from Oklahoma City, Okla., to Parsons, Kan., was killed in Oklahoma in a collision between the passenger train and a freight train standing on a sidetrack, waiting for the passenger train to pass. After backing in upon the sidetrack, the freight-train crew left the switch ahead of the freight train open. The passenger train ran into the open switch and collided with the freight train: Two grounds of negligence are alleged: one, that the crew of the freight train left the switch open ; and the other, that the engineer on the passenger train failed to observe the danger signals shown at the open switch. The defenses are assumption of risk and contributory negligence.
The jury returned a general verdict for the plaintiff, and made the following special findings :
“1. On account of the curve in the track, how far could a person on the engineer’s side of engine No. 343 see the switch light at Mahan on the morning of August 2,1912, as said engine pulling train No. 22 approached from the south? Ans. 200 feet.
“2. How far could a person on the fireman’s side of said engine 343 see the switch light at Mahan on the morning of August 2, 1912, as said engine approached from the south? Ans. 1400 feet.
“3. When approaching Mahan siding, was the fireman R. E. Hackney for a distance of at least one-quarter of a mile sitting on the seat on the fireman’s side of the engine? Ans. Yes.
“4. Was said R. E. Hackney at and before the accident familiar with the track southward from Mahan? Ans. Yes.
“5. On and before August 2, 1912, did the defendant have in force a rule substantially, as follows: ‘345. — Firemen as well as enginemen must watch signals and switches carefully, as frequently the first view can be had from the fireman’s side’? Ans. Yes.
“6. Did said R. E. Hackney at any time before the collision, warn the engineer that the switch at Mahan was open for the siding? Ans. No.
“7. If you find for plaintiff, what amount do you find would reasonably ■compensate her for what she could reasonably expect she would have recovered from the deceased had he lived? Ans. $8000.
“8. If you find for the plaintiff, what sum do you deduct from the amount of damages sustained by the plaintiff because of the negligence ■of the fireman in failing to obey said rulé No. 345? Ans. $1142.85.
“9. If the fireman of engine 343 had warned the engineer as soon as he reasonably could do so after coming out of the cut into view of the switch at Mahan, could the engineer have stopped the train and have prevented the collision? Ans. Yes.
“10. If you find for plaintiff, on what act or acts of negligence do you base your verdict? Ans.’ Leaving switch open and neglect of same.
“11. At what speed was train No. 22 running when it passed the switch at Mahan? Ans. 15 to 25 miles per hour.”
It is argued that the deceased, by reason of his failure to observe the red light and inform the engineer thereof, assumed the risk of any injury that might be caused by the train running into the open switch. The deceased was negligent in not observing the light and informing his engineer. That negligence contributed to the deceased’s injury, but was not the sole proximate cause of it. The switch had been negligently left open by the crew of the freight train. That negligence was a proximate cause of the injury. Without that negligence, the accident would not have occurred. The primary, immediate cause of the accident was the open switch. The negligence of the deceased was slight compared with that of the crew of the freight train: The federal employer’s liability act provides that contributory negligence shall not be a bar to a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee. The statute also provides that the carrier shall be liable to any of its employees for all damages which may result from the negligence of any of its officers, agents, or employees. If assumption of risk on account of the negligence of the injured employee is a defense in an action of this kind, the statute fails to accomplish its purpose.
It is next argued that the sole proximate cause of the deceased’s injury wás his failure to give warning to the engineer. This is not correct. The open switch caused the accident. It was left open by the freight-train crew. The accident could have been prevented by closing the switch, or by stopping the passenger train. Unquestionably, the deceased and the freight-train crew, by their negligence, contributed to the accident, but it' can not be said that the negligence of the deceased was the sole proximate cause thereof. To say this would contradict the facts as they existed.
It is argued that because of the negligence of the deceased, the judgment should be reduced to $4000. In Fogarty v. Northern Pac. R. Co., 74 Wash. 397, 133 Pac. 609, the supreme court of Washington said: . -i •
“In cases under this act, it becomes a question of fact for a jury to apportion the negligence of the employer and the employee, and to render a verdict in such an amount as they shall fairly determine to represent the true apportionment.” (p. 398.)
(See, also, Sandidge v. Atchison, T. & S. F. Ry. Co., 113 C. C. A. 653, 193 Fed. 867, 869, 876, and Note in 47 L. R. A., n. s., 61.) We do not think we are warranted in disturbing the verdict of the jury in this matter.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
To quiet their title to a five-acre tract of land in Shawnee county, Mattie E. Brown and Margaret B. Edmondson brought this action against J. F. Going and others, and in the district court they prevailed. An appeal is taken by Going, and it is conceded that if the tax deed under which he holds is void the judgment must be affirmed.
The validity of the defendant’s tax deed hinges upon whether the certificate upon which it was based was prematurely issued. That, in turn, depends mainly on whether or not Shawnee county had adopted the provisions of chapter 162 of the Laws of 1891 (Gen. Stat. 1909, §§ 9462-9464) and the amendments thereto, and whether these provisions were operative in that county when the tax sale in question occurred and the subsequent steps were taken by the taxing officers. It appears that the land was subject to taxation for the year 1909, and that the taxes thereon were not paid. On September 6, 1910, the land was sold or bid off by the county for $4.58, the unpaid taxes for the preceding year. On September 6, 1913, one day less than the prescribed period of redemption, the treasurer of the county issued a certificate to J. F. Going which purported to assign the interest of the county to him for $19.60. Three days later, on the presentation of the certificate, the tax deed was issued.
The above-mentioned act, in effect, provides that counties may adopt its provisions, and that where it is adopted all lands advertised for sale for taxes shall be bid off by the county and shall be held by it until the expiration of three years from the date of sale, that such lands shall be subject to redemption by the owners, heirs, executors, administrators and assigns, and those holding certain mortgage interests, and that if at the end of three years the land has not been redeemed the county commissioners shall dispose of it under the general provisions of law. (Laws 1891, ch. 162, § 3, Gen. Stat. 1909, § 9464; Laws 1911, ch. 326, § 1; Laws 1913, ch. 324, § 1.) As stated, the officers did not wait until the end of three years from the day of sale to assign and dispose of the land but issued a certificate of assignment one day before the period of redemption had expired. It is contended that the abstract does not show that the provisions of the law referred to had been adopted by Shawnee county. In the abstract appears a colloquy between counsel for the parties in which admissions were made and facts agreed to, and in speaking of the sale it was said:
“Mr. Austin: It is stated that this tax deed — the sale recited in there is the sale of September 6, 1910.
“The Court: For the taxes of 1909.
“Mr. Austin : 1909,. and the law provides — Section 9464 — that in counties such as this county electing to take under a certain statute all lands sold or bid off by the county — ”
Here there is a break in the record. It is followed by:
“Mr. Monroe : Remaining.
“Mr. Austin : Remaining.”
In the counter-abstract it is said that Mr. Austin’s statement was that:
“Section 9464 of the General Statutes 1909, was in force in Shawnee county, Kansas, on September 6, 1910, and had continued in force ever since.”
The transcript of the record has been brought before us and according to it the statement relating to the adoption of the act is not complete and is substantially as stated in defendant’s abstract. While the statement on the subject in the record is unfinished it expressly refers to the particular section which provides that counties may elect to operate under the law and may bid off all lands advertised to be sold for taxes for the amount of the taxes, and further, that no bids from others shall be accepted. After designating this statute under which counties may elect to take all lands sold or bid off for taxes by the county the statement, in effect, is that an election has been had in Shawnee county. Although the statement of admission is incomplete it was evidently intended to show and is deemed to be sufficient to show that the act in question, was in force in the county. • Aside from that, it was competent for the court to take judicial notice of all general laws that are in operation, and it may likewise take notice of the adoption of a general law in a district. It has been decided that the court might take judicial notice that this particular statute was in force in one of the counties of the state at the time when a particular tax sale occurred. (Saum v. Dewey, 84 Kan. 811, 115 Pac. 570.) The district court having power to take judicial notice that the law had been adopted in the county appears to have proceeded upon the theory that it was in operation in Shawnee county and the recitals in the tax deed that was issued are to that effect.
It is said that the deed was not executed and delivered until after the period of redemption had expired, but the assignment was made and the certificate issued to the defendant before the period of redemption had expired, and this certificate, which was void, was the basis of the deed which was subsequently-issued. The assignment and the certificate being void the deed itself was void.
It follows that the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
There are two actions involved in this appeal, one for an accounting between partners, which will be referred to as the. “partnership suit,” also an action brought by the First National Bank of Winfield against the same defendants upon two promissory notes, which action will be referred to as the “bank case,” and which is only indirectly involved herein. The partnership suit was commenced on June 30, 1904, and was pending in court for more than nine years. The case was referred to two different referees. The findings and report of the first referee were set aside by the court, and another referee appointed who heard the evidence, examined the accounts of the parties and reported his findings of fact and conclusions of law and recommended the kind of a final decree to be rendered. Both parties filed exceptions to the report, but these were overruled by the court and the referee’s report was confirmed in every particular and a final decree was rendered in accordance with his recommendation. Alexander, who is the plaintiff, appeals from the judgment.
The defendants are nephews of the plaintiff. From 1881 Mr. Alexander was engaged in the milling business in Winfield, originally with a partner named Kirk who was his brother-in-law. The business was conducted under the firm name of Kirk & Alexander, and after Kirk’s death his widow, Alexander’s sister, continued as the partner. Thereafter Mrs. Kirk died and Alexander, who was the executor of her estate, continued the business under the firm name of Kirk & Alexander. He became involved in financial difficulties in 1893, and a partnership arrangement was entered into between himself and his nephews which was still in existence when he brought the suit for accounting. For some reason which is not apparent counsel for the plaintiff devote a very large portion of their brief in an effort to show that no partnership was ever formed between the parties, and many pages of evidence are quoted to demonstrate the absurdity of Alexander giving to his nephews an interest in his business as partners. Alexander’s petition alleged a partnership and asked a partnership account ing. At the trial of the case before the referee it was admitted that there was a partnership existing, but it was contended by Alexander that the terms of the partnership differed from those contended for by the defendants. The referee, upon all the testimony, found that a partnership existed, and that when the new firm began business in July, 1893, it took over from Kirk & Alexander accounts due the old firm, part of which were collected and a part of which were never collected; that Alexander retained the ownership of the mill property but furnished it free of charge to the firm and was to receive seven-twelfths of the net profits, John Clarkson three-twelfths, and M. A. Clarkson two-twelfths. Counsel for plaintiff make the further contention that if the findings of the referee and the approval of the court to the effect that there was a partnership be regarded as final this' court should weigh the evidence and find that Alexander’s contentions as to the terms of that partnership are correct and the findings of the referee and the court erroneous. But this court, of course, can not weigh conflicting evidence, and there is no merit in the contention. (Mason v. Harlow, 92 Kan. 3042, 142 Pac. 243.)' As stated, however, it was agreed by both parties at the hearing before the referee that a partnership was formed in July, 1893, and that it was a question for the referee and the court to determine what were the interests of the partners.
It appears that in 1898 defendant John Clarkson purchased what is known as the “Tunnel Mill” in Winfield, paying part of the consideration himself, the Alexander Milling Company paying the balance. The title to this property was' taken in his name, and the mill was operated from that time until 1902 under the name of the Clarkson Milling Company, but the business was kept on the books of the Alexander Milling Company. No separate books were opened and no separate bank account kept. Apparently the mills were operated under separate names in order to enable both to sell flour to merchants in the same town and to lead the public to understand that they were competitors in business. Against the' contention of John Clarkson the referee found that the Tunnel Mill property belonged to the partnership.
The business transactions of the partners covering the period of more than nine years became very much involved. The personal funds and accounts of the members of the firm were apparently not kept separate from those of the partnership. It became necessary to consider a vast amount of evi-dence, including business transactions, book accounts, the indebtedness of the old firm of Alexander & Kirk, the assignment and transfer of numerous judgments rendered against some of the parties in other litigation, and it was a difficult matter for the referee and the court, out of the confusion of accounts, to determine what was a just accounting between the partners. The referee, however, made an accounting and recommended the dissolution of the partnership, and, as stated, the court approved the findings and conclusions of law. Eor reasons which will be suggested, we have deemed it necessary to refer to but a few of the findings and a portion of the evidence.
The bank case arose under the following circumstances: On June 10,1902, the Alexander Milling Company was indebted to the First National Bank of Winfield, and to secure this ¡two notes, one for $3500, and the other for $3000, were executed to the bank, signed by the Clarkson Milling Company, John Clarkson and M. Alexander. The proceeds of the notes were deposited in the firm account of the Alexander Milling Company and used by the partnership, facts which were known to the bank. On October 26, 1903, the bank brought suit upon these notes against John Clarkson and M. A. Clarkson without making Alexander a party. The action was also referred to the same referee, and the pleadings, papers, testimony and records in the bank case were introduced in evidence. Defendants John and M. A. Clarkson asked for an order making Alexander a defendant on the ground that he was a member of the Clark-son Milling Company at all times as shown by the evidence in the accounting case, and that he was an interested party in the action brought by the bank upon the notes. His counsel obr jected, and stated that if the defendants desired Alexander made a defendant there was a method for them to have him brought in, and that it was too late to raise the question after the hearing had been instituted. The referee overruled the application, holding that the proper way was for the defendants to amend their answer and serve process upon Alexander. During the hearing before the referee the Clarksons at dif ferent times sought to have Alexander made a defendant in the bank case, claiming that he was the principal and they were only sureties, but the referee denied all the applications to make him a defendant. The referee found the amount re-' maining unpaid on the notes due the bank and recommended that judgment be rendered against the Clarksons for this balance, and in accordance with his report judgment was rendered in favor of the bank and against the two Clarksons for $7034.75. The referee found that the indebtedness represented by the notes was incurred by the Alexander Milling Company in the firm business, and recommended that the Tunnel mill, being the only tangible asset of the firm, should be sold and the proceeds applied to the payment of the costs in the accounting case and then to the payment of costs and the judgment in the bank case, and that if the proceeds should be insufficient to pay that judgment in full the Clarksons were to be given credit on their personal accounts with the partnership for the deficiency in the proportion of three-fifths to John Clarkson and two-fifths to M. A. Clarkson. The judgment in the accounting case was rendered in accordant with the recommendations.
■ The defendants, who are appellees, insist that the plaintiff: is not entitled to review the judgment because of the failure to file a- motion for a new trial within three days after the rendition of the judgment. On the other hand, the plaintiff contends that the judgment was not rendered until March 6, 1914, and if plaintiff is correct in his contention, the motion was filed in due time.
On the 16th day of June, 1913, the court in a preliminary decree approved the report of the referee and overruled the exceptions of both parties, but at that time did not enter a final judgment, because it was necessary in following the recommendation of the referee to order the Tunnell mill property sold, which the court did, and in the journal entry of judgment approving the report expressly retained jurisdiction to adj ust any deficiency in the settlement of the accounts between the Clarksons and Alexander, the journal entry reciting that the net profits “be ascertained after the debts and obligations of said partnership are paid, and all of the costs of this litigation.”
It appears from the abstract that there was considerable delay in the entering of the final judgment. The abstract shows that the report of the referee was filed on October 14, 1912, and was approved by the court on the 16th day of June, 1913, The court, as stated, had ordered a sale of the Tunnel mill property. On the 19th day of September, 1913, the court on motion ordered the sale confirmed, and there is a separate journal entry of this. The abstract shows a journal entry reciting that later, and on the same date, September 19, 1913, the cause came on for hearing upon the motion of defendant John Clarkson for a final decree as provided by the report of the referee. The journal entry then recites as follows:
“And thereupon after hearing the argument of counsel and being sufficiently advised in the premises, the court orders that a decree be prepared to take effect as of this 19th day of September, 1913, in accordance with the terms of the report of the referee heretofore made and approved.”
It further recites that the plaintiff and defendant John Clarkson each submitted to the court a separate draft of final decree and judgment, “and the court takes the matter of'final approval and entry hereof under advisement and continues said cause.” There were several continuances of the hearing as to the form of the journal entry. On the 6th day of March, 1914, the court approved the draft submitted by defendant John Clarkson, -which followed the recommendation of the referee, and the journal entry recites “that this judgment be and it is hereby made and entered as of September 19, 1913.” The motion for a new trial was not filed until the 7th day of March, 1914.
Subsequently, on the 14th day of April, 1914, the plaintiff filed what he calls his “Supplemental Petition to open up judgment and to correct same and to set aside findings of fact last made by the Referee herein, pending motion for new trial, and in addition thereto.” On the 18th day of April, 1914, the court denied the motion for a new trial and also the supplemental petition filed in support thereof. We think there can be no question that the motion for a new trial was filed too late.
When the court made its findings of fact and conclusions of law on June 6, 1913, the decision of the court upon the issues submitted was rendered. (Brubaker v. Brubaker, 74 Kan. 220, 86 Pac. 455.) The court merely continued the cause for the purpose of ascertaining how much credit on the different judgments should be allowed from the proceeds of the sale of the Tunnel Mill. Every finding of fact as well as every conclusion of law made by the referee was approved and found by the court on that day. Nothing remained to be done except a mere matter of computation of the credits from the proceeds of the sale. The judgment fixed the proportionate share each party was entitled to in the proceeds, and under the rule declared in Brubaker v. Brubaker, supra, the plaintiff should have filed his motion for a new trial within three days after June 16, 1913. But if we regard the decree of that date as only a preliminary decree, as the court labeled it, and not as a final decree, the plaintiff is in no better situation because it can not be questioned that the final decree was rendered on the 19th day of September, 1913. The journal entry of that date recites that the court had already confirmed the sale of the Tunnel Mill and had ascertained the net proceeds thereof, and the court ordered “that a decree be prepared to take effect as of this 19th day of September, 1913, in accordance with the terms of the report of the referee heretofore made and approved.”
Subsequently, on.March 6, the court approved the decree submitted by the defendants. The case was not continued for the purpose of finding further facts, and no additional facts were found. Nothing remained to be done except to approve a journal entry. There is some contention that no motion for a new trial was necessary because all that was asked was that plaintiff’s exceptions to the findings be sustained and different findings made from those reported by the referee, but this required a new trial and made necessary a motion for a new trial. In Bank v. Refining Co., 89 Kan. 738, 132 Pac. 832, it was held that: •
“To entitle an appellant tó a review of a judgment based upon the report of a referee and to attack the findings of fact it is necessary that a motion for a new trial should have been filed in the trial court.” (Syl.)
(See, also, the same case, 91 Kan. 434, 138 Pac. 587.)
All that remains is the question whether it was error for the court to deny the supplemental petition filed April 14, 1914. Although labeled a supplemental petition for a new trial, it set out substantially the contentions plaintiff had made before the referee and in the various exceptions filed in court — matters upon which the court had repeatedly ruled adversely to the plaintiff. It contained, however, some new matters and some matters that were not so new. It set forth a copy of a written agreement entered into between the bank and Alexander in October, 1903, before the bank commenced suit against the Clarksons on the notes, by which it was agreed that the bank should institute a suit against the Clarksons and was not to sue Alexander, and he agreed not to raise that fact in any further suit by the bank to recover from him any judgment upon the notes that might not be collected from the Clarksons. The agreement was signed by Alexander, for himself, and E. W. Bolinger, cashier of the bank, on behalf of the bank. It then recites that the bank had complied with the agreement not to begin suit against Alexander; that neither of defendants had any money or property out of which the judgment remaining unpaid can be enforced; that the court in its final decree had treated the judgment in favor of the bank and against the defendants as paid by the defendants, although it had not been paid, and that the bank, being unable to enforce collection of the judgment, had subsequently demanded payment from Alexander and had threatened to commence an action against him upon the agreement; that on April 14, 1914, he paid the bank the judgment and took an assignment of the same. The prayer of the supplemental petition was that the plaintiff be credited by the court in the partnership case with the amount of the judgment.
The defendants call attention to the evidence in the bank case taken before the referee in which Bolinger, cashier of the bank, testified that there was no understanding or agreement, written or otherwise, between the bank and Alexander that he should not be sued upon the notes, and that this evidence of Bolinger was given in proceedings in which the Clarksons sought to have Alexander made a defendant. The judgment in the bank case was rendered on June 16, 1913, and in that case no appeal has been taken. The plaintiff alleges in his supplemental petition that he paid the judgment, to which he was not a party, nearly a year after it was rendered, and the defendants urge that he paid it, if at all, as a mere volunteer; that the notes and agreement were barred by limitations, and that he had a good defense to any action the bank might bring against him; and further, that in view of his conduct in seeking, with the bank’s aid, to avoid liability for his share of a partnership debt, there are no equities in his favor which should move the court to come to his relief.
In plaintiff’s exceptions before the referee there is one to conclusion of law number 7, in which the referee recommended the application of the proceeds of the sale of the Tunnel Mill which the court followed, and the exception was based upon the ground that it was not supported by the evidence and was not the correct manner of reaching the respective interests of the several partners. Later more elaborate exceptions were filed, including one in which it was contended that no credit should be given to either of the Clarksons on account of the notes held by the bank until the same were paid; but so far as we can discover from the abstract it was not until long after the report of the referee had been approved, and indeed not until long after the final judgment was rendered, that Alexander changed his attitude and for the first time' claimed he was liable to the bank upon the indebtedness represented by the notes, or that he would be compelled to pay the judgment.
An order allowing or refusing to allow the amendment of pleadings or supplemental pleadings will not be disturbed where it does not appear that the judge abused his discretion. (C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 76; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Kennett v. Van Tassell, 70 Kan. 811, 79 Pac. 665; Matson v. Railway Co., 80 Kan. 272, 102 Pac. 254.)
Was it an abuse of discretion for the trial court long after the rendition of- the judgment in both cases to refuse to consider a supplemental petition setting up facts respecting plaintiff’s liability to the bank which he knew when the cases were commenced ? In view of the long years in which this case had been pending in court, the numerous delays and adjournments, and all the facts and circumstances before the court, it certainly can not be said that it was an abuse of discretion to refuse to permit the matter to be reopened in that way. It appears from the counter-abstract that soon after the judgment was rendered against Alexander and in favor of the defendant, Clarkson assigned and transferred his judgment to a third party, and that the assignment was made a matter of record in the office of the clerk of the court, and further, that several months before the alleged payment by Alexander of the bank’s judgment and its assignment to him by the bank the attorneys for defendants filed in the district court notice of liens for their fees upon the judgment in favor of Clarkson and against the plaintiff. If the court had allowed the filing of the supplemental petition so far as it relates to the claim arising out of the alleged payment and assignment of the bank’s judgment it would have been obliged to bring in all the other parties who claim an interest in the other judgment in order to determine the rights of the parties, and thus the litigation would have been prolonged indefinitely.
There was no abuse of discretion in the court’s refusal to entertain the supplemental petition, and as the motion for a new trial was not filed in time the other claims of error can not be considered.
The judgment must therefore be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an information filed in the district court of Brown county on September 8, 1914, A. G. Huff was charged with having willfully, unlawfully and maliciously published, on September 3, 1914, a libel concerning William I. Stuart. Huff was the owner, editor and publisher of The Hamlin Reporter, a weekly newspaper published at Hamlin and of general circulation in Brown county. William I. Stuart was the judge of the twenty-second judicial district, which includes Brown county. In -the election of 1914 Judge Stuart was a candidate for reelection to succeed himself, and opposing him was another candidate, whom Huff supported. It appears that a deputy assessor complained that Judge Stuart had failed to list all his personal property for taxation, and an inquest was had before the board of county commissioners on September 1, 1914, who found that Judge Stuart had made-a proper return of it. Concerning the inquest Huff wrote and published the following article, which is the publication of which complaint is made:
“THE STUART INVESTIGATION.
“The investigation of Wm. I. Stuart before the County Commissioners, Tuesday, showed that on March 1st, 1913, he had on deposit in The Citizens State Bank, of Hiawatha, $19,180.00. He produced checks enough to offset this amount all but $1,239.00, which he had on deposit and failed to show checks for, and in addition to this he had drawn a check on March 1, 1913, for $4,000.00 made payable to himself and which he presented for payment on March 6, 1913. This left a balance on hand or on deposit of $5,239.00 on March 1, 1913, which he claimed belonged to his brother, J. W. Stuart, a non resident of Brown county. But this money was in Brown county on March 1, 1913, and should have been taxed, but the Commissioners failed to find aigainst him. It is said the matter will be reviewed by the State Tax Commission and left for them to decide.”
A motion to quash the information was overruled, and at the close of the plaintiff’s evidence defendant moved that the jury be instructed to return a verdict of not guilty, but this motion was overruled. The jury found Huff guilty, and, his motion in arrest of judgment being overruled, he wás sentenced to pay a fine of $25 and costs. From this judgment Huff appeals.
Does the information state a public offense ? is the controlling question presented for determination. The publication purports to be a report of an investigation had before the board of county commissioners as to the listing of property for taxation. In effect it recites that prior to March 1, 1913, Judge Stuart had checked and paid out all of the money which he had deposited in a bank except the sum of $1239. It is further stated that on March 1 he had drawn a check payable to himself for $4000 which was not presented until March ,6. There is no suggestion that any part of the deposit was subject to taxation except the two items mentioned which amount to $5239, and as to this amount it is said that Judge Stuart claimed that it belonged to his brother who is a nonresident. There is no imputation that Judge Stuart did not make a complete return of all of his own property, but it is stated that this amount which belonged to his brother was in Brown county on March 1 and should have been taxed. The statements are not libelous per se. It is not charged that Judge Stuart made any misrepresentation as to the money on hand or that he is guilty of any wrong or fraud. The statute provides for the listing of property for taxation and every person when called upon by an assessor is required to make a verified statement of the personal property which he is required to list either as owner or in any other capacity. It is also provided that if he fails to make such a list or statement when called upon or knowingly makes a false one he will be guilty of a misdemeanor. (Gen. Stat. 1909, § 9225.) As we have seen, the publication does not imply that Judge Stuart failed to list any of his own property, nor does it carry the implication that he made a false statement as to his brother’s property. The language is not ambiguous and manifestly it has no covert meaning. It does not charge Judge Stuart with a purpose to wrong or defraud the state or of having done so at all. There' is no statement either that any one understood the language to convey the meaning that he was guilty of wrong or fraud, and in the absence of explanatory averments the language does not state an offense. (O’Connell v. Shontz, 126 Iowa, 709, 102 N. W. 807.) The statement is no more than to say that because the money of his nonresident brother "was in Brown county on March 1 it was subject to taxation. The writer assumed, as all others interested appear to have done, that the money, $5239, belonged to a nonresident, and the only question of dispute was whether that money, which happened to be in Brown county on March 1, was subject to taxation. That raised a question of law, and the compnissioners determined that the money was not subject to taxation in Kansas. The defendant expressed a contrary opinion, but even if the defendant is mistaken as to the law upon the point it would hardly subject him to prosecution and to punishment. The money collected by Judge Stuart as the agent of his brother is not necessarily to be listed or returned for taxation. It is provided that money collected by an agent which is to be immediately transferred to the principal shall not be listed by the agent for taxation. (Gen. Stat. 1909, § 9221.)
It is clear that the publication is not libelous on its face, and the question arises whether the information has been strengthened by the innuendo. It is alleged in the innuendo that the defendant implied that Judge Stuart had $5239 on hand subject to taxation which he had failed to list, and that he had falsely sworn to a personal-property statement and had thereby committed a crime. The purpose of an innuendo is to explain the meaning of published words to which it refers and not to add to or restrict the obvious and natural meaning of the published words. (The State v. Osborn, 54 Kan. 473, 38 Pac. 572; The State v. Grinstead, 62 Kan. 593, 64 Pac. 49; Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 25 L. R. A., n. s., 517, 135 Am. St. Rep. 359.) As we have seen, the publication is not libelous per se, and it can not be said that it is ambiguous, ironical, or that it was used in a double sense. The published words are not open to the meaning attributed to them by the innuendo and the natural and obvious meaning of words can not be changed or enlarged in that way. The publication is that the property of the nonresident was in the county and therefore subject to taxation, while the meaning ascribed to the publica tion by the innuendo is that Judge Stuart had falsely sworn to his personal-property statement and had made a false return of his property. Whether the language used will bear the interpretation or will convey the meaning attributed to it in the innuendo is a question of law for the court. That employed by the defendant is obvious and it is clear that the innuendo places a construction upon it which it will not bear. The rule in such a case has been thus stated in section 338 of the third edition of Newell on Slander and Libel:
“Where the words can bear but one meaning, and that is obviously not defamatory, no innuendo or other allegation in the pleadings can make them so, and no action lies. No parol evidence is admissible to explain the meaning of ordinary English words, in the absence of special circumstances showing that the words do not bear their usual signification. ‘It is not right to say that a judge is to affect not to know what everybody else knows — the ordinary use of the English language.’ ”
(See, also, 25 Cyc. 449; 18 A. & E. Encycl. of L. 981; Townshend on Slander and Libel, 4th ed., § 336; Note, 31 L. R. A., n. s., 140; Newell on Slander and Libel, 3d ed., §§ 751, 752; Nichols v. Daily Reporter Co., 30 Utah, 74, 83 Pac. 573, 3 L. R. A., n. s., 339, 116 Am. St. Rep. 796, 8 Ann. Cas. 841.)
It must be held that the information does not charge an offense, and therefore the judgment of the district court is reversed and the defendant is discharged. | [
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The opinion of the court was delivered by
Mason, J.:
H. G. Waltner Mercantile Company entered into a written contract with Outcault Advertising Company, in the form of an order, the following being the portion material for present purposes:
“For one year beginning February 1st, 1910, ship us at our expense, your Outcault Service De Luxe, consisting of: 12 Outcault Service De Luxe (6 column) cut for each week, 40 Outcault Service De Luxe (4 column) cut for each week, 1 Font Type.
“We (or I) agree to pay you net cash monthly at the rate of $3.00 per week.”
The mercantile company made payments for two months only, and the advertising company brought action for the balance. The defendant resisted payment on the ground that the plaintiff had failed to comply with the contract on its part. A verdict was returned for the defendant, on which judgment was rendered, and the plaintiff appeals.
A reversal is asked on the ground that the court erred in allowing oral evidence of promises on the part of the plaintiff not included or referred to in the writing, and in instructing the jury that if such promises were made and not kept the defendant was justified in repudiating the contract. The written agreement calls for the furnishing of certain “cuts,” and appears to be free from obscurity or ambiguity except as to the meaning of the terms by which they were described. The phrase “Outcault Service De Luxe” obviously had a local or trade meaning, given it by the plaintiff, and of course the defendant was entitled to show the statements made in that regard by the agent with whom it dealt, this being necessary to make the description intelligible. (4 Wigmore on Evidence, § 2465.) This was the principle upon which the.court acted, and much of the evidence admitted was within its operation. But the defendant was allowed to show among other things that the agent represented that his company would inspect, criticise and correct, advertisements offered or suggested by the defendant, and that the plaintiff failed to do so. And the jury were charged that such failure was a breach of the contract. An agreement to revise advertising matter prepared by the plaintiff (unless it was to be used as copy for the cuts referred to, and this.is not indicated) seems to lie wholly outside the field covered by the written contract, and the allowance of a defense on this ground must be regarded as prejudicial error.
The judgment is reversed for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Mason, J.:
Lawrence Fisk, the owner of a farm, on September 23, 1912, leased it to H. J. Neptune for a period ending March 1, 1914. Neptune occupied the leased premises until December 8, 1913, when he left without notice to his landlord. Fisk brought action against Neptune for damages resulting from his failure to comply with the terms of the lease in various respects. A jury returned a verdict for the defendant, on which a judgment was rendered, from which the plaintiff appeals.
The contention of the plaintiff is that the verdict was not supported by the evidence — that it should not be allowed to stand because the uncontradicted evidence of the plaintiff, corroborated in some instances by the admissions of the defendant, showed that the defendant had violated his agreement, and that the plaintiff had suffered loss in consequence. The plaintiff had the burden of proof, and although his testimony in material matters was not contradicted by any other witness, the jury may have discredited it without necessarily convicting themselves of being influenced by passion and prejudice. (Cobe v. Coughlin, 83 Kan. 522, 112 Pac. 115.) Conceding that the admissions of the defendant established various violations of the contract on his part it does not follow that the judgment should be set aside. To justify that course this court would have to find that substantial damages had been conclusively proved. A reversal is not ordered for a fail ure to award nominal damages. (The State v. Kelly, 78 Kan. 42, 44, 96 Pac. 40; Hickman v. Richardson, 92 Kan. 716, 142 Pac. 964.) We do not think the defendant’s testimony established that any dereliction on his part resulted in a material loss to the plaintiff. For instance, the defendant’s conduct in leaving the farm appears to have been without justification, and to have exposed the plaintiff to some inconvenience and risk of loss. But the only damages asked in this regard were on account of the time spent by the plaintiff in finding some one else to occupy the place for the remainder of the period covered by the lease, and the amount of time lost in this way, and its value, were fair questions for the jury. Their finding that no substantial damages were occasioned in this way can not be disturbed.
The judgment is affirmed. | [
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Per Curiam:
In an action to recover damages for breach of promise of marriage and for seduction plaintiff recovered a judgment from which defendant appeals. The record shows errors in the instructions and also erroneous admission of testimony which manifestly resulted in an excessive verdict. ¡Over defendant’s objections, plaintiff was permitted to prove that as a result of the seduction she became infected with a disease; that she became pregnant, from which miscarriage and sickness resulted, all of which the instructions authorized the jury to consider in determining the amount of damages. In their special verdict, the jury allowed $8000 damages for these injuries alleged to have been sustained as a result of the seduction. In Dalrymple v. Green, 88 Kan. 673, 129 Pac. 1145, 43 L. R. A., n. s., 972, it was held that neither the promise of marriage nor the breach thereof can be regarded as the proximate cause of pregnancy or miscarriage or sickness resulting therefrom.
The court properly refused to require plaintiff to separate her causes of action since the petition stated but one. There is no merit in the claim that .a demurrer to- the evidence should have been sustained on the ground that plaintiff’s testimony contained contradictions. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Valley Township v. Stiles, 77 Kan. 557, 560, 95 Pac. 572; Madden v. Stegman, 88 Kan. 29, 30, 127 Pac. 425; Smith v. Schriver, 91 Kan. 582, 585, 138 Pac. 584; Terry v. Gravel Co., 93 Kan. 125, 129, 143 Pac. 485.) Nor is there merit in the contention that the testimony of physicians called by defendant must be regarded as conclusive, or that such expert testimony established the falsity of plaintiff’s evidence. (Daniels v. Dick, 95 Kan. 72, 147 Pac. 845.)
“It is not essential that the time for the performance of a contract of marriage be stated, for in the absence of such a statement the law will imply that it shall be performed within a reasonable time,: depending, of course, on the circumstances of each particular case, and the age and pecuniary circumstances of the parties.” (4 R. C. L. 147.)
It was not necessary for plaintiff to prove a demand or request for performance before bringing her suit. It has been repeatedly held that “any acts of the promisor which show a shunning and evasion of the contract, or a failure to carry out the contract as promised, or any refusal that is absolute and unqualified, or which indicates a determination not to marry, will obviate the necessity for a demand of performance.” (4. R. C. L. 153.)
Plaintiff testified that she wrote defendant several letters, including one which she registered. These were written'obviously for the purpose of informing him of her condition. No brief or abstract has been filed for plaintiff, and while defendant’s abstract shows that plaintiff received one letter from him the contents are not stated. However, the contention of defendant is that he never made any promise of marriage. His defense was not based in any respect upon a failure of plaintiff to make a formal demand or request. Where it is manifest from the circumstances that a demand would have been unavailing, as where the defendant by his conduct shows an unwillingness to carry out the contract, no demand is necessary. A refusal to marry may be inferred\ from a total cessation of intimacy without explanation. (Willard v. Stone, 7 Cow. [N. Y.] 22, 17 Am. Dec. 496.) For additional authorities holding that a refusal will be inferred where defendant’s conduct indicates án intention not to marry, see Note, 18 Ann. Cas. 360.
There was no abuse of discretion in the refusal of defendant’s offer to submit to an examination by physicians to be appointed by the court ip. order to establish his contention that he was physically incapable of accomplishing the seduction of plaintiff. The offer was made more than four years after the date of the alleged seduction.
In their special verdict the jury allowed plaintiff $500 for damages sustained by the breach of the contract of marriage. She will be given .the option to accept judgment for $500; otherwise the judgment will be reversed and the cause re-' manded for another trial.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
Mason, J.:
On April .24, 1913, the plaintiff brought an action against the defendant upon a written guaranty of the payment of a promissory note, which (by virtue of an acceleration clause) matured October 1,1886. The petition alleged that at that time the defendant and the owner of the note were residents of the state of Connecticut; that oh January 1, 1889, the defendant became a nonresident of that state and has ever since been absent therefrom. A demurrer to the petition was sustained, the plaintiff appealed, and the judgment was affirmed. (Perry v. Robertson, 93 Kan. 703, 150 Pac. 223.) A rehearing was granted, upon which the case is now submitted.
The ruling of the trial court was affirmed upon the ground that the petition shows on its face that action in Kansas upon the claim was barred by the ordinary five-year statute of limitations of this state. The debt sued on matured October 1, 1886. The action was brought over twenty-six years' later. During the first two years and three months of this period the defendant was in Connecticut, and therefore the operation of the Kansas statute of limitations was suspended. The petition alleges that on January 1, 1889, the defendant left Connecticut. It does not say that he then came to Kansas, or that he did not. It does not state when he did come to this state. It is absolutely silent as to his whereabouts during the interval of over twenty-four years. It does not even suggest any fact that would suspend the operation of the Kansas statute for any part of that time. A petition which shows that the claim sued on is outlawed is demurrable. (Zane v. Zane, 5 Kan. 134.) And that situation arises when the petition shows that the period of limitation has intervened between the accrual of the cause of action and the bringing of the suit, and nothing is said as to the defendant’s residence or presence in or absence from the state, or as to any other matters that might prevent the running of the statute. Such was the character of the petition considered in the case just cited. In .order not ,to be demurrable on the ground indicated the petition need not expressly negative every condition that might have interrupted the .operation of the statute. A liberality of construction is properly indulged where a colorable attempt is made to plead such matter, but through inadvertence the allegation is defective. Thus an averment of nonresidence of the defendant has been given the effect, as against a demurrer, of an allegation of his personal absence from the state. {Reed v. Humphrey, 69 Kan. 155, 76 Pac. 890.) Here, however, as already said, there is no statement whatever concerning the defendant’s residence or location after he left Connecticut. And “manifestly the omission was not inadvertent, but intentional. The petition bears internal evidence of having been carefully drawn. Every other matter is treated in full detail. And if the plaintiff were really relying upon a claim that the defendant had not been in Kansas for five years since the accrual of the cause of action sued on, some expression of it would have .been given in the trial court, either in the petition or in a request for leave to amend.
But the plaintiff has a theory that a cause of action which accrues in another state between nonresidents of Kansas is never barred here until the statute of limitations of that state has run against it; in other words, that the only statute which can ever be applied is that reading as follows:
“Where the cause of action has arisen in another state or country, between nonresidents of this state, and by the laws of the state or country where the cause of action arose an action can not be maintained thereon by reasom of lapse of time, no action can be maintained thereon in this state.” (Civ. Code, § 21.)
The plaintiff construes prior decisions of this court as making that statute exclusive in situations to which it applies, but we think they are not open to that construction. If in the instant case the defendant, had removed from Connecticut to New Hampshire and remained there until the statute of limitations of the latter state had fully run, and had then come to Kansas, that fact would not have protected him against an action here. {Land Co. v. Bassett, 85 Kan. 48, 116 Pac. 475.) But the moment he came to Kansas the ordinary statute of limitations of this state would have begun to run, and unless interrupted by some new condition would in five years have barred any action here. The plaintiff seems to understand the decision just cited as holding that where the cause of action has accrued in another state it is never regarded as accruing anywhere else for any purpose, and that action upon the claim remains always open unless it is barred by the statute of that state. What was there said, however, was:
“An action on the contract is not barred by limitation in this state by the provisions of section 21 of the civil code until and unless the bar of limitation has fallen in such other state or country” (syl. ¶ 2);
“If the debtor removes from such [other] state [where the defendant was when the cause of action accrued] before the bar of limitation falls and does not return thereto, the limitation of such state not being complete therein and, by law, incapable of being started elsewhere, can never anywhere run in his favor” (p. 52); and
“Our courts and the courts of other states have so construed section 21 of our civil code, and other like statutes, that the cause of action arises, or accrues, in the state or jurisdiction where the debtor resides at the time his obligation matures; that it arises within the meaning of such statutes but once and not elsewhere.” (p. 53.)
But an action on a written contract is barred in this state by section 17 oí the code whenever the defendant has been here for five years, during which time the plaintiff might have sued him; and when the debtor leaves the state where the action accrued, before the claim is barred, and comes to Kansas, the ordinary statute of limitation of this state begins to run in his behalf; for the action is deemed to accrue within the meaning of section 17 whenever, after the maturity of the debt, the defendant comes into this state and thus gives the plaintiff an opportunity to sue him here.
The decision of affirmance is adhered to. | [
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The opinion of the court was delivered by
DAWSON, J.:
The chief question in this case arises from the admission of certain testimony offered by the defendant in an action to recover on a note given for certain bonds issued by a cement company. Defenses of misrepresentation and fraud and want of consideration were eliminated by the district court. Another defense was the alteration of the note after its execution and without the • defendant’s consent, but this case should be determined upon the main defense, which was a verified denial of the plaintiff’s ownership of the instrument.
The note was dated March 8, 1907, and due September 8, 1907. The plaintiff brought this action on January 30, 1912, over four years after its maturity. There was substantial evidence tending to show that the plaintiff bank acquired the note within a few days after its execution. It appears that the bonds for which the note was given were deposited in the bank with the note, presumably as collateral security, and as the interest on the bonds was paid credits for interest.on the note were made by the bank. The defendant testified that he ’'ever received the bonds, never agreed that the bonds should be deposited with the bank, and never authorized the credits on the note.
Over the objection of the plaintiff the defendant was permitted to testify that in June, 1908, after the note was nine months past due, he was informed by plaintiff’s cashier and managing officer, in the bank, that the payee had sent the note to the bank for collection, and the defendant refused payment, and the cashier said, “All right, I will send it back to him and tell him what you say.”
Since the bank grounded its whole claim of ownership of the note upon its acquisition within a few days after its execution and long before its maturity, this testimony, if competent and found by the jury to be true, affirmatively disrproved the plaintiff’s ownership. Before this action was commenced the bank cashier died.
The jury found a general verdict for the defendant, and this verdict concludes all questions of fact upon which there was substantial and competent evidence.
Error is assigned on the admission of the defendant’s testimony touching the alleged conversation between the plaintiff’s cashier and the defendant in 1908, when the defendant was informed that the payee had sent in the note for collection.
1. In support of this contention many authorities are cited on the familiar doctrine that the declarations of an agent, not within the scope of his authority, do not bind his principal.
But the converse doctrine is equally well established, that the declarations of an agent within the scope of his authority and while engaged in the exercise of it do bind his principal.
What is the scope of authority delegated to a bank cashier when, as in this case, he was the principal managing officer?
In Ellicott, Assignee, v. Barnes, 31 Kan. 170, 1 Pac. 767, it was said:
“The cashier is the executive officer or agent of the financial department of the bank, and in all the duties imposed upon him by law or usage, as such cashier he acts for the bank and speaks for the bank.” (p. 172.)
The case of Plymouth County Bank v. Gilman, 3 S. Dak. 170, 52 N. W. 869, 44 Am. St. Rep. 782, illustrates both sides of the rule. There the defendant had given the bank his note and transferred'to the bank certain other notes and a mortgage as security.. The collateral notes and mortgage did not realize sufficient to pay the defendant’s note. In an action by the bank The defendant testified to a conversation with the cashier:
“ ‘State what talk you had concerning these (Mason) notes at that time.’ To which he- answered: ‘I went in and asked him how much he collected; if he .got all the notes. He said, “No,” and I was surprised, and found fault with him.’ Plaintiff’s counsel objected to any evidence as to the statements of the cashier, on the ground that such statements were incompetent, irrelevant, and immaterial, and upon the further ground •that ah admission of the cashier of the bank is incompetent, as he can not bind the bank by such admission. The objection was everruled, and plaintiff duly excepted. Witness then continued: ‘He said it had-been hard times; .hated to push him. . . . Told me there was no need of worrying; it was their fault. . . The cashier told me he would wait, and take it (interest) out of these notes. It had been through their neglect; and that he did n’t consider the interest.’ Plaintiff’s counsel then moved the court to strike out this evidence, which motion was denied, and plaintiff excepted. The principal ground relied on to sustain the motion was that the admission of the cashier of the bank was incompetent as against the bank, and that an officer of a bank can not, by such admission,-bind the bank, except when he is engaged in transacting the business in which the admission is made. ' The counsel, in support of their position, rely upon the case of First Nat. Bank of Canton v. North, 6 Dak. 136, 145, 41 N. W. 736, 50 N. W. 621. In that case it was sought to give the statement of the president of the bank in regard to a certain mortgage executed 'to the bank three days previous to the statement. The court held that the statement of an officer of the bank, made after the transaction was closed, could not be received to bind the bank; that the statement of ■an-officer of a corporation, not made at the time of the transaction, and as a part of it, and not, therefore, constituting a part of the res gestee, was inadmissible to bind the corporation. But the case at bar presents a very different question from that presented in the case cited, and must be controlled by other principles of law. In this case the transaction in relation to the- Mason notes and mortgage was not closed. It was a •transactioji begun in J.anuary, 1875, but not closed until the sale of the mortgaged property in 1881, and hence the statement of the cashier as to the fact that the notes were not collected, and what steps the bank had taken' in regard to the collection, were, perhaps, competent, as statements made 'in. the line of his duty, and while the transaction was still pending. This law is well illustrated by the cases of Morse v. Railroad Co., 6 Gray, 450, and Simpson v. Waldby, 63 Mich. 439, 30 N. W. 199. In the former case, in an action by a passenger for the loss of his trunk, the admissions of the baggage master as to the manner of the loss, made the next morning in' answer to the inquiries by the owner of the trunk, were held competent as against the company, it being part of the duties of such agent to-deliver the baggage of passengers, and to account for the samé if missing, if inquiries are made within a reasonable time. In the latter ease, drafts were deposited with a bank for collection. In a suit against = the bank to recover the amount of the drafts the plaintiff testified to a statement made by the bookkeeper of the bank, when he, plaintiff, was calling at the bank, and looking for his money, that the drafts had been paid; and the court held it was admissible, as it was an admission made in the course of his duties and his agency, and constituted a part of the res gestae. (Burgess v. Wareham, 7 Gray, 345; Burnside v. Railroad Co., 47 N. H. 554.) But in this class of cases the courts are careful to limit the admissions to the statements that an officer or agent of a corporation is authorized to make to inquiries made of him in the line of his duty, and while the transaction is still in process of completion, and to the statement of facts only that are necessarily communicated. But while we think •it was competent to give the statement of the cashier as to any fact relating to the collection of the notes, we are of the opinion that it was not competent to give his statement that the failure to collect the notes was the ‘fault’, and ‘neglect’ of the bank. Those were not the statements of facts relating to the collection or noncolleetion of the notes, but an expression of the mere opinion of the cashier as to the conduct of the bank. It was no part of his duty as cashier, or in the line of his duty, to express any opinion as to. the performance or failure to perform its obligations to the defendant.” (p. 174.)
. Assuming, as we must, the truth of defendant’s evidence, the cashier told him that the bank had received the note from the payee for collection. It is customary and lawful for banks to make-such collections. It is the cashier’s duty to attend to them. How, then, can it be said that the declarations of the cashier were not within the scope of his authority? How would it be possible for the cashier to discharge his duty without informing the defendant as he did? And when defendant refused payment, was it not the duty of the cashier to return the note to the payee? Since payment was refused, neither the cashier nor the bank could do otherwise.
. And the statements of the cashier only pertained to the matters before him. They were germane to the subject and we must decide that evidence concerning them was competent and admissible.
2. What effect attaches to the fact that the cashier was dead when this evidence was admitted? Did this infringe against some positive rule of evidence relating to transactions with deceased persons?
No such rule is cited. Counsel quote respectable authorities that the self-serving testimony of a defendant as to con versations with a dead man should be received with great caution and close scrutiny. It certainly should be so received. But how can we say that it was not thus received by the trial court and jury? Every legal presumption is that they- did so receive it; and that only after great caution and close scrutiny did they accept it as true. We acknowledge, of course, that counsel for appellant do not urge that this evidence was inadmissible under section 320 of the revised code or any similar statutory provision. They merely inveigh against the credence given by the jury to this alleged conversation with a man now dead. This subject is discussed in Mendenhall v. School District, 76 Kan. 173, 176, 90 Pac. 773, in which it was pointed out that such statutes do not relate to officers or agents of corporations.
3.. Touching the alteration defendant testified that when he executed the note it read, “payable to the order of J. F. Townsend.” Townsend’s agent testified that before defendant signed it, and in defendant’s presence, he struck out the words “the order of” and inserted the word “bearer.” The general verdict is a finding of fact in defendant’s favor on this disputed point. If the bank were a holder in due course, without notice of the alteration, it could recover according to its original tenor, but the general verdict forecloses that question. And since the alteration was material, and the bank had no rights superior to those of the original payee, this defeats a recovery altogether. (Gen. Stat. 1909, §§ 5377, 5378; Hocknell v. Sheley, 66 Kan. 357, 71 Pac. 839; Edington v. McLeod, 87 Kan. 426, 428, 124 Pac. 163; Burgess & Co. v. Blake et al., 128 Ala. 105, 28 South. 963. 86 Am. St. Rep. 78, 86-95.)
The judgment, turning as it does on facts established by some competent testimony and concluded by a general verdict, can not be disturbed. It is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in mandamus. It was- brought August 17, 1915, by the public utilities commission, as plaintiff, against Thomas J. Flannelly, judge of the district court of Montgomery county, and the receivers of the Kansas Natural Gas Company, appointed by him. The main purpose of the proceeding was to vacate a restraining order issued by the district judge against the utilities commission affecting the rates to be charged for gas furnished by the receivers to the public. The receivers filed an answer, which, in addition to other defenses, alleged that on July 16, 1915, the utilities commission had made a ruling denying their appplication for an order fixing a reasonable rate to be charged for gas supplied to their customers and that the old rate was unreasonable and confiscatory. On October 4, 1915, a decision was rendered (The State, ex rel., v. Flannelly, ante, p. 372, 152 Pac. 22) in which it was held that the district court of Montgomery county obtained no jurisdiction over the commission and that its orders restraining the commission from enforcing a rate should be vacated and set aside. The court at that time also held that the receivers of the gas company are under the control of the utilities commission; that the commission has the exclusive power to fix the rates to be charged for the service rendered by the gas company while it is being operated by the receivers; that the receivers are not engaged in interstate commerce, at least that kind of interstate commerce which takes the business from the control of the state. It was held, however, that no writ of mandamus should issue, for two reasons — first, because the public utilities commission had not in fact made a final order establishing a rate to be charged for gas; second, because the old rate of twenty-five cents was shown by the findings of the utilities commission itself to be unreasonable and confiscatory. In the opinion it was held that the court would retain jurisdiction of the cause as to the defendant receivers “for such orders and judgments as may be hereafter made.” (Ante, p. 387.)
Thereafter the public utilities commission granted the receivers a rehearing of their application to fix a reasonable rate, and on December 10, 1915, the commission issued a final order establishing a rate of twenty-eight cents. The receivers accepted this rate under protest, and on December 28, 1915, filed with the utilities commission a schedule of rates and rules in accordance with the order of December 10, and since the filing of the schedule the receivers have been charging the rate thus established. On the 29th of December, 1915, the receivers filed a suit in the United States district court for the district of Kansas against the public utilities commission, seeking to enjoin the enforcement of the order of December 10, alleging, in substance, that the receivers are engaged in buying gas in the state of Oklahoma and in transporting it through pipe lines into and through the state of Kansas and into the state of Missouri, and in producing gas in the state of Kansas; that the gas taken in Oklahoma is commingled with the gas produced in Kansas and distributed from the pipe lines to customers in both Kansas and Missouri, and that in so doing the receivers are engaged -in interstate commerce; that the public utilities commission of the state of Kansas has no jurisdiction to fix the rates and rules for the sale of gas by the receivers to their customers in Kansas; and further alleging that the order of the commission of December 10 is unlawful for the reason that the rates fixed are unreasonable and confiscatory.
On January 3, 1916, the public utilities commission presented an application in the original proceeding in mandamus, asking the court for an injunction order restraining the receivers from further prosecuting the suit begun in the federal court. A temporary restraining order issued, and the application for a temporary injunction was set down for hearing. In the meantime, on January 7, 1916, the receivers of the gas company filed their petition for removal of the cause to the United States district court for the district of Kansas.
The first question before the court at this time is the application of defendants for removal, which has been contested by the plaintiff. The petition for removal renews again the contention of the receivers that they are engaged in interstate commerce, and alleges that the order of December 10, 1915, established an unremunerative and confiscatory rate, which imposes a burden upon the interstate commerce conducted by them.
It will not be necessary to consider many of the legal propositions presented and urged at the hearing and in briefs submitted by counsel on both sides, because, in our view of the matter, the controversy before us is narrowed down to two questions. This being an original proceeding in mandamus, it can not be removed to a federal court. On May 18, 1915, we denied a petition for removal in the case of City of Garden City v. Garden City Telephone, Light & Manufacturing Company (No. 20,092), on the ground that being an original proceeding in mandamus it was not removable. No opinion was written. In Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. Rep. 633, 30 L. Ed. 743, it was held that an original proceeding in mandamus is not removable, for the reason that it is not a suit of a civil nature within the meaning of the removal act of 1875.
It should be stated also that the plaintiff, the public utilities commission, on January 3, 1916, filed a supplemental petition in this proceeding, in which, besides praying for a permanent injunction against the prosecution by the receivers of their suit in the federal court, a writ of mandamus is sought to compel the receivers to perform their official duties and to furnish to their customers efficient and sufficient service.
“A suit, which is ancillary and supplemental to one previously brought in a state court, and which is so connected with the original suit as to form an incident thereto, and to be substantially a continuation thereof, can not be removed into a circuit court of the United States, unless the original suit has been previously or may be simultaneously removed.” (34 Cyc. 1229.)
(See, also, Western Union Telegraph Co. v. State, ex rel., 165 Ind. 492, 495, 76 N. E. 100, 3 L. R. A., n. s., 153; State v. Columbus & Xenia R. Co., 48 Fed. 626; State of Indiana v. Lake Erie & W. Ry. Co., 85 Fed. 1; 34 Cyc. 1229, Notes 89,90.)
The petition for removal of the cause to the federal court is therefore denied for the sufficient reason that, being an action in mandamus to compel the receivers to perform their legal duties, the cause is not removable. At the same time, the court deems it proper to inquire what, if anything, of substance remains for consideration or determination in the original proceeding. At the hearing of the application for removal it was conceded that the receivers have complied with the order of the commission and have put into effect the rate fixed by the order of December 10, 1915. The fact that they are seeking by the suit in the federal court to enjoin the rate as confiscatory and unreasonable makes no difference. They have the right to question the reasonableness of the rate established by the commission and to choose the forum where that question shall be adjudicated. (Public Utilities Act, Laws 1911, ch. 238, § 21.)
The original petition filed here in August, 1915, alleged that the defendants, as receivers, had neglected to comply with their legal duties and to supply to their customers throughout the state efficient and sufficient service, and the prayer of the petition asked that they be compelled to perform their official duties. No facts were alleged upon which the court could have made an order. It was not even alleged that the commission itself had ever made any order requiring the defendants to supply efficient service or sufficient gas. Nor was the matter of the character of the service presented to the court on the hearing of the cause at the September term, other than by incidental reference to the interest the public was supposed to have in an early determination of the controversy. No order directing the receivers to do any specific thing was asked. The only questions argued or presented, aside from those respecting the jurisdiction of the district court of Montgomery county to make certain orders, were questions affecting the action of the commission in declining to fix a reasonable rate at which the receivers should furnish gas.
This court saw no necessity for prolonging the litigation over rates, and believed that the interests of the public and the parties would be best served by making it unnecessary to go over much of the ground a second time or to thresh out old straw, and therefore retained the cause, so that when the public utilities commission should make such orders as it saw proper to make, either of the parties might in this proceeding, have any questions as to rights or duties arising thereon promptly and speedily considered and judicially determined.
But it was conceded at the hearing of the petition for removal that the only order issued against the receivers by the utilities commission is the order of December 10, 1915, fixing rates, and that this order has been obeyed and enforced by the defendants. The utilities commission has made no order of any kind requiring the defendants to render more efficient service. The supplemental petition in this cause, filed January 3, 1916, repeats the averments of the original petition to the effect that the receivers neglect and refuse to furnish efficient and sufficient service, and asks that an alternative writ of mandamus issue to compel them to do so. The public utilities act places the duty upon the commission to require a public utility to render efficient service, and provides the machinery for an investigation by the commission into all questions affecting the character and sufficiency of such service. (Laws 1911, ch. 238, §§ 9, 10, 13-16.) When the commission, upon due notice and inquiry, has made a reasonable order requiring the defendant receivers to maintain more efficient service the presumption is that defendants will obey and enforce the order. If not, the courts will entertain proceedings to compel them to do so.
Since it is conceded that the defendants have obeyed all the orders thus far made by the plaintiff, it is apparent that nothing substantial is left of the original proceeding in madamus. This court has no original jurisdiction in injunction and no power to issue an injunctive order except for the purpose of protecting its own jurisdiction and the rights of the parties until it has determined some controversy pending before it. (C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 21 Pac. 1071; The State v. Brewing Association, 76 Kan. 184, 90 Pac. 777.) Mandamus is a discretionary writ. The court has held that it would refuse to issue the writ where it would be useless or futile and of no public benefit. (The State, ex rel., v. Postal Telegraph Co., ante, p. 298, 309, 150 Pac. 544.)
We have, then, an action pending here in mandamus which is not removable, but the averments of the petition are vague and general; and since it is now conceded that the public utilities commission has made no order requiring defendants to furnish better or more efficient service, the court would not be justified in granting the writ nor in longer retaining the proceeding. It follows, too, that there is no reason why the court should issue an injunction to protect its jurisdiction, and therefore the plaintiff’s application for an order to restrain the defendants from prosecuting the suit begun in the federal court will be denied and the proceeding in.mandamus is dismissed.
Dawson, J., not sitting. | [
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Allen, J.
This action was brought by James Gowans against A. S. Pierce to recover the amount of a mortgage on a block of ground in the city of King-man, the payment of which the defendant assumed. The notes and mortgage securing the same were executed in the name of Margaret F. Yancey by Milton V. Yancey, her attorney in fact, and payable to the order of William F. Leonard. The notes were indorsed by Leonard to the plaintiff. The land was conve.yed by Yancey and wife to Mary W. McClelland, who, by the terms of the deed, assumed the payment of the mortgage. Mary W. McClelland and her husband conveyed to the defendant Pierce by a deed containing the following provision: “Subject however to two certain mortgages, one for $1,800, and one for $180, given to William F. Leonard, which is made a part of the consideration money, and assumed by the party of the second part.” The consideration named in the deed is $3,000. The defendant testified that he obtained possession of the property described in the deed, and that all he paid for it was $200. Over the objection of the plaintiff he was allowed to testify to a conversation with one Todd, a real estate dealer through whom the sale was effected, with reference to the meaning of the word ‘ ‘ assumed ’ ’ inserted in the deed and the liability the defendant would incur by reason of the above-quoted clause. The notes were offered in evidence but the Court excluded them. For what reason is not clearly shown; but it may perhaps be inferred that it was on the ground that the power of attorney under which Yancey acted for his wife did not expressly authorize him to execute promissory notes in her name, although it did authorize him, to mortgage or sell this particular land. The case was tried to the Court, a general finding was made, and judgment rendered for the defendant.
No brief has been filed on behalf of the defendant in error.
The plaintiff proved a clear case of assumption of the mortgage debt. The evidence as to what the real estate agent, Todd, said with reference to the legal effect of the use of the word “ assumed” was clearly incompetent. There "was nothing showing, or tending to show, that the grantors in' the deed assented in any manner to the construction Todd placed on the language used in the instrument. We cannot tell from the record whether the Court based its judgment on this incompetent testimony, or on the fact that power to execute the notes in the name of Mrs. Yancey was not expressly given to her husband by the terms of the power of attorney. Whether he had authority to do so, strictly, or not is quite unimportant ; for he had power to execute the mortgage and, probably, to execute in the customary manner notes as primary evidences of the debt.
The defendant, having assumed the payment of the mortgage debt by the express terms of the deed under which he took possession of the property, is estopped from questioning the validity of the mortgage. The Court erred in rendering judgment for the defendant on the facts disclosed by the testimony.
The judgment is reversed and a new trial ordered.
All the Justices concurring. | [
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Martin, C. J.
The original action was replevin brought by the Bank against Gardner, who was Sheriff, .and Privett, who. was Deputy Sheriff, to recover 125 head of cattle, 67 head of calves, 97 head of hogs, 19 brood mares, 1 stallion, 2-|- sets of harness and 2 lumber wagons. A trial was had before the Court and .a jury at January term, 1892, resulting in a judgment in favor of the plaintiff below.
Prior to February 1, 1889, this property belonged to F. B. & S. S. Singer, who held the same on two large tracts of land four or five miles apart, one being known as the Silver Creek place and the other as the Home Farm of S. S. Singer. On November 21, 1888, H. W. Lewis, president and trustee of the Kansas National Bank, commenced an action against S. S. Singer, F. B. Singer and others on a promissory note to recover the sum of $4,3 30 and interest, and on January 30, 1889, he caused an order of attachment to be issued in the action to the Sheriff, and it was-placed in the hands of Privett, the Deputy Sheriff, for service. He testifies in substance that on Friday, February 1, he went to Silver Creek first and found 130 head of cattle which he levied on there, no person being present; but Joseph Hutchinson testifies that he was in charge of those cattle at the time, and that-he did not see Privett there. Privett further says that-he then went from Silver Creek to the Singer farm and inquired for S. S. Singer, who was absent;. that-he then levied on other property, consisting of cattle, hogs, horses, mules, etc., which was in certain lots and in a barn ; that he had a conversation with Ned Griffin,, an employe of Singer, in which Griffin agreed that he-would take charge of and hold the property until the former could go and summon appraisers ; that Singer-came home and said he was sorry a levy had been made, as he could arrange the matter; and it was-then agreed that Privett should return on Monday to-appraise the property, unless there was some further-understanding about it. Privett then left the place, and did nothing further until the following Monday.
F. B. & S. S. Singer were largely indebted to the-Anthony National Bank ; and on or about January 15, 1889, they executed to F. D. Denlinger, its cashier, a-chattel mortgage, to secure certain promissory notes, amounting in all to $7,385, this mortgage being dated. January 1, 1889. Late in the afternoon of February 1, and after the conversation between Privett and S.S. Singer, the latter went to the Bank and told the-managing vice president, H. M. Denlinger, that he wanted to secure the Bank by chattel mortgage, the-indebtedness having largely increased since the giv ing of the first mortgage. What occurred there is a matter of some, controversy, but it resulted in the giving of another chattel mortgage amounting to $4,-'988.15 on said property, and also upon certain corn, oats, hay and millet on the place, and S. S. Singer •executed a lease of his farm to the Bank. These papers were dated February 1, although the transaction was probably not completed until after midnight. Both mortgages were filed for record on the afternoon of February 2. T. A. Noftzger was one of the attorneys for the Bank who assisted in the transaction ; and very early the next morning he started to S. S. Singer’s farm, where he arrived about 7 o’clock a. m., having the lease and the mortgages, or copies thereof, in his possession. He told Singer that he wanted possession of all the mortgaged property at once, and to this Singer assented. Noftzger then employed three or four men on and about the place to feed and take care of the.live stock, and engaged board for them and for himself. On Saturday afternoon, at Singer’s request, Hutchinson brought the cattle from the Silver Creek place and turned them in with the others on the S. S. Singer farm. Noftzger and the men employed by him remained at or about the farm in charge of the property until Monday, when Privett came and demanded it, saying that he had levied upon it on the preceding Friday; but Noftzger told him that he was in possession of the property for the Bank, and would retain it unless forced to give it up. Privett then left, saying that he would return and take it. Thereupon Noftzger had t.he gates to the lots and the doors to the barn nailed up ; but on the next day Privett returned with about 20 men, broke open the gates and doors and took away the property; at least all that was replevied in this action.
No evidence was given tending to impeach the good faith of the indebtedness of F. B. & S. S. Singer either to the Bank or to Lewis. As to the latter, the first mortgage given to the Bank was not valid on February 1, because there is no pretense that he had any notice of it and it had not then been filed for record. It will therefore be seen that the decisive question in the case is, whether the proceedings of the deputy sheriff were or were not sufficient to inaugurate and continue a lien in force when Noftzger took possession for the Bank. There is no doubt that Noftzger’s acts and doings were sufficient to constitute a possession good against the Singers, and, so far as appears, as against all the world except the Deputy Sheriff. If the latter then had a lien, the possession of Noftzger for the Bank was subject to it. There was some evidence on the trial and on the motion for a new trial tending to show that, when S. S. Singer went to the Bank on Friday afternoon, he told the vice-president that Privett had been at his place with an order of attachment, a copy of which Singer had with him and exhibited to the officers of the Bank; and it is shown in the testimony in behalf of the Bank that they knew Privett had been at Singer’s farm seeking to collect a claim. One creditor may, however, legally obtain a preference over another by the consent of the debtor. S. S. Singer may have acted treacherously with Privett, but the Bank sustained no relation either to the Deputy Sheriff or to Lewis preventing it from deriving an advantage even by Singer’s bad faith to them. In taking possession under the mortgages, the Bank assumed the risk of any prior lien or incumbrance, whether it had knowledge of the same or not. There is an intimation that the Bank may have obtained possession through connivance-with Griffin, but there is no evidence of this; and perhaps Griffin considered that he had no duty to-perform in relation to the property after the conversation between Privett and S. S. Singer; for we understand from the evidence that he did nothing toward taking charge of or caring for the property and that he asserted no authority whatever over the same. Indeed, he had no means of caring for the property until the succeeding Monday, even had he been allowed to occupy the farm, for he had no feed and no help,, and, so far as appears, no way of obtaining them. Neither did the deputy sheriff go on Friday prepared to take charge of the property upon which he formally levied. Though he had obtained a lease of the farm,, he could not have kept the live stock for a single day without help and feed, yet no provision was made for-either notwithstanding he seems to have contemplated doing nothing further until Monday. On Saturday morning, when Noftzger reached the Singer farm,, certainly nobody but the Singers had the actual dominion and control over the property. Privett as deputy sheriff had not the actual custody and possession either by himself or Griffin. He had adopted no-measure whereby he might actually hold the property subject to the order of the Court. It is a requirement-of a valid levy upon personalty that the officer shall take such actual and exclusive possession as the nature of the property will permit. Privett had, at-most, only constructive possession of a species of' property which admitted of actual and exclusive possession,-such as was in fact obtained by Noftzger for- the Bank. Like possession might have been obtained by Privett by driving and taking the property away and caring for it afterward ; or perhaps by taking charge of it on the Singer farm and thereafter controlling it so that nobody could have obtained possession without committing a trespass or a fraud; but it is impossible to sustain the validity of this levy without disregarding principles heretofore recognized by this Court. Lyeth v. Griffis, 44 Kan. 159; Throop v. Maiden, 52 id. 258. See also 1 Shinn, Att. & Gar., §§ 244, 247, 256, 257 and 264.
Several questions are raised as to the testimony, the instructions of the Court and the refusal to give instructions requested by the defendants below. We have examined them all, but everything hinges upon the validity of the levy by the Deputy Sheriff, and as to this the jury was properly instructed, and there was a general verdict without findings upon any particular question of fact. We do not find that any material error was committed in the trial of the cause.
The judgment will be affirmed.
All the Justices concurring. | [
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Allen, J.
This action was brought by the Cherokee Strip Live Stock Association and George A. Thompson against the Kansas & New Mexico Land and Cattle Company to recover damages on a contract for pasturing cattle in a pasture in possession of Thompson, in what is known as the Cherokee Outlet, in the Indian Territory. The petition, as origL nally filed, contained two counts. The first set up a written contract between the parties, alleged a failure of performance on the part of the defendant, and asked judgment for damages therefor. The second was for work and services alleged to have been rendered by Thompson to the defendant. The petition alleged the assignment of a part of Thompson’s claim by him to the Live Stock Association. A demurrer was filed to the petition, which the court overruled. Thereupon a long answer was filed by the defendant. On the 19th of November, 1892, the case was called for trial, a jury impaneled, and a statement of the case made by counsel for the respective parties. When the first witness on behalf of the plaintiffs was called, the defendant objected to the introduction of any evidence, on the ground that the facts stated in the petition were insufficient to constitute a cause of action. The objection was sustained. Thereupon leave was granted the plaintiffs to file an amended petition. On the 5th of December following, the amended petition was filed, setting up three causes of action. The first two were substantially the same as those contained in the original petition. The third alleged that the plaintiff Thompson was in the possession and occupancy of a valuable pasture in the Indian Territory, containing 77,312 acres in the Cherokee Outlet; that, on the 17th of July, 1889, the defendant requested Thompson to take, and that he did take,'into the pasture 860 head of cattle to graze ; that he kept them 15 months, and then returned and delivered them to the defendant; that the grazing and care of the cattle were worth $3.50 per head ; that $3,100 of his claim was assigned to the Cherokee Strip Live Stock Association, for which it asked judgment. To this petition the defendant demurred. The demurrer was sustained as to the first and second causes of action, and overruled as to the third. Thereupon the defendant filed a long answer, setting up many matters by way of defense, •and alleging, among other things, the delivery by the defendant to the plaintiff Thompson of 939 head of cattle to be pastured, and that only 860 had been returned; and that the plaintiff had converted the balance of 79 head to his own use. An affirmative judgment was demanded against the plaintiff Thompson for $6,285. The record then recites : “Whereupon, on said 5th day of December, 1892, the said court ordered said action to proceed to •trial on said third cause of' action stated in the amended petition, before the same jury. To which ruling and order the defendant at the time objected and excepted.” The trial then proceeded, and testimony was offered at length by both parties. The second assignment of error, which logically comes first, is, that the court erred in permitting the amendment and then ordering the parties to proceed with the trial. There is nothing in the record showing -that the defendant claimed that it was not ready for trial, nor do the proceedings indicate that the defendant was taken by surprise. The claim of error rests solely on the proposition that the issues, having been but just made up, were not triable at that term of the court; and especially in view of the fact that a demurrer was sustained to the first two counts in the petition, leaving only the third, which was not contained in the original petition, as plaintiffs’ sole cause of action.
It is clear that the defendant was not surprised by the claim set up in the third cause of action, for in the first count in the original petition the fact of the delivery of 939 head of cattle was alleged ; but it was.alleged to have been under the written contract. 'The original petition was filed on the 16th of February, 1891, in the Court of Common Pleas. On the 23d of December, the cause was transferred by order of the Court of Common Pleas to the District Court of Sedgwick County. Whether the subsequent proceedings in the case were such as to make the action triable at that term of court, under the ruling in the case of Daugherty v. Porter, 18 Kan. 206, we do not deem it necessary to pass upon; as the objection interposed by the defendant was too general, and failed to challenge attention to the question whether the issues were made up 10 days before the first day of the term. The defendant appears to have been prepared, not merely to defend against the plaintiffs’ claim, but also with evidence in support of its counterclaim. On the record, as presented, we cannot say that substantial error in this particular was committed.
Error is alleged in a sentence of the instructions, which apparently cast the burden on the defendant to show, in support of its counterclaim for the 79 head of cattle received by the plaintiff Thompson which he failed to return to the defendant, that they were lost through his negligence. The sentence, standing alone, would seem to be erroneous; but in other parts of the instructions the court fully and explicitly informed the jury that if 939 head of cattle were delivered to Thompson, and only 860 were returned to the defendant, the burden of proof rested on the plaintiffs to show that the cattle were lost through no negligence on his part, and that, if they failed to make such showing, the defendant would be entitled to recover the fair market value of the cattle not so accounted for. The objectionable sentence occurs in connection with the statement that it was necessary for the defendant to maintain its counterclaim for damages by a preponderance of the testimony. We are clear that the jury could not have been misled in this particular, for correct, full, and explicit instructions on this point were given and reiterated by the court.
The main contention in the case is that the contract between the parties was an illegal one; that Thompson could not take a valid lease of lands in the Cherokee Outlet, nor entei, jnto a ya]jci contract with the defendant to pasture its cattle. It was upon this view of the law that the District Court sustained the demurrer to the first and second causes of action stated in the plaintiffs’ petition. The court, however, sustained the plaintiffs’ third cause of action, and held that they could recover for the services actually rendered. This ruling was sound. Though Thompson may not have had a valid lease of the large tract of land in his possession, it does not appear from the record that he was violating any law in taking cattle-to pasture thereon. Section 2117 of the Revised Statutes of the United States provides that "every person who'drives, or otherwise conveys any stock of horses, mules, or cattle, to range and feed on any land belonging to any Indian, or Indian tribe, without the-consent of such tribe, is liable to a penalty of $100 for-each animal of such stock.” It nowhere appears, in the record in this case that Thompson was in possession of this land, or took these cattle there, without the consent of the tribe. The argument in the brief for plaintiff in error is to the effect, that the written contract between the parties was-invalid under sections 2103 and 2116 of the Revised Statutes of the United States, which declare- grants and leases of Indian lands of no validity unless made in accordance with a treaty or convention entered into pursuant to the Constitution. It may be conceded that, under these sections, whatever lease Thompson had was void, yet it does not necessarily follow that he violated any law, or subjected himself to any penalty, by taking cattle there to graze, if done with the consent of the Indians. This view is fully sustained by Judge Bee web, in the case of United States v. Hunter, 21 Fed. Rep. 615. The language of section 2117, above quoted, implies that Indians and Indian tribes may consent to have stock graze on their lands. Conceding that Thompson had at no time a right, as against the Indians or the government of the United States, to continue in the occupancy of the land, if he was there with the consent of the Indians, and in fact rendered the service to the defendant of caring, for and feeding its cattle, he was entitled to compensation therefor. . The trial court held that he could not recover the contract price, but that he could recover as upon a quantum meruit for the reasonable value of the pasturage and his services in caring for the cattle. It is not entirely clear that the compensation should not be measured by the contract. Bufas the recovery did not exceed the stipulated price, the defendant had no cause of complaint on this ruling of the court. On the whole, the case seems to have been fairly tried, and the judgment is affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action in replevin, brought in the district court of Cloud county by the Milton-vale State Bank against P. Kuhnle, to recover eight cows and four calves, of the aggregate value of $200. The plaintiff claimed the property under a chattel mortgage made by Samuel M. Johnston to it-on the 7th day of September, 1887, to secure the payment of $925, and filed for record the next day in the office of the register of deeds of Ottawa county, where the mortgagor resided and the property was then kept. The mortgage was kept alive by a renewal affidavit filed' in the office of the register of deeds on the 22d day of August, 1888. The defendant claimed the same property under mortgages executed by the same mortgagor to him as follows: To se cure the payment of $171, executed on the 17th day of April, 1886, which was properly filed for record three days later, but was never kept alive by a renewal affidavit. On the 15th day of April, 1887, S. M. Johnson executed a chattel mortgage to the defendant to secure the payment of $100, which was duly filed for record on the 18th day of April, 1887, but was never renewed. On the 17th day of March, 1888, Samuel M. Johnston executed a chattel mortgage to the defendant to secure the payment of $147.70, which was filed for record on the 27 th of the same month, but was never kept alive. Upon the above facts, the court found that the defendant was entitled to a return of five of the cows, or $101, their value. The claim is made by the plaintiff in error that the mortgage of April 15, 1887, is wholly insufficient to furnish it with record notice of the existence of such mortgage, for the reason that the mortgagor’s name under whom both parties claimed was Samuel M. Johnston, while this mortgage was given by S. M. Johnson. The defendant in error contends that he held the covys under the mortgage dated April 15, 1887; that the plaintiff in error took a mortgage upon the same cattle September 7, 1887, while his mortgage was yet alive and in force. It being alive and valid at the time the plaintiff in error took its mortgage, as to the defendant in error’s mortgage so taken it could never die. The contention of the plaintiff in error, that a mortgage executed by S. M. Johnson is not sufficient to impart notice of the execution of a mortgage by Samuel M. Johnston is not well taken. This court has said that a written instrument should not be regarded as a nullity because the Christian name of any person is not mentioned therein and has not been written in full, but only the initial letters have been used. (Ferguson v. Smith, 10 Kas. 397.)
It is insisted that Johnston and Johnson are not even idem .sonans. The rule has been stated —
“That absolute accuracy in spelling names is not required in documents or proceedings, either civil or criminal; that if the name as spelled in the document, though different from the correct spelling thereof, conveys to the ear when pronounced according to commonly accepted methods a sound practically identical with the sound of the correct name as commonly pronounced, the name as thus given is a sufficient designation of the individual referred to, and no advantage can be taken of the clerical error.” (16 Am. & Eng. Encyc. of Law, 122.)
In the pronunciation of proper names greater latitude is indulged in than in any other class of words. (Rooks v. The State, 83 Ala. 79.) Courts will not enforce the exact rule of lexicographers in the spelling and pronunciation of words. Indeed, it is difficult to determine when names are of the same sound, and it would take a practiced ear to detect the difference in the sound of Johnston and Johnson, as ordinarily pronounced by the generality of mankind. As previously held by this court in the case of Howard v. National Bank, 44 Kas. 549, and Farmers’ Bank v. Bank of Glen Elder, 46 id. 376, a subsequent mortgage with notice of a prior mortgage is not a subsequent mortgage in good faith, under ¶ 3905 of the General Statutes of 1889. Upon the authority of the above cases, the trial court was correct in the judgment rendered.
The last point urged is, that there was no evidence before the court to sustain the findings in favor of the defendant for the five cows, under the mortgage of April 15, 1887. It seemed to have been conceded that the five cows adjudged to be the defendant’s were in all of the chattel mortgages. The court so found, and we think there is some evidence to support the finding in the record.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
At the February term of the district court of Marion county, in 1885, the grand jury found two indictments against Robert Calhoun for defiling females under the age of 18 years, committed to his care and protection, by carnally knowing them. The fact of such indictments having been found became known in the community. The public mind became greatly excited and hostile to the accused. Threats of lynching him were freely made, and preparations to carry out the same were apparently going on. Knowledge of these threats and preparations was communicated to the accused, who was then in jail, and the same produced in his mind such a state of fear, that, to appease the passions of the community, and secure himself from bodily violence, he pleaded guilty to the charges contained in such indictments, and was sentenced to the maximum limit of punishment — 21 years’ confinement in the penitentiary at hard labor, in each case. In March, 1892, in the district court of Marion county, he brought proceedings in the nature of those known to the common law as writs of error eoram nobis, to revoke the aforesaid sentences, and to set aside the pleas of guilty, upon the ground that such pleas had been extorted from him by duress and threats and appearances of impending and imminent mob violence, operating upon his fears, whereby he had not been allowed his constitutional rights to plead his innocence of the charges alleged against him in said indictments, to defend against the same in person and_ by counsel, to meet the witnesses against him face to face, and to have a public trial by an impartial jury. A trial was had in the error eoram nobis proceeding at the September term, 1892, before the court and a jury, and the jury returned a general verdict in favor of the plaintiff, Calhoun, and also returned a special verdict, which, omitting title and signature, reads as follows:
“We, the jury impaneled and sworn, upon our oaths do find, that in the cases numbered 1546 and 1547, in the district court of Marion county, Kansas, at its February term for the year 1885, wherein the state of Kansas was plaintiff and Robert Calhoun was defendant, being indictments for the offenses of carnally knowing females under the age of 18 years, confided to his care and protection, found and returned by the grand jury of said county, at said term, and to which said indictments said defendant pleaded guilty, that the said pleas of guilty were made by said defendant unwillingly and involuntarily, and under the influence and duress of his fears of death or great bodily injury being inflicted upon him by a mob, if he did not so plead guilty to such indictments.”
A motion by the state for a new trial was made, and overruled ; findings of fact were made by the court in accordance with the verdict of the jury, and judgment was rendered by the court revoking the sentences and the pleas of guilty, awarding the accused a trial in each case, ordering his release from confinement in the penitentiary, directing the warden to deliver him to the jailer of Marion county, and directing the issuance of warrants for his arrest and commitment to the jail of such county pending the trials to be had. The state in various ways interposed objections to the jurisdiction of the court, and to the sufficiency of the facts alleged and proved, interposed the statute of limitations in bar of the proceedings, and objected to the admissibility of some of the plaintiff’s evidence, and preserved proper exceptions to all adverse rulings.
Before proceeding to the discussion of the questions presented by counsel as being involved in this case, it- would be well to state that it is admitted by counsel that the proceedings in the lower court were civil in their nature, and not criminal, and that, the remedy of petition in error, and not appeal, is the proper remedy in this court.
The first question presented by the state — which was the defendant below and is the plaintiff in error—is, that the court- below had no jurisdiction to hear or determine any of the matters in controversy in this case, no power to set aside the aforesaid sentences or pleas, and no power to grant trials in the aforesaid criminal cases. It is admitted on the part of Calhoun — the defendant in the criminal cases, the plaintiff below in this proceeding, and the defendant in error in this court—that no express remedy is given to him, or to anyone else similarly situated, under any express provision of any statute; but he claims that he has a remedy under the principles of the common law, and, inferentially, under those provisions of the statutes which recognize the existence and binding force of the common law. That the common law has existence in Kansas, in some cases and to some extent, we suppose all will admit. It has existence and force in all cases where the same is not inconsistent with the constitution or the statutes or the institutions of this country, and where, except for the common law, proper remedies for injustice and wrong, and for the redress of grievances, would not be furnished. The territory now occupied by the state of Kansas has belonged to the United States ever since the year 1803; and the government of the United States recognizes and enforces the common law everywhere, except where it is otherwise provided by the constitution or statutes, or where it is inconsistent with the institutions of this country. This same territory was also once, and from 1804 to 1812, under the jurisdiction and control of Indiana territory (2 U. S. Stat. at Large, p. 287); and was also once, from 1812 to 1820, under the jurisdiction and control of Missouri territory (2 U. S. Stat. at Large, p. 743, et seq.), both of which territories recognized the common law. At the last-mentioned date, a portion of Missouri territory was admitted into the union as a state. (3 U. S. Stat. at Large, p. 545.) In 1854, the territory now constituting the state of Kansas became an organized territory; and, from 1855 up to 1861, it was governed by its own territorial laws and the laws of the United States, when, in 1861, it became a state. As early as 1858, the following statute was enacted by the territorial legislature of Kansas, to wit:
“Sec. 603. That rights of civil action, given or secured by existing laws, shall be prosecuted in the manner provided for by this code, except as provided in section 604. If a case ever arises in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under this code, the practice heretofore in use may be adopted, so far as may be necessary to prevent a failure of justice.” (Civil Code of 1858, §603.)
A similar statute has been in force ever since and is now in force. (Civil Code of 1868, §727; Gen. Stat. of 1889, ¶ 4841.) Also, the common law, by express enactment, has been in force in Kansas almost from the beginning. The present statute with regard thereto reads as follows:
“Sec. 3. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state.” (Gen. Stat. of 1889, ¶ 7281.)
In the case of Sattig v. Small, 1 Kas. 174, which was decided in 1862, it is said, in the opinion of the court, among other things, as follows: “ The common law was in force here when the organic act passed.” (See, also, U. P. Rly. Co. v. Rollins, 5 Kas. 175.)
There are but few statutory actions in this state. Nearly every right of action in this state is founded upop and given only by the all-reaching principles of the common law, and generally it is only the procedure and not the right of action that is furnished or regulated by statute; and even as to procedure the statutes sometimes fail, and in such cases parties must resort to and invoke the aid of the common law. That such a remedy as the one resorted to by the plaintiff in this proceeding existed at common law, there can be no doubt; and we think it still exists wherever it is necessary to invoke its aid. See the case of Sanders v. The State, 85 Ind. 318, and the many authorities there cited. Is it possible that a person, who, under fear of mob violence and of death or great personal injury, is compelled to plead guilty to a criminal charge, and to be sentenced to imprisonment and hard labor in the penitentiary, is without remedy to restore to him his lost rights? But, if he has no remedy, then what be comes of the guaranties of our own state constitution? Sections 10 and 18 of the bill of rights of our constitution read as follows:
“Seo. 10. In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
“Sec. 18. All persons, for injuries suffered in person, reputation, or property, shall have remedy by due course of law, and justice administered without delay.”
If any court has jurisdiction of proceedings like the present, it is in the district court. Under §3, article 3, of the constitution, the supreme court has original jurisdiction only in proceedings in quo warranto, mandamus, and habeas corpus, and such appellate jurisdiction only as may be provided by law, and neither the constitution nor any statute has given to the supreme court, nor, indeed, to any other court, unless it is the district court, any jurisdiction in any proceeding like the present. Under § 1 of the act relating to district courts, the district court is made a court of record, and is given “general original jurisdiction of all matters, both civil and criminal, not otherwise provided by law.” (Gen. Stat. of 1889, ¶ 1961.) And jurisdiction like the present has not been otherwise provided for by the constitution or by any statute. Upon the whole, we think the district court, and it alone, has jurisdiction in cases like the present, and this opinion follows from a consideration of the common law and the constitution and the statutes both of this state and of the United States, viewed in the light, of history and of usage, and under the decisions of our own courts and of the courts elsewhere.
But it is claimed that, even if the district court has jurisdiction in cases like the present, still that the plaintiff’s present action or proceeding was barred by some statute of limitations before it was commenced. The original pleas of guilty took place and the sentence and judgments following them were rendered on March 2, 1885, and this present proceeding was not commenced until some time in March, 1892, more than seven years having in the meantime elapsed; and it is now claimed by the state that the proceeding was barred, either by the two-years statute of limitations (Civil Code, § 18, subdiv. 3), or by the five-years statute of limitations (same section, subdiv. 6). There are decisions which hold that no statute of limitations can ever operate in cases like the present. (Powell v. Gott, 13 Mo. 458; Latshaw v. McNees, 50 id. 381.) But it is not necessary, as we think, to hunt for decided cases. Our statutes govern. Section 19 of the civil code provides as follows:
“Sec. 19. If a person entitled to bring an action other than for the recovery of real property, except for a penalty or a forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed.”
And § 1, subdivision 27, of the act relating to the construction of statutes, reads as follows:
“27 th. The phrase * under legal disability’includes persons within the age of minority, or of unsound mind, or imprisoned.” (Gen. Stat. of 1889, ¶ 6687.)
But it is claimed on the part of the state, that if the plaintiff in this proceeding was under such a legal disability that the statute of limitations would not run against such a proceeding, then that he was under such a legal disability that he could not commence or maintain the proceeding at all; or, in other words, it is claimed that, if from fears of his life or of great personal injury, and to avoid death or great personal injury, he pleaded guilty to a criminal charge, and was sentenced thereon to imprisonment and hard labor in the penitentiary for a term of years exceeding the time prescribed by the statute of limitations within which he could commence his action or proceeding, then that he was and is wholly without remedy; for he was under such a legal disability that he could not commence any such proceeding to set aside the sentence or the plea while imprisoned, nor until the term for which he was sentenced to imprisonment should expire. Under the statutes of limitations, he would have one year after the disability from imprisonment was removed within which to commence his action. (Civil Code, § 19.) But could he not commence his action before the beginning of that year and while he was still imprisoned? What would be the use of his commencing any action or proceeding to relieve him from the consequences of his sentence after he had served in the penitentiary the full time for which he was sentenced? The commencing of any action or proceeding would then be of no benefit to him. It must be remembered that the plaintiff’s imprisonment commenced before he made his pleas in the criminal cases, and has continued without any interruption up to the present time. While we think that, under the statutes, the plaintiff is and has been under such a legal disability that the statute of limitations has not operated against his remedy, yet we think that he has not been under such a legal disability as would prevent his commencing or maintaining an action to restore him to his just rights, provided, of course, that some friend would commence and conduct the proceeding for him. We do not think that the plaintiff’s remedy in this case is barred by any statute of limitations.
The state also claims that the court below erred in excluding certain evidence. It appears that on May 25, 1892, the deposition of the plaintiff below, Calhoun, was taken in Leavenworth county, and presumably in the penitentiary, where he was confined. In that deposition, he stated that the relation of attorney at law and client never existed between himself and C. W. Keller. Afterward, and on the trial of this case, which occurred on September 12, 1892, in Marion county, the deposition was read in evidence. Also, the oral testimony of Mr. Keller was introduced in evidence on the part of the plaintiff, Calhoun. It appeared from the testimony of both these witnesses that they had had a conversation, about the last day of February, 1885, in the county jail of Marion county, where Calhoun was then imprisoned; and Mr. Keller also testified that at the time of this conversation he was employed as an attorney at law by Calhoun, and that the conversation then had was had between them in the relation of attorney and client. Notwithstanding this, the state offered to introduce the testimony of Mr. Keller to show what the conversation was, but Calhoun’s counsel in this case, Frank Doster, objected, upon the ground that the conversation consisted of confidential communications had between them as attorney and alienfc; and the court excluded the evidence; and this the state claims was 'error. Calhoun himself was not present at the trial. We do not think'that any error was committed in the exclusion of this evidence. (Civil Code, § 323, subdiv. 4.) The court below heard the oral testimony of Mr. Keller, and could determine from it, and from Calhoun’s deposition, very much better than we can whether the conversation had between Keller and Calhoun in the county jail was a confidential conversation had between them as attorney.and client or not; and if it was such a conversation, (and we must hold that it was,) then the court below certainly did not err in excluding it. More than seven years had elapsed after the conversation had occurred, and before Mr. Calhoun’s deposition was taken, and during all that time, except a few days, Calhoun had been confined in the penitentiary at hard labor; and it cannot be expected that his memory would be as good as that of Mr. Keller. It is probable that if he had had an opportunity to have had his memory refreshed by another conversation with Mr. Keller he would have made a different statement. We do not think that he was conclusively bound by his statement made in his deposition, but he had the right, through his counsel, to show by the testimony of Mr. Keller that the relation of attorney and client in fact existed between them at the time of the conversation had in the county jail in 1885, and therefore that what was said daring that conversation could not be given in evidence over the objections of his counsel in this case.
It is further claimed, that the court below erred in permitting the plaintiff, Calhoun, to prove threats made against his life both before and after the pleas of guilty in the criminal cases, and threats not communicated to him before his pleas. We do not think that any error was committed in this respect. It was very proper to show the temper of the mob, for the purpose of showing whether any real danger existed as to the life of Calhoun, and these threats tended to show this fact. All the threats proved that were made after Calhoun entered his pleas of guilty were made on the same day, and before the mob had completely dispersed. Of course, it was a very important fact—indeed a necessary fact—as to whether Calhoun entertained fears of his life or great personal injury at the time he entered the pleas or not; but the fact that he had substantial grounds for such fears was another very important fact, and it was proper that evidence of that fact should also be given to the jury.
It is also claimed that the court below erred in instructing the jury, in substance, that they had no right to consider the question of the guilt or innocence of Calhoun. We would think this instruction was correct. It can scarcely be possible that a mob, by compelling a person accused of crime to plead guilty thereto, and be sentenced to imprisonment and hard labor in the penitentiary, can thereby shift the burden of proof from the state to the accused. Can a mob by this means abrogate all presumptions of innocence? Can the mob cast the burden upon the accused of proving his innocence, and of proving it by a preponderance of the testimony, and relieve the • state of proving his guilt, and of proving it by evidence sufficient to remove every reasonable doubt? A mob has no right, by any means, to shift the burden of proof from the state to the accused, or to relieve the state from proving the guilt of the accused beyond a reasonable doubt, and no right to compel the accused to prove his innocence, and to prove it by a preponderance of the evidence. The accused had the right to be placed back in the same condition as he was before he entered his pleas of guilty. He had the right to be placed back in such a condition that he could avail himself of all the right given to him by §§ 10 and 18 of the bill of rights of the constitution, above quoted, and also of § 228 of the criminal code, and of all the other provisions of the constitution and the statutes adopted or enacted in the interest of fair trials and of liberty and justice. On the final trials in the criminal cases he can be fairly tried, and, if his guilt shall then be fairly established, he can then be sentenced according to law. At the present, and in this proceeding, he is not required to establish his innocence. We think no error was committed in this respect.
It is further claimed by the state, that the court below erred in refusing to give a certain instruction that, if Calhoun entered his pleas of guilty because he was in fact guilty, and honestly desired to enter such pleas irrespective of any fear of mob violence, then that the fact that he was threatened with mob violence was not sufficient to avoid the sentence of the court. There are at least two sufficient answers to this claim of error: First, the court in substance gave the instruction in its general charge; and, second, the special findings of the jury would cure any error that might have intervened in this respect.
After a careful consideration of all the points presented by counsel in this case, we are of the opinion that no substantial error was committed by the court below. With regard to actions or proceedings in this country in the nature of writs of error coram nobis a valuable note will be found appended to the case of Holford v. Alexander, 46 Am. Dec. 257-261. Upon the points made by counsel, our decision is as follows:
1. Where the accused in a criminal prosecution in the district court is forced, through well-grounded fears of mob violence, to plead guilty to the criminal charge, and to be sentenced to imprisonment and hard labor in the penitentiary for a term of years, he has a right to relief from such sentence and plea by an action or proceeding in the same court in the nature of a writ- of error ooram nobis.
2. And in such a case, where the accused was sentenced to imprisonment in the penitentiary for a period of 42 years, and, after having served for more than seven years of that term, he commences an action in the nature of a writ of error ooram nobis to set aside such sentence and plea, his action is not barred by any statute of limitations, for the reason that no statute of limitations will operate against the remedy of a party while he is under the legal disability of imprisonment.
3. In such a case, where a deposition of the accused was read in evidence on the trial in his action for relief, and in such deposition was a statement made by him that the relation of attorney and client had never existed between himself and K.; but the oral testimony of K., introduced on the trial, showed that such relation did once exist, and that a certain conversation had between them more than seven years prior to that time and while that relation existed was a confidential conversation had between them as attorney and client, and the state offered to show what that conversation was; but the accused, through his counsel in the action for relief, objected, and the court excluded the evidence: Held, That the supreme court cannot say that any error was committed.
4. In such a ease, where the trial court permitted the accused to show threats of mob violence made both before and after, but on the same day of the entering of his plea of guilty, and many of which threats were not communicated to the accused before his plea was entered, held, not error; that the evidence tended to show that there was a real danger from mob violence, and that the fears of the accused were well founded, and that the evidence was proper to go to the jury.
5. And further held, that the question of the guilt or innocence of the accused in such a case is not a necessary question to be determined in the case; that a mob cannot, by compelling a person accused of crime to plead guilty and to be sentenced to imprisonment and hard labor in the penitentiary, so shift the burden of proof from the state to the accused as to compel the accused to prove his innocence, and to prove it by a preponderance of the testimony, and to relieve the state from proving his guilt, and from proving it by evidénee sufficient to remove every reasonable doubt. The accused has the right to be placed back in the same condition as he was before he entered his plea of guilty.
6. And it is further held, that no error was committed in refusing instructions.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was a criminal prosecution, upon an information filed in the district court of Norton county, July 23, 1891, charging the defendant with having, on the 26th day of May, 1891, killed and murdered one Edward Hagaman. Aldrich was tried at the September term, 1891, and convicted of murder in the second degree. A motion for a new trial was overruled, and he was sentenced to serve a period of 10 years, at hard labor, in the penitentiary. From this judgment and sentence he appeals to this court.
Counsel for defendant alleges the following errors on the part of the trial court: (1) The court erred in overruling the plea in abatement; (2) the court erred in the admission and rejection of evidence; (3) error in giving instructions complained of; (4) in overruling motion for new trial. May 4,1890, the defendant obtained a loan of one Akers, a farmer living near him, of $42, and gave a chattel mortgage upon a team of horses to secure the debt. The horses were to remain in the possession of the defendant, for use by him on his farm, until the condition of the mortgage was broken, when the mortgagee or his agent was to hive the right to go upon the defendant’s premises and take possession of them. May 26, 1891, the defendant, having defaulted on the mortgage, it was turned over to a justice of the peace for collection; and on that day Hagaman, who was a constable, was directed to go and get the money or the property. He called on the defendant, who said he could not pay at that time. The defendant and the constable then called on Mrs. Akers, her husband being absent in Missouri, and the defendant asked further time on the debt, which was refused him. The constable then went back to the premises of the defendant to get possession of the horses. The son and daughter of the defendant were with the horses in the field. The defendant also went to where the horses were, and said he would not give them up, and raised his cane and told Hagaman he must not touch them. Hagaman then reached toward one of the horses to take hold of it, when the defendant dropped his cane, drew a revolver from his pocket, and fired at Hagaman. The latter then drew his pistol, and several shots were exchanged, Hagaman being shot through the stomach, which wound proved fatal.
The first contention of the defendant is, that the trial court erred in overruling his plea in abatement. When the case was called for trial, September 21, 1891, the defendant interposed a plea in abatement, alleging that the warrant upon which he was arrested was illegal and void, because it commanded the officer to whom it was directed to take the defendant before the magistrate issuing the same, instead of before “some magistrate of Norton county.” We do not think the warrant of arrest in the case is illegal and void for the reason given, which is the only objection thereto. It is not claimed that the defendant objected to going before the magistrate issuing the warrautfor a hearing, nor, so far as the record shows, was there any objection by the defendant to submitting to a preliminary examination before such magistrate. And there is no allegation that the defendant did not have a proper examination before a competent magistrate. The sole contention, so far as this plea is concerned, is, that the warrant was void for the reason above mentioned. The warrant was issued upon a complaint properly verified, and was itself in proper form, except that it was in form a special, instead of being a general, warrant. The warrant was not void, and the defendant having gone before the magistrate issuing it without objection, and there submitted to an examination of which he does not complain, we do not think the court committed error in overruling the plea in abatement. (The State v. Bailey, 32 Kas. 83.)
The second contention of the defendant is, that the court erred in permitting the dying declarations of the deceased, Hagaman, detailing the circumstances in connection with his being shot, in evidence. Before such declarations were permitted to go to the jury, a foundation was laid by the following testimony: Doctor Sprague, who was called to see the deceased soon after he was wounded, says:
“I found him in a critical condition. I found wounds in two places, one through his hand and one through his body. He was vomiting blood every few minutes. I tried to stop the blood by giving medicine by way of his stomach. He wanted to know if he was badly wounded. I told him that I thought so. He wanted to know if he was fatally wounded, and I told him I thought he was. Then he wanted me to keep him alive until his wife got there. I injected in his arm one-fourth grain of morphia, which acted upon him, and the hemorrhage stopped.”
On cross-examination the doctor further stated :
“ Ques. In your opinion, that blood came from his stomach? Ans. Yes, sir.
“ Q. Could not the blood come from some other way? A. He would not vomit it if not hit in the stomach.
“ Q. Did n’t you always tell him he might get over it? A. No, sir.
“Q,. Didn’t you hold out to him any possibility at all of his getting over it ? A. No, sir.
“ Q,. What did he say about living ? A. He wanted to know of me if there was a possibility for him to get over it. I told him I thought not. Then he said, ‘ Well, keep me alive till my wife gets here.’
“ Q. Did n’t you tell him that he would probably live till his wife got there? A. Yes. I told him there was a possible chance for him to live for several days.
“Q,. Did he say anything? A. He thought he was fatally wounded.
“ Q,. Did you have any further talk with him about his living? A. No, sir.
“Q. Did he say anything to his wife? A. Yes; he said it was all right whether he lived or died; that he was doing his duty.
“ Q. Did he say he thought the wound was fatal ? A. I told him, but I do n’t know whether he thought so or not. I was well of the opinion that it was a fatal wound. I can’t pass an opinion for him.
“ Q. You told him that you thought it a fatal wound ? A. Yes, sir.
“ Q. He wanted to know if you thought you could keep him alive till his family got there? A. Yes, sir.”
Charles Ewart, another physician, was examined on this question, and testified:
“Ques. State whether or not that wound was fatal. Ans. Yes, sir.
“Q. Do you say that he would necessarily die from it? A. Yes, sir.
“ Q. What, if anything, did Hagaman say as to his condition, whether or not the wound was fatal, or he would be liable to get well? A. When I first called, he told me in about these words: He said, ‘ They got me this time, but they had to double on me.’
“Q. Did he seem to have any hope of recovery? A. He did n’t express it so. Afterward he said it was no use in holding up any longer. I knew he was sinking.”
On cross-examination he said:
“Ques. What reason did he give for thinking he was fatally hurt? A. Because he was shot through the stomach. He knew he could not get over that.
“ Q. Do you know how long he conversed with his wife and boys? A. It might have been five minutes.
“Q. What did he tell them? A. I do n’t know. I only heard him tell one of the boys that he must take care of his mother. I remember that, he told Eddie that.”
J. H. Allen was sworn and examined upon this question also, and testified as follows:
“Ques. What he said to you was before Sprague got there? Ans. I think Sprague and me got there about the same time.
“Q. Had Sprague seen him yet? A. I don’t think he had.
“Q. Tell what he said about the wounds he received? A. When I came in he said, ‘Allen, I am killed; I have got my death shot. I am bound to die.’ He said, ‘ Ho you think my wife will get here?’ I told him I thought he would last that long.
“Q,. Did you say anything to him about his wounds? A. I told him, ‘I believe you are bound to die.’”
H. J. Schelle testified as follows:
“Ques. What did he say about the wound he had received that day? Ans. Why, he said he thought it would cause his death.
“Q,, You say he told you that he thought he had to die? A. Yes, sir.
“Q,. What did you say to him? A. I told him there was no hope for him.
“ Q,. Did he express any doubt as to whether he was going to live or die? A. He said he was going to die.
“Q,. Did he say anything about any physician? A. He did n’t think any of them could save him.
“Q,. What did he say about it? A. He thought they were a long time coming.
“Q,. Did he say he thought they could help him? A. No, sir.”
A review of all this testimony makes it appear very clear to us that Hagaman had no hope of ultimate recovery at the times when he made his several statements relative to the shooting. The utmost he hoped for was to live a short time — long enough to see his family. His interview with his family shows that he had no hope of recovery. After talking a few minutes with his wife and children, he said to his oldest boy, Eddie, “You must take care of your mother.” The evidence of Doctor Ewart and that of Mr. Schelle was not before the court when Doctor Sprague was permitted to give the declarations of the deceased concerning the shooting. But the court had received at that time the evidence of Mr. Allen, which was very pointed and conclusive upon the question of the deceased’s condition. And we think, taking all the evidence on the subject together, it shows that the deceased had no hope of recovery after he first talked with Doctor Sprague, and with Mr. Allen, who talked with Hagaman about the same time Sprague did, both of whom informed him that his wound was fatal. The details of the shooting, as given by Hagaman to each of the witnesses, were substantially the same; so that, in legal effect, the foundation for the admission of all of such declarations was supported by the evidence of all the witnesses testifying relative to his condition and frame of mind concerning the same, when such declarations were made. We think the statements of the deceased relative to the shooting, when he received the wound from which he died, were clearly admissible.
Counsel for defendant objects to the opening statement of the court in connection with the instructions. We think, however, the remarks of counsel in his brief on the subject are entirely without excuse. We .find nothing in such statement of which either side to the case can rightfully complain.
We see no reason why the defendant did not have a proper trial, and therefore recommend that the judgment of the trial court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by.
Horton, C. J.:
The facts in this case are undisputed, except upon the part of the plaintiff below it is claimed that the railroad tracks were laid along a public street, and that the point where the accident happened was an alleyway or crossing, used by the public generally, connecting with the street along which the tracks were laid, and that it was the custom of the public to cross and recross the tracks, both as footmen and with teams. On the part of the railroad company, it is asserted that the place of the accident is upon the private grounds of the company, and that the deceased was a trespasser thereon at the time of the accident. In disposing of this case, we assume the claim of the plaintiff below to be true, and that the place where the injury occurred was used as a crossing by the public, and that the deceased was using such crossing or alleyway at the time he was killed. James Robertson, a colored man, called by the plaintiff below, was the only witness, so far as it appears from the record, who saw James Priest, deceased, just before and at the time he' was killed, upon the track of the railroad company. He testified very clearly as to all the facts concerning the matter. Priest, at the time of his death, was 70 years of age, and by occupation a huckster. He lived with his wife and a son, 28 years of age, at 442 Washington avenue, in Wichita, on the east side, but not very far from the railroad tracks. After dinner, on the day he was killed, he started to go on foot into the city with his two sons and their wives, who intended to do a little trading. He went with them as far as the corner of Mosley and Third streets, and then parted from them, taking a little bypath going southwest towards the railroad. He said, “He often went that way, and that it was nearer to town.” He wanted the others to go the same way, but they “thought it better to take the sidewalk on account of the women with them.” After they separated, they never saw him alive. Between First and Second streets, in the city of Wichita, and on the east side of Fifth avenue, there is a main line of railroad, and west of it, towards Fifth avenue, there aré two side tracks. The distance between the main track and the first side track on the west is four or five.feet. After Priest separated from his sons and their wives, he proceeded along the bypath until a little north of the center between First and Second streets, where he attempted to cross over the tracks. As he was about crossing the first side track towards the west, he discovered some cars coming toward him; he jumped back, and was struck by cars coming down the main track in the same direction and instantly killed. The switch on the main track is about 100 feet north from where Priest was struck. About the time he was crossing, three cars were detached from the engine and kicked down on the main line, and two cars were detached and kicked down the first side track. The cars on the side track were a car length ahead of the cars which came down the main track. On the east side of the main line the land is open and unoccupied, and on that side there are only two houses in the block • the other side is partly built up. The main track of the railroad runs north and south, and is straight for a long distance on each side of the place where the accident occurred. The center of the main track is about 80 feet east of the west line of Fifth avenue. The accident occurred between 2 and 3 o’clock in the afternoon. The day was clear, the sun shining, and Priest, before being struck by the cars, was in full possession of his faculties of sight. He was a little hard of hearing, but of this defect he was well aware. The jury specially found:
“That the accident occurred on the west rail of the main track, between First and Second streets, about the center of the block, and 77 feet east of the west line of Fifth avenue;” and they also specially found “that Priest approached the point where the accident occurred from an easterly direction, and that in approaching that point there was nothing to prevent him from seeing the approaching cars from any direction on the main or side track of the railroad.”
It has been frequently ruled by this court, that it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as listen, and if he fails to perform this duty, and by reason thereof injury results to him from a moving car or train, he cannot recover from the railway company. (U. P. Rly. Co. v. Adams, 33 Kas. 427; Clark v. M. P. Rly. Co., 35 id. 350; C. K. & W. Rld. Co. v. Fisher, 49 id. 460; 30 Pac. Rep. 462; Railroad Co. v. Houston, 95 U. S. 702.)
Upon the facts, which are uncontradicted, and under the law as already decided by this court, the plaintiff below was not entitled to any recovery. The place where Priest was killed was largely used as the yards of the railroad company for switching purposes. He was familiar with the location, having crossed there on many occasions and having lived for a long time in the vicinity. If he had looked, and stopped for the cars to pass, as Robertson did, his life would have been saved. Robertson testified that he was on the west side of the tracks at the time the cars were coming down, waiting to cross over, with his two little children. His opportunities to see the ears coming were no better than those of Priest, the deceased. It cannot be said that the cars were detached from the engine and kicked down with no opportunity for the deceased to see. Had he used his senses, he could not have failed to know and see the cars which were coming down on the main and side tracks. Whatever presumption might be indulged in, in the absence of all evidence, sufficient is disclosed to show that the deceased must have walked thoughtlessly upon the tracks without looking, or if he saw the cars coming, he recklessly undertook to cross the track, instead of waiting for the cars to pass, as Robertson did. There is no allegation in the petition of gross negligence upon the part of the railroad company. Conceding that the company was negligent in detaching its cars suddenly, and pushing or kicking them down over a crossing used by the public without brakemen or signals, yet the deceased, considering his opportunities to know and see all of this, was also guilty of such negligence as bars any recovery.
We are referred to several cases by counsel for plaintiff below, which they claim sustain the judgment. These cases, however, are all different from the one at bar.
In Railroad Co. v. Davis, 37 Kas. 743, the plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side track, and looked to see whether an engine was behind them, and saw none, and the fact that the train was moving backwards, are questions to go to the jury, with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather and the character of the train, and he thought it to be on the side track. But in that case it was expressly stated, that—
“ The rule seems to be well settled in this state, that before a person can recover for injuries received in crossing a railroad at a public road or street, he must, before attempting to cross, recognize the danger and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglects this duty and ventures blindly upon the track, without making an effort to ascertain whether a train is approaching, that he does so at his peril.”
In Brown v. Railroad Co., 52 N. Y. 597, the plaintiff sustained injuries by a collision with a railroad car while in a stage in which she was a passenger. In that case, the stage was moving south, and in approaching the crossing from the north the view of the railroad was greatly obstructed by the houses, trees, shrubbery, and fences, so that the approaching train could not well be seen till the traveler was within a few rods of the iron track.
In Kay v. Railroad Co., 65 Pa. St. 269, the action was for injury to a child only 19 months old. In such a case, of course, an infant is not required to use the care and caution of an adult.
In Schum v. Railroad Co., 107 Pa. St. 8, at the point where the accident occurred the carriage road crossed the railroad at an acute angle, and in the space north of the railroad and east of the carriage road was a field of corn. In the angle nearer the railroad was a willow tree and several locust trees and bushes. These obstructions, according to the testimony, so obscured the view of the railroad that a traveler approaching it from the north on the carriage road could not see the railroad toward the east until he arrived within about 10 yards of the track, and then it was visible for only 50 yards east of the crossing, where the railroad turned sharply to the north and was lost to view behind a bank.
In these cases referred to and other similar cases, under the facts and circumstances disclosed in them, what constituted negligence was a question for the jury and not for the court. If the deceased had been an infant, or if his sight, as well as his hearing, had been defective, or if, on account of obstructions, he was prevented from clearly seeing the approaching cars, we might say that the negligence in the case was for the jury and could not be determined by the court; but, in this case, the duty of the deceased can be clearly defined—his failure to perform it is, of course, negligence, and must so be declared.
Within McCarthy v. Railroad Co., 18 Kas. 46, and Railroad Co. v. Brown, 26 id. 443, the instruction concerning the measure of damages was erroneous and prejudicial; but, on account of the conclusion which we have reached upon the facts in the case, it is unnecessary to comment upon these or other matters discussed in the briefs.
Upon the evidence and findings of the jury, the defendant below was entitled to judgment.
The judgment of the court below will be reversed, and the cause remanded, with direction to enter judgment for the company.
All the Justices concurring. | [
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Per Curiam:
In the opinion handed down, (Insurance Co. v. Bank of Pleasanton, 48 Kas. 397,) the by-laws attached to the insurance policy were not considered a part thereof, and the case was disposed of without any reference thereto. It is now urged that the validity of the by-laws and policy were never questioned in the district court; and also that, as the insurance company is a mutual one, the assured was bound to know and abide by the by-laws, whether attached to the policy or not. Assuming that the by-laws were binding on the assured, we will notice the objections presented in the original briefs to the judgment. It appears that the policy was issued on June 14, 1888. The building was destroyed by fire on the 2d day of November, 1888. The fire originated some distance west of the building insured, and spread over a large district, destroying the greater part of the business portion of Blue Mound. On November 12, 1888, D. R. Hite, the general agent of the company, appeared, and examined J. D. Cozad with reference to the loss under the policy. On the 4th of December, 1888, proofs of loss were made by Mr. Saunders, cashier of the bank, and sent to the company. On December 8, 1888, Hite wrote, acknowledging the receipt of the proofs, but denying all liability. As the proofs of loss were made out and sent to the company soon after the fire, and as these proofs were not excepted to or returned, we must assume that the notice given and proofs furnished were satisfactory and sufficient. The original opinion states fully all that is necessary to be said concerning the admission in evidence of the letter of D. R. Hite. A provision in the by-laws is as follows:
“This policy shall be void . . . when the interest of the assured in the subject and each item thereof shall be less than the entire, unconditional, undisputed, sole legal title and ownership, free from liens, unless in the application the exact and true interest shall appear.”
The evidence showed that at the time the policy was issued Cozad, Glucklich & Co. occupied the building. Harry Worland had the legal title to the premises on which the building was situated on the 2d of February, 1886, and on that date executed to this firm a bond for a deed when certain sums of money, amounting to $3,000, were paid. On the 9th of July, 1887, H. C. Worland and wife executed a deed to the premises to the Bank of Pleasanton, and at the date of the policy the bank held the legal title thereto. Cozad, Glucklich & Co. had, under their bond and an arrangement with the bank, an equity in the premises. The policy was issued and countersigned by W. A. Eahart, the agent of the company, residing at Blue Mound, on the verbal application of J. D. Cozad, of the firm of Cozad, Glucklich & Co., by whom the premium of $16 was paid in cash. One thousand dollars had been paid at the time of the fire upon the bond by Cozad, Glucklich & Co., leaving a balance of $2,000 not yet due. It is therefore urged that, under the by-laws and within the terms of the policy, the plaintiff below was not entitled to recover, because its interest was less than the entire, unconditional, undisputed, sole legal title and ownership of the premises, free from liens.
The plaintiff below, upon the trial, claimed that knowledge of the agent Eahart, who wrote the policy, was knowledge of the insurance company, and that, as knowledge by the agent was shown, the company was estopped. (Sullivan v. Phœnix Ins. Co., 34 Kas. 170; Continental Ins. Co. v. Pearce, 39 id. 396; Insurance Co. v. Barnes, 41 id. 161; Insurance Co. v. Gray, 43 id. 502; Insurance Co. v. Gray, 44 id. 731; Phœnix Insurance Co. v. Weeks, 45 id. 751.)
On the part of the company, it is contended there was a failure of proof that, at the time of the application, Eahart, the agent, was informed concerning the actual condition of the title of the premises. The evidence discloses that, a few months before the policy was issued, information was given to him respecting the actual condition at that time of the title. Eahart, the agent, testified as follows:
“Q. When Mr. Cozad made application to you for insurance, did he inform you in whose name he wanted to insure? A. The Bank of Pleasanton.
“Q. Are you sure of that? A. I think so; yes.
“ Q,. Did you know then the condition of the title to lot 2 ? A. If it had been mentioned at the time I would have known it; but I didn’t think anything about it. That is just about the condition of my recollection.
“Q,. Did Mr. Cozad ask you to insert in the policy anything with reference to the title? A. That is, first?
“Q. Yes, sir. A. No, sir.
“ Q. On the back of this policy here is an application. Now, at whose dictation was that made, if anyone? A. Mr. Cozad asked me to write insurance on that building on that lot.
“Q. Did he first dictate to you the answers to those questions? A. No sir; I answered them from what knowledge I had. I cannot tell you exactly. Mr. Cozad asked me one day in the store, or near it, if I could insure that building at so much. I told him I could, I thought, and he says, Go ahead and write it then, or try it,’ and I think now he said, ‘Recollect it is to the Bank of Pleasanton;’ and I went off and wrote it. That is all there was of it; that is just about all the conversation there was” of it.”
We think, taking all of the evidence together, there was sufficient to show that the agent knew all about the title of the property at the time he issued the policy. He, from his own knowledge, answered in writing the inquiries in the application for the insurance. (Insurance Co. v. Wood, 47 Kas. 521.) Neither J. D. Cozad, who made the application for the insurance and paid the premium in cash, nor the bank to which the policy was issued, made any misrepresentation or untruthful statements to Eahart, the agent of the insurance company, concerning the premises or the title thereof. The building was insured for $400; it was worth from $500 to $600—the value being larger than the amount of the insurance. The bank not only held the legal title to the premises, but its interest therein was $2,000.
Cozad, Glucklich & Co., the firm having an equitable interest in the premises, and the Bank of Pleasanton, holding the legal title—all the parties interested in any way in the property—seemed to have joined in obtaining the insurance for the bank. Under the facts, there was no fraud, deceit or wrong committed by the equitable owners, or the bank holding the legal title. The insurance company has received in cash the premium named in the policy. The fire was wholly accidental, and there is no substantial reason why the judgment rendered should not be paid, in accordance with the provisions of the policy and the statutes of the state.
There was no material error on the part of the trial court in refusing to receive in evidence the bond for a deed given by Harry Worland to Cozad, Glucklich & Co., because the deed referred to that instrument, and there seems to have been no dispute between the parties as to the terms under which Cozad, Glucklich & Co. were in the possession of the premises, and that the legal title of the same was in the Bank of Pleasanton.
The motion for a rehearing will be denied. | [
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Opinion by
Green, C.:
On the 25th day of March, 1889, the American State Bank brought a foreclosure suit against K. W. Robbins and others, in the district court of Russell county. Neither Frank Hulett nor J. T. Ramsdell was originally a party to the action. On the 10th day of June, 1889, the American State Bank obtained a judgment and decree of foreclosure. On the 6th day of September, 1889, Frank Hulett filed his answer and cross-petition, in which, among other things, he alleged that, on April fourth, 1887, J. T. Ramsdell and Mary F. Ramsdell executed to K. W. Robbins their promissory note, in writing, of that date, whereby, for value received, they promised to pay to the order of said K. W. Robbins, on or before three years after the date* thereof, the sum of $2,750, with interest at the rate of 8 per cent, per annum from date until paid, and that J. T. Ramsdell and Mary F. Ramsdell made their mortgage of the real estate on which foreclosure was sought to secure said sum, with interest thereon according to the terms and tenor of the same; that said note was assigned to said Frank Hulett; that he is the owner thereof; and that said J. T. Ramsdell and Mary F. Ramsdell failed to pay said note, or interest on the same, falling due April 4, 1889, and “failed to pay the taxes due for the year 1888, amounting to $--, against said property;” that said Frank Hulett declares the whole of said debt to be due; that a copy of said note is attached to said petition, marked “A,” and a copy of said mortgage, marked “B;” that J. T. Ramsdell and Mary F. Ramsdell, May 17, 1887, conveyed said premises to said L. H. Pounds, and that said L. H. Pounds, as part consideration for said conveyance, assumed and agreed to pay said note to said Frank Hulett, in and by the deed, a copy of which is attached to petition, marked “C;” that on the 9th day of June, 1888, said L. H. Pounds conveyed said real estate to J. W. Thomas, who, in and by the conveyance to him, of which a copy is attached, marked “Exhibit I),” assumed and agreed to pay said Frank Hulett said note of $2,750. The following is a copy of the note:
EXHIBIT “A.”
“$2,750. Topeka, Kas., April 4, 1887.
“On or before three years after date, we promise to pay to the order of K. W. Robbins twenty-seven hundred fifty dollars, at the First National Bank, Russell, Kas., value received, with interest at 8 per cent, per annum after date until paid.
J. T. Ramsdell.
Mary F. Ramsdell.”
“No. —. Hue April 4, 1889.”
[Indorsed on back:] “K. W. Robbins, J. L. Stark-weather.”
“June 14,1888. Received on the within note the interest up to April 4, 1888.”
The mortgage securing the note, and referred to in the cross-petition, contained the following condition:
“But if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum and 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.”
The deed conveying the lands designated in the mortgage from J. T. Eamsdell and wife to L. H. Pounds, after the covenant that the premises were free and clear of all incumbrances, contained the following:
“Except one certain mortgage for $5,650, dated March 16, 1887, due in one and two years, at 8 per cent.; and one certain mortgage for $2,750, dated April 14, 1887, due three years from date, at 8 per cent, semiannual interest, which grantee assumes and agrees to pay when due.”
A copy of this deed was attached as an exhibit to the answer and cross-petition of Frank Hulett, as the basis of his action for a judgment against L. H. Pounds. The answer and cross-petition also contained a copy of the deed by which the land was conveyed from L. H. PcJhnds and wife to J. W. Thomas, which contained the following exception: “Except one certain mortgage for $5,650, and one for $2,750, which grantee assumes and agrees to pay.” Upon this exception, a judgment was asked against J. W. Thomas. The plaintiffs in error had no notice of the filing of the cross-petition of Hulett. On the 4th day of March, 1890, the court rendered a judgment against the plaintiffs in error, upon default, in favor of Frank Hulett, for the sum of $3,171.31. No motion was made for a new trial or exception taken to the rendition of the judgment. The plaintiffs in error bring the case here upon the record, and ask that the same be reversed.
The first point made is, that the cross-petition did not state facts sufficient to constitute a cause of action against the plaintiffs in error. The point is made that the note and interest did not mature until the 4th day of April, 1890, three years from the date of the note; that the cross-petition showed upon its face that there was nothing due upon the note and mortgage, and that the court had no authority to render judgment upon the same a month before it was due. The controlling question in this case is the construction to be placed upon the last clause in the note set out in the cross-petition and the condition in the mortgage. It will be observed that it requires the concurrence of two things in the mortgage to cause the whole debt to mature: the failure to pay any sum or part thereof or any interest thereon when the same is due, and the failure to pay the taxes and assessments when due. We must therefore look to the terms of the note to ascertain when the interest becomes due. The last clause in the note reads: “ With interest at 8 per cent, per annum after date until paid.” It is contended by the defendant in error that this clause made the interest payable annually, and a default in its payment made the whole sum due; that “ per annum ” and “annually ” mean the same. Strictly speaking, the words “per annum” mean by the year, or through the year; but we must construe the note as an entirety. It is a promise to pay a stated sum of money, with the interest thereon at 8 percent, per annum. This, we think, means that the principal and interest are due and payable at the same time. In the case of Koehring v. Muemminghoff, 61 Mo. 406, it is said:
“ In the note under consideration, the promise in the note was to pay the sum of money named, ‘ with interest from date at the rate of 8 per cent, per annum/ five years after the date of the note. No different time is fixed for the payment of the interest from that fixed for the payment of the principal secured to become due by the note. In such a case, both principal and interest become due at the same time; in fact, the promise plainly is to pay the principal with the interest five years after the date of the note. The words ‘ with interest at the rate of 8 per cent, per annum’ only fix the rate of interest to be calculated on the note, and have nothing to do with the time that it shall be paid.” (Cooper v. Wright, 23 N. J. Law, 200.)
Judge Deady said, in the case of Tanner v. Investment Co., 12 Fed. Rep. 648:
“It is too plain for argument that no interest is due on a promissory note payable at a future day, with interest at a certain rate per annum, until the principal sum is due. The promise to pay the interest is to pay it toith the principal at the time the latter becomes due; and if the payee or holder of a note claims that interest is due and payable thereon during the period the note has run, he must show some special provision or agreement to that effect before his claim can be allowed.”
The allegations of the answer and cross-petition, that the payors failed to pay the interest on the note when dué, will not make it good.
“Such averments cannot change the terms of the written contract nor affect the rights of the parties thereunder. The rights of the parties are governed by the terms of the written contract.” (Drake v. National Bank, 33 Kas. 639.)
“If the contract is not ambiguous, '. . . the parties must be governed by the contract. The contract itself is set out ^s an exhibit to the plaintiff’s petition, and must govern, whatever may have been alleged concerning it.”' (Smythe v. Parsons, 37 Kas. 81; Banking Co. v. Riley County Bank, 30 id. 166.)
We are of the opinion that by the terms of the note and mortgage no part of the interest became due until the maturity of the note, and that it was error upon the face of the record for the court to render judgment for the debt before the note became due.
It is recommended that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is contended that the trial court committed error in permitting the defendants to introduce testimony to identify the subscription list donating money and land to the Wichita University of the Reformed church, and thereby tending to show that the written instrument signed by the defendants on November 22, 1886, was given as a guaranty of the performance of the terms of the subscription ; and it is further contended, that the court erred in construing the written instrument sued on in connection with the subscription as a guaranty or collateral agreement. It was claimed upon the part of the plaintiff that the instrument sued on was an independent agreement. - On the part of the defendants, it was claimed that the instrument was a guaranty or collateral agreement only, and that the subscribers had fully performed the conditions of the subscription in the time and manner set forth in both instruments, and therefore that they were not liable. Upon the issues of the case, we think the court committed no error in permitting the defendants to identify the subscription list, executed prior to the written instrument of November 22,1886, as the instrument or paper referred to in the guaranty or collateral agreement. The language of the writing sued on refers to what “divers persons had undertaken and promised;” aud this instrument guarantees that said sum “shall be paid in the time and manner above mentioned.” The evidence is uncontradicted that no other subscription paper was executed or signed than the one referred to in the answer. The court therefore committed uo^material error in stating that the written instrument sued on was “in legal effect a guaranty that the persons who had theretofore agreed to contribute certain moneys for the erection of the university building of the Reformed church would comply with the terms of the subscription.” After the defendants had established by the evidence—as we think, conclusively— that the instrument sued on was only a guaranty to the subscription list, they then offered testimony that the parties signing the subscription paper had fully complied with the terms thereof; that C. C. Fees, who subscribed 20 acres of land, and H. L. Hill, who subscribed 10 acres of land, conveyed the lands in full satisfaction of their subscriptions. The plaintiff offered to show that the Fees and Hill lands were donated for a college campus, and not conveyed in payment of the subscription made by them, nor under the terms thereof. As the defendants were permitted to offer testimony tending to show that the parties on the subscription list conveyed all the lands therein stated to the plaintiff in satisfaction of the subscription, it was also competent for the plaintiff to show that the lands so conveyed were not in satisfaction of the subscription, but were transferred under a different agreement between the plaintiff and the parties making the conveyances. It is contended that the plaintiff was not permitted to show fully that such conveyances were made without any reference to or connection with the subscription. In answer to this contention, the defendants say that—
“The plaintiff having repudiated the whole idea of the subscription being the original undertaking, and having from the first assumed that the subscription had no connection whatever with the instrument sued on, could not pursue the same line of evidence in support of its case that defendants pursued in making their defense. In other words, the theory of the plaintiff and that of defendants in relation to the construction of the instrument sued on being wholly different, it would be altogether proper for either party to pursue a line of evidence in support of its theory of the case which the other party, pursuing an altogether different theory, would not be allowed to offer.”
This is not a correct statement of the law as applicable to this case. Even if the written instrument sued upon was executed as a guaranty only, the plaintiff was entitled to recover any balance due thereon, unless the terms of the subscription had been fully performed. To defeat the plaintiff, it was not only necessary to show that the written instrument was a guaranty or collateral contract, but the defendants had to go further, and prove that the subscription had been discharged by performance. Of course, if the plaintiff accepted any money or any land conveyed in full discharge of the terms of such subscirption, it would be immaterial whether such subscriber had paid in full or not; but, in the absence of such acceptance and discharge, it would be incumbent upon the defendants to prove a full compliance by each party on the subscription list. This would include proof that the land conveyed was the same as that referred to in the subscription list, or that it was of the value therein stated. Therefore the plaintiff had the right to show that the land conveyed had no connection with the subscription alleged in the answer, and was made by the parties to the subscription list upon another or different contract.
On account of the refusal of the court to permit the plaintiff to show fully that the conveyances of land referred to in the defendants’ testimony were not made on account of the subscription, nor with reference thereto, the cause will be remanded for a new trial.
Johnston, J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution in the district court of Rush county, upon an information in which the defendant, John Schleagel, was charged with committing an offense as follows:
“One John Schleagel did then and there unlawfully, feloniously make an assault with a deadly weapon, to wit, a knife, which said knife, he, said John Schleagel, then and there held in his hand, in and upon Henry Scheurman, unlawfully, feloniously, and willfully, and, with malice aforethought, did stab and wound him, said Henry Scheurman, with the intent then and there the said Henry Scheurman to kill and murder.”
The case was tried before the court and a jury, and the jury rendered the following verdict, to wit:
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find the defendant, John Schleagel, guilty of felonious assault.”
Upon this verdict, the court below rendered a judgment sentencing the defendant to be imprisoned in the penitentiary at hard labor for the term of one year; and the defendant' appeals to this court. The defendant claims that the court below erred in impaneling the jury; in refusing to permit certain evidence to be introduced on the trial; in instructing the jury; in refusing to grant a new trial, and in sentencing the defendant upon the verdict of the jury. Passing over the first alleged error, we shall first consider the alleged error, or rather errors, of the court in refusing to permit the defendant to introduce certain evidence. The evidence introduced was to some extent conflicting, but there was evidence introduced tending to show, among others, the following facts: A difficulty arose, and a fight occurred between the defendant, John Schleagel, and another person by the name of Henry Scheurman, in a certain storeroom in the town of Otis, in Eush county. Scheurman was the larger and the stronger man of the two. They were separated by friends, and Schleagel left the storeroom, went outside, and onto the porch. Scheurman followed him, struck him in the face, and knocked him down. Schleagel then, and for the first'time, drew from his pocket his pocketknife, and for the first time during the trouble used it, and struck Scheurman with it. The evidence for the defend anfc tended to show that Scheurman was all the time the aggressor; but the evidence for the state tended to show otherwise, and that Schleagel assaulted Scheurman with the knife inside of the storeroom as well as outside. The defendant claimed that he was acting solely in self-defense at all times during the trouble; and there was evidence enough upon this subject, whether true or not, to go to the jury. Upon this theory of self-defense, Schleagel offered to introduce testimony regarding a similar difficulty which had occurred between himself and Scheurman a short time previously and leading to this last difficulty, in which previous difficulty Schleagel claimed that Scheurman was also the aggressor; but the court excluded the evidence, and the defendant excepted. We think this was error. (The State v. Scott, 24 Kas. 68.)
The defendant also offered to prove by another witness what the general reputation of the defendant, John Schleagel, was as to his being a peaceable, law-abiding citizen in the community where he lived. Scheurman also lived in that vicinity. This evidence was excluded by the court, and the defendant excepted. We also think that this was error. (See The State v. Douglass, 44 Kas. 618, 627; Kistler v. The State, 54 Ind. 401; The People v. Doggett, 62 Cal. 27.)
The court also instructed the jury, among other things, as follows:
“No. 4. You are further instructed, that under the laws of this state that every person who shall assault, with intent to commit manslaughter or other felony, not under circumstances as would constitute an assault with a deadly weapon, as described in the preceding instruction, shall be guilty of a felonious assault.”
This instruction we think is erroneous. There is no single or general offense under the statutes named “felonious assault;” nor are the words “felonious assault” described or defined or even mentioned by any statute. There are, in fact, however, many offenses which might come under the general name of “felonious assault,” as an assault with the intent to commit rape, robbery, burglary, manslaughter, murder, or any other felony. The court also instructed the jury as follows:
“No. 8. If you shall not believe from the evidence beyond a reasonable doubt that the defendant is guilty of an assault with a deadly weapon with intent to kill, as explained in the preceding instruction, then you cannot find him guilty of an assault with a deadly weapon with intent to kill; but if you shall believe from the evidence beyond a reasonable doubt that the defendant, at the time and place charged in the information, committed a felonious assault upon the person of Henry Scheurman, as explained in instruction number 4, then you shall find the defendant guilty of a felonious assault; but if you shall not- believe from the evidence beyond a reasonable doubt that he is guilty of an assault with a deadly weapon with intent to kill, nor of a felonious assault, as explained in the preceding instruction, but that he is guilty of an assault and battery, as explained in instruction number 5, then you shall find him guilty of assault and battery.”
The court also instructed the jury with regard to finding ing the defendant not guilty. Also, before the jury retired for deliberation, the court gave them four separate copies of verdicts, which read as follows:
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of assault with intent to kill, as charged in the information.”
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of felonious assault.”
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, guilty of assault and battery.”
“We, the jury impaneled and sworn in the above-entitled case, do, upon our oaths, find defendant, John Schleagel, not guilty.”
Now the jury did not find that the defendant was guilty of assault with intent to kill, nor assault and battery. Then what did the jury find the defendant guilty of? What was the “felonious assault” of which the jury found the defendant guilty?
We think the court below also erred in not requiring the jury to render a more definite and intelligible verdict; and, considering all these errors together, we think the court below also erred in refusing to grant to the defendant anew trial; and for these errors the judgment of the court below must 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
Valentine, J.:
The only question presented to the court below, or presented to this court, is whether two certain promissory notes were and are negotiable instruments or not. The court below held that they were, and rendered judgment accordingly; and the defendant in that court, Otto E. Skoin, who was the maker of the notes, and who felt aggrieved on account of the decision, has, as plaintiff in error, brought the case to this court for review, and asks that the decision of the court below be reversed. Before we can reverse the decision of the court below it will be necessary for us to know that we have jurisdiction of the case, and this, although in fact no question of jurisdiction has been raised by either party. Indeed, the defendant in error, John F. Limerick, who was plaintiff below, and who would naturally be the person to raise such a question, has not made any appearance in this court, nor has any appearance been made in this court for him. We think, however, it is the duty of this court, on its own motion, where the question is not otherwise raised, to raise the question itself, and to consider the same. The two notes sued on were each for $22.50, and the plaintiff below claimed judgment thereon in the aggregate for $45 and interest, and the court below rendered judgment for that amount, with interest, aggregating, principal and interest, the sum of $62.38. This judgment was rendered on January 30, 1889. Subsequently, and on March 20, 1889, an act of the legislature took effect limiting the appellate jurisdiction of the supreme court to such sums only as exceed $100, except in certain cases, not including the present case. (Laws of 1889, ch. 245; Gen. Stat. of 1889, ¶ 4642.) On January 13, 1890, the present petition in error and case-made were filed in this court. Upon these facts, has this court jurisdiction to hear and determine this case? Under several decisions heretofore rendered by this court, it has not. (Coal Co. v. Barber, 47 Kas. 29; Loomis v. Bass, 48 id. 26.) It is not necessary to repeat the reason's upon which these decisions were made. We simply follow them.
This case will be dismissed from this court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to review the rulings of the district court of Cowley county refusing to set aside a judicial sale of real property and confirming such sale. On May 4, 1888, Joseph B. Corson obtained a judgment against A. H. Green and others, for the sum of $6,097.61, and also a decree foreclosing a mortgage given to secure the debt on three, lots in the city of Winfield. The decree directed the sale of the property, without appraisement, to satisfy the judgment. On February 6, an order of sale was issued to the sheriff, and that officer gave notice of a sale to be had on March 9,1889, which was published in the Winfield Courier. The return made by the sheriff shows that a sale was made on that day, of each of the lots separately, for the total sum of $6,000. A motion was made by the plaintiff, who was the purchaser at the sale, for a confirmation, and at the same time the defendant, A. H. Green, moved the court to set aside the sale because of the insufficiency of the notice published by the sheriff. In his affidavit, Green states that the notice of sale, as published in the Winfield Daily Courier, on the 6th and 7th days of March, stated that the sale would occur on March 6, 1889, instead of March 9, 1889, as it had appeared in the other issues of the paper. Testimony was taken before the court which showed that the notice was published correctly in every issue of the Winfield Daily Courier from and including February 6, to March 8, 1889, in all of which it was recited that the sale would occur on March 9, 1889, except the issues of March 6 and 7, 1889; in each of those issues the figure “9” had been taken out and turned upside down, so as to somewhat resemble the figure “6.” Proof was offered tending to show that this change in the notice was caused or procured to be done by the plaintiff in error? and the district court appears to have found from the testi mony that he was responsible for this wrong. Treating this alteration as one made at the instance of the defendant, for the purpose of avoiding the sale, as we must, under the general findings, should the court aid him in reaping the anticipated fruits of his wrongful conduct? A party guilty of such a wrong is. hardly in a position to appeal to the court for assistance in consummating that wrong, and when such an appeal is made it should be disregarded. -There is no intimation that the property sold for anything less than a fair and reasonable price, nor that any bidders were misled, or prevented from attendance upon the sale, by the discrepancy in the published notice. The proper figure was in the notice, but inverted, so as to somewhat resemble a “ 6.” When so inverted, it was out of line, however, so that it did not fairly represent a figure “6,” and the difference between it and a figure “6” could be readily seen. In any event, the plaintiff in error will not be heard to complain of a defect or alteration of the notice of his own creation,' nor should a court aid him in taking advantage of his own wrong.
The objection that no appraisement of the property sold was made and returned by the officer prior to the sale is without force, since the judgment shows that the sale was to be made without appraisement.
The order of the court confirming the sale will be affirmed.
All the Justices concurring. | [
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Per Curiam:
In accordance with the stipulation on file in this court, the decision in each and all the foregoing cases from Kingman district court will be the same as in the case of National Bank v. Gerson, No. 6538, just decided. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an application brought originally in this court, by Ed. Shellabarger, for a writ of mandamus to compel the board of county commissioners of Jackson county, as a board of county canvassers, and the county clerk, to reconvene and recanvass the votes cast at the general election held in November, 1892, for the office of representative of the 38th representative district. It appears that the board, in its previous canvass, declared that-for that office Nick Kline received 956 votes, Shellabarger received 766 votes, and Moses Sarbach received 81 votes, and showing that Kline was duly elected. The canvassing board in its canvass included the votes cast in the city of Holton, while Shellabarger claims that such votes should not be counted, and that by counting the others only, and not them, the number of votes cast for Shellabarger would be 629; for Kline, 554; and for Sarbach, 14; total, 1,197. The writ of mandamus must be refused. Under the apportionment act of 1886, Jackson county constituted only one representative district, numbered 43. Under the apportionment act of 1891, which is now in force, that county is divided into two representative districts, numbered 38 and 39. The 38th district is composed of six townships in the northeast part of the county, and contains about one-third of the territory of the county. The 39th district is composed of the remaining townships of the county. The city of Holton is not mentioned by name in the act. It is situated, however, wholly within the territorial boundaries of the 38th district, and, so far as the map presented to the court during the hearing of the application shows, it is also situated wholly within the territorial boundaries of Franklin township, which is one of the townships of the 38th representative district.
Unquestionably the legislature intended to include Holton within the 38th representative district, for, if it is not within that district, then the voters of the city of Holton must be and are disfranchised, so far as representative is concerned; and it cannot be supposed that the legislature ever intended any such illegal and outrageous thing. Besides, if the city of Holton is not included within the 38th representative district, then such district will have an exceedingly small voting population — only 1,197 votes; while the surrounding representative districts in that county, and the counties of Pottawatomie, Marshall, Nemaha, Brown, Atchison, Jefferson, Shawnee, and Wabaunsee—12 representative districts — have an average voting population of over 3,400. Even with Holton in the 38th representative district, the district would have a comparatively small voting population—only 1,806. Probably, under the general rules for the construction of statutes, it should be held that Holton is within such district; for it is a general rule of construction that the intention of the legislature shall govern whenever that intention can be fairly ascertained, although the most appropriate language might not be used in expressing that intention. If it were held that the city of Holton is within the 38th representative district, that would end this case; for in that case the board of canvassers did precisely what was its duty to do, and Kline, and not Shellabarger, was elected representative of that dis tricfc. But if it should be held that the city of Holton is not within the 38th representative district, and that its voters should be disfranchised, then it must be held that the canvassing board did not do its duty. We shall cite some of the authorities upon the construction of statutes. Where it reasonably appears what was the intent of the legislature, the statute will be construed so as to effect that intent, although contrary to the letter of the statute. (In re Vanderberg, 28 Kas. 243, 258; Sedg. Stat. Constr. [2d ed.] 254, 255, note; Canal Co. v. Railroad Co., 4 Gill & J. 152; Brown v. Somerville, 8 Md. 444, 456; City of Wichita v. Burleigh, 36 Kas. 34, 42; People v. Utica Ins. Co., 15 Johns. 358; same case, 8 Am. Dec. 243, 251; Pond v. Maddox, 38 Cal. 572; Amberg v. Rogers, 9 Mich. 340; The State v. Boyd, 2 Gill & J. 365, 374; Car Spring Co. v. Railroad Co., 11 Md. 81; same case, 69 Am. Dec. 181; United States v. Freeman, 3 How., U. S., 556, 565; Murray’s Lessee v. Baker, 3 Wheat. 541; Oates v. National Bank, 100 U. S. 239; United States v. Kirby, 7 Wall. 483, 486, 487.)
“Statutes are sometimes extended to cases not within the letter of them, and cases are sometimes excluded from the operation of statutes, though within the letter, on the principle that what is within the intention of the makers of a statute is within the statute, though not within the letter; and that what is within the letter of a statute, but not within the intention of the makers, is not within the statute; it being an acknowledged rule in the construction of statutes that the intention of the makers ought to be regarded.” (The State v. Boyd, 2 Gill & J. 374.)
“Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances, and, when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.” (Canal Co. v. Railroad Co., 4 Gill & J. 152, approved in Car Spring Co. v. Railroad Co., 11 Md. 81; same case, 69 Am. Dec. 181.)
“Laws to carry on the government are to receive a liberal construction to effectuate the objects designed; and if the legislative purpose can be arrived at, in the absence of express language, that meaning is to be observed and obeyed.” (Hardesty v. Taft, 23 Md. 513; same case, 87 Am. Dec. 584, 588.)
“A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers, and such construction ought to be put upon it as does not suffer it to be eluded.” (People v. Utica Ins. Co., 15 Johns. 358; same case, 8 Am. Dec. 243, 251.)
“The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed.” (United States v. Freeman, 3 How., U. S., 565.)
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or, an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.” (United States v. Kirby, 7 Wall. 482, 486, 487.)
If it should be held that the city of Holton is not within the 38th representative district, then it must be held that the apportionment, so far at least as the city of Holton and perhaps the district or county is concerned, is absolutely void. (The State v. Van Duyne, 39 N.W. Rep. [Neb.] 612; Cooley, Const. Lim. [6th ed.] 775; Attorney General v. Board of Supervisors, 11 Mich. 63; People v. Maynard, 15 id. 463, 469, 471.) The legislature had no authority to disfranchise the voters of the city of Holton; and if it attempted to do so, or left it out inadvertently, its act or omission would be void. If such an act or omission would render the district void, then Shellabarger, the applicant, would have no interest in any recanvass of the votes, for no person could be considered as having been elected a representative of a district which had no existence. Any recanvass of the votes in such a case would be absolutely fruitless, and Shellabarger could obtain no rights under such a recanvass; and a writ of mandamus will never be allowed where it can accomplish nothing, or where under it the applicant can obtain no benefit. But if only the act or omission of leaving Holton out of the district would be void, and if the district with Holton in it is valid, then the board of canvassers did its exact duty, and Kline is elected. No one has any right to claim an election under the apportionment law of 1886, for that law was absolutely repealed by an express provision of the statute when the apportionment law of 1891 took effect. But even if it was not repealed, and if it were still in force, and if Jackson county is still the old 43d representative district, still Shellabarger could not claim to be elected under that apportionment, for he did not receive a majority or even a plurality of all the votes cast in Jackson county for representative. Each of two others received a higher number of votes than he did, to wit, the aforesaid Kline in the 38th district, and J. E. Pomeroy in the 39th district. Kline received the highest number of votes for representative of any person in Jackson county.
But aside and independent of all the foregoing, Shellabarger has no right to a writ of mandamus. The allowance of a writ of mandamus is largely within the discretJon of the court, and it is never allowed or issued where it will work injustice and wrong. Courts never lend their aid by mandamus to perpetrate an injustice or a wrong, and it would certainly be a great injustice, a great wrong, indeed a great outrage, to disfranchise the voters of the city of Holton, and to allow such a small voting district, as the district without Holton would be, surrounded by populous districts, to elect a representative. This injustice, however, is, in effect, just what is asked for in the present case. It therefore follows, in any view we may take of the case, that Shellabarger is not elected; and whether the city of Holton is in or out of the 38th representative district, Shellabarger can have no possible interest in a recanvass. If the city of Holton is in the district, either because the legislature intended that it should be in, or because the legislature, in creating the district, and in surrounding Holton, and including it within the boundaries of the district, and without otherwise providing for Holton, could not legally leave Holton out of the district, still Kline, and not Shellabarger was elected. If, by leaving the city of Holton out of all districts, the 38th district is void, then still Shellabarger could not be considered as elected, and would have no interest in the result of this action. If the old apportionment of 1886 is still in force and governs, then Kline is elected, and not Shellabarger; and a party having no interest in the result of an action cannot maintain the action.
The writ of mandamus will be refused.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This suit was brought upon a written instrument that reads:
“Wichita, Kas., March 8, 1887.—For value received, upon demand, after the performance of the condition hereinafter mentioned, I promise to pay to the order of the Judson University $1,000, in payments as follows: The condition of the above agreement is, that if the trustees of the Judson University, of Wichita, shall, within 30 days from the 7th day of March, 1887, by a formal resolution, permanently locate the buildings of said university, which are to cost not less than $100,000, upon the following-described tract of land, situated in Sedgwick county, Kansas, to wit, lot 1, section 4, township 28, range 1 east 6 P. M., then this agreement to remain in full force and effect; otherwise, to be null and void.
[Signed] Clark Kink aid.”
The petition alleges compliance and performance by the university, payment by Kinkaid of $400 on May 18, 1887, and demand for the balance. The answer admits the execution of the written instrument; and, secondly, alleges that the consideration for the promise sued on was an agreement on the part of the university to locate its buildings on the land described, to cost not less than $100,000; but that the plaintiff did not perform said condition, but on the contrary had abandoned all work on the buildings. The third defense is, that at the time of the execution of the written instrument sued on, the plaintiff agreed to execute a good and sufficient bond in the sum of $100,000, as security for the faithful performance of its agreement, and had failed to do so; and by such failure there was no consideration for his promise. The fourth defense is, that he was induced to execute the written instrument by the false representations of the plaintiff, its officers, directors, and agents. These representations were that the plaintiff was possessed of a fund of $100,000, and had on hand a sufficient sum of money to erect the buildings, etc. The reply was a general denial of new matter. At the trial, the court sustained a demurrer to the evidence of the university, and dismissed the case, at the costs of the plaintiff, and overruled a motion for a new trial.
The principal question, and the controlling one, is the proper construction of the written instrument sued on, the trial court holding that the words “ which are to cost not less than $100,000” contain a condition that had to be performed before a recovery could be had on the written instrument. It seems plain, both from judicial authority and from the conduct of the parties, that the words in the written subscription paper,- to wit, “ which are to cost not less than $100,000,” are a mere stipulation, rather than a condition precedent to be performed by the university before payment of the sum subscribed can be enforced. The controlling condition with Kinkaid was the location on the particular land described; the other words are descriptive of the building. This is evident by the language used. The written instrument states “the condition of the above agreement is, that the trustees shall, within 30 days from the 7th day of March, 1887, by a formal resolution, permanently locate the buildings of said university upon lot 1,” etc. This-expresses but a single condition. The only condition precedent to payment was location, the other words being a statement of the cost of the buildings to be erected. The condition was to be performed within 30 days, and no time was fixed within which the construction of buildings was to be commenced or’ completed. Within 30 days from the subscription, the location was formally made, by resolution. On the 18th day of May, 1887, Kink aid paid $400 on his subscription, and by this act plainly indicated that the construction of the buildings was not regarded by him as a condition precedent to payment. This case is similar to the cases of Swartwout v. Railroad Co., 24 Mich. 404; Chamberlain v. Railroad Co., 15 Ohio St. 242; Railroad Co. v. Sherman, 8 R. I. 564.
Another cause of reversal exists in the exclusion of evidence offered by the university tending to show the payment of the part of the subscription and the promise to pay the balance when called for, as this payment and promise plainly indicate the construction placed upon the written instrument by the defendant in error.
It was error in the court to sustain the demurrer to the evidence of the plaintiff below.%, We recommend that the judgment be reversed, and a newitrialjgranted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action against a railroad company for killing two colts valued at $150. It was alleged in the bill of particulars that, at the place —
“ Where the colts came upon said railroad, and where they were so run over and killed, said railroad was not then inclosed with a good and lawful fence to prevent animals from being on said road, said places being in Osage township, in in said Bourbon county, the fence on each side of said places not being then a lawful and sufficient fence, and the alleged cattle guards nearest said places then being wholly insufficient to keep said colts or other animals from being on said road; that, by said killing of said colts, plaintiff was and is damaged in the sum of $150; that more than 30 days prior to' bringing this suit plaintiff made demand upon defendant for the payment of the full value of said colts and the damages so sustained, which payment the defendant has ever since failed and refused to make.”
The case was first tried before a justice of the peace, and appealed to the district court, where it was again tried, and a verdict rendered in favor of the plaintiff for $203.50. The railroad company brings the case here. No question is raised but that the animals were killed about the time and near the place alleged.
The point is made that the decision of this case must turn upon the question of fact as to where the animals were struck and killed — if upon the highway, the judgment of the district court should be reversed; if upon the railroad right-of- way, outside of the crossing, and the animals got on the right-of-way by reason of not being properly inclosed, the judgment should be affirmed. The defect, if any, in the inclosure of the right-of-way was in the cattle guard. There was a highway 40 feet wide over the railroad. One of the colts was found 60 feet north of the cattle guard, on the right-of-way, and the head and shoulders of the other were located 160 feet north of the crossing. The remaining portion of the animal was found 690 feet north of the cattle-guard, on the right-of-way. It seems that the slats which formed a part of the cattle guard were from 3-J to 8 inches apart; that the pit underneath was only from 10 to 12 inches deep.
The plaintiff testified that he saw tracks of colts down in the cattle guard; that there were marks on the north side, but he could not tell just what they were. Another witness testified that he saw some tracks in the cattle guard going north ; that on the other side he saw what appeared to be a track coming upon the north side and inside the right-of-way. A third witness swore that he saw one track made by a colt or small horse’s foot in the cattle guard the morning the colts were found killed. The engineer testified that he was going north with a heavy freight train, and reached the crossing about 8 o’clock in the evening, the train running at the rate of 15 miles an hour; that it was dark, and, just before he reached the crossing in question, two horses ran across from east to west in front.of the engine; that he saw one horse down in the cattle guard under the pilot; that when the engine reached the crossing, he saw a horse ahead of the engine just before the engine knocked it down. He saw only one horse; that he first saw the horses 40 feet from the crossing. The fireman did not see the animals. This accident occurred about the 26th day of November, 1888.
We are free to say that the evidence in this case is not clear as to where the animals were struck and killed. There were no special findings. The court instructed the jury that if the animals killed were struck by the engine and cars anywhere upon the highway they should find for the defendant. The testimony was all submitted to the jury under proper instructions from the court. There was some evidence to support the verdict returned by the jury. This court cannot weigh and determine the preponderance of evidence as it is presented here upon paper. This court has often said that where there is some evidence to sustain the verdict of the jury, and the verdict has been approved by the trial court, the findings of the jury will be held conclusive in the supreme court, although there' may be a conflict of evidence and the preponderance thereof may seem to be against the verdict. (Jones v. Inness, 32 Kas. 181.)
The point is made by the plaintiff in error that there is no evidence to fix the liability of the railroad company for the alleged defect in the cattle guard; that while there is evidence tending to show that on the morning after the colts were killed there was only a depth of from 10 to 12 inches below the surface, there is nothing to show how long it had been in that condition or that it was in that condition when the colts were killed. The accident occurred about 8 o’clock the night before; so, it was so near the time that we would be safe in assuming that there had been no change. It seems from the evidence of one witness that there had been some trouble about this cattle guard before the accident in question, and he went to the section boss and called his attention to the condition of the guards; that they were so close together that the plaintiff’s horses walked over it. He also went to the station agent about it. The section boss afterwards and before the accident fixed the cattle guard by taking out some of the rails and separated those that remained, so that the feet of the animals attempting to pass over it would go down to the ground. We think there was some evidence to establish the fact that the cattle guard was defective, and that employés of the railroad company had had their attention called to such defects. The law imposes the duty upon a railroad company to see that proper cattle guards exist wherever they are required to be constructed. (Mo. Pac. Rly. Co. v. Morrow, 32 Kas. 217.) There was sufficient evidence, we think, to show that the railroad company had some notice as to the defective condition of the cattle guard. It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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105,
22,
79,
49,
-113,
-29,
46,
28,
-29,
105,
46,
123,
-83,
-48,
113,
-78,
7,
63,
2,
-79,
70,
-100,
1,
-56,
58,
-112,
53,
1,
-8,
115,
-74,
-124,
116,
9,
-119,
12,
-26,
103,
33,
28,
-51,
100,
-120,
15,
-34,
-113,
-89,
-128,
17,
3,
41,
-106,
-99,
80,
86,
7,
126,
-25,
69,
89,
56,
-123,
-50,
-78,
39,
-17,
44,
-106,
39,
-21,
-91,
18,
113,
-49,
-30,
93,
69,
60,
-101,
-113,
-99
] |
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