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Opinion by
Strang, C.:
Action on contract for $400, alleged by the plaintiff to be due and owing to him from the defendant as a commission on the sale of real estate. The plaintiff introduced his evidence and rested. The defendant demurred to the evidence, and the demurrer was sustained by the court. The plaintiff brings the case to this court, and alleges that the trial court erred in sustaining the demurrer to his evidence; and that is the only question before .this court. The plaintiff’s evidence showed that he had the farm of the defendant on his books for sale; that Jacob Dold wanted to buy a farm, and Neiderlander and one of his men showed Dold several farms for sale, and among others they took him to see the Starr farm. Starr and wife were not at home, but their sons showed the farm, and, as Neiderlander and Dold were returning to Wichita, they met Starr and wife. Neiderlander informed them he had been showing Dold their farm, and Starr said he would call at Neiderlander’s office next day and see them. When he called next day, they talkéd the matter over. Starr at first wanted $16,000 for the farm, but finally agreed to-take $15,000, and also agreed to pay Neiderlander $400 commission for selling the land at $15,000. A few days after a contract was drawn up and' signed by Dold, and also by Starr and wife, which embodied the terms and conditions of the agreement between the parties when they had talked the matter over. This contract provided for the payment of $2,000 cash, the assumption of an incumbrance on the land, and the giving of two notes, for $3,000 each, to be secured by mortgage on the land. After Starr and wife had signed the contract, they learned that the notes and mortgages and the $2,000 in cash had not yet jbeen received by Neiderlander. Dold lived in Buffalo, N. Y., and the notes áhd mortgages had been sent there for execution, and had not yet returned. The $2,000 was to be turned over to Neiderlander by Dold’s son, who lived in Wichita, and was doing business there in connection with his father, whenever Neiderlander requested it. Dold had directed his son to pay it over when called on for it. When Starr and wife found the notes and mortgages and the $2,000 were not in Neiderlander’s hands, they asked to have their names stricken off of the contract, and that was done. But they said they would carry out the contract as agreed upon, as soon as the notes and mortgages and money came. When the notes and mortgages reached Neiderlander, he notified Starr through the mail, but heard nothing from him. He then saw Starr and told him the papers had come and they were ready to close up the contract. Starr then said he did not think he wanted to do so. Neiderlander never had the money in his hands. To prove that the money was ready, he put young Dold on the stand. This young man’s evidence was very badly confused, and quite indefinite, and the court undoubtedly sustained the demurrer to the evidence on the ground that the plaintiff failed to show that Dold was at any time ready to comply with the terms and conditions of the contract.
There is but one question in this case: Did the trial court err in sustaining the demurrer to the evidence? We have examined the evidence very carefully, because somewhat in doubt as to the correctness of the ruling of the court below. We have finally reached the conclusion that we are not required, by the record in this case, to reverse the action of the trial court. By the terms of any agreement shown by the record for the sale of the land upon which the plaintiff bases his claim for commission, $2,000 of the purchase money was to be cash in hand. The contract of sale for said land prepared by plaintiff not only provided that $2,000 of the purchase price should be cash in hand, but the receipt of said $2,000 was acknowledged in the contract. But when the contract was signed by the Starrs, it was learned that the plaintiff did not have the $2,000 in cash to pay them, because of which, and the fact that the notes for the deferred payments and mortgages were not ready to be put in escrow, their names were scratched off of the contract; and though the plaintiff afterward received the notes and mortgages, and then notified the defendant that the papers had come, and he was ready to complete the business of the sale, yet the evidence shows that he did not at that time have the $2,000 in cash ready to pay over to Starr, and that in fact he never did have said money in his possession ready to pay over to Starr.
The plaintiff’s notice to the defendant, that he was ready to conclude the deal, was unavailing so far as binding Starr is concerned, for the reason that the evidence shows that the plaintiff was not ready to close the trade, because he was not in possession of the money to make the cash payment. The plaintiff put the young man Dold on the stand to show ability on the part of his father, the vendee in the contract with, the Starrs, to pay the purchase money. It might be said that such evidence was not very material, for though Dold, sr., was able to pay for the land as per contract, he was never exactly ready to pay, because his money was never turned over to the plaintiff for the purpose of making the payment. But, if it were material, the young man’s evidence was so confused, indefinite, and contradictory, that we would not feel like reversing the judgment of the court below on account of it.
We therefore recommend 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
Horton, C. J.:
These cases were tried together, and the facts in each are substantially the same. The plaintiffs below (plaintiffs in error) were the heirs at law of Michael Neenan. Martin Walter was the original patentee from the United States of the northeast quarter of section 6, township 5, range 19, in Atchison county. On the 25th day of September, 1858, he deeded it to Michael Neenan. The latter lived at St. Joseph, Mo., until his death, on the 29th of March, 1885, with the exception of one year of residence in Colorado. St. Joseph is about 22 miles from Atchison. Neenan was a contractor, and a man of property. White claims possession and ownership of the east half, and Black the west half, of the land deeded to Neenan, under two several tax deeds; one dated May 16, 1865, and filed for record in.the office of the register of deeds in Atchison' county on May 18, 1865. This deed recited a consideration of $39.70, for the taxes, interest and costs of 1859, 1860, 1861, 1862, 1863, and 1864. It showed a tax sale made on May 11, 1863. The other tax deed was dated August 8, 1873, aud filed for record on that date. It recited a tax sale on the first Tuesday of May, 1869, and a consideration of $89.79, for the taxes, interest and costs of 1868, 1869, 1870, and 1871.
It appears from the findings of the trial court that Neenan, after obtaining his deed, never paid any attention to the land, or paid any taxes thereon. His heirs commenced this action in the court below on August 25, 1888, to recover possession of the land deeded to him. The defendants and their grantors have paid the taxes to the commencement of the action. The first tax deed was of record over 23 years before the action was commenced, and the last tax deed of record over 15 years. Jacob Frommer, one of the holders under the tax deeds, took possession of the land in the spring of 1874, and made arrangements to have the grass upon the land cut, and the timber thereon properly taken care of. On the 20th day of May, 1878, Frommer conveyed the land to Elling O. Twidt. He at once occupied the same, building a house, and fencing and breaking about 52 acres of the east 80 acres. On the ,11th of October, 1880, Elling O. Twidt and wife, by warranty deed, conveyed to White the east half of the land; and White went into possession thereunder, and has continued in actual possession thereof ever since. On the 10th of December, 1880, Elling O. Twidt conveyed the west 80 acres to Franklin, and he conveyed to Black. They each took possession under their respective conveyances, and after Black obtained his title he continued to occupy the west half.
A great many objections are presented to the tax deed of 1865 ; but with our view of the case it is unnecessary to refer to them.
The principal objection to the tax deed of 1873 is, that it does not show an assignment of the tax-sale certificate from Samuel Gard, the holder and owner thereof, to P. L. Hubbard, the party to whom the deed was issued. Further, that it fails to show that Samuel Gard was dead, or any order of the probate court permitting an assignment of the certificate to be made. The tax deed recites as follows:
“And whereas, the said J. J. Locker did, on the 10th day of June, A. D. 1869, duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to Sami. Gard, of the county of Atchison and state of Kansas; and whereas, Hugh D. Fisher, administrator, did, on the 17th day of December, A. D. 1869, duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to P. L. Hubbard, of the county of Atchison and state of Kansas.”
The defendants, upon the trial, showed by the records of the probate court of Atchison county the death ofiGard prior to the 17th, of December, 1869, and the appointment and qualification of Fisher as his administrator. No heir or personal representative of Gard, deceased, objected to the transfer of the tax certificate to Hubbard, which was obtained by Gard in his lifetime from Locker. It was decided in Sanger v. Rice, 43 Kas. 580, that —
“Ordinarily, a tax deed should be strictly construed; but where a tax deed has been of record for more than five years, and the claimant under it has been in the actual possession of the property conveyed by it during all that time, making improvements thereon, and no person claiming to have any interest in the property, at any time during the period that elapsed from the time when the taxes were first levied upon the property till after more than five years had elapsed from the time of the recording of the tax deed, has ever made any claim to the property as against the claimant under the tax deed, . . . and where such tax deed, if it were so construed as to make the facts therein stated correspond precisely with the actual facts, would necessarily be held to be valid, such tax deed should be liberally construed, for the purpose of upholding and enforcing it.”
Applying the law thus stated to this case, we think that the tax deed of 1873 cannot be held invalid or void, as it was of record for more than 15 years, and the defendants or their grantors have been in possession for over 14 years. The equities of the'case are all with the defendants, and if in any ease, after the tax deed is upon record for more than five years, a liberal construction should prevail, the one of 1873 should certainly be entitled to such a construction.
The judgments in both cases will be affirmed.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action to set aside a deed made by Newell Hill to his brother Theron S. Hill, and dated June 4, 1887, and recorded the November following, to the southeast quarter of section 14, in township 27, range 17, in Neosho county, alleged to be worth, at a reasonable valuation, $4,00.0.
The plaintiffs below, Orvilla Miller and Dora MeCowaD, were daughters of Newell Hill; Alice Hill was the widow of his sod, Cicero Hill; and John was a grandson. Newell Hill, with his wife and children, formerly lived in Richwood, Ohio, where they owned a home, which they sold, and afterward moved to the state of Illinois, where they purchased an 80-acre tract of land, taking the title in the name of the wife. The family moved upon this land, and improved it. The wife died in March, 1875. The farm was sold, the children joining in the deed with the father. The family came to Kansas, and the land in controversy was purchaséd, and the title was taken in the name of the father, Newell Hill. The family in Kansas consisted of the father, his son, Cicero, and daughters, Dora and Nora. Orvilla had married and remained in Illinois. A house was built upon the land purchased, and the place was otherwise improved. In January, 1878, the son and daughter were married; the former, to Alice Hill, one of the defendants in error; the latter, to John McCowan. The daughter went with her husband, and the son and wife made their home with the father. The other daughter was married in March, 1882, to a man by the name of North, and went back to Illinois to live, and died there in 1883. The son and wife lived upon the farm with the father until February 14,1887, when the former died. Of the marriage there was born one son, John, the minor defendant in error in this case.
A short time after the son’s death, Newell Hill went to his neighbor and physician and requested him to write to his younger brother, the plaintiff in error, who lived near The Dalles, in Oregon, where he was practicing medicine, to come to him and take charge of his property. This letter was dated the 17th day of February, 1887. The brother came in response to the communication. It is claimed by the plaintiff in error that he attempted to reconcile certain contentions which seemed to have arisen between Newell upon the one part and Alice and Dora upon the other, so that proper care could be given to his brother and he could return to his home in Oregon, but that he was unsuccessful; that Newell finally proposed to Theron that he would deed him the land in controversy upon the condition that Theron would take care of him as long as he should live, see him decently buried, and assume a certain mortgage upon the place for $400 and an indebtedness of about $400 to another brother. It is claimed that, in compliance with this arrangement, Newell Hill deeded the land to his brother Theron S. Hill, on the 4th day of June, 1887. Newell died the December following, and his heirs brought this action to set aside such deed.
Certain questions of fact were submitted to a jury. The court reserved all other issues, to be determined by it. The jury returned the following questions and answers, submitted at the request of the defendant below:
“1. Did Newell Hill execute the deed to the premises in controversy with a full understanding of what he was doing at the time of such execution? Ans. No.
“2. At the time of the execution of said deed, was Newell Hill in possession of the ordinary mental faculties usual to men of his age? A. No.
“3. At the time of the execution of said deed, was said Newell Hill suffering from any disease of the mind ? A. He was infirm, and in his dotage.
“4. If the jury answer the last question by ‘Yes/ state what such disease was, and how long prior to said time he had been suffering from it. A. He suffered a number of years from rheumatism and dyspepsia.
“5. Was said Newell Hill forced to execute said deed to T. S. Hill ? A. Yes; by the stronger mind over the weak.
“6. If the jury answer the last question by ‘Yes/ state when and what kind of force was used. A. He was over-persuaded, and undue appliances resorted to, to obtain the same when executing deed.
“7. Did said Newell Hill, after the execution of said deed, speak about it to one or more persons? A. No.
“8. At such times, was he in possession of his ordinary mental faculties? A. For a man of his age and disease, we do not believe he was.”
The court submitted the following questions to the jury of its own motion:
“ Q,. 1. Did Newell Hill, at the time he delivered the deed for the land in controversy to TheronS. Hill, possess sufficient mental capacity to enable him to deliver the deed in question, with an intelligent understanding by him, said Newell Hill, of the nature and effect of the transaction? A. No.
“ Q,. 2. Did Theron S. Hill obtain the deed for the land in controversy from Newell by the use of any undue influence? A. Yes.”
I. The first error in which complaint is made is, that the court should have sustained the demurrer of the defendant to the evidence of the plaintiffs. The evidence in this case is very voluminous. The evidence was conflicting. It was properly a court case, but the judge saw fit to submit certain questions of fact to a jury. We have read all of the evidence in the record, and cannot say that the plaintiffs failed to prove the allegations of their petition.
II. The second assignment of error is, that the court allowed the plaintiffs, after they had rested their case and after the defendant had introduced his evidence and excused his witnesses, to recall a witness for the purpose of cross-examination ; that one of the attorneys for the plaintiffs made an unwarranted and false statement in regard to the hostility of such witness. As to the order of the trial, the examination of witnesses, and the reception of further evidence, all were within the sound judicial discretion of the court trying the case, and we are not prepared to say, from an examination of the record, that the court abused its discretion.
The statement of counsel was to the effect that the plaintiffs had been misled; that the witness was hostile, and at another term of court had gone into the Indian Territory at the solicitation of other parties. These remarks were made to the court as reason why the plaintiffs should be permitted to recall the witness. We fail to see wherein the rights of the plaintiff in error were prejudiced by this action of the court.
III. The plaintiff in error complains that the evidence did not warrant the court in giving instructions 6 and 7, which read as follows:
“6. The evidence shows that Newell Hill, at the time of the alleged delivery of the deed, was a man well advanced in years, being of the age of 72 or 73, or thereabouts. Theron S. Hill was the brother of Newell Hill, and at the time of the transaction in question was probably, as shown by the evidence, about 54 years old. The evidence was also to the effect that Theron was a physician, and that, for some time prior to his obtaining the deed in question, he was living in the same house with his brother, the only other occupants of the house being a young man and his wife, who were tenants on the premises; that he (Theron) was engaged in taking care of his brother, nursing him in his sickness and administering to his wants. Evidence has been introduced tending to show that Theron acted to some extent, in the care of his brother, in his professional capacity as a physician, but to what extent and how much you will ascertain from the evidence. The evidence further shows that Newell Hill was in poor health. The answer of the defendant, Theron Hill, alleges, and the plaintiffs admit, that at the time of the death of Cicero Hill, which was in February, 1887, the said Newell Hill was aged, infirm, and almost helpless; and there is no evidence that he substantially improved any for the better from that time until his death.
“7. On such evidence in the case as is undisputed, and which I indicated in the preceding instruction, the relation existing between the two brothers at the time Theron obtained the deed in question, is what in the law is called a ‘fiduciary’ or ‘confidential’ relation; and the law will require of Theron S. Hill the utmost degree of good faith in the transaction between him and Newell Hill, which resulted in Theron S. Hill obtaining the deed; and where the relations existed between the two brothers, as I have indicated in this and the preceding instruction, the law presumes, in the first instance, and in the absence of evidence to the contrary, that a brother occupying the relation to another brother that Theron occupied to Newell possessed that superiority and influence over Newell, and Newell reposed that degree of con fidence and dependence in and upon Theron, which is the natural result of such relation; and under the circumstances, when such a condition of things is shown, the law shifts the burden of proof upon Theron S. Hill to show affirmatively, as far as practicable, that the obtaining of the deed in question was done without fraud, artifice, or other undue means, and that he gave a just and adequate consideration for the said deed. As to the consideration that was given, the defendant, Theron, alleges, in substance, that it was as follows: That he found his brother in a condition requiring care and attention, of which he was destitute; that said Theron abandoned his business in Oregon, and promised and agreed with Newell Hill to care for his said brother and maintain and support hita as long as he lived, and see him decently buried after his death, and to pay certain debts of the said Newell Hill. It was competent in law for the parties to make this contract; and if you find that such a contract was made without fraud or undue means used by T. S. Hill to effect it, and that the consideration received by Newell Hill, under all the surrounding circumstances, was just and adequate, then the deed to Theron Hill is valid, and should stand.”
The answer of the defendant below alleged that his brother, at the time of the death of his son, Cicero, was aged, infirm, and almost helpless; that, when he came to him, he was old and infirm. These admitted facts, taken in connection with the evidence, justified the court in giving these instructions. Complaint is made as to other instructions, but we think they are not subject to the objections urged by the plaintiff in error. The law was properly stated, in our opinion, in the instructions the court gave.
IV. It is next contended that the court erred in refusing to give certain instructions requested by the defendant. Complaint is made especially in the refusal of the court to give the following instruction:
“To be undue, the influence exerted must be equivalent to moral coercion. It is not enough to show that the grantor, Newell Hill, made a different disposition of his property than he intended. One may yield to the persuasion of affection or attachment, and allow such sway to be exerted over his mind, and yet the law does not regard such influence as undue. He must have been constrained to do what was against his will; otherwise, the law will not interfere.”
We do not think the court erred in refusing this and the other instructions requested. The court submitted certain facts to the jury under proper instructions. The court, as a chancellor, reserved to itself the decision of the case. The rule as to mental weakness has been stated:
“ It is well settled that there may be a condition of extreme mental weakness and loss of memory, either congenital or resulting from old age, sickness, or other cause, and not being either idiocy or lunacy, which will, without any other incidents or accompanying circumstances, of itself, destroy the person’s testamentary capacity, and, a fortiori, be ground for defeating or setting aside his agreements and conveyances. It is equally certain that mere weak-mindedness, whether natural or produced by old age, sickness, or other infirmity, unaccompanied by any other inequitable incidents, if the person has sufficient intelligence to understand the nature of the transaction, and is left to act upon his own free will, is not a sufficient ground to defeat the enforcement of an executory contract or to set aside an executed agreement or conveyance. If, as is frequently, if not generally, the case, the mental weakness and failure of memory are accompanied by other inequitable incidents, and are taken undue advantage of through their means, equity not only may, but will, interpose with defensive or affirmative relief. Finally, in a case of real mental weakness, a presumption arises against the validity of the transaction, and the burden of proof rests upon the party claiming the benefit of the conveyance or contract to show its perfect fairness and the capacity of the other party.” (Pom. Eq. Jur., § 947.)
“ The doctrine of equity concerning undue influence is very broad, and is based on principles of the highest morality. It reaches every case, and grants relief where influence is acquired and abused, or where confidence is reposed and betrayed. It is especially active and searching in dealing with gifts, but is applied, when necessary, to conveyances, contracts, executory and executed, and wills.” Id., §951.
The rule was stated in the case of Haydock v. Haydock, 34 N. J. Eq. 574:
“I take the rule to be settled, that where a person, enfeebled in mind by disease or old age, is so placed as to be likely to be subject to the influence of another, and makes a voluntary disposition of that property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee.” See, also, Paddock v. Pulsifer, 43 Kas. 718, and authorities there cited.
V. The other errors complained of are, that the court should have set aside the special findings of the jury, and granted the plaintiff in error a new trial. Substantially the same questions are raised by these assignments as those already considered. It will be observed that eight questions were submitted at the request of the defendant, and all were answered by the jury. If there was no evidence bearing upon these questions, why should the defendant have asked the court to submit them to the jury?
An examination of the entire record in this case satisfies us that the district court stated the law correctly to the jury in submitting the special questions of fact, and that there is evidence to support the findings of the jury and the judgment of the court.
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
Johnston, J.:
Otto Meyer brought this action against the Leavenworth, Northern & Southern Railway Company, to recover $5,000 as damages for the appropriation, without license or consent or the giving of compensation therefor, of a strip of land through his farm, for the construction and operation of a railroad. The railway company answered that it had obtained an easement through the land by formal and lawful condemnation proceedings. On the trial, it was shown that the company built a railroad through Meyer’s land, and evidence was submitted as to the nature and extent of the injury caused to the land by the construction of the road. The railway company then offered in evidence the report of the proceedings of the condemnation commissioners, but, upon objection, it was held that the report was void upon its face, and therefore inadmissible. The trial resulted in a verdict and judgment in favor of Meyer, and the company asks a review of the ruling excluding the report of the condemnation commissioners.
It appears from the report that, upon application made to the judge of the district court of Leavenworth county, commissioners were duly appointed to lay off a route for a railroad through the county of Leavenworth, and that legal notice was given by the railroad company and by the commissioners of the time and place when they would proceed with the work of condemnation. The notice provided that the commissioners would “ meet at the crossing of Delaware street and Broadway, in the city of Leavenworth, on the 8th day of November, 1886, at 10 o’clock a. m., and proceed with the work above specified from that point.” It recites that they did meet at the time and place mentioned in the notice, and proceeded with their work, and that after several adjournments the report of their proceedings was filed with the county clerk on the 18th day of December, 1886. The objection made to the report is, that it shows that the commissioners did not meet and proceed with their work at the time and from the place first mentioned in the notice; that, instead of beginning on November 8, 1886, they began on November 22, 1886, and that no legal adjournment from November 8, or any notice of a change of time and place of beginning was given to Meyer. The report shows, as has been stated, the appointment and qualification of the commissioners, the giving of notice, and then proceeds as follows:
“That at the time and place mentioned in said notice aforesaid, we met and proceeded to lay off such route, side tracks, etc., for such distance through said county as was desired, and of such width within the limits aforesaid, and upon such location as was desired by the said company, and shown by map and profile of said railroad filed in the office of the county clerk of said county, which is hereby referred to for greater certainty, having the same carefully surveyed, and ascertaining carefully the quantity of land necessary for such purpose out of each quarter section, or other lot of land through which said route, side tracks, etc., is located, and did appraise the value of such portion of any such quarter section or other lot of land, and assess the damage thereto; and when we ascertained that such portion of such quarter section or lot belonged to different owners, we appraised the value and assessed the damage of each owner’s interest, all of which proceedings are fully shown by a schedule attached to this report and made part hereof, and marked ‘Exhibit A.’ AU of which proceedings were had on the day named, and at meetings held from time to time, upon adjournments according to law.”
The schedule or exhibit referred to follows, and it first gives a description of several tracts of land, with the quantity taken from each, the value of the same, and the damages to the remainder, in the usual form, and then proceeds:
“In pursuance of adjournment, as shown by minutes of the report hereto attached, M. L. Hacker, A. B. Havens, and Clement F. Jaggard, commissioners appointed by Robert Crozier, judge of the district court of Leavenworth county, Kansas, did meet on the 22d day of November, A. D. 1886, at 9 o’clock A. m., at the office of A. B. Havens, in the city of Leavenworth, to which place we had adjourned as shown by said minutes heretofore attached, and we proceeded to the farm of Otto Meyer, in section 36, in town 10, of range 22, Leavenworth county, Kansas, and laid off a route for said above-described railroad track, etc., and appraised the land taken therefor, and such other duties as required by law, as shown by the appraisement and assessment of damages in the name of owners, as far as we have been able to ascertain, commencing at section 36, town 10, range 22, and ending in section 24, town 10, range 22.”
It is then recited that, in pursuance of adjournment, they met again on the 11th of December, at a certain point to which they had adjourned, and proceeded with their work; and after giving a long list of lands which had been valued and appraised, it is stated that the board met again on the 13th of December, in pursuance of adjournment, and again proceeded with their work; and after disposing of a number of tracts, it is recited that the board met on December 14, 1886, pursuant to adjournment, and proceeded with their work; and after disposing of a large number of lands and lots, it is recited that they adjourned to December 15, to meet at a certain place, and finding that there was no more work to do, another adjournment was taken until December 16, 1886, when they proceeded to make the report of their doings, and continuing until December 17, 1886, when it was completed. It was filed with the county clerk on the day following. As will be seen, the report does not affirmatively show an illegal adjournment, nor an abandonment or loss of jurisdiction by the commissioners. Although somewhat general in statement, it sets forth that they met at the time and place named in the notice, and proceeded to lay out the route; and further, that they continued to meet from time to time, upon adjournment made according to law, as shown by an attached exhibit. It is true the exhibit makes no mention of the first meeting, and, as the one first mentioned in the exhibit was on November 22, it is contended that there was no adjournment from November 8, and actually no meeting held for the performance of their duties until November 22. All of the report must be considered together and given, a reasonable interpretation. So considered, it shows that they met at the proper time and place, and thus acquired jurisdiction as a tribunal. It further shows that an adjournment was had; and while it does not state in detail that there was an adjournment from the 8th until the 22d of November, it does show that the adjournment was a lawful one, and that when they reconvened on the 22d it was in pursuance of a previous adjournment and at the place to which they had adjourned.
When the commissioners first met they acquired jurisdiction, and, having legally commenced their proceedings, they were at liberty to adjourn from time to time and from place' to place, as the circumstances might require. It is not necessary that a new notice should be given for the adjourned meeting. A public announcement of an adjournment to a future time and place is sufficient, and all persons legally before the commissioners are bound to take notice of such adjournment. (Mills, Em. Dom., §229; Lewis, Em. Lom., §418.) If the commissioners had adjourned to an indefinite time, or subject to the call of one of their number, as was the case in M. K. & C. Rly. Co. v. Town Co., 26 Kas. 503, they would have lost jurisdiction, and a new notice would have been necessary before they could have further proceeded with their work. Such an adjournment is illegal. But the report in this case says that the adjournments were legal, and we cannot presume to the contrary. It is true, as contended, that the commissioners must conform substantially with the statute, so that every remedy conferred will be available to the landowners. Every material direction of the statute must be strictly pursued in order that their proceedings shall be effective and binding. While the statute specifically prescribes their duties and what the report should embody, it does not provide that it shall contain everything with regard to adjournments. It directs them to lay off the route for the distance and of the width and location desired; to ascertain carefully the quantity of land necessary to be taken out of each quarter section or lot of land for such purposes, and appraise the value of that and to assess the damages thereto; and where it is found that a portion of the quarter section or lot belongs to different owners, they are to appraise the value and assess the damages of each of such owners’ interest. These several acts, and nothing else, are required to be embodied in a written report and filed in the office of the county clerk. (Gen. Stat. of 1889, ¶ 1391.) They are not required to make this report until their work is complete, and as the statute makes no mention that there shall be a record kept of the adjournments, an omission of such a statement will not invalidate the report. While the commissioners are required to strictly pursue the statutory requirements, the report made by them should be given a reasonable construction. (Hunt v. Smith, 9 Kas. 137; Willis v. Sproule, 13 id. 257.) It would be an unreasonable interpretation of the report to hold that there was no meeting on the 8th of November, or that there was no adjournment to the 22d of November. There was an adjournment; it is stated that it was a legal adjournment; and the meeting on the 22d was held in pursuance of the adjournment. The report does not show that the adjournment was without notice, and in the absence of such a showing we have no right to infer that the commissioners acted wrongfully or illegally. Even if the report was silent as to the legality of the adjournments, it would be presumed that they were regular. In Lewis on Eminent Domain, § 522, it is said that “it will be presumed, however, that the tribunal has proceeded rightly and according to the statute, until the contrary appears.” (See, also, Mills, Em. Dom., §243; 19 Am. & Eng. Encyc. of Law, 42.)
We think the report should have been admitted in evidence.
The judgment of the district court will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below brought by Robert Patton against William Wells and Robert Morrison to recover $3,300 for an alleged conspiracy by which Patton was cheated and defrauded. On the 12th day of February, 1889, the petition was filed in the district court of Brown county. On the same day, a summons was issued and served on Morrison, in Brown county; the defendant Wells not being found. On the 20th day of February, 1889, another summons was issued out of the Brown county court, and served on Wells in Norton county, this state, on the 23d day of February. On the 2d day of March, 1889, another summons was issued out of the Brown county court, and served on Wells in that county, and these were the summonses issued in the action. There was an amended petition filed on the 26th day of March, 1889. Wells filed his answer, which was the only appearance made by him up to that time. In this answer he set up as a first defense that he was wrongfully and illegally brought into court; that the court had no jurisdiction of the action or his person, because he was a resident of Norton county, and was not a resident of Brown county, and had not been in the latter county for more than a month next preceding the commencement of the action, and that he did not come into Brown county for about two weeks after the action was commenced, and then only for the purpose of consulting with his attorneys about the action; and while in consultation with them he was served with process in Brown county. He set up that Morrison had no interest in the transactions referred to in the petition; that he was made a party to the* action for the purpose of giving the district court of Brown county color of jurisdiction, and that the service of the summons in Norton county was for the purpose of inveigling him into the jurisdiction of the Brown county district court. His second defense was a denial of the allegations of the petition and an answer upon the merits. Morrison filed a general denial. The case came on for trial May 9, 1889, and the jury found a verdict for the plaintiff of $1,475, against Wells, but found a verdict for Morrison, the resident defendant.
In the special questions answered by the jury, they found that Morrison made no false or fraudulent representations to the plaintiff in regard to the value of the land taken by Patton, or of the Bowling notes, or of the land mortgaged to secure them; that at the time Wells was served with process in Brown county he was in consultation with W. 3D. Webb, his attorney, in regard to this action; that at the time he was served with summons, both in Norton and Brown counties, he resided in Norton county, in this state; that when Wells was served with summons in Brown county he had come from Norton county to Brown to prepare to defend this action, in pursuance of the summons served on him in Norton county, and that he came for no other purpose. On the 15th day of May, 1889, after the trial, Wells filed his motion to dismiss the case as to him —
“ On the ground that, as a verdict has been rendered against Patton and in favor of Morrison, the court had no jurisdiction to render judgment, against him, the service of summons being illegal and void, because it was illegally obtained, the service being first made on Morrison, in Brown county, and then on him, Wells, in Norton county, this state, and upon such service he came into Brown county to prepare his defense, and for no other purpose; and while engaged in the preparation of his defense, and while in consultation with his attorney, he was wrongfully and illegally served with process a second time in this case.”
On the same day Wells filed his motion for judgment on the pleadings, evidence, and special findings of fact, for substantially the same reasons. These motions came on to be heard on the 28th day of May, 1889, and were overruled, Wells excepting.
We may assume for the purposes of this case that the service of summons in Brown county upon Wells was fraudulent and an abuse of judicial process. (Van Horn Bros. v. Great Western Mfg. Co., 37 Kas. 523; Townsend v. Smith, 3 N. W. Rep. [Wis.] 439; Chubbuck v. Cleveland, 35 N. W. Rep. [Minn.] 362; Jacobson v. Hosmer, 42 N. W. Rep. [Mich.] 1110; Andrews v. Lembeck, 18 N. E. Rep. [Ohio] 484.) In the latter case it was said:
“That suitors should feel free and safe at all times to attend, within any jurisdiction outside of their own, upon judicial proceedings in which they are concerned, and which requires their presence, without incurring the liability of being picked up and held to answer to some adverse judicial proceedings against them, is so far a rule of public policy that it has received almost universal recognition where the common law is known and administered.”
The serious question in this case is, whether Wells, having answered to the merits, can’’ be heard to say that the trial court had no jurisdiction of his person. Undoubtedly Patton had the right to a jury trial to settle the facts pleaded in the first defense set up in his answer. (Drea v. Carrington, 32 Ohio St. 595.) Under the circumstances of the case, this was the only way that a decision could be had upon the question whether the court in Brown county had jurisdiction over Wells. If Wells had stopped with his plea to the jurisdiction of the court, upon the findings of the jury no judgment could have been rendered against him.
“Before a summons can be rightfully issued from one county to another, the person served with the summons in the county in which the action is brought must have a real and substantial interest in the subject of the actiod, adverse to the plaintiff, and against whom some substantial relief may be obtained; and the action must be rightfully brought in the county in which it is brought, and as against the person served with summons in such county.” (Brenner v. Egly, 23 Kas. 123; Linney v. Thompson, 44 id. 765; Rullman v. Hulse, 32 id. 598; 33 id. 670.)
Perhaps a defense to the merits may be united with a plea to the jurisdiction, but if this is done, the trial court ought to settle the question of jurisdiction before proceeding to try the other issues in the case. If Wells had asked that to be done in this case, then we think we might say that he did not waive anything by answering even to the merits. But this was not done by him. In the case of Christian v. Williams, 35 Mo. App. 297, the answer contained a plea to the jurisdiction of the court and also to the merits, but the question of jurisdiction was disposed of before proceeding to trial on the merits. The court in that case held such practice to be a good one. Such practice might be well adopted in this state. Of course, if the question of jurisdiction can be raised by motion or plea in abatement, that should be done. But if a fraudulent use of the process of the court, and its abuse can only be ascertained upon an answer fully setting forth the facts, the court would haye ample power to settle the question of jurisdiction upon a trial before a jury, prior to the proceeding to try the other issues of the case. It was said in Meixell v. Kirkpatrick, 29 Kas. 683:
“A party who denies the jurisdiction of the court over his person must first present this single question. He may not mingle with his plea to the jurisdiction other pleas which concede jurisdiction, and thereafter insist that there was error in overruling his plea to the jurisdiction. As heretofore stated, the defendant, by his demurrer, raised a number of questions other than those which were jurisdictional, and invoked the-judgment of the court thereon. By such other pleas he submitted himself and his rights to the jurisdiction of the court, and can no longer be heard to say that it had no jurisdiction.” See, also, the cases there cited.
If the jury in this case, upon the trial on the merits, had rendered a verdict for Wells, he would have been entitled to judgment, and Patton could not have raised the question of jurisdiction and thereby dismissed the case. Wells not only filed his plea to the merits, but, without any objection, entered upon a trial involving all the merits of the case. He offered evidence tending to sustain his answer upon the merits; he asked the trial court to instruct the jury on the merits; he submitted to the court various questions involving the merits; he also filed his motion to set aside the verdict and grant a new trial, for reasons pertaining solely to the merits of the case. (See Life Association v. Lemke, 40 Kas. 142; Burdette v. Corgan, 26 id. 104; Packing and Provision Co. v. Casing Co., 34 id. 354.)
Of course, a trial court, in the exercise of a wise judicial discretion, will go very far to set aside any service obtained by gross abuse of judicial process. But a defendant who asks this to bé done should not insist upon the court taking jurisdiction of his person for the purpose of protecting him upon the merits of the case, and, after causing costs to be had in the case upon the merits, then seek to repudiate his submission to the jurisdiction of the court. Inconsistent proceedings are not to be favorably construed. The following cases are referred to as tending to support the theory that Wells did not waive anything by his plea to the jurisdiction and his answer on the merits: Brenner v. Egly, 23 Kas. 123; Townsend v. Smith, 3 N. W. Rep. (Wis.) 439; Chubbuck v. Cleveland, 35 N. W. Rep. (Minn.) 362; Allen v. Miller, 11 Ohio St. 374; Drea v. Carrington, 32 id. 595; Linney v. Thompson, 44 Kas. 765. In Brenner v. Egly, the question of a voluntary appearance was not raised, discussed, or decided. In Townsend v. Smith, the fraudulent service was set aside, when the attorneys for the defendant appeared for the purposes of the motion only. In Chubbuck v. Cleveland, the defendant filed his answer as a plea in abatement, on the ground that the jurisdiction of the court had been procured by fraud. There was no answer on the merits. In Allen v. Miller, although the answer contained a plea to the jurisdiction, and also pleas on the merits, the defendant, wrongfully served, moved the court for dismissal before any trial. His motion was sustained. In Drea v. Carrington, the answer of the defendant contained a plea to the jurisdiction of the court only, not one on the merits. He then filed a motion to dismiss, and the court held that the motion could not be sustained, because the plaintiff was entitled to have a jury determine the question of fact raised by the answer. In Linney v. Thompson, 44 Kas. 765, the decision determined that “the plaintiff had no cause of action to be litigated’or enforced against any person, at any time, in any form, or in any court or jurisdiction.”
Errors are alleged as occurring upon the trial, These concern the admission, the rejection of evidence, and the giving of instructions. We have examined these various errors referred to as well as we could in view of the brief references to many of them. We do not think any material error was committed thereby; none at least sufficient to cause a reversal of the judgment. It is finally insisted that there was no evidence upon which to render a verdict against Wells. We think otherwise.
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
Johnston, J.:
This is a proceeding in mandamus brought originally in this court by O. M. Rice against the board of canvassers and the county clerk of Coffey county. He asks for a writ compelling them to reconvene and recanvass the returns of the township of Avon, Coffey county, for member of the legislature; to correct an alleged error in the first canvass; and to certify and send to the secretary of state a corrected abstract of the votes cast for representative in Coffey county. The case was tried on an application for a peremptory writ, after notice had been given to the defendants.
It appears that O. M. Rice and T. C. Ballinger were candidates for representative from Coffey county at the late election, and that when the county canvassing board met and-canvassed the result of that election, they found and declared that each had received 1,826 votes, and a certified abstract of that result was sent to the secretary of state. Since that time the state board of canvassers canvassed the returns from that county and ' found that there was a tie, and, having settled it as the statute prescribed, awarded the certificate to Ballinger. The plaintiff alleges that the canvassing board of the county refused to canvass all the votes returned for him in Avon township; that by the certified returns from that township he received 96 votes, and Ballinger received 68 votes; but that the board determined and declared that Rice received Only 95 votes. He avers that if all had been counted it would have appeared that he had a total of 1,827 votes, one more than Ballinger, and that, as a true and correct abstract of the votes had not been sent to the secretary of state, the state board of canvassers could not declare him to be elected nor award him the certificate to which he was entitled. The poll books of Avon township were presented to the court, and from them it appears that the footings and statement made in the certificate of the judges and clerks of election show that Rice received 96 votes in that township; but it also appears by the enumeration or tallies entered on the tally sheet of the poll books, as the ballots were counted by the judges, that he received only 95 votes. When the canvassers met they decided that they would consider the enumeration of the votes upon the tally sheet, in determining who was elected to the various offices; and this was in accordance with a practice which had long prevailed in that county. What is called the “ tally sheet,” is bound in and as a part of the poll book. On the left-hand side of the sheet are printed the names of the officers voted for. To the right of the list of candidates the sheet is ruled in squares large enough to contain five marks, or tallies. The clerks entered a mark or tally opposite the name of each candidate for each vote read and counted for him by the judges. On the same sheet is a certificate made by the judges and clerks, in which the total number of vote's understood to be received by each candidate was written; and all included in a cover, marked “ poll book.”
A meager description of the poll books and forms provided for tallying the ballots as they are taken from the ballot box and read is sufficient. Substantially the same form of poll books and tally sheets has been in use for many years, if not from the organization of the state, and almost every elector is familiar with them. To the right of the name of Rice, votes were entered in 20 columns or spaces. In each of 18 of them, there were five tally marks entered, by making four straight marks, and then by drawing a diagonal one across them. In one space, not far from the middle of the line of spaces, there were only four marks, with no line across them; and in the twentieth space there was but one mark. It appears that the judges and clerks assumed that there were five tallies in each space, except in the twentieth, and so, without otherwise counting them, they decided that 19 spaces contained 95 votes; and these added to the one in the twentieth space made up the 96 votes, and they made their footing and certificate accordingly. As a matter of fact, only 95 tallies were entered on the tally sheet, and it was from the tally sheet alone that the judges and clerks determined the total number of votes that were cast, and in the manner described. One of the poll books, including this tally sheet on which they made their certificate and return, was sent by them to the county clerk’s office, and the duplicate was retained by the township trustee. We have examined both of them, and find that they correspond exactly in the record of Rice’s vote. With this return before it, the county board determined that Rice received but 95 votes, and made its canvass accordingly. From the poll books and the evidence submitted to us, it appears reasonably certain that only 95 votes were cast for Rice in Avon township. No objection against the count was made by him at the time, nor when the canvass was made by the state board, weeks afterward; nor was there any protest from him until the commencement of this proceeding, long after the final adjournment of the state board of canvassers.
It is urged that the tally marks constitute no part of the return, and cannot be used in determining the number of votes. Of course the board must make its determination from the legal returns made by the judges and clerks, and cannot exercise the function of a contest court. It is argued, however, in behalf of the defendants, that the statute contemplates there shall be just such an enumeration or tallying of the votes as the count proceeds as was made in this instance. (Gen. Stat. of 1889, ¶¶ 2679, 2680, 2684, 2687.) It is also contended that such tally sheets have been made and returned as a part of the poll books from the earliest history of the state; and it is further said that the tally sheets have been recognized in several decisions of the supreme court, and this method of making the poll books and tallying the votes has been in universal use for so many years, and been recognized by all the departments of the state government, as to constitute a practical construction of the statute — a construction which has generally been accepted and acted on by the people of the state. There is some diversity of judicial opinion in regard to whether the tally or enumeration of the votes entered in the poll book may be considered as a part of the return. In Missouri, which has a statute similar to our own, it is held that it cannot be used to verify or correct the figures or footings contained in the certificate. (The State v. Trigg, 72 Mo. 365.) The State v. State Canvassers, 36 Wis. 498, is cited as sustaining the same view. The preponderance of decisions under statutes somewhat similar to ours, however, appears to uphold the view that the tally or enumeration of the votes in the poll books may be considered in verifying the returns, and that if a disparity exists between the footings and the tallies the latter should control. (Dalton v. The State, 43 Ohio St. 652; The State v. Hill, 20 Neb. 119; The People v. Ruyle, 91 Ill. 525; Simon v. Durham, 10 Ore. 52; The State v. Cavers, 22 Iowa, 343; Trueheart v. Addicks, 2 Tex. 221.) The writer of this opinion is inclined to think that the entries or tallies made by the clerks in the poll books as the count proceeds constitute a part of the return which may be considered by the county canvassing board in determining the result. The court, however, will not decide that question at this time, but will rest its decision upon other grounds.
The plaintiff seeks relief through an action of mandamus, which, as has been generally decided, lies, to a great extent, in the discretion of the court. It should be allowed only to secure or protect a clear legal right, and should never be granted when its enforcement would work an injustice or accomplish a wrong. (The State v. Marston, 6 Kas. 524; Peters v. Board of State Canvassers, 17 id. 365; The State v. Stevens, 23 id. 456; People v. Board of Canvassers, 129 N. Y. 370; High, Ex. Rem., §40; 14 Am. & Eng. Encyc. of Law, 97.) Has the plaintiff shown a clear legal right to be credited with 96 votes from Avon township? Would any contesting tribunal, from the evidence submitted, give him more than 95 votes? The enumeration entered in the poll books and the one on which the judges and clerks relied to make out their certificate, and which they set up as a part of their return, plainly shows that he received only 95 votes. This return was verified and corroborated by the duplicate return retained in the township. An abstract or return by the county canvassing board, showing that Rice had received 96 votes in that township, and 1,827 in the county—a plurality of one over his opponent—would apparently be an untruth, and to compel the canvassers to declare such a result, and assist him in obtaining a certificate or office to which he was not elected would be a wrong and an injustice. Further, it appears that a vote was cast for “Barringer,” and that it was not counted for Ballinger. The similarity of the sound and form of the two names would indicate that it"was intended for Ballinger. (Clark v. Comm’rs of Montgomery Co., 33 Kas. 202; Behrensmeyer v. Kreitz, 26 N. E. Rep. [Ill. Sup. Ct.] 704; The State v. Foster, 38 Ohio St. 599; Newton v. Newell, 6 N. W. Rep. 10; Cooley, Const. Lim. 769.) If that had been done, Ballinger would have had a plurality of one vote, and would have been entitled to the certificate.
There is another sufficient reason why the writ should not go. It is a fundamental rule of law that it will never be granted where, if issued, it would prove fruitless and unavailing. (Shellabarger v. Comm’rs of Jackson Co., ante, p. 138; High, Ex. Rem., § 14; People v. Board of Canvassers, 129 N. Y. 370; 14 Am. & Eng. Encyc. of Law, 104.) Another canvass and abstract would be obviously useless. Rice alleges that by the refusal of the board he has been deprived of his right to receive from the secretary of state a certificate showing that he was elecled representative from Coffey county, and this alleged right he now seeks to enforce. A certificate, if he is entitled to it, would serve no useful purpose at this time. He made no complaint and took no steps to correct the alleged error until more than three weeks after the state board of canvassers had finally adjourned. That board when in session canvassed the returns from Coffey county, which were executed by the. proper officers in regular form, and were genuine and have been duly transmitted to the secretary of state. It has just been decidéd in Rosenthal v. Board of Canvassers, ante, p. 129, that after the board of canvassers has canvassed all the returns, declared the result, completed its labors as the statute prescribes, and adjourns without day, it is fwnctus officio, and cannot voluntarily, or by compulsion, reassemble, or make any other or different canvass than has been made. No certificate can now be obtained by Rice, and if he has been wronged by the action of the county canvassing board, it can only be corrected by the house of representatives.
It was suggested in argument that he was entitled to have a recanvass made in order to furnish evidence of the true result for use in the contesting tribunal. It is wholly unneces sary, however, to invoke the mandate of this court for that purpose. The legislature itself is vested with full power to obtain all the testimony which could be compelled by this court; and it is fundamental that mandamus will not be employed where there is another adequate and suitable remedy.
Our conclusion is that the plaintiff has failed to establish his right to the writ, and it must therefore be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an appeal by George Hunter from a conviction for grand larceny. It was charged that in June, 1892, he stole 19 head of cattle, in the county of Comanche, which were of the value of $250, and, upon testimony that was mostly circumstantial, the jury found him to be guilty of the charge. There is no complaint of the rulings made on the trial, and no objection is taken to the instructions given to the jury. In fact, counsel for the defendant frankly say that the charge is “ exceptionally correct,” and “ is a remarkably fair and lucid embodiment of the legal principles governing the case.” The only objection urged is that the testimony is insufficient to sustain the conviction. An examination of the evidence, however, does not satisfy us that the verdict should be disturbed. Much is said about the testimony being circumstantial in character; but the corpus delieti of the gravest offenses may be established by circumstantial evidence. It is true, as claimed, that, to convict upon circumstantial evidence, it is not sufficient that the facts and circumstances create a probability that the defendant committed the offense charged, but they must be such “as are absolutely incompatible upon, any reasonable hypothesis with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused.” The jury were so instructed by the trial court, and duly cautioned against finding a verdict of guilty unless the circumstances were consistent with each other and with the main fact to be proved. The weight of the testimony given to establish the circum stances is a question for the jury. There was conflicting testimony as to the circumstances in this case, and an attempt by the defendant to show that they were inconsistent with the guilt of the accused; but we think there was sufficient evidence to fairly take the case to the jury, and so much that we are not justified in overturning the verdict.
The theory of the state is, that the cattle were taken from their feeding ground by Hunter, driven some distance into a pasture, and held by him and his children in a ravine or hollow until they were discovered by the owners, and that he was in possession of them when they were found. There is testimony that when the cattle were missed a search was instituted, and a cattle trail discovered, which led from the feeding ground toward the pasture in which they were found; and from the tracks it appeared that the cattle were driven by some one on horseback. An opening had been made in the pasture fence, through which the cattle had been driven. Mrs. Rodman, a neighbor, testified that she saw Hunter drive a number of cattle about that time past her house and into the draw or hollow, where he and his children herded them for several days, and until about the time of his arrest. Her husband testified that at about the same time he saw Hunter and his boy herding a bunch of cattle in the pasture and in the vicinity of the draw or ravine. Mrs. Rodman also testified that after Hunter’s arrest he called on her, and proposed to give her a cow if she would not give testimony against him. Two witnesses testified that they found the cattle in the draw back of the hill, and that when found Hunter was there on horseback, and when they came upon him he rode off in another direction. Testimony is also given of other minor circumstances which it is not necessary to repeat. He denied that he was in custody of or near the cattle when they were found, and he denied most of the other statements which would tend to show guilt. To meet the testimony of their witnesses, he gave explanations about driving other cattle into the ravine or in the vicinity of the same and holding them there at other times; but these denials and explanations were for the jury, who, upon proper instructions, have chosen to disbelieve him, and have found not only that the testimony offered by the state was true, but that the facts and circumstances were such as to be inconsistent with any other rational conclusion than that the prisoner was guilty of the charge.
It must be admitted that the verdict would be more satisfactory to us if the testimony had been more direct and positive; but it is not for us to weigh the evidence. There were a large number of witnesses who gave testimony, including the defendant, and hence the jury had a better opportunity for determining the truth than we have; and the testimony offered seems to have been sufficient to satisfy the understanding and consciences of the jury that the defendant was guilty. Under these circumstances the conviction must stand. (City of Cherokee v. Fox, 34 Kas. 16; The State v. Smith, 35 id. 618; The State v. Blakesley, 43 id. 250; The State v. McLain, 43 id. 439.)
Our attention is called to the fact that the taking, if any, was in Comanche county, where the conviction was had, while they were driven into and found in the county of Clark. It is said that the accused could not be convicted in Comanche county of a crime committed and completed in Clark county. There is testimony tending to show that the cattle were taken in Comanche county and driven to Clark county, but under § 26 of the criminal code the jurisdiction was in either county, and heuce there is nothing substantial in that objection.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This is an appeal from a conviction in Shawnee county, on an information charging the defendant with having obtained money under false pretenses. The information alleges that the defendant, on the 28th day of August, 1891, obtained from Francis L. McClelland, at Topeka, Kas., the sum of $200, by falsely, unlawfully, designedly and feloniously representing to said Francis L. McClelland :
“1. That she was then and there the owner of a certain promissory note, bearing date November 13,1890, due in one year after date, payable to the order of M. J. Palmer, for the sum of $3,000, at 6 per cent.'interest from date; and that the same was duly signed by Jacob S. Fege, Moses Gincrich, and Joseph Palmer, and that said note was genuine and worth its full face value.
“2. That she, the said Margaret J. Palmer, was then engaged in the business of selling silkworm eggs, and was doing a large and extensive business, amounting to thousands of dollars; that she procured her silkworm eggs from Professor Gore, at Portland, in the state of Maine, and that she had recently sent to said Professor Gore, through the Wells-Fargo Express Company, at its office in Wichita, Kas., large sums of money in payment for said silkworm eggs, and that she had recently sent to Professor Gore, at Portland, Me., the money theretofore advanced by said Francis L. McClelland through said office for silkworm eggs.
“3. That she was then receiving, from time to time, large and extensive orders for silkworm eggs, amounting to thousands of dollars, and that there had been sent to Wichita, Kas., through the Wells-Fargo Express Company, at their office at said city, to her address, a large package of silkworm eggs; that said eggs were then needed to fill orders already in, and that to lift said eggs from the said express company’s office would require a large sum of money; that she had arranged with Senator O. H. Bentley, of Wichita, to send said money and said charges for said silkworm eggs to Professor Gore, of Portland, Me., and that said money was actually needed for said purpose; that, by the sending of said money, silkworm eggs to the value of many thousands of dollars would be obtained by said Margaret J. Palmer to fill large orders already received by her, and that said package of silkworm eggs had been sent back to Professor Gore, or were about to be sent back, if said charges were not paid, and that she had received all the money necessary to pay the charges for said silkworm eggs, except $200, which she wished said Francis L. McClelland to raise; that the said Francis L. McClelland, believing and relying upon said representations so as aforesaid made to him by said Margaret J. Palmer, delivered to said Margaret J. Palmer, for her use and benefit, and the said Margaret J. Palmer obtained from said Francis L. McClelland, the sum of $200, lawful money of the United States, the personal property of the said Francis L. McClelland, of the value of $200; a more particular description of which said money and personal property is unknown, and cannot be given; [when] whereas, in truth and in fact, each and all of said representations were false and fraudulent, and the said Margaret J. Palmer knew them to be false and fraudulent at the time she so made them to said Francis L. Mc-Clelland. And the said Margaret J. Palmer did then and there unlawfully, designedly, willfully, feloniously, and with intent to cheat and defraud said Francis L. McClelland, make said false and fraudulent representations, and thereby and by reason thereof obtained said sum of $200 from said Francis L. McClelland, contrary to the form of the statute in such cases made and provided, and against the* peace and dignity of the state of Kansas.”
The information in this case was challenged by motion to quash, which motion was overruled. It is a very serious question whether the court did not err in overruling such motion.
There are a large number of allegations in the information which are negatived, in a general and somewhat indefinite manner, but the principal one relied on in the trial of the case is the allegation in relation to the $3,000 note. In fact, on the trial the conviction was sought, and evidently had, on the ground that the defendant had obtained the $200 from McClelland by making to him the alleged representations regarding the $3,000 note, and delivering' the same to him as security in part for whatever money he put into the business that she represented herself engaged in, the purchasing and selling of silkworm eggs for a profit. But the information does not allege the delivering of the note to McClelland at all, and does not in any direct and specific way allege that she was not the owner of said note, or that it was not worth its face value. The alleged representations in the information are divided into three distinct classes, and each class contains numerous separate representations, and each of these- classes of representations, including all the representations of each class, is negatived with a single general allegation of falsity. We do not think this is good pleading, but, as this case is to be reversed on another ground, we will only say in this connection, that in criminal cases the charges should be direct and certain; and in this class of cases good pleading requires that each distinct and material allegation should be directly and specifically negatived.
Counsel for appellant claim that there is no proof in the record that McClelland was defrauded. A careful examination of -the record satisfies us that this contention is well founded. McClelland claims that he was the agent of the defendant for the entire period of time during which he let her have any money; and that the arrangement between them was, that he let her have certain sums of money to put into her business, buying and selling silkworm eggs, which he was to receive back out of the first sales, with a share of the profits; and that in the meantime he was to be secured for the money he put in with certain notes, which he was to hold as collateral security for all money he let her have. In all his testimony, McClellánd insisted that he would not have let the defendant have the money without the notes as security. He let her have, in all, less than $1,300 that he did not get back; and the undisputed evidence shows that he received from her, as security, a note for $700, one for $1,500, and one for $3,000. There is some evidence to show that the $3,000 note is worthless. But there is no certain or conclusive evidence of that fact. There was never any attempt on the part of McClelland, or anyone for him, to collect said note. It was never sent to the home of the makers for collection. No one of the makers was ever asked to pay it. There is no evidence that the note was not made by the parties whose names were signed thereto, nor that they were not fully able to pay it. It is true it was shown, by evidence of doubtful competency, that there was no First National Bank at Chambersburg, Pa.; and that a dispatch, purporting to come from Chambersburg, signed “First National Bank,” saying, in substance, that the note was good, was manufactured here by the defendant, with the aid of an honest but incompetent operator of the Western Union Telegraph Company; and yet, in spite of these things, the note might be genuine and collectible. But suppose this note was worthless: What is there in the record to show that the other two notes were not worth their face value? We discover nothing. McClelland was in possession of both of these notes when he let the defendant have the last $200, August 28, 1891, and, so far as the record shows, has them still. These two notes' amount to $2,200, without any interest thereon. The only reference to either of these two notes, except as to the fact that he received them as security, is in one of McClelland’s letters to the defendant, in which he called her attention to the fact that the $1,500 note was due, and that to keep it .good she ought to have some of the principal or the interest paid — an indication at that time that he thought the note was good. The record shows no attempt to collect either of these notes, and no complaint that they were not collectible. If these two notes are good and collectible, McClelland has at least $2,200 in security for less than $1,300 that he let the defendant have and did not get back. With such a state of things, we do not see how he was defrauded. It may be said that he would not have let the defendant have the $200 August 28, 1891, without the $3,000 note as additional security. That may be true; but if true, and if the $3,000 note is worthless, yet if the collateral already in his possession was sufficient to save him from loss on the $200, he was not defrauded; and if not defrauded, the defendant could not be guilty of a crime in connection therewith. The mere obtaining of money under false pretenses does not alone constitute a crime. The money must be obtained to the injury of some oae. Though money is obtained by misrepresentation, if no injury follows, no crime is accomplished. In this case, the defendant was undoubtedly guilty of many flagrant misrepresentations and other dishonest acts; but if all such representations and dishonorable acts did not actually result in injury to McClelland, she cannot be convicted in this state simply because upon the face of things she is bad. A person must be charged with and convicted of some specific offense, if convicted at all. It will not do to convict on general principles, because the evidence shows the defendant devoid of common honesty. Many of the statements made by the defendant to McClelland concerning her business are so ludicrously extravagant that they of themselves should have warned him of the character of the person he was dealing with.
We think the record wholly fails to show that McClelland was defrauded out of anything by the defendant; and that it does not satisfactorily show that even the $3,000 note was not genuine and collectible. It is therefore recommended that the judgment of the trial court be reversed, and the case remanded for further proceedings in that court.
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.:
This is a proceeding in habeas corpus, in which it is alleged that the applicant, Joseph White, is illegally restrained of his liberty by George H. Case, the warden of the state penitentiary. The warden makes return, admitting that he does restrain the applicant of his liberty by confining him in the state penitentiary; but saying, substantially, that he does so upon three several judgments, rendered by the district court of Leavenworth county, in three separate actions, in each of which the defendant was charged with, tried for, convicted, of and sentenced for grand larceny, seven years in each case, and 21 years in the aggregate; and that the aggregate time for which he was sentenced has not yet expired. It appears that the above-mentioned actions were numbered respectively in the district court of Leavenworth county as follows: 2184, 2185, and 2193; and that the sentences were all rendered on January 2,1886. In the case numbered 2185, the sentence reads as follows:
“ It is therefore now by the court here considered, ordered, and adjudged, that the defendant, Joseph White, be and he is hereby sentenced to confinement at hard labor in the penitentiary of the state of Kansas for the period of seven (7) years from this time.”
In the case numbered 2184, the sentence reads as follows:
“It is therefore now by the court here considered, ordered, and adjudged, that the defendant, Joseph White, be and he is hereby sentenced to confinement at hard labor in the penitentiary of the state of Kansas for the period of seven (7) years from and after the expiration of the sentence in case number 2185.”
In the case numbered 2193, the sentence reads as follows:
“ It is therefore now by the court here considered, ordered, and adjudged, that the defendant, Joseph White, be and he is hereby sentenced to confinement at hard labor in the penitentiary of the state of Kansas for the period of seven (7) years from and after the expiration of the sentence in case number 2184.”
It is admitted by the warden that by allowing the applicant, White, proper deductions from his sentence rendered in case numbered 2185, for good conduct, as provided by law, he has served out and completed the time fixed by his first sentence of seven years; but the warden claims that he is now restraining White of his liberty under the sentence pronounced in the case numbered 2184. It is claimed by the applicant that the sentences in the cases numbered 2184 and 2193 are so indefinite that they are void; and therefore, that the applicant is entitled to his liberty. We would think otherwise, however. The district court of Leavenworth county is a court of record and of general jurisdiction, and all presumptions, in the absence of anything to the contrary, must be construed in its favor. It has jurisdiction in cases of grand larceny, and may sentence a defendant, for such an offense, to imprisonment in the penitentiary for a period of seven years. (Crimes Act, § 79.) Section 250 of the criminal code reads as follows:
“Sec. 250. When any person shall be convicted of two or more offenses, before sentence shall have been pronounced upon him for either offense, the imprisonment to which he shall be sentenced upon the second or other subsequent conviction shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.”
See, also, the case of The State v. Carlyle, 33 Kas. 716, and The State v. Hodges, 45 id. 390, 396, 397. Section 671 of the civil code provides, among other things, as follows:
“Sec. 671. No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: . . . Second, upon any process issue'd on any final judgment of a court of competent jurisdiction. . . . Fourth, upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”
The cases from Ohio, to wit, Williams v. The State, 18 Ohio St. 46; Picket v. The State, 22 id. 405, and Larney v. City of Cleveland, 34 id. 599, referred to by counsel for the applicant, are not habeas corpus cases at all, but are cases taken from a lower court upon petition in error or appeal, and therefore can have but little if any application to this case.
The judgments of the district court of Leavenworth county in the cases numbered 2184 and 2193, notwithstanding their supposed indefiniteness, cannot be considered as void when attacked collaterally and in a habeas corpus proceeding, and therefore it must be held that the applicant, Joseph White, is now rightly imprisoned in the penitentiary under the first-mentioned judgment, and may, when his term expires under that judgment, be rightly imprisoned under the other judgment. The applicant must remain in the custody of the warden of the penitentiary.
All the Justices concurring. | [
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Opinion by
Green, C.:
S. B. Oberlender sued E. P. Upcher, M. F. Stevens, and A. 8. Burr, as partners, to recover damages alleged to have been sustained in permitting a bull to run at large, and thereby certain Shorthorn cows owned by the plaintiff were served. The evidence establishes the fact that plaintiff placed some 30 head of cattle in a pas ture owned by a party by the name of Bright. A short time afterward the defendants placed a herd of western cattle, among which was a bull, in an adjoining field, owned by a man by the name of Osborn. It seems from the evidence that the fence between the two pastures was out of repair, that the bull of the defendants wandered into Bright’s pasture and served two thoroughbred cows owned by the plaintiff. The plaintiff soon after sold his cows to different parties, without communicating to the purchasers the fact that his cows had been bred. The case was tried by the court and a judgment was rendered in favor of the plaintiff for $200. The plaintiffs in error bring the case here, and ask a reversal of such judgment.
It is urged that the judgment is excessive, unreasonable, and is not sustained by sufficient evidence. It was established by the evidence that the plaintiff sold his cows in a short time after they had been with the bull in question without knowing that they were with calf, and without informing the purchasers of the fact that they had been “exposed” to a “scrub bull.” It seems from the evidence that he obtained the market value for the cows. The plaintiff was asked to fix the amount he was damaged, that he could swear to positively, and he answered $200. This was not a proper way to arrive at the damages claimed. Damages cannot be proved by asking how much a thing is or was damaged. (W & W. Rld. Co. v. Kuhn, 38 Kas. 675; Town Co. v. Morris, 39 id. 380.)
It was not a question as to how much the plaintiff had been damaged, but how much less the cows were worth after they had been served than they were before. The highest estimate placed upon the cows by any of the witnesses was $30 per head, and they were in fact sold for $27 apiece. We think it is clear from the evidence that the judgment is excessive. It is recommended that the judgment of the district court be reversed, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This ease and two other cases of the same insurance company were decided by this court on April 9, 1892. (Insurance Co. v. Wallace, 48 Kas. 400; same case, 29 Pac. Rep. 755; Insurance Co. v. Bank of Blue Mound, 48 Kas. 393; same case, 29 Pac. Rep. 576; Insurance Co. v. Bank of Pleasanton, 48 Kas. 397; same case, 29 Pac. Rep. 578.) In due time, the plaintiff in error filed a motion for a rehearing in each case. It is really not necessary that anything further should be said by this court in this case than has already been said in the original opinion filed in the case. See, also, the opinion just delivered by this court on a motion for a rehearing in the case of this same insurance company against the Bank of Pleasanton. The value of the property insured and destroyed by fire was much more than the amount agreed to be paid in the insurance policy, and much more than the amount for which the judgment was rendered in this ease; and the property belonged wholly to Wallace, the insurer, who was the plaintiff below and is the defendant in error; and it was totally destroyed by the fire without the slightest possible blame imputable to the insured; and it would now be an outrage upon him if he should be defeated in his claim for the loss. The only evidence introduced on the trial in the court below was introduced by him, and it proved his claim and his right to recover, almost, if not absolutely, beyond all possible doubt. The only objections to his right to recover, that might even be supposed to be plausible, are his supposed failure to give notice of the loss “ forthwith,” and possibly some supposed defects in the proofs of loss. There was no conflict in the evidence introduced on this subject, or introduced in this case, the evidence- being, as stated before, all .introduced by the plaintiff below, Wallace, who was the insured; aud it can make no possible difference in this case whether the by-laws of the insurance company be considered as a part of the insurance policy or not. The petition of the plaintiff in the court below alleged, among other things, that “ the said plaintiff further says, that he duly kept, observed and performed all the multifarious requirements and conditions contained in said policy and in the by-laws,” etc.; and the evidence fairly proved this allegation, and that the plaintiff had so “performed all the multifarious requirements and conditions contained in said policy and in the by-laws” as to entitle him to recover in the action. No demurrer was interposed to the plaintiff’s petition; and no specific objection was made or question raised in any manner in the court below, that what ever the plaintiff did in attempting to comply with all the terms and conditions of the policy and the by-laws was not done and performed at least 60 days prior to the commencement of his action. The evidence showed that he did perform all these things more than 60 days before commencing his action. . The fire occurred on November 2, 1888. Notice was immediately given to the local agent, and was sent to the general agent on November 13, 1888; proofs of loss were made out before the local agent on November 29, 1888, and on the same day sent to the general agent; and all proofs of loss and all other requirements of the company were completed by the insured and sent to the general agent at least as early as December 19, 1888; and this action was not commenced until February 19, 1889. But before its commencement, and on February 6, 1889, the company denied all liability to the insured, and for reasons never before urged.
The motion for a rehearing will be overruled. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover the surrender or reserve value of a life insurance policy issued by the defendant to the plaintiff, in favor of his then wife, Anna H. Robison. The policy provides that upon the death of the insured, the company will pay the amount of the insurance, $2000, to Anna H. Robison, the plaintiff’s wife, if living, otherwise to the executors, administrators or assigns of the plaintiff. The policy contains no provision for a change of the beneficiary, but contains provisions for loans of specified amounts after certain specified periods, and for the issuance of a paid-up policy for certain amounts after specified times upon the surrender of the policy. The policy also contains the following language:
“Upon legal surrender of this policy the company will pay in cash on the Thirtieth day of April, A. D. 1913, its entire reserve value, according to the American four per cent Table of Mortality, to wit, the sum of $932.00, provided this policy shall not have been terminated previously by lapse, death, or limitation.”
The application, a copy of which is attached to the policy and made a part thereof, contains the following question and answer: “If an Endowment, to whom shall it be paid if you live to the end of the Endowment period? Reserve to myself.” The application is the application of the plaintiff, Joseph E. Robison. The signatures to the application are as follows:
“Signature of person proposed foí insurance,
Joseph E. Robison.
“Signature of person to whom the insurance is payable,
Anna H. Robison.”
The plaintiff now seeks to surrender the policy and recover the $932 without the consent of the beneficiary, who has, since the policy wag issued, obtained a divorce from the plaintiff. On April 30, 1913, thé defendant offered to pay the plaintiff the sum of $962 upon a surrender of the policy with a receipt or release from the beneficiary. All premiums were paid by the plaintiff. The court rendered judgment for the plaintiff for the sum of $1004 with interest from January 13, 1914, at six per cent. The defendant appeals.
This policy was issued by the defendant to the plaintiff on his application, and named Anna H. Robison, then his wife, as the person to whom the policy was to be paid upon the plaintiff’s death. The policy provides that on the 30th day of April, 1913, the defendant will pay its entire reserve value, $932. By the terms of the policy the application therefor is made a part thereof. This application provides that the reserve shall be paid to the plaintiff. The provision for the payment of this $932 to the plaintiff on the 30th day of April, 1913, is as much a part of the policy as the provision for the payment of $2000 to Anna H. Robison on the death of the plaintiff. There is no more reason for defeating one of these provisions than there is for defeating the other. What is meant by the words “reserve to myself,” written in answer to the question, “If an endowment, to whom shall it be paid if you live to the end of the endowment period ?” The only answer to this question is that the $932 is to be paid to the plaintiff. Neither the defendant nor Anna H. Robison can defeat the plaintiff in his right to receive this $932 under the policy. The defendant contends that Anna H. Robison has such an interest in the policy as pre vents the plaintiff from surrendering it and receiving the reserve or surrender value without her consent. If the defendant’s contention is_ correct, that part of the policy providing for the payment of $982 to the plaintiff is defeated, because the plaintiff’s now divorced wife refuses to give her consent to the surrender of the policy or the payment of the money to the plaintiff. She has no right to the $932, neither does she have any right to defeat the plaintiff in his effort to compel the defendant to pay according to the terms of the policy. The conclusion we have reached is supported to some extent by Filley v. Insurance Co., 93 Kan. 197, 144 Pac. 257, where this court said:
“A provision in the policy that should the insured reach the age of sixty-four and so desire he could surrender such policy and receive back his payments with interest, is held to be a condition subsequent not impairing the vested interest of the beneficiary unless and until the insured should reach the designated age and then choose to surrender.” (Syl. ¶ 3.)
There is another matter that must be considered. Judgment was rendered for $1004. This amount was evidently reached by calculating interest at six per cent on $962, the sum which the general agent of the defendant informed the plaintiff would be the amount of the surrender value of his policy. This was a mistake. The surrender or reserve value was $932. Interest should be calculated on this amount from April 30, 1913, to the date of the judgment. This amounts to $971. The judgment in favor of the plaintiff is modified by reducing the amount of recovery to $971, with interest thereon from the date of the judgment at six per cent, and as thus modified the j udgment 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 a stock of goods caused by a falling wall. The plaintiff recovered judgment for $1077.62. The defendant appeals.
The plaintiff for several years prior to the' injury complained of operated a store on property owned by and leased from E. L. Green. The defendant during the same time occupied and owned a building on adj oining property. The buildings were divided by a party wall made of brick. This party wall had been built under a contract between Green and The Mercantile Building Company, the predecessor of the defendant. This contract is as follows:
“This instrument, made this first day of February, A. D. 1902, by and between The Mercantile Building Company, a corporation, of Parsons, Kansas, of one part and E. L. Green and Helen L. Green, his wife,' of the City of Parsons, of the other part, Witnesseth: That the said; The Mercantile Building Company is the owner of lots 8, 9, 10 and 11, in block 42, in the City of Parsons, Kansas, and said E. L. Green is the owner of lot 7, in said block 42, in said City of Parsons. The said The Mercantile Building Company has erected on it a two-story brick and stone building, the East wall of which building is of stone two feet thick, as high as floor of first story here footing course of proper width, and the first and second stories of said east wall of said building are of brick 18 inches thick; said wall has by agreement of said Mercantile Building Company and said E. L. Green, been constructed on such a line that one half of the width thereof rests on said lot 7 owned by said Green, and the other half on said lot 8 owned by said Mercantile Company.
“The said Green has erected a building on his said lot 7 and utilized a portion of said wall above mentioned and has paid the said The Mercantile Building Company in full for such amount of said wall utilized by him as rests on his said lot 7 and it is agreed that if at any time said E. L. Green, his heir or assigns, desires to extend his said building and utilize any further portion of said wall erected by said Mercantile Building Company as aforesaid on the line between said lots 7 and 8, the said Green, his heirs or assigns, shall and may use said wall above referred to and shall pay to the said The Mercantile Building Company, its successors, or assigns, one-half the cost of the construction of such amount of said wall referred to as is used by the owner of said lot 7 for the purpose of extending or adding to said building, erected on said lot 7, the amount so to be paid to become due and payable upon the completion of the extension or additions to said building on said lot 7 and such amount when so due shall be and become a lien upon said lot 7, and upon failure of the owner of said lot to pay the value of the additional wall used as aforesaid, the amount may be recovered in any court of competent jurisdiction by an action therefor and to foreclose said lien.
“In case of the destruction of said party wall by fire or any other cause, either of the parties hereto, their successors, heirs or assigns may reconstruct the same and in case same is utilized by the parties hereto or their successors, heirs or assigns they shall each pay one-half of the cost of the same as hereinbefore provided.
“The covenants and conditions of this argeement shall be construed as covenants .running with the lien [land?] and shall be binding on the parties hereto, their successors, heirs and assigns, forever, and shall apply to and include the maintaining the said party wall.”
The defendant’s building was a two-story building covering four lots. Each building was 150 feet long. The front 104 feet of Green's building was two stories high,.the rear 46 feet being one story high. On April 29, 1909, the defendant’s building was entirely destroyed by fire. While this fire was in progress an explosion of gas occurred in Green’s building, then occupied by the plaintiff, which greatly damaged it. There were explosions of gasoline and chemicals in the defendant’s building. Green repaired his building. The defendant did not rebuild. That part of the party wall immediately above the one-story part of the Green building was left standing without support or braces. On May 10, 1912, a severe windstorm occurred in Parsons, and during this storm this part of the wall was blown down. It fell on the one-story part of the Green building, crushing it and causing damage to the plaintiff’s goods, for which this action was brought. The storm was a severe one, breaking down some trees and the limbs off of others, blowing out windows, blowing down signs, stopping street-car traffic, and unroofing some of the buildings in the city.
The defendant’s first complaint is that the court erred in denying its motion for judgment on the pleadings. The petition alleges that the defendant negligently allowed the portion.of the wall that fell to remain without braces or support after having been, greatly damaged by fire and explosions. The answer denies that the defendant was negligent, alleges that by reason of the party-wall contract, a copy of which is attached to the answer, the defendant is not liable to the plaintiff, and that the injury was caused by an act of God. The reply to the defendant’s answer denies each and every material allegation in the answer inconsistent with the allegations of the petition. The reply is not verified. The defendant argues that because the reply is not verified, the execution of the contract is not put in issue. This is correct, but the construction placed on the contract by the defendant is not thereby admitted to be correct. This admission does not give the defendant the right to judgment on the pleadings unless the contract shows that the plaintiff can not' recover from the defendant in this action. Our interpretation of this contract is that Green had paid for that portion of the wall occupied by him, and that upon his making additions or extensions to the building he should pay the cost of construction of such amount of the wall as would then be occupied by him, and that he had no control over that part of the wall not occupied by him. Green occupied but a portion of the party wall. He did not occupy the part that fell.
Further argument is that the allegation of the answer, that the injury was caused by an act of God, is not inconsistent with the petition and therefore is not denied by the reply. We do not agree with the defendant in this contention. If the petition states a cause of action, and this part of the answer states a defense thereto, such answer, so far as it states a defense, is inconsistent with the allegations of the petition. On the motion for judgment the petition and reply should be liberally construed, and we must hold that a reply which denies all the allegations of the answer inconsistent with the petition puts in issue the defenses set up in the answer, unless otherwise admitted.
The defendant complains that the court admitted impropér testimony on behalf of the plaintiff. The plaintiff testified that he had certain articles in the show window, but could not give a list or the number of the articles or the value of the specific articles, for the reason that the articles had been blown out of the window when the wall fell. He was then permitted to testify to the aggregate value of the articles in the window. It was the best evidence that the plaintiff could then produce, and we think was admissible. In Sumner v. Blair, 9 Kan. 521, this court said:
“Each case must depend, to a great extent, upon its own facts and circumstances, and upon the discretion of the court; the rule being that the best evidence of which the case, in its nature, is susceptible, must be produced.” (p. 529.)
(See, also, 17 Cyc. 468.)
There was no error in the admission of this evidence, under the circumstances.
It is contended that the court struck out material and competent testimony. The chief of the fire department, a witness for the plaintiff, testified on cross-examination: “I tore down all the walls that I thought were dangerous. Not that night, however, the next morning.” This was stricken out by the court. A witness for the defendant testified that he thought the building in which his office was located was falling, and that it seemed to him that the building moved several inches. This was also stricken out. It was not error to strike out the testimony showing what these witnesses thought during or immediately after the transactions concerning which they testified.
Complaint is made of the refusal of the court to instruct the jury “that any construction placed upon the party wall contract by the Mercantile Building Company and E, L. Green, prior to the time that the defendant acquired Lot Eight (8) in Block Forty-two (42) of the City of Parsons, did not bind the defendant unless it was prove"d that defendant had knowledge of such construction of said contract.” We fail to see the materiality of this instruction. The trial court had the contract, and could and did construe it; and we have the contract before us, and can and do put our construction on it.
The defendant contends that the court misdirected the jury in a material matter of law. The court instructed the jury that Green was only the owner of that part of the wall which he had used and paid for, and that it was necessary for them to find what interest Green had in the party wall. As we construe the contract, Green, the plaintiff’s lessor, had no interest in any part of the party wall not occupied by him. This being the contract, the instruction complained of was correct.
It is contended that the court instructed the jury concerning a question on which there was no proof. The court submitted to the jury the question of the wall being rendered dangerous on account of exposure to the weather. The defendant’s brief recites enough evidence to justify instructing the jury on this question.
The last contention is that the verdict of the jury is contrary to the evidence. The defendant states that under this head it will discuss the demurrer to the plaintiff’s evidence. The proper determination of this question turns on the construction of the party-wall contract. We have given our construction of this contract. This was the construction placed thereon by the trial court. With this construction, the whole of the argument of the defendant fails.
“A failure to use ordinary care to guard against the falling of a wall injured by fire' renders the owner thereof liable for injuries caused thereby to adjoining property.” (1 C. J. 1211.)
One of the headnotes to Beidler v. King, 209 Ill. 302, 70 N. E. 763, in 101 Am. St. Rep. 246, is as follows:
“A part owner of a party-wall who negligently permits it to stand after its partial destruction and weakening by fire is liable to another part owner who is using part of the wall for damages resulting to the latter from a falling of another portion of the wall in which he has no interest and is not using.”
(See, also, Sessengut, Administratrix, v. Posey, 67 Ind. 408, 33 Am. Rep. 98; The City of Anderson et al. v. East, 117 Ind. 126, 19 N. E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35; Glover v. Mersman, 4 Mo. App. 90; Teepen v. Taylor, 141 Mo. App. 282, 124 S. W. 1062; 30 Cyc. 791.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This case was brought by the father and administrator to recover for the death of Calvin E. Denver by the explosion of a locomotive boiler, alleged to have been caused by worn, weak and defective material. The jury returned a verdict for the plaintiff and found among other things that the explosion was caused by defective side sheets and flue sheets caused by corrosion.
The prinicipal controversy was over the question whether the explosion was caused by weak and defective material or by the engineer’s permitting the water to get too low, thereby burning or overheating the crown sheet. The contention of the defendant was supported by a greater number of witnesses than that of the plaintiff but it can not be said that the general verdict or the findings were without fair evidential basis. It would be a waste of time to go into detail and recount the various theories and views of the parties and their witnesses for it would only result in coming to the conclusion already indicated.
The defendant urges error in the admission of the evidence of certain witnesses for the reason that they were not sufficiently skillful to testify as experts, but there are degrees of expertness, and while the knowledge of at least one of these witnesses was less full, accurate and modern than that of some of the others, it is apparent that each knew more about the subject of locomotive engines and crown sheets than one who had had no experience in their use and construction. One of these was not asked the cause of the explosion, but simply to describe the condition. It can not be said that his evidence was incompetent. The other witness complained of had had experience as a fireman on locomotive engines, had been employed in locomotive works and had given considerable study to the subject of engines, rendering him competent to testify, the weight of his evidence being for the jury.
The conductor of the train was permitted to testify as to statements made to him by the fireman on the theory that such .statements were part of the res gestse, and this ruling is assigned and treated as perhaps the principal error occurring upon the trial. This testimony, after preliminary statement's, was as follows:
“After the explosion I went forward to the engine. I found Fireman Matthews severely burned and injured. I pulled him away from a pile of rock and then went around to the other side of the train and found Engineer Denver dead. At the time I pulled Mr. Matthews, the fireman, from under the engine he was unconscious. He afterwards • regained consciousness about five or ten minutes afterwards. I don’t know how long after he regained consciousness' it was that I talked with him. After I pulled him out I left him before the talk with him. I remained away four or five minutes. When I returned to Matthews I had my talk with him. He was rational then.
“Q. What did he say to you.
“(Objected to as being incompetent, irrelevant and immaterial.)
“A. He told me the water-glass showed about one-half full when the explosion occurred. He gave me his home address and asked me to take off his overclothes, as they were burning him. He appeared to be suffering. These things that he said were said quickly.”
Cross-examination : “I had a conversation with Mr. Matthews, the fireman. I don’t remember who commenced that conversation, he or I. I did not ask him how long before the explosion he last examined the water-glass.
“Q. Did he state that to you? A. I think my testimony showed, that. •
“Q. No; I want you to answer my question. Did he state to you how long before the explosion occurred he examined the water-glass? (No answer.) ”
A multitude of authorities are cited to sustain the contention that this was a mere recital of the past events and not within the rule of competency as part of the res gestse. The lapse of time after the occurrence of the event is not so important as the condition of the speaker’s mind, and if from all the circumstances it appears that the statements are exclamatory rather than explanatory, are spontaneous rather than studied, and are in reality the event speaking through the person making the statements, they are admissible. In The State v. Morrison, 64 Kan. 669, 68 Pac. 48, within from three to five minutes after the defendant had been pulled away from Mrs. Castle the latter motioned for pencil and paper and wrote thereon “Jess Morrison killed me.” (p. 679.) It was said:
“It was the first expression after the cutting, and was so closely connected with it and so spontaneous that it may be fairly regarded as part of the res gestee. Under the circumstances, the interval of time which elapsed between the cutting and the writing of the words is not an objection to its admission, nor does it place it among past occurrences or isolated utterances. . . . The declaration by Mrs. Castle appears to have been voluntary and spontaneous, and so closely connected with it as to be really a part of the transaction, and to exclude the idea, of fabrication.” (p. 680.)
And so here, when fireman Matthews was first found by the conductor he was unconscious, and upon regaining consciousness appears to have made the three statements concerning the water-glass, his home address and his suffering from the supposed burning of his overclothes. “These things that he said were said quickly.” It is almost unthinkable that the fireman in this most pitiful condition, speaking these few sentences quickly after regaining consciousness, could have been planning a statement for the benefit of some possible plaintiff in future litigation or that he was doing other than giving spontaneous expression to the truth. A very different situation is presented from that of Railway Co. v. Logan, 65 Kan. 748, 70 Pac. 787, for there coolness, deliberation and a request for the presence of a third person to hear the statement were all shown. (See The State v. Alexander, 89 Kan. 422, 131 Pac. 139.) In The State v. Powers, 92 Kan. 220, 139 Pac. 1166, it appeared that when the shot was fired the team of the injured person, Dawe, broke into a gallop and ran an eighth of a mile, when Dawe climbed out of the wagon, walked to the porch where he fell, and there, some twenty minutes after the shot) said that the defendant had shot him, and this was held admissible, tffe court approving the quotation from the opinion in the Morrison case (p. 680) from 21 A. & E. Encycl. of L. 101, that:
“.‘If declarations of a past occurrence are made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the res gestae.’ ” (92 Kan. 226; 3 Wigmore on Evi-
dence, §§ 1747-1757; 16 Cyc. 1242, 1248-1255.)
For a recent well-considered opinion and note see Cromeenes v. Railroad Co., 37 Utah, 475, 109 Pac. 10, Ann. Cas. 1912 C, 307. The trial court heard the testimony of the witness to whom the statements of the fireman were made, and upon careful consideration admitted them, and in this there was no error.
The testimony showed that the father’s age was fifty-one years with the expectancy of twenty and twenty hundredths years, and the mother’s forty-eight with an expectency of twenty-two and thirty-six hundredths years, and the jury found that during the five years prior to his death the deceased, who was twenty-four when killed, had contributed about $400 to his parents. It is urged that the amount of the verdict, $6000, is, in view of the facts, excessive; that there is nothing to indicate that the son would have contributed more as the years increased, but on the contrary it might naturally be supposed that he would marry and devote his earnings to his own family rather than to his parents, and that annuities could be purchased for much less than the amount of the verdict which would be of far more value than any probable contribution. As was said in Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301:
“No questions of greater difficulty are presented than those involving the pecuniary loss which next of kin suffer in the death of a child.” (p. 323.)
The mother testified that he said as long as he had anything he would divide with them, and a sister stated that he said if they would let him go away he would help them. He had remitted various sums from $15 to $50, his habits were good, and he was devoted to his parents. In view of the discussion in the Fajardo case and the consideration of circumstances in Aaron v. Telephone Co., 89 Kan. 186, 131 Pac. 582, somewhat similar to those now presented, it is difficult to say what a fair and reasonable sum would be, but a majority of the court feel that from the evidence the probabilities of financial support could not exceed $4000, and that no greater sum should be approved. .
Witness Reddick testified by deposition, and the deposition of another witness taken by the plaintiff but not used was offered by the defendant for the purpose of showing by the copy of a coroner’s inquest attached thereto that Reddick, who served on the coroner’s jury, signed a verdict which stated that the cause of the explosion was unknown to the jurors, thereby tending.to contradict his testimony given by deposition. His attention was not called to this copy but it was offered without his having had any opportunity to examine or explain it and in' view of the decisions in Greer v. Higgins, 20 Kan. 420, and The State v. Bartley, 48 Kan. 421, 29 Pac. 701, and cases there cited, it was not error to exclude the offered evidence.
In criticism of certain of the findings it is asserted that they are opposed to the uncontradicted testimony of named witnesses. It may be said, however, that testimony of all the witnesses, together with the circumstances and conditions shown thereby, furnished support for the answers returned.
Finding no material error in the record except as to the amount of the verdict the judgment will be modified by a reduction to four thousand dollars, subject to the right of the plaintiff to a new trial upon the sole question of amount of damages by filing a written request within ten days after the mandate issues. | [
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The opinion of the court was delivered by
DAWSON, J.:
Here are two appeals from the district court of Sumner county from judgments in favor of the defendants in two actions for damages to plaintiff arising from the construction of a railway adjacent to plaintiff’s property in the city of Belle Plaine.
The first case was commenced in the district court on March 30, 1912, against The Wichita and Midland Valley Railroad Company, owner, and The Midland Valley Railroad Company, lessee. Issues were joined, the cause heard, and a demurrer to plaintiff’s evidence sustained on October 8, 1913.
The second case was commenced before a justice of the peace on March 15, 1913, by the same plaintiff, but against only one defendant, The Midland Valley Railroad, the lessee which operated the railway. At the trial of this latter cause there was an agreed statement of facts in which it is conceded that The Wichita and Midland Valley Railroad built'the railroad, and that prior to October 4, 1911, it constructed the ditches and culverts mentioned in this case; that on October 4, 1911, the owner leased the railroad to The Midland Valley Railroad Company, which has possessed and operated it since that date. The agreed statement also covered the history of the first case above mentioned. Thereupon the defendant, The Midland Valley Railroad Company, objected to the introduction of evidence on the ground that the agreed facts showed .that there had been a prior adjudication against the plaintiff and that this defendant was not liable for the damages complained of, and this obj ection was sustained.
In substance the errors assigned in the first case are (1) the exclusion of testimony; and (2) sustaining the demurrer. In the second- case error is based on the decision that the subject matter had been adjudicated in the first case.
1. Under this assignment appellant complains that he was not permitted in the first case to prove an oral agreement between one J. E. Hopkins, the agent of The Wichita, McPherson and Gulf Railroad Company and its successor, The Wichita and Midland Valley Railroad Company, and the city government of Belle Plaine, whereby the railroad agreed, in consideration of the city’s franchise, to occupy and use a certain platted but fenced and untraveled street, Washington street, and other streets, to compensate the plaintiff for damages to his property resulting from the occupancy of Washington street by the railroad. The franchise ordinance is a plain grant of a right of way for a railroad with main line, sidetrack, switches, telegraph poles and lines, depot and terminal facilities on Washington street. The ordinance gives no intimation of the alleged oral agreement between Hopkins and the city authorities.
Was it error to exclude testimony tending to show this oral agreement? No case is cited in support of that contention. This case is not like that of K. C. & O. Rld. Co. v. Hicks, 30 Kan. 288, 1 Pac. 396, as in that instance the ■ city required $3500 to be paid to the city clerk for the satisfaction of damages to property owners as a condition of the franchise grant, and these terms were incorporated in the ordinance itself. But here our question turns on the admissibility of parol testimony to enlarge the terms of the ordinance, and to show another consideration than those set forth in its written provisions. Can that be done? It is familiar law that such evidence would be inadmissible in ordinary contracts and miscellaneous writings. Does the law permit some departure from this rule when legislative bills and city ordinances are under scrutiny? Such a practice was denounced in W. W. M. Co. v. Shanahan et al., 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481, where it was said:
“But the scrutiny which the courts have exercised in regard to legislation of this character has been confined to matters appearing- on the face of the bill itself, and to things that are the subject of judicial notice. . . . The judicial department can not institute an inquiry concerning the motives and purposes of the legislature. . . . The question always is, with respect to such bills, How is the purpose of the legislature to be ascertained? Must that he determined from the bill itself, and from such considerations as the court can judicially notice, or is it competent to take proof and determine it as a matter of fact, as was done in this case? Reason and authority, as well as the fitness of things, demand that when an act of the legislature ... is assailed, . . . the question shall be determined by the language and general scope of the act. . . . There is room for much bad legislation and misgovernment within the pale of the constitution; but, whenever this happens, the remedy which the constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary.” (pp. 358, 359.)
(See, also, 17 Cyc. 582; 36 Cyc. 1137.)
Of course, extraneous evidence can be used to clear up an ambiguity or omission, or manifest error appearing on the face of a statute or ordinance (Reese v. Hammond, 94 Kan. 459, 146 Pac. 997; Coney v. City of Topeka, ante, p. 46, 149 Pac. 689), but it would never do to permit parol evidence or any other evidence to amplify or enlarge the plain terms of a legislative enactment (Eddy v. Morgan, 216 Ill. 437, 75 N. E. 174; City of Lebanon v. Creel, &c., 109 Ky. 363, 59 S. W. 16; Ellis v. Boer, 150 Mich. 452, 114 N. W. 239; Statutes, 44 Cent. Dig. c. 2848, § 292).
However, we do not see that the exclusion of this evidence in any wise prejudiced the plaintiff. Probably his right to damages could not have been enhanced by any agreement between the railroad company and the city. Certainly his right to recover damages can not be diminished by the city’s omission to provide for damages in the franchise ordinance. Fortunately private rights are governed by positive law and do not depend upon the prudence or want of prudence in the enactment of city ordinances.
2. The next error assigned by plaintiff relates to the following question, objection and ruling:
“Q. You may state what the fair market value of your property was at the time of the passage of the ordinance?
“Defendant’s counsel: Objected to as not contemplating the proper measure of damages; not being the proper time; not embracing the proper measure of damages in this case; it is immaterial what the value of the property was át that time.
“By the court: The objection is overruled.
“A. Four thousand dollars.
“Q. Now, Mr. Marshall, you may state what the fair market value of your property was immediately after the passage of the ordinance in question and the construction of the road bed and railway, as you have described it.
“Defendant’s counsel: To which we make the objection that it does not embrace the proper elements of damage, and no proper elements of damage have been proven, or any elements to prove or tend to prove proper elements of damage.
“By the court: I think the objection ought to be sustained.”
This question was far too broad. This court has often held that the mere diminution in value of property consequent upon the establishment of a railroad near by is not a cause of action for damages. Both phases of this proposition were set forth in the syllabus of A. & N. Rld. Co. v. Garside, 10 Kan. 552, in which it was said:
“A railway company having authority from the city may construct and operate its road over streets and public grounds without compensation to the abutting lot-owners for the use of the same, and without being liable to such lot-owners for consequential damages arising from noise, smoke, offensive vapors, sparks, fires, shaking of the ground, and other inconveniences and annoyances, where the railroad is operated in a legal and proper manner; and in fact it may so construct and operate its road without being liable to said lot-owners for any damages, where the road is constructed and operated in a legal and proper manner; but where the property is a street or highway, the railway company will be liable to any person who may receive actual injury from the illegal or unnecessary blocking up or obstructing' of such street or highway by the railroad company, whether the obstruction be permanent or only temporary.” (Syl. ¶ 3.)
To the same effect are: C. B. U. P. Rld. Co. v. Twine, 23 Kan. 585; C. B. U. P. Rld. Co. v. Andrews, 30 Kan. 590, 2 Pac. 667, and cases cited ; K. N. & D. Rly. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051; K. N. & D. Rly. Co. v. Mahler, 45 Kan. 565, 26 Pac. 22; Rapid Transit Rly. Co. v. Early, 46 Kan. 197, 26 Pac. 422; C. K. & W. Rld. Co. v. Investment Co., 51 Kan. 600, 33 Pac. 378; City of Leavenworth v. Douglass, 59 Kan. 416, 52 Pac. 123.
The cases cited by appellant (C. B. U. P. Rld. Co. v. Twine, supra, and City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419) relate to changes in the established grade of the street. The cases cited note this exception to the general rule and allow damages under such circumstances. So also in cases where access to property is entirely cut off. (A. T. & S. F. Rld. Co. v. Davidson, 52 Kan. 739, 35 Pac. 787; A. T. & S. F. Rld. Co. v. Church, 53 Kan. 621, 36 Pac. 979.)
(See, also, Highbarger v. Milford, 71 Kan. 381, 80 Pac. 633.)
3. Coming now to the second case: When the latter case came to the district court, certain facts touching the construction of the railroad and touching the prior litigation in the district court were conceded. It was admitted that the sole defendant in this case was operating the railroad under a lease dated October 4,1911; that the railroad had been completed by its owner after February 8, 1911, and before October 4, 1911; that the first action was brought on March 30, 1912, against the owner, The Wichita and Midland Valley Railroad Company, and by permission of court this defendant, The Midland Valley Railroad Company, was made defendant in plaintiff’s amended petition filed July 11, 1912, and that that case had gone to judgment on a demurrer to the evidence on October 8, 1913.
Appellant’s abstract continues:
“Thereupon, The plaintiff offered to introduce evidence showing his damages as claimed in the Bill of Particulars; and
“Thereupon, The defendant objected to the introduction of such evidence, on the ground that the agreed statement of facts above set out shows that there has been an adjudication of said matters against the plaintiff, and upon the further grounds that, under the agreed statement of facts above set out, the defendant is not liable for any such damages; which objection is by the court sustained, and the jury is discharged.”
Was there error here ? Appellant contends that to be an adjudication the parties and issues must both be identical. Touching the distinction between his cases, appellant says:
“In 19,413 plaintiff claims damages for being deprived of ingress and egress to his property by reason of the construction of the railroad, the permanent appropriation of the street and depreciation of his property in value, and the construction of a culvert under the road bed which throws large quantities of surface water upon his property to his injury and damage.
“There is nothing said about damages to any crop.
“In 19,600 the claim is for throwing water upon his land and destroying his crqps by ditches dug by appellee, and which drain the water from north of Tenth street and north of appellant’s land and empty the same upon his property, and which water did not flow upon his property before the construction of the road bed and the digging of 'the ditches, and that the water on or about the 24th day of May, 1912, flowed from the ditches upon his land and ruined the crops then growing. This injury complained of happened long after action No. 19,413 had been instituted, which was on March 30th, 1912.”
It will be noted that in the second case, as stated by appellant, the injury was done to the crops by ditches and water, and the agreed facts stipulate that these ditches were constructed by the owner of this railroad, not by the lessee and sole defendant, and that these damages occurred prior to the filing of plaintiff’s amended petition in his first case. In the amended petition, filed July 11, 1912, it was alleged against both railroads, the owner and the lessee :
“That defendant has thrown up a grade several feet in height the whole length of plaintiff’s land and constructed under said grade a culvert or waterway by which large quantities of surface water is thrown upon his land to his injury and damage.”
Obviously this complaint concerning damages by water was and of necessity must have been litigated in the first action. Moreover, if it was not, it was waived, for in an action of this sort all the then matured, continuing and anticipated damages to plaintiff’s property growing out of the construction of this railroad constituted the issues between the litigants. (23 Cyc. 1170; 2 Black on Judgments, 2d ed., § 731.)
In C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96, it was said:
“The rule of res judicata applies as well to facts settled and adjudicated as to causes of action. When a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated; and this determination is binding, as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made. (Hentig v. Redden, 46 Kan. 231, 26 Pac. 701; Railroad Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; Whittaker v. Hawley, 30 Kan. 317, 327, 1 Pac. 508; Hoisington v. Brakey, 31 Kan. 560, 3 Pac. 353; W. & W. Rly. Co. v. Beebe, 39 Kan. 465, 18 Pac. 502; Comm’rs of Marion Co. v. Welch, 40 Kan. 767, 20 Pac. 483; Shepard v. Stockham, 45 Kan. 244, 25 Pac. 559; Freeman, Judgm., § 249; Poorman v. Mitchell, 48 Mo. 45; Allis v. Davidson, 23 Minn. 442; Casebeer v. Mowry, 55 Pa. St. 419; Franklin Co. v. Savings Bank, 12 U. S. 147.) We therefore are of the opinion that everything that was litigated in the action of C. K. & W. Rld. Co. v. Ozark Township, 46 Kan. 415, or that might have been litigated therein, was determined in that case, and can not be opened up again.” (p. 767.)
A case much the same in principle as the one before us was Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182, where it was said:
“Where lands are subject to overflow by reason of the erection and maintenance of a dam permanent in character, the owner who has not been compensated for the appropriation of his lands may, if he see fit, maintain an action to recover all damages occasioned to the lands, present and prospective, and such cause of action accrues at the time of the appropriation.
“The owner of lands adjacent to a dam erected as a permanent structure sued to recover damages to the lands by reason of their being subject to overflow. The answer set up the record and proceedings in a former action between the same parties wherein the plaintiff recovered damages to the land caused by the erection and maintenance of the dam. Held, that the facts pleaded constitute a good defense of res judicata and that a demurrer to the answer was rightly overruled.” (Syl. ¶¶ 1, 2.)
(See, also, A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374, 6 Pac. 581; C. K. & N. Rly. Co. v. Steck, 51 Kan. 737, 33 Pac. 601; Mo. Pac. Rly. Co. v. Renfro, 52 Kan. 237, 34 Pac. 802; Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275; Singleton v. Railway Co., 67 Kan. 284, 72 Pac. 786; Darlington v. Cloud County, 75 Kan. 810, 88 Pac. 529; Paola v. Garman, 80 Kan. 702, 103 Pac. 83.)
It is not suggested by either party that the questions of law in this case might be affected by recent legislation.
In neither of the cases at bar was there any allegation of negligence in the manner of constructing the railroad. Whatever damages were done to plaintiff’s property, whether recoverable or not, were done by the owner of the railroad and before it was taken possession of by the lessee. In such cases the lessee was not liable. (Johnson v. Lewis, 13 Conn. 303; Kearney, Appellant, v. Central Railroad Co., 167 Pa. St. 362, 31 Atl. 637; Philadelphia & R. R. Co. v. Smith, 64 Fed. 679.)
In this state the lessee may be liable under some circumstances, but only upon notice pleaded and proved. (Mo. Pac. Rly. Co. v. Webster, 3 Kan. App. 106, 42 Pac. 845.)
This disposes of the errors assigned, and the judgments are affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This case comes to this court on an appeal from an order sustaining a demurrer to the plaintiff’s reply to the defendant’s answer.
On February 20, 1907, and prior thereto, Charles E. Martin was the owner of an oil-and-gas lease on 80 acres of land, and the Hudson Oil and Gas Company held leases on 1040 acres of other land, all west of Chanute, in Neosho county. On that date the city, in one written instrument, submitted a bid for the leases on the Martin 80 acres and the Hudson company 1040 acres, offering to pay the total sum of $7500 for the entire property. The bid specified that $2500 would be paid for the Martin property, and $5000 for that belonging to the Hudson company. Both Martin and the Hudson company accepted the bid and made separate assignments to the city of their interests in the leases. The city refused to pay, and suit was brought against it by Charles E. Martin to recover the amount it agreed to pay him. He recovered judgment. The case was then brought to this court on appeal, and the judgment was affirmed in Martin v. City of Chanute, 86 Kan. 26, 119 Pac. 377. The present action is the. remaining or the Hudson company end of the transaction. The Hudson company assigned its interest to the plaintiff. In this action the defendant has pleaded the same defenses that were set up, litigated and adjudicated in the former case. The, question presented on this appeal is: Was the demurrer properly sustained?
The plaintiff, contends that by the judgment in Martin v. City of Chanute, rendered in the district court of Neosho county and affirmed by this court, the city is now estopped from setting up as matters of defense the matters that were set up as defenses in the former action. If this contention is correct the judgment must be reversed.
The plaintiff argues that the bid of the city for the Martin lease and the Hudson company leases was joint in every particular except as to the amount to be paid to Martin and to the Hudson company, and that therefore the adjudication in the former action merges the defenses of the city into the judgment in that action. In the former action the trial court instructed the jury as follows:
“The bid of the city is both joint and several; that is to say, the bid did not bind the city to accept the assignment from Martin, unless the Hudson Oil & Gas Company also assigned to it the gas rights under its lands described in the bid; and, on the other hand, the city was not bound to accept the assignment from The Hudson Oil & Gas Company unless Martin also assigned to it the gas rights under his 80-acre tract of land. The bid being for all the lands described therein. The bid is several in the respect that it was a bid in the sum of $5000 for the Hudson holdings described in the bid and a separate bid of $2500 for the 80 acres in section 85, being the 80 acres alleged to be held by the plaintiff in the case, Charles E. Martin.” '
By affirming the judgment in that action, this instruction was approved by this court.
We do not think the plaintiff’s interpretation of the con tract is correct. Under the common law the contract would not be joint, so far as Martin and the Hudson company were concerned. Martin was to receive a specified amount for his property, and the Hudson company was to receive another and a different amount for its property. Payment to either would not discharge the obligation of the city to the other. . If either of these parties had been paid by the city, the other could maintain an action to compel payment to him. The contract between Martin and the city, when once completed, had nothing to do with the contract between the city and the Hudson company. There was no privity between Martin and the Hudson company under the contract as originally completed. There was no contractual relation between them. Martin accepted the city’s proposition for himself. The Hudson company did the same thing for itself. Martin’s acceptance was in one document, that of the Hudson company in another. They were complete strangers to each other. No action of any kind could be maintained by one against the other on account of this contract.
Two farmers own adjoining tracts of land. A third person desires to buy both tracts, but will not buy either one alone. He communicates to the two farmers a single proposition that he will pay so much money for the two tracts, dividing that amount so as to make the proposition an offer of so much for one tract and of so much for the other. Each farmer accepts the proposition made. The third person then refuses to comply with his contract. The two farmers can not maintain one action to compel performance of the contract. Each has the right to maintain his own action. One might compel specific performance, and the other recover damages for nonperformance.
The plaintiff quotes from 23 Cyc. 1208, as follows:
“Where a contract or obligation which is the subject of an action is a joint contract or obligation, a recovery against one of the joint contractors merges the entire cause of action, and bars any subsequent suit on the same obligation against any of the other debtors, or against all jointly; and conversely a judgment against all the joint contractors bars a subsequent suit against any one of them separately. The effect of this principle can not be avoided by consent of the parties.”
We quote a little more from the same volume, as foilows:
“In several states statutes have been enacted which reverse the common-law rule just stated, either by declaring all joint contracts to be joint and several in legal effect, or by providing that'plaintiff may have a separate action against defendants joined in a previous suit on a joint obligation but who were not served with process in that action. In either case the cause of action is not merged by a recovery against one of the joint debtors. . . . Where the contract or obligation is joint and several, it is not merged in a judgment recovered against one of the contractors, and such judgment, remaining unsatisfied, will not bar an action against another of the debtors. . . . Where the obligation is joint and several, the creditor can elect either to sue and recover separately of each of the debtors or of all jointly, but he can not do both; a separate judgment against one or more bars a subsequent joint action, and a joint judgment against all will bar subsequent separate suits.” (pp. 1209-1211.)
Section 1638 of the General Statutes of 1909 reads:
“All contracts which by the common law are joint only, shall be construed to be joint and several.” '
Other sections are :
“In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.
“Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable.” (§§ 1641, 1642.)
Under these statutes, there are no joint contracts in this state, as they were known at common law. In Jenks v. School District, 18 Kan. 356, this court said:
“Where a suit is brought against joint and several obligors, in which process is not served on all the defendants, judgment may be taken against those served, and the judgment is no bar to subsequent proceedings against one not served at the rendition of the judgment.” (Syl. ¶ 2.)
These statutes, Jenks v. School District, supra, and 23 Cyc. 1209-1211, take the contract in controversy out of the control of the rule given in 23 Cyc. 1208, quoted in the plaintiff’s brief.
The plaintiff can not rely on res judicata, because there are three elements lacking to make the judgment in the former action an estoppel, or res judicata, in this one. First, lack of identity in the subject matter of the action. The subject matter of this action is the contract between the defendant and the Hudson company. In the former action it was the contract between the defendant and Martin. Second, lack of identity in the cause of action. The cause of action in this action is the defendant’s promise to pay the Hudson company $5000. In the former action it was the defendant’s promise to pay Martin $2500. Third, lack of identity in the quality of Martin as plaintiff in the two actions. In the former, action, Martin recovered judgment on the promise to pay him. In this action he is’seeking to recover judgment on the promise to pay the Hudson company. These are entirely distinct personages.
For the elements necessary to constitute res judicata, see Benz v. Hines and Tarr, 3 Kan. 390; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kan. 127; McDowell v. Gibson, 58 Kan. 607, 608, 50 Pac. 870, and The State v. Kaemmerling, 83 Kan. 383, 111 Pac. 441.
The demurrer was properly sustained. The judgment of the district court is affirmed. The cause is remanded with instructions to the trial court to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Mason, J.:
Dolly Murray began an action against the Empire District Electric Company for causing the death of her husband by the negligent operation of its dam on Spring river. The defendant filed an answer setting out these four defenses: (1) a general denial; (2) contributory negligence; (3) the lawfulness of its use of the dam; and (4) negligence of third persons. The plaintiff demurred to the third and fourth defenses. The demurrer was sustained and the defendant appeals.
The petition alleged that the plaintiff’s husband was traveling with a team and wagon, along an Oklahoma highway, where it crosses the river by a ford, about three and a half miles below the defendant’s dam. “That the defendant carelessly and negligently and without giving plaintiff’s said husband any warning, notice or signal, and without having any warning, signal or notice at said ford, opened the gates, doors or other means of releasing and discharging the water of said river in said dam, and carelessly and negligently caused said1, water in great quantities to rush and flow down said stream so> that an immense flood poured down said stream'so that am immense flood poured down upon plaintiff’s said husband, thereby drowning him to death; that the defendant knew of the constant use and public travel on said road and of the presence of plaintiff’s husband thereon, and should have reasonably expected such road and ford would be in use at said time, or by the exercise of ordinary care could have known of the presence of deceased and travelers on said road in said river and could have prevented said flood and flow of water and his death if it had have exercised reasonable care or caution in the premises.”
The third defense, after stating that the defendant’s dam is maintained to create power for the manufacture of electricity, proceeds thus:
“And that said dam was at the time of said alleged accident and ever since said dam was built, maintained and used in a reasonable and proper manner so as not to interfere with the steady and constant natural flow of said stream except to that extent which is reasonable in the operation of said dam, for said purposes, and as defendant had a right to do.
“And defendant especially avers that at the time of the alleged accident to plaintiff’s intestate it was using and operating said dam in the reasonable and lawful manner and in such manner as it had a right to do.”
The defendant interprets the ruling of the trial court as implying that it can be held liable upon a mere showing that the death resulted from the operation of its dam, without proof of any negligence on its part; and its argument is largely directed to a refutation of this theory. The plaintiff, however, makes no such contention, but maintains that the demurrer was rightly sustained because the allegation of the lawfulness of the defendant’s conduct is a mere conclusion of law, and amounts only to a denial of the charge of negligence.
We do not regard the ruling as open to the construction placed upon it by the defendant, nor as erroneous. The third defense states in effect that the defendant’s conduct with respect to the dam was rightful, and if this is true no liability could attach to it. But, as suggested, this is a mere conclusion and essentially nothing but a denial of the plaintiff’s allegation that its conduct was wrongful. It adds nothing to the development of the issues, for nothing could be proved under it that would not be admissible under the general denial. If the language demurred to is construed as meaning that the defendant used the dam in a manner that was reasonable and proper with respect to the results to be accomplished in the operation of its plant, this constitutes no defense. The fact that a particular act on its part is reasonably adapted to the lawful .prosecution of the defendant’s business does not necessarily make its performance rightful. If the death of the plaintiff’s husband was due to the conduct of the defendant, its liability depends upon whether, in view of all the circumstances and surroundings, it violated in that respect any duty which it owed him. The petition, in effect and in general terms, affirmed this to be the case, and the answer denied it. An issue of fact was thereby joined, to which the third defense added nothing.
The fourth defense was demurrable. If the negligence of the defendant was the proximate cause of the death of the plaintiff’s husband, the concurrent negligence of a third person can not affect its liability. (29 Cyc. 497, 498.)
The views stated require an affirmance of the judgment, and there is nothing before us upon which to determine any other questions affecting the defendant’s liability.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
This appeal chiefly presents the narrow question whether an application is sufficient to open a judgment obtained by publication service when verified by defendant’s attorney “on information and belief.”
The facts in brief were these: On January 12, 1910, the plaintiff brought a suit to quiet title to a quarter section of land in Rice county. Service on some of the defendants, including Richard M. Vanatta, William V. McCulley and William R. Mc-Culley, was effected by publication. On April 6, 1910, a default judgment was rendered against these defendants. On April 3, 1913, three days before this judgment became absolute, defendant Vanatta and the two McCulleys filed their application to open the judgment. Notice was served on plaintiff, and the defendants’ answer was attached to the application.
To conform to the statute requiring the defendants in such case “to make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he- had no actual notice thereof in time to appear in court and make his defense” (Civ. Code, § 83), their attorney filed an affidavit in part as follows:
“That he is duly authorized attorney for the defendants above named; that each of the said defendants, Richard M. Vanatta, William V. Mc-Culley, and William R. McCulley, is a non-resident of the state of Kansas, and is absent from Rice county, Kansas, at the present time; that this affiant has full power to make this affidavit as attorney for the said parties; that affiant has read the above and foregoing application on behalf of the said defendants, and that the matters and things therein set forth and the allegations and averments therein contained are true', as this affiant is informed and verily believed.”
When the application came on to be heard, the court took it under advisement; and thereafter the defendants, by leave of court, filed amended and supplemental affidavits sufficient in scope and form to warrant the court in granting their application if they had been filed in time. The court granted the application, and set aside the judgment as to these defendants; but later the attorneys withdrew their appearance for the McCulleys and the judgment was reinstated as to them; and after a hearing, Richard Vanatta was adjudged to have an interest in the land in controversy.
The appellant offered to prove by defendant Richard Vanatta that he personally did not know of the pendency of the action prior to April 6,1918, and that he had not employed or authorized any attorney to appear for him prior to that date. This proffered evidence was excluded.
In substance the errors assigned are (1) opening of the judgment on the affidavit filed by counsel “on information and belief,” and (2) the exclusion of evidence.
Counsel for appellant concedes that the first of these is practically the only question in the case.
It would be gratifying if we could say that the- authorities and precedents on this question were clearer and more harmonious. We do find, however, a strong analogy between the present question and those which have arisen on publication service initiated on defective affidavits. ■ Any valid judgment must be based on valid service. A valid service by publication can be based only on a positive affidavit. But this court has repeatedly held that while an affidavit for publication service, verified only “on information and belief,” is invalid, it is not void, and even after judgment such defective affidavit may be amended by positive verification. (Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830; Long v. Fife, 45 Kan. 271, 25 Pac. 594; Morris v. Robbins, 83 Kan. 335; 111 Pac. 470.) These cases likewise show that mere formal defects may be corrected by amendment.
What is the purpose of affidavits to support an application to open a judgment? It is “to make it appear to the satisfaction of the court” that the defendants had no actual notice of the action in time to appear and make their defense. The important matter is the fact of their want of notice and that the court be satisfied on that point. If the affidavits recite all the necessary-facts- to challenge the attention and conscience of the court, it would be a hard rule to hold that because of defective verification, or verification in the only way an attorney employed by a nonresident client could verify, the chancellor should have regard-to the form rather than the substance of the plea before him. We think the analogous cases already cited must govern here. Assuming that the verification of counsel, “on information and belief” was invalid, it certainly was not void. It could be amended or supplemented by positive affidavits while the application was still pending, even though the three years had elapsed ere they were filed; and the district court did not err in opening this judgment on the showing thus made.
Complaint is made because the court would not permit defendant Vanatta to be questioned by' plaintiff’s counsel to show that prior to April 6, 1913, he had no knowledge of the pendency of the action to quiet plaintiff’s title against him, and that prior to that date he had not employed the attorney who made the affidavit in his behalf. April 6, 1913, was the date on which the three years allowed by the statute to open a judgment on publication service would expire. Vanatta’s attorney had filed his application, notice and affidavit on April 3. If the court had permitted this evidence it would have been another item of testimony to show that on equitable grounds the judgment should have been opened — the matter about which plaintiff principally appeals. We search this record in vain to find that any issue was squarely raised challenging the right of counsel to appear for Vanatta. (4 Cyc. 928.) Applying the elementary rule of principal and agent, that when the principal afterwards ratifies the act of the agent and adopts it as his own, it is no concern of others that the agent’s act did not in the first instance have the positive sanction of his principal. This rule is even more elastic where the principal and agent are client and attorney, for in such cases it is very common that the attorney, the agént, must act upon his own judgment, skill and learning, and depend upon his client’s later acquiescence. Here defendant Vanatta was present in the court room, presumably advising with his counsel and ratifying what his counsel had already done in his behalf. (Dresser v. Wood, 15 Kan. 344, syl. ¶ 6; 4 Cyc. 927.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
J. A. Robinson, a resident of Colorado, in January, 1909, left Denver upon a freight train, accompanying a shipment of live stock and goods over the Rock Island railroad to Apache, Okla. At Phillipsburg, in this state, some switching was done, in the course of which the car containing his property was severely jolted. Shortly afterwards he was found dead in the car, bruises upon his head showing that he was killed by some violent means. In January, 1911, an action was brought against the company by his widow, charging his death to have been occasioned by' the negligent handling of the car. She recovered a judgment and the defendant appeals.
Many questions are raised, but the view taken by the court of two phases of the matter makes it unnecessary to discuss any other in detail. The body was taken for burial to the home of the decedent’s father, in Iowa. On March 12, 1909, the father, Jesse Robinson, petitioned an Iowa court to be appointed administrator, and was appointed and qualified. Six days later he brought an action as administrator in the Iowa court to recover damages for the death of his son. On April 12 the defendant filed a general denial. On April 24 the administrator applied to the court for leave to settle the claim against the railroad company for $750, and an order was made to that effect. On May 6, 1909, the company paid to the widow $750 ($50 of which was on account of the freight paid) and took a receipt signed by her and by a domiciliary administrator appointed in Colorado, reciting a compromise of the claim, and purporting to release all demands growing out of the matter. On November 22 an entry was made upon the records of the court in which the damage suit was pending, which the company asserts had the effect of a dismissal with prejudice, constituting a bar to any further action.
The plaintiff contends that at the time of the settlement she was suffering from an illness which, combined with the shock she had received, so far impaired her faculties that she was incapable of transacting business. The defendant complains of an instruction given upon that issue, to determine the force of which involves a consideration of the evidence on the subject. Several witnesses, two of them physicians, testified that she was in a highly nervous condition, and in their judgment mentally unsound and incapable of transacting business. She herself testified that between the summer of 1908 and September, 1909, she was sick most of the time; that she remembered some things partly but did not remember others; that she did not remember anything about the conversation on the day the release was signed, but there was an impression left on her mind of a railroad man being there that day, who had come to pay for the death of her husband, but she could not remember whether she settled with him or anything about what she did do. The day after the settlement she wrote a letter to her relatives in which she said:
“I will now write you a few lines in haste. I wrote you the other day I suppose you have got it before now-
“We have been sick every since I wrote and I write soon as I find out about the settlement with. Guss [Gus Kyle, who had accompanied J. A. Robinson on the trip]. We had to pay him for he had a neighbor wittness with him once-when he first got back & Ed Lary [the Colorado administrator] promised to pay him if he staid around here & on that grounds we could n’t keep from paying it, but it could n’t be helped & I hope he feels better & that it is the last he will ever get out of me. Will [W. H. Anderson, who also had accompanied Robinson]- came back here too. yu know I suppose but he could n’t do any thing or no one when Guss brought up this plea. Will had just as well staid in Iowa, but he was crazy to get back here I think & that was an excuse for him, but I have a job on the road for work for the mules at 4.00 a day and I told him he can drive them. The work may last most all summer if he gets along with the road boss, if not I will get some one else. He said he work for $20 month and I could n’t get a man here for less than 1.00 or 1.50 a day so I can save some from what they earn me. The R. R. man came here and settled with me. he said he would n’t and could n’t settle with Boorman [the lawyer who brought the action in Iowa] no one but me, so he gave me the draft for 750. You send me what your expenses have been. Time I pay Guss, Will & Boorman I wont have much left. . . . You send me what you want for this trouble & expenses & I am willing to send you. I wrote Boorman for his charges. I fear he will want all I got. Write sometime soon.”
On the same day she wrote to the Iowa lawyer who had brought the damage action there:
“The claim agent has come here to see me and urged or said that they would not settle with no one but the widow or the right persons and he had come here to find out the full particulars so he gave the draft to me for 750.00 and I have it cashed now you will send me your charges. And it is all settled. Write me what you think and ect. & ect. In Haste, I am, yours Truly.”
In November, 1910, she wrote to the clerk of the Iowa court, asking copies of the papers in the proceedings there, saying:
“I am a Mrs. Hattie Robinson. — My husband was killed a year ago last Jan. at Phillispburg, Kansas. And Lawyer Boreman of Atlantic took the case, and seemed to have been bought off by the R. I. Railroad, any how he wrote me to settle with the company for the sum of 750,— which they offered me & I did so from his advice.
“Now these lawyers of Kansas are trying to reenstate the case for me. And I will send you their last full letter that you may better understand what we want arid have you send all such papers you can get for us that we will need. I am not writing Mr. Boreman, thinking he might not be fair with me. And I have never employed - any other lawyer in Iowa. My father in law is Jesse Robinson at Griswold. Now in regard to a judgment entered in the case in Iowa, I don’t know anything about it but don’t think there was a thing done only Boreman sworn as Attorney. I signed the paper, to that effect and that was all. & I dont know what Mr. Robinson did but the suit was brought in my name. But we must have all these papers or copies and we know of no other to write too. And you please see to it and send to Mrs. Hattie E. Robinson, Brush, Colo. Lock Box 5.
“As soon as convenient and your charges.”
The letters written just after the settlement go far to establish a clear conception of the entire transaction and a capacity to do business intelligently. (Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849.) The instruction to which objection is made reads as follows:
“You are instructed that in case you find that the-death of said J. A. Robinson was caused by the negligence of defendant company and its employees and that defendant is primarily liable you may take into consideration the adequacy or inadequacy of the amount named in the settlement or release signed by the plaintiff May 6th, 1909, for the death of her husband, as bearing upon the question of her competency or incompetency to make said settlement of release.”
It is doubtless true in a sense that in determining the condition of the plaintiff’s mind the amount accepted by her in settlement may be taken into account — neither that nor any other circumstance need be excluded from consideration. But no other instruction was given on this subject, except a statement of the issue, and the singling out of that matter gave it an apparent importance beyond what it wás entitled to, and may well have led the jury to attach too much-weight to it. They may have held the negotiations for a settlement void because of the result reached rather than because of the condition of the plaintiff’s mind during their pendency. Moreover, whatever inference of incompetence might legitimately be drawn from a claimant accepting a small sum in settlement for an injury would turn upon whether the adjustment was improvident in view of all the circumstances, including the possibilities of being defeated in litigation, a matter in which the advice of a lawyer would naturally be very influential. The instruction quoted makes no reference to this phase of the matter, but rather merely directs the attention of the jury to the small amount received in comparison with the extent of the loss she had suffered. Assuming that the railroad company was admittedly liable, the amount paid was obviously inadequate to compensate the plaintiff for her loss, and this con sideration may have formed the real basis for the jury’s disregarding the settlement.
It was shown that under the laws of Colorado the administrator could not maintain an action for the death of his intestate, and therefore he could bring none here. (Limekiller, Adm’x, v. H. & St. J. Rld. Co., 33 Kan. 83, 5 Pac. 401.) Doubtless his release was therefore without effect. The difficult question arises upon a consideration of the effect of the Iowa proceedings. In behalf of the plaintiff it is asserted that the appointment of an administrator in Iowa was wholly void, and that even if it had been valid, the record in the Iowa damage action is not such as to interpose a bar to the present proceeding.
The appointment of an administrator in Colorado was made on February 8, 1909. It is contended that this precluded a later appointment in Iowa. The existence of a domiciliary administrator, however, does not cut off an appointment elsewhere, not based on domicile. (18 Cyc. 69.) It is urged, upon the authority of Metrakos v. Railway Co., 91 Kan. 342, 137 Pac. 953, that the Iowa administrator could not maintain an action here for the death of his intestate. That case (the deceased being a resident of Kansas) turned upon the impolicy of recognizing a foreign administrator to the exclusion of one Who should have been appointed here. A more serious attack upon the validity of the Iowa appointment is based upon the fact that the administrator testified in the present case that so far as he knew the deceased had no property in Iowa. The order of appointment recites the existence of personal property estimated at the probable value of $50. The requirement of the federal constitution that full faith and credit shall be given to the judicial proceedings of another state does not forbid an inquiry into the question whether the facts existed upon which jurisdiction depended, even to the extent of contradicting the record. (13 A. & E. Encycl. of L. 992, 993; 23 Cyc. 1576, 1580.) Such an inquiry is permitted to the same extent to which it could be had in respect to a domestic judgment. (23 Cyc. 1546.) This court has held that the appointment of ah administrator may be attacked collaterally by a showing that in fact the decedent left no property upon which to base it. (Perry, Adm’r, v. St. J. & W. Rld Co., 29 Kan. 420.) That decision is contrary to the rule applied with respect to other jurisdictional matters in the same connection. (Cox, Adm’r, v. Kansas City, 86 Kan. 298, 301, 120 Pac. 553. See, also, Miller v. Miller, 89 Kan. 151, 130 Pac. 681.) It was justified by the argument that to say that a finding of fact by a court is conclusive evidence of its own jurisdiction would be “reasoning in a circle” — an argument that can hardly be deemed sufficient, since the ordinary rule is that no collateral attack can be made upon a finding of fact made by a court of record, even although its jurisdiction depends upon it. In a note in 81 Am. St. Rep. 558, it is said:
“This decision is in conflict whh the great weight of authority, and, we believe, opposed to every substantial reason. As we have previously seen, convenience, justice, and public policy demand a different rule when the administrator’s authority is drawn in question in a collateral proceeding.”
In Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, it was held that the authority of an administrator may be impeached collaterally by showing that the deceased was not a resident of the county where the appointment was made. This is likewise against the great weight of judicial opinion. (Note, 81 Am. St. Rep. 548-552.) The decision is largely based upon a statement that “Where the jurisdiction depends on some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be questioned collaterally and disproved, even though the jurisdictional fact be averred of record, and was actually found on evidence by the court rendering the judgment.” (17 A. & E. Encycl. of L. 1084.) But that text was explicitly made applicable only to proceedings in courts of inferior jurisdiction, and in the note reference was made to the different rule which obtains with respect to those of general powers. (17 A. & E. Encycl. of L. 1080-1081.) These decisions will not be overruled. Any inconvenience resulting from them may be avoided by legislation. But the fact that they are out of harmony with the prevailing view of the law is a reason for confining their application within the narrowest limits.
The judgment in this action can not in any event be upheld on the theory that the appointment of an administrator in Iowa was a nullity. The record made a prima facie case for its validity. The evidence against it was inconclusive. In Kansas an administrator of the estate of a nonresident can not be appointed to collect a death claim unless the decedent left property in the state. {Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420.) But an appointment for the real purpose of such collection may be made upon the basis of purely nominal assets. {Cox, Adm’r, v. Kansas City, 86 Kan. 298, 120 Pac. 553.) It can hardly be doubted that if it had been to the interest of the plaintiff to uphold the Iowa appointment evidence might have been found of the existence of some inconsequential article upon which to base jurisdiction. The utmost effect of the testimony given was to make the validity of the appointment a question of fact for the jury. It was not submitted to them, the trial court evidently considering the appointment a nullity as a matter of law. We know as -a matter of fact that in Iowa an administrator may be appointed, in the absence of any property, to enforce, for the benefit of the persons entitled thereto, a claim for damages growing out of the death of a nonresident intestate. {In re Stone’s Estate, [Iowa, 1914] 145 N. W. 903.) But this was not shown in evidence, and judicial notice is not taken of the laws of another state. If the cause were remanded for the determination of the question whether the Iowa court had power to appoint an administrator it could unquestionably be shown that by the law of that state jurisdiction existed irrespective of the presence of property. While that is classed as a question of fact, it is essentially one for the determination of a court without the intervention of a jury {Hutchings v. Railway Co., 84 Kan. 479, 114 Pac. 1077), and one that admits of ascertainment beyond question. In Bershears v. Nelson, 80 Kan. 194, 101 Pac. 1011, this court reversed a judgment rendered on an account for intoxicating liquors bought and sold in Missouri, because of the plaintiff’s failure to prove that such a sale was not unlawful in that state, the presumption being that a prohibitory law like that of Kansas was in force there. But that decision was rendered before the taking effect of the present code, by which the power of the supreme court to end litigation on appeal has been enlarged. (Civ. Code, §§ 580, 581; Ratliff v. Railroad Co., 86 Kan. 938, 122 Pac. 1023; Hess v. Conway, 93 Kan. 246, 251, 144 Pac. 205.) In the case last cited it was said:
“Sometimes the court is in need of extraneous evidence respecting some situation or fact to enable it to determine, not the propriety of the conduct of the district court, but the nature of the judgment to be directed. Sometimes a document, or public record, or other item of evidence of like character, material to a proper determination of the appeal and substantially incontestible, is called for, or is examined if produced, and then is treated in the same way as an admission of the parties would be treated if found in the record. These instances are illustrative, and no doubt many occasions will'present themselves when it will be important for the court to avail itself of knowledge of some fact not established at the trial in order that it may make just disposition of an appeal.” (p. 251.)
It would be a futile proceeding to send a cause back to the district court to investigate a question concerning which there can be no actual controversy whatever. We shall therefore treat the appointment of the Iowa administrator as valid.
It remains to consider the effect of the record of the disposal of the action for damages brought in the Iowa court. It reads in full as follows:
“In the District Court of the State of Iowa in and for Cass County. In Vacation.
Jesse Robinson, Admr. vs. C., R. I. & P. Ry. Co.
No. 6900.
“Now, on this 22nd day of November, 1909, the above entitled cause is settled and costs paid, and is dismissed by the clerk in vacation at request of plaintiff.
“District Court Record ‘T’ page 427. Entry on face of Appearance Judgment Docket and Pee Book No. 19, case No. 6900.
“This action is hereby dismissed.
“H. M. Boorman, Att’y- for Plff.”
For the plaintiff it is contended that this is not the record of a judgment at all; that the law and practice of Iowa must be presumed to be the same as in this state, no showing having been made to the contrary, and that here such an entry would not disclose a final judgment. It is true that in Kansas a judgment may not be rendered in vacation, or entered by the clerk (except upon return of a verdict, as provided in section 407 of the code) without some, action having been taken by the judge. But even here the record quoted would show that the plaintiff agreed to the dismissal of the case because bf its having been settled. Our code provides that an action may under certain circumstances be dismissed “by the plaintiff.” An order of the court is necessary to the actual dismissal (Boot and Shoe Co. v. Derse, 41 Kan. 150, 21 Pac. 167), but the plaintiff has full control of the matter. The record therefore, interpreted in the light of our own practice, shows a judicial proceeding — the beginning of an action, and its discontinuance at the instance of the plaintiff because of a settlement. And the requirement of the federal constitution is that full faith and credit shall be given, not alone to judgments rendered in other states, but “to the public acts, records, and judicial proceedings of every other state.” (Const., U. S., Art. 4, § 1.)
The practice is not uniform with respect to. the extent to which judicial notice is taken of the statutes of another state in determining the effect of the record of a judgment there rendered. In a few states the courts take judicial notice of the laws upon which the judgment is based. (2 Freeman on Judgments, 4th ed., § 571;, Note, 11 Am. Dec. 783.) A reason originally given for this practice was that in the event of an appeal to the federal supreme court cognizance would be taken of such laws — a reason which is falacious, since the fact is otherwise. (Hanley v. Donoghue, 116 U. S. 1.) That court has declared, however, that “where one state recognizes acts done in pursuance of the laws of another state, its courts will take judicial cognizance of those laws, so far as it may be necessary to determine the validity of the acts alleged to be in conformity with them.” (Carpenter v. Dexter, 75 U. S. 513, 531.) Applying this principle the author of the note last cited said: “Certainly a court can not give effect to a judgment, or recognize it as a judgment, without taking notice of the law under which it was obtained.” (11 Am. Dec. 783.)
Whatever may be the case elsewhere, in Kansas the rule that judicial notice is not taken of the law of another state is subject to this important exception — notice is taken without proof of the constitution of other states, so far as the jurisdiction of courts is shown. (Butcher v. The Bank of Brownsville, 2 Kan. 70; Dodge v. Coffin, 15 Kan. 277.) In the case last cited an Illinois judgment was given effect, upon a record stating that it was rendered in vacation, without any showing of a difference in the laws of the two states. A paragraph of the syllabus reads:
“It will be presumed, in the absence of evidence to the contrary, in favor of courts of general jurisdiction of sister states, that they have the authority they assume to exercise, and that the modes of procedure pursued by them, though different from that established by the laws of this state, are authorized by the laws of the state in which they act.” (Syl. ¶ 2.)
Justice Valentine dissented from the proposition that judicial notice should be taken of any part of the constitution of another state, but reached the same result, so .far as relates to the present matter, expressing his conclusion in this language:
“But the presumption in favor of the regularity and validity of judicial records is sometimes strong enough to make the record of judicial proceedings from anothér state valid, although, if its regularity and validity were to be determined by the laws of our own state, we would hold the record or some portion thereof void. ... In such a case the presumption in favor of the regularity and validity of the record is stronger than the presumption that the laws of the other state are like ours; and in such a case it is presumed that the laws of the other state are such as to make the record valid.” (p. 285.)-
To an extent, at least, this is in accordance with the practice elsewhere. In a note in 103 Am. St. Rep. 322 it is said:
“The general tendency is to assume that a court of another state would not have undertaken to exercise a jurisdiction which it did not possess, and he against whom its judgment is sought to be asserted must usually assume the burden' of proving that its assumption of jurisdiction was unauthorized.”
(See, also, State ex rel. v. Weber, 96 Minn. 422, 105 N. W. 105; Council Bluffs Savings Bank v. Griswold, 50 Neb. 753, 757, 70 N. W. 376.)
While in other jurisdictions there are cases to the contrary (Note, 67 L. R. A. 56) the Kansas decision quoted from affords a just basis for upholding the Iowa administratorship, and perhaps for presuming that the laws of Iowa empowered the clerk to enter the order of dismissal. Such presumption is in accordance with the actual fact, although this was not shown in evidence. The Iowa statute provides that “Any party to any claim may dismiss the same in vacation, and the clerk shall make the proper entry of dismissal on the record.” (Code of Iowa, 1897, § 3768; Luse v. Luse, 144 Iowa, 396, 122 N. W. 970.) In any event, upon the grounds already stated, no good purpose could be served by sending the case back to the district court to ascertain the law of Iowa on the subject.
The fair interpretation of the record is that of a dismissal upon agreement or settlement, which is a bar to a further ac tion. (23 Cyc. 1141; 24 A. & E. Encycl. of L. 807; United States v. Parker, 120 U. S. 89.) In Jacobs v. Marks, 182 U. S. 583, it was held that a dismissal upon a promissory agreement which was not complied with did not constitute an adjudication, but the rule declared in the Parker case, j ust cited, was not modified. No suggestion is made that the settlement on which the dismissal was based was not in fact performed. The inental condition of Mrs. Robinson at the time is not a basis for annulling the force of the judicial record in Iowa. We are of the opinion that it would have been necessary to have that set aside before the present action would lie.
The judgment is reversed and the cause remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
West, J.:
The plaintiffs appeal from an order sustaining a demurrer to their petition. A street-car conductor was shot and fatally wounded by a drunken passenger. The petition alleged in substance that in obedience to his company’s rules and in accordance with his duty the deceased remonstrated with this passenger and sought to maintain order and proper conduct on the car, which angered the passenger, who upon arriving at his destination addressed profane and insulting language to the conductor, and was requested by him to leave the car, and thereupon backed out into the vestibule, and just as he was leaving the car fired the fatal shot; that the shooting was the result of the efforts made by the conductor to maintain order, that his assailant was too drunk to be responsible for his actions, and that the deceased sustained his injuries wholly and solely by reason of the rules and regulations of the company and his obedience thereof and compliance therewith. These rules are in substance that employees are required to exercise constant care to prevent injury to persons or property and in all cases of doubt to take the safe side; that conductors and motormen must treat all passengers with politeness, avoid difficulty, and exercise patience, forbearance and self-control under all conditions, and must not make threatening gestures or use loud, uncivil, indecent or profane language even under the greatest provocation; that no passenger shall be forcibly ejected without the order of an inspector, starter or official of the company-unless the conduct of the passenger is dangerous or grossly offensive'. No passenger shall be ejected for mere intoxication unless dangerous or offensive, and then with great care, and must be guided until free from probable injury.
It is impossible to see how the conductor could have taken employment without incurring the danger incident to all conductors from drunken and disorderly passengers who now and then infest the cars of common carriers. Equally difficult is it to preceive how the fact that the conductor remonstrated With the disorderly passenger without any attempt to eject him was the cause of the injury in the sense that it can be attributed to the negligence of the company. It is alleged that the effect and purpose of such rules were to benefit and protect the defendant’s property and to protect it from the claims of passengers arising on account of the wrongful acts of other passengers and that such rules wrongfully placed the deceased in a situation of danger. But the rules appear to be but a fair expression of the common-law duty devolving upon common carriers and also the natural duty which would be required by the dictates of humanity and in no just sense can it be said that the rules made the car a place of danger to the conductor, because it is apparent that it was the malevolence of the murderous passenger that made the place dangerous and caused the injury.
No liability can arise save from failure of duty. While it is argued that the company owed it to its employee not to make the rules quoted and also the affirmative duty to warn him, it is apparent that such rules were quite fair to him, their natural effect being to avert rather than to court danger. A conductor soon becomes more familiar with the passengers on his run than the officers of the company, and no conductor need be told what everybody knows, that a drunken man is likely to be dangerous. He was told by the rules, however, how to act when such a character had to be dealt with, and had he exceeded them and attempted to assault, eject or resist his assailant more promptly or more forcibly than he did he would probably have only met his mortal injury the sooner.
Counsel rely on cited authorities, a number of which will be briefly noticed. Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049, declared the rule that where a master orders a servant into a place of danger he will not be denied a recovery for an injury received in consequence of his obedience on account of contributory negligence or assumption of risk, “unless the danger was so glaring that no prudent man would have encountered it, even under orders from one having authority over him.” (Syl. ¶ 2.) There the workman while operating a hydraulic jack expressed his fears of its condition but was assured of its safety by the foreman and directed to proceed. In Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153, a similar ruling was made, the injured party having been ordered to stop a moving car in accordance with certain rules of the railroad company. It was said in the opinion that he was required to be loyal as well as to be careful, and the same might be said of the conductor in this case, which presents no situation of an employee suddenly ordered into a place of danger. Stephens v. The Hannibal & St. J. Ry. Co., 96 Mo. 207, is in line with the Wurtenberger case. Holzhouser v. Denver, G. & E. Co., 18 Colo. App. 431, 72 Pac. 289, holds that an employer who puts an employee at work knowing that he will be in danger of injury by strikers is bound to warn him of such danger, a situation not presented nor analogous to the one set up in the petition. Howe v. Buffalo, N. Y. & Erie R. R. Co., 37 N. Y. 297, involved the liability of the company for the ejection of a passenger by its conductor, who in obedience to its rules refused to take a ticket issued by another company. The conductor was sued and held liable, and this decision fixed the liability over of his employer. T. & N. O. Ry. Co. v. Echols, 87 Tex. 339, 345, 27 S. W. 60, 28 S. W. 517, declares the doctrine that while it is the master’s duty to make rules for the safety of his employees in a complex business, in a work which an or dinary workman can readily understand, and which involves no dangerous machinery or extra hazard, such rules are not required. Herr v. Green, 156 Iowa, 532, 136 N. W. 511, was the ordinary case of a servant ordered to perform a dangerous task, his obedience not carrying with it an assumption of risk. Kelly v. Shelby R. Co., 15 Ky. Law Rep. 311, 22 S. W. 445, is somewhat similar in fact and effect to the Holzhouser case, the plaintiff’s nonsuit being affirmed. In Holmes v. Southern Pacific Co., 120 Cal. 357, 52 Pac. 652, a rule of the company that a stick must be used in making certain couplings was held to be void if impracticable, and it was declared that the nonobservance of such a rule would be no defense. Warn v. N. Y. C. & H. R. R. R. Co., 80 Hun (N. Y. Supr. Ct.), 71, holds-that a corporation in making rules, for its employees must use ordinary care to anticipate and guard against dangers. Our attention is called to sections 2453 and 2454 of volume 6 of the second edition of Labatt on Master and Servant as a side light on this case. These sections discuss actions against employers for injuries caused by their servants — especially in assault cases, but do not touch upon an action by a servant against his company for an assault committed by a passenger.
The case principally relied on is Baxter v. Roberts, 44 Cal. 187. There a‘carpenter while engaged in tearing away some boards from a fence enclosing a lot owned by the defendant, was shot by some one who claimed possession of the lot. The trial court instructed that if the defendant knew or had reason to believe that resistance would be offered, it was his duty to impart .such knowledge to his employee. This was held proper, and it was said:
“The general principle which forbids the employer to expose the employe to unusual risks in the course of his employment, and to conceal from him the fact of such danger, is not affected by the fact that the danger known to the employer arose from the tortious or felonious purposes or designs of third persons acting in hostility to the interests of the employer and through agencies beyond his control.” (p. 192.)
It is true that the petition alleges that the officers of the company were more experienced in the operation of street cars than the deceased, and well knew that the rules would place him in a situation of danger and were enacted for the purpose of protecting the company from claims of passengers arising from the wrongful acts of other passengers. It was alleged that the defendant had not elected to come within the provisions of the compensation act (Laws 1911, ch. 218), and it is urged that for this reason it can not plead assumption of risk. But while the petition was demurred to, and hence assumption was not pleaded, the fact remains that no defense need be pleaded until a cause of action is stated, and none can be stated without alleging some failure of duty. As already indicated, we are unable to deduce such failure from the averments of the petition, and are therefore constrained to hold that the demurrer was rightfully sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The main question in this case is whether the court erred in sustaining a demurrer to defendants’ evidence. The plaintiffs, who are real-estate agents, sued to recover their commission upon an exchange of properties. On a former trial the court set aside a verdict for defendants. From the ruling granting a new trial defendants appealed and the judgment was affirmed. (Avery v. Howell, 91 Kan. 297, 137 Pac. 785.) Before the second trial defendants filed an amended answer in which they admitted having made a written contract with Hanna, the person procured by plaintiffs, by which they agreed to exchange certain lands for a stock of merchandise and other property he claimed to own. The answer alleged that they, were induced to execute the contract by false representations by Hanna that the property belonged to him and that the total of the incumbrances upon it amounted, to $6500; that in fact he was not the owner of all the property, and the indebtedness against it was greatly in excess of the amount stated. The answer further alleged that the false statements were known to and acquiesced in by the plaintiffs. There was a further allegation that Hanna was not able and willing to carry out the contract on his part. The court placed the burden of proof as to fraud upon defendants. There was a direct conflict in the evidence as to what representations were made about the amount of incumbrances against Hanna’s property, and what was said by Avery to Howell, who had charge of the trade for defendants. No evidence was offered by defendants, showing any statements or representations made as alleged in the answer by Hanna, except that the written contract and the bill of sale described the property as his, and the amount of incumbrances mentioned was $6500.
There was some evidence to sustain the defense of fraud, and some upon which the jury might have found that no fraud was established, and therefore the case should have gone to the jury. The court could not invade the province of the jury by weighing the evidence. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531, affirmed in Valley Township v. Stiles, 77 Kan. 557, 560, 95 Pac. 572; Madden v. Stegman, 88 Kan. 29, 30, 127 Pac. 524; Smith v. Schriver, 91 Kan. 582, 585, 138 Pac. 584; Terry v. Gravel Co., 93 Kan. 125, 129, 143 Pac. 485; Bowes v. Sly, ante, p. 388, 152 Pac. 17.)
For another reason the court was not warranted in rendering judgment in plaintiffs’ favor. Before they could recover it devolved upon them to establish the fact that they procured a purchaser ready, able and willing to exchange properties on the terms agreed. This was specially denied in the answer. Here was a material issue on which plaintiffs had the burden. For some reason not apparent from the record, the court ignored this issue and tried only the question of fraud. While the burden was on the defendants to establish fraud, they might have been willing to rest their whole defense on the failure of plaintiffs to satisfy the jury upon the other issue.
It follows, therefore, that the judgment must be reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Porter, J.:
In this action plaintiff seeks to recover damages for personal injuries alleged to have been sustained while in the act of getting on a freight train. The jury returned a verdict in favor of the defendant, which the trial court approved, and plaintiff appeals.
The plaintiff loaded two cars of stock for shipment from the station at Burns, Kan., to Kansas City, under a contract which entitled him to transportation. His cars were attached to the train, and after it started he succeeded in climbing upon one of the cars for the purpose of getting to the caboose. In some way his foot slipped upon the ballast, and he was jerked around against the side of the car and inj ured. At the trial he testified, on cross-examination, that he signed a shipping con tract similar to an impression copy which was exhibited to him. Over his objections, the court admitted the paper in evidence. It is claimed that this was error, because it was not the original, and there was no proper foundation laid for admitting a copy. It was, however, an impression copy of the original, a facsimile, made at the same time. Ordinarily, these are treated the same as originals. (Glass Co. v. Pierce, 87 Kan. 548, 549, 125 Pac. 108; Wilkes v. Coal Co., 95 Kan. 493, 494, 148 Pac. 768.) Where such a copy has been properly identified, is legible, and there is no suggestion of subsequent alteration, or any reason shown why the original would answer the purpose as evidence better, either may be used as primary evidence.
The cattle were consigned to a commission firm at Kansas City, Mo., and therefore the shipment was interstate. The contract contained a provision that no action for the recovery of any damages arising out of the shipment, or of any contract pertaining thereto, should. be maintained unless commenced within six months after the injury. The failure of plaintiff to begin suit within six months was urged as a bar to the action, although not pleaded in the answer. Under the doctrine in the Kalina case (Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438) it is not necessary to plead the defense where it appears in the progress of the trial that plaintiff is seeking to recover upon a shipping contract containing such a condition. The federal courts have held repeatedly that the carrier may limit his' liability by reasonable requirements of this character. (See authorities cited in the opinion in Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183.) In Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600, we held, in a case involving an interstate shipment,' that a limitation clause requiring that actions to recover for inj ury to property transported must be commenced within ninety days was not unreasonable. The limitation in the present case of six months must be held to be reasonable; and it follows that the plaintiff’s failure to comply with this condition precedent bars his right to recover, and renders it unnecessary to consider the other contentions respecting alleged trial errors.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The Union Pacific Railroad Company has filed a petition for a rehearing, in which it reminds us that it was never a party to the extremely low rates voluntarily established by the Santa Fe railway between the Pittsburg coal district and the Hutchinson-Kanopolis salt district and intermediate points. We casually noted this in our original opinion, but as the cases of the two railroads were heard together before the public utilities commission, and before the district court, and were briefed, argued and submitted jointly in this court, it was presumed that the same judgment should be entered in both cases here. However, the individuality of the two suits was technically preserved throughout, and since this court grounded its reversal of the district court upon the controlling fact that the Santa Fe had voluntarily established and long maintained the low rate of $1 per ton between the coal district and the salt district, and that this rate was a proper factor in making a rate structure from Pittsburg to Concordia, we must concede that this controlling fact as to the Santa Fe does not apply to the Union Pacific. The Union Pacific rate is not based on Abilene, nor is Abilene on any direct line from Pittsburg to Concordia via the Union Pacific. Since the Union Pacific had a longer mileage and had to divide its earnings with connecting railroads reaching this coal district, it was not improper for it to decline to meet the short-line low rate of the Santa Fe before the reduction made by the commission, nor need it do so now. If it does not meet the Santa Fe short-line rate, it will not get much of this particular traffic, but those conditions are not uncommon. Where one railroad can only reach a common destination with its competitor by a long and circuitous route, it frequently finds it altogether unprofitable to compete in rates with the short-line railroad. Eliminating the voluntary low rates of the Santa Fe as a factor in making a Union Pacific rate structure from the coal district of Concordia, there is nothing tangible upon which to base a reversal of the judgment of the district court as to the Union Pacific without disturbing well-established principles of law. But a rehearing is unnecessary. We now modify our first opinion, and hold that the judgment of the district court in the Santa Fe case, No. 19,726, is reversed, and that the judgment of the district court in the Union Pacific case, No. 19,725, is affirmed.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an application for a writ of mandamus to compel the mayor and commissioners of Topeka to call an election to determine whether the city of Topeka should abandon its commission form of government and return to the old system of government by a mayor and councilmen.
The statute authorizing such election is section 1241 of the General Statutes of 1909, which, in part, reads:
“Any city which shall have operated for more than four years under the provisions of this act may abandon such organization thereunder and accept the provisions of the general law of the state then applicable to the cities of its population, or if now organized under special charter may resume said special charter, by proceeding as follows: Upon the petition of not less than twenty-five per centum of the electors-of such city, a special election shall be called at which the following proposition only shall be submitted: ‘Shall the city of (name the city) abandon its organization under chapter 114 of the General Session Laws of 1907, and the acts amendatory thereto, and become a city under the general law governing cities of like population (or, if now organized under special charter, shall resume said special charter) ? . . . The sufficiency of such petition shall be determined, the election ordered and conducted, and the result declared, generally as provided by section 3 of this act, in so far as the provisions thereof are applicable.”
On February 3,1915, the plaintiff and 6099 other petitioners filed with the city clerk a petition with their signatures attached, seeking that such election be called. The city clerk examined the petition and found that of the total number of petitioners only 2290 were registered, and as the total number of registered voters in Topeka at that time was 16,978, the qualified petitioners did not amount to the twenty-five per centum fixed by the statute to set in motion this election machinery. The plaintiff demanded a return of the petition, and this was refused. Some time later, he and others filed another petition, which for the purposes of this case may be considered as an amendment to the original petition, although we need not decide that point, which second petition contained 1679 signatures. That petition taken separately or as an amendment to the original and the number of names on both petitions totaled did not contain twenty-five per centum of the registered voters of the city, and the city clerk made his report to the mayor and commissioners accordingly, and they declined to call the election.
Plaintiff again demanded the return of the petitions and this was again refused. Hence this lawsuit.
Only one question is involved. Is it necessary that the petitioners under section 1241 of the General Statutes of 1909 be registered voters? The closing language of that.section provides that the sufficiency of the petition shall be determined as provided in section 3 of the same act so far as applicable. It is apparent that the figure “3” is a misnomer. Section 3 has nothing to say about petitions or elections. It relates to oaths of office, salaries of mayor and commissioners and the time to be devoted to their duties. (Laws 1909, ch. 74, § 3, Gen Stat. 1909, § 1231.) The original act relating to commission government in cities of the first class was chapter 114 of the Laws of 1907. It did not provide for the recall of city officers nor for the abandonment of commission government. In 1909 certain amendments were made to the act of 1907 (Laws 1909, ch. 74), among which were two independent sections; section 5 providing for the recall of city officers and section 7 providing for an election to abandon the commission form of government. Section 5 (Gen. Stat. 1909, § 1239) is the only section of the latter act, or of either act, to which the reference at the close of section 7 (Gen. Stat. 1909, § 1241) could apply. Obviously and undoubtedly section 5 is intended. Force and effect are to be given to the words requiring the sufficiency of the petition to be determined, and this is readily and conclusively done by reference to section 5. And otherwise it is utterly abortive and nonsensical. Section 5 covers recall elections in detail. It provides that upon presentation of a petition signed by twenty-five per centum of the voters of the city demanding a recall election, it shall be the duty of the city clerk to ascertain the sufficiency of the petition as follows:
“Within ten days from the date of filing such petition the city clerk shall examine and from the voters’ register ascertain whether or not said petition is signed by the requisite number of qualified electors . . . and he shall attach to said petition his certificate showing the result of such examination. If by the clerk’s certificate the petition is shown to be insufficient, it may be amended within ten days from the date of said certificate. The clerk shall, within ten days after such amendment, make like examination of the amended petition, and if his certificate shall show the same to be insufficient, it shall be returned to the person filing the. same.” (Laws 1909, ch. 74, § 5, Gen Stat. 1909, § 1239.)
This is the section to which the legislature intended to refer for the determination of the sufficiency of plaintiff’s petition. Nor does this do the slightest violence to standard rules of statutory construction. It is familiar law that legislative enactments are not any more than any other documents to be defeated on account of errors, mistakes or omissions. Where one word or figure has been erroneously used for another or a word omitted, and the context affords the means of correction, the proper word or figure will be deemed substituted or supplied. This is only, making the naked letter of the statute yield to its obvious intent. (Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 273; Reese v. Hammond, 94 Kan. 459, 146 Pac. 997; Sutherland on Statutory Construction, § 260.) From this it follows that the petitioners are not entitled to a writ of mandamus requiring the defendants to call the election; but are they entitled to the writ directing defendants to return to plaintiff the petition? We think so. The statute provides for this in specific terms.
“And if his (the city clerk’s) certificate shall show the same (the petition) to be insufficient, it shall be returned to the person filing the same.” (Laws 1909, ch. 74, § 5, Gen. Stat. 1909, § 1239.)
There is a specious suggestion that the petitions show some evidence of criminality and that it would be convenient to have them kept where the county attorney could have access to them if he cared to institute some sort of criminal proceedings. If any such hypothetical case shall develop into an actuality, it will be no inconvenience to the prosecuting officer to procure them from the plaintiff, P. H. Coney, and the writ will issue directing the defendants to surrender the petitions to him as the statute prescribes.
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover on a promissory note. From a judgment for the plaintiffs the defendant appeals.
The defendant admits the execution of the note, but claims exemption from payment by reason of the following contract:
“We, the undersigned directors of the King Manufacturing Company, hereby authorize the secretary of the said company to turn over to C. M. Millisack and Dr. H. H. Keith the first $1500 received from the sale of the capital stock of the said company in excess of $2000 to be sold first for cash.
“The stock issued on the receipt of the said $1500 is to be transferred from C. M. Millisack and Dr. H. H. Keith to the purchasers in equal proportions as sold.
“In consideration of this transaction the said C. M. Millisack and Dr. H. H.-Keith agree to surrender the promissory notes given by the undersigned and aggregating $1000.
“The secretary of the said company is hereby authorized to pay out of the general fund of the company any accruing interest resulting from this agreement and charge same to the stock commission account.”
In the month of October, 1910, The King Manufacturing Company was a corporation doing business at Topeka, and C. M. Millisack and Dr. H. H. Keith, the plaintiffs, and George Kelly, the defendant, with J. O. Boyle, William Seyler and F. L. Speer, were stockholders and directors of the company. At that time the company was indebted to various creditors in the sum of $1500. At a meeting of the board of directors, at which the defendant was present, it was proposed that if the plaintiffs would furnish the company with $1500 with which to meet the indebtedness, the defendant Kelly, with J. O. Boyle, William Seyler, and F. L. Speer, would each execute and deliver to the plaintiffs their individual notes for $250. The plaintiffs paid the company the $1500, which was used to pay its debts, and the defendant and the other directors each executed to the plaintiffs a note for the amount named. The note executed by the defendant Kelly is the one sued on in this action. It is not claimed that anything was received by the plaintiffs from the sale of capital stock.
The controlling question in this case is, Did the agreement set out provide for the surrender of the note sued on before the plaintiffs had received $1500 from the sale of capital stock? The defendant argues that the words, “In consideration of this transaction, the said C. M. Millisack and Dr. H. H. Keith agree to surrender the promissory notes given by the undersigned and aggregating $1000/’ provide for the surrender of the note when the contract was signed. It was not surrendered, probably because the parties to the contract did not then understand that it was to be surrendered. No reason is given why it was not surrendered. The transaction mentioned in the sentence quoted evidently means the other things that were tó be done under the contract; that when C. M. Millisack and Dr. H. H. Keith had received $1500 from the sale of capital stock, in excess of $2000 to be sold first for cash, the notes signed by the defendant and his associates should be surrendered.
This is the reasonable construction of the contract. This construction gives effect to all the terms of the contract. It provides a method for the payment of the notes, and when thus paid the notes shall be surrendered to the makers thereof without other direct payment by them.
The judgment of the court is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff, Otis E. Samuelson, bought a farm of 184 acres in Lyon county from the defendant, William Palmer, on February 26, 1909. The price was $55 per acre. As an inducement to Samuelson to purchase the farm, Palmer executed the following written undertaking:
“I hereby agree to give Otis E. Samuelson, $7.50 per acre in advance of the price he has paid me for 184 acres of Allen Creek, Lyon Co., Kansas, formerly owned by Samuel P. Maddon.
“Expiration of this agreement, .Feb’y 26, 1910.
“(Signed) William Palmer.
“February 25th, 1910. This agreement extended to May 26th 1910.
“(Signed) William Palmer.
“It is understood by W. Palmer that he has to bear all expenses above the $62.50 per acre, including interest on $3000.00 loan and all other expenses incurred. (Signed) William Palmer.
“This agreement is extended one yeár from Feb’y- 26th, 1910.
“(Signed) William Palmer.
“(Signed) O. E. Samuelson.
“This agreement is extended two years from Feb. 26th, 1911.
' “(Signed) William Palmer.
“(Signed) O. E. Samuelson.”
Several days prior to the first expiration of this agreement Samuelson notified Palmer that he would turn over the land and expected him to pay $62.50 per acre, or $7.50 in advance of what he gave for it. On the day of the expiration Samuelson came to Medicine Lodge and offered to turn over the deed to this farm upon the payment to him of the agreed price. Palmer said that money was scarce, that he did not have the money, and asked for an extension of time, which was granted him by the appellant, and the notation was made as shown on the original written undertaking.
On or about May 26, 1910, Samuelson came to see Palmer, the appellee, and demanded the amount that was due him according to the agreement; that he had the deed and was willing to make it out to him. The appellee again said that he did not have the money, and that the best he could do would be to have this agreement extended until May 26, 1911, to which the appellant agreed.
Again, on February 26, 1911, Samuelson asked Palmer to carry out his agreement, but he refused to do so. Appellant was ready and willing at the time to turn over the deed for the consideration of the purchase price, the interest and expenses, and the advance of $7.50 per acre. This is shown by the last endorsement, but as a similar arrangement was made on February 26, 1912, and the space on the paper for endorsements was exhausted, the last endorsement was altered by mutual consent, so as to read "that it expired February 26,' 1913. At the expiration of the last extension of time (or after-wards) the defendant Palmer told the plaintiff that he could not comply with the terms of his written undertaking, and Samuelson brought this action, setting up the facts and asking for judgment for $5520 as damages for breach of contract.
The plaintiff offered to prove that each extension was made in consideration of an oral promise on the part of Palmer to pay an additional sum of $7.50 per acre; that is, an advance of $7.50 per annum per acre. This advance of $7.50 per acre per annum would be $30 per acre in four years, and it is on this theory of $30 per acre for one hundred and eighty-four acres that the aggregate damages of $5520 are claimed. •
Defendant’s answer was a general denial,, and at the trial a demurrer to plaintiff’s evidence was sustained. On this ruling and the exclusion of plaintiff’s proffered testimony that the several extensions were made in consideration of defendant’s oral promise to pay an advance of $7.50 per acre per annum for each of these extensions, this appeal is'taken.
1. The writing and its endorsements are not ambiguous. The endorsements all refer to “this agreement.” What agreement? Clearly the original agreement. The endorsements merely extend the time when the defendant was to take the land at the advance of $7.50 per acre over the original purchase price. The admission of oral testimony to prove that an advance of $7.50 per annum for each extension would disturb all settled rules of evidence touching the integrity of written instruments. Certainly the exclusion of such testimony was not error.
Counsel cite standard authorities to show that written contracts duly executed import a consideration, and that parol testimony is competent to show what the consideration actually was. Very true. And in this case, it was competent to show the consideration for the instrument in controversy. That consideration was the inducement to Samuelson to buy Palmer’s farm. But the obligation of Palmer, for that inducement and as the consideration, was Palmer’s written offer to repurchase the farm at an advance of $7.50 per acre. To show by parol evidence what the unmentioned. consideration actually was is competent; to alter the plain terms of the written instrument by parol testimony would never do.
2. What effect does this have on the general result ? It does not appear that the plaintiff makes any claim’ to be entitled to judgment for $7.50 per acre at this time. The last extension expired on February 26, 1913. Perhaps he was not willing to surrender the farm at the end of four years for a mere advance of $7.50 per acre. His action was brought to recover the promised advance of $30 per acre under a parol agreement collateral to the written undertaking and its endorsed extensions. Moreover, there is a dispute in the testimony, or rather in the abstracts of the parties, on the question whether Samuelson accepted Palmer’s offer within the term of the last extension expiring February 26, 1913. To clear up this difficulty we have resorted to the original transcript. In it we find:
Direct examination. of Samuelson:
“Q. Now at the end of that year, or along about February 26, 1913, did you call upon Mr. Palmer again? A. Yes, sir.
“Q. Did you have any conversation with him? A. Yes, sir.
“Q. State what that was? A. I had a conversation with him to deliver a deed over to him for this land, and for him to pay me for the land that was agreed to.”
Cross-examination:
“Q. Did you see him (Palmer) any time in the month of February, 1913. A. I think not. It was very close to the latter part of the month. I notified him but I could n’t come up, it stormed.
“Q. What is your best judgment about when you did see Mr. Palmer? A. I think it was perhaps thirty days, maybe more and maybe a little less.
“Q Well, do you mean that it stormed for thirty days that you could n’t come up from Capron, Oklahoma? A. I do not mean it stormed that much.
“Q. You meant that you didn’t come on the 26th on account of the storm? A. Yes sir, but I think there was something else that come up after the storm.
“Q. What is your best j'udgment when it was you came up? A. Well, didn’t I answer that question? Is not that the same question?
“Q. You said it was as much as 30 days pr maybe more? A. That is to .the best of my recollection. It might have been six weeks.”
From these excerpts of the plaintiff’s evidence, it seems clear that no acceptance of Palmer’s offer to repurchase the farm was made by Samuelson during the period of the last extension nor for a month or six weeks thereafter. This was too late. (Bras v. Sheffield, 49 Kan. 702, 710, 31 Pac. 306; Blanchard v. Jackson, 55 Kan. 239, 37 Pac. 986; Chadsey v. Condley, 62 Kan. 853, 62 Pac. 663.)
In 39 Cyc. 1241, 1243, it is said:
“Acceptance must be made and conditions performed within the time, if any, limited by the option in order to constitute a contract of sale, time being of the essence in such contracts. . . . The time within which the offer is to be accepted may be extended by the parties either expressly or by their conduct in treating the option as still in force; but such extension may be withdrawn before acceptance unless made upon a consideration.”
It can not be held that Samuelson at any time was bound to sell the farm at the advance offered by Palmer in his written obligation. Passing by-the various extensions to the one expiring February 26, 1913, the district court was bound to hold that there was no acceptance sufficient to bind Palmer nor any made within the term of the last extension.
No reversible error appearing, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover a tract of land,situated in Decatur county. In 1878 it was conveyed to “Clarinda E. Smith & to the children either now or hereafter begotten of Josiah Smith & said Clarinda E. Smith.” In 1882 she and her husband conveyed it to Samuel H. Powell, and in 1899 he conveyed one-half of it to James A. Powell, and the remainder was conveyed to James in 1904. It appears that in 1881 a daughter was born to Clarinda E. and Josiah Smith, named Charlotte Irene, and that from 1891 to 1900 Van B. Wiggins acted as the guardian of the daughter. No claim was made by Wiggins to the land or to the rents and profits of the same in behalf of his ward during his guardianship. In March, 1911, Charlotte Irene and her husband executed a quitclaim deed to the land to one Townsend, who shortly afterwards transferred it by quitclaim deed to Wiggins. On September 9, 1912, Wiggins brought this action against James A. Powell and his wife, which resulted’ in a judgment in favor of the defendants.
It is insisted on this appeal that as Clarinda E. and Josiah Smith are dead, and that as Charlotte Irene is the only survivor she became the owner of the entire estate at their death, and that plaintiff having acquired her interest is entitled to recover the land. The defendants contend that Charlotte Irene was not in actual or potential existence when the deed to her parents was made, and even if it were assumed that any interest passed to her it was an estate tail which, under the rule of Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, became barred by the conveyance executed by Clarinda E. and Josiah Smith in 1882.
The principal defense, however, relied upon by the defendants is the statute of limitations. It is the contention of plaintiff that as this defense was not specially pleaded by the defendants it is not available to them. The action was ejectment, and the answer of defendants was a general denial. Plaintiff invokes the general rule that where the petition does not show upon its face that a cause of action is barred the defense of the statute of limitations must be specially pleaded, but he overlooks sections 619 and 620 of the civil code, which provide what pleadings are essential to raise the issue of ownership and upon which proof in this case was received. These provide what averments are necessary and sufficient to be alleged by plaintiff in his petition, and the plaintiff herein conformed to the prescribed requirements; and it is also provided that a general denial is a sufficient answer by the defendant. It has been determined that under these provisions the issues joined by a general denial entitle the defendant to produce any testimony that will strengthen his own title or defeat that of his adversary. (Taylor v. Danley, 83 Kan. 646, 112 Pac. 595; Gibson v. Plummer, 85 Kan. 226, 116 Pac. 618.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the plaintiff to recover a balance due for building material and to foreclose a mechanic’s lien. Defendants first obtained goods from plaintiff of the agreed price of $382.50. Plaintiff alleged that after-wards additional material, priced at $49.57, was purchased to be used in the completion of the building. The total amount of the purchase was therefore $382.07, and upon this bill the defendants paid $300, and it will therefore be seen that the substantial dispute between the parties was the liability of the defendants for $82.07. The defendants set up a counterclaim which is not now in contention. The jury found that the defendants were indebted to plaintiff in the sum of $54.50, and it having been found that $14.50 of that amount was for material not used in the building the court adjudged a lien upon defendants’ land to the extent of $40. The defendants appeal.
The first complaint is of the refusal of the court to require plaintiff to make the averments of his petition more definite and certain. No prejudice resulted to defendants from the denial of this motion.
Another complaint is that the testimony did not sufficiently show that all of the material for which judgment was given was used in the building. There was proof that the material was purchased to be used in making the improvement on defendants’ land, that it was taken by defendants to their premises, and that material of that kind was placed in the building. The proof, although not specific and strong as to all of the material used in the building, tends to show that all except certain things that were excluded from the amount of the lien by the court was used for that purpose. It is true, as defendants contend, that to entitle a person to a lien it must appear that the material was purchased to be used and was used in making the improvement, but strict proof that every article purchased is placed in the building is not easily obtained by the claimant nor is it always required.
“In ordinary cases it is enough to show that the materials were sold to be used in the building, and delivered to the builder, and there is some testimony showing that material of that character was actually used. In the absence of any proof or circumstance tending to show that material so furnished was moved or taken away, or that an unnecessary amount was used in the construction of the building, it will be presumed that that furnished was actually used.” (McGarry v. Averill, 50 Kan. 362, 365, 31 Pac. 1082, 34 Am. St. Rep. 120.)
(See, also, Rice & Floyd v. Hodge Bros., 26 Kan. 164; Surety Co. v. Lime Co., 76 Kan. 914, 92 Pac. 1111.)
No circumstance discrediting the evidence offered by the plaintiff as to the use of the materials included in the lien appears in the case. The proof offered by plaintiff was sufficient to make a prima facie case of delivery and use, and nothing was offered by defendants nor is found in the record to overcome the plaintiff’s proof.
There is nothing substantial in the objections to the special findings nor any of the other specifications of error.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to compel the state auditor to register bonds issued by a rural high school district under chapter 311 of the Laws of 1915. The auditor resists on these grounds: First, that the act violates section 16 of article 2 of the state constitution. Second, that the plaintiff is not a body corporate and has no authority to maintain this action. Third, that the provisions of the act are so indefinite as to confer no authority to issue bonds.
The title to the act reads:
“An Act relating to the establishment of rural high school districts and repealing chapter 262 of the Session Laws of 1911 and chapter 278 of the Session Laws of 1913 and all other acts and parts of acts in conflict herewith.”
It is contended that the title is not broad enough to include authority to issue bonds, and for that reason it violates section 16 of article 2 of the state constitution. This court has often said, concerning this provision, that no narrow or technical rule should be adopted to defeat the operation of a law, and that it is not necessary that the title be an abstract of the entire act. (Philpin v. McCarty, Supt., etc., 24 Kan. 393; The State v. Barrett, 27 Kan. 213; Mo. Pac. Rly. Co. v. Harrelson, 44 Kan. 253, 24 Pac. 465; Blaker v. Hood, 53 Kan. 499, 511, 36 Pac. 1115; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; Wilson v. Herink, 64 Kan. 607, 611, 68 Pac. 72; School District v. Atzenweiler, 67 Kan. 609, 611, 73 Pac. 927.) Another principle is: Before an act of the legislature can be declared invalid, it must clearly appear that the act violates some constitutional provision. (Atchison v. Bartholow, 4 Kan. 124; Leavenworth County v. Miller, 7 Kan. 479, 499; Beach v. Leahy, Treasurer, 11 Kan. 23, 28.) Observing these rules, we can not say that the establishment of rural high school districts does not include everything that is necessary to organize such school districts, build schoolhouses, and maintain and operate schools. The title of the act is not misleading. It is broad enough to include authority to vote bonds for the erection of a school building. The act is not unconstitutional.
2. It is urged that the plaintiff is not a body corporate and has no authority to maintain this action. Section 8 of the act in question (Laws 1915, eh. 311) provides that “rural high school districts shall be governed as provided by law for school districts except as provided in this act.” This gives to rural high school districts the same authority and places them under the same obligations as school districts, with the exceptions named in the act. Section 7397 of the General Statutes of 1909, a portion of the school law, in part reads :
“Every school district organized in pursuance of this act shall be a body corporate, and shall possess the usual powers of a corporation for public purposes, . . . and . . . may sue and be sued.”
Rural high school districts are therefore bodies corporate and have authority to sue and be sued. It follows that the plaintiff can maintain this action.
3. The defendant argues that the provisions of the act are so indefinite as to confer no authority to issue bonds. Section 2 provides that:
“Whenever a petition, signed by two-fifths of the legal electors residing in the territory of the proposed rural high school district, to be determined by an enumeration taken for this purpose, shall be presented to the board of county commissioners of the county in which lies the greatest portion of territory comprising said district, reciting the boundaries of said proposed district and requesting said board of county commissioners to call a special election to vote on establishing and locating a rural high school and to vote bonds for the construction of a high school building, the proposed location and the amount of the bonds proposed to be stated in the petition, it shall be the duty of the board of county commissioners forthwith to call a special election in said proposed district to vote on •establishing and locating a rural high school and to vote bonds therefor. All elections held under the provisions of this act shall be governed by the general election laws of the state when not contrary to this act.”
This should be construed with the laws governing school •districts in all matters concerning issuing bonds, and where this statute does not prescribe rules, we must look to the general school law. There we find laws governing the amount of bonds .that may be issued, and all other matters not covered by the law of 1915.
A peremptory'writ of mandamus will issue. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to set aside a decree of divorce on the ground of fraud. A demurrer to the petition on the ground the court was without jurisdiction was overruled and the defendants appeal..
The petition was filed in January, 1914, and stated that the plaintiff, Sarah M. Baird Blair and William Blair were married in the state of Vermont in the year 1867. They lived together in that state for some ten years, when Blair established a separate residence. In the year 1879 he went west. Soon afterwards the plaintiff lost trace of him and received no information of his whereabouts in his lifetime. In 1882 Blair procured a divorce from the plaintiff on the ground of abandonment, in the district court of Johnson county, Kansas. The service was by publication and Blair filed an affidavit that he did not know his wife’s place of residence and had no means of ascertaining it, the statutory excuse for not mailing her a copy of the petition and of the publication notice. The present petition charged that the affidavit was false, that the grounds for divorce stated in the divorce petition were false, that Blair had not been a resident of Kansas long enough to entitle him to sue for a divorce in this state, and that in truth he had willfully and without cause deserted and abandoned the plaintiff. The plaintiff did not learn of the divorce decree until in September, 1913. Sometime after the rendition of the divorce decree Blair married the defendant, Mary C. Blair, by whom he had one child, the defendant, Francis P. Blair. He died intestate in the year 1910 at West Plains, in Howell county, Missouri, where he resided, leaving a large amount of real and personal property. No administrator of his estate has been appointed. The prayer of the petition was that the decree of divorce be set aside and that the plaintiff be restored to all rights she had lost by reason of its rendition. Summons was served on the defendants in Missouri by the sheriff of Howell county after a proper showing of nonresidence and inability to make personal service in this state.
The character of the pleading by means of which the plaintiff invoked an exercise of the jurisdiction of the district court should first be understood.
The form of the petition is such that it is sufficient either as a petition to vacate a judgment for fraud practiced by the successful party, under the code of civil procedure, or as a petition to nullify the effect of a judgment, under the general equity power of the court to relieve against fraud.
It is well settled by previous decisions of this court that the decree of divorce was not void. All the formalities which the law required to be observed were observed. A verified petition showing that the plaintiff was a resident in good faith of Johnson county, had been such for more than a year, and stating a statutory ground for divorce, was filed. A proper showing for service by publication was made and a proper notice was published. A proper affidavit giving reasons for not mailing the petition and publication notice was filed. The prescribed preliminary steps having been taken, the court acquired jurisdiction. All that followed was the exercise of jurisdiction, and the journal entry of judgment discloses that the subsequent proceedings were regular in every particular. It made no difference if the affidavit giving the reason for not mailing a copy of the petition and of the notice were false. (Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487.) Blair was required to allege and prove residence such as the law required. It made no difference if the allegation were false. (Larimer v. Knoyle, supra.) Jurisdiction over the subject of divorce, a petition good on its face, and due service by publication gave the court the right to take the evidence and decide the question of residence. If the decision were wrong, it was not void for want of jurisdiction. (Miller v. Miller, 89 Kan. 151, 130 Pac. 681.) It made no difference if all the other allegations of the petition were false and were sustained by false testimony. The judgment would still not be void. (McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Miller v. Miller, supra.)
Although not void for want of jurisdiction a decree of divorce may be voidable for fraud. Such a decree may not be avoided, however, for any fraud inherent in the cause of action itself, or because the cause of action was established by false testimony. It can only be avoided for fraud external to the issues, that is, some fraud which prevented a fair submission of the controversy. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Cheever v. Kelly, ante, p. 269, 150 Pac. 529.) If the plaintiff had received by mail a copy of the divorce petition and a copy of the publication notice informing her of the suit and of the nature of the judgment which would be rendered in case she made default, it may be she would have been able to defeat the action by appearing at the trial and exposing the falsity of some or all of the material allegations of the petition. While the petition in the present case does not so allege, it may be assumed for present pur poses that the plaintiff was prevented from doing this because a copy of the divorce petition and of the publication notice were not mailed. If Blair did know his wife’s place of residence, or if he had means of áscertaining it, he committed a fraud on her and on the court by not mailing the documents referred to and by filing a false affidavit as an excuse for not doing so. This fraud was external to the issues in the case and was sufficient to vitiate the judgment if made the basis of a proper proceeding to that end.
No specific property of any kind is described in the petition. No possession by the defendants of any property formerly belonging to the deceased is alleged, and the property left by the deceased is described as situated in the state of Missouri, and so not within the jurisdiction of the district court. The antagonism between the plaintiff and the defendants stated in the petition is, in brief, this: The defendants claim to be the widow and child of the deceased by virtue of his second marriage; this marriage was void because the divorce from the plaintiff was procured by fraud; consequently the plaintiff is the widow of the deceased and as such entitled to a portion of his estate.
Such being the character of the plaintiff’s petition, what power did the court possess to entertain it?
The court had no power - whatever over the marital status which was the subject of the divorce action. That status was in the nature of a res, jurisdiction over which was acquired by the commencement of the divorce suit. When Blair died that res perished and neither the divorce court nor any other court has power to adjudicate with respect to the utterly nonexistent. The purpose of the divorce suit was to dissolve a status by severing the bonds of matrimony between Blair and his wife. Whatever right Blair had died with him. The cause of action presented in his petition was personal to him and did not survive to his personal representatives or to his heirs. If the judgment of divorce were set aside no marital relation could possibly exist to litigate about because death has effected a severance not dependent upon the variable judgments of courts. It is useless to indulge in fictions or to resort to sophistry. The fact may as well be faced, and the fact is that the marital status involved in the divorce case can not be rescued or revived and consequently is beyond the jurisdiction of the district court for any purpose.
The foregoing considerations by no means end the matter. A status is not all there is to matrimony, and dissolution of the status by death does not put an end to all that the marriage relation connoted. Certain property rights flow from the relation. This court has held that a husband can not deprive his nonresident wife of her interest in his real estate in Kansas by fraudulently procuring a judgment to be rendered against himself under which he causes the land to be sold and conveyed to one not an innocent purchaser. (McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663; McKelvey v. McKelvey, 79 Kan. 82, 99 Pac. 238.) The same protection should be extended to property rights when they are cut off by fraudulent litigation over the status in which such rights originate as when they are cut off by fraudulent litigation over some other subject. The nature of the particular sham hit upon to effect the result is not important. Consequently, while the marital status as such drops out of consideration in this case, there remains the subject of deprivation of property by means of fraud practiced in obtaining a judgment.
The decisions of courts of other states respecting the subject just discussed are not harmonious. The leading cases are presented in editorial notes found in 57 L. R. A. 583,1 L. R. A., n. s., 551, and 44 L. R. A., n. s., 505.
Regarding the petition in the light of a bill in equity for relief against fraud the district court of Johnson county was without jurisdiction. The perpetrator of the fraud charged is dead. The action is against persons who are, in a certain sense, beneficiaries of the fraud. Jurisdiction to relieve against fraud is not localized to the place where the fraud was committed nor to the place where evidence of the fraud is registered. From the standpoint of its general equity powers, the district court of Johnson county was obliged to view the divorce decree precisely as if it had been rendered by a court of competent jurisdiction in Missouri or in Vermont. The property which the plaintiff hopes ultimately to reach is in Missouri. The defendants reside in Missouri. Whatever pretensions the defendants make under color of the divorce decree are exhibited in Missouri, and consequently the only redress ible injury the plaintiff suffers occurs there. There is no provision of the code of civil procedure which authorizes the plaintiff to choose Johnson county, Kansas, as the forum for the establishment of her rights or which authorizes her to call the defendants into that county by publication, or by the legal equivalent of publication, personal service of summons in Missouri.
Regarding the petition in the light of a petition to vacate a judgment for fraud under the provision of the code of civil procedure, the court was without jurisdiction. Section 596 of the civil code provides that the district court shall have power to vacate its own judgments or orders at or after the term at which they were entered in nine specific instances. The fourth is for fraud practiced by the successful party in obtaining the judgment or order. The method of procedure is in some instances by simple motion and notice. In others, as in the case of fraud, greater formality is required. The applicant is required to file a petition which must conform to certain requirements, and a summons must be issued and served as at the commencement of an action. In some respects the latter proceeding takes the form of a new action and may present equitable aspects. (The State v. Soffietti, 90 Kan. 742, 136 Pac. 260.) The proceeding, however, is not an action but is a special proceeding, according to the definitions of the code (§§ 4, 5), and is in no sense a substitute for an equity suit cognizable under the general equity powers of the court. The petitioner is held to a substantial compliance with all the limitations imposed upon the remedy. (Daniel Hill v. Elias Williams, 6 Kan. 17; Sanford v. Weeks, 50 Kan. 339, 31 Pac. 1088; Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317.) The right of the petitioner is a legal right, and, generally, if the conditions imposed are complied with the judgment assailed must be set aside, while in an equity suit the court may exercise to the fullest extent the broadest chancery powers. The result of the proceeding is not a judgment (Civ. Code, § 393) but, should the petitioner prevail, is merely an order vacating the judgment already entered. The effect of such an order is to restore the parties to the position they occupied when the facts occurred which avoided the judgment. In case of fraud preventing a fair trial, setting aside the judgment does not abate the action, none of the proceedings anterior to the trial are affected, the merits of the case are not determined, and the cause simply stands for trial as it did when that stage of the proceedings was originally reached.
Because the marital status which is the subject of an action for divorce is forever removed from the jurisdiction of the court by the death of one of the parties, the parties can not be restored to the position they occupied when the fraud occurred, and the proceedings can not be taken up anew at that point, many well-reasoned cases hold the statutory remedy has no application, after the death of one of the parties to the suit, to a decree of divorce procured by fraud. This court has held that other statutory methods for opening judgments do not apply to divorce decrees. (Lewis v. Lewis, 15 Kan. 181.) The Lewis decision is supported by some rather artificial reasoning because the court was appalled at disastrous social consequences which would result from opening a divorce decree, not void but merely voidable, on the faith of which a second marriage has been contracted, children have been brought into the world, and rights of the most delicate nature and interests of the greatest moment have been innocently acquired.
“Such anomalous mischief cannot be engrafted on the practice of our courts, except by clear and explicit legislative enactment.” (p. 190.)
In an equitable action for relief on the ground of fraud these consequences may be considered in connection with the inertia of the moving party and other facts and circumstances appealing to the conscience.
If Blair were alive and had not remarried and the conditions of the statutory remedy were complied with, no reason is apparent why it should not be available to the plaintiff. If he were alive, and within the time allowed for vacating the judgment he had remarried, there is still no reason why the remedy should not be available. The statute does not make an exception of divorce decrees, or of divorce decrees in case a second marriage occur, and the statute itself is notice of power retained over the decree for a limited time. If the views already expressed be sound, that property rights flowing from the marital status may be recognized and protected although the status itself has been withdrawn from the jurisdiction of the court, Blair’s death ought not to prevent the plaintiff from invoking the statutory remedy.
The difficulty with the plaintiff’s case is that she waited more than thirty years after the decree of divorce was rendered before she commenced her proceeding to vacate it. The statute allowed her but two years. It reads as follows:
“The district court shall have power to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made. . . . Fourth, for fraud, practiced by the successful party, in obtaining the judgment or order.
“Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivisions four, five and seven of the next preceding section must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or person of unsound mind, and then within two years after removal of such disability.” (Civ. Code, §§ 596, 597.)
Section 597 is not a statute of limitation which may be tolled or which does not begin to run until knowledge of fraud. It is a time limitation imposed upon the court’s power to act. The language of section 596 is, “the district court shall have power.” In order that the court may have the power conferred proceedings “must be commenced” within the designated period. After that, authority to exercise the power granted is at an end. Without the statute power to vacate a judgment merely voidable would end with the expiration of the term at which the judgment was rendered. The statute makes a conditional extension of jurisdiction, the condition being that proceedings to vacate must be commenced within two years. No excuses for not beginning earlier other than those named in the statute can be recognized, and an order to vacate based on proceedings commenced after two years would be coram non judice and might be ignored whenever and wherever encountered. The courts have been quite unanimous in interpreting statutes of this character in this way whenever the precise question has been under decision. (Schwarz v. Oppenheimer, Strauss & Co., 90 Ala. 462, 8 South. 36; People v. Davis, 143 Cal. 673, 77 Pac. 651; The People v. District Court, 33 Colo. 405, 80 Pac. 1065; The People v. Wells, 255 Ill. 450, 99 N. E. 606; Gage Hotel Co. et al. v. Kantoos et al., 185 Ill. App. 393; Young v. Foster, [Ind. App. 1914] 104 N. E. 769; Whitbeck v. Railway Co’s., 21 Mont. 102, 52 Pac. 1098; Hallowell v. Sloan, 95 Neb. 1, 144 N. W. 1054; Cooper v. Cooper, 107 App. Div. 118, 94 N. Y. Supp. 814; Ellis & Gresham v. Ellis, 92 Tenn. 471, 22 S. W. 1; Elliott v. Bastian, 11 Utah, 452, 40 Pac. 713; State, ex rel. Boyle, v. Superior Court, 19 Wash. 128, 52 Pac. 1013; Elder v. Richmond Gold & Silver Min. Co., 58 Fed. 536; 23 Cyc. 907.)
The result is the district court was without jurisdiction to entertain the plaintiff’s petition, whether it be regarded as addressed to the general equity power of the court or as one to initiate a proceeding under the code.
The judgment of the district court is reversed and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff rcovered a judgment for services as a real-estate agent. Defendant in his appeal suggests no substantial grounds for a reversal. There was a conflict in the evidence upon the question whether Kraft, the person produced by plaintiff, was ready, able, and willing to exchange farms on terms satisfactory to defendant. The court fairly instructed the jury upon all the issues and the jury determined the facts in plaintiff’s favor.
It was conceded that the written contract for the exchange was void for the reason that it was not signed by Mrs. Kraft, and their farm consisted of a homestead. The arrangement between defendant and Kraft was that each should deposit his abstract and deed with E. W. Liggett, the agent of Kraft. Liggett was a witness, and over defendant’s objection was permitted to testify that Kraft’deposited with him a deed to his property and that Mrs. Kraft had joined in the deed. There was no error in the admission of this parol evidence. The contents of the deed were not in issue, nor was it the object of the evidence to establish a conveyance under the deed, but merely to show a compliance with the agreement to deposit the deed. The contents of the deed were only collaterally involved. In such a case it is held that the rule which requires the production of the instrument itself does not apply. (17 Cyc. 486; Trimble v. Shaffer, 3 G. Greene [Iowa], 233; Tucker v. Welsh, 17 Mass. 160, 164; Uhl v. Moorhous, Treasurer of White County, et al., 137 Ind. 445, 37 N. E. 366.)
In the last case cited a witness was permitted to testify that he had made a deed to Alfred Reed, his wife joining therein. The Indiana court said in the opinion:
“We do not concur in the assertion that the matters so testified are of the contents of the deed. They are, each and all, acts independent of the deed, though as to the execution of a deed to Alfred Reed, the fact could have been proven, also, by the deed. In this respect the question does not differ from those cases holding that parol evidence is admissible to prove the payment of a written contract where a receipt has been executed ; that an agent has been appointed, ‘though the appointment is in writing; a birth or marriage, where there is a public record of the fact; that a dog has been registered for taxation, etc.” (p. 446.)
Moreover, the defendant did not rely upon the fact that a deed in which Mrs. Kraft joined was not left with Liggett. His contention was that both Kraft and his wife had claimed subsequently that their signatures to the deed were obtained by fraud or mistake.
The court considered the verdict for $540 excessive, and required plaintiff to consent to a reduction to $300 or to a new trial. This was not error.
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The opinion of the court was delivered by
Mason, J.:
The city of Hutchinson adopted an ordinance for the disposal of garbage, providing among other things that no person except one designated by the municipal authorities should remove it through the streets, and that a contract for its removal should be let to the highest responsible bidder. The persons who were awarded the contract brought an action to restrain others from engaging in the business. A demurrer to the petition was sustained, and the plaintiffs appeal.
The sole question presented is the validity of the ordinance. The defendants maintain that the city has no power to create a monopoly of the occupation of removing garbage, which the ordinance defines as “all rejected waste food, offal.” They rely largely upon a decision of this court declaring that any regulation by the city of the business of scavengers “must leave a way open to every person who will comply with the requirements of the ordinance to engage, at least, in so much of the business of scavengers as relates to entering on private property and removing filth and garbage therefrom.” (In re Lowe, Petitioner, 54 Kan. 757, 766, 39 Pac. 710.) One basis of that decision was the view that the delegation by the legislature of such power to a city is prohibited by the last clause of section 2 of the bill of rights of the state constitution, which reads:
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
That clause had already, however, after careful consideration, been construed as referring solely to political privileges, and not to those relating to property rights. (Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 3 Pac. 284.) The two decisions are not reconcilable, and we adhere to the interpretation first placed upon the constitutional provision, which has subsequently been approved, the reference to the bill of rights in the Lowe case being characterized as inapt. (The State v. Durein, 70 Kan. 13, 19, 80 Pac. 987.) The other view would invalidate the statutes authorizing cities to grant various franchises, and the state charter board to accept or reject applications for incorporation.
The decision in the Lowe case was also based upon the theory that the ordinance was void because it attempted to create a monopoly of a lawful calling and was in restraint of trade. There is some difference of judicial opinion on the subject, but 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. (28 Cyc. 717; 20 A. & E. Encycl. of L. 867; 3 McQuillin on Municipal Corporations, § 914; Notes, 9 L. R. A., n. s., 1197; 21 L. R. A., n. s., 830; 4 Ann. Cas. 281; 19 Ann. Cas. 1221; 50 L. Ed. 204.) In one editorial note the Lowe case is described as seeming to stand alone on the proposition. (Note, 27 L. R. A. 540.) In another it is said to be “hardly supported by authority.” (Note, 97 Am. St. Rep. 691.) In a note to the text, the Lowe case is said to be the only decision which has been found in opposition to the principles thus stated in Dillon’s Municipal Corporations:
“The removal and disposal of garbage, offal, and other refuse matter is recognized as a proper subject for the exercise of- the power of a municipality to pass ordinances to promote the public health, comfort, and safety. The natural scope of an ordinance on this subject is confined to discarded and rejected matter, i. e., to such as is no longer of value to the owner for ordinary purposes of domestic. consumption. If the matter in question has not been rejected or abandoned as worthless and is not offensive in any way to the public health, it does not come within the natural scope of such an ordinance. Garbage matter and refuse are regarded by the decisions as inherently of such a nature as to be either actual or potential nuisances. By reason, of the inherent nature of the substance, it is therefore not a valid objection to an ordinance requiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is to deprive the owner or householder of such value. That the owner suffers some loss by destruction or removal without compensation is justified by the fact that the loss is occasioned through the exercise of the police power of the State, and the loss sustained by the individual is presumed to be compensated in the common benefit secured to the public.
“Founded upon the foregoing considerations, it is therefore within the power of the city not only to impose reasonable restrictions and regulations upon- the manner of removing garbage, but also, if it sees fit, to assume the exclusive control of the subject, and to provide that garbage and refuse matter shall only be removed by the officers of the city, or by a contractor hired by the city, or by some single individual to whom an exclusive license is granted for the purpose'. An exclusive right so created is not open to the objection that it is a monopoly.” (2 Dillon on Municipal Corporations, 6th ed., § 678.)
The present case might in some aspects be distinguished from a part of those cited in support of the majority doctrine, but after making due allowance for differences in decisions arising from differences in circumstances it is clear that the prevailing view favors the validity of such ordinances as that here involved. Inasmuch as the Lowe case was based, at least in part, on a misconception of the effect of a clause in the Kansas constitution, its force as an authority is greatly diminished. So far as concerns the question of an invasion of the provisions of the fourteenth amendment, the matter is practically set at rest by a decision of the federal supreme court. {Reduction Company v. Sanitary Works, 199 U. S. 306.)
The statute empowers the city—
“To make regulations to secure the general health of the city; to prevent and remove nuisances; . . . and prescribe and enforce regulations for . . . the cleaning and keeping in order of warehouses, stables, alleys, yards, private ways and grounds, outhouses, and other places where offensive matter is kept or allowed to accumulate, and to compel and regulate the removal of garbage and filth beyond the city limits.” (Gen. Stat. 1909, § 1278.)
The power so granted to adopt and enforce sanitary regulations is almost as broad as that of the state. It is conceded that the city may regulate the disposition of garbage, and impose rigorous rules as to the time and manner in which it shall be moved, because of the offensive and unwholesome odors arising from it. But it is argued that any one has a right, of which he can not lawfully be deprived, to haul it through the streets, so long as he conforms to the prescribed regulations — that the conferring of a monopoly in that respect is not necessary to enforce them, that it sustains no relation to their enforcement, and is not reasonably adapted to promote that end. But manifestly obedience to the rules laid down for the handling of garbage may be more easily compelled — the method adopted may be made more efficient — if it is all handled by one concern. In the special opinions in the Slaughter-House Cases (83 U. S. 36, 83; 111 U. S. 746, 754) it was vigorously argued that the establishment of a monopoly is not an appropriate step in promoting sanitation. The decisions to the contrary in those cases must be taken to settle the matter so far as the federal courts are concerned. In the Lowe case it was stated that a monopoly may be created for the discharge of the business of a scavenger so far as it consists in removing dead animals (54 Kan. 762), and this seems to be everywhere conceded. The principle being admitted or established that the creation of a monopoly is a device reasonably adapted to the enforcement of sanitary regulations, the question whether in a particular case it shall be employed is for the determination of the body-charged with the control of such matters. Monopolies, or any restraints on trade, are against public policy, but this is a rule of the common law and does not tie the hands of the legislature. (Slaughter-House Cases, 83 U. S. 36, 65, 66.) Where that body has acted directly its selection of this method of attaining a desired result is not subject to judicial review. Where a city ordinance is involved the power of the courts is broader and not so clearly defined. The reasonableness of the course pursued, in view of all the circumstances, and the degree of inconvenience resulting to individuals, may be taken into account. But where as in this case the matter is one of great public importance, which the legislature has entrusted to the action of local authorities — no doubt wisely, because of the differences in local conditions — the action of the city commission becomes entitled to consideration almost equal to that accorded to a statute, and should not be interfered with except upon grounds the force of which is reasonably free from doubt. We conclude that authority and reason alike require the upholding of the present ordinance.
It will be noted that the exclusive contract under consideration is required to be let to the highest bidder, implying that there is a margin of profit in the business. This feature has been held to render void a similar ordinance, on the theory that it shows conclusively that revenue and not sanitation furnished the motive for its adoption. (Dreyfus v. Boone, 88 Ark. 353. 114 S. W. 718.) We can not regard the mere fact that the city derives some revenue from the measure as taking it out of the category of police regulations.
The defendants urge that the ordinance is prohibited by the statute forbidding the granting of contracts or franchises for the use of the streets, except under certain conditions. (Gen. Stat. 1909, § 1330.) We regard that statute, however, as referring only* to the public utilities specifically named, or to those of a similar nature. The ordinance in question forbids the streets to be used for hauling garbage by any one not designated for the purpose by the city authorities, but it doe's not grant a right to use the streets, in the sense in which that phrase is employed in the statute. It forbids unauthorized persons to haul garbage on the streets, as a means to place that business in the control of a single concern.
The judgment is reversed and the cause remanded with directions to overrule the demurer to the petition. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought by the state to recover a tax upon a legacy and involves the construction of the inheritance-tax law.
The defendant is the sole beneficiary under the will of Louis Mollier, deceased, and is sued in her individual capacity and as executrix of the estate. The court sustained a demurrer to her answer. She elected to stand upon the answer and appeals from a judgment rendered in favor of the state. The defendant is the niece of Louis Mollier, deceased. • In his lifetime he was a Catholic priest and for several years was in charge of a parish in Cloud county. More than twenty years before his death he made an agreement with defendant that if she would make her home with him, act as his housekeeper, and look after his welfare as long as he lived, he would make a will and bequeath to her all his property. She fully performed the contract on her part and continued to live with him and care for him until his death, which occurred February 10, 1911. In 1901 he made his will and in recognition of the contract named her as his beneficiary. It was duly probated, and she was appointed executrix.
The inheritance-tax law (Laws 1909, ch. 248, Gen. Stat. 1909, §§ 9265-9291) was repealed by chapter 330 of the Laws of 1913. In 1915 it was reenacted with numerous changes. (Laws 1915, ch. 357.) The first section of the original act reads the same as section 1 of the act of 1915, and imposed an inheritance or succession tax upon all property “which shall pass by will or by the laws regulating intestate succession, or by deed, grant or gift made in contemplation of death, or made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust — except in case of a bona fide purchase for full consideration in money or money’s worth.”
The defendant claims that she acquired the property not by will but by a contract which had been fully executed by her at the time the will took effect; that the will was merely the means agreed upon by which to convey to her the legal title to property which had already become hers when Louis Mollier died. She claims also that her case falls within the exception mentioned in the "statute for the reason that she acquired the property by a bona fide purchase for full consideration in money’s worth. She relies upon decisions of this court holding that where the execution of a will is part of a contract to make a will, the contract will be enforced by the courts in favor of a person who has acted upon it. (Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; Holland v. Holland, 89 Kan. 730, 132 Pac. 989; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596.)
The doctrine of these cases is stated in the following excerpt from the opinion in the Schoonover case, supra:
“Where one has rendered personal services to another under an oral agreement for compensation by the devise of real estate, the contract may be enforced irrespective of the question of possession, where the services are of such a character that their money value can not be satisfactorily estimated.” (p. 489.)
Another case upon which defendant places considerable reliance is Nelson v. Schoonover, 89 Kan. 779, 132 Pac. 1183, where the court in an opinion denying a rehearing held that the land was not subject to the inheritance tax. Land was purchased and paid for by the husband, who took the title in his wife’s name under an agreement that she would make a will in his favor. She died without making such will, and the court decreed specific performance in favor of the husband. The point was raised in a petition for rehearing that the executor was entitled to hold the property for the purpose of paying the inheritance tax. In the opinion denying a rehearing it was said:
“It is suggested that an effort may be made to charge the land, to which the plaintiff is held to be entitled, with an inheritance tax, and that if such an effort should be successful payment would have to be made through the executor. The plaintiff does not derive title to the property by descent or will, but by contract. Under the findings of the trial court, which have been sustained upon appeal, the property was in a sense his before his wife’s death. .At all events he had paid for it, and was not chargeable with an inheritance tax. (37 Cyc. 1565.)” (p. 784.)
In the case just cited no will was executed and so the property did not fall within the letter of the statute imposing an inheritance tax. The defendant insists, however, that had Louis Mollier failed to make the will she would have been entitled to a decree for specific performance, or, in other words, a decree declaring the property to be hers by virtue of the contract; and that the fact that he complied with the contract and executed the will ought not to make her situation less favorable than if he had failed to do so and she had been compelled to obtain relief through a suit in equity. It is urged that her title vested when the contract was made, subject only to being defeated by her nonperformance, possession and enjoyment being only postponed during .the life of Louis Mollier; that the execution of the will was not required to vest her title, for the reason that in equity the property was hers at his death with or without a will, and that the courts, if no will had been made, would have decreed her the legal title. .
The contract between Louis Mollier and the defendant was1 made many years before the inheritance-tax law was enacted, and the will, executed in pursuance of the contract, was made in 1901, eight years before the law was passed; and it is urged by defendant that the evident spirit and purpose of the statute was to levy a tribute upon gratuitous transfers, the legislature being careful to protect the rights of legatees and devisees who, like the defendant, acquired the right to property “by bona ficle purchase for full consideration in money or money’s worth,” notwithstanding the fact that literally speaking the legal title “passed by will.” Finally, the defendant contends that if the provisions of the inheritance-tax law are held to operate upon a right accrued and vested prior to its enactment, the law is in conflict with those provisions of the federal constitution designed to protect the obligations of contracts. We have stated at some length the contentions of the defendant because of the importance of the question involved.
The state, on the other hand, claims that the legislative purpose is clearly expressed in the statute: to impose a tax, first, in the case of all legacies which pass by will or the intestacy laws; second, upon all transfers by deed, grant or gift, made in contemplation of death, except in the case of bona fide purchase for full consideration in money or money’s worth”; and that the exception has no application to property which passes by will or intestacy, the quoted clause referring solely to transfers by deed, grant or gift. In this connection it is urged that it is not possible to purchase property to be conveyed by will or by intestacy laws; that while a binding promise may be made that a will shall be executed in a person’s favor, or that no will shall be made so that property will pass by the intestacy laws, such a promise creates only contract relations, which the courts will enforce by granting equitable.relief after the death of the promisor; but that the contract does not constitute a transfer of property, because that continues to belong to the promisor until his death. In Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485, we held that while such a contract would in a proper case be enforced in equity, the property itself was subject to probate as belonging to the deceased at the time of his death, and was liable for his debts, and that these were a lien upon the property prior to any rights of the promisee.
In our view of the statute, the exemption mentioned in section 1 was intended to apply solely to transfers by deed or grant. Wills are seldom made in consideration of money or money’s worth. Deeds and ordinary grants are. True it is, a transfer by deed or grant may be supported by merely a good consideration; it is not necessary that there be a full consideration. Natural love and affection is sufficient. The legislature, however, recognized the force of “the ruling passion strong in death,” and also the fact that the experience of other states has demonstrated that various shifts and devices would naturally be resorted to by the owners of large estates for the very purpose of avoiding taxes upon successions and inheritances, and that actual transfers of property would frequently be made in contemplation of death, with the intent that the property transferred should escape the tax. This is what the legislature had in mind by the provision that the succession should be taxed in all cases, except where the transfer, made by deed or grant in contemplation of death, was supported by a “full consideration” either in money or in money’s worth. It is a rare instance indeed where the testator has received “full consideration” for the property bequeathed to a legatee, although such cases may occur. We do not think the legislature could have had such instances in blind, nor that the exception was intended to apply to property that passes by will any more than to cases where property passes “by the laws regulating intestate succession.”
There remains only the contention that the imposition of a tax upon defendant’s right to take under the will violates the obligation of the contract, and for that reason is in conflict with the federal constitution. We think it is clear that no obligation of her contract with Louis Mollier was violated by the statute. Conceding that years before the statute was enacted the defendant acquired a vested interest, subject to being defeated by her nonperformance, this right was acquired subject to the power of the state to regulate the transmission of property in the manner provided in the contract. The.parties were not obliged to contract that a will should be made; but, having done so, they must be held to have contemplated the execution of a will, which could be enforced only in accordance with whatever regulations the legislature might enact and that should be in force when the will took effect. If before Louis Mollier’s death the legislature had declared that no will should be received for probate or have any force or effect unless executed and witnessed in a particular manner, the defendant could take nothing by a will which was not executed in the manner provided in the statute. The fact is that the particular method chosen, by which the defendant was in the future to be compensated for her services, called for a transaction which the legislature has declared shall be taxed, and the statute was in operation when the transaction was completed.
It has been universally held by the courts that statutes of this character impose a tax not upon the property but upon the succession, the right to take the property by will or by the intestacy laws or by transfer made in contemplation of death. (The State, ex rel., v. Cline, 91 Kan. 416, 137 Pac. 932; United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. Rep. 1073; State v. Guilbert, 70 Ohio St. 229, 71 N. E. 636, 1 Ann. Cas. 25; Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 Ann. Cas. 711; Kingsbury v. Chapin, 196 Mass. 533, 82 N. E. 700, 13 Ann. Cas. 738.)
The tax is not imposed upon the right to give but upon the right to take property. Now, the right to the succession of property by will or inheritance is created in the first instance by the legislature, which may at any time abolish the right; and it necessarily follows that if the legislature may destroy the right it may regulate the exercise of it.
“Property itself as well as the succession to it is the creature of positive law. The legislative power declares what objects in nature may be held as property; it provides by what forms and on what conditions it may be transmitted from one person to another; it confines the right of inheriting to certain persons whom it defines heirs, and on the failure of such it takes the property to the State as an escheat.
“The right to give or to take property is not one of those natural and inalienable rights -which are supposed to precede all government, and which no government can rightfully impair. There was a time, at least as to gift by will, it did not exist; and there may be a time again when it will seem wise and expedient to deny it. These are the uncontested powers of the Legislature upon which no article of the Constitution has laid its hands to impair them. If the Legislature may destroy this right, may it not regulate it? May it not impose conditions upon its exercise? And the condition it has imposed in this case is a tax.” (R. S. Pullen v. The Commissioners of Wake County, 66 N. Car. 361, 363.)
In Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 267, the court had before it the same question in a case which involved the power of the legislature to impose a succession tax and to provide that the statute should apply to all estates which had been probated before but distributed after the passage of the act. In the opinion the court used this language:
“A vested right is held subject to the laws for the enforcement of public duties. Why, on a similar principle, is a right to take a legacy not subject to the laws for the assessment and collection of a tax, as a premium upon the right and privilege to receive the inheritance, as much as it is subject to laws which authorize the taxation of the very property bequeathed? It can not be denied that the tax is imposed for public uses and purposes. The whole state, including these legatees, have an interest in the collection of taxes for state purposes. Protection is guaranteed by the state, not- alone to the property of the decedent and to those who are justly entitled thereto, but also to the right to receive the property, by affording to those enjoying that right means to determine its extent, and enforce the same when determined, to the end that it shall accrue absolutely to them, freed from the control of an administrator or executor. As a correlative proposition, the state has power to demand of those upon whom it confers the right, and to whom it affords this measure of protection, a tax, to help sustain its protection. . . . Nor is there anything in the federal or state constitutions which prevents the state, during this period of administration and control, from imposing and collecting the tax upon the vested right to receive, before the legatee actually received under a decree of distribution. The interests vested only in the manner and upon the conditions authorized by the laws of the state (Prevost v. Greeneaux, 19 How. 1) and the imposition of an inheritance tax, though made as a condition for the taking of the inheritance after the right to take was vested, yet before the taking, does not impair the value of the right in any greater manner than the imposition of a rate of taxation greater after an interest vested, than before, would impair the value of the property itself.” (pp. 311, 312.)
The defendant’s claim that she does not, strictly speaking, take by virtue of the will but solely by a contract which has been fully executed, and for that reason the statute can not be held to operate, is quite fully answered by the reasoning of the court in the Matter of Gould, 156 N. Y. 423, 51 N. E. 287. Shortly before his death Jay Gould agreed with his son George that the value of the latter’s services in his father’s business for twelve years amounted to $5,000,000, and that the father was indebted to his son to that extent. He thereupon made a will reciting the facts respecting the services the son had rendered him and fixing their value at the agreed amount, and providing for its payment out of certain securities mentioned. The court held that this bequest was subject to a legacy tax. In the opinion the court said:
“He could have refused compensation in this manner, and had he done ■so whatever sum he might have recovered against the. estate under the agreement withuhis father would not have been taxable under the Taxable Transfer Act, for there would have been in such case no transfer by will. This he did not do; but instead elected to accept a transfer of a certain amount of money, bonds and stocks under the will in compensation for his services, and the question is, Is the money and property thus transferred taxable. To that question the statute must furnish the answer.
“The statute reads: ‘A tax shall be and is hereby imposed upon the transfer of any property . . . when the transfer is by will.’ It will be noted that the imposition of the tax is not limited to property gratuitously given by will, but is extended to all property so transferred. Was not the property mentioned in this codicil transferred by will? Certainly it was, for the title to the bonds and stocks described in the codicil was taken away from the estate of Jay Gould and vested in George J. Gould under and by virtue of the second codicil of the will and such property is, therefore, taxable under the express provisions of this statute.” (p. 426.)
It follows from what has been said that the property transmitted to defendant by the will is liable for the payment of the inheritance tax.
The demurrer to the answer was rightly sustained, and the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover rent for thé use of real estate. The answer, besides contesting the rent account, presented certain claims of an equitable nature to the real estate itself growing out of the contract to pay rent. The reply disputed those claims. Evidence was introduced and findings of fact were returned by a jury relating to both branches of the case. The court then struck out the findings relating to the interest in the real estate claimed by the defendants, declined to adjudicate that matter, and rendered judgment on the rent feature of the case alone. The defendants appeal.
The defendant; Warden Bishop, married the plaintiffs daughter, Flora. In February, 1907, the Bishops were about to move to Arkansas when the plaintiff, preferring that they should remain in Reno county, offered them the tract of land in controversy, to take, improve and make their home, the plaintiff intending the farm for his daughter. Rent was to be paid to the plaintiff during his natural life. A certain rent was reserved for the first two years. It was then to be reduced for the future. The defendants accepted the plaintiff’s offer, moved on the land, have ever since occupied it as their home, and have placed improvements upon it to the value of from $3500 to $5000.
The action was brought against Warden Bishop alone. The petition alleged that the plaintiff was the legal and equitable owner of the land, that the defendant was a tenant holding over under an oral lease, and that he owed a certain sum as rent, the items, of which were specified. Warden Bishop answered fully respecting the rent, claimed no settlement had been had respecting certain items, and claimed that upon a proper accounting nothing would be found to be due from him, but stated a willingness and a desire to pay any balance he might be owing. He further answered by reciting in full the facts which have been briefly summarized relating to the origin and character of the tenancy. He asked that his wife be made a party, that the court determine the true terms and character of the contract with the plaintiff, that his wife be adjudged to have an equitable title to the land, and that the plaintiff be required to carry out the contract in which such title originated. The reply, besides containing a general denial, specifically disputed the claims of .the answer which are now material and insisted upon a naked lease of the land to Warden Bishop. Flora Bishop, was made a party and adopted the answer of her husband: When judgment was •rendered the action was dismissed as to her without prejudice to her right to maintain a future action against the plaintiff or his heirs or assigns.
The theory of the trial court was that the petition fixed the limits of the action, the subject of which was rent due from Warden Bishop. The equitable claims ■ interposed, if established, could not defeat recovery of rent from Warden Bishop. The contract, if any, with Flora Bishop was executory, and consequently her title was not necessarily or properly involved in the action and no relief could be granted her.
The learned district court was in error.' The basis: of the rent claim was a contract. The petition asserted that; this contract was an oral one under which Warden Bishop- was “holding over,” the clear implication being that'the lease had expired and the tenancy resulting from holding over would' be terminable at the end of the period. ' The petition therefore struck at the very foundation of the rights of both defendants. Thé issue having been tendered by the petition, unless those rights were'asserted a judgment for rent' might'well be rés judicata as to Warden Bishop, who had spent' la 'large sum óf money in improving the land for the befiefit of himself ánd his wife, and might be res judicata as to 'a breach of the conditions' upon' which Flora Bishop' could' acquire title'. Therefore the terms of the contract under which rent was payable constituted a subject of primary importance. ■ • ' '
If the petition had not so clearly presented the issue as to the character of Warden Bishop’s tenancy the answer stated ■a proper counter-claim. A counter-claim need not simply defeat the plaintiff’s recovery, or reduce the amount of the plaintiff’s recovery. It is something of a legal or equitable nature (Civ. Code, § 97) arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, giving the defendant a right to relief necessarily involved, or properly involved, in the action, to the end that a complete determination thereof may be had (Civ. Code, §98). ■Warden Bishop’s status is quite different from that of the ordinary tenant who pays rent for a given period. He occupies the land, has improved it, and pays rent for it as a permanent home, the title to which is to vest in his wife because of what he has done and is to do. This status is entitled to the protection of a court of equity. The defendant disputes it, or at least equivocates about it, and the court should have adjudicated it. Flora Bishop was a proper party so that the true relations and rights of the parties might be established by the proof and judicially found and declared.
• It is said that the contract is so indefinite and uncertain regarding the rights of the Bishops that they were not entitled to relief. Those rights supplied the consideration for the obligation to pay rent, and the plaintiff would scarcely concede that his rights are imperfect in any respect. The jury had no difficulty in stating the terms of the contract so far as they were interrogated on the subject, and it is apprehended the court will have none.
A part of the relief asked by the defendants was that the plaintiff be compelled to specifically perform. Of course, this did not mean that the plaintiff should make a conveyance now. It meant that he should recognize and respect the tenancy according to the terms and for the purposes contemplated by the contract. Perhaps a prayer that the equitable rights and the equitable title of the defendants be found, declared and quieted as against the plaintiff would have been sufficient for their purposes. But whatever the prayer, the court can adapt the relief to their needs should they prevail in their contention.
The judgment is reversed and the cause is remanded with direction to adjudicate the counter-claim. | [
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The opinion of the court was delivered by
BURCH, J.:
J. W. Neighbor and his wife, Orna J. Neighbor, conveyed by general warranty deed to Andrew Greisinger a tract of land in Kiowa county, Oklahoma, in exchange for real and personal property.in Harper county,' Kansas. Greisinger’s deed was made to Orna J. Neighbor. Greisinger’s agent forwarded his deed to the register of deeds of Kiowa county, Oklahoma, for record at once, but the register of deeds withheld it from record until the recording fee was received. Meantime one Harris attached the land conveyed by the deed for a debt of J. W. Neighbor’s. Greisinger intervened, defended against the attachment, and. was defeated. In order to prevént a sale of the land Greisinger was obliged to pay the attachment lien, and incurred expenses in resisting the attachment suit. Pending the attachment suit an attempt was made to settle it, resulting in a contract whereby Greisinger was to receive a mortgage on land in Alfalfa county, Oklahoma, the title to which was held by Orna J. Neighbor. The present action was originally brought to compel performance of this contract and for other relief, but by amended and supplemental pleadings it was converted into a simple action for damages incurred in protecting the title to the Oklahoma land. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
The defendants say the plaintiff assumed inconsistent attitudes in the Oklahoma suit and in this action. It would not be very material if he had done so. However, in the Oklahoma court the plaintiff was compelled to take the part of his grantors in order to try to save the land. In this action he was compelled to protect himself against the conduct and default of his grantors. The situation was not of the plaintiff’s creation or choosing, and his efforts to avoid loss on account of the embarrassment occasioned him were not incompatible in any legal or other aspect.
It is said the intervention of the plaintiff in the Oklahoma suit was a “frame up” and a “sham battle.” There is no evidence whatever in the record to this effect.
It is said the plaintiff was negligent in not sending the recording fee with his deed to the register of deeds of Kiowa county, Oklahoma, that if he had done this the Oklahoma attachment would have been forestalled, and consequently the plaintiff is responsible for the outlay necessary to contest and satisfy the attachment lien. The plaintiff pursued a very common business course and was not negligent because he owed the defendants no legal duty to record the deed promptly. He had a warranty against deprivation of title through the assertion of lawful claims against the defendants and was not obliged to suspect the imminence of an attachment proceeding.
The Oklahoma law under which the attachment was adjudged to be valid against the plaintiff was pleaded and abundantly proved in the usual way, and counsel do not now contend that a reversal of the judgment in the attachment suit could have been obtained by taking an appeal.
Complaint is made because the court submitted to the jury the single question of the amount the plaintiff should recover for attorney fees and expenses incurred in defending the Oklahoma suit. The defendants had no defense whatever to the present suit and introduced no evidence. There was no dispute concerning any material fact relating to the Oklahoma litigation. The amount paid to prevent a sale of the land was not disputed, and there was nothing left for a jury to determine except the amount of the plaintiff’s attorney fees and expenses.
The plaintiff caused an attachment to issue against the property which he had conveyed to Orna J. Neighbor and against certain personal property of J. W. Neighbor. These attachments were sustained. The journal entry of judgment, which seems not to have had the approval of the trial judge, reads as follows:
“It is therefore by the court
“Considered, ordered, adjudged and decreed that said plaintiff, Andrew Griesinger, have and recover of and from said defendants, J. W. Neighbor and Oma J. Neighbor, the sum of nineteen hundred forty-five ($1,945.00) dollars; that the attachment heretofore levied in this action” etc.
While the record does not show that the instruments were introduced in evidence, the defendants do not now claim that Orna J. Neighbor did not sign the deed to the Oklahoma land and did not receive the plaintiff’s deed to the Kansas land, and she had nothing to offer in her pleading or in the trial which would defeat her apparent liability. The plaintiff, however, did not pray for a personal judgment against Orna J. Neighbor and the court in its instructions to the jury stated the plaintiff’s claim for damages as one against J. W. Neighbor. Under these circumstances the journal entry should be interpreted as stating a personal judgment against J. W. Neighbor alone and judgment against both defendants for an appropriation of property. Should Orna J. Neighbor desire the record may be corrected.
The jury were properly instructed with reference to the issue submitted to them, and none of the special questions submitted by the defendants and excluded by the court related to that issue.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by The Putnam Investment Company, a corporation engaged in the real-estate brokerage business, against H. C. King for the recovery of a commission. From a judgment in favor of the plaintiff King appeals.
The case has been here twice before (Putnam v. King, 82 Kan. 216, 107 Pac. 559; 87 Kan. 842, 126 Pac. 1093), and in the former of these appeals the principal facts involved are con cisely stated. King owned 2720 acres of land and in connection with this land he used 160 acres of government land upon which his son had filed. He verbally agreed with the manager of the plaintiff to the effect that plaintiff should find a purchaser for the land and retain all over $8000 as commission. A party able and willing to purchase the interest which King had in the land for $10,800 was found by the plaintiff, and King then declined to make a conveyance. After several trials in the Pottawatomie district court a change of venue was granted and the case was tried in Jackson county, resulting in a judgment for the plaintiff. Defendant’s demurrer to the evidence of plaintiff was overruled as was also his motion for a new trial.
It is first insisted that the plaintiff can not recover because the contract made by plaintiff in behalf of defendant included the sale of government land. It sufficiently appears that no one contemplated a sale or purchase of public land. When the contract was made between plaintiff and defendant it was mentioned that 2720 acres was subject to sale and that 160 acres used in connection with the larger tract was. government land upon which the defendant’s son had a filing. Of course, any attempt to sell or mortgage government land is contrary to statute as well as public policy and would be without effect. While this quarter section of land was spoken of as a part of the ranch it was understood that it was government land and therefore not subject to sale. It was equally well known that improvements as well as certain preferences of one having a filing upon government land were subject to be transferred. It has been said that:
“Under the laws of the United States, and the rules of the land department, the- entryman is entitled to commutation in several forms, and to certain preference rights, and may also relinquish and sell his improvements and equities in the.homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed.” (B. K. & S. W. Rld. Co. v. Johnson, 38 Kan. 142, 151, 16 Pac. 125; James S. Moore v. Daniel M. McIntosh, 6 Kan. 39; Bell v. Parks, 18 Kan. 152; Lapham v. Head, 21 Kan. 332; Hardesty v. Service, 45 Kan. 614, 26 Pac. 29.)
There was some talk between the parties about the son perfecting his title or giving a relinquishment if it was not per fected, but the evidence of the plaintiff was that the purchaser was to get just such interest as the defendant could give, and if he had no interest in the tract the purchaser would get nothing. When the plaintiff bargained with the proposed purchaser a writing was made which purported to include 2880 acres, and the plaintiff attached the defendant’s name to the writing without authority. This writing was, of course, invalid in that it included the 160-acre tract of government land, but that writing is not the basis of this action. The action brought rests upon the agreement that plaintiff was to find a purchaser for the four and a quarter sections of land and such interest as the defendant might have in the other quarter, together with the compliance by the plaintiff with the terms of that agreement. The plaintiff and the purchaser soon discovered that the writing as drawn was invalid, and it was never brought to the attention of defendant nor did he learn of the existence of the writing until after the litigation had been begun. Besides, the agreement actually made with Shellabarger, the purchaser, did not undertake to sell government land nor to make a transfer of it in contravention of the federal laws. It may also be said that defendant did not decline to carry out his agreement nor to transfer the land to the purchaser on account of the terms of this writing, and he could not well have based his refusal on that ground as he admitted that he did not see the contract until the first trial of this case.
The next contention of the defendant is that the plaintiff did not procure a purchaser for the land who was ready and willing to buy on the terms agreed upon. There is no substantial dispute that the plaintiff was empowered by defendant to find a purchaser for the land and very little as to the terms of the agreement made between them when the land was listed with plaintiff. The defendant prescribed several plans on which a sale might be made, one of which was that if sold for cash he would take $8000 net, the plaintiff to have any additional sum that it could procure as commission. In a letter written about four months later the defendant repeated the statement and said to the plaintiff, “You can have all you get over $8000.” The plaintiff found a purchaser who offered to pay $10,800 for the land, and who then made a payment of $1000 to the plaintiff as the agent of the defendant. When the defendant was notified that a purchaser had been procured on the prescribed terms he raised a number of objections and indicated a purpose to avoid compliance with the contract. He first raised a question as to the description and extent of the tract that he had .for sale, saying that plaintiff had either sold land which had never been given it for sale or had made an error in the description of the land offered to the proposed purchaser. He also said that he had given an option to a party on his 2720 acres. Defendant insists that while plaintiff had found one who was willing to take the land at the specified price the purchaser had made a requirement that defendant should furnish an abstract of title and should execute a warranty deed to the land, and that neither of these conditions had ever been agreed to by the defendant. In the first place the defendant did not refuse to complete the sale on either of these grounds. •He never mentioned them when plaintiff notified him that a purchaser had been found and when the request was made that he completé the sale. His refusal was based upon the grounds that more land was sold than he owned and that he had given an option to another upon the land listed with the plaintiff. Having put his refusal on these grounds he, in effect, waived any defense based on the requirement of an abstract or of the form of-the conveyance to be executed. As said in Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444 :
“It is not becoming in him to place his refusal on one ground, and, when the plaintiff has been driven into litigation to enforce the contract, to defend his refusal on another and wholly different ground.” (p. 171.)
In a later case it was said:
“If this had been a reason for refusing to complete the sale he should have so stated at the time, so that the other party might know what was lacking and possibly correct it.” (Stanton v. Barnes, 72 Kan. 541, 544, 84 Pac. 116.)
Aside from this consideration it appears that the furnishing of an abstract of title was not insisted on by the plaintiff or the purchaser. In a letter of plaintiff notifying defendant of the sale it was said that the purchaser was ready to close the sale as soon as abstracts showing clear title were received, and in another letter defendant was requested to “forward abstracts of this land for examination and advise us when you will be here to close sale.” In his replies to these letters defendant never mentioned this detail of the transaction, and the plaintiff advised the purchaser that if defendant did not fur-. nish abstracts the plaintiff itself would do so. There was, in fact, no controversy over abstracts and it can not be regarded as a real issue in the case.
Neither was there any basis for his refusal to complete the sale because of the form of the deed conveying defendant’s interest in the land. This defense was an afterthought. In none of his letters did the defendant speak of the'kind of a conveyance that was to be made of his land, and there was no stipulation on this subject in the agreement under which the land was listed for sale with plaintiff. While no mention was made as to the form of conveyance to be executed" it has been held that:
“In the sale of real estate it is not necessary in this state that the form of deed be contracted for. In the absence of express stipulations covering the subject a deed with the usual covenants of warranty is implied.” (Dewey v. Hines, 87 Kan. 834, syl. ¶ 1, 126 Pac. 1093; 39 Cyc. 1556.)
Although a warranty deed was mentioned in the writing made with the purchaser by plaintiff this memorandum was recognized by both plaintiff and purchaser to be invalid and was not even presented to defendant. It was understood throughout the dealings that defendant did not have a complete title to all of the land as part of it was held under a contract with the railroad company, and also that a quarter section of the same was government land upon which defendant’s son had a filing. In one of plaintiff’s letters to the defendant it was stated that the purchaser would take assignments of railroad contracts under which defendant held a part of the land. The purchaser was, however, ready to take the title which defendant had represented that he held when the land was listed for sale with the plaintiff, and, besides, the defendant did not misunderstand the agreement nor the disposition or ability of the purchaser to take the land on the agreed terms.
It is true that plaintiff did not have the exclusive right to sell the land and that if defendant had made a sale of the land before the plaintiff had found a purchaser the defendant would not have been liable to pay a commission to plaintiff, but it is conceded that he never effected a sale of the land. He speaks of having given an option of purchase to some one, but he admitted that the option had expired before the correspondence as to the closing of the sale made by plaintiff had ended. Aside from this consideration the defendant did not plead that a sale of the land had been made to another as a defense. Of the agency of the plaintiff there js no question, and that a pur-, chaser was procured able, ready and willing to take the land upon the agreed terms was well established. The defendant was notified that a competent purchaser had been procured. The reasons advanced by him for declining to accept the purchaser and complete the transaction are obviously insufficient. The plaintiff’s part of the agreement was substantially carried out and the commission was earned.
We find nothing material in the objections to the rulings on the admission of testimony nor in the instructions of the trial court. , .
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OPINION ON MOTION.
Per Curiam:
The plaintiffs recovered a judgment against the defendant for $1632. On appeal it was reversed by reason of rulings which affected the recovery of $1415, but not the remaining $217, which was based upon separate items. The appellees ask that the decision be made more definite in several respects. We are asked to order judgment for the $217. The decision was intended to have that effect, and to prevent any possible question it is now so interpreted. We are asked to divide the costs because of the affirmance of this part of the judgment. No substantial attack was made upon it. The controversy here was with regard to the judgment for $1415, and no division of costs appears to be called for. In other respects the opinion is regarded as sufficiently indicating the view of the court. | [
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Allen, J.
It is extremely doubtful whether an appeal could be taken by the City from the order of the Police Judge discharging the defendant after a trial. The State v. Hickerson, 55 Kan. 133, and cases there cited. But as to this we do not now decide, nor do we deem it necessary to consider the matters discussed in the brief of counsel for the City. The substance of the complaint is a charge against the defendant of maintaining a tippling-shop, which, under the statutes of this State, is a nuisance. ¶ 2533 Gen. Stat. 1889. The complaint fails to state the place where such tippling-shop was kept. It is provided in section 399 of the act concerning Crimes and Punishments :
“in prosecutions' under this act, by indictment, or otherwise, it shall not be necessary to state the kind of liquor manufactured or sold, and shall not be necessary to describe the place where sold, except in prosecutions for keeping and maintaining a common nuisance, or when a lien is sought to be established against the place where such liquors were illegally sold.”
While this is a prosecution for the violation of a city ordinance, the substance of the offense sought to be charged is the same as that defined in paragraph 2533 ; and the reasons rendering it necessary to state the place where the nuisance is maintained, in a prosecution under a city ordinance, are the same as in one under the statute. Whether at common law it would be necessary to describe the exact place where the offense is charged to have been committed is a matter of much doubt. 1 Bishop, Crim. Proc. §373. As the substance of the offense charged is keeping a place where persons resort for the purpose of drinking intoxicating liquors as a beverage, the place at which the defendant is charged with keeping it would seem to be an essential and very important part of the description of the offense ; and there being' doubt as to the rule at common law, we think that that indicated by the statute in prosecutions for violation of the State law on the same subject ought to control in prosecutions for violations of a city ordinance. We can only conjecture as to the grounds on which the Court based its decision,— the record being silent, and no appearance being made for the defendant. The complaint appears to us open to the objection that it fails to state where the alleged tippling-shop was maintained.
The judgment is therefore affirmed.
All the Justices concurring. | [
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Martin, C. J.
I. Some of the allegations of negligence find no support in the evidence ; but it was alleged that the tender was not sufficiently and properly secured and fastened to its trucks ; that the track was in bad order and condition and unsafe for trains running at the excessive speed at which the train in question was propelled on a sharp curve ; that the ties were decayed, the rails worn and too light, and the outer rail on the curve was nearly level with the inner rail, whereas it should have been considerably higher. There is no evidence of the insufficient fastening of the body of the tender to the trucicg except tiie circumstance that it left them, turned upside down, and was thrown 20 to 40 feet to the left of the track. There is some evidence, however, as to the defective condition of the track in some of the particulars above named, and we are not clear that this condition had no agency in producing the disaster to the train. The witnesses for the Company did not account for the derailment, but said it was a mystery. Under the pleadings and the allegations of negligence contained in the petition it devolved upon the plaintiff below in the first instance only to prove the derailment, the injury of the passenger thereby, that death occurred from the injury, and that the deceased left a widow or kindred surviving him ; and it then became incumbent upon the Company, in order to escape liability, to show that the derailment resulted from inevitable accident or something against which no human prudence or foresight on the part of the Company could provide. S. K. Rly. Co. v. Walsh, 45 Kan. 653, 659 and cases cited; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 345. A prima facie case of negligence was made out by the plaintiff below, and we cannot say in the face of the general verdict that it was overthrown by the evidence introduced on the part of the Railroad Company.
II. The plaintiff in error contends that there is no evidence that Fuller was injured in the wreck, nor that his death was attributable thereto. The conduct of Fuller seems difficult to comprehend. In the excitement attending such a calamity it is not strange that a person might be injured wnthout knowing it for a considerable time thereafter; but Fuller told Doctor Wasson the next day that he escaped unhurt. He never made any claim against the Railroad Company, and did not mention the wreck to his physicians ; although he complained of a pain in the side or back to Frankhouser shortly after the wreck, to his sister upon his arrival at Quenemo, and to his wife shortly afterward in Kansas City. Nothing in the nature of narrative from him was admissible in evidence as to the cause of the pain in his back or side, as to his lameness, or as to other symptoms indicating a spinal injury or other ailment ; but, from the complication of disorders to winch he was subject and which seemed to be greatly aggravated in the closing months of; his life, it seems probable that he did not himself consider the railroad wreck, but la grippe, as the cause of his increased suffering. Yet it may have been a spinal injury ; and his symptoms were perhaps better evidence-than his own opinion respecting his ailment. The general verdict is equivalent to finding that Fuller was injured in the wreck and that death resulted therefrom ; and we cannot affirm that this theory is" entirely unsupported by the evidence, especially after the approval of the verdict by the trial court. Many questions are raised upon the competency of evidence,, the form of the hypothetical questions, and the nature of the expert testimony. We have examined all of them, but do not think that any substantial and material error was committed by the Court in the admission or rejection of testimony. The Court refused to submit certain of the particular questions of fact requested by the defendant below. We think some of them might have been submitted with propriety ; but they were not controlling in character, and if all had been answered in the manner most favorable to the plaintiff in error the general verdict would not have been affected, nor the trial court nor this .Court further enlightened thereby. Upon the whole we find no material error in the record and the judgment must be affirmed.
Allen, J., concurring. | [
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Allen, J.
In the trial of this case the Court seems to have considered that ordinary negligence on the part of the plaintiff was conclusively established ; and in the second instruction told the jury that in order to recover the plaintiff must show that his injury was caused by the gross and wanton negligence of the motorman. This instruction was not warranted by the evidence in the case. Whether the plaintiff was chargeable with ordinary negligence contributing to his injury was an open question, which should have been left to the jury to determine. The findings of the jury in answer to special questions submitted exonerate the motorman, Moore, from purposely injuring the plaintiff, and also from gross and wanton negligence. It is even doubtful whether they do not exonerate him'from any culpable negligence. We think the Court erred in refusing to submit the 45th question. If the motorman, Moore, knew that Kelly’s hearing was defective, and knew that the man on the track -was Kelly, it would materially affect the question as to what would be reasonable care oil his part in propelling his car toward him. We have little difficulty in reaching the conclusion that the judgment must be reversed. The instructions were erroneous in that they require proof of gross and wanton negligence on the part of the defendant. This error was prejudicial to the rights of the plaintiff. The special findings of the jury clearly negatived the idea of wanton or intentional injury. The most difficult question for us to determine is whether or not the findings compel a judgment in favor of the defendant. The 28th question and answer are as follows: “Question. Was the plaintiff guilty of negligence which contributed to his injury? Answer. Yes, to some extent.” If the case had been submitted under proper instructions, and the other findings had, as in this case, negatived wanton or wilful injury, it would seem that such a finding would require that judgment be entered for the defendant. But the jury were here given to understand by the Court, that the plaintiff might recover notwithstanding his own negligence contributed to the injury, and that the vital question in the case was whether or not the negligence of the motorman was gross and wanton. The answer to the question, though in the affirmative, is qualified by the words “to some extent.” Juries cannot be expected to select words with- that nice discrimination and technical accuracy that may fairly be required of judges and counsel learned in the law. It does not seem a great stretch of language to say, when all the findings and all the evidence on which they are based are considered, that the jury meant merely to find that the plaintiff was guilty of slight negligence in failing to look to see whether a car was approaching at that particular time. His attention generally was very properly directed to the performance of the work in which he was engaged. While it was incumbent on him to take reasonable precautions for his own safety, the jury may have thought that he could not reasonably be expected to be at all times thinking about approaching cars and watching for them. Although it is found that the men working on the track were accustomed to get out of the way of approaching cars, it was the duty of the motorman to observe the track ahead of him, to regulate the movements of his car, and to look out for the safety of passengers he might be carrying and persons and property on the roadway. Whether he exercised reasonable care in propelling his car toward the gang of men working on the track, even though they were accustomed to step out of his way, was a matter within the province of the jury to determine. On the whole record, we seriously doubt whether the jury by this answer intended to find that the plaintiff was guilty of culpable negligence contributing to his injury. A judgment on the special findings ought not to be directed by this Court unless they are reasonably clear and unequivocal. We should be reasonably certain that we are not construing into the language employed by the jury a meaning they never intended.
The judgment will be reversed, and a new trial ordered.
Martin, C. J., concurring. | [
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Doster, C. J.
This is the second time this case has been brought to this Court by the plaintiff in error. In each instance the proceeding was based upon a judgment for damages for bodily injuries. Upon the hearing of the first case the judgment was reversed and a new trial ordered. K. C., F. S. & M. Rld. Co. v. Murray, 55 Kan. 336. The order of reversal included a judgment against the defendant in error and in favor of the plaintiff in error for $54.40, — the costs of this Court. The judgment, though nominally in favor of the plaintiff in error, was one in which the officers of the Court were beneficially interested, and the amount of it ivas therefore paid to them by the plaintiff in error. Upon a second trial of the case the verdict was again returned against the plaintiff in error, defendant below ; and after the overruling of its motion for a new trial and the rendition against it of the judgment which is now in question, it moved the Court below for an order offsetting, against such judgment, the judgment for costs which it had formerly recovered in this Court against the plaintiff, now defendant in error. To this the defendant in error consented. The credit or offset was thereupon allowed, and the judgment satisfied pro tanto. The defendant in error now moves for a dismissal of the case from this Court, upon the ground that such demand for credit on the judgment, the allowance thereof, and the consequent partial satisfaction of such judgment, were such a recognition of its validity and justice as to constitute a waiver of the right to prosecute error therefrom. The plaintiff in error contends against this motion, because, as it says, the rule of estoppel applies only in cases where the complaining party has accepted, under the judgment against him, some benefit constituting a part of the same ; that inasmuch as the judgment it asked to offset, and for which it received credit on the judgment below, was in nowise connected therewith, but evidenced a right counter to such judgment and not a right under the same, it should not be held to have waived its right to prosecute ex’ror from the unpaid residue; that in the event of a reversal of the case in this Court, the judgxnent complaixied of, and, per consequence, the order to offset and for partial satisfaction, would be vacated, which would fxilly restore to the parties their former rights; and, furthermore, that the defendant in error, having consented to the offset and partial satisfactioxx, should not, as a reason for denying the claim'of error, xxow be heard to ux’ge that to which he agreed. None of these reasons in resistance to the motion to dismiss appear soxxnd.
If the motion for offset and partial satisfaction, axxd the order allowing the same, would of themselves constitute a waiver of the errors complained of, their effect could not be neutralized by the plaintiff’s consent thereto. So far as the compensation pro tanto of one judgment by the other is concerned, the law required it; and the plaintiff was compelled to submit thereto whether he consented or not. His consent to the order of offset and satisfaction is no estoppel upon his right to urge a dismissal of the case ; for the law imposed the obligation upon him without his consent. Turner v. Crawford, 14 Kan. 499; Read v. Jeffries, 16 id. 534; Herman v. Miller, 17 id. 328.
It may be granted that the effect of a reversal of the case by this Court would be to vacate the judgment complained of, and to restore the other one to its condition as a valid, subsisting claim; but the question does not relate to the effect of its reversal as an erroneous or unjust judgment, but to the effect of its recognition by the plaintiff in error as a just and valid judgment. It may also be admitted that asking and obtaining the credit or the offset against the judgment, was not the acceptance of a benefit which formed a constituent part of the judgment. It was, however, an admission of its validity and justice ; an acceptance of it as right and proper ; an abandonment of further contest over the matter in dispute. No one can make payment upon a demand against him, entire and indivisible in character as was this judgment, without being taken to admit it as a just and indisputable claim. Upon no other ground can the doctrine of waiver by voluntary payment be restéd. The credit or offset was in legal contemplation a payment on the judgment; as much so as if it had been made in money. It was the parting by the plaintiff with a thing of value, and its application towards the satisfaction of a legal demand. The fact, if it be such, that the plaintiff below, the defendant in error here, was and is insolvent, as suggested by counsel, does not alter the legal rule. We cannot frame an issue in this case to determine the charge of insolvency. Except in cases where that can properly be done, the law will esteem the judgment as valuable.
The counsel for plaintiff in error have supplemented their printed and oral arguments made on the hearing of the motion to dismiss, with an additional brief set out in their petition for rehearing, to which we have given careful attention. It is strenuously insisted that the foundation of the principle supporting the motion to dismiss is the doctrine of estoppel. We grant it. But estoppel because of what? Not necessarily because of benefits received under the judgment, which it would be inequitable to retain while repudiating the disadvantages of such judgment; but estoppel because of conduct inconsistent with a claim of invalidity and injustice in such judgment. No one in a legal controversy can be heard to say to his adversary,— “Your judgment against me is erroneous and unjust, and my purpose is to demonstrate such to be the case to the appellate courts, but, nevertheless I will pay off a portion of it;” or will be heard to say, “I demand that you accept from me as a credit on your erroneous and unjust judgment what you owe me in respect of another account.”
Every case cited by counsel in which it was held that the conduct of the appealing party did not con» stitute a waiver of the right of appeal, is a case in which such conduct was entirely consistent with a claim of error in the judgment appealed from. Thus, Embry v. Palmar, 107 U. S. 3, largely relied upon by them, is a case in which a party was enjoined from suing on a judgment, on condition that the judgment debtor pay into court a portion of the sum, admitted by him to be due. The payment was made, and accepted by the appealing party, and the Court quite properly said :
“The amount awarded, paid and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be construed into an admission that the decree he seeks to reverse is not erroneous.”
In the case at bar the sum of $54.40, the portion of the plaintiff’s judgment which the defendant demanded should be satisfied by the offset of its claim to that amount, was in controversy. The defendant denied throughout the trial that it owed that sum, or any sum whatever. The sum was an inseparable portion of the entire judgment; and a recognition of the validity and binding force of that portion of such judgment, cannot in law be regarded otherwise than as a recognition of the validity and binding force of the whole.
Whosoever litigates a claim, and, being defeated, pays the judgment, or surrenders the subject-matter of the controversy, waives his right to prosecute error therefrom. The State v. Conkling, 54 Kan. 108; Fenlon v. Goodwin, 35 id. 123. It is no answer to say that in these cases the entire judgment was paid, or the whole subject of controversy surrendered. There is no difference in principle between paying all or a part, or surrendering all or a part, of a legally entire and indivisible thing.
Counsel likewise claim that the orders of offset and partial satisfaction were necessary precautions to save the plaintiff in error from loss. Why necessary at the time such orders were made? The right of offset and satisfaction would have been as available after the decision of the case in this Court, should it have been affirmed, as before.
We are quite clear the petition in error should be dismissed, and it is so ordered.
All the Justices concurring. | [
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Martin, C. J.
I. We do not feel called upon to decide whether the judgment creditors stand in a position to question the validity of the several chattel mortgages, each of which was given to secure a bona fide, although a preexisting, debt. If they secured liens upon the fund in the hands of the receiver, certainly they were subsequent in time to the recording of the chattel mortgages. It cannot be held as a matter of law that the entire failure of the Bank to file its mortgage of June 6, 1890, and the delay in filing that of December 6 until December 22, 1890, operated as a fraud upon creditors who relied on the false representation of Champion that his stock was not mortgaged. The mortgage of June 6 was never operative as against creditors ; and that of December 6 was void as to them until December 22, 1890, unless the Bank is to be treated as having the possession of the store from December 6 until December 22. ¶3903, Gen. Stat. 1889. If the commercial creditors had obtained liens on or prior to December 22, they would be in a position to question any antecedent rights claimed by the Bank ; but, on December 22, the Bank not only recorded its mortgage but also took actual possession of the store. At that time the plaintiffs in error were only simple contract creditors of Charles T. Champion, while the Bank not only held a mortgage then recorded but actual possession under it. The withholding of a chattel mortgage from record may cast suspicion upon the good faith of the indebtedness which it is given to secure ; but good faith being admitted or shown, the only effect of a failure to file it for record is to render it void as against the creditors of the mortgagor and as against subsequent purchasers and mortgagees in good faith until it is filed for record or actual possession taken under it. Cameron, Hull & Co. v. Marvin, 26 Kan. 612; McVay v. English, 30 id. 368, 371; Sedgwick City Bank v. Mercantile Co., 45 id. 346; Cagnon v. Brown, 47 id. 83, 85.
II.’ Mary E. Champion and Hattie C. Crozier, as well as the commercial creditors, attack the validity of the mortgage to the Bank on the ground that Charles T. Champion was permitted to conduct the store and dispose of the proceeds of sales in his own way, and that the recording of their mortgages and taking possession thereunder -were prior in point of time to the recording of the mortgage of the Bank and the possession of the Bank under the same. This claim is not tenable. They had actual knowledge of the prior mortgage, and as to them it was immaterial whether that mortgage was recorded or not; and they could not have been prejudiced in any way by the manner in which the business was conducted between Charles T. Champion and the Bank. They had no lien, even as against Charles T. Champion, until December 22 ; and immediately after they obtained the mortgages and had them recorded they entered upon a struggle for possession with the mortgagee having the prior claim. They acted in bad faith toward the Bank and ought not to gain any advantage thereby.
The conclusions of fact are favorable to the Bank, and we think that they are sufficiently supported by the evidence. The record does not show the amount realized by the receiver ; but we feel satisfied that the funds in his hands will be insufficient to pay the three mortgage claims and that nothing will be left for the commercial''.creditors. If any balance should remain, however, they ought to have the benefit of it.
The judgment of the District Court will be affirmed.
All the Justices concurring. | [
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Doster, C. J.
Daniel Countryman, the appellant, lived at Walceeney, Trego County. His son had recently married, and together with his bride was at his father’s house. The evening of August first, after dark, the premises about the house were invaded by a party of riotous disturbers, intent upon giving the newly wedded pair a mock serenade, called a charivari; This was especially annoying and objectionable to the appellant, who is a physically diseased and mentally nervous and excitable person. He remonstrated with the party g,nd warned them away; but failing to induce them to desist, or leave his premises, he fired a loaded gu^ at them, and shot and wounded one of the number, named Joseph Sigler. He was arrested and prosecuted under section 38 of the Crimes and Pujjishmemg Act, for shooting at and wounding Sigler with intent to kill him. A change of venue was taken to Ellis County, where, upon a trial of the case, a verdic» and a judgment of conviction were rendered against him, under section. 42 of the act, for wounding Sigler under such circumstances as would have constituted manslaughter in the third degree if death had ensued. From this he appeals.
His first objection in the court below was by plea in abatement of the prosecution, upon the ground that no preliminary examination had been accorded Mm. TMs was overruled ; and afterward, upon the call of the case for trial, an objection was interposed to the jurisdiction of the court, upon the ground that the term then pending in Ellis County, that of the fourth Monday in May, 1896, was not authorized by law. This was likewise overruled. These, and other claims of error, based upon instructions given and refused and upon the insufficiency of the evidence to support the verdict, are brought up for review.
Of all the witnesses, the evidence of the defendant was the most favorable to himself; and, to a correct understanding of the case, so far as it involves the instructions and the sufficiency of the facts proved, a summary of his testimony is given, together with literal quotations of its most material parts :
“Am 54 years of age, and served during the last war; and while in the military service contracted chronic diarrhoea from which am still suffering. Suffer also from heart trouble, and have done so for about 10 years. The condit'am of iny physical health has prevented the doing o¡' manual labor for five or six years, and for the la:-.;, three or four years have not been permitted to go away from home alone. The effect of this heart trouble and chronic diarrhoea upon my nervous system has been to render me nervous and excitable. Such has been the ca«e for "8 or 10 years, and it has grown worse from day uo day until the present time. July 31, I accompanied my family to a point about 40 or 50 miles distant to attend the wedding of my eldest son ; and on the following day returned to my home in Wakeeney with my family, including the newly married pair. In the evening, upon my return, I learned that a charivari was to be given to the bridal party: I sent for the city marshal, who came to my house, and whom I asked to prevent the anticipated disturbance. The marshal said he couldn’t stop it, but said to allow the boys to have their fun until about nine o’clock, and then he would come along and put an end to it. I agreed to that, but said that I would not have the charivari party inside my yard or allow them, to molest anything. In about an hour and a half afterward, the expected rioters came, and invaded the yard premises, yelling, ringing bells, pounding on tin patis, and throwing missiles, seemingly stones, against the house ; whereupon I took my loaded gun and went to the door, and undertook to talk to the disturbers of the peace, but could not make them hear for the noise. I then took the gun, pointed it to one side of them and up in the air, and fired it; whereupon they stopped their noise and scattered out onto a vacant lot adjoining. I went out to the gate and tried to remonstrate with them, but every time I would say anything they would interrupt with yells. I told them that, as long as they stayed outside there, they could make as much noise as they wanted to, as far as I was concerned, but they must stay outside, let the property alone, and not molest anything. If they came inside and went to molesting anything I would shoot, and shoot to hurt; whereupon I retired into the house where all the family were. I admit being excited at this time. In about 5 or 10 minutes they returned inside of the yard, and stuck their heads up against the windows, and yelled, and rang bells, and then went away, and were gone for a while ; but in a very short time they returned and went to making still more noise than before, and, among other things, jammed, or forcibly threw, some thing against the house, which I think was my hitching-post, because next morning I found such post pulled up or broken off, and lying with one end against that part of the house from which the noise of jamming or bumping had proceeded. I again took the gun and went out of the door, and stepped around the corner of the house and saw a clump of men standing there.
“Q,. Where were they? A. They were at the west. Very near the west end of the house.
“Q,. State what you did. A. I ordered them out of the yard.
“Q,. What did they do? A. Stood there and looked at me. '
“Q. What did you do? A. I raised up my gun, kind of this fashion [indicating], and fired.
“ Q,. State if at the time you fired you knew any of the parties who were back there in the yard. A. I did not.
“ Q,. Did you shoot at Walter Olson? A. I did n’t shoot at any particular man.
“ Q,. State to the Court and jury, what your intention was when you went out with that gun. A. To scare them out of the yard.
“ Q. State whether after you had fired the gun you heard anybody make any exclamation. A. I did.
“ Q. What was said? A. I heard a man say, ‘ My God ! I am shot! I am shot in the leg ! ’
“Q,. State after that where you went. A. Back into the house.”
“ I had a picket fence, with boards along the bottom. About 10 feet of such boards had been broken off by the rioters, and about 10 of the pickets pulled off or torn loose. The sidewalk close by the house was twisted around and torn up. At the southeast corner of the house there was a hole in its side, which I had never seen before. It had been freshly broken. The whole disturbance did not last over 20 minutes from the very beginning, and it was not more than two or three minutes from first hearing the noise until I went to the door with my gun. No one tried to get into the house at either windows or doors. No windows were broken, but one window was up, and some one — didn’t know who — stuck his head in it. I recognized no one, so as to tell who they were.
” Q,. There -wasn’t anybody threatening any danger to you, was there? A. They hadn’t made any threats to me.
“ Q. When you went out into the yard, now — after-wards when you came in, and then you went out into the yard — you took your gun with you? A. Yes, sir.
“Q,. What did you take the gun with you that time for? A. To scare them out of the yard.
“ Q. To scare them? A. Yes, sir
“ Q,. When you got around there you heard the boys still making a racket? A. Yes, sir.
“Q. They were pounding on these things when you walked to the corner of the house? A. Yes, sir.
“Q,. You ordered them to leave? You are sure you ordered them to leave? A. I am.
“ Q,. Do you know whether they heard you or not? A. I couldn’t say they heard; I couldn’t tell; but they turned around and stood there looking at me. When I came out of there some of them started to run.
“ Q. When you told them to leave? A. Yes, sir.
“ Q. You did n’t wait any longer, but fired the gun right into the crowd? A. Yes, sir.
“Q,. If you went out to scare them that time, why didn’t you shoot over their heads like you did before? A. Because I told them if I shot I would take no pains.
“ Q. Then you did n’t take any pains ; you meant to do just what you did? A. I shot with the intention of scaring them out of the yard. I didn’t take no pains to miss or hit.
“ Q,. Don’t you think you would have scared them as bad to have shot over their heads? A. No, sir; because they had been tried.
“ Q,. You meant business, did n’t you? A. I did.
“ Q,. Did you know when you got out there whether your fence had been molested? A. I didn’t know whether the fence had.
“ Q,. Did you know the sidewalk had been molested? A. I did.
“ Q. You knew it had, did you? A. I knew when I came out that it had been moved.
-“Q,. You saw that as you stepped out? A. Yes, sir.
“Q. Don’t you think from what occurred there at the time when you fired that first shot, that if you had said to the boys to ‘go away now’ and not molest you, that they would have gone? A. No, sir.
“ Q,. They were n’t trying to do anything further at the time you scared them off ? Could you tell whether they were men or boys? A. I could not.
“ Q,. You could n’t tell anything about that ? Did you hear boys’ voices? A. I did n’t know whether it was boys’ or men’s.
“ Q,. What was your belief with respect to the necessity of your firing at that time, as to the protection of the property and your family? A. I believed it was necessary. I believed I had to do something to protect myself and property and family there, by the actions of the mob, or whatever you may call it, after I forbid them coming in.
“Q. Now, this noise you'had heard made against the house was made before you went out, was n’t it? A. Yes, sir.
“Q. You picked up the gun and went out after you heard the noise? A. Yes, sir.
“Q,. They were making a racket out there? A. Yes, sir.
“Q,. They weren’t molesting the house at that time? A. Not after I got out.
“ Q,. Now, then, when you said ‘go,’ as you said, there were a part of them skipping out? A. A part of them was skipping out when I went out there.
“ Q. Now, you say you said for them to go, and you turned right around and fired your gun into the crowd? A. They had time to go.
“Q,. You said, a bit ago, you done that? A. I did, but they had time to go.
“ Q. Was there anybody then trying to molest you at that time, or your house or your family? A. No, sir.
“ Q,. Then, do you pretend to tell this jury that it was necessary, for the protection of yourself and your family and your house, to shoot one of those boys at that time? A. I did. I can positively state to the jury that I did feel that way.
“Q,. And at the same time part of the boys were skipping out? A. Yes, sir.”
The plea in abatement was properly overruled. The complaint filed with the examining magistrate i-ead as follows :
“ State of Kansas, Trego County, ss.
“F. I). Street, being duly sworn, on oath says, that on the first day of August, A. 1). 1895, in the County of Trego and State of Kansas, Daniel Countryman did then and there, unlawfully, feloniously, wilfully, deliberately, and of his malice aforethought, make an assault in and upon Joseph Sigler, with a certain shot-gun, breech-loader, which said shot-gun was loaded and charged with gunpowder and leaden shots, did discharge and'shoot off, against and upon the said Joseph Sigler, on the left knee, with intent to murder the said Joseph Sigler. F.'D. Street.
“Subscribed and sworn to before me, this 1st day of August, A. D. 1895.
Joshua Groet, Justice of the Peace.”
This complaint was quoted in the warrant of arrest. The justice’s docket, at the appropriate place and in the logical order of statement of proceedings before him, contained the following entry :
“August 2, 1895. Plaintiff by John A. Nelson County Attorney present. Defendant appeared in person. The defendant waived formal arraignment and plead not guilty. And it appearing that the said offense was committed and that there is probable cause to believe the defendant guilty of its offense, it is by me adjudged that he do enter into a recognizance in the sum of one thousand dollars, for his appearance at the next term of the District Court of Trego County and for want of such recognizance that he be committed to the jail of Trego County there to remain until discharged by law.”
The justice’s mittimus, or order of commitment, recited in substance the complaint and warrant of arrest. These papers and proceedings show a more than usually strict and technical compliance with legal iorms, and are without doubt full and sufficient .evidence of a preliminary examination, or trial, and, in fact, are the best evidence.
The objection to the jurisdiction of the court was likewise unfounded. It was based upon the theory that the term of court in Ellis County commencing on the fourth Monday in May, 1896, at which the defendant was tried, was not authorized by law. The Laws of 1889, chapter 118, section 20 (¶2040, Gen. Stat. 1889), fixed the terms of court in all the counties in the twenty-third judicial district, and specifically as to Ellis County on the second Monday in May, and in Trego County on the fourth Monday in May, of each year. In 1895, the times of holding court in all the counties of the twenty-third judicial district, were changed by an act purporting, in its title and in its first section, to amend paragraph 2040 of the General Statutes of 1889. (See Laws 1895, chapter 107.) By this act the May term in Ellis County was fixed for the fourth Monday, and what had been the May term in Trego County was postponed to June ; but it contained no specific clause repealing the act of 1889, and because of this it was claimed to be violative of section 16, article 2 of the Constitution, which declares that, “no law shall be revived or amended unless the new act shall contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” The older law, however, has been repealed by the necessary implication arising out of the adoption of an entirely new provision covering every detail of the older one, — by providing anew all which the older one provided for. The law of 1895 not only changed the time of holding the May term of court in Ellis County, but of the other terms as well, and not only changed all the terms in Ellis County, but all the terms in all the other counties of the twenty-third judicial district. Thus the new law did contain the “entire section amended,” to use the language of the Constitution, or, the entire section as amended, which is what the Constitution means. Therefore, the law providing for terms of court in Trego County on the fourth Monday in May, and Ellis County on the second Monday in May, had been amended by another, which assigned the fourth Monday in such month to Ellis County, and another day in another month to Ti’ego County ; and, similar changes having been made as to all the other counties in the twenty-third district, and as to all their terms, the later, was a substitute for the earlier one in all its parts, and as to its entire subject-matter. This accomplished a repeal of the earlier one by implication ; which is allowable without any express repeal. State v. Guiney, 55 Kan. 534.
The defendant, at the close of the trial, preferred requests to the Court for certain instructions to the jury, to the effect that one whose person or family, or property is attacked by a party of rioters, may resist such attack, whether felonious or otherwise, by the use of such means as will make his resistance effectual, even to the extent of using fire-arms or other deadly weapons ; and to the refusal of the Court to give such instructions exceptions were preserved. These instructions were correctly refused. It is not the law that one may resist a non-felonious assault upon himself, or his family, or his property, by the use of deadly weapons. He may resist non-felonious assaults by the use of such weapons or means as may be necessary to repel them, but not to the extent of taking or endangering life. State v. Thompson, 9 Iowa, 188; State v. Kennedy, 20 id. 569; Rippy v. The State, 2 Head, 217; Gallagher v. The State, 3 Minn. 270; Harrison v. The State, 24 Ala. 67. These and other like cases are to be found in Horrigan & Thompson on Self Defense.
The defendant’s testimony, heretofore quoted, and which, as we have said, is the most favorable to himself of all the witnesses, shows no felonious assault; in fact, no assault at all, upon his person, nor upon any member of his family. It shows nothing but a trespass— aggravated and inexcusable, however — upon his property. No threats of harm to himself or to his family had been made by any of the rioters. At and before the time of firing upon the intruders, some of them were standing still, apart from him and his house, while others were running away. Pear upon the defendant’s part that the rioters would assault him or his family, or injure his property, did not justify the use upon them of a deadly weapon. The use of a deadly, weapon by a person in defense of himself, his family, or his property, is unjustifiable, except where the assault is felonious in character, is impending, and is so near to being made that its consummation can be prevented by the use of no other means adequate to repel it. This was the law laid down in Commonwealth v. Selfridge, by Judges Parsons, Sedgwick, Sewell and Parker, of Massachusetts, near an hundred years ago, ancl it has remained without serious challenge to this time. Horrigan & Thompson, Self Defense, 1.
The case of Patten v. The People, 18 Mich. 314, is confidently relied upon by the defendant to sustain his view. In that case, however, it was in evidence that the defendant’s mother was severely ailing, and that the noise of the riotous party, and the terror into which she was thrown by their presence and conduct, greatly endangered her life, and the court, therefore, correctly, as Ave think, instructed that the defendant was justified in the use of a deadly weapon in the protection of his mother. In that case, however, Judge Christiancy, in delivering the opinion of the court, distinguished between cases in which the defendant might or might not be justifiable in the use of deadly weapons, and, in so doing, paralleled, in the latter instance, the case we have under consideration. He remarked as follows:
“Considering the case first, with reference only to the facts existing prior to the time when the defendant went out with the axe, and without reference to the peculiar effects produced by the conduct of the rioters upon his mother, there was nothing, I think, in the evidence fairly tending to show a state of facts which would justify or excuse the defendant in rushing out and attacking any of the rioters with an axe, or other dangerous weapon, for the purpose of compelling them to desist or leave, though he might have been excused for attempting to drive them off by force, and even by blows with any instrument not calculated to endanger life or limb. But though, from the sudden, violent and capricious impulses to which an excited mob is always subject, danger may always be naturally apprehended, especially about a man’s dwelling at night, whatever the original object of the assemblage may have been — and no one can estimate the nature or extent of the danger — yet, until some actual violence has been done or attempted in this case against either the house, or its inmates, the necessity which alone could excuse taking the life of any of the assailants, had not yet occurred, and might never occur. And though the defendant had the right to act under the circumstances as they appeared to him, yet up to this point (without reference to the defendant’s mother) there was nothing in the circumstances which fairly tended to show that he could have believed the dire necessity to have arisen.”
Of course, it is not to be understood that one may not act in defense of his person, family, or habitation upon appearances of danger, even though there be no real danger. There must, however, be appearances of danger — appearances which impress themselves upon the mind of an ordinarily prudent, cautious, and self-possessed person as dangerous. These were totally lacking in the case under consideration, even according to the defendant’s own testimony.
The Court instructed the law to be that one who honestly believes that his person, family, or habitation is about to be injured by a riotous assemblage, has the right to disperse such assemblage by the use of such force as may honestly appear to be necessary for such purpose, even to the extent of using deadly weapons ; but that the degree of force employed must not exceed that which he honestly believes is necessary to accomplish the purpose, without exposing himself or family to danger of bodily harm. This statement of the law was correct, and covered the facts of the case on trial.
Complaint is also made of the refusal of the Court to instruct the jury that the proof upon the part of the' State must be of a specific intent in the defendant’s mind to kill Joseph Sigler, and that proof of firing into a crowd of boys, with no specific intent to kill any one in particular, would be insufficient to convict of an assault with intent to kill. If the law be as claimed by the defendant, the refusal of this instruction was harmless error; because the defendant was not convicted under section 38 of the Crimes Act, which re quires proof of such particular intent, but was convicted under section 42 of such act, which does not require proof of such intent.
It has already been held that a charge under section 42, of assaulting and wounding under such circumstances as would constitute manslaughter if death had ensued, is included in an information for assault with intent to kill, under section 38. State v. Burwell, 34 Kan. 312.
Some criticism is made upon the language of one or two instructions which the Court gave, but no substantial questions of error are raised ; and, there being none in the record, the conviction is affirmed.
All the Justices concurring. | [
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Doster, C. J.
Mrs. Elizabeth A. Telfer and her husband lived in Reading Township, Lyon County. July 19, 1892, they started in a spring wagon to visit Mrs. Telfer’s mother, some miles distant. Mr. Telfer acted as' driver. The highway at a certain point crossed a ravine with steep and rocky banks, which rendered it a difficult and dangerous place. In endeavoring to cross, the wagon was “tipped over,” on account of the roughness and difficulty of the descent of one of the banks, and Mrs. Telfer was severely injured thereby. The defect in the highway which caused the accident was known throughout the neighborhood, and, being on an open prairie, most of the travel had avoided it by going around some distance on either side; but, a few weeks previous to the accident, the owners of the adjacent lands had fenced them up, compelling travelers to pursue the line of the highway, and thus cross the place in question; and a short time before the accident the husband and wife had crossed the place where it occurred. The township trustee had actual knowledge of the defect in the highway at that point, and contemplated putting it presently in better condition.
. The plaintiff, Mrs. Telfer, brought suit against the township in which the accident occurred to recover for her injuries, under the statute, section 1, chapter 237, Session Laws of 1887 (¶ 7134, Gen. Stat. 1889), which reads as follows :
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter providedthat is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained ; and in other cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.”
A verdict was returned and judgment rendered in her favor, from which the Township prosecutes this proceeding in error. It was contended in the court below that the evidence showed the husband to have been guilty of contributory negligence, in driving over a highway known by him to be defective and dangerous, and that such negligence was imputable to the wife, and, being so, barred a recovery by her ; and a request for instructions to the jury predicated upon this view’ of the law was preferred, and refused by the court. The first claim of error arises upon this refusal. This claim is rested upon an assumed or implied agency of the husband, in driving the vehicle under the direction and command of the wife, or, as a participant with her in a joint venture or enterprise. Before proceeding to the consideration of this claim of error, it may be well to state that no charge of actual negligence is made against the wife herself, either in the briefs or oral argument of counsel. The question of her personal negligence in contributing to the injury was submitted to the jury, under instructions of which no complaint is made, and was found in her favor.
It is claimed that the visit to the mother was undertaken by the husband at the solicitation of his wife ; that it was her visit, and not his ; and that, if such does not appear as a fact from the evidence, the least that can be said is that it was a joint venture by both husband and wife. From each of these alternative propositions of fact a deduction of agency in the husband for the wife is drawn, and from thence the legal imputation of negligence is derived. The question is, therefore, squarely presented whether the contributory negligence of the husband, in driving his wife over a defective highway, can be imputed to her in bar of an action against the person principally or primarily responsible for the injury. Our judgment is that it cannot; but the authorities, it may as well be admitted, are . conflicting — irreconcilably so — and are numerous in support of each side of the contention. That the principal cannot recover for injuries to which the negligence of his agent and a third person has contributed, is settled beyond dispute, both upon reason and authority. The difficult question is: Under what circumstances can an agency be implied or be said to exist? The plaintiff in error in this case would imply it, as some of the courts have done, from the relation of husband and wife. Yahn v. City of Ottumwa, 60 Iowa, 429; Carlisle v. Sheldon, 38 Vt. 440; Prideaux v. City of Mineral Point, 43 Wis. 513. The defendant in error contends that this cannot be done. Hoag v. Railroad, 111 N. Y. 199; Louisville N. A. & C. Rly. Co. v. Creek, 130 Ind. 139, 29 N. E. Rep. 481; Railroad Co. v. Spilker, 134 Ind. 380; Lake Shore and M. S. Rly. Co. v. McIntosh, 140 Ind. 261, 38 N. E. Rep. 476; Flori v. City of St. Louis, 3 Mo. App. 231.
The fact, if it be such, that the journey was undertaken at the solicitation of the wife, possesses no weight. It cannot be that one who merely secures from another the favor of transportation in a private vehicle takes upon herself or himself all risk of the driver’s negligence en route. To so hold would minimize the problem for consideration into a mere question of fact as to which of the travelers solicited the other ; the one the favor of a journey, or the other the pleasure of company. If the one who asks to be carried, hence is the master, so on the other hand the one who invites to a ride is also the master. If the maiden who begs of her escort a carriage drive is the mistress throughout the journey, so the gallant who invites his lady would likewise be the master until her safe return. It may be conceded that persons of mutual purpose and equal privileges of direction and control, who travel in the same vehicle in pursuit of a common object, are the agents of each other in such a sense that the negligent act of one in furtherance of the common scheme is imputable to all; but such mutuality or equality of direction and control does not exist in the case of a journey taken by husband and wife.
Say what we may in advocacy of the civil and political equality of the sexes, there are conditions of inequality between them, in other respects, which the law recognizes, and out of which grow differing rights and liabilities. One of these is instanced in the case of a journey by husband and wife, such as was undertaken by the parties in question. By the universal sense of mankind, a privilege of management, a superiority of control, a right of mastery on such occasions is accorded to the husband, which forbids the idea of a coordinate authority, much less a supremacy of command, in the wife. His physical strength and dexterity are greater ; his knowledge, judgment, and discretion assumed to be greater ; all sentiments and instincts of manhood and chivalry impose upon him the obligation to care for and protect his weaker and confiding companion; and all these justify the assumption by him of the labors and responsibilities of the journey, with their accompanying rights of direction and control. The special facts of cases may show the wife to be the controlling spirit, the active and responsible party, and the husband an agent, or even a mere passenger; but, in cases where such facts are not shown, the court must presume, in accordance with the ordinary, almost universal, experience of mankind, that the husband assumed and was allowed the responsible management of the journey. A review of the opposing decisions upon this question, for the purpose of exhibiting their reasoning and approving that of some and combating that of others, would be profitless, and hence is not undertaken. It may be. remarked, however, that the doctrine of imputable negligence, except when countenanced by statute, is a fiction of the law which finds small favor-with the courts, and has been very infrequently applied in our own.
Complaint is made that the court erred in instructing the jury that the burden of proof was upon defendant to establish contributory negligence upon the part of the plaintiff. The rule in ordinary cases is, that contributory negligence is a detense to be alleged and proved; but it is claimed that the statute above quoted changes the rule of pleading and shifts the-burden of proof, as to cases falling within its terms. We do not assent to this view. While the statute gives a right of action to “persons who shall, without contributing negligence on their part, sustain damage,” etc., yet its object was, not to declare a rule either of pleading or of evidence, but to declare a rule of right. The common law is that persons who, without contributing negligence on their part, sustain damages by reason of: the negligence of others, are entitled to redress for-their injuries ; but because of the nature of quasi corporations, such as counties and townships, whose- functions and purposes are entirely public, they have been held to be without the rule of compulsion to respond for the negligent acts of their officers. Comm’rs of Marion Co. v. Riggs, 24 Kan. 255; Eikenberry v. Bazaar Twp., 22 id. 556. This defect in the common law was remedied by the enactment of the statute in question; and the only effect of such statute was to bring a class of cases within the operation of the common law of negligence which hitherto had been without. This statute simply declared as to counties and townships what has always been the law with respect to cities, private corporations, and individuals. A contrary view has been held in Walker v. Chester Co., 40 S. C. 342, but it does not meet our approval.
It is also claimed that the defect in the highway where the plaintiff received her injuries was not a “defective highway,” within the meaning of the statute; that to constitute it such, the road should first have been improved at the point in question, and then allowed to become defective through lack of repair. It is thought that the statute, section 5, chapter 168, Laws of 1885 (¶ 7133, Gen. St-at. 1889), reenforces this view, because it requires township officers “to keep roads in repair, and improve them as far as practicable,” and because “permanent roads” need only be constructed ‘ ‘ whenever the available means will permit.” We cannot assent to this view. Alaid-out and opened road is none the less a public highway, because not yet put in condition for travel. The statute which gives the right of action contains no exceptions to its terms, and it and the one which provides for the improvement and repair of public roads relate to such widely differing subjects that they cannot be construed in pari materia. Besides, the statute which gives the right of action in question is a remedial one, and should therefore be liberally, rather than restrictively, construed.
Finally, it is urged that the amount of recovery ($5,165) is excessive. We do not think so. The injuries were of a peculiar nature, followed by much pain and prolonged confinement to the sick-room. According to the testimony of physicians they are pérmanent in some respects, and entail consequences of a character which money can hardly compensate.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Allen, J.
Two cases are submitted, together. Both were cases to foreclose mortgages executed by Emanuel Johns and wife to the Southern Kansas Mortgage Company. Each mortgage was for $2,500. The one under which Ellis claims covers lot 8, and the one sued on by Scattergood covers lot 9 in block 3 in the city of Lyons. Both plaintiffs claim under assignments executed in blank by the Southern Kansas Mortgage Company. The controversy in this Court is between these plaintiffs in error, who were plaintiffs below, and certain persons who claimed mechanics’ liens on both lots. The petitions allege the execution of negotiable bonds, and mortgages securing the same, by Johns and wife to the Southern Kansas Mortgage Company, and the indorsement and delivery thereof to the plaintiffs ; and that the defendants claim liens on the property which are inferior to those of the plaintiffs. The defendants answered, in substance, that an action had been brought by the Bank of Lyons against the mortgagors and divers other parties claiming an interest in the land under them, the Southern Kansas Mortgage Company, Isaac L. Miller, Colliday and Hartley, and the answering defendants ; that answers were filed in said action in behalf of Miller, claiming to hold one of said mortgages by assignment from the Southern Kansas Mortgage Company, and by Colliday and Hartley claiming under the other ; that in that action a judgment was rendered in favor of these defendants, establishing the validity of their liens, and adjudging them prior to the lien of the mortgages of plaintiffs in these Cases. On the trial, the record mentioned in the answers was introduced in evidence ; and the Court held that the judgment rendered in the action brought by the Bank of Lyons was conclusive on the plaintiffs. The theory of the Court seems to have been that, as no assignment of the mortgages had been recorded, the holder was bound by a judgment in an action to which the original mortgagee was a party. The brief on behalf of the plaintiff in error is devoted to showing the fallacy of this position, and to proving that the owner of the mortgage had the right, at any time before actual sale of the land under the prior judgment, to bring his action against all persons interested and establish the priority of his lien notwithstanding the former judgment. It appeal’s from the record that, in the prior suit, the defendants in error claimed liens on both lots under the mechanic’s lien law; that a building covering both lots. was constructed by the owners of the land, and that their claims for such liens were prosecuted to final judgment in that action.- The record of the judgments, as well as the pleadings on which they were based, was put in evidence in this case, and no attack is made on the validity of the judgments as against the owners of the property. The only question raised was, and is, as to their priority. The mortgages under which the plaintiffs claim are dated June 1, but were not acknowledged till June 14, '1887. There was evidence introduced at the trial showing that work on the building, on account of the construction of which the defendants claim liens, was commenced between the 1st and 20th days of May preceding. Several witnesses testified to this effect, and we are unable to find any evidence in the record contradicting them. This matter is not mentioned in the brief for plaintiff in error, and no one has appeared in this Court for the defendants in error. Conceding that the Court erred in holding the prior judgment conclusive and binding on the plaintiff, it yet appears from all tbe evidence in the case that the defendants had valid liens on the property, which they had duly prosecuted to judgment within the time prescribed by the statute ; and it also appears that their liens were prior and superior to that of the plaintiff under his mortgage. The judgments, therefore, seem to be right although the reason for rendering them may be wrong. As the plaintiffs were given judgments against the mortgagors, and for a foreclosure of their mortgages subject to the prior liens of the defendants, we do not perceive that they have any just ground for complaint.
The judgments in both cases are affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
The proceedings in this case were very irregular. The action was commenced December 15, 3891, -and the first term of the court thereafter was fixed for the first Tuesday of January, 1892. The pleadings were not made up, and the time for framing the issues had not expired. The action was not triable at the January term except by consent of parties. (§ 315, Code.) The order granted on December 18 was called a restraining.order, and not a temporary injunction, and the fact that no bond was fixed by the court indicated that a temporary injunction was not contemplated; but however this may be, the court was not justified in forcing the defendants into a final trial at the January term and before the issues were made up. It seems probable from the record that the defendants did not understand that a trial was taking place on the merits until the proceeding was well under way, and both objected to such a summary disposition of the case. The ruling of the court on the demurrer of the sheriff was correct, but the amendment of the petition was of no avail, for no allegation was made connecting the Anthony National Bank with the cause of action in any way, and the court erred in overruling its demurrer. Looking at the record as now presented, it would appear that substantial justice was done so far as the litigation related to the 140 acres for which the salt company obtained a deed. But as the case was tried without issues of fact being framed, and before the defendants were bound to anticipate that a trial on the merits would be had, we cannot say that they were not prejudiced by reason of the hasty and summary action of the court. Leave should be granted to all parties to file amended pleadings with a view to a trial upon issues of fact.
The judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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Johnston, J.
The only contention here is between J. B. Bartholomew, who took up one of the Zeiner notes, and the First National Bank of Salina, Kansas, the payee of the note. Bartholomew claims that he purchased the note and was entitled to be subrogated to the rights of the Bank and to have the mortgage securing the note foreclosed in his favor. The Bank insists that there was no purchase or assignment of the note, and that only payment was contemplated by either party. The claim that the testimony fails to support the findings of fact cannot be sustained, and this is the principal error assigned. In the negotiations between Bartholomew and the Bank nothing was said indicating a purpose on his part to purchase the note, nor concerning its assignment to him. When arrangements were made for the taking up of the note by Bartholomew he paid $313.87, which was indorsed upon the note as any payment would have been. This amount appears to have been indorsed upon the note as a payment, in the presence of Bartholomew, and no objection was then made nor any claim that it should be treated as a purchase. According to the testimony of Bartholomew he had no interest in the land to protect, was under no obligation to assume the burden of this debt, and had no agreement with the debtors that he would assume or pay the same. The Bank appears to have proceeded upon the theory that Norton, who held the equity in the Zeiner land, was a member of the firm of Bartholomew & Co., and that therefore Bartholomew was interested in the payment of the incumbrance against his.land for the protection of his own interests. He claims, however, that he was only acting as the agent of Norton, and had no interest in the equity which Norton had purchased. From the testimony it would seem that the object of the Bank was to secure the payment of a part of the mortgage debt so that the security would be sufficient for the portion remaining unpaid. The lien of the Bank was subsesequent to the $7,000 mortgage of the New England Loan and Trust Company, and when the transaction was had with Bartholomew it held another note secured by the same mortgage amounting to nearly $2,500, and still another note for $258.19, together with accumulated interest, secured by another mortgage upon the same land. Under the testimony and findings we must assume that there was no assignment, nor intention that Bartholomew should be substituted for the Bank when payment was made. In view of the large incumbrance which was prior to that of the Bank, and of the fact that only a little more than half of the secured debt to the Bank was paid by Bartholomew, there is much plausibility in the claim of the Bank that it was seeking to reduce the indebtedness by payment so that the security would safely cover the unpaid portion of the debt. The Bank would have little to gain by the sale and assignment of the note if Bartholomew was to be substituted and given a lien as against the Bank for the unpaid portion of the mortgage debt, which at the trial amounted to considerably more than $3,000. The Bank was not required to assign the debt; and the rule of equitable assignment is never applied in aid of a mere volunteer, nor where it will operate inequitably upon the creditor. -.If Bartholomew was to be treated as a surety, he would not be entitled to subrogation, because only a portion of the mortgage debt has been paid. “The creditor is entitled to full satisfaction of the debt before the right of subrogation may be invoked ; the surety may not meddle with any of his rights and securities so long as any portion of the debt remains unsatisfied.” 24 Am. & Eng. Encyc. Law, 200, and cases cited.
In our view there is sufficient testimony to support the findings of the Court, and its judgment must be affirmed.
All the Justices concurring. | [
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Johnston, J.
This was an action to enjoin the enforcement of the judgment rendered by the District Court of Anderson County in favor of Charles Raymond and against the Supreme Lodge of the Order of Select Friends, which judgment has just been affirmed. (Ante, p. 647.) After the rendition of the judgment, a case was made for, and- filed in, the Supreme Court with a view of obtaining a reversal. In order to supersede the judgment and stay its enforcement until a review could be had, an undertaking was tendered by the Supreme Lodge to the Clerk of the District Court of Anderson County, but he declined to approve it. An execution was issued and placed in the hands of the Sheriff of Bourbon County, which he was about to levy, when the Supreme Lodge brought this action in the District Court of Bourbon County, alleging that the undertaking was valid and sufficient; that it was wrongfully refused by the clerk ; that Raymond was insolvent, and, if the collection of the judgment should be enforced and it should be subsequently reversed and set aside, the Supreme Lodge would suffer great and irreparable loss.
The District Court sustained a demurrer to the petition and gave judgment for defendants.
The petition was demurrable. It is not claimed that the judgment is void, nor is any reason shown for resorting to this extraordinary remedy in a court other than the one wherein the judgment was rendered. The remedy is not appropriate. If the district clerk capriciously or wrongfully refused to approve a proper undertaking, the plaintiff should have proceeded against him in the court of which he was clerk. Adequate relief could have been had there by employing ordinary methods of procedure. The clerk is an officer of the District Court, which is charged with the duty of regulating the proceedings of its own officers. In The State, ex rel., v. Breese, 15 Kan. 123, it was held that an application to compel the performance by an officer of the district court of a duty devolving upon him by virtue of his office should ordinarily be made in the first instance to that court. It was said that harmony will be promoted by having all the proceedings controlled by one tribunal, and that the district court “is better acquainted with its officers, can more fully appreciate the reasons for their action, and more justly measure the punishment to be awarded in case of disobedience.”
We think the District Court ruled correctly, and its judgment will therefore be affirmed.
All the Justices concurring. | [
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Allen, J.
Numerous errors are assigned on the record, but the view we take of the case renders it unnecessary to discuss them in detail. Counsel for the plaintiff in error strenuously insist that there could not be á bona fide contest as to the amount dale bn the notes. That there was a dispute between himself and the maker of the notes concerning the date from which' interest should be computed, at the time the first payment was made, is conceded; but his contention is that the claim made by the defendant was not urged in good faith, and was utterly without foundation. There is no dispute as to the fact that the patent for the lands in Riley County was not filed until December 26, 1890. By their terms the notes are promises to pay in one year, with interest from maturity at the rate of 10 per cent., followed by the restriction that the notes are to be paid only when patents for the lands described in the mortgage appear on record in the county where situated. It does not seem to be seriously contended that the defendant was bound to pay the notes until the patents were recorded; but it is insisted that interest commenced to run at the expiration of a year from the date of the notes. There was ample room for an honest disagreement as to the proper construction of the notes. Indeed, we are not prepared to say that the plaintiff’s construction of the instrument itself is the correct one. But whether it is or not we do not decide, for it is sufficient to defeat his claim that there was in fact a bona fide dispute between the parties; that an agreement was finally reached as to the amount to be paid in full satisfaction of the plaintiff’s claim, and payment made accordingly. That this was the case appears to us clearly from the plaintiff’s own evidence, and from the written receipts endorsed on both notes and mortgages. It is alleged in the petition that the payments were made, and that the securities were delivered to the defendant. It is true that, under the authorities cited on behalf of the plaintiff in error, a receipt purporting to be in full of the plaintiff’s demand may be contradicted by oral testimony showing either that the payment was not in fact made or that the amount was inadequate to discharge, the debt; but this is not such a case. There is no dispute with reference to the amount actually paid. Nor was there any misunderstanding by either party as to the terms of the notes. The only dispute was as to the legal construction of the notes and the extent of the defendant’s liability. The rule that the payment of a less sum than that actually due is not a valid accord and satisfaction, only applies when the claim settled is liquidated and undisputed; and where the debtor offers to pay the principal of a note, and in good faith denies his liability to pay interest, if the creditor accepts the offer and surrenders the note it is an accord and satisfaction, and he cannot thereafter maintain an action to recover the interest. Tuttle v. Tuttle, 12 Metc. 551; McGlynn v. Billings, 16 Vt. 329; McDaniels v. Lapham, 21 id. 222; Palmerton v. Huxford, 4 Denio, 166; 1 Am. & Eng. Encyc. Law (2d ed.), 415. It being clear that the plaintiff cannot recover under the conceded facts of the case, the technical questions arising on the pleadings and the introduction of testimony are without substance, even though it should appear that in some particulars the rulings of the Court were erroneous.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a bond given to indemnify the plaintiff against loss resulting from breach of a contract to curb and gutter the public square in the city of Belleville. A demurrer was sustained to the petition and the plaintiff appeals.
The petition pleaded the contract with the. contractor, the bond given by the defendant, performance of the work, and payment of the price to the contractor. The contract was dated June 1, 1911. It provided that the work should be done according to certain specifications and that the whole curb and gutter should continue in perfect condition for two years from date of completion and acceptance. On completion of the work the contractor was to notify the county board, who within ten days were to inspect the work and if it complied with the contract were to pay for it. The work was to be completed in sixty days. The bond was .dated June 5, 1911, and contained the following provision:
“First: That no liability shall attach to the Surety hereunder unless, in the event of any default on the part of the Principal in the performance of any of the terms, covenants or conditions of the said contract, the Obligee shall promptly and in any event not later than thirty days after knowledge of such default, deliver to the Surety at its office in the City of Baltimore, written notice thereof, with a statement of the principal facts showing such default and the date thereof; nor unless the said Obligee shall deliver written notice to the Surety at its office aforesaid, and the consent of the Surety thereto obtained, before making to the Principal the final payment provided for under the contract herein referred to.”
The petition charged that the work was not done according to the specifications, the particulars being stated, so that it was unsuited to the purpose for which it was designed, but that the contractor so completely covered up his nonobservance of the specifications that it was impossible to detect the defects in the work, which were not revealed until shortly before January 27, 1913, when the defendant was notified by registered mail of the contractor’s default.
A motion was made to require the plaintiff to itemize the breaches of the contract, to itemize the plaintiff’s damages, to state when the plaintiff learned of the contractor’s default, to state when the plaintiff notified the defendant of the contractor’s default, and if a written notice were given the defendant, to attach a copy to the petition. The motion was overruled. It is argued that the petition should be construed strictly against the plaintiff because it induced the court to overrule the motion, and that the demurrer admits no facts defectively pleaded to which the motion was directed. (Stewart v. Balderston, 10 Kan. 131.) , This might be true if the petition were defective and the motion ought to have been sustained, but such is not the case.
The motion to make definite and certain is available when the pleading is so indefinite and so uncertain that the nature of the charge or defense is not apparent. (Civ. Code, § 122.) In the early days of the code, while the courts still rested under the spell of the refinements and technicalities of the common-law system of pleading, the motion to make definite and certain was a formidable weapon, because definiteness and certainty then meant dividing between the north and northwest portions of a hair. The true meaning of the code expression, “so indefinite and uncertain that the nature of the charge or defense is not apparent,” was not grasped. Now that pleadings are regarded according to their true purpose of fairly apprising the adversary of what the claim is to be, the function of the motion is much restricted. In this case the very specifications which were not complied with were enumerated. There were no items of damage except a curb and gutter substantially worthless, for which the plaintiff paid $1695. The petition stated the defendant’s place of business and post-office address to be Baltimore, Md., the place mentioned in the bond, and pleaded sending to the defendant by registered mail on June 27,1913, a. written notice notifying it of the contractor’s default, which notice the defendant received. The default was discovered “a very short time” before the notice was mailed and the notice was followed by communications from the defendant. The defendant knew what the notice it received contained, and could scarcely fail to understand from the petition the nature of the plaintiff’s claim, so that the defendant’s standing is no better than it would have been if the motion had not been filed.
The demurrer merely raised again the question whether or not the notices required by the quoted portions of the bond are conditions precedent to liability, technical compliance with which must appear on the face of the petition.
The legal status of a surety company like the defendant is well defined in this state. It is an insurer for pay and does not occupy the position of the ordinary surety, who voluntarily undertakes to make good the default of his principal. The bonds which it dictates to those in need of them are to be interpreted to accomplish indemnity against loss sustained. Notice of default and notice of final payment are not cast-iron conditions precedent to liability, but are reasonable reservations made to afford the insurer an opportunity to protect itself against loss should it need and should it be able to do so. If no notice be given but no loss result as a direct consequence, liability is not affected. Actual damage resulting from failure to give notice must be pleaded and proved as a defense.
The foregoing principles were definitely established by the decision in the case of School District v. McCurley, 92 Kan. 53, 142 Pac. 1077, which collates the earlier Kansas cases, and by the decision in The Y. M. C. A. v. Ritter, 92 Kan. 467, 140 Pac. 892, on rehearing. The statement in the opinion in the latter case that the views expressed in the former opinion were adhered to related to the construction placed on the bond and contract with reference to retention of a percentage of the contract price. The doctrine discussed in the former opinion, that failure to retain the required percentage until after notice and permission to pay would discharge the bonding company absolutely, was not applied, but, on the other hand, the cause was remanded for the express purpose of ascertaining if injury did result. The concluding portion of the second opinion reads as follows:
“The judgment will be reversed and remanded with directions to find the amount of each estimate and the payments thereon, and the amount retained in the hands of the association, and to find whether or not the surety company lost by reason of the failure to comply with this provision of the contract and bond. The appellant is only entitled to defend the action to the extent it has been injured, if any, by such failure.” (p. 467.)
The syllabus in the McCurley case reads as follows:
“1. A bonding company engaged in the business of insuring the per formance of contracts of others for pay is not a ‘favorite of the law’ in the sense the term is applied to accommodation sureties.
“2. Such a company is not relieved of all liability upon a bond given by it to secure the performance of a builder’s contract by reason of the failure of the obligee to give notice, according to the terms of the bond, of a failure of the builder to complete the building within the time specified, where such failure resulted in no actual loss or prejudice to the bonding company, notwithstanding the bond provides that no liability shall attach to the company unless such notice be given within a certain time after the default.”
The result is the petition stated a cause of action.
The matter of notice of default is fully covered by the decision in the McCurley case.
So far as the other notice is concerned, the writer’s opinion is that the form of the bond was the stock form which is used when partial payments are made on estimates as work progresses, a final percentage being reserved. In this form of bond “final payment” is the last payment of a series, and the term does not apply to the entire contract price payable on completion of the work. However this may be, assuming the statements of the petition to be true, in order to defeat recovery because notice was not given before final payment the defendant must satisfy a jury that it possessed and would have used extraordinary means of testing the character of the contractor’s work, so that if notified it would have discovered the defects which it was impossible for the plaintiff to discover, and would have stopped final payment to the contractor.
The judgment is reversed and the cause is remanded with direction to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the administrator of the estate of a deceased lunatic to recover on the bond of the lunatic’s guardian, for mismanagement of his ward’s estate. A demurrer was sustained to the petition and the plaintiff appeals.
The petition stated that the guardian had presented to the probate court an application for his discharge, to which was appended a so-called final account which was incomplete and incorrect. No action by the probate court on the account was pleaded, and the petition was framed on the theory that the probate court might be ignored, and that the district court might investigate the unfaithful and negligent conduct of the guardian, canvass his accounts, and render judgment against h'im and his bondsmen for the amount of the delinquency.
Sections 28 and 30 of chapter 72 of the General Statutes of 1909, relating to guardianship of lunatics, imbeciles and drunkards, provide as follows:
“In case of the death of any such person while under guardianship the power of the guardian shall cease, and the estate shall descend and be distributed in the same manner as if such person had been of sound mind or temperate habits; and the guardian shall immediately settle his accounts and deliver the estate and effects of his ward to his personal representative.
“The probate court shall have full power to control the guardian of any such person in the management of the person and estate and the settlement of his accounts, and may enforce and carry into execution its orders and judgments in the same manner as in cases of administration.” (Gen. Stat. 1909, §§ 4846, 4848.)
These sections of the statute mean that when a lunatic ward dies the power of his guardian to manage and control his estate terminates. The guardian must immediately settle his accounts. When the settlement is made the property and effects of the ward must be delivered to his personal representative. The settlement, however, must be made not with the personal representative but with the probate court, which is given full power over that subject, including power to enforce its orders and judgments. Power to control the guardian in the settlement of his accounts is conferred as broadly as power to control the guardian in the management of the ward’s estate, and consequently includes power to call him to account for neglect, mismanagement, and unfaithfulness.
The settlement contemplated is strictly analogous to what we understand by the term “final settlement.” The statute relating to guardians of minor wards (Gen. Stat. 1909, §§ 3966-4000, ch. 49) contains no provision for such a settlement and consequently cases like Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782, do not apply. Cases like Klemp v. Winter, 23 Kan. 699, holding that the district court may investigate and relieve against guardians’ settlements which are the product of fraud, do not apply.
The probate court having been granted primary and plenary authority over the subject matter of the petition, and that authority having been invoked by the presentation of a final account for approval, no occasion existed for the district court to intervene and exercise its general jurisdiction to investigate accounts, 'find balances, ascertain and declare defaults, and enforce securities for unfaithful conduct.
The petition failed to state a cause of action and the judgment of the district court is affirmed. | [
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Per Curiam:
On May 19 appellants filed a petition for rehearing, which was denied, no opinion being rendered. Among other questions presented was, whether the action of the annuity association in changing its by-laws violates the provisions of section 10 of article 1 of the constitution of the United States, in that it impairs the obligation of the contract between appellants and the association, and in effect deprives the appellants of vested rights. In a supplemental petition for rehearing it is asked that the court decide the federal question suggested in the former petition. We hold that the changes in the by-laws of the association do not have the effect contended for by the appellants, nor constitute a violation of the federal constitution, and therefore the petition is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff in each of the foregoing actions seeks to hold The Cudahy Refining Company, sued jointly with The Sunflower State Oil Company, for the wrongful death of plaintiffs’ son. The Cudahy Refining Company demurred to the petition, and appeals from an order overruling the demurrer. The trial court continued the cause generally pending the determination of the appeal.
The petition, briefly summarized, alleged that for some time prior to the injury complained of “there had been a community of interest and operation between the two companies”; that certain stockholders and officers of the one were also stockholders and officers of the other; that since the injury and damage to the plaintiff an agreement was entered into between the defendants by which the Sunflower company sold and transferred to the Cudahy company all its capital stock, assets, contracts, and franchises; that since such transfer the Sunflower company has ceased business and has no office in Kansas or elsewhere, and no-property, and that plaintiff can not obtain service upon it in any manner. It alleged further, that “by reason of the agreement and transfer” the Sunflower company was consolidated and merged into the Cudahy company; that the latter is the successor of the former, and that by reason of the foregoing facts the Cudahy company has become liable for plaintiff’s claim. In substance, the petition alleged: consolidation, succession, and receipt by the Cudahy company of all the assets of the old company.
We think, without question, the petition states a cause of action. In Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025, a case similar in many respects, except that the old company received stock in the new in exchange for its assets, and retained its corporate entity, it was held that the company acquiring the assets of the old company was liable for its debts to the extent of the value of the property so acquired. The. opinion refers with approval to a Note in 11 L. R. A., n. s., 1119, where the general rule is thus stated:
“Where the corporation incurring the liability ceases to Have an independent existence de jure, the consolidated or absorbing corporation is liable at law, as well as in equity, the ground for such liability being sometimes stated to be the continuance of the original corporation under a new guise, . . '. and sometimes to be an assumption of liabilities arising by implication. . . . Where, however, there is. an absorption of the business and assets — in other words, a merger de facto —by either a corporation formed for the purpose, or one already in business, the liability of the corporation receiving the assets is rested upon the familiar trust-fund doctrine, since such receiving corporation does not stand as a bona fide purchaser for value. In such case the extent of the liability is necessarily determined’ by the value of the property received.” (p'. 1120.)
While it is hardly accurate to say that the “trust-fund” doctrine applies strictly, to such a situation, it may be said to apply by way of analogy. In the opinion denying a rehearing in the case of Berry v. K. C., Ft. S. & M. Rld. Co., 52 Kan. 774, 36 Pac. 724, it was ruled in the syllabus:
“Where two or more corporations are consolidated into a new corporation, with a new name, and the old corporations go entirely out of existence, if no arrangements are made respecting the property and liabilities of the corporations that cease to exist concerning the debts and obligations of such corporations, the consolidated or new corporation will be answerable for the liabilities of its constituent companies. In such a case, the new corporation succeeds to all the property of the old corporations, and the debts of the old corporations become by implication the obligations of the new corporation.”
The leading authorities upon the question are quite thoroughly discussed in the opinion in the Altoona case, supra,' and an extended review of them here is not deemed necessary. Where the absorbing corporation is by law answerable for the liabilities of the old, we can see no substantial reason why such liability, as well as the extent and amount thereof, may not be established in the same action, nor why the creditor should be required first to proceed against the original debtor and establish his claim. In Coal Co. v. Nicholson, 93 Kan. 638, 145 Pac. 571, the creditor was permitted to recover from the absorbing company numerous claims for indebtedness incurred in the name of the old company without first proceeding against the old company. In the Altoona case the city was allowed to proceed directly against the new corporation and recover a debt incurred by the old. Some reliance is sought to be placed by defendant upon language in the opinion in Coal Co. v. Nicholson, supra, which states broadly the general rule that the new company is not liable for the debts of the old where there has been an actual purchase of property. The opinion, however, recognizes the numerous exceptions to the rule and follows what was decided in the Altoona case.
The petition alleges sufficient facts to show a liability' of the defendant for the debts of the old company, and the general statement that the old company “sold and transferred its property to the Cudahy company” does not destroy or limit the' other averments. The ruling upon the demurrer will be affirmed. | [
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The opinion of the court was delivered by
West, J.:
The deceased had for about two years worked in the defendant’s coal chute at Salina. There was a system of buckets for lifting the coal, which buckets when loaded weighed from eighty to a hundred pounds each and were elevated by means of machinery somewhat extensive in size and complicated in character. The allegations in part were in substance that the buckets caught on some obstacle in the bottom of the pit, thereby stopping the machinery, and while the deceased was attempting to remove this obstacle the buckets which had been filled with coal ran backwards of their own weight, catching and crushing him to death; that the power was furnished by a motor and applied by means of a belt and pulleys, and the belt when the motor was not running acted as a brake and prevented the elevator chains from running backwards, and when this belt was removed from its proper place no control could be exercised over the chains; that when the belt was removed from either wheel over which it passed the buckets would run backwards, and in this instance the loaded buckets did run backwards, causing the injury; that the belt and wheels were of faulty construction because not covered with a clamp or guard to keep the belt from slipping off, and that the defendant was negligent in not supplying such safeguards; that there was no safety device to stop the backward movement of the buckets when it became necessary to remove an obstruction; that the deceased met his death while attempting to operate the machinery “by reason of the insufficiency of the clearance of obstruction in said pit and booth, coal chute and elevator, and by reason of the insufficiency of said machinery and equipment, and by reason of the insufficiency and defects in safety appliances and safeguards in connection with said chute and elevator.”
The defendant pleaded a general denial, contributory negligence and assumption of risk.
It was shown that Martin had been at work at the chute some two years and had oiled the machinery from top to bottom, and had put the belt on and knew it would come off, and knew there were no appliances to keep the buckets from running backwards except the belt, and that he had been instructed when he first began work to always put the belt on before he removed the obstruction in the bottom of the pit.
The jury found the defendant negligent in having no other safety device than the belt, that the plaintiff was not guilty of contributory negligence, and that while he had reasonable opportunity to know the conditions he did not have reasonable opportunity to know and understand the danger to which he was exposing himself when he entered the pit at the time of the injury.
The defendant complains that its demurrer to the evidence and its motions to direct a verdict and for judgment on the' special findings were denied, and also that its motion to set aside the findings of negligence and lack of reasonable opportunity to understand the danger was also denied. No motion for a new trial was filed. The argument is that there was no proof that the elevator was out of repair and that the only fault the plaintiff can find is with its construction. In other words, that the mere failure to provide an appliance for stopping the backward course of the buckets was not of itself negligence as the jury found. As the case was brought under the federal employers’ liability act (Part 1, 35 U. S. Stat. at L., ch. 149, p. 65) attention is called to decisions both state and federal thereunder, and it is argued that the only duty resting upon the defendant was to exercise ordinary care and diligence in furnishing a proper elevator and that this duty was performed. It was testified that to go to the proper place to see that the belt was on before attempting to remove the obstruction, as directed by the foreman when the deceased was employed, would require a course of travel including the mounting of certain stairs covering in all from six to eight minutes of time; that the pit was dark, and the only light by which the deceased, who was on the night shift, could see to remove the obstruction was his lantern; that the workman who attempted to extricate the body from the fatal crush of the bucket came near meeting a similar fate and outside help and apparatus were necessary to rescue him. It was testified that a simple locking device could have been easily provided, and that an appliance to prevent the belt from slipping off would have been practicable, though on this point there was a difference of opinion. Without going into the complex details of the machinery it is sufficient to say that there was evidence to support the conclusion of the jury that negligence was shown in the character of the elevator and its equipment with no safeguard or device to prevent the very kind of accident which happened.
Neither can it be said as a matter of law that the finding as to contributory negligence was contrary to or unsupported by the testimony, in view of the extent of the plant, the amount of coal required to be hoisted by the deceased, and the conditions shown. (Smith v. Street Railway Co., 91 Kan. 31, 136 Pac. 930, and cases cited.)
Notwithstanding the testimony showed that the plaintiff had reasonable means of knowledge of the machinery and its condition, the finding of the jury that he did not realize the danger of the situation when he did not remove the obstacle places the matter within the rule frequently announced that such appreciation must exist in order for assumption of risk to bar recovery. (King v. King, 79 Kan. 584, 100 Pac. 503; Carillo v. Construction Co., 81 Kan. 823, 106 Pac. 1050; Every v. Rains, 84 Kan. 560, 566, 115 Pac. 114; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Suniga v. Railway Co., 94 Kan. 201, 146 Pac. 364.)
No substantial error appearing the judgment is affirmed. | [
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Per Curiam:
This case was decided on June 12, 1915. {Ballou v. Railway Co., 95 Kan. 761, 152 Pac. 284.) On petitions of both parties a rehearing was granted. Before it was heard, the litigants effected a settlement satisfactory to themselves.
Therefore the order granting a rehearing is set aside. | [
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The opinion of the court was delivered by
Johnston, C. J.:
From a judgment in favor of plaintiffs setting aside a deed to certain property located in the city of Harper and awarding damages and costs defendants appeal. At the trial the court, among other things, found that plaintiffs, Walter A. Munger, Tilda E. Barney, Stella C. Robertson and Ida C. Pettengill, are the only heirs at law of J. C. Munger, deceased, who at the time of his death on March 21, 1913, was nearly seventy-six years of age; that at the time of the death of J. C. Munger’s wife on December 12, 1912, he was in failing health, and afterwards failed so as to be almost, if not entirely, irresponsible during the months of January, February and March preceding his death; that he owned the property herein involved; that defendant Ida May Myers came to Harper about December, 1912, or January, 1913, and resided with her husband across the street from the Munger home; and that on February 17, 1913, defendant Mrs. Myers unduly influenced J. C. Munger to convey his property to her without paying the $950 mentioned in the deed or any consideration whatever. The court also found that on March 1, 1913, J. C. Munger had on deposit in the bank $714, and at the time of his death on March 21,1913, all of it had disappeared and was not accounted for save forty-three cents. The deed for the property from J. C. Munger to Ida May Myers was held to be null and void and a conveyance to plaintiffs was decreed and damages for withholding the possession of the property were adjudged.
On their appeal the defendants complain that the court erred in the admission of evidence and that the evidence does not support the findings and judgment.
One complaint is that Doctor Muir was allowed to testify as to the mental condition of Munger without sufficient knowledge of the man to qualify him to testify as an expert. The witness is a graduate of a medical school, had practiced medicine about thirty years and to some extent in the family of Munger. He had observed the condition and actions of Munger about the time in question and had given special attention to his mental state, and he stated that he discovered him to be in a very nervous condition, and, in his opinion, his mind had weakened and he was afflicted with a softening of the brain. The witness had the necessary skill and training and was sufficiently acquainted with Munger to be able to form an opinion as to his mental condition. Of course, the value of his opinion depended on the extent and intimacy of his acquaintance with Munger, his opportunity to observe and know the former as well as the present condition of his mind.
Several witnesses testified as nonexperts and-these had an acquaintance with Munger about the time of the conveyance and described his habits and peculiarities as well as some ab normal actions. Defendants’ objections to their testimony appear to relate to its weight instead of its competency. Nonprofessional witnesses who have a sufficient opportunity for observation may state the results of their observation and their opinion of the mental condition of another when accompanied by the facts upon which their- opinions are based or where an opportunity is given to test the basis of their opinions by a cross-examination. (Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293.) The testimony of these witnesses was admissible and tended to support the theory of the plaintiffs. Their means of observation, apparent ability to measure the mental capacity of the subject, and other recognized factors that may be resorted to in determining the force and weight of their testimony were all for the consideration of the trial court.
Objections were made to the admission of letters written by Munger to his son about the time of the execution of the deed. In one of the letters, among other things, Munger spoke of his infatuation for Mrs. Myers, described her as a half-breed Cherokee Indian and a beauty, and also spoke of her love for him. Another of the letters was written to the son the day the deed to Mrs. Myers was executed, in which Munger appears to chide his son for attempting to exercise a guardianship over him and insisting that he was able to attend to his own business, also saying that on that day he would place his money and property with persons who loved him better than did his only son. In a lengthy, rambling letter written to his son shortly after the execution of the deed Munger tells of many circumstances attending its execution and describes the wiles and influences that were used to induce him to make the deed, that it was obtained without consideration, of his tardy attempt to keep the deed from the record and how he was induced to give her other money which he had on hand. He derided himself and said, in closing, “Your loving dam Phool of a Pa.” The last letter was a brief one to the effect that he did not think there was any chance to get his money and property back as everything had been done secretly and there were three of them to swear against him. The testimony was received, not to prove that Munger was overreached or defrauded by Mrs. Myers in the transaction nor to show that she had not paid the consideration named in the deed, but was only admitted to show the mental condition of Munger from the time his wife died on December 12, 1912, until his death on March 21, 1913. The case was tried by the. court without a jury and hence we must assume that the testimony received no consideration except upon the single issue of the mental condition of Munger and that no prejudice resulted from the testimony.
There is a contention that the letters should be regarded as communications or transactions between the deceased and his son, who is a party to the litigation, and therefore fall within the prohibition of section 320 of the civil code. The letters were identified by the son to whom they were addressed without objection. The defendants made a general objection to the letters, and further that they were hearsay, but the objection now made, that they constituted prohibited communications or transactions between the deceased person and a party to the action, was not brought to the attention of the trial court. To make the admission of such testimony available as error a specific objection should have been made. However, if the objection as made were treated as sufficient the admission of the evidence for the purpose for which it was received would not afford ground of reversal. It has been determined that a party to an action, if otherwise qualified, may testify as to the mental capacity of the deceased person with whom he had the dealings that are involved in.the action. (Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92; Harper v. Harper, 83 Kan. 761, 113 Pac. 300.) The code restriction, it-will be observed, is not directed against the transactions or communications but is- a disqualification of certain witnesses to testify to certain things in certain cases. In one case a transcript of testimony given on a first trial when both parties to the transaction were living was received in evidence at a subsequent trial although one of the parties was then deceased, and it was held that no error was committed in admitting it. (New v. Smith, 94 Kan. 6, 145 Pac. 880.) In Garten v. Trobridge, 80 Kan. 720, 104 Pac. 1067, a letter of a deceased person was held to be admissible, and it was there declared that the disqualification of the code prohibition applied to witnesses and not to evidence. ■ In a later case a witness was permitted to testify to the steps taken towards registering a letter with money enclosed which was sent to a person that had since deceased, and that in due course he received a writing acknowledging the receipt of the money which was admitted in evidence, and it was ruled that the admission of the evidence did not violate the code restriction. (Bryan v. Palmer, 83 Kan. 298, 111 Pac. 443. See, also, Daniels, executor, v. Foster and others, 26 Wis. 686; Minnis v. Abrams, 105 Tenn. 662, 58 S. W. 645, 80 Am. St. Rep. 913.)
The letters in question, when identified, revealed their own testimony. The statements therein were not personally made to the witness, that is, they were not made face to face nor in the presence and hearing of the witness. No testimony concerning the statements in the letters was given by the witness, but the evidence was derived from another source and does not fall within either the letter or spirit of the code restriction which, as we have seen, is directed against the witness as a witness and not to the testimony as evidence. Testimony of the acts and sayings of Munger tending to show his mental condition, such as is shown by the letters, was competent evidence for the purpose for which it was received since it was obtained from legal sources and not from disqualified witnesses.
Some other objections were made to rulings upon the admission of evidence but we find nothing substantial in any of them.
It is finally contended that the evidence does not support the finding of the trial court. It is impractical to set out the testimony at length, but we conclude that it is sufficient to support the material findings of the court. It tended to show that Munger, who was about seventy-six years of age when the deed was made, was feeble in body and mind some time before the deed was executed and up until his death. It sustains the finding, too, that Mrs. Myers approached him with a proposition to buy his property, and presently took him into her home to care for him and soon had him apparently under her influence and control. While there is testimony to the effect that the consideration named in the deed was paid, other testimony warrants the inference that no consideration was ever received by Munger. There is a finding based upon evidence that Mrs. Myers, who claimed to have paid $950 for the property, offered it for sale within a few days after the deed was made for two-thirds of the specified consideration. There is testimony, too, to support the finding that she not only procured the property from Munger without the payment of anything of value, but that she also obtained about $700 in cash which he then had on hand. Although witnesses were produced who testified that Munger acknowledged the receipt of the price of his property, others testified that some time after the deed was made and the money was alleged to have been paid he was very much distressed and asked a neighbor to help him to obtain the price of his house from Mrs. Myers, adding that “That woman hypnotized me.” While the testimony is full of contradictions and that which supports some of the findings is meager, we conclude that it justifies the findings of Munger’s mental weakness and that Mrs. Myers took advantage of his weakness and fraudulently induced him to transfer his property to her without consideration.
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. Judgment was rendered against the plaintiff on a demurrer to her evidence. She appeals.
The action was commenced February 7, 1912. The note is dated June 21, 1911, and is signed by defendants, Charles and Anna Bron. It was given to defendant E. D. Kimball, and was indorsed by him as follows: “Pay to the order of Ruth Dillon. E. D. Kimball.” The petition alleges that defendant E. D. Kimball promised to see that the note was paid when it became due, and that the plaintiff relied upon this promise. The plaintiff’s evidence tends to show that before the purchase of the note by the plaintiff, defendant Kimball promised that he would look after the note, that he would indorse it and put his name upon it, and stated that the money would be in his hands. On the day the note was due the plaintiff talked to defendant Kimball over the telephone, and asked him if he remembered that the note was due on that day, and if he would look after it. Kimball said hé would. The plaintiff called him a number of times over the telephone after that and asked him if the note had been taken care of, to which inquiries he replied that it had not. The note was not presented to the maker for payment. Other than as above set forth, no notice was given to defendant Kimball that the note had not been paid. The court excluded certain evidence offered by the plaintiff. It does not appear that this evidence was produced at the hearing of the motion for a new trial.
Was the demurrer to the evidence properly sustained? This depends upon whether or not defendant Kimball, under the promises made by him to the plaintiff, was excused from paying the note by the failure of the plaintiff to present the same to the- maker when it became due, and to notify defendant Kimball of its nonpayment.
Section 5319 of the General Statutes of 1909 reads:
“Every indorser who indorses without qualification . . . engages that on due presentment it shall be accepted or paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any- subsequent indorser who may be compelled to pay it.”
Section 5342 is as follows:
“Except as herein otherwise provided, when a negotiable- instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is riot given is discharged.”
Section 5362 reads:
“Notice of dishonor may be waived, either before the time of giving-notice has arrived or after the omission to give due notice, and the waiver may be express or implied.”
What was the effect of the statements made by defendant Kimball, the indorser of this note, to the plaintiff, at the time of the negotiation, and on the day the note became due? At the time the note was negotiated he promised to look after it and stated that the money would be in his hands. On the day the note became due he told the plaintiff that he would look after it. This was, in effect, waiver of presentment and of notice of dishonor of the note. This case is closely analogous to Markland v. McDaniel, 51 Kan. 350, 32 Pac. 1114, where this court said:
“tyhere indorsers of a negotiable promissory note tell the holder before maturity not to 'do anything with the note, and that they will pay it, it is unnecessary, in order to charge them as such indorsers, that formal demand of payment be made on the maker, and notice given to the indorsers of his failure to pay, but demand and notice will be deemed waived.” (Syl. ¶ 1.)
Again, in Glaze v. Ferguson, 48 Kan. 157, 29 Pac. 396, this court said:
“That the presentment of a note, as well as protest and notice, can be dispensed with by agreement or waiver, is a familiar doctrine of the text-books. The waiver may be either verbally or by writing; it may be expressed in strict terms or inferred from the words or acts of the party. It may result from any understanding between the parties which is of such a character as to satisfy the mind that a waiver is intended.” (p. 159.)
It follows that the demurrer to the evidence should have been overruled. The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff was injured while crossing the defendant’s railway track. To recover damages for the injury she brought this action. Trial was had, resulting in a verdict in her favor, on November 1, 1913. The court reserved entry of judgment. The plaintiff died December 1, 1913. March 21, 1914, on the motion of Patrick H. Coney, administrator of the estate of the plaintiff, Gertrude Nicholas, judgment on the verdict was rendered, nunc pro tunc, as of November 1, 1913. The action was then revived.
The cities of Topeka and Oakland adjoin each other. The defendant operates a street railway in each of these cities and between them. Sardou avenue, running east and west, is on the line between Topeka and Oakland. At this point Oakland is north of Topeka. The defendant’s track between Topeka and Oakland is in the center of Green street, running north and south. At the time of the accident there was a crossing over the track at the center of Sardou avenue, level with the top of the rails. On the south or Topeka side of Sardou avenue there was a walk across Green street. . At the track the top of this crossing was level with the top of the rails. On the north or Oakland side of Sardou avenue the city of Oakland had built a cement walk across Green street. This was built practically level with the top of the rails. Objection was made to this crosswalk by some adjacent property owner because it caused the water to flood his property. The city of Oakland then lowered the crosswalk so that the top of the walk was about nine inches below the top of the rails. There was no light at, this crossing. On November Í9, 1911, on a dark and rainy night, the plaintiff, while attempting to Walk across the railway track on the north side of Sardou avenue, using the crosswalk built by the city of Oakland, caught her foot on the projecting rail, fell and injured herself. For this injury she brought this action.
Before the city of' Oakland was incorporated, the railway was operated at the place of the accident under an order of the board of county commissioners of Shawnee county, which provided that:
“The track or tracks of said railway shall be laid as near the center of highway as is practicable and shall conform to the general surface thereof and shall be so constructed and at all times maintained and operated as to cause as little inconvenience to the traveling public as is. practicable, consistent with the nature of the improvement; the ties shall be imbedded in the earth, so that they shall not furnish unnecessary obstruction to the passage of vehicles, and at all streets and road crossings suitable crossings shall be provided by said railway company so that vehicles may pass over said tracks with ease and safety.”
In 1903 Oakland was incorporated, and since 1905 the defendant has operated its railway under an ordinance passed by that city, which provides:
“That the grades of the tracks as now laid and operated shall be maintained, except as hereinafter provided; and the tracks of any extensions to the present system of railway shall be laid and built to conform to the general surface of the streets, avenues and alleys built upon, and said company shall construct and maintain suitable and proper culverts whenever and wherever required by the city; said culverts to be constructed and maintained under the supervision of and in accordance with the direction of the city engineer of said city; provided, that whenever the grade of any street over which the right of way hereby granted, shall be established by the city of Oakland for the purpose of paving said street, then, in such case, the company shall place its tracks to such established grade and pave as hereinafter provided; and provided further, that having once built its track or tracks to the grade established by the city for the purpose of paving, any further expense due to the raising or lowering of such established grade shall be borne and paid for by said city.”
On the trial there was no question about the track being maintained as required by ordinance. There has been no change in the grade of the street or railway track since the passage of the ordinance, nor since the order made by the county commissioners.
The defendant’s appeal presents a number of questions. One of these is that the defendant had no duty to perform with reference to the construction or maintenance of the crossing over its track at the place where the accident occurred, and therefore is not liable for the injuries sustained by the plaintiff. The defendant contends that if there was any negligence, it was the negligence of the city of Oakland, and that the city alone is liable to the plaintiff.
Neither the order of the county commissioners nor the ordinance passed by the city cast any burden on the defendant to build or repair walks across its tracks, nor does the ordinance make it the duty of the defendant to repair or make safe the walks built by the city.
Who produced the condition that caused the injury? The defendant built and maintained the railroad track. The city built and maintained the walk below the top of the rails. The city, when it built the walk nine inches below the top of the rails, made a dangerous place, and produced the condition that caused the injury for which this action was brought. The defendant maintained its track at the grade required by the ordinance of the city. The defendant had nothing to do with building the crosswalk and had no control over where or how it should be built, and did not have any right or power to interfere with the city in building it. The only way the defendant could remedy the condition made by the city would have been to raise the walk, which it had no power or right to do, or to depress its track at the crossing in violation of the ordinance requiring that the track be kept on the grade existing before the walk was built. Depressing the track might have produced a worse condition than the one existing. The danger then would have been to others than pedestrians crossing its tracks. The facts concerning the location and condition of the walk and railway tracks are undisputed. There was nothing for the jury to determine so far as those facts were concerned. Whether or not the defendant was negligent in maintaining the place in its then condition was a question of law for the court to determine and not a question of fact for the jury to decide. We are compelled to conclude that the defendant as a matter of law was not guilty of any negligence toward the plaintiff and is not liable for the injuries sustained by her. In 52 L. R. A. 448, and in 15 L. R. A., n. s., 840, are exhaustive notes on “Liability of street railroad company for defect in track or street.” In each of the notes is the subhead “Defects in street not caused by company.” A logical deduction from the cases there collated is that where the defect in the street is caused by the city as an active agency, and over which the railway company has no control and with which it has no right to interfere, the company is not liable for injuries caused by that defect.
A number of other questions are presented, but a discussion of them will not serve any good purpose.
The judgment of the district court is reversed and judgment is entered for the defendant. | [
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The opinion of the court was delivered by
Mason, J.:
The principal question involved is whether the trial court erred in allowing the plaintiff a lien against a railroad for the value of ties furnished by the plaintiff for its construction.
The S. H. Chatten Lumber Company sold the ties, which were used in building a railroad from Scott City to Winona. The total charge was about $43,000, on which it received payments of about $36,000. The road was built by the Kansas Construction & Irrigation Company, under contract with the Scott City Northern Railroad Company, the owner of the road. The railroad company, as part payment to the construction company, issued to it first mortgage bonds to the amount of $825,000, the mortgage covering all the property of the company, including that subsequently acquired and the road when built. These bonds were used by the construction company as security for a loan of $600,000, for use in building the road. The Commonwealth Trust Company, of St. Louis, furnished a part of this amount directly. The remainder was loaned by a bank through its procurement. It later became owner of the entire debt. The construction of the railroad was begun in January and completed in July, 1911. In January, 1913, an action was begun for the foreclosure of the mortgage, and upon the judgment thereon (rendered May 31) the prop-\ erty of the railroad company was, on August 6 of that year, sold to the Colorado, Kansas & Oklahoma Railroad Company, which is now operating it. The present action was begun July 23, 1913. The plaintiff — the lumber company— was given a personal judgment against the construction company and its receiver and the Scott City Northern Railroad Company and its receivers appointed in the foreclosure action, for $10,651.53, and was awarded a first lien against the railroad property for $6690. The appeal is taken by the Scott City Northern Railroad Company and its receivers, the Commonwealth Trust Company, and the Colorado, Kansas & Oklahoma Railroad Company.
The contract for the ties was made between the lumber company and the Garden City, Gulf & Northern Railroad Company. That railroad company, promoted by B. M. McCue and E. A. Tennis, had constructed and was operating a road from Garden City to Scott City, and the purpose at the time was to extend this road to the north, the ties being designed for use in that connection. Afterwards it was determined by the same promoters to organize a new corporation to build the road between Scott City and Winona, and the Scott City Northern Railroad Company was the result. McCue and Tennis guaranteed the payment of the accounts to be incurred in filling the contract. • The lumber company charged the ties on its books to the Garden City & Northern Railroad Company, and McCue and Tennis, president and vice president. They were shipped to that company and the construction company. Payments were made from time to time by the construction company out of the funds provided by the trust company, sometimes by drafts upon that company. On September 12, 1911, McCue and Tennis, as president and vice president, exe-' cuted in the name of the Scott City Northern Railroad Company a note for the unpaid balance, amounting to $8662.97.
The statute authorizes railway corporations to mortgage their property and franchises. (Gen. Stat. 1909, § 6997.) This confers authority to mortgage after-acquired property. (33 Cyc. 487, 499; 23 A. & E. Encycl. of L. 799.) Statutes giving liens for labor and material furnished in the construction of railroads are quite common. (33 Cyc. 465; 23 A. & E. Encycl. of L. 813.) Kansas formerly had such a statute. (Laws 1865, ch. 45, § 1, p. 106.) But the revision of 1868 resulted in its repeal. (Burgess v. Railroad Company, 18 Kan. 53.) Without such statute no lien arises from the mere fact that material sold for the purpose is used in the construction of the road. (Burgess v. Railroad Company, supra.) The lumber company in its petition alleged that the ties were sold under a contract that it was to have a lien upon the railroad; but if any evidence was given in support of this allegation it is rendered unimportant by findings of the jury to the effect that no such contract was made, and that the ties were sold solely on the general credit of the Garden City, Gulf & Northern Railroad Company, McCue and Tennis, without any purpose of claiming a lien. No judgment lien resulted in this case, because the property, as already stated, had changed hands, and no longer belonged to the Scott City Northern Railroad Company.
The rule “giving priority to the last creditor for aiding to conserve the thing . . . has never been introduced into our laws except in maritime cases, which stand on a particular reason.” (Galveston Railroad v. Cowdrey, 78 U. S. 459, 482.) Unpaid claims for right of way are made a charge against the road, but in the case of condemnation proceedings this is because the title only passes subject to payment (Trust Co. v. Railroad Co., 93 Kan. 340, 144 Pac. 210), and in the case of purchase because of a vendor’s lien (34 Cyc. 60), which ordinarily is not recognized in this state (Simpson v. Mundee and Broiun, 3 Kan. 172). The power of a court to postpone prior mortgage creditors of an insolvent corporation, in the hands of a receiver, to those by whose contributions it has been maintained as a going concern, is limited to making such preferred claims a charge against the earnings, or against the corporate property where the earnings have been wrongfully applied elsewhere. (33 Cyc. 529, 531; Porter v. Pittsburg Bessemer Steel Co., 120 U. S. 649, 671.) That situation was not pleaded or proved here. Moreover the plaintiff made no effort to have provision made for its account in the proceeding in which the receivers were appointed. It first suggested that it was entitled to an equitable lien in a letter to the trust company written in April, 1913.
A lien for the cost of bridges built for the same railroad has heretofore been sustained. (Bridge Co. v. Railroad Co., 91 Kan. 887, 139 Pac. 357.) That decision was based upon the particular facts there presented, which in many respects are quite different from those of the present case. The bridges were built under contract with the railroad company, and the trust company was held to be interested in the enterprise jointly or in common with the railroad company, the construction company and the promoters, and to have undertaken the responsibility of seeing that the proceeds of the mortgage reached the materialmen. These issues were presented by the pleadings and-evidence in this case. It was shown, however, that before the ties were shipped the trust company, in response to an inquiry, had written to the lumber company that it believed the funds supplied to the construction company were sufficient to construct the road, and that no unusual business risk would be assumed in furnishing the ties, but that it did not know whether the construction company intended to use all of the money for that purpose, and that it (the trust company) had made no arrangements to pay invoices for material, and that matters of this character would have to be arranged directly with the construction company; and the jury specifically found that the trust company had no connection with or interest in the enterprise of building the road outside of agreeing for a stated consideration to loan or secure a loan or loans of money to be used by the construction company in building it. Under the findings the trust company furnished money, for which it took security, and the lumber company furnished material, for which it took none.- The part of the judgment giving the plaintiff a preferential lien must be set aside.
Errors assigned with regard to the personal judgment are not thought to require discussion. The note executed by McCue and Tennis is binding on the Scott City Northern Railroad Company. The judgment against the receivers of that company is not to be given effect further than as a charge to the same extent as other unsecured judgments upon any funds that might by any possibility be in their hands available for its payment.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff recovered a judgment against the street railway company for injuries received while a passenger.- The defendant appeals.
. The- accident to the plaintiff occurred at Thirteenth street and Troup avenue, Kansas City. Defendant operates a double track on Thirteenth street, running north and south. The north-bound cars used the east track, and the south-bound the west track. Plaintiff, who. at the time of the accident was sixty-five years of age, with good hearing and eyesight, was a passenger .upon a north-bound car about ten o’clock at night. When the car was one block south of Troup avenue he went to the front vestibule, where he stood at the left of the motorman until the car approached the stopping place at the south line of Troup avenue. He stood facing the north, and had an unobstructed view through the windows of the vestibule. As the car stopped plaintiff got down from the steps on the west side of the. vestibule, and had taken about two steps toward the west track when he was struck by a. car passing from the north, and was seriously injured. His testimony is that when he was in the aisle of the car moving to the front he looked forward but did not see the approaching car; that he was familiar with the position of -the tracks and the operation of the cars, and knew there was danger in getting off -at that side; that he does not know how close the south-bound car was when he stepped down to the ground. He said that he looked for anything that might endanger him, but that he did not look for any car; that the motorman of the car he was leaving said: “Look out for the car,” but that the passing car was right upon him at the time this was said. Some of the passengers who got off at the same place left the car at- the .rear and at the east steps. The evidence -shows, however, that the defendant discharged passengers at the front vestibule, and that the printed transfers issued by defendant directed passengers to leave cars by the front door. It is also shown that the rules of the company' required a motorman of a car passing other cars about to stop for the discharge of passengers, to slow down, sound the gong, and bring his car under control, and that before passing a car already stopped for the discharge of passengers he must sound the gong and bring his car to a stop.
It was the contention of the defendant at the trial that plaintiff was guilty of contributory negligence in failing to look and see the approaching car while he was on the front vestibule and before he stepped down and toward the south-bound track. It was undisputed that both cars were lighted and that the approaching car could have been seen by plaintiff had he looked before he stepped off. The motorman of the northbound car testified that the fenders of the two cars were about together when the plaintiff got off. The motorman of the south-bound car testified that he thought the north-bound car had not stopped when he passed it and that it would not stop before his car had passed. A special finding of the jury, however, is that the car upon which the plaintiff was riding had stopped when the south-bound car passed it. The findings also are that plaintiff knew that south-bound cars were being operated on the other track and that from his position on the front platform or steps of the north-bound car he could have seen the south-bound car approaching before he attempted to alight, had he looked for it. To the question inquiring what distance north he could have seen the approaching car had he looked, they answer: “We do not know.” It was shown that the tracks are straight for a distance of two blocks north of Troup avenue, that from the north line of Troup the grade descends 4.8 per cent for the first fifty feet, and then drops to 7 per cent for 500 feet. Tróup avenue is 50 feet wide and practically level. The jury found that the south-bound car had a headlight and inside lights. There was a conflict in the evidence with reference to the speed of the south-bound car. One witness for plaintiff estimated it at from ten to fifteen miles per hour; another witness said it was running about twelve miles an hour when he first saw it. Other witnesses said it was going fast. The car had just come up a steep grade extending for two blocks. The motorman, a witness for defendant, said he thought the speed was from five to six miles an hour. Defendant insists that the weight of the evidence shows that the north-bound car had not come to a stop when plaintiff got off and at the time the south-bound car passed, but concedes it is bound by the finding to the contrary.
As to the claim of contributory negligence, the jury have found in favor of the plaintiff, and we can not say that his failure to look for a car from the north while he was on the steps was, in the circumstances of the case, contributory negligence. The company invited the use of this door for the discharge of passengers. It used the space between the tracks as a suitable place for passengers to alight. The situation is in some respects analogous to that presented in the recent case of Saunders v. Railway Co., 95 Kan. 537, 148 Pac. 657. There, a passenger just after purchasing his ticket heard his train announced. In order to reach it he had to cross a track, which he did hurriedly, without looking, and was killed by a train pulling into the station. If he had stopped and looked he would have seen the train in time to avoid it. It was held that in those circumstances he was not as a matter of law guilty of contributory negligence. An instruction was approved which charged that it was not negligence in and of itself for him, not to look and listen for approaching trains on the intervening track when crossing to get from the station to his train, but that it was incumbent upon him to use such care and attention in crossing the intervening track as would be expected of persons of ordinary and reasonable prudence under similar circumstances, and that he had the right to assume that the railway company would so regulate its trains that intervening tracks would be free from danger when one train stopped at the station to receive passengers. The fact that other pasengers left the car by the rear and on the side away from the parallel track, and that plaintiff in the present case might have chosen a safer way, does not affect the matter, since the company by its custom, rules and notices invited and directed passengers to leave cars by the front exit.
A more serious question is raised by the contention that there is no evidence to warrant the allowance of exemplary damages, and that it was error for the court to submit that question to the jury. At the first trial the jury disagreed. On a second trial the jury awarded plaintiff $1200 actual and $1000 exemplary damages. The extent of the plaintiff’s injuries would have warranted a judgment for actual damages exceeding even the aggregate sum awarded him. His foot was crushed, necessitating amputation of the leg above the knee. The petition does not allege as grounds of negligence the fact that defendant invited or directed passengers to get off at the front end of the car, or that it was negligent in using the space between the tracks as a'place for passengers to alight. Of course he can not recover upon acts of negligence not alleged. They were shown, presumably, for the purpose of disproving contributory negligence, and were proper facts for the jury to consider in determining that question. It is alleged that the car was run at a dangerously high rate of speed just before it struck plaintiff, “to wit, at the rate of 25 miles per hour.” The highest speed any witness for plaintiff testified to was 10 or 15 miles; the next highest estimate was 12 miles. Other witnesses for plaintiff who were on the south-bound car said it came up the 7 per cent grade, which extends for about two blocks, as fast as cars usually climb such grades with the power “all turned on.” After reaching the top of the hill the car had traveled about the width of Troup avenue, which is 50 feet. The proof failed to show such a reckless or wanton rate of speed as would ordinarily and of itself justify the allowance of punitive damages, but in the circumstances disclosed by the evidence we think the verdict and judgment should not be disturbed.. To run a car at such a speed past another car which had stopped to discharge passengers and without sounding a gong or giving any signal to warn such passengers of the danger was wanton and reckless negligence. It violated a positive rule of the company; it placed the lives and limbs of the passengers alighting from the other car in great danger, and as is well known, the practice often occasions serious accidents. Cities are adopting ordinances making it unlawful for autos to pass street cars which have stopped to discharge passengers because of the frequency with which similar accidents result.
It is true,, there was a conflict in the evidence as to whether the gong was sounded, but the jury resolved that in favor of the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff, who was the owner of a patent right covering the manufacture and sale of a bed spring, sold the defendant an interest in the patent. The contract was in writing and contained a provision that the defendant was to employ the plaintiff to superintend the construction of certain machinery for the manufacture of the bed springs and was to pay the plaintiff $25 per week for his labor and services. Alleging that defendant had refused to pay for the services rendered in accordance with the contract, plaintiff brought the action. The petition contained two counts, the first, upon the written contract; the second, upon quantum meruit. The answer alleged that the contract sued upon was void because the plaintiff had failed to comply with the provisions of sections 5515-5517 of the General Statutes of 1909, which declare the sale of any interest in a patent right void unless the owner has filed with the clerk of the district court duly authenticated copies of the letters patent. The answer alleged that the plaintiff had not complied with any of the provisions of the statute. The evidence disclosed no dispute as to the facts. A demurrer to the evidence was sustained as to the first count, but overruled as to the second. The plaintiff recovered judgment, from which defendant appeals.
In his petition the plaintiff, realizing the weakness of his case, sought to avoid disaster to the second count by alleging that the written contract is divisible; and he stands now upon the contention that the agreement to employ him to construct machinery for manufacturing the bed springs under the patent is no part of the contract for the sale of an interest in the patent right. His contention is not sound. The contract is entire. (Gerlach v. Skinner, 34 Kan. 86, 89, 8 Pac. 257; Sedgwick County v. The State, 66 Kan. 634, 72 Pac. 284.) His contract for employment was in writing, and he is obliged to rely upon it in order to recover. He can get nowhere except by aid of the illegal contract. (Surety Co. v. Brick Co., 73 Kan. 196, 209, 84 Pac. 1034.) It is just as clear that his agreement to perform the services and defendant’s agreement to employ him constitute part of the consideration for the sale and purchase of the interest in the patent as it is that defendant’s agreement to pay him a royalty on the bed springs is part of the consideration.
The statute (Gen. Stat. 1909, § 5517) makes it unlawful for the owner of a patent to enter into a contract for the sale of any interest therein unless he has first complied with the provisions of the statute, and the owner is liable to fine and imprisonment for any violation of the statute. In Pinney v. Bank, 68 Kan. 223, 75 Pac. 119, a similar contract made in violation of the statute was declared void. (See, also, Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327; Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796.)
The contract under which plaintiff was employed and the services performed being part of the illegal contract, the law will not permit him to avoid the effect of the statute and recover upon a quantum mendt. (Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230; Moreland v. Devenney, 72 Kan. 471, 473-475, 83 Pac. 1097.)
In the Devenney case, the opinion quotes with approval (p. 475) the following excerpt from Willemin v. Bateson, 63 Mich. 309, 29 N. W. 734:
. “But it is a remarkable claim that, where work is done under such a contract, the contract may be treated as null, and the services regarded as rendered properly. No one can use a void contract as a means of getting better terms than he could have claimed under it. The whole transaction is covered by the same taint, and must be treated as beyond the protection of courts of justice.” (p. 311.)
The judgment is reversed and the cause remanded with directions to sustain the demurrer and render judgment for defendant. | [
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The opinion of the court was delivered by
West, J.:
This case is before us on the motion of the plaintiff to dismiss the appeal because it involves no doubtful question of law. But one vital question is presented — that of dependency — and as the matter has been fully briefed and argued on the motion it amounts to a final submission of the case on the merits and will be so considered, as the parties have so treated it.
The plaintiff recovered as being partly dependent on her son, Arthur Lake, who was killed while working in the' defendant’s glass plant. He was eighteen years old, illegitimate, and had been earning eleven dollars a week. The third finding of fact was in substance that when Arthur was about four years old his mother married her present husband and has lived with him ever since; that until about two years prior to his death the boy had made his home with his grandmother, but about that time he began making his home with his mother; that the household consisted of the plaintiff, her husband, and this son; that at the time of his death she and her husband were living in a, five-room house, paying ten dollars a month rental; that since the death she has received her support and maintenance from her husband, who has continued to pay therefor, furnishing the same house as before, “and that previous to the date of the death of the said Arthur Lake, the plaintiff was supported by her said husband, L. N. Smith, who at the-time of the trial and for years prior thereto was receiving the sum of sixteen and c,0Aoo ($16.50) dollars per week as his wages; and was a well, able-bodied man. That after the said Arthur Lake made his home with the plaintiff and her said husband, he turned over his wages each week to plaintiff, and also the husband turned over his wages each week to the plaintiff. That plaintiff was an invalid and had required surgical operations, the expenses of which were paid in part by the deceased, and the money of deceased left with the plaintiff each week was always available by plaintiff for medicines and surgical services, and all of these extra expenses could be met only by using a portion of deceased’s earnings. That deceased paid no board or room rent and paid nothing for his laundry bill, but would obtain money for his expenditures from the plaintiff in this case. That at the time of Lqke’s death, the deceased was engaged to be married to a girl at Coffeyville, such marriage to occur the following October, 1914.’’' The judgment was based on the conclusion that the plaintiff was in part dependent upon the earnings of the deceased to the extent of one-half his earnings.
The language of the statute is:
“ ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. And ‘members of a family’ for the purposes of this act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents, or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children include step-children, and grandchildren include step-grandchildren, and brothers and sisters include step-brothers and step-sisters, and children and parents include that relation by legal adoption.” (Laws 1911, ch. 218, § 9, subdiv. j.)
Section 11, after providing the amount of compensation in case the workman leaves any dependents wholly dependent upon his earnings, further provides:
“If the workman does not leave any such dependents, but leaves any dependents in part dependent upon his earnings, such proportion of the amount payable under the foregoing provisions of this section, as may be agreed upon or determined to be proportionate to the injury to the said dependents; . . .”
The defendant argues that there was no legal obligation upon the deceased to contribute to the support of his mother and that his turning over to her his earnings is not controlling, but that the real question is, Was she dependent either wholly or partially upon such contributions for her support and maintenance ? and calls attention to the construction of “dependent” in Modern Woodmen v. Comeaux, 79 Kan. 493, 101 Pac. 1, approved in Johnson v. United Workmen, 91 Kan. 314, 317, 137 Pac. 1190; that the use of the word “injury” in the language quoted from section 11 indicates that there must be an actual pecuniary loss, and that the finding that since the death of the son the plaintiff has received her support and maintenance from her husband and that prior thereto she was supported by her husband makes it still more plain that she was not dependent upon the son and suffered no pecuniary injury by his death. In the Comeaux case “dependent” was held to involve a relation similar to that which usually exists between parent and child, husband and wife, or generally in the family relation. Numerous authorities.are cited in support of these contentions and they have all been examined. If the findings were simply to the effect that the boy turned over his wages to his mother to keep until he could use them to establish a family of his own, no question of dependency could arise. But it appears from finding No. 3 that the mother in this case was an invalid who had required surgical operations, “the expenses of which were paid in part by the deceased, and the money of deceased left with the plaintiff each week was always available by plaintiff for medicines and surgical services, and all of these extra expenses could be met only by using a portion of deceased’s earnings.” We have, then, a condition of health requiring more than ordinary expense for medical and surgical attention, which required attention could be paid for only by using a portion of the boy’s earnings. It amounts to this: By using some of the boy’s wages the mother could be provided with necessary medical attention, otherwise she could not be thus provided and must suffer for want thereof, unless we assume, without basis, that such attention could be had without remuneration. To this extent, therefore, it seems quite clear that there was a condition of dependence. What sum should have been allowed on this account is not before us for consideration or determination.
The numerous cases cited present no parallel situation. However, the decision in McLean v. Moss Bay Iron and Steel Company, Limited, [1909] 2 K. B. Div. Law Rep. 521, in which it was held that a married woman with an illegitimate son living with her husband, not the putative father, was not dependent on the son although he turned over to her his wages, which were by her put into a common fund out of which the whole family was maintained, was overruled by the House of Lords in Hodgson v. West Stanley Colliery, [1910] App. Cas., Law Rep. 229. In the latter it was held that a mother and her surviving children were dependent on the father and two sons whose earnings formed a common fund, out of -which the whole family was maintained, and that she was entitled to recover in respect to the death of each.
The defendant closes its brief with these words:
“Under all the circumstances, we think that there is a question to he presented here which calls upon the court to construe this statute, and the motion to dismiss the appeal should be overruled.”
In view of the full presentation of the two opposing views of the statute and the conclusion reached thereon, it seems out of place merely to dismiss the appeal, for the question at issue is one deserving the careful consideration which it has received. And as nothing could be gained by further delay and nothing-else remains to be presented, the judgment of the trial court should be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
In January, 1912, the attorney-general commenced an action in the district court of Montgomery county, entitled The State of Kansas v. The Independence Gas Company, The Consolidated Gas, Oil & Manufacturing Company, and the Kansas Natural Gas Company. The petition charged that the defendants were violating the antitrust laws of the state, and prayed for an ouster of the defendants and the appointment of a receiver for their properties. The cause was tried October 1,1912, and judgment rendered February 15, 1913. R. S. Litchfield and John M. Landon were appointed receivers for the Kansas Natural Gas Company. The gas companies engaged in distributing natural gas furnished by the Kansas Natural Gas Company to the consumers were then made parties defendant to the action, were served with a copy of the judgment, and each was restrained from appearing in any other court for the determination of any matter in connection with its contract with the Kansas Natural Gas Company. These receivers were also appointed receivers for the Kansas Natural Gas Company in Missouri and Oklahoma. At the time this judgment was rendered, all the property and assets of the Kansas Natural Gas Company were in the possession of receivers appointed by the United States district court for the district of Kansas, in a suit brought by a bondholder of the company after the action in the state court had been tried. The district court of Montgomery county, upon the rendition of' its judgment, directed its receivers to apply to the federal court and ask that court to direct the federal .receivers to turn over the property in their hands to the receivers appointed by the state court. Litigation followed, which terminated in all the property of the Kansas Natural Gas Company being turned over to the receivers appointed by the state court. All the property of the Kansas Natural Gas Company is now in the possession and control of these receivers.
In December, 1914, the creditors and stockholders of the Kansas Natural Gas Company entered into a stipulation and agreement fixing the amounts that were due the bondholders, lienholders and stockholders of the Kansas Natural Gas Company and the companies subsidiary thereto. This agreement provided that the receivers might, as expeditiously as possible and whenever deemed advisable by the court, make application to the public utilities commission for compensatory rates for gas. On April 9, 1915, under the direction of the court, the receivers filed with the public utilities commisson an application for compensatory rates for gas. After hearing the application, the commission, on July 16, 1915, made find ings and rendered an opinion, stating that in all markets where the net price of gas to consumers is 25 cents per thousand cubic feet the rates should be increased to 28 cents net, but because more than half the gas supplied and marketed .by the receivers of the Kansas Natural Gas Company is sold in the state of Missouri it would be manifestly unfair to permit the receivers to advance the price of gas to their Kansas patrons unless a corresponding increase is made to consumers in Missouri; and further stating that the commission awaits the pleasure of the rate-regulating body or bodies of Missouri having jurisdiction of the subject matter, and if in that state proper and necessary orders be issued establishing similar rates in Missouri, an order, effective simultaneously if possible, will be issued by the commission, fixing the rates as above indicated. ;
On July 26, 1915, on the application of the receivers, the district court entered an order making the public utilities commission a party defendant in the action in which the receivers were appointed. The receivers then presented a petition to that court, asking that the commission be enjoined from enforcing any and all orders made by the public utilities commission; and that the court, upon the final hearing of the petition, fix and determine a fair, lawful, reasonable and compensatory rate to be paid for natural gas supplied by the receivers in the state of Kansas. Summons and a temporary restraining order were issued and served on the commission in Shawnee county. On August 7, 1915, the public utilities commission appeared specially and presented a motion to the court to quash the summons and service thereof, challenging the jurisdiction of the court on the grounds that neither of the commissioners was served with summons in Montgomery county, and that their official residence was in Topeka, Shawnee county. This motion was denied August 12, 1915. On August 17, 1915, H. O. Caster, attorney for the public utilities commission, filed in this court an application for an alternative writ of mandamus against Thomas J. Flannelly, judge of the district court of Montgomery county, and John M. Landon and R. S. Litchfield, receivers of the Kansas Natural Gas Company, praying that Thomas J. Flannelly, judge of theJ district court, be commanded to vacate and set aside the order' making the public utilities commission a party defendant in the action in that court, to set aside the temporary restraining order in that action, and to dismiss the suit against the public utilities commission; and praying that John M. Landon and R. S. Litchfield, receivers of the Kansas Natural Gas Company, be compelled to perform their legal and public duties or show cause to this court why they should not do so. To this petition R. S. Litchfield and John M. Landon filed their answer September 22, 1915, in which they allege that the business in which they are engaged — that of producing, transporting and selling natural gas — is interstate commerce, and is therefore not under the control of the public utilities commission; that the price at which gas has been sold in Kansas and Missouri is unreasonable, inadequate, unremunerative, non-compensatory and confiscatory; that unless a reasonable, proper advance is made in the price of gas it will be impossible to continue the operation of business; and that the rates and regulations prescribed in the opinion of the commission rendered July 16 are unreasonable, unremunerative, noncompensatory and confiscatory, unlawful and void, and will deprive the receivers of the property in their possession and under their control' without due process of law, in violation of the fourteenth amendment of the constitution of the United States.
On August 24, 1915, the public utilities commission filed in the district court of Montgomery county its demurrer to the petition of the receivers, not waiving any rights under the motion to quash, and, continuing to challenge the jurisdiction of the court, demurred on the grounds that the court had no jurisdiction over the persons of the defendants, or either of them, and had no jurisdiction over the defendant, the public utilities commission, or the subject matter of the action. This demurrer was overruled August 25, 1915. • The public utilities commission then announced in open court that it elected to, and did, stand upon its demurrer. The commission did not plead further. On the same day notice of appeal from the decision of the court in overruling the demurrer of the public utilities commission was filed. The appeal was filed in this court September 9, 1915. After the demurrer was overruled, the receivers introduced evidence in support of their petition, and on August 27 the court found that the receivers are engaged in interstate commerce; that the findings of the commission and its orders, or threatened orders, are a cloud upon the title to the properties and assets of the Kansas Natural Gas Company in the hands of receivers of the court; that they are unreasonable, unremunerative and confiscatory in effect; and specially found that the commission’s findings and threatened orders with reference to the allowance of waste in the distributing systems are unlawful, unreasonable and confiscatory; are an interference with the administration of the property by the court, a taking of the estate in the hands of the court without due process of law, a dissipating and wasting of the assets of the estate in the hands of receivers, and an interference with interstate commerce in which its receivers are engaged; and then permanently enjoined the public utilities commission, its members, officers and attorneys, from putting into force or effect the opinion, order, and findings thereof. The court further found that it will be advisable, beginning with October 1, 1915, to establish a rate of 30 cents, to be changed or modified as experience shall hereafter require, and ordered the receivers to establish, charge and collect a rate of 30 cents per thousand cubic feet of natural gas to consumers thereof, except in Montgomery county; the rate to continue until the further order of the court. September 22, 1915, a supplemental petition to the petition for a writ of mandamus was filed. In this the proceedings of the district court subsequent to denying the motion to quash the summons against the public utilities commission were set out. Upon the hearing in this court it was agreed in open court that all the evidence introduced on the hearing before the public utilities commission might be considered as introduced in this court in the mandamus proceeding.
The gas sold by the receivers is produced in both Kansas and Oklahoma. It is transported from the wells through pipe lines beginning in Oklahoma, entering the state of Kansas near Coffeyville, at which place gas is first distributed and sold to consumers. The remainder is transported north through pipe lines into which gas from wells in Kansas is conveyed, and the gas from Oklahoma and Kansas is then transported through the same pipe lines and through pom- pressing stations to Independence and north and east throughout this state, and after supplying the consumers in- this state it is transported into the state of Missouri, where it is sold to other consumers. After the gas from this state is discharged into the pipe lines with the gas from Oklahoma, it is impossible to distinguish one from the other or to separate one from the other. About 85 per cent of the gas sold is produced in Oklahoma, and 15 per cent is produced in Kansas. About 60 per cent of the gas sold is sold in Missouri, and 40 per cent is sold in Kansas. The gas sold in Kansas is delivered to the consumers thereof in the several cities by-distributing companies operating under franchises obtained by the distributing companies from the cities, fixing the rates to be charged customers for gas. These distributing companies act as the agents of the Kansas Natural Gas Company in the distribution and sale of gas. The price received for gas is divided between the distributing companies and the receivers on a percentage basis. The gas is not sold by the receivers to the distributing companies. It is delivered from the pipe lines of the Kansas Natural Gas Company, under the control of the receivers, into the pipe lines of the distributing companies, and is through these pipe lines conveyed from the pipe lines of the Kansas Natural Gas Company to the consumers. The gas is consumed as fast as it is sold, and is consumed .immediately after passing through the meter measuring the gas to the consumers.
1. The first question presented is, Did the district court of Montgomery county obtain jurisdiction of the public utilities commission by the proceedings had against the commission in that court? The receivers cite White v. Ewing, 159 U. S. 36, 40 L. Ed. 67; Peck v. Elliott, 24 C. C. A. 425, 79 Fed. 10, 38 L. R. A. 616; Savings Bank v. Simpson, 22 Kan. 414, and a number of other authorities.
In 40 L. Ed. 67, we find this headnote to White v. Ewing, supra:
“Any suit by or against a receiver appointed in a general creditors’ suit pending in the United States circuit court against a corporation, whether for the collection of its assets, or for the defense of its property rights, is ancillary to the main suit, and within the jurisdiction of such circuit court, regardless either of the citizenship of the parties or of the amount in controversy.” ■ -
In Peck v. Elliott, supra, this language is found:
“For the purpose of collecting in ehoses in action, the court might direct its receivers to institute independent suits in that or courts of the state, or cause such debtors to be made defendants in the principal cause, and determine for itself any question which might be involved by the defenses to the claim.” (p. 427.)
In Savings Bank v. Simpson, supra, this court said:
“The appointment of a receiver by a district court secures to that court the power to control, at its discretion, all controversies which affect the property placed in his custody as such receiver.” (Syl. ¶ 1.)
The public utilities commission calls attention to sections 50 and 55 of the code of civil procedure. These sections, in part, read as follows:
§ 50. “Actions for the following causes must be brought in the county where the cause, or some part thereof, arose:
“Second — An action against a public officer for an act done by him in virtue or under color of his office, or for neglect of his official duties.
§ 55. “Every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned.”
The language used in upholding the authority of a court over all matters affecting the property or estate in the hands of receivers is very broad. However, there must be some Jimit to the authority of a court to bring before it all parties who may have or set up a claim adverse to the receivers. If the receivers claim that certain real property belongs to the estate in their hands, and another party is in possession and claims adversely to the receivers, and it is necessary to bring an action to obtain possession thereof, where will the action be brought? In the court and in the cause in which the receivers were appointed, or in the county where the land is situated? There is but one reasonable answer to this ques-. tion, and that is, that such an action must be brought in the county where the land is situated. If the receivers, as a part of the assets of the estate in their hands, hold a mortgage on real property situated in another county, and it is necessary to foreclose that mortgage, where must that foreclosure take place? Necessarily in the county where the land is situated. If it becomes necessary to sue on a note held by receivers, and all those liable on the note reside outside the county in which the receivers have been appointed, where will that action be brought? The language in a number of decisions is broad enough to say that it may be brought in the action appointing the receivers, and necessarily in that county. This apparently disregards the statute prescribing where actions shall or may be brought. Does the code, prescribing the venue of civil actions, apply to receivers the same as to other litigants ? The rules giving the court appointing receivers such extensive jurisdiction are not statutory. They are rules of equity. Their purpose is to protect the estate that is in the custody of the law and under the control of the court. But these rules should not — and we are constrained to hold that they do not— interfere with the rules enacted by the legislature for the protection of those against whom legal proceedings may be instituted.
The receivers contend that under section 50 of the code, supra, they have the right to sue the public utilities commission in Montgomery county, because part of their cause of action arose in that county. It is argued that the receivers are residents of Montgomery county and have a right to have compensatory rates for gas; that these rates have been denied them; and that under the authorities, where the statute is qualified by the words “or some part thereof,” the venue is either where the receivers reside, who had the right, or where the commissioners reside, who denied the right.
What part of the receivers’ cause of action against the' commission arose in Montgomery county? They say their right to sue, their right to protect the property in' their control. All persons have a right to sue when their rights of person or property are invaded. A state officer acting under the law, at the capital, may perform an act which some individual somewhere in the state believes invades his rights or does him a wrong. Such party can not sue unless his rights have been invaded, but that invasion by an act wholly performed in another county does not give the aggrieved party the right to sue outside the county where the act was done. The action in the district court stands just the same as if the receivers were attempting to contest the validity of an act of the legislature, and were seeking to enjoin the attorney-general, or the auditor of state, or the tax commission, or the state board of health from proceeding thereunder.
The evident purpose of the statute is to confine actions on account of the conduct of officers to the county or counties in which the act or acts of the officers were done. These views are supported by Clay v. Hoysradt, 8 Kan. 74, where this court said:
“The language of this section is plain, and needs no comment from us. By it proceedings against public officers for official acts are referred to the courts of the county where the acts are done. It is an expression of the purpose of the legislature to localize suits against officers. It relieves them from the necessity of deciding between the conflicting orders of courts of different counties. They are amenable only to the courts of the county in which they are acting.” (p. 80.)
(See Fay v. Edmiston, 28 Kan. 105, 108.)
This question should not be disposed of without an examination of section 35 of the code of civil procedure, which reads:
“Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved theréin.”
The state of Kansas is plaintiff in the action in the district court of Montgomery county. The public utilities commission does not claim adversely to the plaintiff. The commission has no interest whatever in the controversy. It is not a necessary party to a complete determination or settlement of the questions involved in the action, as disclosed by the pleadings. The commission may make an order, under the law, that affects the property involved in the controversy, but that does not make the commission a necessary party to a complete determination of the matters in controversy. State officers executing laws affecting property in the hands of receivers are not for that reason necessary parties to the action. in which the receivers were appointed. Neither is the public utilities commission a necessary party in the action now pending in Montgomery county. It follows that the district court did not have jurisdiction of the public utilities commission, or of any member of it.
2. The next question is, Are the receivers subject to the control of the public utilities commission, under the public utilities act? (Laws 1911, ch. 238.) The Kansas Natural Gas Company, whose property is now in the possession of the receivers, and whose business is now being conducted by them, was engaged in the business of a public utility. When the receivers continue to do the same business and render the same service as that performed by the Kansas Natural Gas Com-r pany they are a public utility, as defined in the public utilities act, and are subject to the provisions of the act. The appointment of receivers to carry on the business of a public utility does not withdraw that public utility or its receivers from the control of the laws of the state. The public utilities commission can make the same orders, rules and regulations governing these receivers and the property in their control that they could have made concerning the Kansas Natural Gas Company and its property before the receivers were appointed. The receivers have the same right to appeal to the courts that the Kansas Natural Gas Company had — no greater, no less.
3. Who has the power to fix the rates at which natural gas shall be sold by the receivers of the Kansas Natural Gas Company, the public utilities commission, or the court appointing the receivers? The legislature has said that the public utilities commission shall fix these rates. The courts have repeatedly declared that the courts can not fix rates, and that fixing rates is a legislative function. When rates are fixed, the courts can ascertain whether or not they are in violation of law or of some constitutional provision. But courts have not the authority to determine what rates will be reasonable, just, compensatory, or legal, and then put in effect those rates. The commission can not finally determine what rates will be legal and will not violate constitutional provisions. The commission is the body authorized by law to say in the first instance what rates are legal and will not violate constitutional provisions, but the courts must finally say whether or not the rates fixed are illegal or do violate such provisions. The one function is legislative, while the other is judicial. The commission can not invade the field occupied by the court; neither can the court invade the field occupied by the commission. The commission must act first, and the courts afterward.
4. It is contended that the receivers are engaged in interstate commerce, and for that reason are beyond the control of the public utilities commission. That the transportation of natural gas from one state to another is interstate commerce must be conceded. (West v. Kansas Natural Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 Sup. Ct. Rep. 564, 35 L. R. A., n. s., 1193; Haskell v. Cowham, 109 C. C. A. 235, 187 Fed. 403.) Numerous other cases might be cited. However, that is not the question we have to determine. Our question is, When does the natural gas that is sold by the receivers in the several cities in this state cease to be an article of interstate commerce? In 7 Encycl. of U. S-. Sup. Ct. Rep. 298, we find a clear and condensed statement of the rules to be deduced from the decisions of the United States supreme court, as follows:
“The general rule is that as long as an article imported remains in the hands of the importer in the original and unbroken package in which it was imported, it is protected by the 'commerce clause of the •constitution from the interference of state laws, and that it is only when the original package has been sold by the importer or has been broken up by him or has otherwise become mixed with the common mass of property in the state, that it becomes subject to state legislation.”
(The original package rules will be of some assistance, in' determining whether or not the receivers’ sale of gas in this' state is interstate commerce. The original package of gas is broken when the first gas is taken out of the pipe lines and sold in this state. Thereafter the gas ceases to be an article of interstate commerce. The gas, when sold, had become mixed with the common mass of property in this state by being so commingled with gas produced here as to completely lose its identity. > It is a matter of common knowledge that service pipes from the pipe lines of the distributing companies to private residences and other buildings belong to the owners of the property served, and installations are made at their expense. If the analogy of original packages or importation of property in bulk applies to gas in the mains, it ceases to apply when thousands of service pipes are filled with gas to be drawn off at such times and in such quantities as the individual consumer desires. Interstate commerce is at an end when the bulk of the imported gas is broken up for indiscriminate distribution to individual purchasers at retail sale. The gas then becomes mixed with the common mass of property in the state. To exclude the power of the state from control over an article imported into it, it is necessary that the article be capable of being pointed out and identified, and the owner be able to say, “This came from another state, and has not yet become commingled with the mass of property in this state so as to make it a part of that property.”
All property now owned in this state, and not produced here, was at one time a part of interstate commerce. The goods on the merchant’s shelf, the wagons and plows in the farmer’s field, the horses and cattle that he has imported from another state, were all a part of interstate commerce at one time, but have ceased to be such, although they have not been sold and are still owned by the persons who imported them. These ceased to be under the protection of the interstate commerce clause of the constitution when they became a part of the property of this state. The farmer who imports a wagon, a horse, a carload of corn, or a piano, may or may not intend to sell the article imported. Does the interstate commerce character of this property attach until it is sold? It does not. It can not. A carload or a trainload of wheat may be shipped from this state to Kansas City, Mo., and be there placed in an elevator and mixed with another carload or trainload of wheat from some county in Missouri, and may be held for delivery to some one who has ordered it, or be held for sale to any one who will buy it. Will that wheat from Kansas, after being commingled with the wheat from Missouri, be under the protection of the interstate commerce clause of the federal constitution and outside the control of Missouri, under laws legally enacted by its legislature ? If this question is answered in the affirmative, it extends interstate commerce much farther than any decision of any court yet rendered of which we have any knowledge or information. Before selling natural gas it became necessary to obtain franchises from the several cities under the laws of this state. These laws provided that in certain classes of cities the franchises might name the price at which gas should be sold. If the business done by the receivers in this state is interstate commerce, and the state has no power to regulate the price at which gas may be sold, the laws providing fox-fixing rates in franchises were invalid, so far as gas coming from another state is concerned.
5. Granting for the moment that the sale of natural gas under the circumstances disclosed is interstate commerce, it is not national in its nature, it admits of no one uniform system of regulation, and it is not that kind of interstate commerce which requires exclusive legislation by congress. It is therefore sub-, ject to state control until congress acts. In Jamieson v. The Indiana Natural Gas and Oil Company et al., 128 Ind. 555, 28 N. E. 76,12 L. R. A. 652, the supreme court of Indiana said':
“Upon this point we -affirm that natural gas is characteristically and peculiarly a local product, that its production is confined to a limited territory, that because of its local characteristics and peculiárities it is a proper subject for State legislation, and can not, so far as regards local protection, be made the subject of general legislation by Congress; or; at all events, that it does ‘not require a uniform system as between the States’ for its regulation.” (p. 573.)
A very similar question was disclosed in Manufacturers’ Light & Heat Co. v. Ott, 215 Fed. 940, where this language is found:
“We are unable to agree that the fixing of the rates to be charged by complainants to their customers in West Virginia is an unlawful regulation of interstate commerce. The regulation of companies engaged in the transportation of gas is expressly excluded from the scope of the interstate commerce statute. Neither the West Virginia statute nor the orders of the Commission purport to interfere in any manner with the transportation of natural gas from West Virginia to other states. Nothing is attempted except the regulation of the prices of natural gas to the citizens of West Virginia to be charged by corporations operating in West Virginia under state authority. The action of these corporations in uniting their operations with those of like corporations of Ohio and Pennsylvania in pumping gas into a common system of pipes supplying customers in the three states may produce the result that some gas from Ohio and Pennsylvania comes into West Virginia, although it is undisputed that a much larger quantity of gas goes out of West Virginia into Ohio and Pennsylvania than can possibly come in from these states. But this interflow of gas from one state to another according to the pressure from the main gas pipes as common reservoirs can not affect the power of the state of West Virginia to make reasonable regulations as to rates for gas furnished to its own citizens. West v. Kansas Natural Gas Co., 221 U. S. 229, 31 Sup. Ct. Rep. 564, 55 L. Ed. 716, 35 L. R. A., n. s., 1193, relied on by complainants, has no application, for in the present case no effort is made to prevent the transportation and sale of natural gas from West Virginia into other states. It is not necessary to decide whether the Congress may not regulate charges for natural gas under such conditions, and under the well-known rule the court should not anticipate that question. In the present state of the law, the Congress having taken no action, it was clearly within the power of the state Legislature to provide for the protection of its own citizens against excessive charges. If it b.e, assumed that interstate commerce will be incidentally affected, yet the regulation of the local charges of a natural gas company as a public service Corporation is within the police power of the state until the Congress Sees fit to act.” ■ (p. 944.)
Congress has not acted in this field, except to prohibit unfair methods of competition. We hold, therefore, that the receivers are not engaged in interstate commerce when selling natural gas to consumers thereof in this state.
6. ' The commission did not make an order fixing rates for gas at 28 cents per thousand cubic feet. A suggestion is made that when Missouri fixes rates at 28 cents per thousand the commission will fix rates at that figure. The commission may change its opinion. It may not fix those rates. It may leave the rates where they are. It may advance them to 30 cents or 35 cents. Until an order of the commission is fully, finally and completely made. a writ of mandamus will not issue to enforce it.
7. The last question for our consideration concerns the legality of the rates, both those that are in existence at the present time and those named in the opinion of the commission. The commission finds that where the net price of gas to consumers is now 25 cents per thousand cubic feet the rate should be increased to 28 cents. This, in effect, is a finding that the rates now in existence are not compensatory. It then became the duty of the commission to fix compensatory rates, taking into consideration the gas sold in Missouri, assuming that compensatory rates will be fixed in Missouri. However, wé may say that obedience to law in making rates in Kansas can not legally be made dependent on obedience to the same law in Missouri. The nonobservance of a law in one state or community is no excuse for the nonobservance of the same law in another state or community. The finding of the commission prevents this court from issuing any writ of mandamus to compel the receivers to continue the sale of gas in those places at the rate of 25 cents. The district court finds that the rate of 28 cents will be confiscatory, and in its findings shows, or at least undertakes to show, among other things, wherein the commission has omitted substantial. amounts which' should have been included in the items necessary to be met by' the revenue derived from the sale of gas. The commission, in answer to these criticisms of the court, says that some of the matters criticised were not considered when the matter was before the commission, and that upon others substantially no evidence was submitted; in other words, that these matters of which the court complains were not presented to the commission for its consideration. The evidence before the commission does not meet the objections of the district court. If the findings of the court are correct the rates suggested by the commission are not sufficient to meet the obligations that should be paid by the receivers. The commission says that the salvage value may be safely calculated upon to absorb the principal of the company’s second-mortgage bonds. The second-mortgage bondholders are entitled to the same consideration at the hands of the commission as any other creditor or investor. The court made its findings in a proceeding over which it did not have jurisdiction. The public utilities commission was not present when the evidence was introduced which supports these findings of the court, and was not present when the findings were made. The receivers asked the court to fix and determine a fair, lawful, reasonable and compensatory rate to be paid for natural gas supplied by the receivers in the state of Kansas. The court fixed a rate of 30 cents. That was not a judicial act. It was legislative, and the legislature has placed the power to fix the rate with the public utilities commission. The public utilities law requires the commission to fix rates that are just and reasonable. The constitution of the United States prohibits the commission from fixing rates that are not compensatory. A writ of mandamus will not issue to enforce an order of the commission fixing rates that are unjust, unreasonable, or that are not compensatory.
The demurrer of the public utilities commission to the receivers’ petition is sustained, and the injunction against the commission is set aside. No writ of mandamus will issue at this time. The action in this court is dismissed as to the Hon. Thomas J. Flannelly, but is retained as to defendants John M. Landon and R. S. Litchfield, for such orders and judgments as may be hereafter made.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
John McCullough was convicted in the district court of Sedgwick county on a charge of assault with intent to kill.
' It appears that McCullough had been led to believe that the prosecuting witness, W. L. Herman, had caused the arrest of McCullough’s wife. Near the corner of the two principal streets of Wichita, the defendant, while more or less intoxicated, started to cross Main street in the direction where Herman was standing. As he crossed the street, the defendant carried his revolver in his hand. As he'approached Herman, it is alleged that he said: “You black-, you would put my wife in jail, wouldn’t you; I am going to kill you.” Herman seized the revolver, so that both he and McCullough had hold of it, and Herman threw McCullough down on the sidewalk and landed on top of him. The two men continued to struggle for the revolver for some time, but eventually McCullough was subdued and taken to jail.
From a conviction under section 38 of the crimes act (Gen. Stat. 1909, § 2526) the defendant appeals, and presses upon our attention two instructions of the trial court as reversible error. These were:
“8. As applied to the facts in this case the essential difference between Section 38 and Section 42 is that Section 38 requires the assault be made on purpose and of malice aforethought, with intent to kill; while Section 42 defines a lower grade of offense, in which the element of malice aforethought is not included. And in order to sustain a conviction under Section 42 it is only incumbent upon the State to prove that the assault was made under such circumstances as would have constituted manslaughter if death had ensued.
“14. You are further instructed that voluntary intoxication is no excuse for crime as long as the offender is capable of conceiving an intelligent design; if the case is otherwise made out beyond a reasonable doubt, he will be presumed to have intended the natural and probable consequence of his own act.
“Hence, in this case, if you find the defendant guilty of an assault with intent to kill as charged in the information, and that at the time he did so he was in a state of intoxication, caused by his voluntary action, he is guilty as charged; unless you further find that such intoxication was so extreme as to prevent his mind from the exercise of deliberation or premeditation, and from entertaining the intent and malice aforethought required by Section 38, referred to in the instructions; and, if you find such to have been the condition of his mind, you cannot convict him of any offense higher than that defined by Section 42, referred to in this instruction, and only then unless you believe him guilty beyond a reasonable doubt under said Section 42, as defined more fully by other instructions herein.”
These are but two of the nineteen instructions given by the court, and while appellant objected to them all, no errors in the others are pointed out.
We could add nothing which would be any more precise statement of the law than that given by the trial court in its eighth instruction as applied to this case. The court merely distinguished the elements of intent or lack of intent as placing the offense under section 38 or section 42.
In The State v. Burwell, 34 Kan. 312, 8 Pac. 470, it was said:
“Where a criminal information sets forth facts sufficient to constitute the offense of assaulting and wounding a person with intent to commit murder, under section 38 of the act relating to crimes and punishments, and the facts as thus set forth also constitute the offense of wounding under such circumstances as would constitute manslaughter if death had ensued, under section 42 of the crimes act, held, that the jury may find the defendant guilty of either of the offenses charged, as the evidence will justify. And generally, wherever a person is charged upon information with the commission of an offense under one section of the statutes, and the offense as thus charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense.” (Syl. ¶2.)
(The State v. Fisher, 8 Kan. 208; The State v. O’Kane, 23 Kan. 244; The State v. Watson, 30 Kan. 281, 1 Pac. 770. See, also, The State v. Countryman, 57 Kan. 815, 828, 48 Pac. 137.)
Touching the fourteenth instruction, appellant has no ground of complaint. His evidence tended to show, if the jury saw fit to believe it, that he was so drunk as to have no knowledge of his acts. Assuming that extreme intoxication would reduce his crime to the grade covered by section 42 of the crimes act (Gen. Stat. 1909, §2530), the instruction was liberal, even generous, to defendant. (The State v. Mowry, 37 Kan. 369, 15 Pac. 282; The State v. Rumble, 81 Kan. 16, 20-23, 105 Pac. 1.)
There is no error in this case and the j udgmtent is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The second cause of action is not involved in this appeal. The first is this: The plaintiff came to town, hitched his team to a rack and went into a store; a boy on a bicycle ran into the team and scared them; they entered upon the railroad of the defendant at the Indiana street crossing, followed up the track some distance, and Were killed by a train coming from the opposite direction. It was between eight and nine o’clock in the evening but the horses were not seen by the engineer or fireman. The jury returned a verdict for the plaintiff and found that the track where the horses were killed was enclosed with a lawful fence in good condition, but also that a lawful fence in good condition would not have prevented them from entering upon the track at the time in question. Further, that the proximate cause of the injury was, “The team being on track and not being seen by employees of defendant,” and that the negligence of the defendant consisted in the failure of the engi neer and fireman to see the obstruction. These findings eliminate the fence question and leave the sole query whether, if the horses were frightened and went upon the track without the fault of the plaintiff, he can recover because of the defendant’s negligence in not seeing them in time to avoid injury.
The plaintiff contends that under the rule in A. T. & S. F. Rld. Co. v. Davis, 31 Kan. 645, 3 Pac. 301, as the plaintiff was not negligent and the defendant was, the former can recover, which he could not do had he been consciously negligent himself.
The act of 1911 requiring headlights sufficient to outline the figure of a man on or adjacent to the track at a distance of eight hundred feet (Laws 1911, ch. 241,) is brought forward as an argument that the engineer and fireman must have been negligent in not seeing the horses before striking them. There is no charge of wantonness, but there is an express 'allegation that by the use of ordinary care and diligence the defendant’s agents and servants could have observed the horses upon the track in ample time to avoid the injury. This raises the one clear question whether under the circumstances the. defendant owed the plaintiff any duty until the discovery of the animals upon the track. In the Davis case it appeared that an emigrant train followed the colt as it ran up the track until its course was stopped by an open bridge. It was said:
“Without any fault on his part, and through the misconduct or negligence of some unknown person, in the nighttime, the gate was left open and through it the animal wandered upon defendant’s track. While technically the animal was a trespasser, yet it was so trespassing after reasonable precautions had been taken by the plaintiff, and without any fault on his part. Under those circumstances, the company was bound to use ordinary care to prevent injury. . . . It is true that authorities in other states are conflicting on this question. . ] . We think in principle, however, it is more just and fair that where the owner of stock is without fault, and has taken every reasonable precaution to keep his animals confined, and through some unexpected casualty, or misconduct or negligence of a third party, the animals escape from such confinement upon the grounds of another, the latter should use ordinary care to prevent their being injured.” (pp. 654, 655.)
The defendant moved for judgment on the findings, the theory being that as wantonness was not shown there can be no recovery. All the evidence shown by the record touching the matter of negligence is the following:
“This railroad track runs in a straight line in a northwesterly direction for a distance of about two miles from where it intersects Indiana street, and that said railroad track and bed after leaving Indiana street is from fiftéen to twenty-five feet higher than the surrounding country; that the team left, Indiana street where it intersects with the railroad track and went up the track for a distance of about one-half a mile, the horse on the left side being all the time in the center of the track between the rails, and the horse on the right side being all the time just to the right of the east end of the ties; that about a hundred yards from the intersection of Indiana street and the railroad track there was a cattle-guard which the horses went over; that when said team had gone up said railroad track about one-half mile they were met by appellant’s passenger train going in an opposite direction. The engine pulling the train killed the two horses, demolished the wagon and destroyed the harness. There was no eye-witness to the accident.. One of the horses was found near the track where it was killed, and the other horse was found on the pilot of the engine upon its arrival at the city of Lawrence. This was the first knowledge the engineer, fireman or any other person had of having struck the team. This accident occurred about 8:40 o’clock at night northwest of the city limits of the city of Lawrence. The night was dark, but the headlight of the engine was burning brightly and threw a bright light on the track so that objects could be seen on the track at a distance up to one-half mile in front of the engine, during all the time said train was traveling this mile and one-half to where the horses were killed; that said engineer and fireman did not see said team of horses on the track.”
While an examination of the record in the Davis case discloses that failure to keep a lookout was found, the negligence shown consisted (mainly in not stopping the train after the animals were seen on or near the track. The rule contended for by the defendant is well stated in I. C. R. R. Co. v. Noble, 142 Ill. 578, 82 N. E. 684, the track being properly fenced:
“What duty then, as to care and caution, so far as it relates to the mere discovery of the fact that domestic animals are trespassing on a railroad track, does the railroad company and its employes owe to the owners of such animals? It is scarcely necessary to observe that this is entirely apart from any inquiry as to the duty as to care and caution which a railroad company and its employes owe to its passengers, or to the owners of property in course of transportation, nor does it involve the same rules which apply after the presence of the trespassing animals has been discovered or is known. The railroad company has the right to an, unobstructed use of its track, and it is justified in presuming and in acting upon the presumption, until the contrary is brought to its attention, that its right in this respect will not be interfered with.” (p. 585.)
In Rattenbury v. Pere Marquette R. Co., 172 Mich. 106, 137 N. W. 679, it was held:
“A railroad company is not bound to keep a lookout to discover horses trespassing on the track, but is only bound to save them after they are discovered, if it is reasonably possible to do so.” (Headnote, 137 N. W. 679.)
The same doctrine was announced by the supreme court of Oklahoma in the case of Missouri, K. & T. Ry. Co. v. Savage, 32 Okla. 376, 122 Pac. 656, and in Indianapolis, etc., R. Co. v. Goar, 43 Ind. App. 89, 86 N. E. 968. (See, also, Note, 24 L. R. A., n. s., 858, 860, 861.)
It often happens that a railroad owes certain lookout' duties to one person, but that the failure to observe them can not be availed of by another to whom they are not owed. (Wood v. Railroad Co., 88 Kan. 477, 481, 129 Pac. 193; Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612, and cases cited. See, also, Gibson v. Packing Box Co., 85 Kan. 346, 116 Pac. 502, and cases cited.) Modern passenger transportation by rail requires that so much attention be given by the engineer and fireman to the large and powerful engines now in use that it would be unreasonable to hold that they owe any duty to the owner of strayed or frightened animals to keep a lookout for their presence on the track where it is properly fenced. It is sufficient, both upon reason and by authority, if they use proper care after the presence of such animals is discovered. To this extent the Davis case is modified.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
■ Marshall, J.:
This case was first before this court- in Railroad Co. v. Thisler, 90 Kan. 5, 133 Pac. 539, to which we refer for a full statement of the facts. All questions then presented were disposed of except it was not determined that the rate of $306 on the shipment was legally in force, and the cause, under section 307 of the code of civil procedure, was remanded for a new trial upon the sole question as to whether the $306 rate was, at the time of the shipment, legally in force in accordance with the requirement of the interstate commerce act. (Leeman v. Page, 79 Kan. 479, 100 Pac. 504; McCullough v. Hayde, 82 Kan. 734, 738, 109 Pac. 176.) The judgment was affirmed in other respects. On the retrial, the jury answered questions as follows:
“Question No. 1. State whether the $306.00, rate was in force in accordance with the requirements of the Interstate Commerce Act at the time of the shipment of the car in controversy in this case, which was March 18, 1907. Answer. Yes.
“Question No. 4. State whether or riot the Chicago, Rock Island and Pacific Railway Company, the Denver and Rio Grande Railroad Company, and The Oregon Short Line Rail Road Company concurred in said Tariff, I. C. C. No. 820, and in Supplement No. 4 thereto. Answer. Yes.
“Question No. 6. State whether or not the Chicago, Rock Island and Pacific Railway Company distributed and sent said Tariff, I. C. C. No. 820 and Supplement No. 4 thereto, to the stations on its line of railroad. Answer. To some of its stations.”
Upon the special findings of the juries in two trials, the court found that there was due the plaintiff from the defendant for transportation charges the sum of $156 together with interest at six per cent from April 2, 1907, amounting in the aggregate to $222.89; that there was due the defendant from the plaintiff the sum of $200; and that the defendant was entitled to set off that sum against the amount due the plaintiff. Judgment was rendered for the plaintiff for the difference, $22.89. The defendant appeals.
Both the jury and the trial court found that $306 was the legal rate for the property shipped. The legality of the rate is questioned because of the failure of the Chicago, Rock Island and Pacific Railway Company to deposit a copy of the tariff in its freight office at Enterprise, Kan. It appears that the tariffs showing the $306 rate were filed with the interstate commerce commission, and that they were promulgated and distributed. The fact that the Chicago, Rock Island and Pacific Railway Company failed to file or deposit one of these tariffs in its freight office at Enterprise does not defeat the plaintiff’s right to receive the full rate of $306, nor excuse it from the obligation to enforce payment under the law. Certainty and uniformity are primary elements under the interstate commerce act. • Rates filed with the commission can not be avoided or defeated in this manner. There was a legal rate. If that rate was not $306, what was it? The trial court and jury to whose determination this question was referred say it was $306. That fixes the rate in this court and disposes of this matter.
Another question is presented, one not embraced within the order remanding this cause for a new trial, and which was not presented on the former hearing in this court. It appears that the defendant ordered a thirty-foot car, the rate on which was $225 per car, and that the plaintiff furnished a forty-foot car to suit its convenience. For that reason the defendant contends that his rate should have' been $225. All questions involved in this case were disposed of in the opinion of this court found in Railroad Co. v. Thisler, 90 Kan. 5, 133 Pac. 539, except one: Was the $306 rate' legally in force in accordance with the requirement of the interstate commerce act, at the time of the shipment? The trial court determined that question against the defendant. This court will not now consider any other question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in mandamus in which the city of Wichita seeks to compel the street railway and light company to permit an audit and inspection of its books and documents, showing its gross receipts and disbursements for each of the years 1903 to 1913, inclusive. Before commencing the proceeding the commissioners of the city adopted a resolution reciting that it had been made to appear that a considerable amount of money is due the city from the defendant under the provisions of section 170 of chapter 122 of the Laws of 1903, which required the defendant to pay into the city treasury ten per cent of its earnings over and above ten per cent earnings on its investment. The case is submitted here on a motion to quash the writ.
The ordinance extending defendant’s franchise was passed in April, 1903. It is conceded that this extension was made under the provisions of sections 169 and 170 of chapter 122 of the Laws of 1903, which in general terms authorized the city to require from such a company a report once in six months. The ordinance itself expressly requires the defendant once in each year to file with the city clerk a detailed statement, properly verified, showing its operating expenses and earnings. It is admitted in the writ that defendant has made such detailed statements as required by the ordinance. The claim of the city is that it is entitled to inspect the books and records of the defendant for the purpose of verifying these statements. The contentions of the defendant are: first, that there is no public duty specially enjoined upon it by law which the writ seeks to enforce; second, that the city has a plain, adequate remedy at law, and therefore the writ should be denied. The defendant readily admits that if there is any statutory or common law that casts upon it the duty of submitting its books and documents for the inspection of the public officers then mandamus is the proper remedy. In 1907 the legislature provided an additional requirement in reference to public service franchises, as follows:
“Said board [board of commissioners] shall also have access to and the right to examine all books, receipts, flies, records, and documents of any such grantee to verify the correctness of such semiannual statement and to correct the same if found to be erroneous.” (Laws 1907, ch. 114, § 114, subdiv. 5, Gen. Stat. 1909, § 1330, subdiv. 6.)
The city contends that the law of 1907 applies to the extension of defendant’s franchise granted in 1903. The act of 1907 was prospective in its purpose and not retrospective. In Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028, it was said:
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is un equivocally expressed.” (Syl. ¶ 1. See, also, Howe v. Howe, 179 Mass. 546, 552, 61 N. E. 225.)
There is nothing in the language of the act of 1907 to indicate an intention of the legislature to make this provision apply to franchises extended prior to that time. As suggested, it is more in the nature of a legislative recognition of the absence of any such requirement in previous enactments.
The motion to quash must be allowed on the ground that no duty imposed by law is sought to be enforced, and that the city has a plain, adequate remedy by which it may obtain the information desired. It may accomplish this by a suit against the defendant for any balance claimed to be due or for an accounting. The court, where such an action was pending, would have the authority to compel the production of defendant’s books and papers. The action here is nothing more than a suit in the nature of a bill of discovery. If the writ were granted and an inspection of defendant’s books and records disclosed that the statements furnished were true and correct, that would end the matter; no further relief would be sought by the city. If an inspection led the city to believe that there are moneys due from the defendant, another suit would be necessary to enforce its claim, unless the defendant settled voluntarily upon terms satisfactory to the city. It can obtain no relief by the-granting of a writ in this case except to discover evidence upon which to found an action or claim against the company. The city commissioners act as a public utilities commission, since defendant is a public utility operating wholly within the city. The city, however, is not seeking in this action to regulate a public service corporation, nor to compel the performance of any public duty imposed upon defendant by law. On the contrary, it is seeking to enforce a right of contract, or to secure evidence to enable it to enforce such a right. It is well recognized that every municipal corporation exercises dual functions: one in its capacity as a governmental body; the other in its proprietary capacity. Plaintiff’s right under the ordinance and laws to be paid a percentage of defendant’s receipts is a proprietary right and not one inhering in the exercise of governmental power. In this respect its rights are governed by the same rules that apply to contracts made by an individual or a private corporation.
The writ of mandamus, the allowance of which is largely discretionary, can not be employed as a bill of discovery. For the reasons stated, the motion to quash the writ is allowed. | [
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The opinion of the court was delivered by
Mason, J.:
Jacob A. Rupp was prosecuted upon the charge of having made an affidavit in support of an application for a marriage license, stating the age of the prospective bride to be eighteen years, when in fact it was but fifteen. He was convicted and sentenced to pay a fine of $100. He appeals.
The defendant maintains that while he signed the statement in question he did not swear to it. There was considerable testimony to that effect. But the probate judge whose jurat was attached to the writing testified that while he had no specific recollection of this particular transaction, his custom in such cases was to administer the oath in the form prescribed' by the statute, and that he was confident the custom had been followed in this instance. One of the witnesses who denied that the defendant had been sworn testified very positively that the probate judge concluded the marriage ceremony, which immediately followed, with the words “so help you God.” The evidence made the question of the actual administration of the oath a fair one for the jury.
The defendant was a second cousin of the girl he married. According to her testimony he told her at a dance that he wanted her; she knew he meant by this to ask if she would be his wife; she did n’t want to get married, and told him so— that she was too young; he then asked how old she was, and she answered that she was fifteen; he gave her whisky, which she had never before tasted, and she became intoxicated; they went. together from the dance to the house of a friend, and from there with others to the office of the probate judge, where they were married at five o’clock in the morning; she did not understand what was going on during the ceremony, but the defendant afterwards told her they had been married. Neither of the girl’s parents were notified or knew anything of the affair until later. The couple left that day for Denver, where the defendant was arrested a few days later. The officer making the arrest testified that the defendant told him his wife was sixteen years old, and in answer to a question as to why he had n’t gone to see her father before the marriage said that he and the girl’s father did n’t get along very well and her father would n’t stand for his marrying her.
The defendant complains of the refusal of the trial court to give an instruction to the effect, that he could not be convicted unless the jury were satisfied that when he signed the affidavit he knew the statement as to the bride’s age to be untrue. The instruction given on that point (which also is complained of) read as follows :
“Before you can find the defendant guilty . . you must be satisfied . . . that the defendant . . . knew or believed that she [the bride] was under eighteen years of age, or made such affidavit without careful inquiry and investigation as to her age, and in reckless disregard of his duty to know the facts to which he is alleged to have sworn in the affidavit.”
The statute forbids the issuance of a license for the marriage of any female person under the age of eighteen years without the consent of her father (if living with his family, otherwise of her mother or guardian). Her age is required to be shown by affidavit. Originally one swearing falsely in such an affidavit was made'guilty of perjury (Gen. Stat. 1909, §4859), a felony punishable by confinement and hard labor for not exceeding seven years (Gen. Stat. 1909, § 2641). The present law reads:
“Every person swearing falsely in such affidavit shall be deemed guilty of a violation of this act and shall be punished by a fine not exceeding five hundred dollars.” (Laws 1913, ch. 224, § 2.)
Some penal statutes are interpreted literally, the acts denounced being held to constitute an offense without regard to motive. (Notes, 25 L. R. A., n. s., 661, 669.) “Whether or not in a given case a statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature.” (12 Cyc. 148.) We do not think it was the purpose of the makers of the law under consideration to punish one who swears to a statement which upon reasonable grounds he believes to be true, but which turns out to be erroneous. On the other hand, the statute would be practically nullified by the adoption of the test proposed by the defendant — that he could only violate the law by swearing to something he knew to be untrue. Good faith is all that is required of an affiant, but good faith involves something more than a mere lack of posi tive information to the contrary of what is sworn to; it implies an affirmative belief in the truth of the assertion, based upon a fair and honest weighing of such information as is at hand. (30 Cyc. 1405; Note, 25 L. R. A., n. s., 654.) Moreover, he who makes a positive affidavit to a particular condition thereby holds himself out as having some reasonably reliable-information on the subject, and for one to swear to a fact, of the existence of which he knows himself to be entirely ignorant, is rightly held to constitute perjury. (22 A. & E. Encycl. of L. 690; 30 Cyc. 1404.)
The policy of the state is to forbid minors marrying without the consent of their parents or guardians.' To give effect to this a showing under oath is required to be made to the probate judge that both parties are of lawful age, before a license is issued. That the regulation may be enforced a penalty for false swearing in that connection is imposed. If one who knows nothing about the matter can safely furnish a false affidavit, securing complete immunity by purposely-abstaining from all inquiry as to the facts, the object of the law will be defeated. A showing under oath as to the age of a person for whom a marriage certificate is sought can. be conscientiously or legally made only by an affiant who, acting in good faith and upon reasonable grounds, believes the facts to be as stated. The instruction quoted substantially covered this ground.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This suit was brought by Emaline D. Poole as administratrix of the estate of her deceased husband, William D. Poole, and in her own right as his widow and heir at law. The defendants are the four sons of the deceased. The plaintiff seeks to cancel certain releases, transfers and surrenders of property made by William D. Poole in his lifetime to the defendants, and the prayer of the petition asked for judgment in her own right for the sum of $8000 and interest upon a note executed by the defendants to William D. Poole, and for the foreclosure of a mortgage securing the note.
In addition to the general denial the answer pleaded a written release of the note and mortgage by William D. Poole in his lifetime and denied that the defendants had in their possession or control any property belonging to their father at the time of his death. The court made findings of fact in substance as follows:
1. In 1903 William D. Poole was a widower and owned 2400 acres of farm land in Geary county where he resided, and also owned about 200 head of cattle. On March 26, 1903, he conveyed 843 acres of the land to his four sons, reserving a life estate to himself, and at the same time conveyed to them the balance of the 2400 acres without any reservation. On the same date the sons gave him their note by which they promised at his death to pay to his estate the sum of $8000 with eight per cent interest per annum from maturity. The note was secured by a mortgage upon the 843 acres of land in which he had reserved the life estate.
2. In May, 1904, William D. Poole turned over to his sons, the defendants, about 200 head of cattle under an oral agree ment by which the sons at the end of five years were to turn back to him cattle of like kind or value, and on the same day he rented to his sons the 843 acres of land subject to his use of the homestead and dwelling house thereon, in consideration of which the sons agreed to pay him thereafter an annual rental of $1630. The sons were partners and carried on a farming and stock business under the name of Poole Brothers and continued in’this during all the times mentioned in the findings.
3. In October, 1904, when William D. Poole was seventy-six years of age and the plaintiff was fifty-four years of age, they were married, the plaintiff at the time having full knowledge of the transfer and conveyance of the property mentioned in findings 1 and 2.
4. In May, 1907, William D. Poole gave to his sons all his interest in the 200 head of cattle and released them from the payment of the annual rent for the 843 acres of land, in consideration of which the sons agreed to pay him from time to time such sums of money as he should require or ask for, and under this arrangement the sons paid him at different times from March, 1910, to May, 1911, sums aggregating $3485.
5. In November, 1910, William D. Poole and his wife went to California for the benefit of his health and remained there about nine months.
6. While in California they had domestic troubles and separated and the wife brought suit there for alimony and separate maintenance, claiming in the action that he owned the $8000 note and mortgage and five shares of stock in a bank at Manhattan and other property in Geary county, Kansas. The old gentleman telegraphed for his youngest son, Grover, to come to him, and in response the son went to California and negotiated a settlement with the plaintiff of the suit for alimony. In the settlement William D. Poole conveyed to her four unimproved lots in Junction City of the value of $1200 or $1300, and agreed to pay her $25 a month for her use and benefit and to pay the taxes on the Junction City property, and also paid her attorney’s fees in the action amounting to $250. The action was then dismissed and the parties resumed their relations as husband and wife and shortly thereafter returned to Kansas. The court expressly found that the plaintiff in sisted in the settlement of the California case that the note for the $8000 should be transferred to her for her security and protection, but that this was not acceded to by William D. Poole and that it was not included in the settlement.
7. Soon after the settlement of the suit for alimony, and while William D. Poole and his son Grover were still in California, William D. Poole secretly, without the knowledge, of the wife, transferred and delivered the certificate for the five shares of bank stock to Grover Poole in the name of and for the use and benefit of Poole Brothers, and at the same time delivered to him a written release of the $8000 note secured by the mortgage on the 843 acres of land. The shares of bank stock and the mortgage in question constituted all the property that William D. Poole owned or had left. This .transfer, at the time he was eighty-three years of age and in poor health, was made without consideration and in contemplation and expectation on his part, and on the part of his son Grover, that the old gentleman would not live long and that his wife would probably survive him and be one of the heirs to whatever property he owned at his death, and were also made by William D. Poole in consideration of the probability that the resumption of the marriage relation with plaintiff would not last long or be permanent, and that she might separate from him and bring another action for alimony, or divorce and alimony, for which reasons the transfer of the bank stock and the release of the mortgage were made in bad faith by William D. Poole and were accepted by Grover Poole on behalf of the defendants in order to defeat the plaintiff’s right as an heir to this property in case she survived him, or to defeat her right to a division of this property in case another suit should be brought by her for alimony, or divorce and alimony.
8. The note and mortgage having been lost, were not delivered to the defendants. The plaintiff offered testimony tending to show that the signature of William D. Poole to the release was a forgery. On this issue the court found the signature to be genuine.
9. The transfer of the property mentioned in finding No. 1, and the gift of the cattle and also the release of Poole Brothers from payment of rent on the 843 acres were all made in good faith at the time when there was no difficulty or domestic trouble between the plaintiff, and William D. Poole, and with no intention to defraud the plaintiff.
10. After the parties returned from California to Kansas the plaintiff again separated from her husband and brought an action for divorce and alimony, which action was never tried but abated by the death of the husband.
11. William D. Poole died November 24, 1911, intestate, the few debts that he owed being fully paid by his sons. He left surviving him as his heirs the parties to this suit.
12. A half interest in the amount due on the $8000 note is $4487.08, and a half interest in the value of the bank stock is $545.64.
13. There was no completed gift, transfer or delivery of the $8000 note by William D. Poole to the plaintiff.
14. Defendants John, William and Bryant Poole, ratified all that their brother Grover did in taking and receiving the written release and transfer of the bank stock.
As conclusions of law the court found that the plaintiff has no interest in the 2400 acres of land nor in the cattle and rents; but that she is entitled as an heir to a half interest in the note and mortgage and the same interest in the bank stock. She was therefore given judgment against defendants for one-half of the amount due on the note, for the foreclosure of the mortgage, and for one-half the value of the bank stock.
There are two appeals, neither side being satisfied with the judgment. The defendants’ main contention, briefly summarized, is that the plaintiff’s suit is grounded upon her rights under the statute of descents and distributions; that since she is not a creditor of the deceased her suit must fail because as an heir she is only entitled to one-half the property belonging to the husband at the time of his death; that he had the right in his lifetime to dispose of it as he pleased since it belonged to him.
The findings of fact exclude the idea that the gifts were “colorable,” and, on the contrary, show an actual transfer of the title and ownership of the property to the sons. In Small v. Small, 56 Kan. 1, 42 Pac. 323, it was held that the statute of descents and distributions is in no respect a limitation on the right of the husband while living to dispose of his personal property by gift in accordance with his wishes and with the express intent of depriving his widow of any. interest therein as an heir. The syllabus in that case reads :
“Subject to certain limitations not applicable to this case, and as against any post-mortem claim of his widow, a married man, in Illinois or in Kansas, may, during coverture, give away to his children absolutely the bulk of his property, when the known effect of the gift will be to deprive the widow of the fair share of the property which otherwise would have fallen to her.”
The case of Small v. Small, supra, is reported with annotations in 30 L. R. A. 243, and in 54 Am. St. Rep. 581. The general rule is that the law has placed no restriction or limitation on the husband’s right to make such disposition of his personal property during his lifetime as he may elect. In Padfield v. Padfield et al., 78 Ill. 16, it was said:
“To hold that a feme covert has a vested interest in her husband’s personal estate, that he is unable to divest in his lifetime, would be disastrous in the extreme to trade and commerce.” (p. 20.)
The general rule is not recognized, however, in some jurisdictions. The decisions of some of the courts are based upon statutes giving the wife dower in personal property. (See cases cited in Note, 10 Ann. Cas. 1053.) Where the transfer or gift is merely colorable and there is a voluntary transfer or conveyance by which the husband reserves to himself an interest in or a power to dispose of the property, it may be declared void as against the widow and she may participate in its distribution upon the theory that the title still remained in the husband. (Small v. Small, supra; Padfield v. Padfield et al., supra; Thayer v. Thayer et al., 14 Vt. 107; Cameron v. Cameron et al., 10 Smed. & M. (18 Miss.) 394, 48 Am. Dec. 759; Lightfoot’s Executors and others v. Colgin and Wife, 5 Munf. (Va.) 42; Stewart v. Stewart, 5 Conn. 317; Dunnock v. Dunnock, 3 Md. Ch. 140; Jones v. Somerville, 78 Miss. 269, 28 South. 940, 84 Am. St. Rep. 627.)
At the time the note and mortgage and the bank stock were transferred to the sons the plaintiff and William D. Poole had settled their domestic difficulties, and so far as the evidence shows lived together amicably for several months thereafter. She had dismissed her action for separate maintenance and by the settlement had obtained from her husband valuable property rights and an agreement for the payment of a monthly allowance. Aside from the facts that they had had domestic difficulties and that she had brought her suit in California there was no evidence, at least none is set forth in the abstracts, tending to show that either the husband or the sons anticipated that she would begin another suit for support or for divorce and alimony. It must be said, therefore, that the evidence to sustain the finding that the gifts were made in anticipation that she would begin another suit is very slight, and of course the burden of proof was upon plaintiff to show that the transfers were fraudulent.
We are not left in any doubt as to the exact theory upon which the trial court proceeded in arriving at the conclusion that the transfers should be set aside. The written opinion of the court is set forth in the abstract, from which it appears that the court held the transfers fraudulent because their purpose was to defeat the marital rights of the wife and to deprive her of rights as an heir. The court in the opinion stated the law to be as declared in 14 Cyc. 68, under the title “Descents and Distributions,” as follows:
“A sale, gift, or other transfer of personal property, however, made fraudulently for the mere purpose of depriving the wife of her distributive share is invalid as to her.”
In the same paragraph in Cyc. it is stated that:
“As to personal property, the rule is that the husband may deprive his wife of her distributive share by a sale, gift, or other transfer made in good faith during his lifetime.”
Then follows the excerpt quoted by the court. In the opinion the trial court further said that the case of Small v. Small “is not at variance with the authorities above referred to for the decision in the Small case states that the transfers in question there were made in good faith.” The cases cited in Note 37 (14 Cyc. 68) in support of the text relied upon by the trial court are directly opposed to Small v. Small so far as they hold that the intent to deprive the wife of her distributive share is of itself a fraud upon her. That was the purpose of the husband in the Small case. The “good faith” to which Chief Justice Martin refers in the Small case was not affected in the slightest degree by the fact that the husband made the gifts with the secret intent to deprive the wife of her distributive share. It was in “good faith” notwithstanding such intent because he actually parted with his title; he did not reserve an interest in the property in himself; in other words, the transfer was not colorable. The cases which are fully in accord with Small v. Small are cited in the same page of 14 Cyc. (68) under note 36, from the courts of a dozen states which have held that, although the transfer is made to defeat the rights of the wife, it is not fraudulent if a bona fide transfer is made for that purpose. Among the decisions cited in the note are Padfield v. Padfield et al., 78 Ill. 16, and Richards v. Richards et als., 11 Hump. (30 Tenn.) 429. In the Tennessee case the husband gave his property to his children for the purpose of excluding his widow from any share therein and she was held to be without remedy.
Counsel for plaintiff cite a number of cases where in actions brought by the wife for alimony courts have set aside transfers of property made by the husband for the purpose of defeating her action, and in some of the cases cited the transfers were made prior to the commencement of any suit by her. We have examined most of these cases. In some of them the court found that the transfers were fraudulent because the husband retained an interest in the property. (Platner v. Platner et al., 66 Iowa, 378, 23 N. W. 764.) In others the husband had obtained conveyances of his wife’s property which he subsequently conveyed fraudulently to a third person. In an action afterwards brought by her for divorce and alimony the transfers were set aside as fraudulent. All of the cases cited were suits where the wife sued the husband. We have found no cases and have been referred to none where the widow claiming under the statute of descents and distributions has been permitted to defeat an actual transfer of personal property made by the husband in his lifetime, on the ground that his purpose was to defeat her marital rights, or to defeat her right to share in the property as his widow and heir. The jus disponendi, which is an incident to the ownership of personal property, is jealously guarded by the courts because it lies at the foundation of trade and commercial transactions; and to restrict or cut down this inherent right of the owner in order to accomplish an equitable division of property between the widow and other heirs is not in accord with sound public policy. (Small v. Small, 56 Kan. 1, 42 Pac. 323; Richards v. Richards et als., supra.)
It may be conceded that the trial court arrived at a judgment which results in an equitable division between the widow and sons of the property in controversy if it belonged to the deceased at the time of his death. But this is one of the cases where the maxim that “equity follows the law,” a maxim said to be quite restricted in scope, must be held to apply.- It presents a situation where the rights of the parties are clearly defined and established by law, first, by the statute of descents and distributions under which the plaintiff seeks to recover, and second, by the settled rule of law upon which rests the decision in Small v. Small, supra.
“Wherever the rights or the situation of the parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable.” (Magniac et al v. Thomson, 15 How. [56 U. S.] 281, 299.)
The opinion in Small v. Small quotes with approval (p. 16) the following statement from Williams v. Williams, 40 Fed. 521:
“Of course, the sale or gift must be absolute and bona fide, and not colorable only. And if the sale or gift would bind the grantor, it would bind his heirs.” (p. 522.)
The findings show conclusively that there was an actual gift of the cattle to the sons accompanied by delivery; that there was a written release of the note and mortgage; that these transfers were not “colorable.” They were bona fide transfers. That they were secret or that knowledge of them was purposely withheld from the wife or that the sons paid no consideration can make no difference. (Small v. Small, 56 Kan. 1, 42 Pac. 323.)
Reliance is placed by plaintiff upon McKelvey v. McKelvey, 79 Kan. 82, 99 Pac. 238, but that case is not in point. The property there was not personalty but real estate, which the husband attempted fraudulently to. dispose of by a judicial sale upon a collusive judgment obtained against him, intending, however, to dispose of the land in a way that he could get it back. The transaction was colorable and not an actual one, besides being fraudulent for other reasons.
It must be held, therefore, that the court erred in awarding plaintiff a widow’s share in the note, the mortgage securing it, and the bank stock.
In the cross-appeal of the plaintiff she contends that she is entitled to recover her interest as an heir in the value of the cattle and the rentals of the 843 acres of land; that there was no competent evidence to sustain the finding that William D. Poole released the sons from their obligation to pay rent or that he made them a gift of his interest in the cattle. This contention is based' upon the claim that the court permitted the sons to testify concerning transactions with a deceased person. The trial court followed the correct rule in permitting the witnesses to testify on the express ground that in the cross-examination plaintiff had brought out the fact that there was some kind of an agreement between the father and sons, and that this opened the door and permitted defendants to show what the agreement was. (Niccolls v. Esterly, 16 Kan. 32; Plowman v. Nicholson, 81 Kan. 210, 105 Pac. 692.)
Evidence of the agreement having been properly admitted, it is of little consequence whether the other testimony objected to was admissible or not, since the trial was by the court. However, the testimony of the sons denying that they had in their possession or control any property or money belonging to the deceased at his death negatives rather than affirms that there was a communication or transaction with the father in his lifetime. (Murphy v. Hindman, 58 Kan. 184, 48 Pac. 850; Gaston v. Gaston, 83 Kan. 215, 109 Pac. 777; Kerr v. Kerr, 85 Kan. 460, 461, 116 Pac. 880; Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30.)
Nor is this testimony open to the objection that it was merely a conclusion of law; it involved at most a mixed question of fact and law.
There is a further contention that the case must be distinguished from Small v. Small, 56 Kan. 1, 42 Pac. 323, because it is said there was an agreement, tacit and expressed, both prior and subsequent to the marriage, that plaintiff should receive one-half this property at his death in compensation for the unusual care and attention he required, and a further express agreement of the same kind as an inducement to the dismissal of the California case. The answer to this is that the findings which the court made exclude the idea that there was any such understanding or agreement. The fact is,' the court found against the plaintiff’s contentions in this respect. There is an express finding that William D. Poole never acceded to her request that the note and mortgage should be included in the settlement of that action. We find no substantial reason for setting aside the findings. The plaintiff makes another contention rather inconsistent with the last mentioned, namely, that the note having been made payable to the estate of William D. Poole, it was beyond his power to dispose of it. None of the many cases cited supports the contention. Some of them are cases where a person in his lifetime took a note payable direct to his heirs after his decease, or to some- third person named. Some of the others are cases where the note was not executed until after the death of the person owning the -estate, and was made payable direct to the administrator or to the estate. All that the court decided was that the administrator could maintain an action to recover on the note. We think that there is no force in the contention that William D. Poole constituted himself a trustee for his heirs when he took the note payable to his estate. It was executed eighteen months before he married the plaintiff, and at a time when the only heirs in. being were the defendants. As suggested, the contention of the plaintiff is directly opposed to her claim that she is entitled to a share in the note by reason of an agreement made long after-wards. We hold, however, that where a person takes a note payable to his estate he does not thereby deprive himself of the right to dispose of it during his lifetime by accepting payment or by releasing and discharging the obligators. In this case the note was delivered to William D. Poole and remained in his possession and control, so far as the findings show, until it became lost or mislaid.
It follows from what has been said that plaintiff’s contentions can not be sustained, and that the judgment is reversed and the cause remanded with directions to render judgment in favor of defendants.
Burch, J., and Mason, J., dissenting. | [
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The opinion of the court was delivered by
West, J.:
This was a suit by the city to enjoin the gas com-* pany from exacting charges in excess of those permitted by the franchise and ordinance. Section 2 of the ordinance contained an express provision that the rate for natural gas should not exceed twenty-five cents for one thousand cubic feet; another that the company should furnish free to the city natural gas for light and heat in all city public buildings; another that the company should have the right to shut off gas from any consumer in arrears for a longer period than fifteen days. It appears that the company was charging a minimum rate of fifty cents a month, although no gas was used, and this was enjoined by the court. The company also required citizens to deposit five dollars where gas was installed for the purpose of securing payment of gas bills. It was also adding a penalty of five cents a thousand on all bills not paid by the tenth of the month. These five-dollar and five-cent requirements were by the court held reasonable, and the city appeals.
The familiar means used by public-service companies furnishing gas, water or electricity to secure prompt payment are the requirement of certain deposits, a charge for meter service, a minimum charge, even when no product is used, a penalty for nonpayment and the shutting off of the supply. When the gas company made its contract with the city it was doubtless familiar with these means ordinarily employed to insure the collection of a legal or proper charge, but the only one of these mentioned in the ordinance was the provision that the company should have the right to shut off all gas from any consumer in arrears for a longer period than fifteen days. No mention was made of a deposit, a minimum charge or a penalty for nonpayment.
The agreement to furnish free gas for light and heat in all city public buildings was not shown to have been violated, as the stipulation or admitted facts did not show that the room in question or the portion occupied by the city could rightfully be deemed a city public building.
•Instances of judicial consideration of similar charges have usually been those involving only the reasonableness of regulations by municipalities or other public-service corporations and not, as in this case, the sole matter of contract right. In a general way, the law is settled that such companies are required to supply all patrons without partiality or discrimination, and may make reasonable regulations to insure full and prompt payment, although the courts have differed somewhat as to the reasonableness of certain means employed. - (Shiras v. Ewing, 48 Kan. 170, 29 Pac. 320; Cooper v. Goodland, 80 Kan. 121, 102 Pac. 244; Note, 23 L. R. A., n. s., 410; The State v. The Sedalia Gas Light Co., 34 Mo. App. 501; Albert v. Davis, 49 Neb. 579, 68 N. W. 945; Gas Light Co. v. Cedar Rapids, 144 Iowa, 426, 120 N. W. 966, 138 Am. St. Rep. 299, 309, 310 ; Smith v. Capital Gas Co., 132 Cal. 209, 64 Pac. 258, 54 L. R. A. 769; Note, 61 L. R. A. 112 et seq.; State ex rel. Hallett v. Seattle Lighting Co., 60 Wash. 81, 110 Pac. 799, 30 L. R. A., n. s., 492, and Note; Seaton Co. v. Idaho Springs Co., 49 Colo. 122, 111 Pac. 834, 33 L. R. A., n. s., 1078, and Note; Hatch v. Consumers Co., Ltd., 17 Idaho, 204, 104 Pac. 670, 40 L. R. A., n. s., 263, and Note.) Among the foregoing authorities may be found discussed and decided many phases of the relations and obligations of companies and municipalities supplying to their patrons the products already mentioned. A few decisions more directly in point may be briefly noticed.
In Louisville Gas Co. v. Dulaney & Alexander, 100 Ky. 405, 38 S. W. 703, 36 L. R. A. 125, the charter of the company fixed', the price at “not to exceed one dollar and thirty-five cents for one thousand cubic feet, less a discount of five cents per one thousand cubic feet to all persons, including the city, except as to street lamps, paying their bills within five days after same are due.” (p. 405.) The company attempted to charge a meter rent and to uphold the same as a reasonable rule and regulation intended to apply except to small and infrequent users, but the court said:
“The company can only charge for the quantity it actually furnishes, and, to ascertain what it furnishes it must measure it — how, the consumer does not care, so it is measured correctly. The appellees, therefore, are entitled to have their gas furnished to them already measured; and, for it so measured, they can be made to pay at the price of $1.35 per thousand feet, and no more.” (p. 408.)
It was further said that if the price were not restricted in the organic law of the corporation the question of reasonableness might arise, but that presumably the company was aware when it obtained its charter that there would be small consumers as well as large ones, but that it did not on that account reject the charter or retain the right to add to the price of the small consumer’s bill.
In Capital Gas & Electric Light Co. v. Gains, 20 Ky. Law Rep. 1464, 49 S. W. 462, the contract between the city and the company provided that private consumers should be supplied with gas at a rate not to exceed $2 a thousand cubic feet, and it was held that the company had no right to require payment of meter rent in addition thereto. Evidence of usage so to do was held inadmissible, such usage being inconsistent with the contract.
The appellate division of the supreme court of New York, in City of Buffalo v. Buffalo Gas Co., 81 App. Div. 505, 80 N. Y. Supp. 1093, held that under a statute providing that no gas-light corporation should charge or collect rent on its meters in either a direct or indirect manner, it was unlawful to make or enforce a service charge to the consumer based on the capacity of the meters which it called a minimum gas-service bill, which meant that in the case of- a consumer who did not use up to a certain limit of gas a month a charge would be made outside of that amount fixed for the gas itself. At the close of the opinion it was suggested that the charge was voluntarily fixed by agreement and that it could not have been forgotten when this was done that some people would take so small a quantity of gas that it would make their business undesirable and unprofitable, and “Presumably, as a condition of securing from the municipality certain rights and privileges, a schedule of rates was adopted, which, taking into account the entire business, would yield adequate returns in the way of profits.” (p. 509.)
In Montgomery L. & W. P. Co. v. Watts, 165 Ala. 370, 51 South. 726, 26 L. R. A., n. s., 1190, it was decided that a gas company whose rates are fixed by the municipality can not charge a meter rent when consumption does not reach a certain limited amount each month. It was said in the opinion that the decisions are not in harmony on this question, but that the cases which generally justify such a charge are based upon ordinances or contracts worded differently from the one under consideration, or upon general principles without regard to any contract.
“However, the ordinance constitutes the charter of the company, and the contract between it and the city is for the benefit of the citizens; and the reasoning of the cases which deny such right to the company under like circumstances commends itself to our judgment. ... If the company desired the privilege of charging more in certain cases, it should have had a provision to that effect inserted in the ordinance before it accepted the same.” (pp. 372, 373.)
Phelan v. Boone Gas Co., 147 Iowa, 626, 125 N. W. 208, 31 L. R. A., n. s., 319, involved the right of a gas company to enforce a rule requiring security from unknown or irresponsible consumers before undertaking to serve them, but it appearing that the imposition was not attempted in good faith the reasonableness of the rule was not passed upon. In the case-note (p. 319) it is said to be fully settled that regulations exacting payment in advance in reasonable amounts or deposits for security may be enforced, but the citations are largely of cases in which the matter of abiding by a contract was not an element.
In State ex rel. MacMahon v. Independent Tel. Co., 59 Wash. 156, 109 Pac. 366, 31 L. R. A., n. s., 329, the establishment in the franchise of a telephone company of a maximum monthly rental was held not to prevent its requiring that the rentals be paid in advance and that an additional charge be met if not paid before a specified day each month, the latter provision being upheld as a regulation to insure prompt payment at the established rate, from which portion of the opinion one of the justices dissented. In the note (p. 329) this is said to be the first case in which this question of additional charge has been raised.
With all the well-known means of enforcing prompt payment available for suggestion and adoption the company contracted with the city and accepted its franchise on a basis of charging its consumers no more than the rate specified. By requiring a deposit of $5 from each patron a fund would be created the interest on which would be of value, adding materially to the income arising from the contract rate, and of course an addition of five cents a thousand for nonpayment at a certain time in the month is plainly an additional charge, and while both of such regulations might well be deemed reasonable in the absence of an express limitation, the principle was well stated in City of Winfield v. Water Co., 51 Kan. 70, 32 Pac. 663:
“We hardly see how the water company, by any mere regulations of its own, could impose upon the citizens higher rates for the use of water, or more burdensome terms, than are provided for in the ordinance.” (p. 86.)
This view seems in consonance with the clear terms of the ordinance and finds sufficient support in the authorities to justify the conclusion that the five-dollar deposit and five-cent penalty were improperly required and imposed.
The cause is therefore reversed with directions to modify the decree in accordance herewith. | [
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The opinion of the court was delivered by
Mason, J.:
The Cowley County National Bank held a number of warehouse receipts for grain, issued by the Rawlins-Dobbs Elevator Company, as collateral security for several notes. The receipts were deposited' with the bank to secure notes of the person, firm or corporation to which they were respectively issued, in one instance that of the elevator company, in two that of Rawlins-Beverly & Company, and in two others that of John Rawlins, who appears to have had charge of the business of both these concerns. It developed that the company had not sufficient grain on hand to meet the receipts, and the bank brought an action against the company for the shortage, and against the Title Guaranty & Surety Company as surety upon the statutory bond given by the elevator company for the faithful performance of its duties as a public warehouseman. (Gen. Stat. 1909, § 3347.) The plaintiff recovered a judgment and the surety company appeals.
The court instructed the jury in effect that the plaintiff was entitled to recover the amount unpaid on the notes (not in excess of the bond) if it had proved that it held the receipts as security for a valid and subsisting indebtedness, and had made a demand for the grain. The surety company made no request for different instructions, but contends that other issues raised by its answer should have been submitted.
One of the receipts, signed, like all the rest, by the Rawlins-Dobbs Elevator Company, which was held as security for a note of that company, contained the following language, but no other relating to the ownership of the grain: “Received in storage from, Rawlins-Dobbs Eleva. Co. Fifty-five Hundred and Twenty-five bushels of wheat inspected, subject to the order hereon of The Rawlins-Dobbs Elevator Co.” The surety company contends that this receipt was void because it was issued for goods owned by the warehouseman, without stating the fact of such ownership, in violation of the statute, which reads:
“Warehouse receipts need not be in any particular form, but every such receipt must embody within its written or printed terms — • . . . (h) if the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership.” (Gen. Stat. 1909, §3367.)
The purpose of this provision is thus stated by the Commissioners on Uniform State Laws: “As some abuses have arisen from warehousemen issuing receipts on their own goods, it seemed wise that when they issued negotiable receipts in this way, the documents should carry notice of the fact on its face.” (American Uniform Commercial Acts, p. 187.) Where a warehouse receipt acknowledges the reception of goods from the warehouseman himself, and the holding of them subject to his order, the fact that he is the owner is stated by fair implication — the document carries on its face notice of his ownership, and the purpose of the statute is fully met.
The defendant pleaded that several of the receipts were not issued in good faith or for value, but were issued to take the place of earlier receipts for larger amounts of grain, at the request of the bank, when the original receipts began to appear old, the purpose being to cover up the transactions between the bank and the elevator company; that the new receipts were not given the same date as the old ones, as the law required; and that the indebtedness to the bank was not reduced when the change was made. The evidence shows that in two instances, at the suggestion of the bank, its creditor (in one case being the elevator company) delivered a new receipt (in one case two) bearing a later date, in exchange for the old, the new representing a less value, there being no corresponding reduction of the debt. The statute provides that:
“In cases where a part of the grain represented by the receipt is delivered out of the store and the remainder is left, a new receipt may be issued for such remainder, but the new receipt shall bear the same date as the original, and shall state on its face that it is balance of receipt of the original number; and the receipt upon which a part has been delivered shall be canceled in the same manner as if it had all been delivered.” (Gen. Stat. 1909, § 3352.)
It is not necessary to determine the effect of a failure to comply with this provision, for it does not apply in the situation here .presented. This case is not one where the holder of a receipt obtains a part of the grain for which it calls, and a new receipt for the remainder. Here the owner of a warehouse receipt, which he has deposited as collateral security for his note, by an arrangement with his creditor, substitutes for it another receipt, of a later date and for a smaller quantity of grain. The circumstance that in one instance the warehouse man happens to be the debtor does not change the character of the transaction. There was no implication that the grain represented by the later receipt was a part of that covered by the earlier one. In the instance where the bank surrendered an old receipt for wheat in exchange for two later ones, one of the latter was for corn. The fact that the bank consented to accept less security for greater without a reduction of its claim affords no ground of complaint by the surety company.
The answer alleged in substance that the wheat represented by two of the receipts on which the action was based had, with the consent of the bank, been converted into flour and sold, the proceeds being deposited in the bank and checked out in course of the depositor’s business; that the bank knew that this grain was not in the elevator more than two years before this action was begun, and therefore that the statute of limitations had run. We find no evidence that the bank consented to the conversion of the wheat, or had any knowledge of it at the time, or any notice of it until about eighteen months before the action was brought, when Rawlins, according to his own testimony, told the cashier that the wheat had been milled. Therefore no occasion arose to submit these issues to the jury.
After the jury had been out for about a day they were brought into court and their foreman reported that they were unable to agree. Upon being questioned by the judge as to the character of their disagreement he said that the difference of opinion seemed to be in regard to whether the bank had knowledge that the grain was not back of the receipts. There was some discussion by counsel, and the court gave an additional instruction to the-effect that this matter was not in issue. The defendant maintains that what was said by the plaintiff’s attorney amounted to an argument on the merits, and that the additional instruction should not have been given. We think no prejudice resulted with respect to either of these matters.
The surety company asked leave to amend the answer to conform to the proof offered, by setting out that the grain represented by a part of the receipts had, with the knowledge and consent of the bank, been converted into money which was diverted to various uses (this much being essentially repetition), and that the other receipts were issued when there was no corresponding grain in the elevator, this being known to the bank when it accepted them. The request was refused. In this there was no error. It was within the discretion of the court to refuse to enlarge the issues at that time, but apart from that consideration we discover no substantial evidence supporting the new allegation.
Complaint is made of the overruling of a motion for a new trial on the ground of newly discovered evidence, principally in relation to a financial statement said to have been made to the bank in behalf of Rawlins, Rawlins-Beverly & Company, and the elevator company. The motion, which was verified on information and belief, set out in substance that at the time of the trial the surety company was unable to ascertain the fact that the bank when, it accepted a part of the warehouse receipts knew the elevator company issued them without having any of the corresponding grain; that it afterwards discovered that by reason of the financial statement referred to the bank must have had this knowledge at that time, and must have known that the wheat represented by the other receipts had been milled. We can not regard this showing as sufficient to compel the granting of a new trial. The statute requires that where a new trial is asked on account of newly discovered evidence, “such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses.” (Civ. Code, § 307.) The affidavit attached to the motion, not having been positively verified, was not evidence of the existence or contents of the document referred to. It recited that the statement was still in the possession of the bank, and that the surety company had been unable to procure a copy. No effort appears to have been made to require the production of the statement by subpoena or other statutory method, nor was any competent evidence produced of its existence, or of the information that had been obtained concerning it. The bank in its brief denies all knowledge of it: The statute contemplates that before such a motion is granted legal evidence must be produced sufficient to show that at a new trial a different result would probably be reached. We do not think that condition was met.
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The opinion of the court was delivered by
Mason, J.:
G. F. Dikeman and several sureties executed a negotiable note for $1475 to the Havana State Bank. The note was endorsed before maturity to the First National Bank of Elk City, which brought action upon it. Dikeman filed an answer to this effect: At the time of the execution of the note he claimed that he had previously deposited $625 with the bank, for which he had never received credit; it was agreed between him and the payee that this matter should be investigated, and if his contention proved correct he should be allowed a credit for that amount on this note; and investigation showed this to be the case. The sureties defended on the ground that they had signed the note with the understanding that before delivery another surety should sign it, who failed to do so. The defendants, having the burden of proof, introduced their evidence, to which the plaintiff demurred. The demurrer was sustained and judgment was rendered accordingly. The defendants appeal.
The evidence in behalf of Dikeman showed this: Litigation was pending between him and the Havana bank, to end which, and to settle all matters in controversy, they entered into two written contracts, by which he agreed, among other things, to procure the execution and delivery of the note here sued upon. The plaintiff contends that to allow proof of an oral understanding that under certain circumstances the note was to be subject to a deduction would be to permit a written agreement to be varied by parol. The contention seems well founded.
The evidence in behalf of the sureties was to the effect that they signed the note at the request of Dikeman, with the understanding that it was also to receive an additional signature, which was not attached. The payee was not shown to have, had any notice of this arrangement, and therefore was not affected by it. (Carter v. Moulton, 51 Kan. 9, 32 Pac. 633; Note, 130 Am. St. Rep. 927.)
But in any event, neither defense was available against the plaintiff, which was shown to be a holder of the note in due course, unless that was prevented by evidence tending to show these facts: The cashier of the plaintiff bank, who purchased the note from the payee, was at all times mentioned a director of the Havana bank, and knew at the time of the written settlement referred to that an adjustment was being made in the course of which Dikeman was to give some notes to the Havana bank, and agreed with the Havana bank to handle one of them.
The cashier of the Elk City bank had no actual knowledge of Dikeman’s claim to a credit of $625. The fact that he was a director of the Havana bank might for some purposes be deemed to charge him personally or as an officer of that bank-with constructive notice. But such notice to the cashier did not affect the Elk City bank, because it was not acquired in the course of his agency, and therefore could not have been in his mind when he was transacting the business for his principal. (2 Ene. L. & P. 1191; 31 Cyc. 1587; 1 Mitchie on Banks and Banking, § 116, subdiv. 4; 1 Morse on Banks and Banking, 4th ed., § 108; 16 Dec. Dig., “Principal and Agent,” § 179; 3 Dec. Dig., “Banks and Banking,” § 116 (4) ; see, also, Underwood v. Fosha, ante, pp. 240, 242, 150 Pac. 571; Note, 3 L. R. A., n. s., 444.) The principle invoked is applied to bank cashiers, as well as to other agents. (Scott v. Choctaw Bank, 4 Ala. App. 648, 59 South. 184; Bruce v. Citizens National Bank, 185 Ala. 221, 64 South. 83; Bank v. Garceau, 22 N. Dak. 576, 134 N. W. 882.) In Willard v. Denise, 50 N. J. Eq. 482, 26 Atl. 29, it was said that in any transaction conducted personally by an agent, notice to him, however obtained, binds his principal, the court adding: “The fact that the information had not. been acquired by him in the course of his agency does not militate against the application of the rule in question, when the agent personally participates in the later transaction in behalf of the corporation.” (p. 483.) The authorities cited in support of this statement do not bear it out. The rule proposed would obviously do away entirely with any consideration of what was in the agent’s mind, for this could have no possible bearing, except when he was personally participating in the transaction of his principal’s business. Moreover, except in special cases not necessary to be noted in this connection, it is only in transactions in which he takes part that the agent’s knowledge is ever imputed to the principal.
The fact that the cashier of the Elk City bank knew that the note was given by Dikeman in the course of a settlement with the Havana bank did not charge it with notice of any defect or defense. Knowledge of the consideration for which a note was given does not put a buyer on inquiry, or prevent his becoming a holder in due course. (Leavens v. Hoover, 93 Kan. 661, 665, 145 Pac. 877; McKnight v. Parsons, 136 Iowa, 390, 113 N. W. 858, and cases there cited.) That an agreement for the purchase of the note was made while negotiations for its execution were still pending does not affect the matter.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover a sum of money credited to the plaintiff on the defendant’s books, said to have been misappropriated to the payment of a personal obligation of the plaintiff’s cashier to the defendant. The defendant prevailed and the plaintiff appeals.
The claim of the plaintiff was that its cashier, Brown, undertook to buy shares of the capital stock of his own bank. To enable him to do this the defendant’s president, Dice, authorized him to check on the defendant. The overdraft on the defendant was taken up by Brown’s check on his own account with his own bank. To meet this check Brown gave his personal note, with collateral security, to the defendant in the sum of $3500 and the money was passed to the credit of the plaintiff, the defendant being a depositary of the plaintiff. Subsequently Brown took up the note with a cashier’s check against this deposit. The defendant’s claim was that the stock transaction was .closed when Brown took up his overdraft on the defendant. Brown then desired to increase his bank’s reserve, which was so low that he was required to make reports twice a week to the bank commissioner. To do this he bor rowed the $3500 for his bank and signed the note in his individual capacity in order that his reports to the bank commissioner might not reveal an application by the bank for the loan. The money was passed to the credit of the plaintiff, and on the receipt of Brown’s cashier’s check for $3500 was applied to the payment of the note. The solution of the question, who borrowed the money represented by Brown’s note, Brown or the bank of which he was cashier, was therefore determinative of the controversy. The jury returned the following special findings of fact :
“8. Was the money obtained by Brown from The Merchants State Bank by making to The Merchants State Bank his personal note, money to be used by Brown in his own personal transactions? A. No.
“10. Did not Brown make an application to Dice for an individual loan of $3500? A. No.
“12. Was not the note of $3500, signed by Brown, an individual note of Brown? A. No, made by Brown for Stock Yards State Bank.”
The plaintiff asserts and re-asserts that the findings of the jury are without support in the evidence and are contrary to the evidence. Brown and Dice do not agree respecting the negotations for the loan. Brown was frequently obliged to exercise his privilege to refuse to answer incriminating questions. He made conflicting statements regarding the purpose for which the $3500 loan was obtained, and withdrew some of them. His testimony was unsatisfactory in other respects and there was good ground for the jury to refuse to give it full credence. Dice was abundantly corroborated, and the jury made its choice between the evidence supporting the plaintiff’s claim and the evidence supporting the defendant’s claim.
Some rulings relating to the admission and exclusion of evidence are complained of. A duplicate deposit slip was excluded, but there was no dispute about the ultimate fact to which the evidence related. Speaking of his authority in the conduct of his bank’s affairs Brown was permitted to say, “I take it that their consent was presumed in that.” If the loan were made to the plaintiff to bring up its reserve, consent of the plaintiff’s board of directors was immaterial; if not, the statement was immaterial. The subject of a' custom to make loans to banks on the personal notes of their officers came up. On objection by the plaintiff evidence of such a custom was excluded, but Dice was properly allowed to say that he told Brown it was customary, the statement being a part of the oral negotiations for the loan. The application for the loan was presented to the defendant’s board of directors, and a loan, not to Brown but to his bank, was authorized. Testimony was admitted to the effect that Dice could not make a loan of this size without the approval of his board of directors. The purpose was not to bind Brown or the plaintiff by a limitation on Dice’s authority, but to explain the course pursued.
While not so stated, the plaintiff’s real complaint regarding the instructions given the jury is that the court submitted the defendant’s theory of the case to the jury. In the brief it is said:
“In its instructions, the court overlooked the principle that the note of $3500.00, under the evidence, could not be a bank transaction. First, bec'ause it was only signed by Brown; second, because Brown, to the knowledge of The Merchants State Bank, was buying stock on his own account. This in itself, proved that the matter was an individual transaction.”
In other portions of the brief certain documentary evidence and certain specific facts are referred to as showing conclusively that the loan was a loan to Brown personally. Very clearly the giving of the note could be a bank transaction and could be such without authorization by the plaintiff’s board of directors. The signature by Brown alone was not conclusive, the fact that Brown had been buying stock on his own account was not conclusive, and inferences from the documentary evidence and specific facts appealed to, in harmony with the testimony of Dice and other evidence sustaining the defendant’s contention, were permissible. Under the guise of an attack on the instructions to the jury the plaintiff simply makes another attack on the special findings of fact.
Certain instructions complained of were given at the plaintiff’s' request. The jury were instructed that prima facie the note was Brown’s note. Instructions so framed as to leave to the determination of the jury matters about which there could be no dispute were neither confusing nor misleading. An instruction complained of as leaving to the jury the solu tion of a question of law was doubtless given in an effort to present in a succinct and concrete way the substantial issue in the case. Probably it was not very helpful, but in view of the findings of fact it was perfectly harmless. It is not necessary to pursue the subject of the instructions to the jury further. They were even too elaborate, and none of them was prejudicially defective.
The special findings of the jury are not inconsistent with each other. An answer that there was no evidence that the check- given to reimburse the defendant was an overdraft on Brown’s account was probably returned because of the confusion in Brown’s testimony; perhaps also because of uncertainty as to how far his testimony might be safely followed. But the answer is wholly immaterial since the jury were satisfied that the loan was a bank loan, and so found upon sufficient evidence.
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The opinion of the court was delivered by
Porter, J.:
Plaintiff sued the defendants, who are husband and wife, for merchandise sold and delivered. The case was tried without a jury and the court gave judgment for plaintiff against the husband and judgment for the wife.against the plaintiff for costs. The husband appeals.
His principal contentions are that there was no cause of action stated in the petition against the wife, and that the court should have sustained his motion to strike from her answer everything but the general denial, and that she should not have been permitted to testify in support of the statements in her answer. The petition, however, stated a cause of action against both defendants, notwithstanding the account attached as an exhibit to the petition was charged against the husband alone. The petition alleges that the defendants are husband and wife, and that they bought from the plaintiff and plaintiff sold- and delivered to the defendants the goods mentioned. The separate answer of Mrs. Allen denied that she was personally indebted to the plaintiff in any suin, and alleged that the parties were husband and wife and that she purchased from the plaintiff all of the goods mentioned in the exhibit except two items; that her husband was the head of the family, and that all the goods purchased by her were taken to the home and used by the family; that the goods -were suitable, reasonable and within the rank and means of the husband. She could not well deny the actual purchase of the goods, and she had the right to set up as a defense to the action as against herself that although she purchased the goods the husband, being the head of the family, was liable, and that she was not. Even if the cause had been tried to a jury the objections to her testimony were properly overruled. The plaintiff was well within its rights in offering to show by her that she purchased the goods, the correctness of the account, and that the goods were used in the family. ■ .
We find no merit in the contentions raised in the appeal, and the judgment, being supported by sufficient evidence, is affirmed. | [
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Per Curiam:
The defendants’ motion to modify the judgment and to order a retrial of certain issues raised by the answer and cross-petition is allowed in part and denied in part. None of the issues respecting the title to the real estate is to be retried, but the cause will be remanded with directions to enter judgment in plaintiff’s favor and to determine the rights of defendants, if any, to a lien for taxes. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The only question presented in this appeal is, Has a municipal corporation power to pass an ordinance providing a different and higher standard for milk sold or kept for sale in a city than is provided in a state regulation, and to fix a greater penalty for the violation thereof than the penalty prescribed for a violation of the state law?
In a complaint filed in the police court of the city of Kansas City on July 15, 1914, John Henre was charged with having sold and delivered milk “which milk contained less than twelve per cent of milk solids, and which contained less than three and one-fourth per cent of butter fat in violation of section No. 3 of ordinance No. 4375 of the ordinances of said city of Kansas City.”
On an appeal to the district court defendant moved to quash the complaint because it did not state an offense and because the ordinance was in violation of a state law and void, but he was overruled. He was found guilty, and overruling his motion in arrest of judgment the court sentenced him to pay a fine of $100. He appeals.
The state law provides against the selling, keeping for sale or offering for sale adulterated or misbranded articles of food, drug or liquor and fixes a penalty of $50 for each violation, or imprisonment in the county jail not exceeding one year, or both fine and imprisonment. (Gen. Stat. 1909, § 3076.) It also gives the state board of health power to make and publish uniform rules and regulations fixing food and drug standards and provides a penalty of - $50 for violation of such rules and regulations or imprisonment for six months, or both, in the discretion of the court. (Gen. Stat. 1909, § 3077.) The state board of health has published as the standard for milk that:
“Milk is the fresh, clean, lacteal 'secretion obtained by the complete milking of one or more healthy cows, properly fed and kept, excluding that obtained within fifteen days before and five days after calving, and contains not less than eight and one-half (8.5) per cent of solids not fat. and not less than three and one-quarter (3.25) per cent of milk fat, and contains no preservative,’ added water, or other foreign substance.” (Kansas State Board of Health Regulation No. 35, subdiv. B. (a.-l.).)
The city ordinance provided:
“Section 2. No milk or cream shall be sold, kept for sale, offered for sale, or delivered within said city, which is taken from cows within fifteen (15) days before or ten (10) days after parturition, nor shall any such milk or cream be mixed with any milk or cream for the purpose of sale.
“Section 3. No milk shall be sold, kept for sale, or offered for sale or delivered within said city, which contains less than twelve (12) per cent, of milk solids or which contains less than three and one-fourth (3%) per cent, of butter fats, etc.
“Section 14. That any person, firm or corporation who shall violate any of the provisions or requirements of this ordinance, shall be deemed guilty of a misdemeanor, and shall be upon conviction, punished by a fine of not less than Ten ($10.00) Dollars nor more than One Hundred ($100.00) Dollars for the first offense, and for a second or any subsequent conviction, shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars."
This ordinance was enacted and became effective July 11, 1908. Its validity is attacked on the ground that it is in excess of the power granted to the city and that it conflicts with a state regulation upon the same subject. As has been seen, the city fixes a higher standard of food value than does the state in that it provides that the milk sold shall contain twelve per cent of milk solids while the state provides for eleven and three-fourths, and the proportion of butter fat required is the same in both. The difference in the standards fixed is not great but it is substantial, and the question arises whether the city can prescribe higher standards and greater restrictions in the sale of milk than the state prescribes and may impose a more severe penalty for the violation of the ordinance than is annexed by the state for a violation of the statute. The power of the city in this respect is derived from the state and is only such as is clearly conferred by statute. Kansas City has adopted the commission form of government and the legislature has authorized such cities to enact ordinances for all named purposes not repugnant to the constitution and laws of the state. One of the purposes specifically named is to make regulations to secure the general health of the city. (Gen. Stat. 1909, §§ 1243, 1278.) The ordinance regulating the sale of milk comes clearly within the power so conferred, and unless it conflicts with the statutes or constitution or is clearly unreasonable it-must be upheld. It is well settled in this state that where power is conferred upon cities to enact ordinances for the preservation of peace and good order within the city or for the preservation of the health of its inhabitants it may be exercised although the legislature has provided state regulations on the same subjects. (Franklin v. Westfall, 27 Kan. 614; Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, 10 L. R. A. 520; In re Thomas, Petitioner, 53 Kan. 659, 37 Pac. 171; In re Jahn, Petitioner, 55 Kan. 694, 41 Pac. 956; Assaria v. Wells, 68 Kan. 787, 75 Pac. 1026.) An ordinance may not be enacted which conflicts with or will operate to nullify the state law. (Assaria v. Wells, supra; In re Van Tuyl, 71 Kan. 659, 81 Pac. 181.) A city may not by ordinance authorize that which a statute prohibits nor punish the doing of an act which the statute expressly authorizes, but, as we have seen, it is competent for a city, under the authority of the legislature, to provide that an act shall be an offense against the authority of the city although the same act is made an offense against the state. An ordinance enacted in the exercise of the police power is not necessarily inconsistent with a state law on the same subject because the city provides for greater restrictions or makes higher standards than is provided or made by the statute. (Walker v. Railway Co., 95 Kan. 702, 149 Pac. 677.) Nor is an ordinance repugnant to a statute merely because the penalty prescribed is greater than is fixed by the statute for the commission of a like offense. (Minneola v. Naylor, 84 Kan. 147, 113 Pac. 309; Stark v. Geiser, 90 Kan. 504, 135 Pac. 666.)
It is argued that regulations of the kind in question should be uniform and that there is no good reason for prescribing different standards of milk in a city than are generally provided for the people of the state. As was noted in Walker v. Railway Co., supra, it may be necessary to make additional requirements and stricter regulations and to impose more severe penalties in a congested district like a city than are made and enforced in a rural district. In Town of Neola v. Reichart, 131 Iowa, 492, 109 N. W. 5, this question was under consideration, and it was held that municipalities are warranted in making other and greater restrictions than are provided for the state at large, the court saying:
“They are in many respects local governments established to aid the government by the state. The necessity of their organization may be found in the density of the population of localities and the conditions incidental thereto. Because of this, regulations peculiar to a particular community have proven essential to the accomplishment of its objects. Many acts are far more injurious, and the temptation to commit them much greater, in such localities than in the state at large, and, when done, are not only wrongs to the public at large, but additional wrongs to the corporations within which, perpetrated. When made penal by both state and city or incorporated town, each becomes a separate offense against the state and against the municipality. The penalty imposed by the city or town is superadded to that fixed by statute on account of the additional wrong done, so that the wrongdoer is not punished twice for the same offense, but for two offenses arising from the same act.” (p. 497.)
A case quite closely in point was determined by the supreme court of California. An ordinance was enacted regulating the sale of milk in Los Angeles and' fixing standards of purity which differed to some extent from those prescribed by the statute. It was contended there that as the standard fixed by the ordinance differed from that prescribed by the state the ordinance must be held to be invalid. The court decided that the mere fact that the state had prescribed certain regulations did not prohibit a city from making other and additional regulations, and that so long as there was no real conflict between them and the provisions of the ordinance were not in themselves unreasonable both .the statute and the ordinance might be enforced. It was said that there might be ground for a claim of conflict if the ordinance authorized the sale of milk of lower standard or a less percentage of milk fat than was exacted by the state, but having in view the conditions existing in a city higher standards or additional requirements might be legally enforced. It. was said:
“The state in its laws deals with all of its territory and all of its people. The exactions which it prescribes operate (except in municipal affairs) upon the people of the state, urban and rural, but it may often, and does often happen that the requirements which the state sees fit to impose may not be adequate to meet the demands of densely populated municipalities; so that it becomes proper and even necessary for municipalities to add to state regulations provisions adapted to their special requirements.” {In re Hoffman, 155 Cal. 114, 118, 99 Pac. 517.)
There is a conflict in the authorities on the question involved here, but under the view which has been taken in this state the additional regulations and the superadded penalties are not repugnant to the state statute nor can they be deemed to be unreasonable. An elaborate note upon the question showing the course of judicial decision, depending to a great extent upon the statutes and constitutions of the different states, may be found in 17 L. R. A., n. s., 49.
It is further said that, the evidence does not support the conviction but it appears to be sufficient to show a violation of the ordinance.
The judgment is affirmed. | [
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Johnston, J.
Charles R. Cooper, who was a little over 11 years of age, had his foot crashed while climbing between the cars of a freight train which was standing upon the crossing of National Avenue — a street in the city of Fort Scott. The Marmaton River runs through Fort Scott, and the portion of the city north of the River, and called North Fort Scott, contains about 1,000 inhabitants. The only street upon which there is a bridge, and which connects North Fort Scott with the rest of the city, is National Avenue ; and near the point where it crosses the railroad is the railroad station. In 1882, a local freight-train was run between Parsons and Fort Scott, reaching Fort Scott about noon and leaving there for Parsons about 5 : 30 o’clock in the evening. Just before departing on the evening of June 17, 1882, the train was left wholly or partly across National Avenue ; and Charles R. Cooper, who lived with his parents in North Fort Scott, came up at that time with a view of crossing. When he reached the train he hesitated a little and then went between the cars ; and just as he climbed upon the coupling the train was slightly moved, causing the injury for which a recovery is sought. He brought this action, by his next friend, alleging that the Railway Company had been in the habit of blocking the street by standing its trains across the same for from 30 to 40 minutes at a time ; that it was a common occurrence for persons to climb through between the cars of the train at that crossing; that the plaintiff, being a minor and having only the judgment common to persons of his age, attempted to climb through between the cars, as he had seen others do ; and that, while climbing over the couplings and using as much caution as possible, the train was wantonly and carelessly started by those in charge of it, causing the injury complained of. A jury trial resulted in a verdict in favor of the minor, awarding damages in the sum of |5,000.
The first error assigned is the refusal of the Court to require the plaintiff below to give security for costs. An affidavit was made by the plaintiff as well as by his next friend to the effect that the cause of action set forth in the petition was just, and that by reason of his poverty plaintiff was unable to give security for costs. This was in compliance with the provisions of sections 581 and 582 of the Civil Code, which apply as well to in fant plaintiffs as to adults ; and hence no bond for costs was required.
It is next contended that the action of the plaintiff' was barred by the Statute of Limitations. The action was brought by the plaintiff while he was yet a minor, but not until nearly 10 years after the injury was received. The contention is, that a cause of action accrued in favor of the plaintiff by his next friend at the time of the injury, and that after the lapse of two years the action by the next friend became barred. The Code specifically provides that the Statute of Limitations will not bar an action of this character while the person entitled to bring it is a minor or under other legal disability. Every such person is entitled to bi’ing the action within one year after the disability is removed. Civil Code, § 1.9. The benefit intended to be conferred by this statute is not lost by the institution of an action during minority or before the disability has, been removed.
Another contention is, that the petition is insufficient in failing to state that the action was prosecuted by the next friend for the benefit of the minor. It is said that the allegations are, in form, those of the minor himself; and that no reference is made to the next friend in the petition except in the title. The objection is technical and without merit. The cause of action, if any, accrued in favor of the minor for whose benefit the next friend acted. In form, the averments of the petition are those of the plaintiff, the real party in interest, and it shows clearly that the action is brought through the next friend and in favor of the minor.
There is some contention that the proof fails to show that National Avenue, formerly called Jones Street, was a-street or highway of the City. An examination of the record discloses the case was tried throughout by both parties upon the assumption that National Avenue was a street; and, more than that, there is an express admission that it is the principal thoroughfare from North Eort Scott into the main part of the City. Under these circumstances it is too late to object that no specific proof was offered of the manner in which the street was established.
Complaint is made of the admission of testimony to the effect that the Railroad Company had previously obstructed the street by leaving its trains standing across the same, and that persons had frequently passed between the cars, over and under the couplings. These circumstances may have influenced the infant in attempting to climb between the cars and in assuming the risk and peril of the undertaking. The testimony might also be received as tending to show that those in charge of the train were acquainted with the practice, and were, therefore, required to exercise a higher degree of care than if they had been unaware of such practice. It was necessary, however, to limit it to a brief time before the occurrence in question.
There is good reason to complain, however, of the testimony of Newberry, who was acting as city marshal at the time of the injury. He was permitted to give complaints made by others to him as city marshal concerning the Railroad Company leaving its trains standing across the street. .This was dearly hearsay testimony. And, worse than that, he was allowed to state that the standing of trains across the street was a violation of a city ordinance. There was no averment in the petition that the Railroad Company had violated a city ordi nance, nor was any city ordinance introduced in evidence. If an ordinance of the City was actually violated and proof of the existence of such ordinance was admissible, it could not be established in that way. Objection to the testimony was seasonably-made, and the overruling of the same was clearly erroneous.
The effort to climb over the. couplings of cars in a train to which a locomotive was attached was an exceedingly reckless act, even for a boy 11 years of age. The Company had no right to unnecessarily obstruct a public street. The moving of cars across the street, or a temporary stopping of a train upon the street in the ordinary course of business, is permissible; but there is testimony that this train was frequently allowed to stand across the street for a needless and unreasonable length of time. The obstruction of the street, however reprehensible it may have been, is little excuse, for a person who possesses discretion and capacity, to climb through between the freight cars of a train to which a locomotive is attached, steamed up and ready to move. The plaintiff, although an infant, was required to exercise due care, to be measured by his age, intelligence, and the facts surrounding him. But, granting that he was negligent, the Company could not escape liability for wantonly and willfully injuring him. The case was tried upon the theory that the plaintiff below was himself negligent in attempting to cross between the cars, and, hence, the trial court instructed the jury that he could not recover unless the injury was willfully or wantonly inflicted. This ruling was accepted by the parties as a correct statement of the law, and will be treated here as the law of the case. The contention of the Company is that the testimony does not sustain the verdict; and we are required to determine whether there is testimony tending to show that the injury was wantonly or willfully inflicted by the Company. If those in charge of the train had knowledge of the presence and position of the boy between the cars, the starting of the train might be regarded as gross negligence. The liability of the Company for starting the train would be measured by the conduct of the employes after they became aware that Cooper was in peril, or that he and other persons were then climbing through between the cars. C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347; K. P. Rly. Co. v. Whipple, 39 id. 539; A. T. & S. F. Rld. Co. v. Plaskett, 47 id. 107; A. T. & S. F. Rld. Co. v. Todd, 54 id. 551.
We are unable to find testimony which fairly shows that those in charge of the . 0 tram were aware that Cooper was making the- hazardous attempt of climbing between the cars, or apything which evinces a reckless disregard for human life or intention to inflict a willful injury. Although some of the trainmen were close to the train, no testimony is offered which shows that the presence of Cooper was observed or that they had actual knowledge that he or any one else was between the cars. In the absence of testimony of such knowledge we cannot hold that the evidence warrants the finding of the jury that the train men were guilty of such gross negligence as amounts to wantonness or an intention to inflict the injury.
For these reasons the judgment will be reversed,, and the cause remanded for another trial.
All the Justices concurring. | [
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Johnston, J.
This was an action brought by E. S. Quinton to recover $3,500 from The Kansas National Bank as for money had and received. Quinton was engaged by the Topeka Rapid Transit Railway Company to perform legal services, and obtain right of way and some franchises for the Company in the city of Topeka. J. B. Bartholomew, the president of the company, agreed to pay Quinton $3,500 for the services mentioned. Quinton demanded that provision be made in advance for the payment of his services, and they went together to-The Kan'sas National Bank where an arrangement was made, the nature of which is a matter of dispute. Some negotiations were had with L. L. Turner, who was vice president and acting cashier of the Bank, and, Quinton claims, and testified, that an arrangement was made by which $3,500 was placed on deposit in the Bank by Bartholomew which was to be paid by the Bank to him when the work for which he was employed was done. This arrangement was made in April, 1890, and in December, following, when the work was completed for which Quinton was employed, he went to the Bank and demanded the money in accordance with the arrangement previously made.
On the part of the Bank it is contended that no agreement was made whereby it became responsible for the payment of the debt, and it is denied that it ever represented, either by Turner or any one else, that there was $3,500 on deposit in the Bank to be paid to Quinton. Its claim is that, when Bartholomew and Quinton came to the Bank, a note for $3,-500 was discounted and the money was placed on deposit to the credit of Bartholomew, and that the Bank never assumed any obligation to pay money to Quinton.
The main controversy between these parties .arises upon the testimony, which is in direct conflict, and this has been determined by the jury in favor of Quinton. The findings of the jury are conclusive in this Court, if there is any competent evidence to sustain them. Without entering upon a detailed review of the testimony, we are satisfied that the evidence offered by and in favor of Quinton fairly tends to support the verdict by the jury that the money was provided and placed in the Bank to be paid to Quinton when the work was done. It also shows that the transaction was with the Bank, rather than with Turner as an individual. It is true, that Turner did not mention the Bank when he said that the money was up, but all the testimony tends to show that it was a bank rather than an individual transaction. Even the testimony offered in behalf of the Bank is in the same direction. Bartholomew testified that he made the arrangement with the Bank, and had a note discounted there for the purpose of providing money to pay for Quinton’s services. That the services were performed by Quinton in accordance with the arrangement, that the amount of $3,500 was to be paid to him for such services, and that that amount was arranged for in the Bank, is beyond dispute. Whether the money was placed there to be drawn by Quinton when the services were performed, or only placed there as a credit to Bartholomew, is the point in controversy; and this, as we have seen, has been determined in favor of the plaintiff below.
Objections were made to statements made between Quinton and Bartholomew, before they went to the Bank, where the final arrangements were made ; but as these were merely preliminary, and tended to explain the contingency upon which the money was to be paid over to Quinton, their admission cannot be regarded as prejudicially erroneous.
There is a further contention that the arrangement made for the deposit and payment of the money was one which was beyond the power of the Bank to make. We find nothing substantial in this contention. It was an ordinary bank transaction. There was a discount of the paper .of Bartholomew, and a deposit of the proceeds in the Bank to be disbursed by the Bank when certain things were done. The disbursement of a deposit upon a contingency is a matter incidental to the business of banking, and the arrangement was one which the cashier or managing officer was authorized to make.
Complaint is made of the refusal of the Court to allow the Bank to show that payment of Quinton’s claim had been made. The petition of the plaintiff briefly alleged that the liability arose for money had and received for the plaintiff at a certain time, and the answer of the defendant was a general denial. It would hardly be consistent in the defendant to deny having received the money, and, at the same time, set up the defense that it had paid the same; but there was in fact no offer or attempt on the part of the Bank to show that it had paid the debt, but it proposed to show that payment had been made by one who was not a party to the action. In the absence of an averment of that fact in the answer, proof that the debt had been paid by Bartholomew, or any one other than the Bank, was not admissible. The answer being a general denial, the plaintiff could not anticipate such a defense as that. He could not anticipate that an effort would be made to prove payment by an outside person, not for or on account of the Bank or at the instance of the Bank. There is no claim that the money had been paid to Quinton by the Bank or any of its officers, or by any one in its behalf, nor that the obligation, which it had assumed when the money was received, was discharged by it. As the pleadings stood, the Court ruled correctly in excluding this testimony. The charge of the Court fairly presented the case to the jury, and we discover nothing in the record which requires a reversal of the judgment; it will, therefore, be affirmed.
All the Justices concurring. | [
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Johnston, J.
In the latter part of 1884 C. A. Nelson and N. B. Weedon, partners as Nelson & Weedon, rented a building from E. F. Ware in which to conduct the grocery business. A written lease was executed which stipulated that the tenancy should continue for one year at a monthly rental of $65, payable monthly in advance. About a year later the parties agreed to continue the lease for the year 1886, and an indorsement to that effect was made thereon.' At the end of that year it was verbally extended for the year 1887 ; and they continued to hold over from year to year until the end of 1891. The rent was reduced in 1888, and after that no change was made in the rent, and the tenants continued to occupy the premises without any special renewal or further agreement respecting the lease. In December, 1891, Nelson & Weedon asked for a further reduction of the rent, and before the negotiations concerning a reduction had been concluded, and on December 15, 1891, they gave Ware written notice that they would quit the building at the end of the year. Before December 31, 1891, they moved out, and on that day they attempted to deliver the keys to Ware, but on account of his absence from home they were unable to do so. The keys were actually delivered on the next day, and since that time they have treated the relation as severed and have refused to pay any rent. Ware claimed that the lease had not been terminated by the tenants, and that they could only do so by giving him three months’ notice of their purpose to quit. This is the controverted point in this action, which was brought to recover rent for the first three months of the year 1892.
Under the facts stated it must be regarded as a tenancy from year to year ; and upon this proposition all the parties are agreed. How may such a tenancy be terminated? and is the lessor entitled to any notice? In the absence of an express agreement or a statute regulating the termination of such a tenancy, due notice to either party from the other is ordinarily required in order to sever the relation of landlord and tenant. Under the common law six months’ notice is required to determine a tenancy from year to year; but in most of the states the character and time of the notice are regulated by statute. Where the common law rule obtains it is generally held that notice is a reciprocal right, and that neither landlord nor tenant can sever the relation or deprive the other of his rights under the tenancy without due notice. We cannot apply that rule here, as it has been superseded by a statute which expressly specifies how such a tenancy may be terminated. It reads: “All tenancies from year to year may be determined by at least three months' notice, in writing, given" to the tenant prior to the expiration of the year.” ¶ 3614, Gen. Stat. 1889. The language of the statute is clear and unequivocal in defining what is necessary to determine a tenancy from year to year; and the only requirement is a written notice for at least three months to the tenant. In effect, it dispenses with notice to the landlord, although the lack of notice must operate as an injustice to him in many cases. It is an explicit statute, however, which covers the subject and leaves no room for construction. It was a question of policy for the Legislature to decide, and, its meaning being obvious, we have no other duty to perform than to carry out the legislative will, regardless of our own views of the wisdom or justice of the statute. It- appears that the matter of notice to the landlord did receive legislative consideration, as the section immediately preceding the one quoted provides that if either party desires to terminate a tenancy at will or for terms of three months or less he must give the other notice. Why an exception was made of a tenancy from year to year is not easy to understand, but we are not permitted to supply the omission or to give the statute a meaning not justified by any language employed in it. The character and time of notice necessary to terminate any tenancy by either party may be fixed by express agreement, and when so fixed the agreement will control. No notice being required in this case, the landlord was not entitled to recover rent after possession of the premises was surrendered. The possession appears to have been yielded at the end of the year 1891, and up to that time the rent was paid.
The judgment of the Court of Appeals will, therefore, be reversed and the judgment of the District Court will be affirmed.
All the Justices concurring. | [
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Allen J.
The first question in this case arises on the ruling of the Court of Appeals dismissing the petition in error. The objections to the record are : “That it shows no waiver on the part of counsel for plaintiffs of the suggestion of amendments, does not show that amendments were not suggested, and shows that the case-made, without amendments, was presented to the trial judge for signing and settling, and does not show that attorneys for the plaintiffs were present at the time the case-made was settled.” The motion for a new trial was overruled September 28, 1891. The defendants were given 60 days to make and serve a case, and the plaintiffs 20 days thereafter to suggest amendments. The case was served on plaintiffs’ attorneys on November 24. On December 24, which was after the time for suggesting amendments had expired, the following waiver was written on the case and signed by plaintiffs' attorneys : “We hereby consent that the foregoing case-made may be presented to the Hon. M. G. Troup, Judge of the above-named Court, for allowance and settlement this 24th day of December,1891, hereby waiving any notice of the time and place for such settlement.” Thereupon, on the 24th of December, the case was signed by the Judge, who certified, among other things, “ that said case-made is a true, full, and correct case-made in said cause, and is signed and allowed by him as such.” If the plaintiffs had any amendments to suggest, their time for suggesting them had expired. They consented that the case might be presented to the J udge on a day named, and waived any notice of the time and place. This clearly conferred authority on the judge to proceed in their absence and settle the case. If they had suggested amendments it was their duty to attend at the time of settlement and see that they were duly considered by the judge. We are not to presume either that they did, or did not, suggest amendments ; or, if they did suggest them, that'the amendments either were, or were not, incorporated in the case-made. The judge, at the time stated in the waiver, did sign the case, and certify that it was true, and the plaintiffs were bound under their waiver by whatever he did. The form of the certificate is sufficient. A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567; Mudge v. National Bank, 56 id. 353. The Court of Appeals erred in dismissing the case.
The grounds relied on to avoid the sale were : That the order of sale was prematurely issued; that the purchaser, being the administratrix of her deceased husband’s estate, was incapacitated to purchase, and that the sale was for an inadequate price. The order of sale was not prematurely issued. More than six months had elapsed from the date of the judgment against the Harnleys foreclosing the mortgage. This judgment was rendered on the 1st of February, and the order of sale was not issued until the 11th of August. The period of the stay begins to run from the date of the judgment directing the sale. Geuda Springs Town and Water Co. v. Lombard et al., ante, p. 625, 47 Pac. Rep. 532. The judgment against the Hill estate, subsequently rendered, was a judgment for money. Hill’s executors claimed no title to, or interest in, the mortgaged property. There was no occasion for a foreclosure as against them, for a full title to the mortgaged property could have been made without Hill’s executors being parties to the suit. Their only interest in the foreclosure and sale* of the mortgaged property was in protecting their estate from liability on account of Hill’s indorsement of the note.
The purchaser at the sale, La Quincy Phillips, occupied a fiduciary relation to creditors and distributees of the estate of James Phillips. As between heirs and persons interested in that estáte she could not, to their detriment, speculate with funds belonging to the estate, but toward the Hill estate she occupied no relation of trust or confidence. They are in no position to charge her with violation of her trust. A purchase by an executor or administrator under toreclosure or a mortgage due the ° ° estate is not absolutely void as against the whole world, whether the purchase be in his individual name or as executor or administrator. Merket v. Smith, 33 Kan. 66; Beck v. Uriah, 16 Pa. St. 499; Perry, Trusts, § 127 et seq.; Briggs v. Railroad Co., 56 Kan. 526. This leaves but one remaining ground of attack — that of inadequacy of price. The property was sold for $150. There is evidence tending to show that it was worth $1,200. At the trial the plaintiffs offered in open court to bid the full amount of the judgment against the Hill estate at a resale of the property. Mere inadequacy of price, taken alone, is generally held insufficient ground for setting aside a sheriff’s sale. Means v. Rosevear, 42 Kan. 377 ; Babcock v. Canfield, 36 id. 437 ; Jones v. Carr, 41 id. 329. But where application for relief is made in due time by motion to set aside the sale, or in resistance of the motion to confirm, gross inadequacy of price is a circumstance of great weight, when taken in connection with other irregularities, if not of itself sufficient to warrant the setting aside of the sale. This, however, is a matter directly involved in the conduct of the sale by the sheriff. In this case a motion was filed to confirm the sale, and one of the counsel for the. plaintiffs testified that he saw the motion and learned of the sale before the confirmation. No reason was shown at the trial why this question could not have been properly presented when the motion to confirm the sale was heard. The question of price obtained at the sale is always one of the circumstances to be considered by the court in confirming or setting aside a sale, and the'order entered confirming 7 0 this sale was an adjudication against the on tlie question of inadequacy of price. They could not thereafter maintain an independent action to retry matters necessarily involved in the confirmation of the sale. Cross v. Knox, 32 Kan. 725 ; Capital Bank v. Huntoon, 35 id. 577. Errors committed by tbe trial court on motions to confirm or set aside judicial sales may be reviewed in this Court; and the plaintiffs appear to have had a full opportunity to contest the sale in the usual andl ordinary manner in the trial court, and might by petition in error have had its action reviewed here in a direct proceeding in the original action. Though this is, in one sense, a direct attack on the sale, it is an attack by an independent action, which leaves the order confirming the sale as an adjudication of every matter then presented to the court, or which ought to. have been presented for its determination. Though, there were some averments of fraud in the petition., they were not sustained by the proof, nor was there-any finding by the court of any such fraud.
The judgment .is reversed, and the case remanded, for a new trial.
All the Justices concurring. | [
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Johnston, J.
The most important exception urged by the appellant for reversal was taken upon the refusal of the Court to charge the jury upon the defense of insanity. Testimony tending to show mental derangement and incapacity was offered and received, but the Court, though requested to do so, declined to submit the question or take the opinion of the jury thereon. It appears that soon after the tragedy Newman was found lying on his back, moaning, and apparently in great agony ; and there was also testimony that he was in a dazed condition, as if he did not know what he was doing. The shocking discovery of an adulterer in the house with his wife, the mother of his three children, would naturally cause tremendous excitement and mental disturbance. Hoover had gone into the home of Newman for the purpose of having sexual intercourse with his wife, but what their situation was when found, or whether taken in the act of adultery, does not appear. Knowledge of his wife’s shame, or even the discovery of his wife in the lustful embrace of Hoover, afforded Newman no excuse or justification for killing Hoover. Such a discovery, as the Court properly advised the jury, might be considered by them in determining the degree of the offense of which the defendant was guilty, if guilty of any, but could not of itself justify or excuse the killing of the deceased. However, the shock and mental disturbance, necessarily caused by such discovery, might be considered in connection with the testimony that Newman was dazed and appeared not to know what he was doing. It is argued that preparation for the difficulty, and the recollection of the occurrences by Newman, are inconsistent with the idea of actual insanity. It is true that the testimony of men tal incapacity is not strong, and possibly the jury might have readily concluded that it was insufficient to relieve Newman of responsibility for the homicide. The testimony upon this question related to his con-, duct after the homicide ; and, of course, it is without effect unless it appears that insanity existed at the time the alleged offense was . _ committed. In such case, however, the acts and conduct of the defendant shortly before or after the homicide may be shown in order to determine his mental condition at the time. The testimony was received by the Court; and whether it was strong or weak, whether it was sufficient or insufficient to show insanity, were questions for the determination of the jury. In such cases, testimony of claimed mental disorder should be carefully scrutinized and weighed; but the province of estimating the weight of the testimony belongs to the jury rather than to the Court.
In denying the defendant’s request for an instruction, which appears to have been drawn in proper form, the Court undertook to estimate the weight of the testimony, and clearly trenched upon The testimony does not reveal the details of the the functions of the jury. homicide, but there is abundant evidence of a terrible struggle in and about the house. The door had been broken open, the ceiling of the kitchen had been scraped by a gun or pistol barrel, two shots had been fired into the walls, blood was found in several places as well as upon the door-casing, and the hinge of the door was bloody and bent. Who began the struggle, who was the aggressor in the fight, or what occurred immediately prior to the killing of Hoover, can only be surmised. The testimony is very meager, and unsatisfactory in some respects, but, in view of the statements alleged to have been made by the defendant, we regard it to have been sufficient to take the case to the jury. The claim that the verdict is without support cannot be sustained. The testimony was largely circumstantial, however, and it was therefore vitally important to the defendant that the jury should be fully and fairly charged upon all the issues in the case.
A number of other exceptions were taken to the rulings upon the instructions, but, except the omission of an instruction upon the subject of insanity, we discover no cause for complaint. In every other'respect the charge appears to cover the testimony in the case and to fairly present the law applicable to the facts upon which proof was offered.
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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Allen, J.
The Citizens’ Bank of Wichita brought suit against Grant A. Hatfield and wife and James McKinstry and wife on a note for $3,148 and interest, and to foreclose a mortgage on certain lands therein' described, alleged to have been executed by the defendants Hatfield and wife, in person, and by the defendants McKinstry and wife, by W. R. Colcord, their attorney in fact. McKinstry and wife answered alleging ownership of an undivided half of the lands described in the petition, but denying the execution of the note and mortgage and the authority of any person to execute such note and mortgage for them. The plaintiff claimed the note and mortgage by assignment from Butler & Fisher. Hatfield and wife answered pleading a judgment in a former action brought by Butler & Fisher to foreclose the same mortgage. The case was tried before the Court without a jury. It was admitted at the trial that on and prior to March 15, 1897, Butler & Fisher were the owners of the property covered by the mortgage. It was shown by the evidence that on that day they sold the land to Hatfield and Colcord, claiming to act on behalf of McKinstry ; that Butler & Fisher executed a deed to Platfield and McKinstry, conveying the land to them for an expressed consideration of $8,148. Of this sum it appears that $5,000 was paid in cash, and the mortgage in suit was executed for the balance. Colcord held a power of attorney from McKinstry and wife to sell and convey all real estate held by them in Sedgwick County. The power of attorney does not in terms authorize the execution of notes or mortgages. On the 20th of October, 1887, Hatfield and wife executed a deed to McKinstry for the undivided half of a certain part of the land, covenanting against all incumbrances, except one-half of a $3,148 mortgage and interest, and Colcord, as attorney in fact for McKinstry and wife, executed to Hatfield a deed conveying to him the undivided one-half of another part of the land, covenanting against all incumbrances except the $3,148 mortgage. At the trial McKinstry testified that he claimed the land, and had no source of title other than the deed from Butler & Fisher. The Court found in favor of the plaintiff that there was due from the defendant the sum of $2,114.41, which was a lien on the lands in controversy, and rendered judgment foreclosing the mortgage.
The contention of the plaintiff in error is that Col-cord was never authorized to execute the note and mortgage and that it is therefore void; that in this State there is no such a thing as a vendor’s lien for purchase money, where no writing is duly executed securing it; that the power of attorney by its express terms authorized Colcord only to sell and convey the lands of McKinstry, and that parties dealing with him were chargeable with notice of the limitations of his authority as defined in the power of attorney.
We are not furnished any brief by the defendant in error, nor has any oral argument been made in its behalf. It is apparent, however, that the plaintiff in error seeks to retain the benefit of the contract made in his behalf by Colcord and to repudiate the burden. This he cannot do. He must either accept or reject the transaction as a whole. If he retains the land, as by his answer he claims the right to do, he must pay for it according to the terms of the contract under which he got title to it. This is in accordance with the plainest and best established principles of equity. The plaintiff cannot ratify so much of the transaction as is beneficial to him and reject so much as is burdensome. An entirely different question would be presented if, when informed of the contract, he had tendered a reconveyance of the land and demanded a return of the purchase money. Nothing of this kind was attempted. The deed itself, under which he claims, shows the consideration paid to have been $8,148. There is no claim that more than $5,-000 was paid in cash, and Hatfield and Colcord, who assumed the right to act and did act in McKinstry’s behalf, executed the mortgage in controversy for the balance. Conceding that the mortgage was utterly void when executed so far as McKinstry was concerned, when he accepted the conveyance of the land and asserted title to it, he ratified everything that his unauthorized agent had done of which he ivas informed when he so accepted the title.
The judgment is affirmed.
All the Justices concurring. | [
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Martin, C. J.
A complaint was filed against- the defendant in the Police Court of Kansas City, Kansas, June 1, 1895, the body of which reads as follows :
“J. A. Walsh complains of F. C. Grubel, and, being duly sworn, on oath says, that the said F. C. Grubel, on the 26th day of May, 1895, the same being the first day of the week, commonly called Sunday, did unlawfully keep open after 10 o’clock a. m., on said day a certain place of business for the purpose of doing business therein, at number 532 Minnesota Avenue, in city of Kansas City, Wyandotte County, Kansas, and then and there, and after 10 o’clock a. m. of said day, did expose for sale therein, goods, wares, and merchandise, the same then and there not being drugs, medicines, or articles of immediate necessity, in violation of section No. 31 of Ordinance No. 793, of the ordinances of said city of Kansas City.”
The section referred to is as follows :
“Sec. 31. Any person who shall keep open any place of business, or sell or expose for sale on the first day of the week, commonly called Sunday, after 10 o’clock a. m., any goods, wares or merchandise, other than drugs, medicines or articles of immediate necessity, shall upon conviction thereof, be fined in any sum not exceeding fifty dollars ($50).”
The Police Court sustained a motion to quash the complaint, and the City appealed to the District Court as authorized by chapter 75, Laws of 1891. The District Court also quashed the complaint, and the City appeals to this Court, as it may do under said chapter 75.
The defendant does not appear in this Court, and we are compelled to rely upon the record and the brief of counsel for the City in order to a proper disposition of the case. It is stated in said brief that the complaint was quashed because said section 31 of the ordinance is in conflict with the section of the .Crimes Act relating to the desecration of the Sabbath day, which section reads as follows :
“Sec. 258. Every person who shall expose to sale, any goods, wares, or merchandise, or who shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor, on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.” ¶" 2398, Gen. Stat. 1889.
It is no objection to the validity of a city ordinance that it prohibits acts or omissions made penal by. the laws of the State, provided the Legislature has expressly authorized such municipal legislation. This is too well settled in Kansas and elsewhere to require the citation of authorities. By subdivision 28 of paragraph 555, General Statutes of 1889, the Mayor and Council of a city of the first class may restrain, prohibit and suppress the “desecration of the Sabbath day.” They may also regulate any and all callings, trades, professions and occupations carried on within the city limits. Section 31 of said ordinance is in line with said section of the Crimes Act and the provisions relating to the government of cities of the first class. It is not as broad as the section of the Crimes Act, for it does not operate before 10 o’clock in the forenoon. Until that hour, if a man keeps his store open and exposes his goods for sale he violates only the State law; but, after that time, his act is an infraction of not only the State law but the municipal regulation upon the subject, and he may be held amenable for it in either jurisdiction, or perhaps in both. An offender has no right to complain because the city ordinance covers only part of the day, while the State law extends over the whole period from midnight to midnight. In Mayor of Nashville v. Linck, 12 Lea, 499, an ordinance was held valid which allowed retail vendors of fruit and dealers in newspapers and periodicals to keep open their stands from 4 until 8 o’clock on Sunday morning, but prohibited the sale of fermented, spirituous and vinous liquors during any portion of the Sabbath day. And in Theisen v. McDavid, 34 Fla. 440, it was decided that a municipal ordinance prohibiting the carrying on of certain business pursuits within the city limits on Sunday was not invalid because it excepted from its inhibition various .pursuits that were not excepted from the operation of the State law on the same subject. It would seem from these authorities and others that might be cited that, in such case, while a city ordinance keeps within the limits of the State law, it may be valid notwithstanding it does not cover the whole ground occupied by the statute.
No valid objection to the ordinance nor to the complaint based thereon appearing to the Court, the judgment of the District Court will be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Elmer Higgins, the petitioner, who alleges that he is illegally imprisoned, was prosecuted under section 42 of the crimes act (Gen. Stat. 1909, § 2530) and the verdict returned was:
“We, the jury, empaneled and sworn in the above entitled cause, do, upon our oaths, find the defendant guilty of assaulting and wounding George V. Jackson under circumstances which would have constituted murder or manslaughter if death had ensued, under Paragraph 2530 of the General Statutes of Kansas 1909, in manner and form as charged in the information.”
The judgment of the court, after reciting the findings of the jury, was that:
“Elmer Higgins be taken hence to the county jail of Chautauqua county by the sheriff of said county; thence to the penitentiary of the state of Kansas and there be confined at hard labor for a period of not less than the minimum and not more than the maximum as provided for offenses in section 2530 of the General Statutes 1909, Kansas.”
The recitals in the commitment are substantially the same as those in the entry of judgment.
In behalf of the petitioner it is contended that the verdict is defective in that the jury failed to sufficiently specify the degree of the offense of which they found him guilty. The statute, in effect, provides that in a conviction of an offense of which there are different degrees the jury shall specify in their verdict the degree of the offense of which the defendant is found guilty. (Crim. Code, § 239.) It has been held that several degrees are included in the offense of which the petitioner was convicted, and that assault and battery and simple assault are degrees of that offense. (The State v. Scarlett, 57 Kan. 252, 45 Pac. 602.) In their verdict the jury undertook to specify the degree of the offense, and with some detail attempted to point out the elements of the offense of which they found the petitioner guilty. The section of the crimes act upon which the conviction rested was designated. The verdict shows that the petitioner was found to be guilty of having assaulted and wounded George V. Jackson and to have done so under circumstances that would have constituted murder or manslaughter if death had ensued. The assaulting and wounding of the victim having been committed under the circumstances mentioned, the inferior offenses of assault and battery and simple assault are necessarily excluded. The verdict might have been made, more specific if the jury had said whether the assaulting and wounding of Jackson would have amounted to murder or only to manslaughter if death had ensued. The specification of the degree of an offense in a verdict is to enable the court to assess the punishment which the statute prescribes. The punishment prescribed for the offense in question is the same whether the wounding or other prohibited act amounts to murder or only to manslaughter. While there are degrees of murder and manslaughter with different penalties affixed, the grade of the offense of maiming or wounding or disfiguring or inflicting great bodily harm or endangering the life of another under circumstances which would constitute murder or manslaughter if death had ensued is the same regardless of whether it would constitute murder or manslaughter if death had resulted, and the punishment for any of these acts is the same in either event. Viewed in the light of the punishment prescribed by the section, there is but one degree of the offense above that of assault and battery. Section 42 does not in terms separate the offenses therein defined into degrees, but as every maiming, wounding and other acts therein condemned necessarily includes assault and battery, or simple assault, those offenses have been held to be degrees of the defined offense, but it has never been held that there are any degrees other than these. (The State v. Scarlett, 57 Kan. 252, 45 Pac. 602.) All that is necessary to determine at this time, and in fact all that we are warranted in deciding in this proceeding, is whether the.verdict is so indefinite or defective as to be absolutely void, and obviously it is not. Errors can not be reviewed nor irregularities cor rected in a habeas corpus proceeding. If it be granted that' the verdict should have stated whether the offense would have been murder or manslaughter if death had resulted from the unlawful attack the defect would still have been no more than an error. (In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331; In re Nolan, 68 Kan. 796, 75 Pac. 1025; The State v. Ireland, 72 Kan. 265, 83 Pac. 1036; In re Mooney, 89 Kan. 690, 132 Pac. 217.) The court had jurisdiction to try the petitioner for the offense of which he was charged. It is not questioned that the information sufficiently set forth an offense under section 42 of the crimes act. The jury, in their verdict, undertook to state the elements of the offense of which they found the petitioner guilty, and did so with such detail and particularity that the court was able to determine from the verdict itself the punishment to be assessed and the judgment to be entered against him. The petitioner calls attention to a number of cases wherein 'the. jury failed to specify the degree or elements of the offense of which the defendants were found guilty, so that the court was unable to fix the sentence or assess the punishment of the law. These verdicts were held to be nullities and the judgments rendered thereon to be void, but the verdict in this case does not fall within the rule invoked and applied in those cases. The verdict here, if defective, is not void, and if there be defects they are such as can not be reviewed or corrected on habeas corpus. It may be said that the judgment in this case was rendered on December 1, 1914, and if there were irregularities or errors in the proceedings in the trial there is still time and opportunity to have them reviewed on appeal.
There is a further contention'that the commitment is void in that it does not state the maximum and minimum periods of petitioner’s imprisonment. - It provides, as we have seen, that his imprisonment shall be for a period not less than the minimum nor more than the maximum provided for offenses in section 2530 of the General Statutes of 1909. Under an indeterminate sentence the law and not the court fixes the duration of the punishment. It is provided that the maximum and minimum punishment for the offense defined in the section in question shall be not more than five years nor less than six months in the county jail. With the statute as a guide neither the warden of the prison nor the petitioner himself will have any difficulty in ascertaining the limits which the legislature has prescribed. (The State v. Miller, 95 Kan. 310, 147 Pac. 844.)
Neither the verdict nor the commitment or judgment can be held to be void, and therefore the petitioner must be remanded. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Clara Chapman against George Farrell, as sheriff of Phillips county, to recover possession of a stock of drugs and damages for their detention. Plaintiff alleged that on and before June 26, 1911, she was the owner and entitled to the possession of the drug stock, and that defendant had wrongfully taken and detained the drugs, to her damage in the sum of $1500. On Farrell’s motion Emma L. Montgomery was made a party de fendant, and both filed general denials to plaintiff’s petition. It appears that on April 26, 1911, Emma L. Montgomery recovered a judgment amounting to $1600 against H. J. Chapman, plaintiff’s husband, and on June 26, 1911, caused execution to issue against the stock of drugs herein involved as the goods of H. J. Chapman. At the time of the recovery of this judgment the drug business was conducted by and in the name of H. J. Chapman, who was a registered pharmacist. After the recovery of this judgment a bill of sale for the stock of drugs, dated June 12, 1911, and a deed for certain property, both reading from H. J. Chapman to plaintiff, were filed for record on June 17, 1911, nine days before the levy of execution. On the trial of the case the jury found for defendants, and the plaintiff appeals from the judgment that was rendered against her.
The theory of the defendant was that the transfer of the stock of drugs from Chapman to his wife was not made in good faith but for the purpose of hindering, delaying and defrauding his creditors. It is insisted by the plaintiff that the evidence does not support the claim of fraud or the finding of the jury that the transfer of the stock was fraudulent and invalid. It is urged that even if it were conceded that Chapman was actuated by a fraudulent purpose there is no proof that his wife had any part in it or any knowledge of his fraudulent purpose. A number of circumstances in the case strongly tend to show that the transfer was not made in good faith. When the Montgomery judgment was rendered Chapman owned at least a half interest in the stock of drugs, his wife claimed to be the owner of the other half, and he was in possession of the same, and from the record he appeared to be the owner of considerable real estate. He then stipulated that he would not move for a new trial or contest the matter further, but would pay the judgment within sixty days if execution was stayed that length of time, and this agreement was sanctioned by the court and made a part of the judgment entry. Instead of paying the judgment in accordance with this agreement, he undertook to transfer the stock to his wife. On June 17, 1911, just a few days before the expiration of the stay, Chapman placed on record a bill of sale of the drugs, dated June 12, 1911. On the same day he placed on record a deed from himself to his wife of the date of 1903, which purported to transfer the lots and building where the drug business was carried on, as well as another lot and building, and also some acre property, thus attempting to strip himself of all of his property which was not exempt from execution. He then repudiated his agreement, and not only failed to pay the judgment but presented a motion for a new trial, and took an appeal from the refusal of the court to grant it as well as other adverse rulings. He states that he owed other debts than the Montgomery judgment, and that the sale was made to pay his honest obligations, but the evidence warrants the inference that the transfer was made with the intention to delay and defeat the payment of the judgment. The plaintiff knew that the judgment had been obtained against her husband and that he did not intend to use any of the money procured through the transfer and the loan towards its payment. She said that she paid for the drugs by executing a note and mortgage in favor of one Bishop, and that these were turned over to her husband, who obtained the money on them. She further testified that she understood the money was to be used to pay Chapman’s honest debts and that she did not loan it to him to pay the Montgomery judgment. She admits that she talked over with him the matter of his indebtedness and understood that he regarded the judgment to be unjust and that he would not apply any of the money raised by the loan towards its payment, but that he did intend to apply it on what she called her husband’s “honest debts.” The evidence justifies the inference that she knew of Chapman’s trouble with Emma L. Montgomery, knew of the judgment that had been obtained against him, the collection of which he was endeavoring to defeat, and further, that she knowingly cooperated with him in an effort to hinder, delay and defeat the enforcement of that judgment. It appears that he conducted the negotiations with Bishop for the loan, that the checks paid by Bishop were drawn in Chapman’s favor, and that he presented them at the bank and obtained the money on them. It further appears that he continued in charge.of the store after the bill of sale was executed. While letterheads, statements, checks and other printed forms used in the business indicated that Mrs. Chapman was proprietor of the store, he controlled and managed the business practically the same after the bill of sale was made as he did. before that time. Goods were shipped to H. J. Chapman, Manager, and she testified that he took drugs from the store to be used in his practice for which she never made any charge, and also' that she never paid him any salary or compensation for working in the drug store.
There is evidence that she received $70 from her father’s estate, and that in 1897 she got $1000 from her grandfather which was put into the drug business, and it is insisted that as she had sufficient means and had paid a sufficient consideration she had the right to make a valid purchase from her husband. The payment of the consideration is a controverted matter, but even if it were granted that she had means sufficient to make the purchase and that she had given her husband the equivalent of the value of the goods, it would not necessarily follow that the transfer- was valid. The payment to him of a sum equal to the value of the goods does not save the transfer if it was made in bad faith and with the intent to hinder and delay creditors.
“That good faith is as essential to support a sale like the one before us, as a sufficient consideration, will not be questioned.” (Phillips v. Reitz, 16 Kan. 896, 399.)
Nor is it enough that he expected to pay the debt at some time when it became convenient for him to do so. If Chapman made the sale for the purpose of hindering or delaying Montgomery or any other creditor in the collection of the debt it is a fraud in law, and if his wife knowingly assisted him in effecting that purpose she is deemed to be a participant in the fraud and acquires nothing by the transfer. (Buck v. Vickers, 93 Kan. 766, 145 Pac. 904.) It is true that a debter may honestly prefer creditors, and if she was a creditor pf his he could have preferred her, but it is essential that it be done in good faith. It is true, too, as plaintiff contends, that a fraudulent purpose on the part of Chapman would not affect his wife if she made the purchase in good faith and for an adequate consideration, but in cases like this, where the transfer is from husband to wife, the circumstances are to be closely scrutinized to see that it is free from fraud. The jury has, in effect, found that she was a participant in the fraudulent purpose, and there appears to be some evidence to support the conclusion.
Complaint is made of the refusal to give an instruction requested by plaintiff to the effect that her husband’s fraud if ■proven would not. affect the validity of the transfer if she had no knowledge or notice of his fraud, but it appears that in an instruction given the court advised the jury as to the necessity and effect of thé knowledge of the fraud of a vendor or of facts and circumstances from which such knowledge might be inferred. This phase of the case Was sufficiently covered by the court. No error .was committed in giving the fifteenth instruction, which called attention to the difficulty of proving fraud and in which the court stated that it is not required to be ■proven by direct and positive testimony but might be deduced from many facts and circumstances, such as the relationship of the parties, their conduct, statements, their secrecy or concealment, or unusual and extraordinary methods employed by them in connection with the transaction. (Morse v. Ryland, 58 Kan. 250, 48 Pac. 957.)
Complaint is made of other instructions because the court ignored the question of the knowledge or notice of the vendor’s fraudulent purpose, but, as we have seen, the court had made this a necessary ingredient of recovery against the plaintiff in other parts of the charge, and a repetition of the rule was not necessary nor was the omission misleading.
A witness who was attorney in the'Montgomery case was permitted to testify that he had examined the records about the time the judgment against Chapman was rendered and had ascertained what property stood in the name of Chapman and did not learn or know that any part of the property levied on belonged to Mrs. Chapman. He further stated that he consented to the stay of execution for sixty days on the theory that Chapman was the sole owner of the property, but that on coming into the courtroom one day he found that Chapman was moving for a new trial in violation of his agreement. It is contended that this testimony was incompetent as against Mrs. Chapman because she was not a party to the Montgomery case and had no knowledge of the proceedings in it. The theory of the defendants is that the stay was obtained to enable Chapman to dispose of his property and place it beyond the reach of an execution and that plaintiff was knowingly assisting in carrying out this purpose, and there is some evidence to support the theory. Where there is a prima facie showing of a mutual design of the vendor and vendee to defraud a creditor the acts and declarations of each relating to the transaction may be received in evidence. The stipulation for a stay of execution was therefore competent evidence against the plaintiff, and, besides, it was a part of the judgment entry which was in evidence for other purposes. The opinion of the witness that when he consented to the stipulation after an investigation of the record he believed that Chapman owned the property was hardly competent evidence for any purpose, but manifestly it was not prejudicial.
Personal-property statements in which Chapman listed the drug store for taxation as his own property were received in evidence over the objection of the plaintiff. As the statute requires a person who lists property of others to list such property separate and apart from his own, and further to specify the person, estate, company or corporation to which it belongs, the statements were admissible and had some probative value. (Gen. Stat. 1909, § 9223.)
Complaint is made that certain entries in books offered in evidence were excluded. This testimony was offered upon the theory that the property belonged to the plaintiff and was wrongfully seized upon an execution against her husband, and to show the damages sustained by the plaintiff in case it was found .that she was the owner and entitled to the possession of the property. It having been determined that she was not entitled to the possession of the property the question of damages is of no materiálity.
Some other objections are made but they are not deemed to be material, and finding no substantial error in the proceedings the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action of Cox v. Stambaugh was one for damages for breach of a covenant against incumbrances contained in a warranty deed. The plaintiff recovered and the defendants appeal. The action of Foster v. Cox was one to rescind the transaction whereby Cox acquired the land conveyed by the deed and to compel Cox to deed the land to Foster. Cox recovered and Foster appeals.
On August 12, 1913, Foster traded shares of corporate stock for Stambaugh’s land. Before conveyance, and on August 14, 1913, Foster sold the land to Cox. Cox paid Stambaugh $2000 in cash, assumed a mortgage of $4000, and by mutual agreement of all parties received a deed from Stambaugh warranting against incumbrances except the four-thousand-dollar mortgage. As between Cox and Foster a part of the consideration was that Foster reserved the right to sell the land within a year for cash at a price exceeding $6000. In the event of such a sale Cox was to make a deed to the purchaser and the amount received above $6000 was to be divided between Cox and Foster. This arrangement rested entirely in parol. Finding the land to be incumbered by two mortgages, one for $1000 and one for $420, which the negotiations had not disclosed, Cox commenced the action against Stambaugh on September 18, 1913. Stambaugh and Foster knew about the mortgage for $1000, which was owned in Texas. When Cox learned of it $1000 of the money which he had paid to Stambaugh was by agreement placed in a bank to take up the mortgage whenever it should be forwarded to the bank. The deposit, however, was in Stambaugh’s name, and it was withdrawn by Stambaugh under Foster’s direction and was not used to take up the mortgage. In October, after Cox sued Stambaugh, Foster made a quick sale of the land to one W. D. Stone for $7500. Cox refused to convey to Stone and refused to pay Foster $750 as one-half the profit on the sale above $6000. Foster then took $250 of the money which had been in the bank and tendered it to Cox to liquidate the thousand-dollar mortgage, claiming that this sum and $750, Foster’s share of the profit on the Stone sale, satisfied the covenant against incumbrances in Stambaugh’s deed to Cox. The tender was refused. Foster then asked leave to intervene in the case of Cox v. Stambaugh. In his petition he alleged that the covenant of warranty was in fact his own, pleaded the oral agreement, the sale to Stone, Cox’s refusal to convey and refusal to pay Foster $750, the tender to Cox and its refusal, and alleged that the $420 mortgage was really only interest on the $4000 mortgage which Cox had assumed. The prayer was for rescission and for a conveyance from Cox to Foster. The application to intervene was denied. Foster did not appeal but commenced the separate action of Foster against Cox, the petition being substantially a duplicate of the interplea. Stambaugh, however, appeals from the denial of Foster’s application.
Stambaugh has had no application overruled and so has nothing on which to base an assignment of error. It was Foster’s application which was overruled. Foster made no complaint about the court’s ruling, abandoned the interplea, and chose another remedy. If the court had abused its discretion as against Foster it would have made no difference to Stambaugh. He could defend and did defend by setting up such parts of the interplea as he desired to appropriate. Besides all this, Stambaugh contends the case against him and the case of Foster v. Cox were really tried together and that one set of findings of fact covers both cases. While there were in fact separate trials, the evidence produced in Stambaugh’s case, which was tried first, covered all the issues in Foster’s case as fully as though his application to intervene had been granted. When Foster’s case was tried it was agreed that the evidence introduced at the other trial should be considered. The court made but one set of findings of fact. These findings covered all the issues in both cases and were clearly intended to dispose of both cases. But the findings of fact were filed in Stambaugh’s case and consequently he is without shadow of right to complain because Foster was not allowed to inter-plead.
As between Stambaugh and Foster a covenant against incumbrances was coming to Foster. As between Foster and Cox a covenant against incumbrances was coming to Cox. It was arranged that Stambaugh should make the covenant direct to Cox. All parties were satisfied, the covenant was made that way, and Stambaugh is liable to Cox for breach of the covenant under elementary principles of the law of contracts.
The covenant against incumbrances was broken because of the existence of the mortgage for $1000. The covenant was broken as soon as it was made, on August 14. A good tender made in October of the amount of the mortgage would not have defeated the action commenced on September 18. If ■kept good such tender would have stopped interest, and if brought to the attention of the court by an offer to confess judgment would have stopped costs, but that is all. The whole tender business, however, was a farce. It was not sufficient in amount, conceding Cox was liable to Foster for refusing to carry out the sale to Stone. The mortgage bore interest and the sum of $1000 would not satisfy it. The- tender required an admission of liability on the part of Cox for refusing to carry out the Stone sale and required satisfaction of that liability. There was no pretence of keeping the tender good and, as a matter of fact, it was not mentioned in Stambaugh’s answer.
The covenant against incumbrances was also broken because of the existence of the $420 mortgage. The court made the following finding of fact:
“Seventh: In addition to the said $4000.00 mortgage recited in the exception clause of said deed, there was also a valid subsisting mortgage resting against said land for the sum of $420.00 at the time of the deed by the said Stambaugh and wife to the said Cox, and there now remains due on said mortgage the sum of $-.
“This $420.00 mortgage above referred to is what is known as a commission mortgage. The loan was negotiated for 7 per cent for five years and 2 per cent of this, amounting to $420.00 was put in a second and what'is known as a commission mortgage.
“At the time the said Stambaugh and wife deeded the said land to the said Cox he did not know of the existence of the said $420 mortgage or the amount remaining due thereon.”
The correctness of this finding is not disputed, but Stambaugh complains that the court refused to make a finding that Cox assumed the $420 mortgage as interest on the $4000 mortgage. There is no testimony abstracted which would sustain such a finding. In his statement of the case Stambaugh refers to some of the preliminary negotiations in ydiich interest payments were discussed. The matters thus presented would not sustain the finding requested. The deed shows what Cox assumed and the written obligation could not be enlarged by parol evidence.
While the actions were pending, and in February 1914, F. D. Foster, a brother of Guy Foster, advertised a sale of all of .Stambaugh’s personal property. Cox promptly attached on the ground of attempted conversion and disposal of property with intent to defraud. Stambaugh filed a motion to discharge on-•the ground that the affidavit for attachment was untrue. F. D. Foster filed a motion to discharge on the ground that he owned the property. At the hearing Stambaugh and F. D. Foster testified to a sale of the property to Foster in October, 1913, and the bill of sale was produced. The court sustained the attachment'. F. D. Foster did not appeal but Stambaugh does appeal. Stambaugh has no right to appeal unless the denial of his motion to dissolve the attachment prejudiced him.1 If the testimony were true and the bill of sale were genuine he is not hurt, because the property belonged to F. D. Foster and F. D. Foster does not complain. If the testimony were not true and the bill of sale were not given in good faith Stambaugh and F. D. Foster were guilty of fraud. Cox abstracts testimony abundantly sufficient to warrant the district court to draw the inference of fraud.
The result is that the judgment against Stambaugh must be affirmed, and it is so ordered.
As already indicated, the action of Foster against Cox was one for rescission. The deed to Cox recited a consideration of one dollar and other valuable considerations. The true consideration could be shown by parol evidence. When the parol evidence was all in it appeared that the consideration for the sale of the land by Foster to Cox consisted of three elements: $2000 in cash which Cox paid; payment of a $4000 mortgage on the land, which Cox assumed; a parol agreement by Cox to convey to a purchaser produced by Foster within a year for a price above $6000, the excess above $6000 to be divided. The equitable ground for rescission was nonperformance of the last part of the consideration stated, whereby Foster lost $750. The general.rule is that equity will not rescind an executed conveyance of real estate for mere failure to pay an installment of the consideration. Unless there be fraud, mistake, insolvency of the grantee, or other recognized ground of. equitable interference the vendor will be remitted to his legal remedy. Likewise, generally, failure to perform some promised act other than the payment of money forming part of the consideration for an executed conveyance gives the vendor no right of rescission unless the promise amount to a condition. Except perhaps in the case of “support” deeds, and some others, the promise is regarded not as a condition subsequent, but as a covenant giving rise to an action at law in case of breach. In this instance the parol promise of Cox was of such a nature that no action at law could be maintained upon it because of the statute of frauds, but it is not necessary to discuss the consequences of this fact. It is a fundamental principle of equity that a party who is himself wrongfully in default respecting some duty attaching to his side of the contract can not demand rescission. Foster undertook to convey to Cox land unincumbered except by a specified mortgage. The land was incumbered by two other mortgages, and the covenant in the deed which Foster furnished to Cox was broken as soon as it was made. Having in good faith accepted a covenant from Stambaugh, Cox was obliged to rely upon it and he promptly brought suit for its breach. As already shown, the subsequent tender by which Foster undertook to relieve the default was an idle performance. What Foster then undertook to do, first by interplea and then by action, was to use the equitable remedy of rescission to defeat a liability already incurred, and so to extricate himself and- Stambaugh from the consequences of their own wrong. It is scarcely necessary to cite authorities to show, that equity does not lend its aid to such enterprises.
The result is the judgment in favor of Cox in the second action must be affirmed, and it is so ordered. | [
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The opinion of the court was delivered by ,
Johnston, C. J.:
This was an action to recover damages for cutting and carrying away grass grown upon rented land. E. S. Holsapple, the plaintiff, was the lessee of a quarter section of land in Logan county. Defendants Aimer Porter, John Keller, Palmer Keller, John Stover and Jake Layman entered upon the land about August 12, 1912, and cut grass growing thereon sufficient to amount to about sixty tons of hay of the alleged value of $250. Defendants admitted their entrance upon the land and the cutting of the grass growing upon about sixty acres of land. They averred, however, that they only removed the grass from fifty acres of the land, and that when informed by the plaintiff that the grass belonged to him they left the balance of it in the field. They claimed, too, that the reasonable value of the grass was $10, and tendered to plaintiff in court the sum of $25 in full settlement of his claim. This was refused, and on the trial the jury returned a verdict in plaintiff’s favor. Defendants’ motion for a new trial being overruled they appeal from the adverse judgment.
Complaint is made that the plaintiff was permitted to show the value of hay instead of the value of uncut grass. There is no merit in this contention. The defendants wrongfully entered upon the land and removed and converted to their own use grass belonging to plaintiff. It may have been difficult to show the value of growing grass in that community, and the value of hay may have been the best evidence obtainable. The abstract does not show all of the evidence on the question, and hence it can not be held that there was no necessity for this proof. At any rate the value of hay in the neighborhood is some evidence as to the value of the grass, and so far as the abstract shows it may have been the best evidence that could be produced. Here the ownership of the land was distinct from that of the grass, and so the court rightly ruled when it instructed the j ury that if the plaintiff had a contract or lease with the owner of the land on which the grass grew he would be entitled to recover from the defendants the value of the grass at the instant it was severed from the land, but that he could not recover for that which was cut and left upon the land. The plaintiff sued as for a tort, and the defendants who committed the trespass and wrongfully cut and removed the grass are hardly in a position to ask for credit for cutting the grass or any other tortious act committed by them upon the land.
It is contended that plaintiff was not entitled to recover for all of the grass that was converted by the defendants, and this on the theory that he had sold a part of it to another. It appears that some negotiations had been made with another party, but it is not shown that a sale was effected, and hence the defendants are in no danger of having to account to any one else for the grass wrongfully taken by them.
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The opinion of the court was delivered by
Mason, J.:
The petition for a rehearing is denied, but to correct an inaccuracy of statement in the opinion, the words “less the freight” will be added at the end of the second sentence. | [
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The opinion of the court was delivered by
West, J.:
The defendant was prosecuted for violating the Mahin liquor law (Laws 1913, ch. 248).
The information contained twelve counts charging the unlawful bringing into the state of certain intoxicating liquor for the purpose of delivering it to one interested therein who intended to use it in violation of the prohibitory law, the defendant knowing such intention. The next twelve counts charged deliveries of such liquors to such persons for like purpose with like knowledge on the part of the defendant, and the twenty-fifth count charged both such bringing and delivery. The trial court sustained an objection to testimony under counts thirteen to twenty-five, inclusive, from which ruling the state, having reserved a question, appeals. The defendant was convicted on the first twelve counts, and from the judgment thereon appeals and assigns as grounds for reversal numerous reasons, each of which will now be considered.
The title chosen by the legislature is:
“An act regulating the shipment of intoxicating liquor into the state or between points within the state, regulating the delivery of such liquor, providing for the filing of statements with the county clerk showing such shipments and providing for the fees of such county clerk for filing such statements, and prescribing penalties for the violation of the provisions of this act, and repealing all acts and parts of acts in conflict herewith.”
It would have been amply sufficient and much more perspicuous to call it “An act relating to the shipment of intoxicating liquor,” for this is what the title means and all it means. Hence the contention that section 16 of article 2 of the constitution requiring the subject of an act to be clearly expressed in the title was violated is without merit. (Division of Howard Co., 15 Kan. 194; In re Greer, 58 Kan. 268, 48 Pac. 950; The State v. Everhardy, 75 Kan. 851, 90 Pac. 276; The State v. Prather, 84 Kan. 169, 112 Pac. 829.)
Because the senate journal does not show that the bill was read by sections after amendment in the house, it is argued that the act is void by virtue of section 15 of article 2 of the constitution, requiring that the reading of bills by sections on final passage shall in no case be dispensed with. But as the senate journal does not show that it was not thus read, and is silent on that matter, the presumption is that the constitu tional requirement was observed. (Weyand v. Stover, Treas., 35 Kan. 545, 553, 11 Pac. 355.)
It is suggested that the act confers judicial power on agents to hear and decide the question of unlawful purpose on the part of the consignee. This is based on the provision of section 4 that if the agent taking the. statement of the person to whom the liquor is delivered that it is for his own use knows such statement to be false he may refuse to deliver the liquor. This is simply a practical means by which the agent may prevent liability himself and also hinder the consignee from making a spectacle of him by forcing upon him a statement palpably false. The agent acts as an individual and not as a judicial tribunal in taking the statement, and is not by the section in question clothed with judicial power.
The act prohibits the delivery of liquor by a carrier to a minor, and this is assigned as a ground of invalidity. But as no minor is involved in this transaction the defendant is not affected or harmed by this provision and under the familiar rule can not invoke it as a defense. (The State v. Smiley, 65 Kan. 240, 69 Pac. 199, and cases cited; The State v. Railway Co., 76 Kan. 467, 490, 92 Pac. 606.)
It is insisted that the criminality of the carrier can not be based on the unknown intention of the consignee to use the liquor unlawfully. But if the act be otherwise valid, no reason is apparent why the legislature may not punish the carrier who assists in violating the prohibitory law by knowingly bringing into the state for the purpose of delivery or knowingly delivering liquor to one who intends to use it unlawfully. Knowledge and participation may well in law as in ethics render him particeps criminis with the guilty receiver.
The point is sought to be made that the evidence was insufficient to show knowledge, but it was such as to convince any fair-minded person that a carrier who repeatedly delivers liquor in lots of from 10,000 to 30,000 pounds to known violators of the prohibitory law must be plethorically overstocked with ignorance not to know that such consignments are for other than the personal use of those receiving them. The jury reached the only possible sensible conclusion. This was approved by the trial court and there the matter must rest.
The statements of the shipments filed with the county clerk are said to have been incompetent evidence for the reason that they are required to be made by the carrier, and to use them against him is to make him a witness against himself. But he was not required to deliver or report such shipments if he had reason to believe they, were intended for unlawful use, until he secured a written statement from the consignee that they were for his own use, and with this condition he can have no just complaint.
Dockets of justice courts showing violations of the law by the consignees were introduced, and the defendant complains that pleas of guilty long prior to the deliveries in question do not prove or tend to prove that the persons entering such pleas intended to violate the Mahin act after it should become a law. But together with the other evidence they were not only competent but significant and it was not error to receive them.
That the first twelve counts stated no offense because they charged only shipments into the state and not deliveries for unlawful purposes is also urged. As a matter of state legislation there is no reason why the unlawful bringing of liquor into the state can not be constituted a crime, as was the bringing in of stolen property long years ago. The argument that an interstate shipment includes delivery is of necessity without force if the shipment be not interstate in character, and assuming for the moment that those here involved were not, each of the counts referred to stated an offense. The point that the title of the act mentions shipment only and not.delivery, while the body of the act requires a statement to be taken only on delivery, loses sight of the fact that the statute is in the disjunctive — shipment or delivery — and of course a statement from the consignee could not be had until the shipment was delivered. The suggestion that the word “shipment” is used in the title in its generic sense and includes delivery is correct, but this does not preclude division and separation into specific constituent offenses in the body of the act.
Counsel for the defendant by áble and elaborate argument and brief have forcibly sought to maintain that the Mahin act is void as an attempt to regulate interstate commerce, that its interstate features can not be separated from its state features so as to leave a valid statute, and that it plainly violates-the interstate commerce act by requiring records of interstate shipments. It does unmistakably purport and undertake to make unlawful not only the delivery but the shipment into the state of a commodity heretofore held to be a legitimate subject of interstate commerce whose shipment included its delivery after arrival here. Just as plainly and clearly does it require records of such shipments to be taken by the carrier and filed with the county clerk, who is to permit their inspection by all persons so desiring. 'While, ordinarily, a common carrier may be compelled to accept and transport such a commodity in accordance with the required secrecy enjoined by the federal statute, this act not only relieves the carrier from liability for refusal to accept and transport, but makes him criminally liable for handling a shipment when there is reasonable ground for believing that it contains intoxicating liquor, without requiring and receiving a statement from the consignee that it is intended for his own use, the falsity of which statement renders its maker liable to fine and imprisonment. It is apparent that this legislation marks a departure from any possible path formerly marked out by federal enactment and decision, and unless changes have been made therein which warrant such departure the attempt must of necessity fail as beyond the power of a state legislature.
It is needless from the standpoint of the defendant to inquire whether the local features can be so separated from the national features as to leave a valid enactment for the reason that the only counts on which conviction was had charged an unlawful transportation into the state. Section 2, requiring the carrier to file with the county clerk a statement in writing setting forth the date, name and address of the consignee, place of delivery and person to whom delivered, and the kind and amount of the liquor, and section 4, that in case of reasonable doubt the carrier shall take from the consignee a written statement that the liquor is for his own use, and file such statement with the county clerk, together with the clause of section 2 that the county clerk shall permit all persons so desiring to inspect the statements just mentioned, are regarded by the defendant as in violation of amended sections 15 and 20 of the interstate commerce act. (Part 1, 34 U. S. Stat. at Large, ch. 3591, §§ 4, 7, pp. 589, 593; Part 1, 36 U. S. Stat. at Large, ch. 309, §§ 12, 14, pp. 551, 555.)
It is asserted that “these records and accounts so to be kept under the Mahin act are applicable to both legitimate and illegitimate movements in interstate commerce,” and that congress has fully acted upon the subject by forbidding the delivery of liquor to any other person than the consignee unless upon his written order for the collection of the purchase price thereof, or the transportation of liquor unless labeled on the outside so as to show the name of the consignee and the nature and quantity of the contents. (Part 1, 35 U. S. Stat. at Large, ch. 321, §§ 238-240, p. 1136, 1137.) Also that this provision violates section 15 of the interstate commerce act. The amendment of June 18, 19.10, does provide that it shall be unlawful to disclose or permit to be acquired by any person or corporation other than the shipper or consignee, without their consent, any information concerning the nature, kind, quantity, destination, consignee or routing of any property tendered or delivered for interstate shipment, “which information may be used to the detriment or prejudice of such shipper or consignee or which may improperly disclose his business transactions to a competitor” (Part 1, 36 U. S. Stat. at Large, ch. 309, § 12, p. 553), except in obedience to certain process or under conditions set forth in the amendment. The provision of section 20, as amended, after requiring certain reports by common carriers and providing that the commission may prescribe the forms of any and all accounts, records and memoranda to be kept, specifies that “it shall be unlawful for such carriers to keep any other accounts, records or memoranda than those prescribed or approved by the commission.” (Part 1, 34 U. S. Stat. at Large, ch. 3591, § 7, p. 594.)
Section 9 of the Mahin act provides that, “This act shall be construed in harmony with all federal statutes relating to interstate commerce in intoxicating liquors.” Attention is called to an opinion by Mr. Justice Dawson when attorney-general of the state, advising county clerks that the .provision requiring records is broader than the terms of section 15 of the interstate commerce act as amended, and advising that the filed statements be preserved for the inspection of public officials charged with the duty of enforcing the law and the auditing officers of the carriers only. The exigency of the situation arising immediately upon the passage of the Mahin act presented many pressing questions concerning the operation thereof, and this circular letter resulted from such' examination and investigation as the limited time and manifold duties of the attorney-general permitted, and was an administrative interpretation to avoid threatened litigation. Having now had time for thorough investigation and consideration, and the advantage of the briefs and arguments of counsel, we are impelled to the conclusion that the alleged conflict between these provisions of the Mahin act and the interstate commerce law might doubtless' be a serious question were the commodity involved in this transaction still a legitimate subject of interstate commerce, but, as will presently appear, it no longer retains that character.
We come now to the chief cornerstone of the defendant’s argument — that the act is void because an attempt to regulate interstate commerce.
The validity of the Mahin act depends upon the constitutionality of the Webb-Kenyon act. (Part 1, 37 U. S. Stat. at Large, ch. 90, p. 699.) Three grounds of the latter’s invalidity are assigned: that it was not passed by a constitutional majority of the senate; that congress can not class intoxicating liquor with lottery tickets, diseased meat and other things intrinsically vicious or deleterious, and that the act is void as an attempted delegation of commerce power to the states. Of these in their order.
Section 7 of article 1 of the federal constitution requires that a vetoed bill, after passage by the house in which it originated shall be sent to the other house, “by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law.” Section 3 provides that in case of impeachment no person shall be convicted “without the concurrence of two-thirds of the members present.” The language of section 5 is that a majority of each house shall constitute a quorum to do business, and that each house may determine the rules of its proceedings and shall keep a journal of its proceedings, “and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.” The United States v. Alice Weil et al., 29 Ct. Cl. 523, and State v. Gould, 31 Minn. 189, 17 N. W. 276, are cited. In the Weil case this question was only incidental, and while in the discussion of it the court referred to the similarity of language found in the New York constitution adopted before the federal convention, it was also said, touching the meaning of the two-thirds provision:
“What this decisive majority may be within the intent of the Constitution has been, and may again be, a matter of grave consideration.
“On the 7th July, 1856, the Senate of the United States decided, by a vote of 34 to 7, that two-thirds of a quorum only were requisite to pass a bill over the President’s veto, and not two-thirds of the whole Senate. (Paschal, note 68.) And it is understood that this has been, and still is, the legislative construction of the words ‘two-thirds of the House.’
“The Constitution declares that ‘a majority of each House shall constitute a quorum.’ Therefore it will require only two-thirds of the majority of each House to enact a law, notwithstanding the objections of the President. . . . Here, however, it should be said that this construction of the two-thirds clause has never been brought to the test of judicial determination.” (pp. 539, 540.)
The Gould case is the only other authority cited in support of the view contended for. In Railway Co. v. Simons, 75 Kan. 130, 88 Pac. 551, in a specially concurring opinion by Mr. Justice Mason, in which Mr. Justice Porter joined, it was said:
“Where a two-thirds vote (or other proportion) of a legislative body is prescribed as necessary for any purpose, two-thirds of those who are present and constitute a quorum is understood, unless special terms are employed clearly indicating a different intention. (Cooley’s Const. Limit. 7th ed., 201, note 2; Cotton Mills v. Commissioners, 108 N. Car. 678, 13 S. E. 271; Green v. Weller et al., 32 Miss. 650; Warnock v. Lafayette, 4 La. Ann. 419.) This is the legislative construction placed upon the provision of the federal constitution that a bill shall become a law notwithstanding the president’s veto, ‘if approved by two-thirds of’ each house. (U. S. Const., art. 1, § 9. See The United States v. Alice Weil et al., 29 Ct. of Cl. 523, 539.) A contrary view is announced in State v. Gould, 31 Minn. 189, 17 N. W. 276.” (p. 139.)
It was further pointed out that when two-thirds of the entire membership must unite, such intention is usually indicated by a provision requiring two-thirds of all the members elected. Judge Cooley, in his work on Constitutional Limitations, 6th ed., p. 168, said:
“A simple majority of a quorum is sufficient, unless the constitution establishes some other rule; and where, by the constitution, a two- thirds or three-fourths vote is made essential to the passage of any particular class of hills, two-thirds or three-fourths of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended.”
The State v. McBride, 4 Mo. 303, is a well-reasoned decision sustaining the position taken by Judge Cooley. (See, also, United States v. Ballin, 144 U. S. 1, 5.) It must be held, therefore, in accordance with these authorities and the rule of the senate itself that the act received the necessary support after the president’s veto.
Next, as to the power of congress to class intoxicating liquor as a commodity fraught with danger or damage and therefore to be excluded from interstate commerce, it is said that, unlike statutes relating to lottery tickets, diseased meats and other articles which have been denied the privilege of interstate commerce, this act denies such privileges to intoxicating liquors only in certain local territory dependent entirely upon state legislation, thus leaving it recognized as a legitimate article of interstate commerce when shipped under certain conditions and circumstances and entirely illegitimate under other circumstances and conditions. It is argued that this amounts to a delegation to the legislatures of various states of power to control and therefore to regulate interstate commerce and that such delegation is not within the legislative province of congress. We do not regard the Webb-Kenyon act as a delegation of congressional power. The contrary was expressly held in The State v. Brewery Co., 92 Kan. 212, 139 Pac. 1169. Hence it is not necessary to enter upon a discussion of the validity of such an attempt had it been made, if indeed it should be claimed that such power can be delegated, no such claim being made in this case.
The title is:
“An act divesting intoxicating liquors of their interstate character in certain eases.”
The brief statute itself simply provides, for the purposes of this case, “That the shipment or transportation in any manner or by any means whatsoever, of any . . . intoxicating liquor of any kind, from one state . . . into any other state . . . which . . . intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such state,” (Part 1, 87 U. S. Stat. at Large, ch. 90, p. 699) shall be unlawful. Congress has therefore undertaken to divest of its interstate- character all intoxicating liquor shipped into a state to be used for an unlawful purpose — that is, for a purpose made unlawful by any law of such state. When the law of a given state makes it a crime to sell intoxicating liquor congress intends that any liquor shipped in for the purpose of violating such statute shall be divested of its interstate character and that all the protection incident to such character shall be removed from it.
This brings us to the vital question on which hang all the law of the prophets of this conviction, namely: whether the power granted congress by the constitution to regulate interstate commerce includes the authority thus to divest a given commodity of its interstate character.
In considering this most important and far-reaching problem it is one thing to regard its solution as a logical deduction to be drawn mechanically from the language of the constitution and another thing to account this a serious, deliberate attempt by the lawmaking power of the nation to obey the very spirit of the constitution itself, framed for the professed purpose of insuring domestic tranquillity and promoting the general welfare. The citizen who, driving close to the brink, passes the danger line and finds himself in the wrecked condition brought about by transgressing the law, will search with eagerness for some solace and protection in the great fundamental charter whence the body which enacted the law derived its power. Under these circumstances the searcher asserts with vehemence the rights of the individual as against the assumed corrective power of the state itself, and the im'mortal blessings of personal liberty find no greater champions or more eloquent eulogists than those who are accused of violating statutes prescribed for the government of their conduct. It may be said, however, that constitutions are not framed and adopted for the special benefit of those who disregard or stretch to the breaking enactments intended for the enhancement of the public peace and welfare, but for the good of the citizenship at large, and the protection of higher things, the things of real value to humanity which make life worth living. Civil con ditions can not remain stationary, and unless they retrograde they must advance, and when the lawmaking power of the nation, upon serious thought and careful deliberation, enacts a statute manifestly and unmistakably intended to promote the public health and mprals and happiness it must be presumed, until the contrary be clearly shown, that it acted within its lawful province and power. Let us see, then, whether liquors shipped into a state for the purpose of violating its statutes can be divested of their interstate character in the exercise by congress of its power to regulate interstate commerce.
That clear-seeing statesman and publicist, James Bryce, upon remarking that some one had observed that the American government and constitution are based on the theology of Calvin and philosophy of Hobbs, said:
“This at least is true, that there is a hearty Puritanism in the view of human nature which pervades the instrument of 1787. It is the work of men who believed in original sin, and were resolved to leave open for transgressors no door which they could possibly shut.” (1 The American Commonwealth, Bryce, 299.)
Dillon, in his lectures on The Laws and Jurisprudence of England and America, said that the absolutely unique feature of'this republic is its written constitutions whereby the people, “by an act of unprecedented wisdom,” have in order to es- - tablish justice, to promote the general welfare and secure the blessings of liberty to themselves and their posterity, “protected themselves against themselves.” (p. 196.) Willoughby, in his work On the Constitution, says:
“In construing the Constitution the very proper and indeed absolutely necessary principle has been followed that that instrument was intended to endure for all time and that its grants of power are, therefore, to be interpreted as applicable to new conditions as they arise. By this is not meant, however, that these new conditions shall in any case justify the exercise of a power not granted, or create a limitation not imposed by the Constitution, but that the powers which are granted shall, if possible, b.e made applicable to these new conditions.” (Yol. 1, §26.)
As said by a brilliant and well-known member of the legal profession:
“The constitution our fathers made had the marching quality in it. . . . It has been supposed by some students of our national history that a written constitution is an inert mass of tabulated provisions. The supposition is not correct; for the national constitution, under the guidance of our great court of last resort, has grown and developed, not, perhaps, like an unwritten one, but still keeping abreast with the demands of ‘progressive history.’ This does not mean that a written constitution grows by being violated whenever its provisions stand in the way of national progress; but it does mean that our constitution was, by the enlightened foresight of its framers, made to be an intelligent guide and chart, not a mere list of obstacles.” (George R. Peck, Reports of American Bar Association, 1900, vol. 23, pp. 256, 275.)
“We now see the great end which they proposed to accomplish. It was to frame, for the consideration of their constituents, one federal and national constitution- — a constitution that would produce the advantages of good, and prevent the inconveniences of bad government — a constitution, whose beneficence and energy would pervade the whole union, and bind and embrace the interests of every part — a constitution that would ensure peace, freedom, and happiness, to the states and people of America.” (1 Wilson’s Works, Andrews, p. 542.)
“Although Congress can not authorize a state to legislate, it may adopt state legislation; it may divest designated articles of their interstate commerce character and subject them to the operation of state laws.” (Notes on United States Constitution, Sutherland, p. 79.)
“That the power to regulate includes the power to prohibit the interstate transportation of at least certain classes of commodities has been placed beyond question by the decision of the court in Champion v. Ames, 188 U. S. 321.” (2 Willoughby on the Constitution, § 347.)
A writer of great legal experience and ability, in speaking of the power of congress to regulate commerce, said:
“Having ascertained, then, what commerce is, and what are some of its elements, which may be the subject of the action of Congress, or of the attempted action of the States, we next come to consider what it is to ‘regulate’ commerce. . . . Commerce being intercourse and traffic between people, to regulate it is to prescribe rules by which it shall be conducted.” (Miller on the Constitution of the United States, p. 449.)
In Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, Mr. Justice Field, in delivering the unanimous opinion of the court, said:
“Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations, vested in Congress, is the power to prescribe the rules by which it shall be governed, that is, the conditions upon which it shall be conducted; to determine when it shall be free and when subject to duties or other exactions. The power also embraces within its control all the instru mentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged.” (p. 203.)
At page 215 the court quoted with approval from Judge. Cooley to the effect that congress may descend to the most minute directions of interstate commerce and may establish police regulations as well as the states, “confining their operations to the subjects over which it is given control by the constitution” (Cooley’s Constitutional Limitations, 4th ed., p. 732.)
In United States v. Gettysburg Electric R’y, 160 U. S. 668, the act of August 1, 1888, “An Act to authorize condemnation of land for sites of public buildings and for other purposes” (25 U. S. Stat. at Large, ch. 728, p. 357), ánd a later act authorizing the expenditure of funds for the erection of monuments and tablets at Gettysburg, and a later joint resolution authorizing the secretary of war to purchase lands for that purpose, were under consideration, the important question being whether the use to which the land was to be put was one for which the government could condemn land. Mr. Justice Peckham, in announcing the unanimous opinion of the court, said:
“In examining an act of congress, it has been frequently said that every intendment is in favor of its constitutionality. Such act is presumed to be valid unless its invalidity is plain and apparent. No presumption of invalidity can be indulged in. It must be shown clearly and unmistakably. This rule has been stated and followed by this court from the foundation of the government. . . . Any act of congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country, and to quicken and strengthen his motives to defend them, and which is germane to, and intimately connected with, and appropriate to the exercise of some one or all of the powers granted by congress, must be valid.” (pp. 680, 681.)
Again:
“Can it not erect the monuments provided for by these acts of congress, or even take possession of the field of battle, in the name and for the benefit of all the citizens of the country, for the present and for the future? Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted congress by the constitution for- the purpose of protecting and preserving the whole country. . . . No narrow view of the character of this proposed use should be taken. Its national character and importance, we think, are plain. The power to condemn for this purpose need not be plainly and .unmistakably deduced from any one of the particularly specified powers. Any number of those powers may be grouped together, and an inference from them all may be drawn that the power claimed has been conferred.” (pp. 682, 683.)
While the beneficent purposes of the Webb-Kenyon act are of an entirely different character from those thus eloquently reviewed, they touch as clearly and as deeply the welfare of the country by way of the protection of its manhood and womanhood as those in the case referred to, for it is of as much national importance to make men sober as to make them patriotic. In the case of In re Rahrer, 140 U. S. 545, holding constitutional the Wilson bill which removed from interstate shipments of liquor the former protection of the right of sale in the original package after reaching the state of importation, it was pointed out that the constitution does not provide that interstate commerce shall be free but by the commerce clause left it free except as restrained by congress. Reference was made (p. 557) to the language used in the License Cases, 46 U. S. 504, 599, to the effect that if a commodity does not from its nature belong to commerce, or if its condition, from putrescence or other cause, be such that when it is about to enter the state it no longer belongs to commerce or is not a commercial article, then the state may exclude its introduction. It was further declared that by the adoption of the constitution the ability of the several states to follow their own will was extinguished and that of the general government substituted.
“But this furnishes no support to the position that Congress could not, in the exercise of the discretion reposed in it, concluding that the common interests did not require entire freedom in the traffic in ardent spirits, enact the law in question. In so doing Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the States or to grant a power not possessed by the States, or to adopt state laws. It has taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property. . . . The power to regulate is solely in the general government, and it is an essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State. Brown v. Maryland, 25 U. S. (12 Wheat.) 448.
“No reason is perceived why, if Congress chooses to provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case, it is not within its competency to do so.” (pp. 561, 562.)
Again :
“Congress did not use terms of permission to the State to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part. It imparted no power to the State not then possessed, but allowed imported property to fall at once upon arrival within the local jurisdiction.” (p. 564.)
This language seems almost prophetic of a further step than that of the Wilson bill, which should ere long be taken by, congress in respect to the interstate character of intoxicating liquor. Before the enactment of the Wilson bill it was settled law that the state could not prohibit the sale within .its borders of imported liquor in its original package, for the reason that the interstate character was deemed to be retained until separated from such package. Congress, therefore, removed the interstate character to the extent thus indicated by the passage of the Wilson bill, and by the very terms of the Webb-Kenyon bill professes and assumes to remove the interstate character of liquor shipped into a state for the purpose of violating its laws. If one be within the constitutional grant of power to congress it is difficult in the extreme to see why the other is not likewise within such grant. In Delamater v. South Dakota, 205 U. S. 93, the statute making it a misdemeanor to take orders within the state for the purchase of liquors was upheld as not in conflict with the exclusive power of congress over interstate commerce. Mr. Justice White, in the opinion, after referring to the effect accomplished by the passage of the Wilson bill, said:
“The propostion relied upon,, therefore, when considered in the light of the Wilson act, reduces itself to this: Albeit the State of South Dakota had power within its territory to prevent the sale of intoxicating liquors, even when shipped into that State from other States, yet South Dakota was wanting in authority to prevent or regulate the carrying on within its borders of the business of soliciting proposals for the purchase of liquors, because the proposals were to be consummated outside of the State, and the liquors to which they related were also outside the State. This, however, but comes to this, that the power existed to prevent sales of liquor, even when brought in from without the State, and yet there was no authority to prevent or regulate the' carrying on the accessory business of soliciting orders within the State. Aside, however, from the anomalous situation to which the proposition, thus conduces, we think to maintain it would be repugnant to the plain. spirit of the Wilson act. That act, as we have seen, manifested the conviction of Congress that control by the States over the traffic of dealing in liquor within their borders ■ was of such importance that it was wise to adopt a special regulation of interstate commerce on the subject. When, then, for the carrying out of this purpose the regulation expressly provided that intoxicating liquors coming into a State should be as completely under the control of a State as if the liquor had been manufactured therein, it would be, we think, a disregard of the purposes of Congress to hold that the owner of intoxicating liquors in one State can, by virtue of the commerce clause, go himself or send his agent into such other State, there in defiance of the law of the State, to carry on the business of soliciting proposals for the purchase of intoxicating liquors.” (p. 99.)
It has been decided- that congress has power to prescribe that a package of any article which it subjects to tax and upon which it requires the affixing of a stamp shall contain only the article which is subject to tax. (Felsenheld v. United States, 186 U. S. 126.) In the Lottery Case, 188 U. S. 321, it was argued that the suppression of lotteries is not an exercise of any power committed to congress by the constitution; that the sending of lottery tickets or policy slips does not constitute or evidence any transaction belonging to interstate commerce, and that “A legislative fiat' can not make that a commercial commodity which in its essential nature is not such. A transaction which is not commercial in its nature, can not become so merely by the declaration of congress.” (p. 327.) But the conclusion reached was 'that lottery tickets are subjects of commerce, and the regulation of their carriage from state to state is a regulation of interstate commerce. In response to the argument that the statute in question did not regulate but prohibited the carrying of lottery tickets from one state to another, and that congress has no such power, it was replied that the constitution does not define what is to be deemed a legitimate regulation, and that it is to be determined when the question comes before the court whether congress, in prescribing a particular rule, has exceeded its power; that a large discretion is left to congress as to the means that may be employed in executing a given power. Then follows this query:
“Are we prepared to say that a provision which is, in effect, a prohibition of the carriage of such articles from State to State is not a fit or appropriate mode for the regulation of that particular kind of commerce? If lottery traffic, carried on through interstate commerce, is a matter of which Congress may take cognizance and over which its power may be exerted, can it be possible that it must tolerate the traffic, and simply regulate the manner in which it may be carried on? Or may not Congress, for the protection of the people of all the States, and under the power to regulate interstate commerce, devise such means, 'within the scope of the Constitution, and not prohibited by it, as will drive that traffic out of commerce among the States?” (p. 355.)
The answer reached by the court was:
“If the carrying of lottery tickets from one State to another be interstate commerce, and if Congress is of opinion that an effective regulation for the suppression of lotteries, carried on through such commerce, is to make it a criminal offence to cause lottery tickets to be carried from one State to another, we know of no authority in the courts to hold that the means thus devised are not appropriate and 'necessary to protect the country at large against a species of interstate commerce which, although in general use and somewhat favored in both national and state legislation in the early history of the country, has grown into disrepute and has become offensive to the entire people of the Nation. It is a kind of traffic which no one can be entitled to pursue as of right.
■ “That regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle, transported from one state to another. Such cattle may have, notwithstanding their condition, a value in money for some purposes, and yet it can not be doubted that Congress, under its power to regulate commerce, may either provide for their being inspected before transportation begins, or, in its discretion, may prohibit their being transported from one state to another.” (p. 358.)
In closing the opinion, Mr. Justice Harlan said:
“We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them; that the carriage of such tickets by independent carriers from one state to another is therefore interstate commerce; that under its power to regulate commerce among the several states, Congress — subject to the limitations imposed by the constitution upon the exercise of the powers granted —has plenary authority over such commerce,- and may prohibit the carriage of such tickets from state to state; and that legislation to that end, and of that character, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress.” (p. 363.)
In United States v. Holliday, 70 U. S. (3 Wall.) 407, an act of congress making it an offense to sell liquor to an Indian under the charge of any superintendent or agent appointed by the United States was attacked as beyond the power of con gress, but Mr. Justice Miller, in the opinion, in response to the argument that so far as the act was intended to operate as a police regulation to enforce good morals within the limits of a state there was no warrant in the constitution for its exercise by congress, said:
“It relates to buying and selling and exchanging commodities, which is the essence of all commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.” (p. 417.)
After quoting from Chief Justice Marshall, in Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, that the power to regulate commerce with foreign states does not stop at the jurisdictional limits of such states and that if congress has power to regulate it that power can be exercised wherever the subject exists, it was further said:
“It follows from these propositions, which seem to be incontrovertible, that if commerce, or traffic, or intercourse, is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by Congress, although within the limits of a state.” (p. 418.)
It would hardly be doubted that under its power to regulate commerce with foreign nations congress could prohibit the importation of a given commodity into this country. If, then, the same power which would authorize prohibiting the importation of a given article into this country authorizes congress to prohibit its sale anywhere in the United States to an Indian while a ward of the government, it would seem to be abundantly sufficient to warrant the removal of the protection incident to its interstate character from an article or commodity transported into a state in order to violate the laws thereof. Indirectly, it is a mere recognition by congress of the evil necessarily flowing from a conflict between an increasing volume of state legislation and the protection heretofore accorded by federal authorities to intoxicating liquor, regardless of the use and purpose for which it was carried from state to state. It is not perceived how this sort of recognition and comity on the part of the nation can be subversive of constitutional liberty or constitutional principles. Neither is it logically inconsistent with plenary power to regulate the traffic in such commodity between the states, because it is now the settled doctrine of the federal courts that interstate commerce is a subject on which primarily congress alone may legislate and of which it alone has jurisdiction, and concerning which the states may not assume to act, except incidentally, whether congress sees fit to act or not. The inevitable corollary to this doctrine is that congress possesses over this subject power so ample and so complete that it may well remove from a commodity otherwise legitimate its interstate character and protection whenever its movement in interstate commerce is for the accomplishment of an unlawful purpose — the violation of the laws of one of the sister states of the Union. Those who- contend for the invalidity of the act must base their reasoning on the slender platform that intoxicating liquor, when transported for the purpose of violating a state statute, is by some subtle constitutional alchemy of the same national importance and entitled to the same governmental protection as if it were brought into the state for the most beneficent purpose imaginable. We deem this line of argument and the conclusion resulting therefrom opposed to the true doctrine of constitutional interpretation and to the spirit expressed by the framers of the constitution when the preamble was formulated.
On the appeal by the state the point is sought to be made by the defendant that a question can not be reserved save upon an acquittal. But section 288 of the criminal code permits appeals to be taken by the state: “Third, upon a question reserved by the state,” and under the decisions an acquittal is not a prerequisite. (Junction City v. Keefe, 40 Kan. 275, 19 Pac. 735; The State v. Rook, 61 Khn. 382, 59 Pac. 653; The State v. Bland, 91 Kan. 160, 136 Pac. 947.)
Counts twelve to twenty-four, inclusive, stated offenses, and testimony thereunder should have been admitted.
The twenty-fifth count is attacked for duplicity because it charges both the bringing in and the delivery of intoxicating liquor. But in misdemeanors this is permissible. (The State v. Pryor, 53 Kan. 657, 37 Pac. 169; The State v. Meade, 56 Kan. 690, 44 Pac. 619; The State v. Taylor, 90 Kan. 438, 440, 133 Pac. 861.)
The state offered to introduce in evidence certified copies of the records of the United States internal revenue collector showing that the consignees each held a receipt for taxes paid as wholesale malt liquor dealers. The offer was denied, and the defendant contends that under the statute (Gen. Stat. 1909, § 4396) the evidence was incompetent because applicable only to prosecutions for maintaining a nuisance. This section makes the finding of intoxicating liquors on the premises, except in the case of a dwelling house, prima facie evidence that they are kept for sale or use in violation of law, and the finding of a stamp-tax receipt prima facie evidence that the person to whom it was issued was at the time of such finding maintaining a common nuisance. This does not render such evidence incompetent for other purposes, and in this case its only proper purpose was to show that the consignee had been engaged in the wholesale liquor business and for this purpose it should have been received. (The State v. Nippert, 74 Kan. 371, 86 Pac. 478; The State v. Dollar, 88 Kan. 346, 128 Pac. 365; City of Topeka v. Briggs, 90 Kan. 843, 135 Pac. 1184.)
On a motion to retax costs the trial court directed the clerk not to tax as costs the $25 attorney fee on each count covered by the conviction. Section 4366 of General Statutes of 1909 provides that upon notification or knowledge of any violation of any of the provisions of the laws of this state relating to intoxicating liquors, it shall be the duty of the prosecuting officer to inquire into the facts of such violation. If the testimony taken shall disclose that an offense has been committed it is the duty of the prosecuting officer to file complaint and proceed against the offender. Section 4377 provides that:
“The county attorney shall be allowed a fee of twenty-five dollars upon each count upon which the defendant shall be convicted, and the same shall be taxed as costs in the case, but the county shall in no case be liable therefor.”
The Mahin law is now one of “the provisions of the laws of this state relating to intoxicating liquors” and therefore the fee requirement of section 4377 applies. {The State v. Jepson, 76 Kan. 644, 92 Pac. 600; The State v. Poggmeyer, 91 Kan. 633, 635, 138 Pac. 593.)
The judgment is affirmed as to the conviction under the first twelve counts. As to the foregoing matters raised by the state on its appeal the judgment is reversed and the cause is remanded for further proceedings, in accordance herewith.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff’s husband while employed as a switchman was killed in the yards of the defendant at Parsons. She recovered a judgment in this action, from which the defendant appeals.
The facts briefly stated are these: There are sixteen tracks in defendant’s yards at Parsons which are numbered consecutively from 1 to 16. They are one-half mile long and eight of them connect with what is known as the “south lead” and the same number with what is known as the “north lead.” Track number 11 is set apart for the reception during switching operations of all bad-order cars which require removal for repairs. When sufficient cars have accumulated on this track to form a string or train, an engine called the “bum” engine is coupled to them and they are removed to the repair tracks, distant more than one-half mile. On January 19, 1912, a car loaded with lumber from Louisiana arrived at Parsons. The coupler and draft rigging of this car were broken and it was set on track number 11, marked “bad order.” About 5:30 on the morning of January 22, the “bum” engine with a switching crew came on track number 11 at the south end and moved up to the string of bad-order cars, coupling to the first car, which stood a distance of from six to eight car lengths north of the south end of track number 11. Minnehan, foreman of the engine crew, and Pullin, the husband of the plaintiff, rode on the front end of the engine, and when it was coupled to the first car at the south end they went with their white lights along the east side of the string of cars. In a very few minutes the foreman returned to the engine and secured a chain, informing the engineer that he was about to chain up a bad-order car. Shortly afterwards a switching crew came in from the north lead on track number 11 for the purpose of setting one car on the same track, and they shoved this car against the north end of the string with sufficient force to move the whole string about 15 or 18 feet, although the engine at the south end had its brakes set. Minnehan was killed outright between the cars, and Pullin was found lying between tracks 11 and 12, fatally injured. He died shortly after. The chain which Minnehan had taken from the engine was lying across the axle of the car which has been referred to as the one loaded with lumber. It appears from the evidence of plaintiff and defendant that track number 11 was used both by the north lead and south lead crews for the purpose of switching cars in.. from either end constantly and at all times. Either crew had the right to use the track.
The petition alleged negligence in the following particulars: (ia) Switching cars from the north end of the track without any warning or notice to the deceased and the persons engaged in operating the switch engine where he was employed. (5) Switching cars from the north end without exercising ordinary prudence to ascertain that deceased was at work under the car. (c) Switching cars from the north end upon track number 11 with violence. (d) Switching cars into track number 11 from the north end when the track was already full of cars, (e) Failure of Foreman Minnehan to take proper steps to protect the deceased.
The negligence charged in paragraph “e” respecting the acts of the foreman Minnehan was eliminated by the court on a demurrer to the evidence. The negligence charged in paragraph “d” in switching cars from the north end when track number 11 was already full of cars may be regarded as eliminated because there was no evidence to support ity and for other reasons which will be noted. . The evidence of the plaintiff shows that the track was not full of cars, but that on the contrary when the switching crew moved from the south end and coupled to the string of cars there was still room at the south end for at least six or eight cars. Besides, the petition neither alleged nor was there any proof offered to show that defendant owed to the deceased any duty in this respect or that he had any right to rely upon the company not using the track for the purpose of putting more cars on it. It is' apparent from the evidence that the attempt of defendant to use the track for the purpose of putting the car in from the north end was not in any respect the proximate cause of the injury. The negligence charged under paragraphs “a,” “b” and “c” remain to be considered.
It is the contention of the defendant that the evidence introduced by the plaintiff is not sufficient to show any negligence causing the injury. One defense alleged by the answer and sought to be sustained by the evidence of the defendant is based upon certain rules and regulations, which it is claimed were in force but disregarded by the deceased. The first of these to which we will refer is “article 8,” which is á part of an agreement entered into in 1911 between the defendant and the Brotherhood of Railway Trainmen, of which the deceased Pullin was a member. This clause of the agreement declared that in Parsons and certain other yards of the defendant workmen will not be required “to handle cars on rip tracks which have no draw bars, unless chained together by car department employees.” The evidence of the defendant showed that in the yards at.Parsons there were at this time carmen or employees of the car departmént, whose headquarters or shanty was close to track number 11, about 150 or 200 feet away, ahd that there was an ample force of carmen to do the work of chaining up the disabled car at the time the plaintiff was injured. A great deal of defendant’s brief is taken up with a discussion respecting the failure of the plaintiff to show that either the deceased or the foreman Minnehan called for the carmen to do the work. We think this defense may be readily disposed of. Article -8 simply declares that workmen will not be required to handle cars on rip tracks which have no draw-bars unless chained together by car department employees. Track number 11 was not q rip track. Cars were not repaired there. They were stored on this' track temporarily until a sufficient number of them had accumulated to make up a string to be moved to the repair track. Moreover, there was evidence offered by the plaintiff to show that the provisions of article 8 requiring carmen to place chains on bad-order cars wh;ere the draw-bar is out were not strictly enforced by the defendant in January, 1912, and that train crews frequently placed chains on cars. The defendant’s abstract purports to give the substance of witness Mundon’s testimony, but omits certain portions of it which we find in the counter-abstract. This witness testified to the effect that the storeroom of defendant furnished chains to the engine crews and switch crews for the purpose of chaining bad-order cars. The same witness, as appears by plaintiff’s counter-abstract, testified that he had personal knowledge of switchmen chaining up bad-order cars as late as January, 1912, and that “they did off and on.” He had seen a foreman of a switch crew chain up bad-order cars in 1911. It is true that he was not employed under Smith, who was yardmaster at the time Pullin was injured, and never was present when the yardmaster directed anybody to chain up bad-order cars after July, 1909, but there is sufficient evidence to show that even if article 8 should be construed as applying to bad-order cars standing on track number 11, it was often violated; and the fact that the storeroom department furnished chains to switching crews for the purpose of chaining bad-order cars, and that trainmen for several years had been in the habit of doing such work, was sufficient to support a finding that this provision of the contract between the brotherhood and the defendant had been abrogated, if its violation t»y the deceased furnished any defense, which we do not decide.
Certain other rules of the company upon which the defendant relies are the following:
“26. A blue flag by day and a blue light by night, displayed at one or both ends of an.engine, car or train, indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen.
“8. Flags of the prescribed color must be used by day, and lamps of the prescribed color by night.”
The evidence of both plaintiff and defendant shows that the blue-flag or blue-light rule was not complied with by the crew to which the deceased belonged. On the contrary the evidence shows that the string of cars on which Minnehan and the deceased were working was not protected in any way. There were no blue lights set out. No one was sent ahead to the north end of the string for the purpose of notifying switch crews at that end that persons were at work under the cars at the south end. There is no dispute in the evidence with respect to the failure of the train crew to which the deceased belonged to take any precautions to protect themselves or to comply with the provisions of rules 26 and 8. The evidence also shows that white lights such as were carried by Minnehan and Pullin at the time aré not signals of danger, for the reason that employees were moving about the yards at all times during the night with white lights. Track number 11 was about one-half mile long. The evidence shows that no one of the north crew saw Pullin or Minnehan along that string of cars or knew that they were about or under the cars. The defendant further relies upon the fact that there was no evidence offered tending to show that it was the duty of the north crew to go along this track and examine the cars to see that no one was under them; no evidence to show a custom or duty of the north crew to give warning or notice of any kind that they were about to switch cars in or upon the north end. As already stated, it is not disputed that the track was used both by the north lead and the south lead crews for the purpose of switching cars at either end. In doing this work the cars would necessarily be bumped considerably.
The jury made certain findings which it is insisted entitled the defendant to judgment. These findings upon which the defendant relies are :
“15. Under the rules oí defendant, was it the duty of deceased and Tim Minnehan to have carmen put chains on said car? Ans. Yes.
“4. Was it usual and customary on and before January 22, 1912, for the north lead engine to switch cars into and upon Track No. 11 if occasion arose, unless warned not to do so by a flagman or a signal? Ans. Yes.
“7. Did the deceased place signals or take any precaution to protect the string of cars in or under which he was working when killed, from being struck or moved from the north? Ans. No.
“12. If you find that defendant’s employe was negligent causing the death of Samuel Pullin, state the name of such employe? Ans. Foreman Stipp.
“13. If you find that any of defendant’s employes was negligent caus ing the death of Samuel Pullin, state the nature of such negligence? Ans. By giving hard back up signal.”
Finding number 15 that it was the duty of the trainmen and of deceased to have the chains put on the car by employees of the car department does not of itself entitle defendant to judgment, because, as we have shown, if article 8 can be said to apply to the chaining up of cars on track number 11, there was evidence to support a finding that the regulation had been in effect abrogated by the custom and practice of train crews for a sufficient length of time to bring to the officers of defendant constructive notice thereof, and that defendant is therefore not entitled to rely upon article 8 as a defense. We are unable to concur in the claim of defendant that the answer to question 15 amounts in substance to a finding that article 8 of the trainmen’s contract was being complied with in the yards at Parsons at the time the deceased was injured. We think it amounts to nothing more than a finding that under the literal terms of article 8 it was the duty of the deceased to have carmen put chains on the car. The jury obviously did not mean by their answer that the regulation had not been modified or abrogated by custom and practice known to the defendant, or which could have been known by the exercise of ordinary care and diligence.
Findings numbers 4 and 7, that it was usual and customary for the north lead crew to switch cars upon this track unless warned not to do so by a flagman or signal, and that the deceased did not place signals or take any precaution to protect the string of cars under which he was working from being struck or moved by cars from the north, present a difficult question. The plaintiff insists that all difficulty in this respect is removed by finding number 5, to the effect that rules 26 and 8 requiring a blue flag by day and a blue light by night displayed at one or both ends of a train to indicate that workmen are under or about it were “in force but not enforced.” On the other hand, the defendant contends that this finding is without any support in the evidence and challenges plaintiff to point to any evidence to sustain the finding. The plaintiff attempts to meet the challenge by the claim that it was the duty of the defendant to offer evidence that rules 26 and 8 were enforced and that in the absence of any such affirmative testimony the defense based upon the failure to comply with the rules must fail. In this contention we think the plaintiff is wrong, and when the rule was shown to have been adopted the burden rested upon the plaintiff to show that it had been abrogated by custom and practice, and that the custom and practice should have been known by the defendant. The only evidence we have been able to find in the abstracts bearing at all upon this question is found in the testimony of two witnesses, one called by the defendant and one called by the plaintiff. Briggs, a witness for defendant, on cross-examination testified as follows:
“Q. Did the switch crews in that yard carry blue lights? A. No, sir.
“Q. Don’t use them do they? A. They use them on some occasions, I think.
“Q. Switch crews? A. If it is necessary they get one. Yes, sir.
“Q. Did you ever see them carrying a blue light? A. Well I can’t say that I ever did.
“Q. No, never saw one up there did you? A. Yes, sir; I have seen them up there.
“Q. When? A. Well, I think it has been since that accident occurred.
“Q. Since the accident occurred. I am talking about before the accident occurred. You never saw it then did you? A. I don’t remember of it.
“Q. How long had you been working there before the accident? A. I went to work there in June, 1911.”
One of the north-end crew who was a witness for plaintiff testified that he never saw blue lights carried on switch engines and never' saw any switch crews there usingvblue lights. This was some testimony, perhaps very slight, but sufficient to support finding number 15 to the effect that rules 26 and 8 were not enforced.
But this evidence removes only a part of the difficulty presented by findings 4 and 7. Conceding that deceased was not bound by the existence of the written rules, the jury find in answer to question 4 that it was usual and customary for the north-end crew to switch cars upon this track unless warned not to do so by a flagman or signal, and in number 7 the finding is that the deceased took no precaution of any kind to pro-. tect the string of cars under which he was working from being struck by cars moved from the north end. Both findings are in accord with the undisputed evidence.
By findings 12 and 13 the jury say that the negligence which caused the death of the deceased was the giving of a hard backup signal by the foreman of the north crew. The judgment based upon this ground of negligence can not stand. In the 'first place the court did not submit this claim of negligence to the jury in any of the instructions. It is' true the petition alleged that the defendant negligently shoved the cars with such speed and violence that deceased was unable to escape from between the cars where he was working, but there was no evidence to show that the force or violence with which the cars were shoved was the proximate cause of the injury, nor was there either allegation or proof of any duty the defendant owed the plaintiff to move the cars in a different manner. Besides, it is quite obvious that the force with which the north crew shoved the car against the string had nothing to do with the accident. The evidence showed that it was necessary to move the string of cars to make room for one car; and to move them any such distance with the men at work under them must necessarily have resulted in the same injury to the deceased. There was no fact offered in evidence from which the jury could infer that the result would have been any different if the cars had been moved the same distance with less force. Negligence must be the proximate cause of an injury in order to be actionable. (S. K. Rly. Co. v. Griffith, 54 Kan. 428, 38 Pac. 478; Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469.)
The specific finding that the negligence of the defendant consisted in the giving of a hard back-up signal by the foreman of the north crew is an express finding that the verdict is not based on any other form or character of negligence, and under the repeated rulings of the court the special findings, being inconsistent with the general verdict, must control. (Civ. Code, § 294; Railway Co. v. Roth, 80 Kan. 752, 756, 104 Pac. 849, followed and reaffirmed in the recent case of Adams v. Railway Co., 93 Kan. 475, 481, 144 Pac. 999; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 98, 140 Pac. 105.)
It follows that-the judgment must be reversed and the cause remanded, with directions to enter judgment for defendant upon the findings.
Johnston, C. J., concurs in the reversal but dissents from the direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment of the district court refusing to discharge an attachment. The plaintiff caused an attachment to be levied on a Denver & Rio Grande cattle car standing on the tracks of the Atchison, Topeka & Santa Fe Railway Company at Garden City, Kan. The Santa Fe moved to discharge the attachment, and on this being denied filed an interplea, upon which issue was-joined, trial was had, and judgment was rendered there.on in favor of the plaintiff. The Santa Fe, still claiming the car, then gave the sheriff a forthcoming bond for the car, and appealed.
Several questions are presented. We will notice but one of them, because the disposition of that question determines the judgment that must be rendered. The car in question left Cameron, Colo., on the Denver & Rio Grande railroad, on December 18, loaded with coal destined for Alamota, Kan. It was moved from Cameron to Trinidad, where it was delivered to the Santa Fe, and was then moved to Garden City, thence north to Scott City, thence east to Alamota. It was returned to Garden City on December 26, where it was received empty, and was attached on that day. It was then covered by regulation railroad empty slip billing, routed to the Denver & Rio Grande at Trinidad, Colo. It was held at Garden City to wait for a load on its further return trip west. The car came to the Santa Fe under car service rules. Under these rules the car must be returned promptly. It might be returned loaded. While the car was held-by the Santa Fe, it must pay to the Denver & Rio Grande forty-five cents per day for the use of the car. Does this interest of the Santa Fe in the car defeat the attachment?
A leading case on this question is Southern Grain Co. v. Northern Pac. Ry. Co., 127 Ga. 626, 56 S. E. 742, 9 L. R. A.., n. s., 853, 9 Ann. Cas. 437. In the headnotes in 9 L. R. A., n. s., 853, we find this:
“Where a railroad company of this state receives from a railroad company in another state a car, under a contract by which the domestic company has the right to carry the car loaded to its destination in this state and unload it, and then to reload and return it to the owner beyond the limits of this state, paying for the use of the car, the right of the domestic company to the use of the car is superior to the right of an attaching creditor, who, without any other lien, seeks to subject the car to attachment by service of the summons of garnishment upon the domestic company; and, in the absence of appropriate equitable pleadings in a court with jurisdiction to render affirmative equitable relief, such car is not subject to the process of garnishment.” (¶ 1.)
The headnote to Wall v. Railroad Co., 52 W. Va. 485, 44 S. E. 294, as found in 64 L. R. A. 501, reads:
“One railroad company has an agreement with another by which loaded cars of the one are to be received at connecting points by the other, and hauled over its line to the destination of load of the car, and then be reloaded with other freight by the receiving company on its line, and carried over its line, and returned loaded to the railroad of the owner of the cars; the receiving company compensating the owning company for such use of the cars. Such cars can not be seized under an attachment against the company owning the cars, so as to defeat the rights under such arrangement or contract of the company receiving and entitled to so use the cars, and a garnishment of the receiving company cannot affect its rights under such arrangements by reason of its possession of such cars.” (¶ 3.)
Other cases to support the principle above set forth are: M. C. R. R. Co. v. C. & M. L. S. R. R. Co., 1 Ill. App. 399; Shore & Bro. v. Railroad, 76 S. Car. 472, 57 S. E. 526; Seibels v. Railway Co., 80 S. Car. 133, 61 S. E. 435; Johnson v. Union Pacific Railroad Co., 29 R. I. 80, 69 Atl. 295; Connery v. Quincy, Omaha & Kansas City R. Co., 92 Minn. 20, 99 N. W. 365, 64 L. R. A. 624; Johnson v. Union Pac. R. Co., 145 Fed. 249. We have been unable to find any decision to the contrary on this question. This establishes the right of the Santa Fe to hold the car as against the attachment.
At the time the attachment was levied, E. W. Roberts, the Santa Fe agent at Garden City, requested the sheriff to remove the car from the Santa Fe tracks, and after some days repeated the request. The car was permitted to remain on the tracks and was finally placed on a stub track, where it remained until the termination of this litigation in the district court. Did the Santa Fe by its conduct waive its right to the possession and control of the car, as against the plaintiff in this action ? Every act of the Santa Fe, including the request of its agent that the sheriff remove the. car from its tracks, was entirely consistent with good faith in holding the property subject to the order of the court, and with the contention that it had such an interest in the property as would defeat the attachment. That contention was insisted on in the motion to discharge the attachment, in the interplea, and in the forthcoming bond. The giving of the bond after judgment on the motion, and interplea, did not waive any right of the Santa Fe. (Commission Co. v. Tate, 91 Kan. 538, 138 Pac. 602; Commission Co. v. Hicks, 92 Kan. 922, 142 Pac. 276.) It does not appear that the agent had authority to dispose of or waive any of the property rights of his principal. We are of the opinion that this car was not subject to attachment while in the possession of the Santa Fe, and that the railway did not waive its right to hold the car.
The judgment is reversed and the attachment is discharged. | [
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The opinion of the court was delivered by
Marshall, J.:
Swan Johnson was adjudged insane and sent to the Topeka state hospital. June 1, 1911, he was discharged from the hospital as improved, and since that time has not been under any restraint whatever. There is nothing more to show that Johnson has been restored to his right mind. At or about the time he was adjudged insane, a guardian was appointed for his property. This guardian resigned after Johnson was discharged from, the hospital, and Irwin Snattinger was appointed in his stead. He likewise resigned, and C. F. Gustafson was appointed.. No notice was given to Johnson concerning the appointment of either the second or third guardian. Gustafson made application to the probate court to sell real property belonging to Johnson, to pay costs. At the hearing of this application Johnson made special appearance and contested the jurisdiction of the court to appoint Gustafson guardian without notice to Johnson, and for that reason attacked the right of the court to direct Gustafson to sell the real property. The court decided against Johnson, and he appealed to the district court, where the case was tried de novo, and judgment was rendered sustaining the probate court. Johnson appeals.
There are seven assignments of error, but all are embraced in two propositions. One is, Did the probate court have jurisdiction to appoint a second and a third guardian, without first giving notice to Johnson that such appointment would be made? The other is, After one has been adjudged insane and confined in the asylum, and is discharged therefrom as improved, does the presumption of insanity continue until it has been found that he has been restored to his right mind ?
1. The first question was disposed of by Foran v. Healy, 73 Kan. 640, 86 Pac. 470, where this court said:
“Except as limited by the statutes, probate courts in this state have the same power over the person and estate of lunatics that was formerly possessed by courts of chancery under the common law.
“In the absence of a statutory requirement no notice is necessary to confer authority upon a probate court to appoint a guardian for a lunatic who has been duly adjudged to be a person of unsound mind.” (Syl. ¶¶ 1, 2.)
2. That Johnson was insane was established by the adjudication which resulted in his being sent to the state hospital and the appointment of a guardian for his estate. In all subsequent proceedings in the same matter in the probate court, this insanity is presumed to continue until it is shown that he has been restored to his right mind. (The State v. Reddick, 7 Kan. 143; Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745; The State v. McMurry, 61 Kan. 87, 58 Pac. 961; Howard v. Carter, 71 Kan. 85, 80 Pac. 61.) His discharge from the state hospital as improved, and his remaining at large without restraint, do not show that he has been restored to his right mind. The law prescribes the method by which that fact can be ascertained, the guardian be discharged, and the estate be turned over to its owner. Sections 4844 and 4845 of the General Statutes of 1909 read
“If any person shall allege in writing, verified by oath or affirmation, that any such person for whom a guardian has been or may be appointed under the provisions of this act, has been restored to his right mind or to temperate habits, the court by which the proceedings were had shall cause the fact to be inquired into, either by a jury or without a jury, as may seem proper to the court.
“If it shall be found that such person has- been restored to his right mind or to temperate habits, he shall be discharged from care and custody, and the guardian shall immediately settle his accounts, and restore to such person all things remaining in his hands belonging or appertaining to him.”
The judgment of the district court is affirmed. | [
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.The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the county treasurer to accept the registration fee, duly tendered, for a real-estate mortgage and to indorse on the mortgage an official certificate of the payment of such fee, under chapter 250 of the Laws of 1915. The statute is appended to this opinion.
. The defendant moves to quash the alternative writ for the reason it does, not state facts sufficient to entitle the plaintiff to the desired relief. The motion to quash raises the question of the validity of the statute under article 11 of the constitution, relating to finance and taxation, section 1 of which reads as follows:
“The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.”
The plaintiff claims the act, considered broadly, is one to exempt real-estate mortgages from taxation and to tax the civil privilege of using the public records. The defendant claims the legislature has no power to exempt real-estate mortgages generally from taxation, that the tax levied is not a license, privilege, or excise tax, and that the act embodies an attempt to classify property for purposes of taxation contrary to principles of taxation established by the fundamental law.
It is a matter of common knowledge and regret that the effort to assess and tax real-estate mortgages on the ad valorem plan as a part of the general property of the state has been neither satisfactory nor successful. The method is reprobated as involving double taxation. To what extent this criticism is economically sound is not now material. The prejudice created by the double-taxation argument against the method is widespread and deep-seated. It is certain that the method is productive of shameful tax evasion. In 1907 real-estate mortgages were listed for taxation in this state to the amount of $4,000,000. By 1914 the amount was brought up to approximately $70,000,000. It is estimated that the holdings of securities of this character by residents of Kansas are four times the amount listed, but the resources of the tax collecting officials for uncovering such holdings appear to be substantially exhausted. In one city in the state the ad valorem tax takes thirty-seven and one-half per cent of the income from a six per cent mortgage and forty-five per cent of the income from a five per cent mortgage. Mortgage holders feel they can not and should not give up such a proportion of their income. In numerous other taxing districts the tax taken is’ less than one-fourth of the percentages indicated. The result is inequality greater than should result from the administration of a fair and just system. The supply of capital available for farm mortgages is too limited, the interest rate is too high, and the time extended to borrowers is too short for the needs of a state the basis of whose prosperity is agriculture, and it is believed the tax law may be used to render the situation less acute.
The problem of how to deal with real-estate mortgages as subjects of taxation has embarrassed political economists gen erally and the legislatures of states other than this. In twenty-eight states real-estate mortgages are taxed as personal property. In six states they are taxed as an interest in real estate. In five states a so-called registry tax is imposed, which takes the place of all other taxes. (Alabama, Michigan, Minnesota, New York, Oklahoma.) In nine states real-estate mortgages are exempt. (Colorado, Idaho, Louisiana, Maine, Maryland, New Jersey, Utah, Washington', Wyoming.)
The struggle for tax reform in this state is an interesting story which need not be told here. It has long been recognized that the constitutional provision quoted has outlived its usefulness, and, as outlived restraints usually do, now bars the pathway to the establishment of an equitable system of taxation adequate to the present economic needs of the state. Notwithstanding this fact, at the election in 1914 the people refused to adopt a constitutional amendment permitting the legislature to classify subjects of taxation so far as differences justify, in order to secure a just return from each. Following the lead of New York in 1906, bills have appeared at each session of the legislature, beginning with that of 1907, for the adoption of the registration tax on real-estate mortgages in lieu of all other taxes. In 1909 and 1911 bills of this character were passed by both houses, but were vetoed by the governor. In 1915 senate bill No. 680 became a law, and the question is whether or not the constitution forbids its execution.
The court was given jurisdiction in cases of mandamus by the constitution. The case presented falls within the scope of such jurisdiction. The peremptory writ must either be issued or denied, and it must be issued or denied by the exercise of judicial functions which can not be surrendered. The writ-can not be issued or denied without finding out what the constitution permits to be done and what the statute undertakes to do. ’That is, the court can not escape interpreting the constitution and the law. When the meaning of the constitution is ascertained the law must be interpreted in such a way as to uphold it if possible. In case of an irreconcilable conflict the constitution controls. The course of the inquiry has been well directed and defined by able briefs and oral arguments on behalf of both parties, and on behalf of large interests which favor and which are antagonistic to the law.
The constitutional command is that the legislature shall provide for a uniform and equal rate of assessment and taxation. Assessment is a prerequisite to the application of any rate of taxation, and assessment includes listing and valuation. This is fundamental and can not be evaded by any shift or device whatever.
In 1860 the legislature imposed a tax of three mills on the dollar on the taxable property of the state according to the assessment of that year, and fifty cents on every white male person between the ages of twenty-one and fifty years. These taxes were not collected in certain counties. In 1863 the legislature imposed the aggregate of the uncollected taxes on the property taxable within such counties according to the assessment of the year 1863. In an action of mandamus brought by the attorney-general to compel the officials of Leavenworth county to levy the tax this court .said:
“Section 1 of Article 11 of the Constitution, provides that ‘the Legislature shall provide for a uniform and equal rate of assessment and taxation,’ and this clause most clearly implies that taxes shall be levied only according to such uniform and equal rate. To comply with this provision, [it is clear] that taxes must be assessed uniformly upon the property of all parts of the State, and, while it may be quite consistent with justice and with this constitutional provision that persons owing taxes imposed by the law of 1860, should be compelled to pay them; to collect such taxes of others because they now reside or have property within the same county, unless the whole State is subjected to the same burthen, seems manifestly consistent with neither.
“Reluctant as we are to differ with the legislative branch of the Government, we are compelled to conclude that the Act of 1863, in question, is inconsistent with the provisions of the constitution above cited, and therefore void.” (The State ex rel. The Attorney General v. Commissioners Leavenworth Co., 2 Kan. 61, 69.)
The action of the legislature of 1863 was evidently taken through inadvertence and oversight. Its attention was fixed on the delinquency of the counties which had failed to collect the taxes imposed by the law of 1860, and it looked no further than to call upon those counties to make good to the state the taxes lost through their laches. The declaration of the court that in order to comply with the constitution taxes must be assessed uniformly upon the property of all parts of the state expressed the common thought of those who framed and those who adopted the constitution. The territorial act of 1860, to provide for the assessment and collection of taxes, passed after the constitution was adopted but before the state was admitted into the Union, was framed in accordance with the principle involved. The principle was recognized in the act of 1862 amending and supplementing the territorial act of 1860, and has been recognized in every subsequent revision of the tax law.
In the case of Hines and others v. The City of Leavenworth and others, 8 Kan. 186, decided in 1865, the court in an opinion by Chief Justice Crozier discussed the constitutional provision at length. The facts of the case are not now material, but the following extracts from the opinion are of the highest significance:
“Article 11 of our constitution relates exclusively to finance and taxa-tion. The title of the article is ‘Finance and Taxation.’ Ordinary and extraordinary revenues must be raised in accordance with its provisions. The financial polity of the state must be regulated with reference to its requirements. It authorizes suitable financial arrangements to be made in emergencies and binds the particular organization, whether state or county, to the utmost good faith in the fulfillment of its obligations. It prohibits all favoritism, requiring all to contribute in proportion to their means to the support of the public burdens. ... It will be observed that the constitution does not in terms require that the property in the state should be taxed according to its value, but it must be apparent to every one that such was the intention of the constitution makers. Taxes can not be levied by an equal and uniform rate except upon the value. If so much were levied upon each acre, lot, horse, cow, sheep, note, bond, &c., the rate might be uniform, but it would be very unequal. . . . The whole property of the state then must be listed and valued for taxation. Now what in common parlance is this operation called? Everybody would say it is denominated ‘assessment.’ Such is the common acceptation of the word and no one but a professional man would give it any other. The framers of the constitution must have foreseen that different persons would be employed in the different counties to make the assessments, and that they must inevitably differ in their estimates of the value of property. The land, stock &c., in one county might be estimated at a much higher rate than in another, which for state purposes would produce a corresponding irregularity in the taxation. This would be avoided by requiring the rate of assessment to be equal and uniform. And if they desired to accomplish this what better way of doing it than by saying so. . . . The meaning of the first section of article 11 is that the rate of taxes throughout the jurisdiction that levies them must be equal and uniform. If the state levies them the rate must be equal and uniform throughout the state. If the county levies them, then they must be equal and uniform throughout the county, and so of the township, city or village. It does not mean that a man in one county shall pay the same rate of taxation for all purposes that is paid by a man in an adjoining county. Now, the property of a man residing in the city of Leavenworth should bear the same rate of taxation for state purposes that is borne by the property of a man in the remotest county, and for county purposes, the same rate that other men in the county pay, and for city purposes the same rate paid by other men in the city. Each man in the state, county and city, is equally in proportion to his property interested in maintaining the state, county and city governments, and in that proportion should bear the burdens equally. There is a justice in this arrangement which commends it to the approbation of any right thinking man.” (pp. 197, 200, 201.)
In 1881 the legislature undertook to reach for purposes of taxation cattle driven from the Indian Territory into the southern part of the state for grazing purposes. Such cattle were brought into the state after March 1 and were removed before the first of December. In an opinion delivered by Mr. Justice Brewer holding the statute to be unconstitutional, the court said:
“The statute provides for a property tax,’ and, unlike that considered in the case of The City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, is. subject to the control of § 1 of art. 11 of the state constitution. The argument, briefly stated, is this: All personal property in the state on the first of March is, with the constitutional exemptions, listed for taxation. This therefore enforces the constitutional rule of uniformity. There is no general provision for taxing property brought into the state after the first of March, but by this statute an attempt is made to tax certain kinds of property when brought into the state for certain purposes. But if this is done, the rate of assessment and taxation is not uniform and equal. It was said in the case of Hines v. City of Leavenworth, 3 Kan. 200, that ‘the whole property of the state must be listed and valued for taxation.’ If this be true, must not all the property brought into the state after the first of March be listed for taxation in order to support the listing of part? Certainly a statute can not be sustained which attempts 'to cast the entire burden of taxation on one class of personal property, leaving all others exempt. If this be true in respect to the entire year, must it not be equally true in respect to a portion?
“We think this argument is sound, and that if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be made as to property .after the first of March, any more than it can as to property on that day.” (Graham v. Comm’rs of Chautauqua Co., 31 Kan. 473, 477, 2 Pac. 549.)
In 1879 the legislature passed an act permitting a township trustee, with the advice and concurrence of the board of county commissioners of his county, to levy taxes on the property of the citizens of his township for certain purposes. The act was held void because the tax did not apply to property in the township belonging to nonresidents and to persons or corporations not citizens of the township. In the opinion, delivered by Chief Justice Horton, the court said:
" “Under the provisions of the statute the property in a township owned by non-residents and all persons or corporations not citizens is exempt from the taxes levied for township, road and other purposes. . . If a state tax is levied upon property it must be uniform over all the state. If a county, town or city tax is levied upon property, it must be uniform throughout the extent of the territory to which it is applicable. It must also be extended to all property subject to taxation, so that all the property may be taxed equally. This-is taxation by a uniform rule. We do not think that the taxes provided for in said subdivision 8 can be imposed upon the citizens of a township only. The taxes provided for should be levied upon all the property of a township, to comply with the constitution of the state. We are of the opinion, therefore, that the provisions of said subdivision 8, authorizing a levy of the taxes therein named on the property of citizens only, is unconstitutional; and that the taxes levied can not be collected.” (M. & M. Rly. Co. v. Champlin, Treas., 37 Kan. 682, 684, 16 Pac. 222.)
In 1899 the legislature passed an act to provide for the taxation of contracts of insurance made with insurance companies not authorized to do business in Kansas. Such contracts were to be taxed in a sum equal to ten per cent of the amount of premium paid or contracted to be paid thereon. The court held that the statute violated the rule of uniformity established by the constitution. In the opinion, written by the present Chief Justice, it was said:
“As will be observed, the constitution contemplates that there will be an assessment or valuation of the property to be used as a basis of the levy; and in this way equality and uniformity of taxation may be had upon all the property within the taxing district. Although assessment is the most important'of all the steps in the imposition of taxes, no assessment or valuation is required by the act or made upon the property sought to be taxed in this case. ‘It will be observed that the constitution does not in terms require that the property in the state should be taxed according to its value, but it must be apparent to every one that such was the intention of the constitution makers. Taxes can not be levied upon equal and uniform rate except upon the value.’ (Hines v. Leavenworth, 3 Kan. 200.) To accomplish the uniformity and equality required by the constitution, it would appear that assessment or valuation is indispensable, and yet in this case the legislature, without assessment or valuation of the property, attempts to make an arbitrary exaction. All other property in the state is required to be taxed at its true value in money, but here no account is taken of the solvency of the company or the value of the security or policy. However, values of other property may fluctuate or the rate of taxation thereon may change from year to year, no change is made in the tax levied on the property in question.
“The lack of uniformity is manifest in another way: One taxpayer has a policy written in the state by a company with authority on which no tax is imposed, while his neighbor has one written by an unlicensed company at Indianapolis, or other place outside of the state, which is subject to taxation. Taxes are uniform and equal when imposed on all property .of the same character within the taxing district, and yet here the insured pays a ten per cent tax upon a policy written outside of the state, while his neighbor pays nothing on a. policy of equal value and affording the same protection because it is written within the state. Contracts of insurance written outside of the state can not be regarded as illegal. Aside from the consideration that they may not be Kansas contracts and are therefore beyond the reach of the legislature, the act itself contemplates that such contracts may and will be made, and when made are to be treated as property within the state and become the subject of taxation here. This is an invidious discrimination, purposely made, and is a distinct departure from the constitutional rule of uniformity.” {In re Page, 60 Kan. 842, 846, 58 Pac. 478.)
In 1897 the legislature passed a law relating to the taxation of personal judgments, section 1 of which reads as follows:
“The term ‘personal judgments’ shall include all personal judgments for money only, owned by residents and non-residents of the state of Kansas: Provided, this section shall not apply to judgments upon foreclosure of mortgages prior to the sale of the lands described in the decree, work and labor judgments or for material furnished in the erection of buildings, and improvements on land or lots. But shall apply to all personal judgments rendered upon foreclosure of mortgage after sale when a deficiency judgment remains against the judgment debtor.” (Laws 1897, ch. 243.)
In the case of Hamilton v. Wilson, 61 Kan. 511, 59 Pac. 1069, the court, speaking through Justice William R. Smith, said:
“It is evident that the prescribed rule of uniformity has been disregarded in the discriminations made between different classes of judgments mentioned in section 1 of the act. It is quite certain that the law in question was passed for other purposes than the production of revenue. This, however, would be an immaterial consideration if the taxing power had confined itself within constitutional limits.
“We know by common experience that judgments on debts secured by mortgages are of much greater value than deficiency judgments for the same amounts remaining over after the property upon which they were liens has been exhausted. Yet under this law such valuable judgments are wholly exempted while judgments for deficiencies are taxed. Again, it is difficult to furnish a reason why, under a tax law requiring uniformity and equality in its operation, a judgment for material furnished in the erection of buildings should be exempted from taxation, while a judgment rendered for money borrowed to purchase the material so used should be taxed. Deficiency judgments remaining after the sale of real estate upon foreclosure of mortgages are subject to be taxed; but any deficiency arising on judgments in the case of the foreclosure of other liens,, such as mechanics’ or material men’s liens, is wholly exempted. . . - Under the above constitutional provision, the legislature has a narrow latitude in exempting property from taxation, and the extent of its departure from a uniform and equal rate of assessment and levy is marked out and circumscribed in express terms. This constitutional provision is to be regarded as a limitation on the power of the legislature to discriminate between different classes or kinds of property when enacting tax laws.” (pp. 515, 516.)
The foregoing decisions, covering the period of the state’s history to the year 1900, are full, clear, consistent with each other, and indubitably sound. The doctrine they announce was the one with which the people were familiar when the constitution was framed, and the work of the constitutional convention consisted principally in stating the doctrine in suitable phraseology. The essentials are that each man in city, county, and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to the exclusion of others^ constitute invidious discriminations which destroy uniformity. That the system works badly now is ground for change, but the system having been established by the constitution as a limitation on the power of the legislature, the constitution must be changed before the system can be changed.
The often repeated declarations of the court that the constitution requires all property of the state to be valued and taxed at an equal and uniform rate had no reference to exempt property. Equally positive declarations may be found that all property in the state is not required to be assessed and taxed. There is no inconsistency between the apparently conflicting statements. In one kind exemptions were not considered, in the other exemptions were taken into account.
The exemption provision of the constitution is a qualification of the rule of uniformity and equality. It is part of a compound sentence stating the rule and the exceptions, and commences with the adversative “but.” All property belonging to certain classes is exempt absolutely from taxation, and personal property to the amount of at least $200 for each family is exempt. The power to exempt a greater amount of persona] property for families is clearly implied, and power to make other exemptions is not expressly withheld. The first taxation act passed after the state was admitted to the Union (act of 1862, amending the territorial act of 1860) made other exemptions than those provided for in the constitution. The taxation act of 1868 did the same, and so far as known the power to make additional exemptions was not questioned until 1873. In that year the legislature passed an act exempting from taxation all notes, bonds, judgments, and evidences of debt secured by mortgages on real estate, and the mortgages themselves. The attorney-general rendered an opinion that the law was unconstitutional on two grounds: first, that the uniformity rule was violated, and second, that the specification of certain exemptions in the constitution implied the exclusion of others. The act of 1873 was repealed in 1874. When the subject came before the court it took the view which evidently prevailed when the people first commenced to regulate their governmental affairs according to the constitution, and held that the constitution prescribed a minimum exemption which may be enlarged according to the wisdom and discretion of the legislature. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234; Francis, Treas., v. A. T. & S. F. Rld. Co., 19 Kan. 303; Sumner County v. Wellington, 66 Kan. 590, 72 Pac. 216.)
Not only does this interpretation accord with the common understanding at the time the constitution was new, but it accords with a canon of interpretation more fundamental than that of expressio unius est exelusio alterius. The government of the United States is one of granted powers and must find a warrant of authority for all its acts in the constitution. The state governments possess all governmental power not denied to them by the constitution, and in the absence of a prohibition expressed or necessarily implied they may take all reasonable measures for the promotion'of the general welfare. This principle was applied in the case of The State v. Durein, 70 Kan. 13, 80 Pac. 987, holding that thé amendment to the constitution prohibiting the manufacture and sale of intoxicating liquors except for specified purposes did not abridge the power of the legislature to adopt further - prohibitory measures, and the principle has been applied in other cases.
The theory of the power of the legislature to make exemptions from taxation is bound up, however, with the constitutional theory of taxation. The principle of constitutional law referred to is in the final analysis a rule of interpretation to be resorted to in case of need. The framers of the constitution dealt with the subject of taxation and with the subject of exemptions according to definite views entertained with respect to each, and consequently an exercise of the power to make exemptions is conditioned by the constitution in two ways: first, by the express provision relating to uniformity and equality, and second, by the nature and purpose of the power itself.
The theory of exemption laws was' stated in an opinion of the court, written by Mr. Justice Brewer, in the case of Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344, decided in 1871:
“All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he demotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war, or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is co-extensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule, and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted.” (p. 348.)
This theory is illustrated by the constitution itself. Property used for state, county, and municipal purposes is devoted directly to public-welfare ends, and taxes would have to be collected in some way to pay taxes assessed against such property. Property used for literary, educational, and scientific purposes advances the intelligence of the people and saves the collection and expenditure of taxes for those purposes. Property used for religious purposés advances the morals of the people. Property used for benevolent and charitable purposes forestalls the maintenance of public charges by means of revenue derived from taxation. The family group, including children to be fed and clothed and educated, might be broken up unless there were preserved to it a modicum of property free from taxation. But in order that the uniform and equal rate of assessment might not be infringed the constitution limited the exemptions, other than that allowed to families, to property “used” and used “exclusively” for the purposes specified.
“The accumulation of large amounts of untaxed property, by educational, charitable, religious, and other institutions, is contrary to the fundamental rule- requiring an equal rate of assessment and taxation; hence the constitution makes ‘exclusive use,’ and for a designated ‘purpose’ the test of exemption.” (Washburn College v. Comm’rs of Shawnee Co., supra, syl. ¶ 3.)
Besides this, an exemption from taxation, granted through favoritism or other arbitrary motive, of property not benefiting the public in any way different from other property of the state, could not be sustained even although the financial effect of the exemption might not be appreciably felt.
“It is difficult to conceive of a justifiable exemption law which should select single individuals or corporations, or single articles of property, and, taking them out of the class to which they belong, make them the subject of capricious legislative favor. Such favoritism could make no pretense to equality; it would lack the seniblance of legitimate tax legislation.” (1 Cooley on Taxation, 3d ed., p. 381.)
The case of Comm’rs of Sedgwick Co. v. Bunker, 16 Kan. 498, involved the taxation of real estate to pay bonds of the county in which the real estate originally lay after the real estate had been set off to a new county.. Personal property of the new county was not taxed to pay the bonds. All real estate of the county issuing the bonds was permanently liable for their payment. Personal property was not so liable because it was removable at any time, and personal property coming into the new county after the partition was not liable at all. Uniformity and equality in discharging the burden of the bonds were not possible, and the court held that the legislative apportionment of the debt and the property between the original county and the detached territory conformed as nearly as the circumstances would allow to the rule of uniformity and equality. Substantially the same question arose on the division of a township in Ottawa county, and was decided in the same way on the authority of the Sedgwick county case. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234.) Dissatisfaction was expressed with the decision in the Sedgwick county case, and the opinion closes with the following statement:
“The only effect of this decision is, that it announces the principle that the legislature may when dividing a county or township relieve the personal property of the detached territory from all liability for previous debts of the county or township while continuing the liability of all the other property.- Nothing else is decided.” (p. 248.)
Another exceptional decision was rendered on a peculiar state of facts in the case of Francis, Treas., v. A. T. & S. F. Rld. Co., 19 Kan. 303. The Santa Fe railway ran through a number of unorganized counties, which, for lack of organization, lacked machinery for the assessment and collection of taxes. Railroad property was assessed by the state board of railroad commissioners and consequently was taxed while other property in the unorganized counties escaped taxation. The court held the constitution was not violated. In the opinion it was said:
“It must be noticed that the maintenance of a county organization is attended with expense; that the non-organization is due to the lack of population; and, by implication, of property sufficient to justify, in the judgment of the legislature, the carrying of such a burden. It may well be presumed, that in these outlying portions of the state the expense of the machinery for collection would exceed the amount of taxes collected. Now in order to secure valid state taxation in the inhabited portions, must the state, at an expense exceeding the proceeds, extend its tax machinery out among the few settlers scattered over the plains in our western frontier? That would simply add to the burden of the settled portion of the state, and be but a sacrifice of the substance for the shadow. . . . The case has been before us for several months, and the subject of repeated consultations, and frequent examinations. The conclusions which we have reached are by no means entirely satisfactory to us. We hold the section to be constitutional and valid, not because it is clear to us that it is so, but because it is not clear to us that it is not.” (pp. 310, 316.)
Little assistance in the elucidation of the constitution is afforded by any of these cases.
In the case of Sumner County v. Wellington, 66 Kan. 590, 72 Pac. 216, it was held that the waterworks plant owned and operated by the city of Wellington was exempt from taxation and that the fact the city furnished water to its inhabitants and other consumers did not affect the exemption. In the opinion it was said:
“The supplying^ of water to the inhabitants, while not strictly a governmental function, so much affects the health and welfare of the people as to be closely akin to it. The plant was purchased with public funds; it is operated by the public officers and agents; and rentals derived from its operation go into the public treasury and are expended for the public benefit. The ownership and the purpose being public, there are good reasons why the property should be exempted from taxation. It is inconsistent with our theory of government to place a tax or burden upon one of the instrumentalities of government, and thus to impede its ■operation. ... If use, rather than ownership, were applied as the test to the right of exemption, the result would be the same. The fact that, in establishing and carrying on a system of water-works, the city furnishes water to citizens and consumers for rental charges, does not make it a mere business enterprise.” (pp. 591, 593.)
The same opinion contained the following discussion of constitutional principles:
“It will be noticed that the provision [of the constitution] quoted does not require that all property in the state shall be taxed, but does provide that all which is subject to taxation shall be assessed and taxed at a uniform and equal rate. Certain exemptions are therein prescribed which the legislature can not ignore; but it does not forbid the exercise of the inherent power of the legislature to exempt property from taxation when in its judgment it may conduce to the public welfare. . . . Our constitution limits, rather than confers, power, and, hence, we look to it to see what it prohibits, instead of what it authorizes. Unless the sovereign power of taxation, which includes the power to make exemptions, is actually prohibited by the constitution it may be exercised by the legislature. In the absence of constitutional restrictions, the general rule is that the legislature has full power to grant exemptions from taxation, and, there being no such limitation, we can not say that property like that in question, owned by a city, may not be exempted by the legislature.” (p. 593.)
In the opinion in the case of The State v. Holcomb, 85 Kan. 178, 116 Pac. 251, it was observed that the Sumner county case involved the right to tax the waterworks plant of a city of the state and that the language of the opinion should be read in the light of the question being treated. The property involved was public property owned and used for public purposes, and the exemption was clearly of the same character as exemptions specified in the constitution. No question arose as to the extent to which the legislature may relieve from taxation entire classes of private property of great value, ordinarily looked to to supply a considerable portion of the necessary revenues of the state, and so impose the burden elsewhere; and it was not intended to intimate that the power to exempt property from taxation may be used in such a way as to introduce a system of taxation substantially different from that contemplated by the constitution. A warning against such use of the power was given in the opinion in the case of National Bank v. Barber, Treas., &c., 24 Kan. 534, where it was said:
“This court has intimated that it is possible that the legislature may have the.power to exempt from taxation personal property, in addition to that exempted by the constitution. (Ottawa Co. v. Nelson, 19 Kan. 237, 238; Francis v. A. T. & S. F. Rld. Co., 19 Kan. 311, 312.) But this court has never intended to intimate or decide that real estate may be so exempted. And the bulk of all railroad property is real estate.” (p. 546.)
The notion that property taxes might be abandoned and that public revenues might be raised by franchise, privilege, and occupation taxes, and other taxes of like kind, was not present in the minds of the framers of the constitution or of the people who adopted it. To their minds the property of the state was to be taxed as a matter of course, and all property was to be taxed according to its value, except that property which served the state in some peculiar way, whereby public benefits resulted equivalent to the benefits derived from taxes, might be exempted; but exemptions of this character could not be employed to build up large accumulations of untaxed property contrary to the fixed rule requiring a uniform and equal rate of assessment and of taxation.
The constitution does not limit the sources of revenue,- and' the legislature is left free to resort to subjects of taxation other than property. Passing beyond lands and goods and other tangible things, the legislature may exact a tribute or fee or tax on the enjoyment of conveniences, advantages, privileges, and other sources and means of benefit, emolument and profit. The broker, factor, commission merchant,. or auctioneer may own nothing himself. The state should be compensated in some way for the protection afforded to the conduct of his business, and so a license is required of him. A number of individuals incorporate and secure the right to contract, hold property, and transact business as freely as an indi vidual, without the disadvantages of a copartnership and with perpetual succession which avoids the legal consequences attending death. While the franchise is property in a certain sense and for certain purposes, the civil privilege enjoyed is quite distinct from the property of the corporation and is a legitimate subject of taxation. The right to take property by descent or devise is a valuable thing. It is not a natural right, but is a creation of the law, and may be conditioned as the legislature sees fit. A condition in the form of an inheritance tax is not a tax on the property which descends, or which is disposed of by will, but is an excise on the devolution- of the estate. Graduated taxes may be imposed on the probate of wills, grant's of letters of administration, and even ordinary proceedings in court. The civil privilege of recording deeds, mortgages, and other instruments in public offices provided at the public expense is subject to-taxation. ' Sources of revenue of this kind are not subject to valuation like property so that each person may pay a ratable proportion on an ad valorem basis and consequently discriminations and classifications may be made without infringing the constitutional rule of uniformity and equality, which applies to property taxes only. This court has so held in numerous cases, among which are the following: License taxes (City of Leavenworth v. Booth, 15 Kan. 627; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288; In re Martin, 62 Kan. 638, 64 Pac. 43); registration taxes levied for purposes of regulation and not merely for revenue (The State, ex rel., v. City of Topeka, 36 Kan. 76, 12 Pac. 370) ; fees (Beebe v. Wells, 37 Kan. 472, 15 Pac. 565) ; poll taxes (The State, ex rel., v. City of Topeka, 36 Kan. 76, 12 Pac. 310; Shane v. City of Hutchinson, 88 Kan. 188, 127 Pac. 606) ; inheritance taxes (The State, ex rel., v. Cline, 91 Kan. 416, 137 Pac. 932) ; franchise taxes (Railway Co. v. Sessions, 95 Kan. 261, 147 Pac. 791) ; privilege taxes (The State, ex rel., v. Sessions, 95 Kan. 272, 147 Pac. 789).
The only limitations on the power to impose taxes of this kind are that the tax shall bear some reasonable relation to the right, privilege, or franchise taxed, that classification shall be natural and not arbitrary or capricious, and that all persons or subjects in the same class shall be treated in the same way. The character of the tax is not necessarily affected by the eir cumstance that it may be proportioned in the same way as the ordinary property tax. Thus license taxes required of merchants may be graduated according to the average amount of stock employed in business. (City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288.) If, however, the tax in fact rests on property, no matter what it may be called, it is a property tax, and courts will look through form to substance and will prevent that from being done by indirection which could not be accomplished directly.
(Cases in which the courts have refused to stultify themselves respecting the true character of legislation and have pierced through speciousness to reality are numerous. In the case of Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, one of the questions was whether or not a tax on the rents or income of real estate was something different from a tax on the real estate itself, and consequently not a direct tax, which the constitution of the United States requires shall be apportioned among the several states. In the opinion it was said :
“The requirement of the Constitution is that no direct tax shall be laid otherwise than by apportionment — the prohibition is not against direct taxes on land, from which the implication is sought to be drawn that indirect taxes on land would be constitutional, but it is against all direct taxes — and it is admitted that a tax on real estate is a direct tax. Unless, therefore, a tax upon rents or income issuing out of lands is intrinsically so different from a tax on the land itself that it belongs to a wholly different class of taxes, such taxes must be regarded as falling within the same category as a tax on real estate eo nomine. The name of the tax is unimportant. The real question is, Is there any basis upon which to rest the contention that real estate belongs to one of the two great classes of taxes, and the rent or income which is the incident of its ownership belongs to the other? We are unable to perceive any ground for the alleged distinction. An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, which would be paid out of the rent or income. This law taxes the income received from land and the growth or produce of the land. Mr. Justice Paterson observed in Hylton’s case, 3 Dall. 171, ‘land, independently of its produce, is of no value;’ and certainly had no thought that direct taxes were confined to unproductive land.
“If it be true that by varying the form the substance may be changed, it is not easy to see that anything would remain of the limitations of the Constitution, or of the rule of taxation and representation, so carefully recognized and guarded in favor of the citizens of each State. But constitutional provisions can not be thus evaded. It is the substance and not the form which controls, as has indeed been established by repeated decisions of this court. Thus in Brown v. Maryland, 12 Wheat. 419, 444, it was held that the tax on the occupation of an importer was the same as a tax on imports and therefore void. And Chief Justice Marshall said: ‘It is impossible to conceal from ourselves, that this is varying the form, without varying the substance. It is treating &■ prohibition which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive, that a tax on the sale of an article, imported only for sale, is a tax on the article itself.’
“In Weston v. Charleston, 2 Pet. 449, it was held that a tax on the income of United States securities was a tax on the securities themselves, and equally inadmissible. . . . So in Dobbins v. Commissioners, 16 Pet. 435, it was decided that the income from an official position could not be taxed if the office itself was exempt.
“In Almy v. California, 24 How. 169, it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented; in Railroad Co. v. Jackson, 7 Wall. 262, that a tax upon the interest payable on bonds was a tax not upon the debtor, but upon the security; and in Cook v. Pennsylvania, 97 U. S. 566, that a tax upon the amount of sales of goods made by an auctioneer was a tax upon the goods sold.
“In Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, and Leloup v. Mobile, 127 U. S. 640, it was held that a tax on income received from interstate commerce was a tax upon the commerce itself, and therefore unauthorized. And so, although it is thoroughly settled that where by way of duties laid on the transportation of the subjects of interstate commerce, and on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce, and can not be sustained, yet the property in a state belonging to a corporation, whether foreign or domestic engaged in foreign or domestic commerce, may be taxed, and when the tax is substantially a mere tax on property and not one imposed on the privilege of doing interstate commerce, the exaction may be sustained. ‘The substance, and not the shadow, determines the validity of the exercise of the power.’ Postal Telegraph Co. v. Adams, 155 U. S. 688, 698.” (pp. 580, 582.)
In the case of The State v. Kelly, 71 Kan. 811, 81 Pac. 450, this court declined to sanction a deceptive piece of legislation which embarked the state upon the work of constructing, maintaining, and operating an oil refinery, a work of internal improvement, contrary to an express provision of the constitution, under the guise of providing facilities for caring for and employing inmates of the penitentiary.
The foregoing sufficiently develops, states, and illustrates all the principles necessary to a decision of the present controversy, and the act of 1915 may now be considered in the light of such principles.
No one could successfully contend that the constitution permits the legislature to exempt all real estate in the state from taxation and so cast the burden of sustaining the government on personal property and other subjects of taxation. No one could successfully contend that all personal property in the state may be exempted from taxation, or that all property belonging to corporations, or to a class of corporations, like’ railroads., may be exempted from taxation. To do so would manifestly violate the rule of uniformity and equality. Yet the constitution itself provides that some real estate and some personal property shall be exempt, and contemplates that further exemptions may be made. Such exemptions must rest on the definite basis of promoting the public welfare in some peculiar and substantial way, and even then they can not be tolerated to the extent of building up large accumulations of favored property which would disturb general equality and uniformity. But where shall the line be drawn,' and on which side, of the line does the. exemption of real-estate mortgages from taxation fall ? - • • - ......
If common business experience furnishes any lamp for guidance in the future the mortgagor would pay'the tax levied by the act of 1915. So far as results have been observed, tabulated, and analyzed .it appears to be. quite unlikely that the interest rate would be substantially affected. The argument from the exemption of municipal bonds- is vitiated by the fallacy of “a factor overlooked,” and it is quite unlikely that any great reservoir of capital, whose movements are controlled by .economic forces and conditions not merely national but international'in character and extent, would be drained into local real-estate mortgage basins by tinkering with local tax laws. So say careful investigators and economists of high qualification and repute. But the legislature may be of a different opinion. It may entertain a belief that its acts will in some way find exemption' from the natural laws governing the business world and will be attended by unusually propitious consequences. It may believe that by a simple exemption statute it can correct a crying evil.of our system of taxation and at the same time solve for this state the problem of rural credits which- is now engaging the earnest attention of statesmen' and’ publicists throughout the United States, including those states which now have mortgage exemption and mortgage registration ' fee laws. Who has knowledge that the scheme is wholly chimerical ? Its operation and results can not be positively determined in advance of a trial. The legislature is charged with the administration of the state’s finances, and not the courts, and is the legislative plan so clearly beyond the warrant of the constitution that the legislature may not make the financial experiment and test the soundness of its views?
It is not inconceivable that a people having the information and the experience and imbued with the ideas and sentiments of those who voted for the adoption of the constitution would be amazed at a proposal to exempt from taxation an entire class of property now estimated to be worth $300,000,000, and by the very act of exemption to be enormously increased, which is owned chiefly by capitalists and money lenders. The constitutional fathers did hot have in mind financial institutions like the mortgage-debenture companies contemplated by section 7 of the act, which will float their bonds in the money markets of the world on the basis of accumulations of untaxed mortgages. They did know-about banks, and they inserted in the constitution a provision immediately following the one quoted and discussed above, which reads as follows:
“The legislature shall provide for taxing the notes 'and bills discounted or purchased, moneys loaned, and other property, effects, or dues of every description (without deduction), of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to that imposed upon the property of individuals.” (Const., art. 11, §2.)
Banks are. large holders of credits secured by real-estate mortgages, and if it had been anticipated that another class of money-lending institutions would be established side by side with banks is it not likely that section 2 would have been broadened to include them, so that all property employed in that business would bear a burden of taxation equal to that imposed on the property of individuals engaged in other pursuits ? But if the state can be supplied with cheaper money by the scheme do not the public benefits to be derived from it bring it within the principle underlying exemption laws recognized -by the constitution ?
In the view the court takes of the law it is not necessary to give categorical answers to the foregoing questions.
The act is a revenue measure, and the tribute levied is a tax. The so-called registration fee bears no relation, proximate or remote, to compensation for services performed or to the subject of reimbursing the state for its outlay in maintaining the office of register of deeds. The usual registration fee charged for these purposes must still be paid. The tax is computed at a per annum rate on the amount of the principal obligation secured as a basis of value. In the beginning the tax is paid for the years the mortgage runs. If the loan be extended at maturity the same per annum rate is paid for the period of the extension. While this is called a “renewal registration fee” there is no renewal of anything for any purpose for which records of instruments are kept. After maturity without an extension an annual tax is paid unless the debt be discharged or foreclosure proceedings be instituted. Exemption from ad valorem taxes and the right to have a mortgage enforced by judgment are secured, not by recording, but by paying the tax. The tax is distributed to the various funds in the treasury precisely as other taxes are distributed, and it has no office to perform except to augment the public revenues.
No general exemption from taxes is declared. A real-estate mortgage is still subject to ad valorem taxes unless the registration tax be paid, and the registration tax is a tax on the mortgage, which is property.
The act was patterned after the New York law of 1906, which was subsequently amended, and which in its amended form constitutes article 11 of the tax law of that state. (5 Consolidated Laws of New York, 1909, p. 4366.) The New York law is the more elaborate. The Kansas law differs from it in details, and contains provisions not found in the model, but the general scheme and the essence and substance of the two laws are identical and in some instances words employed in the same connection are identical. Not being obliged to contend with an obstruction in the form of a constitutional provision requiring a uniform and equal rate of assessment and taxation, the New York legislature frankly designated the imposition which it laid a tax, and a tax on mortgages. The following quotations are illustrative:
“A contract or agreement by which the indebtedness secured by any mortgage is increased or added to, shall be deemed a mortgage of real property for the purpose of this article, and shall be taxable as such upon the amount of such increase or addition.” (§ 250.)
“All mortgages of real property situated within the state which are taxed by this article and the debts and the obligations which they secure, together with the paper writings evidencing the same, shall be exempt from other taxation by the state, counties, cities, towns, villages, school districts and other local subdivisions of the state.” (§ 251.)
“A tax of fifty cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured at the date of the execution thereof or at any time thereafter by mortgage on real property situated within the state recorded on or after the first day of July, nineteen hundred and six, is hereby imposed on each such mortgage, and shall be collected and paid as provided in this article. If the principal debt or obligation which is or by any contingency may be secured by such mortgage recorded on or after the first day of July, nineteen hundred and seven, is less than one hundred dollars, a tax of fifty cents is hereby imposed on such mortgage, and shall be collected and paid as provided in this article.” (§ 253.)
“Whenever any mortgage other than a mortgage specified in section two hundred and sixty-four has been recorded prior to July first, nineteen hundred and six, the record owner thereof may file with the recording officer of the county in which the real property, or any part thereof, on which said mortgage is a lien, is situated, a written statement under oath verified by the record owner or the agent or officer of such record owner describing such mortgage by giving the date of the same and the liber and page of the record thereof together with the names of the parties thereto, specifying the amount then remaining unpaid on the debt or obligation secured thereby, and electing that it shall become subject to the tax prescribed by section two hundred and fifty-three of this chapter.” (§ 254.)
“If subsequent to the recording of a mortgage on which all taxes, if any, accrued under this article have been paid, a supplemental instrument or mortgage is recorded for the purpose of correcting or perfecting any recorded mortgage . . . such additional instrument or mortgage shall not be subject to taxation under this article.” (§ 255.)
“The taxes imposed by this article shall be payable on the recording of each mortgage of real property subject to taxes thereunder. Such taxes shall be paid to the recording officer of any county in which the real property or any part thereof is situated. It shall be the duty of such recording officer to indorse upon each mortgage a receipt for the amount of the tax so paid. Any mortgage so indorsed may thereupon or thereafter be recorded by any recording officer and the receipt for such tax indorsed upon each mortgage shall be recorded therewith. The record of such receipt shall be conclusive proof that the amount of tax stated therein has been paid upon such mortgage.” (§ 257.)
“No mortgage of real property shall be recorded by any county clerk or register, unless there shall be paid the tax imposed by and as in this article provided. No mortgage of real property which is subject .to the taxes imposed by this article shall be released, discharged of record or received in evidence in any action or proceeding, nor shall any assign ment of or agreement extending any such mortgage be recorded unless the taxes imposed thereon by this article shall have been paid as provided in this article. No judgment- or final order in any action or proceeding shall be made for the foreclosure or enforcement of any mortgage which is subject to the taxes imposed by this article or of any debt or obligation secured by or which secures any such mortgage, unless the taxes imposed by this article shall have been paid as provided in this article.” (§ 258.)
“When the real property covered by a mortgage is assessed in more than one county it shall be the duty of the state board of tax commissioners to ascertain the assessed value of-the property in each county and to apportion the amount upon which the tax shall be paid to the recording officer in each of the said counties upon the basis of the relative assessments. . . . When the real property covered by a mortgage is located partly within the state and partly without the state it shall be the duty of the state board of tax commissioners to determine what proportion shall be.taxable under this article by determining the relative value of the mortgaged property within this state as compared to the total value of the entire mortgaged property.” (§ 260.)
The New York act of 1906 supplanted an act of 1905 which levied a tax of five mills on the dollar, uniformly throughout the state, on the legal and equitable owners of bonds, notes,' coupons, or other evidences of debt or obligations secured by any mortgage of real estate and exempted the same from local taxation. In the case of People v. Trust Co. of America, 205 N. Y. 74, 98 N. E. 207, the court incidentally spoke of the tax under the act of 1905 as a property tax and the tax under the law of 1906 as an excise tax.. The distinction, however, evidently referred merely to the method of apportionment, because the legislature of New York rested under no delusion respecting the character of the act of 1906. It intended to levy and in unmistakable terms did levy a tax on mortgages as property and left no room to interpret its action as directed merely toward the civil privilege of placing mortgages on record. That an excise tax may nevertheless be a property tax is made clear in an opinion delivered by Chief Justice Bigelow in the case of Oliver v. Washington Mills, 11 Allen (98 Mass.), 268:
“The words ‘tax’ and ‘excise,’ although often used as synonymous, are to be considered as having entirely distinct and separate significations, under the provisions of the constitution of Massachusetts, c. 1, § 1, art. 4. The former is a charge apportioned either among the whole people of the state, or those residing within certain districts, municipalities or sections. It is required to be imposed, as we shall more fully explain hereafter, so that, if levied for the public charges of government, it shall be shared according to the estate, real and personal, which each person may possess; or, if raised to defray the cost of some local improvement of a public nature, it shall be borne by those who will receive some special and peculiar benefit or advantage which an expenditure of money for a public object may cause to those on whom the tax is assessed. An excise, on the other hand, is of a different character. It is based on no rule of apportionment or equality whatever. It-is a fixed, absolute and direct.charge laid on merchandise, products or commodities, without any regard to the amount of property belonging to those on whom it may fall, or to any supposed-relation between money expended for a public object and a special benefit occasioned to those by whom the charge is to be paid.” (p. 274.)
The statutes of Michigan, Minnesota and Oklahoma are framed according to the New York scheme. In Michigan and Oklahoma, as in New York, no constitutional impediment stood in the way. In Minnesota the constitution was amended to eliminate a provision similar to the equality and uniformity provision of the constitution of this state so that the scheme could be adopted. In Michigan, Minnesota and Oklahoma the legislatures resorted to no veiling device of phraseology, and the tax is known to be what it is in fact, a special tax on a class of property. The supreme court of Minnesota expressed itself on the subject as follows:
“There were good and sufficient reasons why a special method should be devised for the taxation of this kind of property. It is a notorious fact that the owners of securities in the form of bonds and notes have not been in the habit of paying their proportionate share of the taxes. This has been due in a measure to the ease with which the existence of such property can be concealed from the tax officials. But when the owner of a note takes a mortgage on real estate as security, and places it upon the public records, he exposes his ownership — at least, his ostensible ownership- — and enables the assessor to reach him. The perfect security afforded by a good real-estate mortgage makes it necessary for the owner 1;o accept a low rate of interest, and the adequate net returns, after .paying taxes in the ordinary way, often result in practical confiscation. The owner is thus tempted to seek some devious method for escaping taxation, in order that he may be on an equality with the owner of an unsecured note or bond, which rests undiscovered in a safety deposit vault:' The mortgage is therefore taken in the name of a nonresident, or the money is sent to another state, and there loaned in the name of the true owner. Experience has shown that it is very difficult, if not impossible; to fairly and successfully tax this kind of property under the system ordinarily applied to personal property. This practical difficulty alone furnishes a basis for a classification, and justifies the legislature in devising a special method for' the taxation of the subjects of that class. To a certain extent the method provided in the statute under considera tion recognizes the justice of the claim that taxing mortgages according to the ordinary methods results in inequality and injustice, and constitutes a constant temptation to fraud whereby the honest and the innocent are made to suffer. By requiring a registration tax, every mortgage security pays a moderate tax, and this, in the judgment of the legislature, is preferable to the certain uncertainties of the old system.” (Mutual Benefit Ins. Co. v. County of Martin, 104 Minn. 179, 182, 116 N. W. 572.)
The true character of these laws and the reason for their adoption were accurately and concisely stated in an opinion of the supreme court of Michigan, which reads as follows:
“The history of the adoption of this act is a matter of common knowledge. It is well claimed by relator that mortgages and like instruments had been concealed from assessing officers by putting them in the names of nonresidents, withholding them from record, and other familiar means, and it was urged that if a special tax could be imposed upon these instruments when they were recorded, and their foreclosure made dependent upon their having been recorded, and the tax made sufficiently low in amount, there would be an inducement to disclose mortgages to the assessing officer, rather than hide them as theretofore. With this end in view, the act was passed.” (Union Trust Co. v. Detroit Com. Council, 170 Mich. 692, 696, 137 N. W. 122.)
Besides inducing persons who have been in the habit of employing methods to escape taxation to disclose their mortgage holdings, the legislature of this state hoped to attract more capital to the real-estate mortgage business. The court expresses no opinion regarding the soundness of the policy because it has no legal concern with the wisdom or unwisdom of legislative policies. The method adopted to carry out the policy, however, is the method of the property tax. The only marked difference between the statutes of the states referred to and the Kansas statute, barring matters of detail, is that in the latter the soothing term “registration fee” is used instead of the rude word “tax.” The voice is the voice of crafty Jacob, but the hands are the hands of hairy Esau, and the court declines to be deceived by a name when it knows what everybody else knows, that the statute embodies a method now becoming common of taxing real-estate mortgages.
The state of Alabama has a mortgage registration tax law the material portions of which read as follows:
“7. A. No mortgage, deed of trust, contract of conditional sale, or other instrument in the nature of a mortgage, which is given to secure the payment of any debt which such mortgage, deed of trust, contract of conditional sale, or other instrument of like character, shall be executed so as to convey real property or any interest in real property or personal property which is situated within this state, shall be received for record unless the following privilege taxes shall have been paid upon such instrument before the same shall be offered for record, to wit, upon all such instruments which are executed to secure any indebtedness which shall not exceed one hundred dollars, there shall be paid the sum of fifteen cents, and upon all such instruments which shall be executed to secure an indebtedness of more than one hundred dollars there shall be paid the sum of fifteen cents for each one hundred dollars of said indebtedness or portion thereof, which is secured by said mortgage, deed of trust, contract of condition of sale, or other instrument of like character, to be paid for by the lender.
“D. There shall be no ad valorem tax collected upon any such instrument, or the debts secured thereby, which shall have paid the tax prescribed by this subdivision, either state, county, or municipal.” (1 Civ. Code of Alabama, 1907, § 2082, ¶ 7.)
In Alabama judges of probate are the recording officers. When a mortgage is presented for record the taxes are paid to him and he gives a certificate of such payment. He retains a percentage of the tax as remuneration for his services and distributes the remainder, part to the county treasurer and part to the state. If a mortgage cover land in more than one county the tax is divided between them. The legislature of Alabama called this tax a privilege tax. The supreme court of Alabama described the tax as one imposed for the privilege of recording mortgages (State v. Alabama, Fuel & Iron Co. [Ala. 1914] 66 South. 169) and it is a genuine privilege tax. The tax itself is very low, fifteen cents per hundred dollars no matter what the duration of the instrument. The collecting officer retains a part of the tax for his services. The inducement to record and pay the tax, besides the advantages secured by recording, consists in exemption from the usual ad valorem taxes, and a mortgage holder may withhold his instrument from record if he see fit, without any kind of coercion. Stated in another way, the privilege of recording a mortgage, which as property is subject to ad valorem taxes, is denied unless a small tax is paid. If the privilege be exercised an additional privilege is extended, that of exemption from ad valorem taxation; but thé mortgage holder has a free choice to take or to renounce the privilege. If he renounce the privilege he loses nothing but the benefits it affords. He is not driven to swallow his “privilege” under pain of forfeiting his security, as section 6 of the Kansas statute and corresponding sections of statutes like it require.
The. state of Virginia lays a privilege tax on the registration of deeds, mortgages, contracts, and other instruments entitled to record. These taxes are distinct from ordinary property taxes. The supreme court of appeals of that state has properly held that this tax is not a property tax, but is a tax on the civil privilege of enjoying the benefits and advantages of the registration laws. (Pocahontas Collieries Co. v. Com’lth, 113 Va. 108, 73 S. E. 446.) The true character of the tax was illustrated in the casé of Saville v. Va. Ry. & P. Co., 114 Va. 444, 76 S. E. 954:
“No one is requiring the Virginia Railway and Power Company to spread this indenture upon the records. It is free to do as it pleases in that respect. It would not have executed the mortgage in the first place but that it desired, for its own advantage, to furnish the best security it could provide for the payment of its bonds and thereby to enhance their value upon the market. In furtherance of this purpose it sought the privilege of having its second mortgage spread upon the records of the Chancery Court of the City of Richmond, and for that privilege the' state has seen fit to impose the tax which the clerk of that court demanded.” (p. 452.)
No amount of metaphysical involution can harmonize the Alabama and Virginia laws with the Kansas law. When a contribution is levied as the price of a privilege a person may pay the price and enjoy the privilege or forego the privilege and avoid paying the price. The contribution is not exacted unless enjoyment of the benefits and advantages of the privilege is claimed. Take the case of City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288. The city levied a yearly license fee on merchants, measured by the value of the stock of goods carried. Atchison could pay the fee and enjoy the privilege of following his occupation as a merchant. He could reduce his stock and so reduce the amount of the fee, and he could dispose of his stock and so avoid payment of the fee altogether. But if the city had penalized these avenues of escape in such a way that it would have been utterly disastrous to turn to them, it would-be nonsense to say, if he paid the fee, that he exercised a voluntary choice to pay in order that he might enjoy the privilege of merchandising. He would be paying an enforced contribution proportioned according to the value of his stock of goods, and because it lacked even the shadow of a privilege to rest upon the contribution would be a pure property tax.
The statute under consideration assumed that a mortgagee would desire to give notice of his lien and protect his security by filing his mortgage for record. Bringing his mortgage to the register of deeds for record would disclose its existence and form a juncture for the operation of the tax law. So the privilege of recording was used as a stalking-horse and nothing more. But no chances were taken. The statute is utterly indifferent to the subject of spreading mortgages upon the county records. It is of no consequence under the statute whether the mortgage holder ever go near the office of the register of deeds or not. What the statute requires is that the mortgagee shall pay taxes on his mortgage to the county treasurer. Such payment entitles him to a ticket of admission to the register’s office, which he may use or not at his pleasure. But he must pay the tax to the county treasurer under penalty of having every legal quality of his mortgage destroyed. Incidental to this destruction is a prohibition against receiving the instrument for record and recording it.
The form which the ordinary real-estate mortgage takes is familiar to all. It is not alone .an. instrument-of ultimate security. Usually there are covenants accelerating the time of payment under certain conditions and increasing the rate of interest after default, • and covenants relating to insurance, waste, the payment of taxes, the existence of prior liens and encumbrances, and defects in title. While the moral factor, the character and pecuniary circumstances of the mortgagor, may be considered, the mortgagee depends upon his mortgage to protect the money he lends. The striking down of the instrument as evidence of his rights and as the basis of a judgment of foreclosure whereby the money loaned may be collected can not be suffered by any prudent investor. Apart from and independent of any privilege to record, the mortgagee must pay the tax on his mortgage to prevent its emasculation. Consequently the registration fee is not the mere price of the privilege to register, but is a compulsory exaction levied for revenue purposes directly upon the mortgage as such, which loses its quality of evidence and security unless the tax be paid.
The result is that the statute undertakes to classify the prop erty of the state for purposes of taxation, to place real-estate mortgages, or, speaking accurately, some real-estate mortgages, in a class by themselves, and to subject such mortgages to a specific tax, all contrary to the express command of the constitution. This can not be done, and the statute is void.
The motion to quash is sustained.
STATUTE.
Chapter 250 of the Laws of 1915 reads:
Senate Mil No. 680.
An Act relating to registration fees for, and taxation of, real estate mortgages.
Be it enacted by the Legislature of the State of Kansas:
Section 1. The words “real property” and “real estate” as used in this act, in addition to the definition thereof contained in the General Statutes of 1909, shall include all property, a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state. The words, “mortgage of real property” shall include every instrument by which a lien is created or imposed upon, or which affects the title to, real property, notwithstanding that the debts secured thereby may also be secured by a lien upon or interest in personal property. An executory contract for the sale of real estate, or a bond for a deed in which time is not made the essence of the contract, under which the grantee or vendee is entitled to the possession of such real estate, or by which the grantor holds the legal title as security for the unpaid purchase money, shall, for the purpose of this act, be treated as a mortgage of real property to secure the balance of the unpaid purchase price.
Sec. 2. Before any mortgage of real property shall be received and filed for record on and after the first day of July, 1915, there shall be paid to the county treasurer of the county in which such property, or a part thereof, is situated, a registration fee for each one hundred dollars, and major fraction thereof, of the principal debt or obligation which is, or under any contingency may be, secured by such mortgage, the sum of fifteen cents per annum for the full term of the loan; provided, that nothing in this act shall be construed as requiring a registration fee of more than $5,000 on any one mortgage of real property and such fee upon any such mortgage shall be paid at the time such instrument is presented for record and shall be paid in advance of it being recorded; and provided further, that mortgages given to building and loan associations as security for non-negotiable loans shall be exempt from the payment of the tax imposed by this act. The owner or holder of every such mortgage falling due after July 1, 1915, which is not paid at maturity, shall within six months immediately after the maturity of such mortgage, pay to the county treasurer of the county where it is recorded a renewal registration fee, on the amount remaining unpaid for the time renewed or extended, if renewed or extended, and if not renewed or ex tended, then for one year, equal to the fee required for a mortgage, for the same amount and time, executed on the date of such maturity; and in case such mortgage is not renewed or extended and remains unpaid, then at the expiration of the year for which the fee has been paid, a fee for the next year shall likewise be paid until such mortgage is paid in full; provided, that if an action is commenced in good faith for the foreclosure of any such mortgage, within six months after its maturity and prosecuted without unnecessary delay to final judgment, no such renewal registration fee shall be required. All renewal fees shall be apportioned and distributed in the same manner as the original registration fees. No fee shall be required in case a mortgage is given solely for the purpose of correcting or perfecting a previously recorded mortgage, or of providing additional security for the same indebtedness, where such registration fee has been paid on the original mortgage.
Sec. 3. The registration fees herein provided shall be in addition to the fees fixed by law for filing and recording such instruments. Upon payment of the registration fee to the county treasurer it shall be his duty to indorse upon the instrument presented a receipt for the payment of such fee, which shall be substantially in the following terms:
Registration fee amounting $-
Paid this-day of-191—
-Treasurer,
-County, Kansas.
The county treasurer shall number each instrument on which a registration fee has been paid, and keep in a book provided for that purpose a record of such number, description of the mortgage and the amount of the registration fee collected. All such fees shall be paid tp the county treasurer under the provisions of this act and shall be apportioned by the county treasurer and credited to the various funds in the same manner as is the tax upon the real estate which is mortgaged.
Sec. 4. When a mortgage covers property situated in two or more counties, the registration fee herein provided shall be paid to the county treasurer of the county where it is first presented for record, and the county treasurer so receiving such fee shall apportion the same among the counties in which the real estate is situated in proportion to its assessed valuation and pay the same to the respective county treasurers. Should any contention arise as to the division and distribution of any registration fee, the same shall be referred to the state tax commission, whose decision shall be final.
Sec. 5. When the real property covered by a mortgage is located partly within and partly without this state, the state tax commission of Kansas shall determine what registration fee shall he paid, by determining the relative values of the mortgaged properties within and without the state, taking into consideration in so doing the amount of prior encumbrances upon such property or any part thereof. If a mortgage covering property partly within and partly without the state is presented .for record, before such determination has been made by the state tax commission, there may be filed with the county treasurer a verified statement, in duplicate, made by the mortgagor or an officer or duly authorized agent or attorney of the mortgagor, specifying the value of the property covered by the mortgage within and without the state, stated separately, one of which statements shall be transmitted by the county treasurer to the state tax commission. On such statements the registration fee to be paid shall be computed upon such proportion of the entire indebtedness secured by the mortgage as the vaule of the mortgaged property within the state shall bear to the total value of the entire mortgaged property as shown by such statements. The fees so paid to the county treasurer shall be retained by him until final determination by the state tax' commission. The state tax commission shall thereupon, on not less than ten days’ written notice; served personally or by mail upon the person making such statement and the mortgagee, proceed to determine what proportion of the principal indebtedness secured by the mortgage shall be used as the measure for the registration fees within this state, and shall also'determine'.'the proportion of-, the fees which shall be -paid to the several county treasurers of the respective counties in this state in which mortgaged property is situated... A copy of .such determination of the state tax commission shall be forthwith served upon the persons making' such statement, upon' the mortgagee,- and upon the county treasurer to whom the -fees -were paid, together with the notice requiring the payment to the proper county treasurer, within ten days thereafter, of the amount of-the registration fees required on such mortgage', if any remain unpaid as determined by said board. Such additional fees shall become due and payable at the expiration of ten days from the receipt of notice of the determination of the said tax commission. As soon as such fees are paid to the proper county treasurer he shall apportion 'and transmit the-same to the several .county treasurers, of the-counties where any of the mortgaged lands are situated as in other cases. The. state tax commission shall adopt rules to govern their procedure and the manner of taking evidence in these matters, and may require certified statements to be furnished by county officers of the respective counties in relation thereto. A minute of the determination of the state tax commission in any such case shall be entered on the margin of the record of the mortgage where first recorded, by the register of deeds, on receipt of a statement of such determination from -the county treasurer of his county.
Sec. 6. ■ Any mortgage of real property, executed after July 1, 1915, on which the registration fee as herein provided has not been paid, shall not be filed for record, or recorded, by any register of deeds, neither shall such mortgage'be received in evidence in any suit, action, or proceedings, nor shall any judgment or order for the enforcement thereof be made or entered in any court.
Sec. 7. All mortgages of real property executed after July 1, 1915, upon which the registration fees have been paid as provided in this act, as well as the debts and obligations which they were given to secure, and all mortgage-debenture notes or bonds, issued under existing statutes of the state, and registered with the state treasurer of the state of Kansas under such regulation as he may see fit to make, said registration stating that the said mortgage-debenture note or bond has been secured by a first mortgage that has been registered according to the pi*ovisions of this act and deposited with the said state treasurer, and that said mortgage'bears a rate of interest not to exceed six per cent per annum and is a first lien against real estate in an amount not to exceed fifty per cent of the appraised valuation of said real estate, and after having been so registered and a flat registration fee of ten cents per hundred dollars paid into the state treasury, shall be exempt from taxation by the state, -counties, cities, townships, school districts, and other municipalities of the state; but such, exemption shall not apply to any mortgage which is not given in good faith to secure the debt therein described, but is given for the purpose of securing exemption from taxation upon the indebtedness described in the mortgage; and in such case any notes, bonds, or other obligations .or indebtedness purporting to be so secured shall be subject to taxation the same as if such mortgage had not been given.
Sec. 8.. All mortgages of real property executed prior to July 1, 1915, shall be taxable under the general tax laws of this state, provided that such mortgages shall be exempt from taxation upon the payment by the holder thereof to the treasurer of the proper county of the registration fees herein provided for mortgages executed on and after July 1, 1915, upon the amount of the debt thereby secured and remaining unpaid. Upon such payment the treasurer shall endorse his receipt of such fees upon the original mortgage and a memorandum thereof shall he made by the register of deeds upon the margin of the record of the mortgage; provided further, that before the owner of any note secured by -real éstate mortgage, or contract giving him a lien as security on real estate, executed prior to July 1,1915, shall avail himself of the- privileges of this act, he must pay all. taxes which should have been paid by him on such note, mortgage or contract, prior to said date, had' the same been properly listed as required by law.
Sec. 9. All acts and parts of acts in conflict with this act are hereby repealed.
Sec. 10. This act shall take effect and be in force from and after its publication in the official-state paper.
Approved March 10,1915.
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The opinion of the court was delivered by
Dawson, J.:
This was a mortgage foreclosure case. The words “payable annually” were omitted from the note. By the terms of the note the makers promised to pay the principal five years after date with interest at the rate of seven per cent per annum from date. It provided:
“The right is hereby reserved to pay $100.00 or any multiple thereof at any interest paying period, provided 30 days’ notice is given.”
The mortgage provided:
“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.”
Out of an abundance of caution the plaintiff in his petition to foreclose alleged that there was a mistake in the note and mortgage in that the words “payable annually” were omitted, and prayed that the instruments might be reformed to include those words. This was permitted. But eventually the court came to the conclusion that there was enough in the note and mortgage to show that the interest was to be paid annually, and granted the foreclosure of the premises.
In the course of the proceedings in the district court defendants’ demurrer to plaintiff’s petition was overruled, and the defendants, W. M. Bell and his wife, filed separate answers. Mrs. Bell’s answer was verified, but it admitted the execution of the note and mortgage. W. M. Bell’s unverified answer likewise admitted the execution of the instruments. After hearing the evidence, the plaintiff waived his claim for a personal judgment against Mrs. Bell, whereupon the court discharged the j ury and gave j udgment for the plaintiff.
Various alleged errors will be briefly discussed.
We think the note and mortgage did not need reformation or correction. The reservation to pay $100, or any multiple thereof, “at any interest paying period,” added to the other provisions of the note, make it clear that the interest was payable annually, and a default in the payment of interest and taxes warranted the institution of foreclosure proceedings» Moreover, Bell paid the interest at the end of the first year, and this was in effect an interpretation by himself as to the time when the interest was due and payable. On cross-examination Bell admitted that at the time of his first payment of interest he thought it was payable annually. Further, he said:
“Q. Whát do you mean by your answer, was it your intent to recite in the note the payment of interest annually? A. Yes, sir.”
There can be no difficulty as to the judgment against W. M. Bell. His answer was unverified. (Civ. Code, § 110; Rose v. Boyer, 92 Kan. 892, 141 Pac. 1006.)
(2) Complaint is made as to the court’s calculation of accrued interest, but the alleged error is not clear. In Holmes v. Dewey, 66 Kan. 441, 71 Pac. 937, it was said:
“An agreement by the makers of a promissory note to pay interest at six per cent per annum from its date until maturity, and ten per cent after that time, is not unlawful as to the excess over six per cent agreed to be paid after the note should become due.” (Syl. ¶ 1.)
The cases of The State v. Elliott, 61 Kan. 518, syl. ¶ 3, 59 Pac. 1047, and Investment Co. v. Brown, 89 Kan. 66, 130 Pac. 665, are to the same effect. (See, also, Robbins v. Maddy, 95 Kan. 219, 147 Pac. 826.)
Appellants do not point out just what is the matter with the district court’s computation of the interest. They do not show in what respect it is excessive, usurious or illegal, and the general findings of the district court pertaining thereto must be approved.
Since the title to the property was in the name of W. M. Bell and no personal judgment was rendered against Mrs. Bell, she has no interest in this cause upon which she can base an appeal. The lands involved in this foreclosure suit were not a homestead. They were unoccupied. (Gen. Stat. 1909, § 2942.) In this we are not overlooking what has been recently decided in Williams v. Wessels, 94 Kan. 71, 145 Pac. 856, nor the general doctrine announced in Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245. The so-called inchoate interest of a wife in a living husband’s Kansas lands does not apply to his lands which are lawfully subjected to judicial sale. Again, in this case the wife joined in the note and mortgage, and thus in effect the debt was hers as well as her husband’s, and this brings the case within the rule of Trowbridge v. Cunningham, 63 Kan. 847, 66 Pac. 1015.
The answers of both husband and wife, after admitting the execution of the note and mortgage, only sought to traverse the issue of mistake in the omission of the words “payable annually” in those instruments. As we view that issue, it was of minor consequence how the district court disposed of it; that issue being altogether an immaterial one since the fair import of the instruments read and construed together in all their recitals justified the interpretation that the contract so provided.
As nothing approaching reversible error is indicated in this appeal the judgment must be affirmed. | [
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The opinion of the court was delivered by
West, J.:
Certain lands were partitioned and sold, the plaintiff being the purchaser and receiving a deed. During the pendency of the partition suit a claim was filed in probate court against the estate of the deceased owner of the land. The claim was allowed prior to the sale in partition. The claimant was the wife of one of the defendants in the partition suit, and her attorney appeared therein in district court as attorney for her husband. It was alleged that she had full actual notice and knowledge of the pendency of the partition suit but permitted the plaintiff to purchase without objection, .he relying on such failure to object as a waiver. After the sale of the land the administrator advertised it for sale to satisfy the claim in question, and the purchaser at the partition sale brought this action to enjoin the administrator’s sale. A demurrer to the petition was sustained. The question is, whether or not on the death of the owner of the land his estate went to his heirs subj ect to the payment of his debts so as to include the claim in question as against the purchaser in partition.' The plaintiff contends that it was the business of the claimant to intervene in the partition suit, and that not having done so she can not question the title of one who purchased and paid full value, while the defendant seeks to maintain that the purchaser paid his money knowing that the land he bought might be -called upon to respond for debts of-the deceased in case the-personal property should-not be sufficient. -
Authorities from other states are cited, but such decisions being usually controlled by local statutes do not shed much light upon the question now under consideration. Both by statute and by decision, however, all doubt is removed from the rule that upon the decease of its owner the title to real property left by him descends directly to the heirs, subject, if necessary, to the payment of his debts. (Gen. Stat. 1909, .§§ 2935, 2952; Black v. Elliott, 63 Kan. 211, 215, 65 Pac. 215, Spencer v. Barker, ante, p. 360, 364; 18 Cyc. 692; 30 Cyc. 198;)
It is also the rule that in a partition suit all the interests of the parties thereto may by proper pleading be fully determined. (Civ. Code, § 64-8; English v. English, 53 Kan. 173, 35 Pac. 1107; Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096; Goodnough v. Webber, 75 Kan. 209, 88 Pac. 879; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074.) But the'statute requires only that lien holders be made parties. (Civ. Code, § 637; Hazen v. Webb, supra.) It has been said that under no circumstances should general creditors be made parties to an action in partition. (Sheehan v. Allen, 67 Kan. 712, 714, 74 Pac. 245.)
In Sample v. Sample, 34 Kan. 73, 8 Pac. 248, it was said:
“If, however, the real estate should be partitioned and afterward it be found that the personal assets were not sufficient to pay all' claims against the estate, then the real estate or a portion thereof ■ could be sold to satisfy such claims.” (p. 77.)
In Thomas v. Williams, 80 Kan. 632, 103 Pac. 772, it was held that one who buys land from the. devisees seven years after the death of the testator, while resident of another state, is not protected as an innocent purchaser against proceedings thereafter brought to subject such land to the payment of debts of the estate. At the close of the opinion it was said:
“Price, the. purchaser of the land, stands upon no better footing than the devisees. He knew that his grantors -acquired title through the will of William E. Jones, and was presumed to know that under the law the property might be charged with the payment of any indebtedness of Jones owing to a creditor who had not lost his remedy by inaction. He had no right to regard the mere lapse of time as proof that no such indebtedness existed. He was bound at least to inquire whether a settlement of the estate had been had, and a pursuit of that inquiry would necessarily have advised him of all the facts.” (p. 640.)
No question of limitation or laches is raised, and it must be held that when the plaintiff purchased the land at the partition sale he took title subject to valid claims against the estate which the personal property was not sufficient to pay.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In a petition for a rehearing the appellee urges that a recovery should be denied by reason of the provision of the federal employer’s liability act (or the corresponding part of the Kansas statute) which entitles the defendant in such an action to a set-off on account of insurance, relief benefit or indemnity. This contention apparently was not made in the trial court, since it is not referred to in the brief here, and it will not now be considered. The petition for a rehearing is denied, but without prejudice to the right of the defendant to present in the district court whatever defense it may have in that connection. | [
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The opinion of the court was delivered by
Dawson, J.:
This case arose over a land trade. The plaintiff, John H. Feldhut, who owned a ranch in Clark county, made a bargain to exchange it for a large tract of Finney county land belonging to the defendant, John W. Brummitt. The lands- were to be free and clear of all incumbrances except specified mortgages. The real-estate agent who negotiated the deal was selected as the depositary of the deeds of both properties, the deeds to. be delivered when the titles were approved. Feldhut employed a Garden City lawyer to examine the titles to the lands which he was to receive. This lawyer advised that the defendants’ titles were unmarketable, and that the lands were incumbered with rights of way for railroads and irrigation ditches, a defective release of a mortgage, a pending attachment suit, and some unpaid taxes. Nevertheless, the real-estate agent, eager to secure his commissions, $800 from Feldhut and. $1000 from Brummitt, delivered Feldhut’s deeds covering the Clark county lands to Brummitt; and Feldhut brought this suit to rescind the contract and recover his instruments of title, and to cancel his conveyances to Brummitt. He also prayed in the alternative for damages.
■ From a decision granting a rescission in favor of plaintiff the defendants appeal. The principal contention here is whether an irrigation ditch and rights of way for irrigation ditches were incumbrances on the property. On this question there is a conflict of authority, but it may be conceded that in the Eastern states and among the older decisions the weight of authority would be in the affirmative. (39 Cyc. 1501, 1503.) Perhaps in the West, also, unless the question is affected by statute, the weight of authority is to the same effect. (Eriksen v. Whitescarver, [Colo. 1914] 142 Pac. 413; Wingard v. Copeland, 64 Wash. 214, 116 Pac. 670.) Where, however, the local conditions have called for the special exercise of legislation, as in Idaho where by acts of congress and state statutes a comprehensive irrigation system has been established, and public records of maps, rights, easements, ditches, etc., pertaining thereto are preserved, the rule is that irrigation ditches are not an incumbrance. (Schurger v. Moorman, 20 Idaho, 97, 117 Pac. 123, 36 L. R. A., n. s., 313.)
This court has considered a somewhat analogous question in Ireton v. Thomas, 84 Kan. 70, 113 Pac. 306, where it was held that a levee on the Neosho river established by law and maintained at public expense, and plainly open to the view of a purchaser, was not such an incumbrance as would constitute a breach of warranty in the sale of a tract of land upon which the levee was located.
We are urged to apply this doctrine to irrigation ditches in this state. If this is to be done, it must be on the basis that the irrigation ditch is plainly observable to inspection; and could not be placed on the basis chiefly argued by appellant. He would put it on the ground that irrigation is necessary in western Kansas, and that we should adopt the Idaho, doctrine. We could not do that. The situation in our state is peculiar. In eastern Kansas the Idaho or arid states’ doctrine would be entirely inappropriate; in central Kansas it would be of doubtful propriety; in the extreme parts of western Kansas it might do very well; but no court has power to divide this state, like all Gaul, into three parts, and impose a peculiar doctrine upon our western frontier.
(See, further, Clark v. Allaman, 71 Kan. 206, 230-237, 80 Pac. 571.)
But even applying the doctrine of Ireton v. Thomas, and granting that an irrigation ditch in plain view is not an incumbrance constituting a breach of covenant, the land in controversy was also incumbered by mere rights of way for irrigation ditches, and by conveyances of rights of way for irrigation ditches. These were not observable in a physical inspection of the property. They were indefinite in extent and duration. It was uncertain what if any rights the fee-holder would have to the water if these rights of way were established and the ditches constructed thereunder. Shall we say that these too were not incumbrances ?
The matter was disposed of by the district court in the following general findings:
“In the ease at bar, the plaintiff upon investigation would certainly have discovered the irrigation ditch and the railroad. While plaintiff can not rescind or complain because these incumbrances are upon the land, does there remain any uncertainty as to the title?
“The abstract shows a series of transfers of a right-of-way ’ for an irrigation ditch. The first transfer is in 1890, and the last concerning that right-of-way in 1906, when the Finney County Water Users Association acquired title. Subsequent to this is a deed for a right of way for an irrigation ditch from the United States Irrigation Company made August 2, 1910, and recorded August 10, 1910. This deed conveys a right-of-way in Kearny and Finney counties and across the land in controversy.
“The evidence seems to indicate that there is but one ditch on the land. Undoubtedly this ditch is the one involved in the several transfers beginning in 1900 [1890]. The United States Irrigation Company then has either this ditch or a mere right-of-way.
“The defendant claims these transfers are what is termed merely ‘stray deeds’ and therefore not clouds on the title. The deeds in question, however, are from corporations having the power of eminent domain. They could acquire an interest by condemnation proceedings and possibly did so. Possibly they have some rights based upon unrecorded deeds or more likely some rights based upon mere adverse possession. They may, in fact, have no real interest either through failure to comply with the law, or abandonment. The deeds may in fact be strays. But a purchaser, promised a clear title, ought not to be compelled to clear the record of possible claims and interest to protect his title. The duty should be transferred to the vendor and the abstract to show a clear title.
“Again, there is nothing to inform the purchaser as to possible and probable rights of either irrigation company to construct other ditches and laterals.
“Again, the purchaser is not advised as to any water rights that may pass with the title.' If he bought expecting to obtain water rights the abstracts fail to show he was entitled thereto.
“In general, the purchaser may be thrown into litigation to clear his title.
“The plaintiff had no personal knowledge either of the ditch or the railroad, before the contract was executed, but as these are visible to the eye, he can not be permitted to rescind for that reason. For the other reasons stated the contract should be set aside, all papers returned and the parties placed in the same position as before the execution of the contract.”
These general conclusions are undoubtedly correct. Tried by the ordinary tests, the appellant’s title was not marketable to the extent that he could compel specific performance. (McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834; Williams v. Bricker, 83 Kan. 53, 109 Pac. 998; Linscott v. Moseman, 84 Kan. 541, 114 Pac. 1088; Spaeth v. Kouns, 95 Kan. 320, 148 Pac. 651.) In view of this, and keeping in mind that the surrender of the deeds by the real-estate agent was without authority and in plain violation of the terms constituting him the depositary of' the contracting parties, this lawsuit is to be determined exactly by the same principles of law as if it were an action to compel specific performance; and since we can not discover any reversible error in the district court’s general findings, its judgment must be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action J. F. Duggan sought to recover damages under the federal employer’s liability acts from The Missouri Pacific Railway Company for personal injuries. On October 4, 1913, Duggan was employed by the defendant as a head brakeman on extra freight train No. 424, and was injured when that train collided, head-on, with extra freight train No. 475. Duggan was thrown from the steps on the side of the engine and tender down a steep embankment, and suffered injuries and loss of time for which he asked damages in the sum of $6162. It appears that while at Cornell, Kan., the conductor of train No. 424 was ordered to meet train No. 475 at Godfrey. Instead of personally delivering the order to the engineer and reading it to him the conductor read the order to plaintiff and t'old him to hand it to the engineer. Plaintiff did so, but does not know whether or not the engineer ever read the order. When train No. 424 came to Godfrey plaintiff was riding in the engine cab on the fireman’s seat, and he then told the engineer that his understanding of the order was that they were to meet train No. 475 at that point. The engineer, however, claimed such was not the case, and continued on toward Fort Scott. When near that city and on a descending grade about one mile from the station the collision occurred. The rules of the company providing that the brakeman should be on the top of trains when on descending grades, that the orders should be delivered personally by the conductor to the engineer and read to him, and, in plaintiff’s behalf, that a' brakeman when riding on the engine was under the control of the engineman, w;ere introduced in evidence. Defendant’s demurrer to plaintiff’s evidence was overruled, and on February 7, 1914, the jury returned a verdict in plaintiff’s favor for $1000. Defendant moved for judgment on the answers to the special questions returned by the jury, but the motion was denied. Within the proper time plaintiff moved for a new trial on several grounds, and on March 14, 1914, he filed his motion to amend his motion for a new trial by adding the ground of misconduct of the jury, and this motion was allowed. On June 6, 1914, the court sustained the amended motion for a new trial on the ground of misconduct of the jury and overruled it as to all other grounds. From the adverse rulings defendant appeals.
Complaint is made that the court erred in permitting the amendment of the motion for a new trial and in allowing the motion on the added ground. Six grounds for a new trial were alleged in the original motion, but misconduct of the jury was not one of them. More than a month after the return of the verdict leave was asked and obtained to amend the motion and add the new ground of misconduct of the jury. The misconduct was the statement of a juror in the jury room that he had learned from an attorney that when a demurrer to plaintiff’s evidence was submitted the court was about to uphold it and throw the case out of court, and jurors who were voting for an award of $6000 voted for $1000. In accounting for the filing of the amended motion more than three days after the verdict it was stated in an affidavit of plaintiff’s attorney that the misconduct of the jury was unknown to the plaintiff or to his attorney when the original motion for a new trial was filed, nor .until after the statutory period of three days had expired, and further, that they could not by due diligence have discovered it at an earlier time. The motion was sustained, as we have seen, on the added ground of misconduct of the jury, and overruled as to all the other grounds alleged in the motion. If the amended motion was not filed in time it was a nullity, and the action of the court in allowing the motion for a new trial must be reversed. The section of the code limiting the time for filing motions for new trials reads:
“The application for a new trial, except for the cause of newly discovered evidence, must be made by written motion stating the grounds therefor, filed within three days after the verdict or decision is rendered, unless unavoidably prevented. Such motion -may be heard and decided by the judge at chambers on reasonable notice to the parties.” (Civ. Code, § 306.)
The grounds alleged in the original motion having been overruled the amended motion is to be treated as if it' was the original one, and as the ground alleged therein was not newly discovered evidence the motion was filed too late unless the plaintiff was unavoidably prevented from filing it within the three-day period. The plaintiff insists that he was unavoidably prevented from filing the motion on the new ground within the prescribed time because he had not then learned that there had been misconduct of the jury and could not by due diligence have ascertained it. What is meant by the term "unavoidably prevented?” The phrase can hardly be the equivalent of what is called an act of God, but it can hardly be less than some obstacle or hindrance which a party, can not overcome by the reasonable exercise of his powers and the use of means that are available to him. It has been held that the adjournment of the court on the next day after the decision was rendered was not an unavoidable cause for delay beyond the three-day period. (Pratt v. Kelley, 24 Kan. 111.) It has also been decided that the pendency of a motion for judgment on the special findings affords no excuse for delaying the filing of a motion for a new trial within the prescribed time. (Clement v. Hartzell, 60 Kan. 317, 56 Pac. 504.) In Mercer v. Ringer, 40 Kan. 189, 19 Pac. 670, a party prepared his motion for a new trial and mailed it to the clerk of the district court on the third day after the decision of the court, but as it did not reach the post office until seven p. m. of the last day the clerk. did not call for or file it until the fourth day, and it was held that the movant was not unavoidably prevented from filing it within the prescribed time. It is the view of the court that an unavoidable cause within the meaning of the code is not the lack of information of a party as to facts in the case which may be learned by inquiry, but is some such hindrance as prevented the filing of the motion in Fudge v. St. L. & S. F. Rly. Co., 31 Kan. 146, 1 Pac. 141. There the attorney charged with the duty of filing the motion was unable to reach the court and to file his motion by reason of high water 'which interrupted travel. Likewise it might be regarded as an unavoidable prevention if a party placed his motion in the mail in good time and it was not received because of a storm, a railway accident or some interruption of the mails for which the party was in no way responsible. A delay might be regarded as unavoidable if the movant or his counsel had been stricken with an illness which prevented the filing of the motion within three days after the verdict or decision. The prevention, however, can not be regarded as unavoidable merely because the party is unaware of the facts in the case or the existence of a ground for a new trial which could have been ascertained' by an inquiry. The misconduct in the j ury room was known to a number of people, and the plaintiff could have learned of it within the time fixed by the code for the filing of his motion for a new trial. In a Nebraska case based on a somewhat similar statute a party claimed the right to file a motion for a new trial after the prescribed time because an attorney upon whom he had relied to file the motion had failed to do so, and the court ruled that he was not unavoidably prevented within the meaning of the statute, the court holding the delay or the prevention referred to was some circumstance which was beyond the control of the party desiring to file the motion. (Roggencamp v. Dobbs, 15 Neb. 620, 20 N. W. 100.) It must therefore be held that the motion for a new trial was a nullity and that the allowance of it was error.
It is further contended that upon the facts admitted and found judgment should have been given in favor of the defendant. This contention is based upon the theory that the collision and injury was the result of plaintiff’s negligence. The conductor, as we have seen, handed to plaintiff the train order to be delivered to the engineer when the rules required that the conductor should personally deliver the order to the engineer, and read it to him at the time of delivery. It appears that the conductor read the order to the plaintiff or told him that they were ordered to meet a train at Godfrey, and he in turn handed it to the engineer. When the train moved on and as they approached Godfrey the plaintiff, who was riding in the cab of the engine, observed that they did not slow down, and remarked to the fireman that he understood the conductor to say we would meet a train here. The fireman asked the engineer if that was the order and he replied that it was not. Plaintiff then asked the engineer if he was sure that they were not to meet the train at Godfrey, and he replied that he was sure of it. They ran on and met the southbound train on a descending grade near Fort Scott. Plaintiff says that he had not read the order, and when the engineer insisted that they were not to pass the train at Godfrey, and further, when the conductor did not “pull the air” he concluded that he was mistaken as to the nature of the order. Besides, there is a rule of the company that a brakeman when riding in the cab must obey the instructions of the engineer in all matters relating to the protection of the train. The conductor of the train was, of course, negligent in failing to deliver and read the train order to the engineer, and the engineer was likewise negligent in failing to correctly read and interpret it. The plaintiff participated in the violation of the rule when he carried the order to the engineer at the direction of the conductor. Although the brakeman was under the direction of the conductor the plaintiff was acquainted with the rule requiring the conductor to personally deliver train orders to the engineer and that they should be read by one to the other. The conductor is required to have the brakeman on the top of the train before, arriving at and in passing stations as well as on ascending and descending grades, and it appears that the train was on a descending grade and that the plaintiff was in the cab at the time of the accident. He knew they were on a grade, but it does not appear that the conductor had given any order or requested that he should take his place on the top of the train at this time. 'The plaintiff is chargeable with negligence in carrying-the train order to the engineer although it was required of him by his superior officer. However, it was no more than contributory negligence, which may diminish but does not preclude a recovery. The action is brought under the federal employers’ liability acts, which, in effect, provide that contributory negligence is not a defense but may be shown in mitigation of damages, arid where it exists the amount of recovery is diminished in proportion to the negligence attributable to the employee. No error was committed in denying the motion for judgment on the findings.
It follows that the judgment of the district court granting a new trial must be reversed and the cause remanded with directions to enter judgment on the general verdict returned by the jury. | [
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Johnston, J.
The appellant was convicted of giving her husband, who had committed the offense of rape, aid, with the intent and in order that he might escape arrest, conviction and punishment. Charles Doty and Almira were husband and wife, and Nannie Williams was the daughter of Almira by a former husband ; and they lived together as a family in Oxford, Sumner County. Nannie was 16 years old on February 4, 1896, and it appears that Doty had been having sexual intercourse with her for about three years before that time. On June 10, 1896, she gave birth to a child, which lived but a few hours. Two days before the birth of : the child, a physician was called to see Nannie, and, after an examination, told her mother, Almira Doty, that the girl was pregnant. After the doctor went away, the mother asked the daughter who was the.father of the unborn child, and was told that it was Charles Doty. Afterward, Mrs. Doty told her daughter that she wished they could say it was some one else, and not Doty. Two clays later the child W'as born, and Mrs. Doty inquired of the doctor if Nannie could be moved so they could get away from Oxford, but the doctor said she could not. She then suggested that the matter be kept quiet, and asked the doctor to withhold a report of the birth to the State Board of Health. Two days later, she told the doctor that he might make his report. It appears that a conference had been had between Charles Doty, Almira Doty and Nannie Williams in regard to charging the paternity of the child upon some one else than Charles Doty, with a view of shielding him from the consequences of the crime. It was agreed among them thát, upon inquiry, Nannie should say that the father was Henry McPierson; and, in accordance with the agreement, Nannie told the County Attorney and the Sheriff, who questioned her, that McPierson was the father of the child. Among other things they told her to say, was, that she had met McPierson in the schoolhouse grounds in July, 1895, and had there had sexual intercourse with him ; that he had just come from the “ Strip ” ; that he went from Oxford to Belle Plaine ; that he wrote her from Belle Plaine in November, 1895, to meet him at the schoolhouse grounds on a certain evening ; that she met him as suggested in his letter, and again had illicit intercourse with him ; that, at the meeting in November, he told her that he was going to Indiana; that, from and after that meeting, she never saw him again or heard from him. It was also suggested to her that if she should only name one person the County Attorney might not believe it, and that she had better name two persons ; and she was told by her mother to say that the other person was Ezra Shriver. Shriver lived in the community, but it appears that there was no such person as Henry McPierson. Her mother advised her to adhere to the story which she had told to the officers; that she might be sent to the House of Correction, but the term would not be long, and that that would be better than to. have Doty go to the penitentiary. About the time she told this story, and on June 15, 1896, Doty was arrested, charged with the crime of rape. He waived a preliminary examination and was bound over to the District Court for trial. On June 30, 1896, he was arraigned in the District Court, entered a plea of guilty, and the Court entered judgment on the plea, sentencing him to the penitentiary for the period of 21 years. Shortly afterward, his wife, Almira 'Doty, was arrested, tried and convicted as an accessory after the fact.
The prosecution was brought under section 422 of the Crimes Act, which reads :
“ Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction or punishment, and no other, shall be deemed an accessory after the fact; and, upon conviction, shall be punished by confinement and hard labor not exceeding five years, or in the county jail not exceeding one year nor less than six months, or by fine not less than four hundred dollars, or by both a fine not less than one hundred dollars, and imprisonment in a county jail not less than three months.” (Gen. Stat. 1889,,¶2562.)
The main question presented for decision is whether what was said and done by Almira Doty brings her within the condemnation of this statute. In fact, it seems that nothing was done by her to conceal her husband or to aid him to escape ; at least there were no overt acts. In her distress, occasioned by the shame of her daughter and the perfidy and crime of her husband, she did ask her daughter to tell an untruth as to the paternity of her child; but there was no act, nor anything more than mere words. We think that the part taken by her in the transaction does not make her an accessory after the fact, nor make her amenable under the quoted statute. The word “ aid,” in its broader signification, might include assistance like the failure to disclose a felony by. one having knowledge of its commission, or assisting the offender in obtaining witnesses to testify in his behalf, or giving untruthful testimony in his behalf at the trial. While these might aid the offender in escaping punishment, it certainly is not such aid as the statute contemplates. The character of the aid is indicated by the particular words used in the commencement of the section, and it shows that it must be some substantial act of personal assistance. It will be observed that the concealing of an offender is first mentioned, and then there is added the giving of such offender any “other aid/5 and the argument may well be made that the other aid is of a similar character with that particularly specified. It is a familiar rule of interpretation that where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede. In Wren v. Commonwealth, 26 Gratt. 956, in speaking of the character of aid given to a felon which would make a person liable as an accessory after the fact, the court said that it was such as
“That he concealed him in the house, or shut the door against his pursuers until he should have an opportunity to escape, or took.money from him to let him escape, or supplied him with money, a horse, or other necessaries in order to enable him to escape, or that the principal was imprisoned and the jailer was bribed to let him.escape, or conveyed instruments to him to enable him to break prison and escape. This and such like assistance to one known to be a felon would constitute a man accessory after the fact. . But merely suffering the principal to escape will not make a party accessory after the fact, for it amounts at most but to a mere omission. Or if he agree for money not to prosecute the felon, or if know ing of a felony, fails to make it known to the proper authorities. None of these acts would be sufficient to make a party an accessory after the fact. If the thing done amounts to no more than the compounding a felony or the misprision of it, the doer will not be an accessory.”
See, also, The State v. Fry, 40 Kan. 311; Wharton’s Crim. Law, § 241; 1 Am. & Eng. Encyc. Law (2d ed.), 269.
The defendant gave no personal assistance of this kind, and the mére fact that she asked her daughter to tell the County Attorney a falsehood with respect to the paternity of the illegitimate child, although reprehensible, does not, in our opinion, constitute the aid which the statute contemplates, or -amount to an offense under the statute. It appears that the advice of the mother and the falsehood of the daughter were not an aid to Doty, in any sense, as a warrant for his arrest was obtained on the s°day that the fabricated stoi’y was told to the c mers, and he was arrested some time before Na-hnie disclosed what are deemed to be the real facts in the case. Within a few days after the mother had heard of the criminal intimacy between her daughter and husband the latter was arrested, convicted, and sentenced. It appears that the officers of the law were not misled by the telling of the untrue story, nor did Doty obtain any aid or advantage thereby. However, we rest our decision on the view that the statute under which the prosecution was brought does not cover or include the misconduct of the appellant.
The judgment will, therefore, be reversed and the appellant will be discharged.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
There is but little dispute as to the facts of the case, but it is contended that they do not show actionable negligence by the railroad company nor warrant a recovery of damages against it. Three reasons are suggested why a recovery cannot be had : (1) That the car from which Penfold fell was not in the service of the company; (2) that the company-had no notice of the defect in the car nor opportunity to repair it; (3) that it was a sudden and unexpected use of a car of another company ; that the officers and employees who should superintend the condition of cars had no opportunity to observe the defect, and that Penfold himself was the only person who had an opportunity and who should be held to have knowledge of the defect. Although the company did not own the tracks in the lumber-yards, they were used by permission in the conduct of its business, and the compjany was, therefore, required to use the same due care toward its employees as if the tracks had been its own. The company not only had the use of the tracks, but it also had the right to move any cars which were necessary to be moved in order to take out those which were billed and marked for shipment. When the lumber company furnished a list of the cars to be taken, the yardmaster of the railroad company from that list marked the cars that were to be taken, and in that way learned the location of the cars to be moved and which the switching crew must necessarily handle. The defective car belonged to the Missouri Pacific Railway Company and it was only to be shifted to another part of the yards so as to reach the loaded cars behind it.
It is contended that as the company did not own the defective car and had no right to repair the same it could not be required to inspect it. We think the contention is not sound. It was necessary for the company to move the car and it had the right to do so. It knew in advance that this particular car would have to be moved. Through the yardmaster the company learned that the car must be moved before the switching crew began to move it. True, it was only to be moved a short distance, but the care which the company must exercise over the instrumentalities provided for its employes in the transaction of its business can hardly be measured by the distance they are to be moved or the length of time employed in using them. If the same car had been loaded for transportation by the plaintiff in error to some point a hundred miles or more away, and the switchman had been injured in the same way in the attempt to. move it, it would hardly be contended that the obligation to inspect did not rest upon the company, and yet the opportunity to inspect would have been no better than it was in the case in question. The. company was bound to use reasonable care to prevent injuries to its employees. To that end it was required to exercise due diligence in providing Penfold with a reasonably safe place to work and reasonably safe appliances and instrumentalities to work with and upon. The fact that it had not been the practice of this company to make a regular inspection of such cars in the lumber-yards does not relieve it from its obligation to inspect. In Mo. Pac. Rly. Co. v. Barber, 44 Kan. 612, it was held to be the duty of a railroad company to inspect a foreign freight-car just as it is required to inspect its own, to see that it is reasonably fit for use, and that the omission of this duty renders it liable for resulting injuries, to its employees. See, also, A. T. & S. F. Rld. Co. v. Seeley, 54 Kan. 21. The switchman was obliged to handle the car, and this- the company knew before he undertook it. It was an instrumentality temporarily used by the company, and over which, for the time being, it had control. The fact that the company had no right to repair that car did not relieve it from the duty of inspecting it to ascertain whether it was in safe condition for the use which its employees were to make of it. If the inspection had been made and the defect discovered the switchman could have been warned of it and the injury averted. There was an opportunity to inspect, and the duty in the first instance rests upon the company. An ordinary inspection would have discovered the broken ladder, and if Penfold had been notified of-the defect he could have descended in another way. It appears that the defect was unknown to Penfold, and that he had no reasonable opportunity to discover it prior to the accident. His work was to be performed with promptness and dispatch, and the duty of inspection did not necessarily rest upon him. In the absence of notice to the contrary, he had a right to assume that the cars which he was to handle were reasonably safe, and that in the use of them he would not be exposed to danger through the negligence of the company.
The charge of the court, though somewhat general, presented the law of the case to the jury, and we do not.discover that any prejudicial error was committed in the rulings upon the instructions, nor is there good cause to complain of the refusal to submit special questions to the jury. A large number of questions were submitted, and we think no proper or material question was refused. Nor can we say from the testimony that the amount awarded by the jury is excessive.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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