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The opinion of the court was delivered by
Smith, J.:
This action was on a promissory note. Judgment was for plaintiff. At the time suit was brought garnishment summons was issued against the Parker State Bank. The court held that an intervening plaintiff was entitled to certain money that was on deposit in that bank. Plaintiff appeals.
The facts are admitted. C. O. Augur was indebted to plaintiff on an unsecured note for $1,100. On February 6,1934, plaintiff sued Augur on the note. At the same time it caused garnishment summons to issue against one John Franse and the Parker State Bank. Franse was cashier of that bank. On February 17 Franse answered for himself and the bank that the Parker State Bank had on deposit the sum of $654.10 to the credit of “Sale account of C. O. Augur.” On April 2, 1934, Marie Rinehart filed an intervening petition. She alleged that Augur was indebted to her in the sum of $1,000 and that the indebtedness was secured by two chattel mortgages of record covering the property sold by Augur at a farm sale on February 6, 1934, and that the funds on deposit in the Parker State Bank were derived from that sale.
Marie Rinehart is the daughter of C. O. Augur. She claimed ownership of the funds in question on- account of her mortgages. The trial court gave plaintiff judgment for the amount of the note. On the further question of the priority of claim to the funds in the Parker State Bank, the parties submitted an agreed statement of facts. That statement was about as the facts have been given here. It was also stipulated that Franse,- the cashier, was employed by Augur to clerk the sale; that the property was sold at the sale as the property -of Augur; that prior to the sale Mrs. Rinehart agreed with her father that he might sell the property at public sale and that he would afterward apply the proceeds of the sale on his indebtedness to Mrs. Rinehart.
Neither the plaintiff nor any purchaser at the sale had notice at the time of the sale that Mrs. Rinehart claimed an interest in the property. John Franse prepared the chattel mortgages in question. Other than such notice as this would import he had no notice that Mrs. Rinehart claimed an interest in the money. He was not given any instruction about what to do with the money. On the date of the sale he deposited it in the Parker State Bank as funds belonging to C. O. Augur. There was no question raised in the trial court as to the mortgages being given in good faith or of fraud between Augur and Mrs. Rinehart. On this stipulation the trial court gave judgment awarding the funds to Mrs. Rinehart. From that judgment this appeal is taken.
The position of plaintiff is that the lien Mrs. Rinehart acquired by her two chattel mortgages did not follow and attach to the proceeds of the sale of the property. Plaintiff claims that by intervener’s consent to the sale of the property and her agreement that Augur, after the sale -of the property, would apply the proceeds thereof on his indebtedness that had been secured by these mortgages, she waived her lien on the property and also waived her lien on the proceeds of the sale of the property; that she made a new contract with Augur and accepted his promise that he would pay over to her the proceeds of the sale of the mortgaged property. The position of the intervener is that since these mortgage liens were of record and no fraud was claimed, she had a lien on the proceeds of the sale and the proceeds were impressed with a trust in favor of the lienholder, and that the garnishment process only reached such funds in the bank as were actually the property of C. O. Augur.
In the case of Turner v. Williams, 114 Kan. 769, 221 Pac. 267, the question at issue was right of creditors of a farmer to preference in the proceeds from the sale of certain wheat. The farmer who raised the wheat had sold it and deposited the money in a bank. A- creditor sued the farmer and instituted garnishment proceedings against the bank. The landlord intervened and claimed part of the money in the bank on account of a landlord’s lien. The creditor claimed that he should have been given the entire bank deposit under the garnishment proceedings. This court held the garnishment process only reached the property that actually belonged to the debtor. This position was amply sustained by authorities. In that case the landlord based his claim on a landlord’s lien. In this case the claim of the intervener is based on a chattel mortgage. The court held the money for which the wheat was sold was none the less the property of the lienholder because it was deposited in the farmer’s account and mingled with other money of his. The court held that even though there had been a complete substitution of other moneys of the farmer for the money for which the wheat was sold, the deposit would have remained a trust fund for the benefit of the lienholder. Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658, is the authority for that holding. In that case money belonging to a school district was deposited by the treasurer of the district without authority in a bank owned by him and this money was mingled with funds belonging to the bank. Later this treasurer made an assignment for the benefit of creditors. This court held the school district money was a trust fund held for the benefit of the school district and the school district had preferred rights to the assets over the general creditors to the extent of the fund converted.
The argument of plaintiff that when the intervener consented that the mortgagor should sell the property and apply the proceeds on the indebtedness she abandoned her lien is not good. She did not consent that the property be freed from her mortgage or be converted. Clearly what happened was that the property was sold so that the intervener could realize on her security. The money should have been placed to the credit of the intervener in the bank, but the fact that it was not so placed does not make it any the less her money. By no process of reasoning can it be held that the unauthorized taking of credit for it on the part of the mortgagor deprived the moi’tgagee of her lien.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a tax bill issued against an unplatted tract of land. Subsequently the land was platted. The purchaser of a lot constituting what the purchaser said was one-fourteenth of the entire tract, asked that the lien be apportioned according to area, and that his lot be held for only one-fourteenth part of the lien. The district court refused to do that, and the purchaser of the lot appeals.
The tax bill statute provides for special assessment against specific property. When the amount chargeable against a tract is ascertained by ordinance, notice is given, and before a tax bill is issued, the owner may redeem. (R. S. 1933 Supp. 13-1084, 13-1085.) In this instance the owner of the unplatted tract might have redeemed. He did not do so, and the lien of the tax bill attached to each and every part of the entire tract. Platting the tract did not change the nature or extent of the lien, and any purchaser of a lot took subject to the lien.
When installments of the tax bill became in default the holder commenced suit to foreclose. After suit was commenced any person interested could pay the amount due on the tax bill, and accrued costs, to the clerk of the district court, and that would satisfy the tax bill. (R. S. 1933 Supp. 13-1084.) In this instance nobody satisfied the tax bill.
The foreclosure procedure is prescribed by the tax bill statute. The holder of the tax bill recovers judgment establishing the lien, foreclosing it for the entire amount, and ordering “the said property,” that is, the property subject to the lien, to be sold without redemption, and conveyed by the sheriff to the purchaser. (R. S. 1933 Supp. 13-1084.) This special procedure does not recognize apportionment according to area of lots, or otherwise, in case the tract subject to the lien has been subdivided.
The tax bill law was enacted in 1927. In that year the general tax law was amended to provide for division by the city clerk, on demand of an owner or the county clerk, of special assessments in proportion to value of lots. (R. S. 1933 Supp. 79-427.) If that statute applied, a subject on which the court expresses no opinion, the lot purchaser did not invoke it. If the statute did not apply, a lot purchaser has no statutory right to apportionment.
Independently of statute, the lot purchaser could have no equitable right to apportionment on the basis of lot area. The single lot might be needed as security for much more than one-fourteenth of the tax lien.
All the foregoing is advisory only. The lot purchaser bid at the foreclosure sale. Afterwards he appealed. Bidding at the foreclosure sale constituted recognition of the judgment, disqualified the lot purchaser from questioning the judgment here, and requires that the appeal be dismissed.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued to foreclose a second mortgage on real property. This mortgage was for $600, of which $240 had been paid. The holder of the first mortgage intervened, to foreclose its mortgage. The trial court foreclosed both mortgages by an appropriate decree. Some of the defendants, owning interests in the land, have appealed.
The intervener’s mortgage was for $8,000. It was executed and recorded and the mortgage registration fee of $20 was paid in September, 1927. The intervener alleged that no part of the principal had been paid; that there was accumulated finpaid interest; that it had been compelled to advance taxes on the real property and to pay a small abstract fee, all of which was secured by the mortgage. Defendants objected to the introduction of the mortgage in evidence for the reason it did not show that the registration fee for these accumulated items had been paid. This objection was overruled. Defendants then moved that the intervener be required to pay the registration fee for those accumulated items before foreclosure was decreed. This was denied. The sole point raised on this appeal is whether the court erred in those rulings.
The specific statutes involved are R. S. 1933 Supp. 79-3102, 79- 3103 and 79-3107. When the mortgage registration fee is paid in full at the time the mortgage is executed and recorded, as it was in this case, we do not understand these statutes require or contemplate that an additional registration fee shall be paid at the time of the foreclosure of the mortgage because of accrued items such as here involved, which were in fact secured by the mortgage.
There was no error in the ruling of the trial court and its judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this action to recover damages for the death of her husband, who was killed on a winter morning before daylight when his automobile ran into the rear end of defendant’s truck, which was standing on a public highway a few miles north of Wichita.
It appears that on February 27, 1932, one Sandlin, employee of defendant, had started out of Wichita with a truckload of merchandise. About twelve miles north of the city he ran out of gasoline, and left his truck standing on the paved highway while he went in search of motor fuel. The headlights of the truck and one of its rear lights were burning, but no other precautions were taken to warn travelers of its situation.
The same morning plaintiff’s husband, Raymond M. Brugh, left Wichita northbound in his automobile loaded with merchandise. ■ Shortly before 6 o’clock, which was before daylight at that time of the year, he came to the place where defendant’s truck was standing. The physical facts showed that Brugh’s car collided with the right-hand corner of the rear end of the truck. His own car was wrecked. Witnesses who immediately arrived on the scene lifted Brugh, still conscious, from his car; and in response to a question he said that he had run into a truck parked on the pavement without lights. He died of his injuries a few days later.
Plaintiff’s petition charged defendant with negligence in leaving its truck on the highway unattended and without rear-end lights or warning flares.
Defendant’s answer contained a general denial, an admission of the fact that the accident had occurred at the time and place alleged, and pleaded various acts and omissions on Brugh’s part constituting contributory negligence which barred a recovery.
Jury trial; special findings of fact; general verdict for defendant; judgment accordingly; appeal.
Before considering the matters urged on this court’s attention, space must be given to some of the special findings:
“2. If the said truck had been located completely off of this slab, to the east of said slab where the operator, Sandlin, left the truck standing, would decedent Brugh’s automobile have collided with it? A. We suppose not.
“3. Could Sandlin have parked said truck on the shoulder adjoining the slab on the east and completely off of the paved slab? A. Yes.
“6. Was any warning light or flare placed at any distance in the rear of this truck while said truck was left standing by Sandlin without any one being present with it? A. No.
“7. Did the decedent Brugh first turn his automobile to the left, preparing to pass this truck on the left? A. Yes.
“9. Do you find that a light was burning on the rear end of defendant’s truck at the time of said collision? A. Yes.
“10. If you answer question No. 9 in the affirmative, then state at what distance south of the truck the light on the truck could be seen by one traveling north of said highway. A. About a half mile.
“11. If you answer question No. 9 in the affirmative, then state how far Raymond Brugh was south of said truck when he saw or could have seen the light on said truck. A. About a half mile.
“13. What distance was Raymond Brugh south of the truck when said truck came within the range of his headlights? A. We do not know.
“14. Could the said Brugh have stopped his car without running into the truck after the truck came into the range of the headlights of his car? A. We do not know.
“15. Do you find that the defendant was guilty of negligence? A. Yes.
“16. If you answer question No. 15 in the affirmative, then state what acts of the defendant constituted' negligence. A. Insufficient lights according to the law.
“17. Do you find that Raymond Brugh was guilty of contributory negligence? A. Yes.
“18. If you answer question No. 17 in the affirmative, then state what acts of Brugh’s constituted such contributory negligence. A. He failed to keep his car under proper control, and failed also to keep a proper lookout.
“20. Do you find that said collision was the result of unavoidable accident? A. No.”
On behalf of plaintiff it is first contended that she was entitled to judgment on the jury’s findings and the evidence on every issue except the amount of damages. Plaintiff’s counsel direct attention to special findings 2 and 3 (and Nos. 15 and 16 might be added thereto). which established defendant’s negligence. Certainly; and the jury’s findings on that issue of fact make it needless to discuss that phase of the case. But since the jury also found that Brugh had been guilty of contributory negligence (findings 9, 10, 11, 17, and 18), such a judgment as plaintiff now contends for could not be ordered under any rational theory of appellate review.
It is next contended that certain special findings of the jury should have been stricken out on plaintiff’s motion, particularly Nos. 17 and 18. It is argued that these were not supported by any competent evidence and were inconsistent with findings 13 and 14. Touching the charge of inconsistency, that fact does not appear. At what distance defendant’s truck would appear within thé range of Brugh’s headlights would depend on their effectiveness, but that point is of little importance since one light on the rear of the truck was visible for half a mile. Whatever the range of Brugh’s headlights, he could have seen one rear light on the truck a half a mile before he reached the point of collision (findings 10 and 11). And as to finding 14, whether Brugh could have stopped his car before running into the truck would depend on its speed, and at what part of the half-mile distance his eye first caught sight of the truck’s rear light.
On the point that findings 17 and 18 were not supported by the evidence the court is bound to hold otherwise. The evidence was partly in the circumstances, but the testimony of other motorists who used that highway that morning, some going north and others south, made it rather clear — or a jury might so conclude — that if Brugh had been keeping an eye on the road ahead and had kept his car under proper control, the accident would not have happened. The jury’s conclusion was therefore warranted that the misfortunate man was guilty of contributory negligence. (Womochil v. List & Clark Construction Co., 135 Kan. 695, 697, 11 P. 2d 731; Conwill v. Fairmount Creamery Co., 136 Kan. 861, 18 P. 2d 193; Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343.)
See, also, Sponable v. Thomas, 139 Kan. 710, 719, 720, 33 P. 2d 721.
Plaintiff cites cases like Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58, in which it is said that circumstantial evidence may be so formidable that the only reasonable conclusion that may be drawn therefrom is the theory sought to be established. Quite correct, of course; but who shall draw that only reasonable conclusion? The triers of fact, to be sure. And it is because the jury has drawn the reasonable conclusion from the circumstances, with such incidental evidence as the witnesses arriving shortly after the accident were able to supply, that its findings 17 and 18 will have to stand.
Plaintiff raises another point against finding 18, contending that Brugh’s failure to keep his car under proper control was not pleaded. This point cannot be sustained. In defendant’s amended answer, this defense, although not alleged in those precise words, was pleaded thus:
“3d: That if said accident occurred at the time and place alleged in plaintiff’s petition, then the said Raymond M. Brugh was driving said car in such a manner and under such circumstances that he could not stop same within the range of vision of his headlights.
“4th: That said Raymond M. Brugh under the circumstances was operating his car at a high, dangerous and reckless rate of speed, to wit: sixty miles per hour.
“6th: In failing to take any measure for his own safety.”
Against finding 18 plaintiff also contends that Brugh’s failure to keep his car under proper control was not a finding of fact but a conclusion of law. It was, indeed, a conclusion; but it was one of ultimate fact and fairly deducible from the evidence, the most significant features of which were the evidentiary circumstances. Plaintiff cites and quotes from the case of Mostov v. Unkefer, 24 Ohio App. 420, 426, in which it is said that it would be altogether improper “to hold every one who runs into' it [an unlighted truck on a highway] is guilty of contributory negligence as a matter of law.” Very true; it would. Contributory negligence is commonly a jury question. It was so in the present case; and this court can see no excuse for overthrowing the jury’s disposition of it.
Error is next urged on the trial court’s refusal to give certain requested instructions. However, those which the court did give are not submitted for our inspection, and in the absence of some positive showing of their insufficiency this court must presume that those given clearly defined the issues and correctly stated the pertinent law. (Wilson v. Doolittle, 114 Kan. 582, 220 Pac. 508.)
The other matters urged against the judgment have been carefully considered, but they call for no further discussion. This lawsuit was simply a fact case and involved no abstruse legal questions. The record reveals nothing approaching the gravity of material error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for the construction of a will. Judgment was for plaintiffs. Defendants appeal.
Testator died seized of a house and lot in Ada, and eighty acres of land in Ottawa county. He also owned a $5,000 mortgage. By his will he appointed his widow, Mary Boucek, executrix. The will, in part, reads:
“Second: I give, devise and bequeath to my wife, Mary Boucek, all the personal property that I may own at the time of my decease after the paying of my debts and funeral expenses, also lots four (4) and five (5), in block twelve (12), in the town of South Ada, Kansas, Ottawa county, to be hers absolutely. I give and devise to my wife, Mary Boucek, for her use and benefit ■ during the term of her natural life, all the balance and remainder of my real estate that I may own at the time of my decease, with remainder over as hereinafter provided.
“Third: Subject to the life estate of my wife, Mary Boucek, therein, I give, devise and bequeath, equal to my daughters, Mary Kosar, Tracy Wolf, Bertha Prochaska, Anna Pugh, and my son, Charles Boucek, all the following-described real estate, the west half of the southwest quarter of section six (6) in township ten (10) south of range five (5) west of the sixth principal meridian, in Ottawa 'county, Kansas, the east half of the southeast quarter of section one (1), in township ten (10) south, range six (6) west of the sixth principal meridian, in Lincoln county, Kansas.
“Fourth: Subject to the life estate of my wife, Mary Boucek, therein, I give, devise and bequeath, equal to my daughters, Mary Kosar, Tracy Wolf, Bertha Prochaska, Anna Pugh, and my son, Charles Boucek, all my personal property.” ' .
The wife, Mary Boucek, approved the above will and consented, to take under it.
The plaintiffs in this case are a daughter and a son of testator. The defendants are daughters and the widow. The controversy arises because plaintiffs claim that the will gives the mother only a life estate in the personal property. . The mother and two of the daughters claim that the will bequeathed the personal property to the mother outright with full power to dispose of it. The other daughter named as defendant did not appear. The trial court entered judgment in- accordance with the claims of plaintiffs, that the mother took only a life estate in the personal property, and that at the death of Mary Boucek the personal property would pass to the children, share'and share alike. From that judgment this ap-: peal is taken. ■
It should be noted that clause two of the will purports to give to' Mary, the wife, all the personal property of which testator may die seized and the house and lot in the town of Ada. This bequest is all contained in one sentence and ends with the words “to be hers absolutely.”
Were it not for the language of the fourth clause of the will we might very well say that this clause bequeathed to Mary all the personal property of testator absolutely.’ The fourth clause bequeathed to the daughters and the son all of the personal property, subject to the life estate of the mother.
'It is well established that the rule for construing a will is to consider the circumstances surrounding the testator and find what his intention was. (Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022.) Another ride is stated in Brown v. Brown, 101 Kan. 335, 166 Pac. 499. There this court said:
' “A canon of construction to which all other rules are subordinate is that the intention of the testator as gathered from all parts of the will is to be given effect and that a doubtful or inaccurate expression cannot be permitted to defeat the obvious intent of the/testator.” (p. 339.)
Keeping these rules in mind, we will examine the will. The second clause first speaks of the personal property and gives it to the wife. The clause then speaks of the lots in Ada, where the parties, were living at the time. Following the language which speaks 'of the house and lot occurs the statement “to be hers absolutely.” In view of later provisions of the will, which will be discussed presently, we conclude that the words “to be hers absolutely” refer to the house and lot in Ada and not to the personal property. This conclusion is strengthened by the fact that in the next,sentence of the same clause testator gives to his wife a life estate in all the balance of his real estate and provides to whom the remainder shall go.
This takes us to the fourth clause of the will. It must be remembered that the preceding clause provided to whom the remainder- in the life estate in the eighty-acre farm should go. In the fourth clause the testator bequeaths personal property to the children, but provides that it shall be subject to the life estate of the wife. Now, if testator in the fourth clause had bequeathed the personal property to the children outright, there would have been contradictory provisions in the will. As it is, the construction given it by the trial court makes every part of the will operative and gives effect to what appears to have been the intention of the testator.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in these three cases, briefed and isub mitted together, is by the plaintiff mortgagees from a ruling of the trial court sustaining the motion of the mortgagor in each case to extend the time of redemption under the provisions of the moratorium law of 1934, being chapter 3 of the Laws of 1934, Special Session, effective March 3, 1934, and overruling the objections of the mortgagees in each case, which were made and filed as an answer to the motion.
The facts and dates are substantially the same in all three cases, but because of some differences we will limit our consideration to the first case, where Kadel and wife were the defendants or mortgagors, and later mention will be made of some of the differences as they apply to the other cases.
The motion in the Kadel case asked the court also to set aside and hold for naught the deed issued by the sheriff and placed of record. The answer, by way of objections to the motion of defendants, stated that the district court had issued a peremptory writ of mandamus against the sheriff, after a full hearing on the question, ordering him to issue his deed to plaintiff as purchaser under the foreclosure proceedings, and that no appeal was ever taken from such order. The answer contains further objections to the motion because the moratorium law of 1934, above referred to, and also the moratorium law of 1933 (ch. 232) are both unconstitutional and void for many reasons set out at length in the answer.
. The judgment of foreclosure in this case was rendered on July 7, 1931. Sheriff’s sale was made to the plaintiff as purchaser on October 17, 1931. The sale was duly and regularly confirmed, and the eighteen-months period of redemption given expired April 17, 1933. A peremptory writ of mandamus was issued January 31, 1934, requiring the sheriff to execute and deliver a sheriff’s deed to the purchaser, which he did on February 3, 1934, and it was duly recorded February 7, 1934. The peremptory writ recited that the second section of chapter 232 of the Laws of 1933, especially the extension of legislative power to the governor of the state, to further extend the moratorium for an additional period of six months, if in his judgment it was deemed necessary, was unconstitutional, void and inoperative. No appeal was taken from this ruling of January 31, 1934, and whether it was right or wrong, it was binding and conclusive in eliminating the extension attempted to have been made by the governor without which extension the moratorium period would have ended September 4, 1933.
The motion of the defendants Kadel was filed March 20, 1934, more than six months after the termination of the legislative extension under chapter 232 of the Laws of 1933, and seventeen days after the moratorium law of 1934 became effective on March 3,1934. The motion and the objections thereto were heard by the district court at the April, 1934, term of district court.
The provisions of the moratorium law of March 3, 1934, being chapter 3 of the laws of that special session, do not apply here because section 2 thereof specifically makes it applicable only in cases where the redemption period or extension thereof has not expired or would expire in less than thirty days after the passage and approval of the act, which was March 2, 1934.
The ruling of April 20, 1934, in no way attempts to change or modify the ruling of January 31, 1934, ordering the sheriff to execute a deed and holding the governor’s extension unconstitutional; neither is any fraud or any of the other grounds provided by statute for setting aside or modifying a court order set out in the motion of defendants.
We conclude that the mandamus order being binding and conclusive terminated the extension period long prior to the enactment of the new law of 1934 so that the new law does not apply, and the motion for a further extension thereunder should have been overruled.
In the second and third cases here under consideration the motions and applications did not ask for the setting aside of the sheriff’s deeds, but the answers of the plaintiffs did note among the objections to the motions the fact of the issuing and recording of sheriff’s deeds, issued by the sheriff without a writ, upon the strength of, and in harmony with, the ruling and writ affecting the Kadel case above. In the abstract there is contained a colloquy between the court and the attorneys in making the record in these two cases, which plainly indicates that the ruling made in the Kadel case was intended by the court to protect the sheriff, and could be made to apply to other cases, and the same ruling would be made if application for such was made. Perhaps a formal and proper application may not have been made in these two cases entitling the plaintiffs to the benefit of the ruling of the court as to the Kadel case. The sheriff so considered it and acted accordingly, issuing his deed in the second case February 26, 1934, and in the third case February 28, 1934; the eighteen-months period of redemption expiring, respectively, on August 8, 1933, and No vember 2, 1933. The motion and objections were heard on the same day as were those in the Kadel case, viz., March 20, 1934, and the same rule and conclusion would seem to apply, unless, strictly speaking, the finding and order of the court as to the governor’s extension provision of chapter 232 of the Laws of 1933, was not definitely and specifically held to be unconstitutional in connection with these two cases. Because of this uncertainty in the abstract as to the binding and conclusive order of the district court as to the parties in these two cases with reference to that part of section 2 of chapter 232 of the Laws of 1933, giving the governor legislative authority to extend the moratorium another six-months period and his extension thereunder being unconstitutional, it will be necessary to consider that question as to these last two cases, and this point is one of the fliany points raised by appellants in their objections to the motions of the appellees.
The question under the objections is, whether or not the provision of the second section of chapter 232 of the Laws of 1933, delegated to the governor legislative power. If it did, it is unconstitutional. The legislature, after declaring a moratorium, in the first section of the act, upon all periods of redemption from judicial sales on account of an emergency, enacted in the second section that “said moratorium shall extend for six months from and after the 4th day of March, 1933.” The balance of the second section-is as follows:
“Provided, In case at or before the expiration of the six-months period, it shall in the judgment of the governor of the state of Kansas, be necessary for the preservation of the public peace, health and safety so to do, and in case in his judgment said emergency still exists, then the governor of the, state of Kansas is hereby authorized to extend said moratorium for a period of not exceeding six months.”
If the granting of the first six months of said moratorium was legislative in character, the last six months was nothing less or different. It was not a matter depending upon a contingency the happening of which would be plainly discernible to any one, as the majority of the resident voters of a city, county or district voting in favor of a project, but depended entirely upon the judgment of the governor as to the necessity of a further extension— just the same as the first section showed the legislature was exercising its judgment under the emergency.
Section 1 of article 2 of the state constitution vested the legislative power of the state in a house of representatives and senate. In the recent case of State, ex rel., v. School District, 140 Kan. 171, 34 P. 2d 102, concerning the redistricting of certain school districts, where the act was held unconstitutional, it was said in the closing portion of the opinion:
“. . . it is not debatable that the legislature is powerless to clothe a private individual or a group of private individuals with power over corporate organization. An attempt to confer such power is said to be an attempt to delegate legislative power, which is futile. This is settled by a long line of decisions, beginning with Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and extending to Barrett v. City of Osawatomie, 131 Kan. 50, 289 Pac. 970.” (p. 174.)
The Abbott case, cited in the above quotation, was where the legislature vested absolute control in petitioners for a road improvement and a levy of tax therefor, and it was there said:
“The first contention is, that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made.” (Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 158.)
In State v. Johnson, 61 Kan. 803, 60 Pac. 1068, it was held:
“Chapter 28 of the Laws of 1898 (Gen. Stat. 1899, §§ 5779-5820), entitled ‘An act creating a court of visitation, declaring its jurisdiction and powers, and providing for proceedings and procedure therein,’ is unconstitutional and void, for the reason that, in the powers conferred upon that tribunal, legislative, judicial and administrative functions are commingled and interwoven in a manner violative of the constitutional requirement that the three great departments of government be kept separate, and the powers and duties of each exercised independently of the others.” (Syl.)
See, also, 6 R. C. L. 164, 177.
“The functions of legislation may not be delegated by the legislative to the executive department or to any officer or officers thereof . . . nor may an executive officer be given authority,' in his discretion, to give or to withhold a permit to do certain kinds of business, without any indication by the legislature of the test or standard by which such discretion is to be controlled. . .” (12 C. J. 844.)
“It is a doctrine well established and frequently reiterated by the courts that the functions of the legislature must be exercised by it alone and cannot be delegated. . . But any power not legislative in character which the legislature may exercise it may delegate.” (12 C. J. 839.)
We cannot help but hold that what the governor was delegated to do, and did attempt to do, was as much legislative in character as what the legislature itself did do as to the first extension of six months, and therefore we are compelled to hold this delegation of legislative power was entirely unauthorized under our separately constituted functions of government and was therefore unconstitutional, void and inoperative, just as the learned district judge did hold in the mandamus hearing, but because of the general and comprehensive terms of the new law he failed to sustain this objection of the appellants to the applications of the appellees thereunder.
The judgment of the trial court will be'reversed in each of the three cases, the first because the second part of the second section of chapter 232 of the Laws of 1933 was held unconstitutional by the trial court and it became final and conclusive as no appeal was taken therefrom, and therefore the new law could not apply to the facts in that case; and if that same ruling did not strictly apply to the other two cases, about which there is some uncertainty in the record, then the same provision is now held unconstitutional under one of the objections of the appellants to the motions or applications of the appellees.
The cause is reversed with instructions to sustain this objection of appellants to the motions of appellees. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action that was attempted to be appealed to the district court from a judgment of the justice of the peace. Judgment was for plaintiff, dismissing the appeal. Plaintiff was awarded a judgment in justice court.
The bond filed in the justice court by defendant when the appeal was attempted was in the following form:
“Whereas, on the 8th day of March a. d., 1934, the said plaintiff obtained a judgment against the said defendant on the docket of the said A. R. Harvey, J. P., for $250 dollars and (costs) taxed therein at five - dollars; and the said defendant intends to appeal therefrom to the district court in and for said county.
“Now, Therefore, William L. Schaaice of -does hereby, pursuant to the statute in such cases made and provided, promise and undertake in the sum of five hundred and five dollars, that the said appellant will prosecute his said appeal to effect, and without unnecessary delay; and if judgment be adjudged against him on said appeal, he will satisfy said judgment and costs.”
Plaintiff filed a motion asking the appeal be dismissed because no notice of appeal, as required by statute, was filed by the defendant, William L. Schaake, with the justice of the peace within ten days after the rendition’of judgment against him by said justice of the peace.
When this motion was filed, the defendant, in open court, asked permission to amend the appeal bond by making it read so as to be binding on defendant to pay the costs in any event. This request to amend the bond was denied and the motion to dismiss the appeal was sustained. From that judgment this appeal is taken.
The statute under which the appeal was attempted is R. S. 1933 Supp. 61-1002. That section is as follows:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, unless, by reason of his poverty, he is unable to give security for costs, which fact shall be shown by affidavit filed in said court at the time the appeal is taken: Provided, That nothing in this act shall excuse the party appealing from furnishing the bond required by section 61-1011 of the Revised Statutes of Kansas of 1923. And thereupon the appeal shall be deemed perfected.”
Plaintiff argues that the appeal was properly dismissed under the authority of Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585. The bond in this case is substantially the same as the bond considered and passed on in that case. There are no distinguishing features.
Under the authority of that opinion, the judgment of the trial court is affirmed.
Thiele, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for personal injuries sustained by plaintiff in a collision of automobiles on a Missouri state highway about a mile east of the Kansas line.
On the night of May 27, 1933, plaintiff was a member of a party of seven persons traveling eastward on the highway. There was a beer tavern situated a short distance north of the road, and the driver of the automobile in which plaintiff was riding decided to turn in and halt at the tavern. As the automobile was turning northward to leave the highway, defendant and three companions who had been to another beer tavern further east were returning to Leavenworth in defendant’s automobile. The car in which plaintiff was riding was struck by defendant’s car and she was severely injured. Hence this lawsuit.
Plaintiff charged various acts of negligence against defendant— driving while drunk; high, excessive and negligent speed; breach of various provisions of Missouri road law requiring due care, proper head lights and efficient brakes, and—
“6. The defendant saw or by the exercise of the highest degree of care could have seen plaintiff and the automobile in which she was riding in or approaching a place of imminent danger or peril, and that plaintiff and the driver thereof were unconscious, or apparently unconscious of their danger or peril in time by the exercise of the highest degree of care, and with reasonable safety to himself and those in his car, to have stopped said automobile or slackened the speed thereof, or blown his horn, or turned his automobile aside, and thereby avoided striking plaintiff and said automobile which she was in, but carelessly and negligently failed so to do.”
Plaintiff also pleaded statutes and supreme court decisions of Missouri to apprise the trial court on the pertinent Missouri law, and concluded with a prayer for damages.
On behalf of defendant (a youth, of 19 years) his guardian ad litem filed a general denial and a plea of contributory negligence.
Jury trial, verdict and judgment for defendant.
Plaintiff appeals, urging various errors, the first of which relates to a charge of corruption committed by the appellee. This is based on an affidavit by one of the youths in defendant’s car, Ketter, who averred that he had been coached and intimidated into falsifying his testimony touching the speed of defendant’s car as it approached the place of collision. The affiant named five or six persons who did the alleged coaching and intimidating. Each of these persons swore that the matters stated in Ketter’s affidavit were gratuitous and untrue. This court has no means of divining the proper credence to be attached to controverted matters of this kind. They must be left to the unconstrained judgment and discretion of the trial court. (Pittman Co. v. Hayes, 98 Kan. 273, 157 Pac. 1193; State v. Stach, 116 Kan. 187, 226 Pac. 238.)
The next error assigned was on misconduct of the jury. This relates to some conversation of jurors touching the case overheard in the corridors of the courthouse before the cause was finally submitted to them. The incident was investigated by the court, the jurors readmonished, and no semblance of prejudice can be discerned therein.
Plaintiff complains of the suppression of two depositions. As to one of them it is not quite accurate to say it was suppressed. It was not filed in time so that “one clear day” could intervene before the commencement of the trial as the statute requires. (R. S. 60-2844; Garvin v. Jennerson, 20 Kan. 371.) The court offered to continue the case over the term so that the deposition would be available, but that did not suit the plaintiff. She demanded a continuance of one day, which was refused — presumably because the setting of other cases would not permit it. No error appears under this assignment.
Touching the deposition which was suppressed, it was defective because certain exhibits which were covered by the testimony of the deponent were not attached to it; but over the objection of counsel for defendant they were taken charge of by counsel for plaintiff. The record recites:
[Counsel for Plaintiff] : We offer in evidence what has been identified by the reporter here as plaintiff’s exhibits 1, 2, 3, and 4, and will state to counsel at this time that these exhibits will be preserved and be produced at the trial of this case. I want to keep them in our files with the assurance that we will produce them at the trial of the case.
[Counsel fop. Defendant] : “If the exhibits are to be offered in evidence, I contend they must be attached to the depositions, otherwise I object to their offer in evidence.”
Unless there was a serious dispute about the genuineness of the exhibits we may concede that the trial court’s ruling was somewhat technical; but it cannot be said to have been erroneous; and we have no means of determining how important the suppressed deposition was. Neither of the depositions was actually presented to the trial court. It never was apprised of their contents and neither are we.
The next error assigned relates to the instructions. In the course of the trial plaintiff abandoned all alleged grounds of negligence except the breach of a Missouri rule of law familiarly known as the “humanitarian doctrine,” the substance of which is that every person must exercise due care for the safety of another person who is in peril or about to become imperiled, when he can do so without injury to himself or others; and such duty is imposed irrespective of the fact that the imperiled person may have got himself into his perilous position through his own fault.
Plaintiff does not argue that the trial court failed to include this Missouri rule of law in its instructions. Indeed, the rule was carefully and repeatedly stated in them. The complaint is that at the outset the court summarized the allegations of plaintiff’s petition, from which plaintiff has a talking point to the effect that the jury was bound to infer that unless plaintiff proved “every material allegation in her petition necessary for a recovery by a preponderance” of the evidence, she could not recover. This point is hypercrit ical. The instructions explicitly and concretely stated the Missouri doctrine and that plaintiff was relying exclusively thereon, so that it must have been a plain and simple matter for the jury to apply it, and it cannot be fairly inferred that they were misled by the court’s preliminary summary of the pleadings. Moreover, the objection now raised to the instructions was not made at the trial; and if the matter were more serious than it is, we cannot discern how reversible error could be predicated upon it, since no request for alteration, modification or amplification of the instructions was raised for the trial court to consider before the case went to the jury. In Skaer v. Bank, 126 Kan. 538, 268 Pac. 801, this court, in discussing the statute governing instructions to juries (R. S. 60-2909), said:
“The statute gives to counsel the right to inspect the instructions before they are given to the jury. If on inspection it is discovered that the instructions are not what counsel desires them to be, he has an opportunity to prepare special instructions to correspond with his wishes and submit them to the court with the request that they be given to the jury. Failure to do either of these things renders unavailing any complaint that the instructions were not as full and complete as they ought to have been.” (p. 641.)
In Williams v. Bank, 140 Kan. 260, 36 P. 2d 84, it was said:
“The failure of the defendant to object to the instructions, as given, or to suggest modifications of them, bars him from complaining that additional instructions were not given, or of those given.” (p. 263.)
Sundry other criticisms of the instructions are urged on our attention, but the rule of trial practice just discussed sufficiently disposes of them.
Plaintiff’s next grievance relates to the failure of the court to submit special questions to the jury; but without extending this opinion by quoting the record it is clear that with the tacit consent of plaintiff special questions were submitted for the jury to answer if they found a verdict for the plaintiff, but if for the defendant they need not answer them. The record shows no objection to this disposition of the special questions and no error can be effectively based on this point.
Plaintiff’s 17th grievance relates to the admission of testimony of a former college instructor who had turned salesman of automobiles and who testified that from experience he had learned how many feet a car will travel when its brakes are set at different speeds. No shadow of error appears in this testimony.
Plaintiff’s final grievances are based on the admission of appellee’s testimony that he thought he was traveling around 35 miles an hour immediately prior to the accident; and because this question and its answer were allowed to stand over plaintiff’s objection:
“Q. Do you know anything you might have done to stop the car after seeing the Willis St. Clair (in which plaintiff was a passenger) cross over in front of you at this point and striking it; do you know anything else you could have done you didn’t do?
“A. No, sir, there was nothing I could do.
“A. There was nothing I could do, just turn and put on my brakes was all. He was so close upon me.”
Neither on this incident nor on any other urged on our attention can this court discover anything approaching prejudicial error; and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by George W. Miller and Roy Dillon, doing business as Miller & Dillon, against the Kansas City Chamber of Commerce.
The defendant is a corporation maintaining in the city of Kansas City a club for social enjoyment, promoting the commercial and industrial development of the city. It conducts a café and dining room as part of its functions as a corporation, and Mrs. Packer is a copartner and a joint adventurer, and for several years has been conducting a dining room at the place under the direction and control of the chamber of commerce.
For their first cause of action plaintiffs set out a copy of a bill of goods furnished, which sums up in value to $353.89, alleged to have been furnished defendant for the dining room. It is alleged to be dúe and owing to plaintiffs.
In a second count plaintiffs set up a bill furnished by The Charles Fisher Meat Company of $857.04. This bill was assigned to the plaintiffs, Miller & Dillon, on May 5, 1933, and a recovery of the amount is sought.
A third cause of action is for a bill of goods, $136.95, sold by the Wyant-Carlson Wholesale Grocery Co., to the defendant, a bill which has been duly assigned to Miller & Dillon, payment demanded and not made.
Plaintiffs therefore demanded judgment for the sum of these bills amounting to $1,347.88, and for interest at six per cent from the time they were purchased.
The answer of the defendant was first a general denial, and then it answered specifically denying that it conducted a café and dining room, and denied that Mrs. Packer managed and conducted it under their control or as their agent. It further denied it had ever purchased any of the goods mentioned, and stated that Mrs. Packer conducted the dining room and restaurant entirely in her own right and name, and that all supplies used in the restaurant had been purchased by Mrs. Packer personally, and that it had no connection whatsoever with the transactions.'
Evidence was introduced upon which the jury returned a verdict in favor of the plaintiffs awarding them $1,347.88, the sum of the various items on the different bills upon which the suit was brought. There was no conflict in the evidence as to the goods received on the several bills or the amount of them, but there was no agreement as to the liability of the chamber of commerce. The chamber of commerce, it appears, equipped and ran the dining room for a considerable time, after which it entered into a contract with Mrs. Muse for the operation of the dining room, and a short time later with Mrs. Packer, which was continued for more than two years. She then surrendered and became a bankrupt. When the Muse and Packer contracts were made, letters were sent out or an attempt was made to send letters to the dealers by the chamber of commerce, informing them of the transfer and that the dining room would be conducted under a new management. These letters were not received by the dealers involved here and they had no notice of the change. The goods were delivered at the same place and receipted for by employees of the dining room. The contract with Mrs. Packer was that the chamber of commerce furnished a kitchen and dining room, fully equipped, furnished with dishes, cooking utensils, chairs, etc. The chamber of commerce did the clerical work in typing menus, furnished janitor service, telephone, heat and light for the kitchen and dining room, furnished water, a bookkeeper to keep the accounts of the dining room, and agreed to render every possible assistance to make the service a success. In addition it exacted from the dining room two per cent of the gross receipts.
The letters were prepared in part by the manager of the chamber of commerce, and partly by several others who assisted, and together they checked them over and addressed and stamped them' and left them with Miss Norris to recheck and mail. She has since died and, of course, did not testify in the case. The plaintiffs and assignors of the bills involved here told of the care taken with letters received as to changes of the names of customers and of those liable on bills of goods. They personally said that no such letters were received and if they had been they would have been preserved. Goods were ordered and delivered at the kitchen the same as before. The receipts were signed by the employee who received the goods at the kitchen and dining room.
A claim is made that notice was imparted to some extent by the checks that were paid for the goods. The checks paid were signed by Mrs. Packer and her name was printed at the upper left-hand corner of the check. It should be said, however, that the words, “Chamber of Commerce Dining Room,” were printed in much larger type above the name of Mrs. Packer. Deliveries of goods purchased were made at the dining room and were receipted for by employees who happened to be present when the goods were delivered. This was done much the same as when the chamber of commerce was running the dining room alone.
If the notices had been received by the plaintiffs and their assignors, they might be required to look to Mrs. Packer for payment, but if the goods were purchased without notice under the peculiar plan, the plaintiffs had the right to think that no change had occurred. It was a question of fact for the jury to decide and that question has been resolved in favor of the plaintiffs. On the question of notice, the court instructed the jury that:
“Notice, as used in these instructions, means actual knowledge of the manner in which the defendant and Mrs. Packer conducted the dining-room business, with respect to the payment of bills for goods, wares and merchandise furnished, or the receipt of a letter containing such information by the plaintiffs or their assignors, personally, or at their usual place of business, under such circumstances that they could and should have seen the same, or learned thereof in the usual course of their business.”
The only question raised on this instruction is the meaning of the words “actual knowledge;” that is, such knowledge as came to them that they could and should have seen the same or learned thereof in the usual course of their business. We see no error in the instruction.
The court correctly instructed the jury as to the presumption that United States mail, properly addressed, stamped and mailed, ■will be delivered. Instruction number four, in part, says:
“There is a presumption of law that the United States postal authorities will discharge their duty, and that mail matter, properly addressed, stamped and mailed, will be delivered to the addressee. However, this presumption is rebuttable by evidence, and only exists in the event it is proven by the evidence that such mail matter in question was in fact properly addressed, stamped and actually deposited in the United States post office or in some United States post-office box for the reception of such mail.”
The letters were not placed in the mail box by anyone; at least 'there was no testimony that anyone saw them mailed. Miss Norris, who rechecked them, did not testify that she mailed the letters or saw them placed in an official mail box nor did any of the others testify that the letters were placed in the mail box. When this is not shown the presumption does not arise, besides, as the court told the jury, it is a presumption that is rebuttable by evidence, and only exists in the event that it is proven by the evidence that such mail matter in question was in fact properly addressed, stamped and actually deposited in the United States-post office or in some United States post-office box for the reception of such mail.
These were questions of fact for the jury to decide. Were notices given of the change in the management of the dining room? Were notices actually prepared to be sent, properly addressed, and were they placed in a United States mail box? If so, a presumption would arise they were received by the parties to whom they were addressed, but it is a rebuttable presumption as the jury were in formed. The plaintiffs say that no such letters were ever received by them, and they had no other means of knowing of a change in the plans. On the whole the question was one for the jury to decide, and they have determined that the notices if sent were not received, and this decision has been affirmed by the court that heard the evidence and refused the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
An action was duly commenced before a justice of the peace. Plaintiff filed a bill of particulars, and defendant counterclaimed in a sum far beyond jurisdiction of the justice of the peace. After some continuances, the parties signed a written stipulation which follows:
“Whereas, the plaintiff above named has an action pending against the above-named defendant in the justice court of J. R. Ashcroft, a justice of the peace in Hill City township in Graham county, Kan.; and
“Whereas, the said defendant has filed cross action in said case; and
“Whereas, it has been agreed between plaintiff and • defendant that this action should be tried out in the district court;
“Now, therefore, It is agreed between the plaintiff and defendant that this action shall be discontinued in the justice court above mentioned, and all papers and documents now on file in said justice court shall be filed in the district court of Graham county, Kan., and that both parties, plaintiff and defendant, hereby enter appearance in said district court and agree that all issues between plaintiff and defendant in relation to the matters recited in the bill of particulars of plaintiff and in the answer and bill of particulars of defendant may be tried out in this case in the district court of Graham county, Kan., the same as if the case had been originally filed in said court, and that said'court may enter judgment in said case as fully as if it had never been filed in the justice court.”
Nothing further was done in justice court. The pleadings and stipulation were filed in district court, where the case was duly docketed. Pursuant to leave granted, plaintiff filed a reply. Continuances were granted at plaintiff’s request, and plaintiff took depositions. Before the case was called for trial, plaintiff filed a motion to remand, which was denied. Plaintiff then filed a motion to dismiss on the ground the district court had no jurisdiction of the subject matter. As indicated, the motion was denied.
The motion to dismiss was properly denied. The subject is sufficiently discussed in the opinion in the case of Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents a question of construction of an insurance policy.
In 1932 the late Robert R. Friend obtained an accident insurance policy issued by the defendant company. In it he was denoted as a salesman of gasoline and oils, but he did not handle or deliver these articles and wares. The policy provided for the payment of $3,000 in case of his accidental death. It also provided that if he should change his occupation to one more hazardous, the amount of his insurance would be reduced. He did change his occupation from that of salesman not handling gas and oils to that of salesman who did handle those wares, so that the amount of his insurance was reduced to $2,072.69.
In August, 1933, while this policy was in force, the insured met with a curious accident unrelated to his employment, but which nevertheless caused his death. Apparently while getting ready for bed he struck his leg against the leg of a cot. Infection set in, and in two weeks he was dead.
The defendant company admitted liability, but claimed that as the insured had changed his vocation to the more hazardous one of salesman handling gasoline and oils the amount of the insurance which it was bound to pay had been reduced, as per the insurance contract, to $2,072.69.
By agreement of the parties the latter sum was paid to the widow and beneficiary and this lawsuit was begun to determine whether defendant is bound to pay the full amount of $3,000 or whether the obligation of the policy has been fully discharged by the payment already made.
The trial court gave judgment for defendant and the plaintiff appeals, invoking our construction of the following provision of the policy:
“This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event the insured is injured or contracts sickness after having changed.his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation as classified, except ordinary duties about his residence or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate, but within the limits so fixed by the company- for such more hazardous occupation.”
It is contended by plaintiff that the paragraph just quoted means nothing more than that the liability of the defendant for accidental death or'injury of the insured shall be reduced if the assured has changed his occupation to a more hazardous one — -excepting where such accident occurs while he is engaged in ordinary duties about his residence or in recreation. And since the accident did happen under conditions governed by such exception the amount of insurance liability remains as first specified in the policy. In no other construction, appellant contends, can this prolix and involved paragraph be given literal significance.
On the other hand, the defendant contends that the construction of the paragraph presents no difficulties, and that it simply means what it ought to mean. Where an assured changes his occupation to a more hazardous one the premium he pays will buy a less amount of insurance. In this case the premium would buy insurance in behalf of a “salesman” in the sum of $3,000, but in behalf of a “salesman handling gasoline and oils” it would only buy insurance in the sum of $2,072.69. The last exception in the quoted paragraph, in the opinion of counsel for defendant, merely means that any accident an insured person may sustain while engaged .in domestic duties or in recreation will not affect the company’s liability one way or the other.
After much deliberation and taking into consideration the fact that the policy contract was formulated by defendant, and that defendant could easily have specified the extent of its obligation so plainly that there would be no room to cavil about its meaning, a maj ority of this court have determined that the fairest construction of the plethora of words comprising the paragraph is to hold that the exception to the exception means that where the accident occurs while the insured is engaged in ordinary duties about his residence or while engaged in recreation the provision for reduced liability when the insured engaged in a more hazardous occupation does not govern, and that the full amount of the original liability controls. This conclusion requires that the judgment be reversed and the cause remanded with instructions to enter judgment for plaintiff for $927.31 and interest thereon and costs of suit. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a demurrer to a petition in which plaintiff sued for damages sustained to his person and property by the explosion of a gasoline heater manufactured by defendant.
Plaintiff’s petition alleged that he was a resident of Texas; that defendant was a Kansas corporation which supplied a jobber in-Fort Worth, Tex., with its heaters; that in December, 1930, he purchased a heater manufactured by defendant from this jobber in Fort Worth; that he used the heater occasionally during the winter of 1930-1931; that in the spring of 1931 the generator of the heater became clogged and would not function, and that plaintiff detached and delivered it to a business concern, the Texas Implement Company, for replacement. About three months later plaintiff received from the latter company a new generator manufactured by defendant, and in October, 1931, when the season required the use of a heater, he used it equipped with this new generator, and for a time it worked perfectly.
Plaintiff further alleged that on December 5, 1931, the heater was installed in the bathroom of his home in Fort Worth. It was filled with gasoline; air was pumped into its tan,k; and the heater was lighted in accordance with instructions furnished plaintiff in a pamphlet by the vendor. Plaintiff alleged that for a brief time “the burner lit perfectly,” but soon “the generator split from end to end causing a flash and explosion, spurting flaming gasoline” over plaintiff’s face and body and setting fire to his house and destroying it and its contents.
Plaintiff alleged that the heater manufactured by defendant was sold and distributed to the public generally; that it was an article inherently dangerous, and in consequence defendant owed a duty to all persons into whose hands such heaters might lawfully come to exercise a degree of care and caution in their manufacture commensurate to the peril attached to their use. Plaintiff also alleged that defendant breached that duty, and further alleged that defendant impliedly warranted the heater and its constituent parts to be fit and safe for their intended use. One paragraph of the petition reads:
“6th. Plaintiff further alleges and states that said warranty was breached by the defendant in that there were defects in said stove and generator which were inherent and latent, and of such nature that plaintiff could not discover their existence, but that defendant knew of the existence and the nature of such defects, or through the exercise of that degree of care commensurate with the peril incident to the use of its product, defendant could have discovered the existence and nature of such defects before selling said stove and particularly the generator thereof, to the plaintiff herein, and could have repaired, replaced or remedied the same, all of which defendant negligently failed to do, which said negligence on the part of defendant was the direct and proximate cause of the explosion of plaintiff’s stove as aforesaid and his consequent damage.”
Before joining issue by demurrer or answer, defendant filed a motion alleging that plaintiff’s petition contained three theories of negligence:
“(a) Claim under the doctrine of res ipsa loquitur.
“(b) Claim of injuries resulting from specific negligence.
“(e) Claim for damages because of a breach of an alleged implied warranty of fitness.
“Defendant alleges that it is unable to determine from said petition which of said theories is to be relied upon in said action and that it cannot plead or answer to said amended petition in its present condition.
“Wherefore, defendant prays for an order requiring the plaintiff to recast his petition and file an amended petition herein.”
When this motion came on for hearing, plaintiff announced in open court that he was relying solely upon the doctrine of res ipsa loquitur and was not otherwise seeking recovery.
Thereupon the court ordered that plaintiff’s petition be so construed, and overruled the motion to require him to recast his petition. Following this ruling defendant demurred to the petition on the ground that it did not state a cause of action against the defendant.
This demurrer was overruled and defendant promptly appealed, contending that since plaintiff concedes that he must rely on the rule of res ipsa loquitur to establish defendant’s negligence or breach of warranty or both, and arguendo that the application of that rule would not establish a prima facie liability against defendant, it would be useless to proceed further, and that the cause should be summarily disposed of by nonsuit. In some jurisdictions there appears to be an approved practice of this sort. (3 Bouvier’s, Rawle’s 3d Rev. 2360-2364.) But it is not sanctioned in our practice. This court on occasion has approved or directed judgment on the pleading of a litigant and the opening statement of his counsel; but we have said such summary disposition of an action should only be made when it is clear that on no theory of the facts pleaded and stated can the pleader’s cause or defense prevail. (Smith v. Insurance Co., 108 Kan. 572, 196 Pac. 612; Taylor v. American Home Life Ins. Co., 137 Kan. 862, 868, 22 P. 2d 459; Moses v. Missouri Pac. Rld. Co., 138 Kan. 347, 26 P. 2d 259.)
See, also, 83 A. L. R. 221, 224 et seq.
We regard plaintiff’s announcement that he would rely on the doctrine of res ipsa loquitur as an opening statement and entitled to the same liberal consideration. It merely foreshadowed that when issues were joined and the cause came on for trial, he expected to invoke this particular rule of evidence as far as necessary and pertinent to supply the want of other proof to establish his cause of action. Whether res ipsa loquitur will completely and effectively accomplish what plaintiff expects of it is not a matter of present concern. Nor is it necessary at this time to indulge in a dissertation concerning the doctrine itself. See Clark v. Cardinal Stage Lines, 139 Kan. 280, 31 P. 2d 1, and citations; and a recent critical analysis of Kansas cases in 3 J. B. K. 158-160.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case involves the sufficiency of the allegations of the two counts of the petition.
There are several defendants, one of whom filed a general demurrer to the first cause of action in the petition, and all the other defendants filed an answer to the first cause of action and then filed a motion for judgment for the defendants on the pleadings. All the defendants filed general demurrers to the second cause of action in the petition. The trial court treated the motion for judgment on the pleadings as a demurrer to the first cause of action, and after argu ment the court sustained the demurrers to the first cause of action and overruled them as to the second cause of action. The plaintiff appeals from the ruling sustaining the demurrers to the first cause of action, and the defendants appeal from the order overruling their demurrers to the second cause and have served notice of a cross-appeal on that ruling.
The demurrers to each cause of action are on the ground that the petition does not state facts sufficient to constitute a cause of action.
The answer to the first cause of action is set out in the abstract, but there is nothing in the record to indicate that the trial court took it into consideration in sustaining that part of the defendants’ motion for judgment on the pleadings, which was treated as a general demurrer.
The first cause of action in the petition in substance alleged that the plaintiff is a citizen and resident of Burns, Kan., and the defendants and each of them at the times hereinafter mentioned were duly elected, qualified and acting directors of the Guarantee Title and Trust Company, a banking corporation duly organized and existing under and by virtue of the laws of the state of Kansas.
That on July 1, 1929, the plaintiff was the owner and holder of $11,000 of bonds, and on that date he deposited the same with the Guarantee Title and Trust Company as collateral security to the note of J. C. Powell, dated July 1,1929, and due July 1,1930. That thereafter, and on or about the 18th of December, 1929, without the knowledge or consent of this plaintiff, and without the consent of Powell, the Guarantee Title and- Trust Company wrongfully sold the bonds to the International Mortgage Trust Company of Topeka. That the fair and reasonable value of the bonds at that time was the face value thereof with accrued interest. That. at that time the Guarantee Title and Trust Company was insolvent and known to the defendants to be insolvent and had no authority to sell or dispose of the bonds pledged as collateral security, and that all such facts were known to the defendants or by the exercise of ordinary care should have been known to them.
That at all these times the said Guarantee Title and Trust Company was a banking institution within the purview and meaning of sections 9-163 and 9-164 of the Revised Statutes of Kansas, 1923, and was engaged in receiving deposits subject to check and on time, and engaged in the loaning of money and doing a general banking and trust business, with its place of business in the city of Wichita. That the Guarantee Title and Trust Company had been insolvent and in failing circumstances from a time prior to July 1, 1929, and up to August 7, 1930, on which latter date the bank commissioner of the state of Kansas took charge of the institution and closed the same so that it ceased to do a banking and trust business and ceased paying any amount on indebtedness due its creditors, and its liabilities exceeded its assets by the sum of $300,000.
That defendants were not only duly elected, qualified and acting directors of the banking institution during all the times heretofore mentioned, but held themselves out to the public and to the plaintiff herein as such.
That $11,000 of the principal of the note to which the bonds were collateral was paid on June 30, 1930, and by agreement with the Guarantee Title and Trust Company the bonds were to be released and delivered to this plaintiff, and the balance of the note was paid to the institution long prior to the filing of this action.
That this plaintiff did not know of the insolvency of this banking institution at any time prior to August 6, 1930, and he pledged the bonds as collateral, and defendants assented to the creation of the debt herein mentioned by such banking institution after having knowledge of the fact that it was insolvent and in failing circumstances. That the plaintiff thereafter made demand for the value of the bonds or their return, but such demand has been refused, and plaintiff has not sold or assigned or transferred his right to the bonds or the cause of action herein set forth, and he is still the owner of the bonds.
That the bonds were negotiable instruments payable to bearer, and the International Mortgage Trust Company paid value for them without knowledge of the rights of the plaintiff, and has, prior to the institution of this suit, disposed of the same for a valuable consideration to a holder in due course, and that plaintiff is unable to recover the bonds without payment of principal or face value thereof with accrued interest.
The appellant maintains that the first cause of action sufficiently alleges and shows that the Guarantee Title and Trust Company was a banking institution within the provisions of R. S. 9-163, and that the transaction set up in the first cause of action constituted the creation of a debt within the meaning of that section. In order to consider the last proposition first, let us assume, but without so deciding, that the Guarantee Title and Trust Company was a bank ing institution within the. provisions of R. S. 9-163, and under such premises consider whether or not the transaction set up in the first cause of action constituted the creation of a debt within the meaning of R. S. 9-163, which is as follows:
“It shall be unlawful for any president, director, manager, cashier, or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and it is hereby made the duty of every such officer, agent or manager of such banking institution to examine into the affairs of the same, and, if possible, know its condition. And upon failure of any such person to discharge such duty, he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section'shall be individually responsible for such deposits so received, and all such debts so contracted. . .
The appellant calls our attention to the fact that while the statute above quoted used the terms “the creation of debts” and “debts so contracted,” the succeeding section having to do with proceedings under the former section uses the phrases “debt so created” and “creation of such debt.” The appellant maintains that there arose an implied contract that the Guarantee Title and Trust Company would pay this money to the plaintiff when the note to which the bonds were pledged as security was paid, which was done on June 30, 1930, and at that time there was created a debt.
Appellant cites Abernathy v. Loftus, 95 Kan. 87, 147 Pac. 818, where under the old statute (Gen. Stat. 1889, § 1204), making trustees of corporations liable to the extent of their stock for debts of the corporation unpaid, it was held an'implied obligation was a debt unpaid.
State, ex rel., v. Toy, 138 Kan. 166, 23 P. 2d 601, is also cited, and the meaning of the words “debt” and “obligation” used in the cash-basis law are made applicable thereunder to implied debts or obligations.
The case of Farmers State Bank v. Callahan, 126 Kan. 729, 271 Pac. 299, was where the estate of a deceased stockholder in a bank was permitted to be sold to satisfy a judgment against her estate for liability on her bank stock occurring during her lifetime.
Appellant also cites Lipscomb v. Bank, 66 Kan. 243, 247, 71 Pac. 583; Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438, and 1 C. J. 1033 to show that where benefits have accrued to the wrongdoer there exists an implied contract of which the party injured may avail himself by waiving the tort and suing upon the implied contract.
If the statute here involved had used the word “debt” only, we could very easily construe it as applying to an express or implied debt or obligation, or one arising out of a tort, or, as in the Abernathy case, supra, a “debt unpaid,” but we cannot and must not conclude that the legislature ascribed no significance to the qualifying words used in the section under consideration in connection with the word “debt.” If we read this statute correctly, there are only two things that the officers of a banking institution can do, after they have knowledge that the institution is insolvent or in failing circumstances, that can make them liable under this statute, and they are “to assent to the reception of deposits or the creation of debts by such banking institution.” Later in the section occur the words “all such debts so contracted.” So we must give some significance to these two qualifying words, “created” and “contracted,” unless we want to say that all debts are created and contracted.
In the case of Henley v. Myers, 76 Kan. 723, 93 Pac. 168, the sections of the old law (now repealed), imposing a liability on stockholders of every corporation except railroads and those organized for religious or charitable purposes, were construed particularly as to whether or not in such protection for creditors of the corporation it extended to the owner of a judgment founded on tort, and it was held that the owner of such a judgment was a creditor. In the opinion, after referring to many decisions and distinctions drawn between creditors holding obligations originating in contract and those whose demands arise out of tort, it was said:
“Nearly all of these cases are controlled by one or the other of these two reasons: ... (2) that the statute uses some expression beyond the mere word “debt” — for instance, “debt contracted” — indicating that only contractual obligations are within its purview.” (p. 728.)
This opinion is cited in the Abernathy case in its construction of the term “debts unpaid.”
The second reason given in the Henley case applies in the case at bar, as the statute uses some expression beyond the mere word “debt.”
The contention that an. implied contract arose and created a debt when the securities were not returned is not in complete harmony with the further limitation of the statute to cases where the officers “assent” to the creation of debts. An assent is pleaded but it will not make an implied contract, which is defined to be a contract in ferred to have been intended by the parties to it by their acts. (Webster’s New International Dictionary, 2d ed.)
We have no hesitancy in concurring with the conclusion of the trial court that the first cause of action does not state facts sufficient to constitute a cause of action against the defendant officers of the trust company on their assent to the creation of a debt due the plaintiff, and the demurrers to the first cause of action were properly sustained. ■ ••
For his second cause of action the plaintiff repleads each and every allegation in his first cause of action as far as the same may be pertinent and relevant, and further pleads as follows:
“1. That the defendants herein, and each of them, were in direct charge of the affairs of said the Guarantee Title & Trust Company at all the times herein mentioned and were the managing agents and directors thereof. That in addition to holding the office of directors, the defendant C. H. Brooks was chairman of the board of said banking institution, the said Standish Hall was president of said banking institution, the defendant C. E. Webb, also known as Carl E. Webb, was vice president of said banking institution and the defendant J. O. Davidson was treasurer of said banking institution and that all of said persons so named were the duly elected, qualified and acting officers of said banking institution at the times herein mentioned, and were the executive officers and together with the directors mentioned as aforesaid were the managing agents having active management, charge and control of said banking institution at all the times herein mentioned.
“2. Without the knowledge of the plaintiff, the said bonds deposited at the time specified in the first cause of action, were, as plaintiff is informed and believes, and so alleges the fact to be, mingled with the said banking institution’s assets and property and were not kept separate and apart as a trust fund. That the bonds so deposited were by said banking institution misappropriated and misapplied and used by said banking institution as its own and that all of said acts were done with the knowledge and acquiescence of the defendants, and each of them.
“3. That if any of said defendants did not have actual knowledge of such manner of handling, they would have had such knowledge had they performed their duties as prescribed by law. Plaintiff is informed and believes, and so alleges the fact to be, that the defendants, and each of them, had actual knowledge and acquiesced in the practice of said banking institution and its employees of commingling trust funds with other property of said banking institution and that said practice had been followed for several years prior to and during the period herein set forth.”
Plaintiff concludes with a prayer for $11,000 and interest, the same as in the first cause of action.
This second cause of action is spoken of as being based upon the common-law liability, as distinguished from the first cause of action, which was a statutory liability. However, this second cause of action includes all the allegations of the first by specific reference.
The pleader seems to rely almost exclusively upon the cases of Sweet v. Bank, 69 Kan. 641, 77 Pac. 538, and Sweet v. Savings Bank, 73 Kan. 47, 84 Pac. 542. These were two decisions in one case. The first judgment was reversed because of the instructions going too far. The last sentence of the second paragraph of this second cause of action in the case at bar contains some of the statements approved in the Sweet cases, but it is immediately followed by allegations as to the duty of officers which, being in the instructions, caused the reversal of the first Sweet case.
The first paragraph of this second cause of action stresses the official character of the defendants. One may while serving as an officer do a wrong, but his liability is personally under the common-law liability. Plaintiff cites the following language from the first Sweet case, as particularly applicable to the case at bar:
“Where there were sent to a corporation a note and mortgage, with instructions to collect and remit, and the money was collected but not remitted, a recovery may be had by the owner of the note and mortgage from the executive officers and managing agents having the active management, charge and control of the affairs of the corporation for the conversion of the money by them for the use of the corporation, and also a recovery from them for such conversion of the money by subordinates, with the knowledge and acquiescence of such officers and managing agents.” (Syl. IT 3.)
The term “conversion” is found in this quotation and also in this second cause of action, but the part quoted above lays stress upon the instructions to collect and remit. The conversion in the present case appears to be bad official judgment or official action amounting to the conversion of a trust fund or bonds.
A more recent case, Beeler & Campbell Supply Co. v. Riling, 132 Kan. 499, 296 Pac. 365, was where officials of a corporation were attempted to be held personally liable for wrongs that had been done others with whom the corporation was dealing, and the following expression was given as to the law here under consideration:
“They may sue and be sued as trustees of the defunct corporation. (R. S. 17-808; Kansas Wheat Growers Ass'n v. Markley, 132 Kan. 156, 294 Pac. 885.) Such ex officio trustees have not ipso facto any personal responsibility for the debts, torts or delicts of the defunct corporation. (Bank v. Reed, 108 Kan. 176, 178, 194 Pac. 638; 195 Pac. 599.) But, on the other hand, it is quite true that officers -or agents of a corporation, whether defunct or not, may be personally liable for tortious acts of the corporation in which they have willfully participated. (Cameron v. K.-C. Com. Co., 22 Mont. 312, 74 A. S. R. 602; M. E. R. Co. v. Kneeland et al., 120 N. Y. 134, 8 L. R. A. 253, and note; 17 A. S. R. 619, and note; Hoffman v. Toft, 70 Ore. 488, 52 L. R. A., n. s., 944; 7 R. C. L. 504-510; 14a C. J. 175, 176; id. 181 et seq.; Notes in 28 L. R. A. 433 et seq.; 25 L. R. A., n. s., 343 et seq.; 39 L. R. A., n. s., 901-903.)” (p. 505.)
It takes more than the tortious act of the corporation to make one who is an officer or managing agent of such corporation personally liable. (See Noll v. Boyle, 140 Kan. 252, 36 P. 2d 330.)
We think the second cause of action fails to state facts sufficient to state a cause of action.
The judgment is affirmed as to the first cause of action and reversed as to the second cause of action, and the cause is remanded with directions to sustain the demurrers to the second cause of action.
Harvey, J., dissenting as to the ruling on the second cause of action. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from rulings on pleadings filed in an action to recover damages for a minor who was injured on the. street after nine o’clock unaccompanied by a parent or guardian. Virginia was about nine years old and attended a show in Beloit, and while going home after the show she was negligently struck by defendant’s car.
The defendant’s answer was that she was there in violation of an ordinance which made her presence on the street a ground of contributory negligence. On motion of the plaintiff the court struck out the recitals of the ordinance, holding that it had no application. The ordinance provided that it was unlawful for anyone under fifteen years of age to be upon the street after nine o’clock p. m. from the first day of March to the last day of September, or after eight o’clock p. m. from the first day of October to the last day of February of each year, unless accompanied by parent, guardian or other person in custody of the minor.
The plaintiff insists that unless the violation of the city ordinance was the proximate cause of the accident it was without ef feet, and that defendant does not allege that the violation of the city ordinance was the proximate cause of the injury and that it constituted no defense in the action for damages against the owner of the automobile.
Appellee further contends that the city ordinance was not a traffic regulation and did not constitute contributory negligence against the minor child. The ordinance made it an offense for any parent, guardian or other person who has the custody of the minor to permit or allow him to be upon the streets unaccompanied, and a penalty not exceeding $25 is assigned for each offense.
The answer of the defendant alleged that the plaintiff was nine years of age, that she went to a show unaccompanied by her parent or guardian and after the show was over she started home, and, while crossing Mill street in violation of the ordinance, she was struck and injured after nine o’clock p. m. by the defendant’s automobile. Her presence on Mill street at the time of the collision may have been in violation of the ordinance, but it did not have any causal relation to the injury or constitute contributory negligence in that she was not accompanied by her parent, and neither her father nor herself were guilty of negligence which bars a recovery of damages.
There was no proximate cause of the plaintiff’s accident in being unaccompanied by her father when defendant was negligently driving his automobile and causing the injury. None was alleged by defendant and it only gave the opportunity for the accident. The court therefore struck out the allegation because the ordinance was not a contributing factor to the injury. In Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635, the plaintiff, who was riding a bicycle, was struck by the defendant, who was driving an automobile in the streets of the city. The plaintiff had no license to ride his bicycle and carried no light, contrary to the provisions of an ordinance of the city. The absence of a license was held not to be a factor in the collision and did not constitute a defense to the action.
In Walmsley v. Telephone Association, 102 Kan. 139, 169 Pac. 197, plaintiff was caught by a low telephone wire which hung down over the wagon upon which plaintiff was riding. He carried a loaded rifle with him. The grain bin he was carrying on the wagon struck the rifle, discharging it, and the bullet entered the plaintiff’s chest, severely injuring him. The evidence showed he had no hunting license, and the court cited a number of cases holding that the want of a license was not a defense and did not contribute in the slightest degree to the plaintiff’s injuries.
Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397, was another case where it was held in the syllabus that—
“A breach of a speed ordinance of a city by an intemrban trolley car is negligence per se; but to subject the owner of the trolley car to liability for the violation of the city ordinance, in a damage suit by a private litigant, it must appear that the disobedience of the ordinance caused or aggravated the damages.” (HI.)
In Griffith v. Atchison, T. & S. F. Rly. Co., 132 Kan. 282, 295 Pac. 687, the court held that a man at the railway crossing was struck and killed by an engine of the defendant. The court, in deciding it, said:
“While the breach of a city ordinance by a railway company is negligence per se, liability in damages cannot be predicated on its violation unless the breach of the ordinance is the proximate cause of the injury and damage, or substantially contributes thereto.” (p. 286.)
In Zumbrun v. City of Osawatomie, 135 Kan. 26, 10 P. 2d 3, there was a complaint that the court refused to give effect to the relation of the city ordinance. It was held that —
“It is familiar law that where there is no causal'connection between the breach' of a statute or city ordinance and the wrong or injury complained of, its violation does not bar a recovery.” (p. 34.)
See, also, Wilson v. Rogers, 140 Kan. 647, 38 P. 2d 124.
There were some others of the allegations of the answer stricken relating to the ordinance and some were not stricken which bore closely upon what might be shown as negligence on the plaintiff’s part, but we think there are sufficient left in the answer to permit a showing of any negligence of which the plaintiff may have been guilty. As to the rulings on the motions, those stricken must be appealable or be the equivalent of a demurrer and can only be reviewed in the court after final judgment in the action. (Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579.)
The title to the ordinance, as well as the provisions of the same, show that it was not a traffic ordinance, but is a regulation for the general welfare, the custody and control of children on the streets. Its title is:
“An Ordinance prohibiting and relating to persons under fifteen years of age from being -on the streets, avenues, alleys, or other public places in the city of Beloit, Kan., at night after certain hours herein mentioned, and prescribing penalties for the violation thereof.”
We think the pleadings as they are left will enable the defendant to prove any contributory negligence of which the plaintiff was guilty.
Our conclusion is that the court did not commit error in its ruling, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by ,
Johnston, C. J.:
This is a prosecution under R. S. 65-615. The ■defendant was arrested and prosecuted for the unlawful possession of narcotics. He was convicted, and hamng been previously convicted of a felony the penalty was increased.
His defense was that he obtained a prescription from a doctor who said he had been practicing medicine for twenty years. He applied to Doctor Ransom for a remedy for arthritis. With a prescription given him he obtained twenty tablets. ■ The doctor testified that defendant had contracted a cold,- had- a high fever and suffered considerable pain, and that as a result of his ailments he prescribed morphine sulphate of one-half grain tablets and sodium salicylate, five-grain tablets, to relieve his condition. The prescription was 'filled by a druggist, and directions Tor the use of it were on the bottle-. The prescription for twenty tabléts was filled at the drug ■store at one oklock p. m-., and he was arrested in Lawrence the next night at one o’clock a. m., and had consumed or disposed of twelve tablets in about eight hours. When he'was arrested his condition showed that he was emaciated.' -Defendant’s behavior beginning Sunday after he was -placed- in custody was that he became wild, tore around like a raving maniac, complaining of various ills and refusing to eat or drink, and that he did this for a considerable time afterwards. A doctor was called, who gave the defendant some medicine. . ' , '
Doctor Anderson was called as a witness by the state and testified that he had made a study of arthritis and that he had also some experience with narcotic addicts, and that he was present when Doctor Jones had a conversation with the defendant which was, in substance, that-the defendant- stated to Doctor Jones that since his custody he had gained four or five pounds 'in weight, and that defendant had no further pains. Doctor Anderson and Doctor Jones agreed after examining the knee- joints of defendant that there were no visible signs of arthritis. That arthritis in its first stages is accompanied, by-swelling of the:-joints, and.that pain follows two or three days later. That the actions of the defendant while in j ail, as described by Sheriff Dunkley, wer$ a picture, of a drug addict. Doctor Jones asked, the defendant about the previous use of narcotics, and he said-he Had had 'sevérál previous attacks of arthritis— one in Portsmouth — and that a doctor prescribed ten grains [doses] of morphine of one grain each, and that he had had similar attacks in Denver and Sharon Springs. That for the shooting pains in his legs the defendant stated he has also taken shots of neo-salvarsan, of bismuth, and also of mercury.
L. L. Bouton, the analyst of the state food laboratory, was called as a witness and testified that if a human being consumed twelve of these tablets between the hour of one p. m. and one a. m. the following day, they would have the following effect: The average dose of morphine is one-eighth of a grain. If a person takes one-ninth [one-half] grain, or it is given as a hypodermic, it will put an individual completely out — make him entirely unconscious. Twelve of those tablets make six grains — forty-eight average 'doses. It would be absolutely impossible for a normal person who is not addicted to dope to consume that much in that space of' timel
The evidence tended to show the possession of narcotics by the defendant was unlawful. It is evident that the possession was not in good faith. • If the possession was gained by the prescription of a doctor, as the statute provides, it was lawful; but if those methods were a subterfuge, and there is proof of an intent to violate the statute, the defendant is guilty of being in the unlawful'possession of narcotics. In State v. Miller, 127 Kan. 487, 274 Pac. 245, it was held that possession or control shall be presumptive evidence of d violation. The court said:
“And further, when the state has established a prima facie case against a defendant charged with possession of narcotics, the defendant is under the necessity of combating this prima facie case by reasonable and credible explanation of his possession of the property, consistent with his innocence, and his failure to make such explanation subjects him to the risk of conviction.” (Syl. If 2.)
The fact that the defendant procured narcotics from the doctor in a lawful manner does not exempt him from the force of the statute if he misrepresents his condition to the doctor. The quantity of narcotics procured and the use of the same tends to show an unlawful use of the same whether he used or sold some of them to others. The doctor stated that he did not know of his possession of a hypodermic needle and cup, and that he gave a prescription with the idea that he would take it through the mouth. Addicts who use the needle get quicker and more stimulating results. His appearance and conduct after his arrest were described. If he had taken all of the twelve doses as directed he would have been unconscious, but he was able to walk about and peddle the prescription. The defendant was not as sick as he pretended to be. He represented that he was writhing in pain in the afternoon of the fourteenth day of March, and by the following midnight he was on his way to Lawrence carrying part of his prescription of narcotics.
The proof was sufficient to show that the possession of narcotics was unlawful, and it was incumbent on defendant to make it appear by reasonable and credible explanation of his possession that it was procured in good faith. ' It was shown it was purchased by methods recognized by the statute, but if it was a subterfuge — as to his condition — he is outside the law; and if the physician shall prescribe narcotics to one who does not need medical attention and falsely obtains possession of narcotics he steps outside the ex-emptive provisions of the law. (State v. Miller, supra.) Defendant failed to make a reasonable explanation of his possession of the narcotics and must be deemed guilty' of unlawful possession. The evidence examined is held to be sufficient to show that he was guilty of unlawful possession of the narcotics.
'The question' was raised as to what penalty should be imposed. It was shown that defendant had been previously convicted of a felony on two previous trials and therefore the court increased his penalty and adjudged that he be confined in the state penitentiary at hard labor the balance of his natural life, and pay a fine of $500 .and costs of the trial. This was in accordance with the law, and objections to the rulings on the evidence and in the instructions to the jury are not deemed to be material or contrary to law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages arising from the maintenance of á nuisance.
Although the facts of this case warranted the furnishing of a map or plan sufficient to aid the court in visualizing the scene and. the relation of events to locality, under subdivision (e) of rule 6 of this court, none has been supplied, but from the abstracts we learn the following undisputed facts: In the eastern part of the city of Hutchinson is a block of ground fronting on Second street. Facing north on this street is a row of nineteen houses, and plaintiff is the owner of the next to the last one at the east end. To the east of this block the main line of the Chicago, Rock Island & Pacific Railway Company runs in a north-and-south direction. Plaintiff purchased his lot and built his house about.twenty years ago. He then sold it and, after being away three or four years, repurchased it in 1924. In 1928 defendant purchased land south of the row of houses and erected an elevator having sixteen upright cylindrical concrete storage tubes or bins arranged in a double row, the tubes being about 100 feet high. On'the top of these tubes'was erected a frame gallery about nine feet high and fourteen feet wide, and at the west end was built a headhouse to contain machinery for elevating grain and for distributing it to the various tubes. .In the latter part of 1929 and the early part of 1930 an additional twelve tubes were constructed to the east, and later in 1930 twelve more tubes were constructed to the west. The galleries were extended to cover the new tubes. The original headhouse was of temporary construction and was replaced in June, 1930, by a permanent one in the same location. Switches from the railroad have been built on both the north and south sides of the rows of tubes, one of the switches on the north side running within a few feet of the rear of plaintiff’s premises. Plaintiff’s lot is improved with a one-story, five-room house, a double garage, and has grass and shrubbery growing thereon. Plaintiff’s house is about 500 feet from the headhouse on the elevator.
Plaintiff’s petition was filed in November, 1932, and alleged his ownership of the real property and the construction by the defendant and the laying of the railroad tracks; that defendant has and now unloads large numbers of cars of grain, and cleans and stores it in the elevator and loads it into cars, and said acts have created a most offensive, obnoxious kind of dust, which, with smoke from the trains, has tainted and corrupted the air in and about plaintiff’s premises so as to render the dwelling house and premises unhealthy and unfit for occupation. It is further alleged the trains and large engines used in handling the grain have caused such noise and vibration as to render the premises valueless as a home; that in the treatment of grain obnoxious smelling chemicals have been used to plaintiff’s injury, and in the operation of the elevator dust has been permitted to escape; that it is obnoxious, sickening and offensive, and filters into plaintiff’s home and causes damage to the personal effects and furniture therein, and that all such acts have reduced the value of his home in the amount of $2,500, for which he prayed.
Defendant’s answer admitted plaintiff’s residence and defendant’s erection of the elevator, denied the various claims of nuisance or that- he had damaged plaintiff, and alleged that his elevator was. located on a switch of the above railroad in the industrial district of Hutchinson where it was permitted by ordinance to operate; that the first part of the elevator was erected in 1928 and commenced operation about January 1, 1929, and.at all times since had been operated in a careful and orderly manner, with particular attention to the rights of adjacent owners, and without unnecessary annoyance or discomfort to them; that the main line of the railroad was a short distance to the east and had been there for years. The statute of limitations, providing a limitation of two yéars for bringing actions for damages to real or personal property, was pleaded..
Plaintiff, testifying in his own behalf, stated the elevator was in operation in 1929 and before; that after the headhouse was built, four switch tracks were built south of him (between his property and the elevator); switch engines would run in with bells ringing and smoke rolling out' of them, cars would stand there' and hoboes would sleep in them, and that was when the depreciation started; that one track came within seven feet of the corner of his lot; that since the building of the bins or tubes there is suction; that he has continuously had trouble with dust; it gets in the attic and through the shingles, rots the lumber, causes a terrible smell when it gets wet; that he complained to defendant right at the start, and when defendant started to build the second section plaintiff talked with defendant, who said when they got it completed there wouldn’t be any dust, but there was just as much dust afterwards as before. He further stated that in the winter the headhouse cuts off the sunshine from his place after 2:30 in the afternoon. Other witnesses for plaintiff testified there had been dust there ever since the elevator was in operation; that dirt had been scooped out of the elevator from the top to the ground; that the dust would settle on plaintiff’s property; that it had an odor or stench similar to a pig pen. One witness stated he believed there was more dust after the new headhouse was completed than before, because the whole construction was larger; that he had seen better precautions to prevent escape of dust, and did not see any dust collector when he was in the elevator. Another witness stated he had lived near since 1928 and that the dust came out wherever there was an opening, and that when the first headhouse was there, a greater part of the time you could hardly see it for the dust, and that he and others complained to defendant both before and after the new headhouse was built. Other witnesses testified that the erection of the new head-house didn’t get rid of the escaping dust; one said the amount of dust increased as more bins were added, another that it stayed about the' same. There was testimony also as to the noisome quality of the-dust, as well as to the effect upon living conditions. We need not here notice the testimony as to the effect upon the value of plaintiff’s property.
Defendant demurred to plaintiff’s evidence on the ground no cause of action was proved, on the further ground it was not affirmatively shown that the operation of the elevator constituted a nuisance or a negligent or improper use of the property, and for the further reason, that if any cause of action existed it accrued more than two years before the filing of the suit. This demurrer was overruled, the trial proceeded, and judgment against the defendant followed. Defendant appeals, assigning various errors, two of which will be noticed.
. Did 'the evidence show that a nuisance existed? It is argued by appellant that his business is a lawful one, located in a community where like businesses are being carried on, operated in a nonnegligent manner, and that such annoyances' as plaintiff suffers are not sufficient to warrant recovery. It is said that one is entitled to use his own property -in any lawful manner he may choose, and as a general statement that may be conceded, but his use must be such that it 'does not materially and unnecessarily interfere with the right of an adjoining property owner to have enjoyment of his premises. Likewise, there is a distinction to be made whether the claimed nuisance arises from some usé by processes brought into being oil the premises or from a development of the natural resources thereon. In the case here we have a situation where the nuisance, if any, arises from the erection and operation of the elevator, and not from the- development of any natural resources on the premises. Assuming a nuisance exists, the remedies are to enjoin the further continuance or to have damages for the unlawful use. The question, primarily, is not one of negligence, although negligent use may convert a lawful into an unlawful use, but is whether or not a nuisance exists. Without repeating the evidence, it was shown that the elevator was so operated that large quantities of fine dust were permitted to escape, in some instances being deliberately dumped out of the elevator, all in such manner that the operator must have known that it would settle upon the property of an adjoining owner to his damage.
In Harper on Torts it is said:
“But while the doctrine of ancient lights and the easement of air over adjoining lands is repudiated, it is a nuisance to unreasonably pollute the air with soot or smoke, dust, foul odors, gases, and other annoying and offensive substances to the damage of adjoining land occupiers in the use and enjoyment of their property. The annoyance by pollution of the air must be material and substantial to be unreasonable, and where, for example, dust caused by the operation of a business or industry is only occasional and the harm or annoyance slight, it.will not be held a nuisance. If, in view of all the circumstances of the case, including the character of the community, the location of the property, the social interest in the activities complained of, the extent and nature of the harm to the plaintiff, the pollution of the air is not unreasonable, there is no nuisance although there may be some casual damage to adjoining property holders. In determining whether the harm to the plaintiff is unreasonable, the annoyance is measured by what would unreasonably disturb the ordinary and usual comforts of persons of normal sensibilities. Tt is not sufficient,’ it is said, ‘that it be considered a nuisance by those persons of very delicate and fastidious tastes or sensibilities; it must be of such a character as to be a nuisance to those persons of average mental and physical conditions, and those of normal sensibilities and tastes.’ ” (§ 185, p. 383.)
In Phillips v. Brick Co., 72 Kan. 643, 644, 82 Pac. 787, where the court found the facts did not warrant relief to the plaintiff, it was said:
“Whether the use was unreasonable and the inconvenience and injury serious and substantial, or only slight and trivial, were the questions submitted to the trial court for determination. As bearing on the questions involved, see Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052, 18 L. R. A. 756; Railway Co. v. Armstrong, 71 Kan. 366, 80 Pac. 978, and cases there cited.” (p. 644.)
In Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, a hospital for treatment of cancer was alleged to be a nuisance. In that case a review is made of what constitutes a nuisance. A permanent injunction against maintenance of the hospital was held to be proper.
In Gilbert v. Construction Co., 110 Kan. 298, 203 Pac. 1113, the syllabus recites:
“The setting up and operating of a rock crusher in the street within forty-three feet of plaintiff’s residence and the consequent throwing of large quantities of dust upon and into the residence, injuring and destroying furniture, clothing and food, was a nuisance.” (Syl. ¶ 1.)
And in King v. American Rock Crusher, 119 Kan. 618, 240 Pac. 394, where some of our decisions are reviewed, injunction was allowed against a nuisance.
The subject is likewise treated in 20 R. C. L. 438, et seq., and 46 C. J. 653, et seq., to which reference is made. And in 3 A. L. R. 312 and 11 A. L. R. 1401 will be found annotations on “Dust as Nuisance.” In so far as permitting the dust to escape and annoy the adjacent owners is concerned, we are of opinion that there was suU ficient evidence that the demurrer was properly overruled. It may be remarked here that the noise accompanying the switching of cars, the vibrations of the earth from the movements of engines, nor smoke from the engines, can hardly be said to be nuisances for which defendant is responsible, particularly in view of the proximity to the main line of the railroad. Neither does the fact that erection of the improvement cut off some of plaintiff’s light constitute a nuisance. (See Shepler v. Kansas Milling Co., 128 Kan. 554, 278 Pac. 757, and cases cited.)
When did the cause of action accrue, and is it barred by the statute of limitations?
The question as to when a cause of action accrues and whether the nuisance complained of is permanent or recurring has resulted in a diversity of conclusions. An exhaustive annotation on “Character of nuisance as continuing; when cause of action arises; successive actions” will be found in L. R. A. 1916E 997 et seq., and the matter is also treated in 37 C. J. 883, 46 C. J. 802, 17 R. C. L. 716, 20 R. C. L. 465.
It is generally held the first right of action for injuries caused by a nuisance or a continuing tort arises when the first injuiy is inflicted. Although in many particulars the same principles apply to trespass and nuisance, there is this difference: in trespass the mere breaking'and entering gives rise to a cause of action; in nuisance, the plaintiff is not disturbed in the enjoyment of his property until the act of the defendants has resulted in some injury. If the action be in trespass there is but one cause of action; if in nuisance it becomes important to determine whether the facts warrant but one action or a succession of actions as the various injuries may be inflicted. While perhaps not conclusive, in determining when the cause of action arose in the instant case, considerable weight should be given not only to the allegations of the petition but to the evidence offered in support. In Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679, damages were sought for injury to pasture lands by pollution of a stream, and it was said:
“The nature of a cause of action and the time when it accrues are determined by the facts, and not by when 'the injured person chooses to sue, or what he chooses to sue for.” (See cases cited.) (p. 757.)
What has hereinbefore been stated with reference to the allegations of the petition and to the evidence will not be.repeated. One allegation of the petition is:
“That the defendant for more than two years last past has been, and now is,in possession of certain premises contiguous to the said premises of the plaintiff herein, and within a distance of approximately twenty feet therefrom;, and that the said defendant has erected upon said premises about two years ago a grain elevator and laid railroad tracks on -said premises; and that within the last two years he has erected additions thereto,”
followed by allegations that the use of the premises thereafter constituted a nuisance. The last paragraph of the petition is:
“That the plaintiff has suffered and still suffers a special and peculiar injury resulting from said acts of the defendant; and that said acts have reduced the value of Ms home in the sum of $2,500, making his said home unfit for habitation for himself and his family, all to the great damage of the plaintiff.”
No special questions were submitted to the jury to bring out what particular testimony may have been relied on by it in arriving at its verdict but, having found for the plaintiff, conclusions must be resolved in plaintiff’s favor. Unless the pleadings and evidence disclose a situation which absolutely precludes judgment in his favor, we must conclude that the jury found such facts that the cause of action arose within the statutory period. It was made to appear by plaintiff’s evidence that from the inception of operation of the elevator in 1929 it was so operated as to constitute a nuisance, and that he so complained to defendant before the second headhouse was built. He argues, however, that whatever may have been the case before, when the new headhouse was built in 1930 the situation became worse. The evidence, however, showed the same state of facts as to dust, smell, etc., existed prior to the last construction as afterwards, the only claim of difference being as to degree. He also testified with reference to the suction around his place following the building of the tubes, the cutting off of the sunlight, the building of four switch tracks, the smoke and noise from switch engines, and—
“Q. So you consider that the building of those tracks on the other side of his elevator running on the north side of the elevator is what caused the depreciation or damage to your house? A. Well, mostly.
“Q. Well, you are complaining more of the noise and smoke from the trains on these tracks than from the headhouse? A. Well, the whole thing in general.”
And other testimony is abstracted as follows:
“I complained when he built the switch track to the north of the' elevator. It came within seven feet of the comer of my lot. I figured that affected the: value of my property. The building of the track and the switching of cars back and forth made my property worthless. The dust and tracks and noise and smoke and everything and the suction around the elevator did it. By suction I mean the wind coming around the end of the elevator. The trouble I complain of about the cars, noise, smoke and trains standing there was on the tracks that were built after the headhouse was constructed. In the winter time the headhouse deprives my house of sunshine. We do not get any sun after 2:30 in the afternoon.”
With respect to the damage to his .property, plaintiff testified that the value of his real estate prior to the erection of the elevator in 1929 was $3,500, and its value at the time he filed suit was $800 or $1,000. Later he said that immediately before the headhouse (probably meaning the second or' permanent headhouse) was built, it was worth $3,500, and that taking into consideration only damage from dust it was worth $1,400 and that, in fixing that figure, he allowed $500 on account of the general depression, and that in figuring the value of $1,400, he took into account inconvenience of the noise, the smoke of the engines on the switch track, and “the fact that the elevator is erected there near my place and has been erected since 1929 and in operation since that time.”
It thus appears that while the petition might be construed to state a cause of action for damages from injuries incurred within two years, the evidence showed facts which could have no application except to injuries incurred at least in. part between the start of operations of the elevator about January 1, 1929, and November 16, 1930, which was two years before the petition was filed. It likewise appears that in so far as damages to the real estate are concerned, plaintiff did not seek to recover loss of use of his property during the last two years, but did seek recovery for all acts which injured his property and in the nature of permanent damages.
While situations may arise where it can be said that successive causes of action arise, and because the conditions are such that while they may be annoying they are not sufficient to constitute nuisance, here we have a situation that at the time the petition was filed and at the time of the trial was no different, except perhaps in degree, than it was shortly after the time the elevator started operation in' 1929, and this is determinable from the plaintiff’s individual testimony. In fact, he did not testify to the contrary. Not. only did he testify as to the facts, but he stated he complained to the defendant before the permanent headhouse was built, and also shortly thereafter. This headhouse was built about six months before the period of the statute began to run measured against the time the suit was brought.
In McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, 50 L. R. A., n. s., 388, it was charged that in 1905 the city constructed a system of sewers which discharged into a creek which, prior thereto, was a stream of wholesome water suitable for live stock and for domestic purposes, and that in the same year' an oil company discharged waste matter and refuse into the creek, and that as. a result the usefulness of the creek to the plaintiff was destroyed and his premises damaged; that until 1909 the discharge and flood waters did not permit settling on plaintiff’s property, but that .dry weather diminished the flow, and the sewage and waste and refuse made the creek into a cesspool and a nuisance. The question as to when a cause of action arose and when it is barred was. disposed of in the following language:
“The principal question presented in this appeal is whether or not the cause of action on which a recovery was had was barred by the statute of limitations. The plaintiff, as we have 'seen, did not sue for a temporary injury or for any special damage or loss which he had sustained immediately before the bringing of the action, but. he treated the injury as a permanent one and as a sort of an appropriation of an interest in his property, and asked for all damages already sustained and which he might sustain in the future. He could have elected to have sued for temporary damages, sustained within the statutory period preceding the bringing of the action, and for any subsequent, injury or loss an additional action might have been brought. He chose, however, to treat the injury as permanent in character and brought a single action to recover for all present and prospective damages to his land. As the sewer system constructed by the city and the refinery constructed by the oil company were permanent in their nature, and as the flow of the sewage and refuse from them was designed to continue indefinitely in the future a cause of action for permanent damages arose when the sewage and other impurities were first emptied into the stream. As the effect of the discharge of the sewage and the refuse in the stream could have been ascertained with reasonable certainty and as the stream was polluted to a certain extent when the discharges were thrown into the stream plaintiff could have brought an action for permanent .damages at the beginning, and it is settled that ‘whenever one person may sue another a cause of action has accrued and the statute begins to run.’ (25 Cyc. 1066.) The plaintiff chose a remedy for permanent injury and is bound by the limitations which the law places upon the enforcement of such remedy.” (p. 43.)
And see the cases cited therein.
Space forbids a full statement of facts, but in Parker v. City of Atchison, 58, Kan. 29, 48 Pac. 631, the city bridged an alley and made improvements along a creek bank to safeguard the bridge. Suit was brought to enjoin claimed obstruction of the creek and to abate the claimed nuisance. In concluding its opinion this court said:
“It would seem from the testimony that the mere improvement of the alley could not have operated as a very serious injury to the property of the plaintiffs in error; but assuming that it was injured to some extent, they were too late in claiming a recovery. As the improvement is permanent in its character, but one action could be maintained in which all damages, present or prospective, would be recoverable. The action accrued in 1884, when the structure was completed and ... it was barred at the end of two years.” (p. 39.)
In Pever v. Railway Co., 100 Kan. 266, 164 Pac. 159, it was held:
“The action was one for damages for injury to a tract of 140 acres of land, caused by enlargement, through operation of the forces of nature, of a ditch rightfully and properly dug by the railway company on its right of way to drain its roadbed. The ditch had deprived the plaintiff of the use of three and one quarter acres of land adjoining the right of way. Damages were claimed for this injury, and for depreciation in the market value of the entire tract occasioned by the ditch. Held, a cause of action accrued when the ditch invaded the plaintiff's land, damages for permanent injury were then recoverable if desired, and the action was barred because not commenced within two years after the cause of action accrued.” (Syl.)
In Thomas v. Woodman, 23 Kan. 217, in connection wjith a mill, a dam was built in 1874. It washed out three times and was rebuilt, twice after 1876. The plaintiff owned lands below the dam. In 1878 he filed suit to enjoin, claiming nuisance in that the dam caused sand bars to form, the water became sluggish, grass grew in the river and rotted and became offensive. In disposing of the matter this court said:
“Further, the conclusion of the court, set forth in the findings of law, to the effect that the defendant in error was not guilty of unreasonable delay in bringing his suit, is not sustained by the findings of fact. By these findings it appears that, in the summer of 1876, he knew the full consequences to his premises of the diversion of the water from the Little Arkansas river, and in the fall of that year visited and walked across the dam. Thereafter he could not plead ignorance of the real facts in the case. Yet he permitted the dam in the river to be twice rebuilt to the same height, after the fall of 1876, and made no serious objection. He waited till March, 1878, to commence any legal opposition, and therefore, in our opinion, has been guilty of improper delay in applying to the court for equitable interference in his behalf.” (p. 227.)
And to the same effect are Mosby v. Manhattan Oil Co., 134 Kan. 732, 8 P. 2d 325, as well as many cases cited in those above mentioned.
Appellee argues that the erection of the elevators did not constitute a nuisance, and that is true as to those matters which we hold to be nuisance, i. e., damages from dust and disagreeable odors thereof. There was no nuisance sufficient to .constitute a'cause .of action until the dust and dirt seriously and substantially interfered with his use and enjoyment of his home. A somewhat analogous contention was made in Beard v. Kansas City, 96 Kan. 102, 150 Pac. 540, wherein many cases in support of that theory are cited. And a more recent case is Buss v. Missouri Pac. Rld. Co., 120 Kan. 689, 244 Pac. 1059.
It must be noted, however, that in the first line of cases mentioned the action is for recovery of permanent-damages to the real estate, while in the last line the action is for recovery of damages other than permanent damages to the real estate arising when the trespass occurred or the nuisance started.
It is true in the instant case that the erection of the elevator and accompanying structures did not constitute a trespass or a nuisance. The plaintiff’s own testimony, however, is that the nuisance started with the operation of the elevator and has continued since, varying only in degree as the operations covered the enlarged plant, and the testimony with respect to damages to the real estate is not limited to matters arising wiithin two years, but covers matters arising not only from operation of the elevator, for which he might recover, but other matters, such as loss of light, noise from the railroad and such things, for which he could not in any circumstance recover from the defendant. It seems clear to us that plaintiff sought recovery of damages from the defendant on account of matters which existed since shortly after the elevator started operation; that such cause of action accrued prior to two years before the petition was filed, and was barred by the two-year statute of limitations applicable (R. S. 60-306, Third), and that the trial court erred in not sustaining the defendant’s demurrer for that reason.
The judgment of the trial court is set aside, and the cause remanded with instructions to sustain the defendant’s demurrer to plaintiff’s evidence. | [
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The opinion of the court was delivered by
Smith, J.:
This ‘was an action for damages growing out of an automobile wreck. Judgment was for defendant. Plaintiff appeals.
Plaintiff was a guest riding in the car of defendant at the time of the injury. The petition alleged that defendant while operating his car on a “black mat” type of highway at about 2 a. m., operated it with headlights that were not reasonably serviceable, in that on that type of pavement they could not reveal obstructions such as live stock a distance of more than 75 to 100 feet, and that defendant operated his automobile at a speed of approximately forty to fifty miles per hour.
The petition alleged further that because of the above facts de-. fendant struck a herd of cattle and failed to hold the car under control and crashed into a highway culvert wall, injuring plaintiff.
The petition then alleged defendant knew the surrounding country was a farming country, and that stray and uncontrolled live stock would likely be on the highway, and he knew, or should have known, that at any speed in excess of twenty-five miles per hour he would likely strike such obstructions.
The petition characterized the conduct of defendant as “gross and wanton negligence.” At the trial counsel made his opening statement about as it has been given here. He made the further statement that is not in his petition, as follows:
“The evidence will be that he did not apply his brake, or do anything in that nature, or anything that would slacken his speed or stop this automobile, but took a chance on going out on the shoulder and going through a hole, I believe the evidence will show, that he thought was wide enough for him to get through', and in taking that chance he ran over on the shoulder, and suddenly was confronted with a culvert and tried to turn sharply back into the road and struck the culvert.”
On motion, judgment was given for defendant in the pleadings and opening statement. From that judgment this appeal is taken.
The theory upon which the judgment was entered is that the petition and opening statement did not state facts from which it could be said that the defendant was guilty of reckless and wanton conduct essential to recovery under the provisions of R. S. 1933 Supp. 8-122b. Plaintiff maintains that for defendant to drive a car on a black mat type of highway, at a speed of forty or fifty miles an hour, with headlights that would not reveal objects a distance of more than 75 to 100 feet, is wantonness.
We are not wanting in statements of what shall constitute wantonness. In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, this court, in construing this statute, quoted and approved the language used in Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804, as follows:
“The duty there referred to, the disregard of which amounts to wantonness, is manifestly that which arises only when the person charged with dereliction has knowledge of the danger or of the facts which impute that knowledge to him. . . . Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree. . . . For the same reason the phrase ‘reckless and wanton negligence’ has a misleading tendency. One who is properly charged with recklessness or wantonness is not simply more careless than one who is only guilty of negligence; his conduct must be such as to put him in the class with the willful doer of wrong. The only respect in which his attitude is less blameworthy than that of the intentional wrongdoer is that instead of affirmatively wishing to injure another he is merely willing to do so. The difference is that between him who casts a missile intending that it shall strike another and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not.” (p. 189.)
In Sayre v. Malcolm, 139 Kan. 378, 31 P. 2d 8, the question was again considered. The court said:
“In Stout v. Gallemore, 138 Kan. 385, 26 P. 2d 573, it was held the statute above quoted relieves the operator of an automobile from liability to his guest resulting from negligence, as that term is distinguished from wantonness. Cases are there cited distinguishing wantonness, as the term was used, from negligence, and pointing out that conduct properly characterized under these terms differs not in degree, but in kind, the one denoting lack of due care under the circumstances, the other denoting conscious or intentional misconduct from which injury to someone is likely to result and with a reckless disregard of such consequence.” (p. 379.)
In Ewing v. Edwards, 140 Kan. 325, 36 P. 2d 1021, after quoting various authorities on the question, the court said:
“The only act of which plaintiffs complain is the pulling out of the throttle. This is not such an act as would evince on the part of defendant a willingness that this car should get beyond control of the driver. Nor was the speed finally reached by the car so great as to indicate such a state of mind on the part of defendant.” (p. 327.)
We see from these authorities that this court has consistently held that for the conduct of a defendant to constitute a basis for a cause of action under the statute it must show such a reckless disregard of consequences as to evince a willingness that some harmful result will flow therefrom.
In considering the question of whether the conduct described in the petition evinces such a willingness, we must consider it in the light of' what is the general practice of drivers of automobiles. When that criterion is applied, we have no difficulty in concluding that the conduct as described did not show any such attitude. Indeed, it is doubtful if the conduct would even be negligence.
In the opening, statement counsel made the statement that when confronted with the cattle defendant did not apply his brakes and attempt to stop, but attempted to go through a hole, and thereby lost control of his car. It was maintained in the oral argument that this added circumstance would make the defendant liable Under the statute. All this shows is that in the second or two in which the defendant had to act, he took what seemed to him the safest course. Whether it was the safest or not, no one will ever know. At any rate, his taking it does not make him guilty of reckless and wanton conduct.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.
This was an action on a note secured by a chattel mortgage on certain live stock. The defense was based on fraudulent alteration of the instruments evidencing the defendants’ obligation.
Briefly, the controlling facts were these: Wyant, the plaintiff, owned a farm which he rented to Russell, the defendant. To enable defendant to handle the farm plaintiff sold him a team of horses on time. He also sold defendant a half interest in certain cattle and hogs. The cattle and hogs were to be fed on the products of the farm, and some sort of division of sales and increase of this live stock was agreed upon but too obscurely disclosed in the record to be stated here.
In acknowledgment of defendants’ indebtedness to plaintiff for the team of horses and the half interest in the other live stock, defendant and wife executed in favor of plaintiff their note for $400 and gave him a chattel mortgage on the personalty which had been the subject of the purchase and sale.
Default being made in payment of the note, plaintiff brought suit on it, and obtained possession of the mortgaged personal property by replevin. When the action was begun the note and mortgage appeared to be for $432.50, for which sum and interest plaintiff prayed judgment.
Defendants’ answer alleged that the note and mortgage had been materially altered by plaintiff without their consent and denied all liability thereunder.
The principal issue joined had to do with the alteration of the instruments. Plaintiff’s evidence tended to show that within a day or two after the note and mortgage were executed he called on defendants and directed their attention to an error in the computation of their indebtedness, and that the note and mortgage were altered with their consent. To substantiate plaintiff’s version of the matter he produced a paper showing a computation which he avowed was made at the time and which tended to show that defendants’ indebtedness was in fact $432.50. Unfortunately for plaintiff’s cause, this computation was made on the back of a letter to plaintiff from the Rock Island railway company dated November 17, 1931, acknowledging plaintiff’s inquiry of November 7 in relation to freight rates; but the note and mortgage sued on in this action were dated January 1, 1931, and the indebtedness evidenced by this note and mortgage likewise antedated the subject of plaintiff’s correspondence with the railway company. Defendants’ testimony was to the effect that no such incident as plaintiff testified to touching the alteration of the instruments ever occurred; so it was not remarkable that the jury should return a verdict for defendants, together with special findings reciting that when executed the note and mortgage were for $400, that plaintiff had altered them to $432.50, that neither of defendants had authorized such alterations, and—
“7. If you find that said note and mortgage were in fact changed after they were signed by the defendants, were the changes made with an understanding on the part of defendants that such change might be made for the purpose of correcting a mutual mistake in the amount intended to be named in the note and mortgage, exhibits 1 and 2? A. No.
“8. If you find that plaintiff changed the amount named in the note and mortgage, exhibits 1 and 2 of defendants’ evidence, did plaintiff so change said amount for the purpose fraudulently of increasing the amount of the agreed settlement of plaintiff and defendants? A. Yes.
“9. What do you find was the value, at the time the property was taken under the writ of replevin, of the interest of defendants in that property? A. $253H.oo.”
At the time these special findings were made the jury’s general verdict for defendants was for $253.75, which resulted in the following colloquy between court and jury:
“Tee Court: What did you find was the full value of the property taken at the time it was replevined? Does the general verdict' represent the full value you found the property to be, or the one-half of its value?
“Foreman : One-half.
“We just took one-half of what the sheriff valued it at when he took it.
“The Court: Was that the verdict of all of you, gentlemen?
“All Jurors : Yes, sir.
“The Court: The verdict required that you should find the full value and not the one-half. Clearly, by the further statements, you have intended to show that the general verdict is for only one-half. I will ask the reporter to take this verdict and copy it exactly as it was when it went to the jury, and I will ask you just here to correct that, if that was your intention, without going to the jury room.”
Thereupon the jury altered its verdict to $507.50, and judgment was entered accordingly.
Plaintiff assigns various errors, the first of which is based on the court’s first instruction, which stated among other matters that the action was to recover a money judgment on the note and mortgage. The pleadings are not submitted for our inspection; we cannot doubt that such was the purport of the pleadings; but in any event nothing prejudicial to plaintiff can be traced to the instruction complained of.
Error is also assigned on the third instruction, wherein the court-stated the law touching the consequence which would follow if the jury found the note and mortgage had been fraudulently altered by plaintiff, and added: “In that event your verdict should be for the defendants for the return of the replevined property or its value when taken under the writ of replevin.” The quoted excerpt will require attention later in this opinion; but the legal consequences which flow from a fraudulent alteration of a negotiable instrument which does not pass into innocent hands before maturity were correctly stated. (Fraker v. Cullum, 21 Kan. 555; National Bank v. Hoover, 114 Kan. 394, 400, 218 Pac. 1003; Holloway v. Gano, 120 Kan. 256, 243 Pac. 317; id., 125 Kan. 3, 6, 7, 262 Pac. 573; Baron v. Lyman, 136 Kan. 842, 852, 853, 18 P. 2d 137.) In Hocknell v. Sheley, 66 Kan. 357, 71 Pac. 839, it was said:
“The fraudulent alteration of a promissory note in a material respect destroys the note as a cause of action and will defeat a recovery on the original consideration, and if the note is secured by a mortgage such alteration operates io discharge the mortgage.” (Syl.)
The only modification of the rule just quoted which has been made by the negotiable instruments act (R. S. 52-906) deals with the rights of an innocent holder, but those are not involved in this case. (Bank v. Myrick, 108 Kan. 191, syl. ¶ 3, 194 Pac. 648.)
Complaint is. also made of the trial court’s refusal to give an instruction touching the legal consequences which would ensue if plaintiff believed himself to be authorized to alter the note and mortgage. Such an instruction was properly refused. As a practical matter, a note fraudulently altered could never be defeated if the defense thereto could be overcome by the asseveration of its perpetrator that he believed himself authorized to make the alteration.
We come now to the only serious point in this case. The note and mortgage were intended to evidence defendants’ debt for the purchase of the horses and for the purchase of a half interest in the cattle and hogs.' While the trial court’s understanding of the issues was rather hazy, the jury were not altogether at sea. Their first verdict sensed the fact that plaintiff did no civil wrong in repossessing himself of his own one-half interest in the live stock, however tortious or unauthorized the taking of the horses and defendants’ half of the live stock might be. There was no justification for including in the judgment the full value of all the property taken by plaintiff under the writ of replevin. A considerable share of it belonged to him. All the facts necessary to a final and binding judgment between the parties were involved in the litigation. (First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53; Clemens v. Kansas Gas & Electric Co., 131 Kan. 93, 97, 99, 289 Pac. 461.)
If the value of the horses and half the value of the live stock which belonged to the defendants had been separately itemized by the jury, this court could terminate this litigation by directing the proper judgment to be entered in defendants’ behalf. Since that was not done, the cause will have to be remanded with instructions to set aside the judgment for $507.50, and to grant a new trial, limited, however (R. S. 60-3004; Harris v. Drenning, 101 Kan. 711, 719, and syl. ¶ 4, 168 Pac. 1106; Carlgren v. Saindon, 129 Kan. 475, 479, 480, and syl. ¶ 3, 283 Pac. 620), to an ascertainment of the value of the horses and also the value of defendants’ one-half interest in the other live stock taken by plaintiff, and to enter judgment therefor in favor of defendants.
It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is^the extent of authority of the district court to dismiss an action brought before it by a fatally defective appeal from a city court, which had jurisdiction of the parties and the subject matter.
Plaintiff sued defendant in the city court of Wichita for $900 due on account. Defendant answered by a counterclaim. ‘After a trial, judgment was rendered for plaintiff, and defendant undertook to appeal. The attempt was ineffectual for lack of bond, and the omission to give bond was not curable by amendment. (Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585, decided July 8, 1933.) The transcript was filed in the district court and the case was docketed there. Defendant obtained leave to amend its answer, and did so. Plaintiff replied. The cause was tried by the court, without a jury, and judgment was rendered for plaintiff on June 14, 1933. A motion for a new trial was filed on June 17, and was taken under advisement. On August 4, but at the same term of court, plaintiff moved to dismiss the appeal on the ground of want of jurisdiction of the district court. The court allowed the motion, and dismissed the appeal.
The subject of jurisdiction of parties was not presented by 'the motion to dismiss, and is not involved in this appeal. However, both courts had jurisdiction of the parties.
The district court did not obtain jurisdiction of the subject matter of the controversy by appeal. The method of appeal is prescribed by statute, there is no other method, the prescribed method was not followed, and what was done toward vesting the district court with appellate jurisdiction of subject matter was nugatory.
When an appeal is properly taken from a judgment of a city court, the jurisdiction of the district court is appellate only, as it is on appeal from a justice of the peace.
“Indeed, the district court takes a case appealed from a justice of the peace merely as an appealed case, and does not take any original jurisdiction; . . (Wagstaff v. Challiss, 31 Kan. 212, 216, 1 Pac. 631.)
Sometimes, however, the parties, by some form of manifested assent, and with consent of the district court, may take advantage of the larger jurisdiction of the district court over the field in which the controversy lies, and may raise and try issues not brought up by the appeal, just as they may enlarge issues presented by pleadings filed originally in district court. There can be no objection to this method of invoking original jurisdiction. Trouble arises when one of the parties attempts to renounce. The question then is, whether what had previously occurred was sufficient to vest the court with original jurisdiction over subject matter. The decisions of this court are in some confusion with respect to the subject, but no question of that character arises in this case.
The court did not get original jurisdiction of the subject matter by agreement or manifested assent of the parties, or consent of the court. The city court transcript and the pleadings filed in the city court were sent up on the assumption an appeal had been perfected. The case was tried on plaintiff’s bill of particulars filed in the city court. The answer filed in the city court was amended, but not to counterclaim in a sum beyond jurisdiction of the city.court. Plaintiff filed a reply to the answer, as amended. All this was proper practice in an appellate proceeding. In opening the case in district court, defendant’s attorney stated the action originated in the city court and was appealed to the district court. The proceedings in the district court were conducted accordingly. Both the parties and the court assumed the court was sitting in appellate capacity only, and nothing was done in the case inconsistent with purely appellate jurisdiction. After the decision in the Hahn case was published, the motion to dismiss was promptly filed, and there is no question in this case of voluntary submission to or exercise of original jurisdiction.
In cases such as the one under consideration, it is often said the appellee cannot, for one reason or another, raise the question of lack of jurisdiction of subject matter. Generally it is said he “waives” privilege to object. That turns the reproving eye of the court away from the party at fault, who has obtained no right to vex the district court with his case, and turns the aforesaid eye upon the appellee, as the one who is somehow to blame for the situation. To say in this case appellee waived lack of jurisdiction of subject matter would involve misuse of the term waiver. Waiver is voluntary relinquishment of a known right. The appellee may properly be chargeable with waiver in those instances in which he goes to trial with knowledge of the fatal defect in taking the appeal, or voluntarily invokes or submits to exercise of original jurisdiction, but nothing of the kind occurred in this case. Suppose that before filing motion to dismiss, the appellee has done or said something which might be con strued as recognition of original jurisdiction of subject matter. There sits the court, which is not bound to continue to act extrajudicially after it learns of defect in the appeal proceeding, whether by the court’s own examination of the appeal papers, or by motion to dismiss; and if the court does dismiss, the appellant has no standing to complain. He has no license to do better by taking a void appeal than by taking a valid one.
In cases of this character, time, when want of jurisdiction of subject matter should be urged, has been considered important. Consider this situation: Ineffective appeal to district court, trial there, judgment, term ends, and a year or more goes by. A field for common barratry ought not to be opened by allowing the judgment to be disturbed.
In Gregg v. Garverick, 33 Kan. 190, 5 Pac. 751, it was held the question of jurisdiction of the district court on appeal from a justice of the peace could not be raised for the first time in this court. In Miller v. Bogart, 19 Kan. 117, it was held a motion to dismiss, on jurisdictional ground, filed after judgment in the district court and after expiration of the term at which judgment was rendered, was too late. In Ball v. Biggam, 43 Kan. 327, 23 Pac. 565, it was said the jurisdictional question could be raised at any time during the trial. Some decisions would require the appellee to move to dismiss before anything else occurred in district court. They ignore power of the court to purge its docket of cases which do not belong there, regardless of attitude of the parties.
If parties have placed themselves in a position in which it may fairly be said they have departed from the appeal, and have invoked original jurisdiction, the court may consent to exercise such jurisdiction. If it does, neither party may subsequently complain. The court, however, may, at any time before it has finally disposed of the case, or at the same term at which it has finally disposed of the case, dismiss an appeal which, under the law of appellate procedure, did not bring up subject matter of the litigation. Under the circumstances of this case, the motion to dismiss was filed in time.
In the case of Shuster v. Finan, 19 Kan. 114, parties tried a case for three days before a justice of the peace, and then agreed in writing the cause should proceed no further and the justice should certify the case to the district court, there to be tried. This was done, no judgment having been rendered by the justice of the peace, and no appeal having been taken from action of the justice of the peace. A transcript of the proceedings before the justice of the peace and all papers and files were transmitted to the clerk of the district court. The cause came on for trial in the district court, and a jury was impaneled. Then defendant undertook to break his agreement, and moved to dismiss for want of jurisdiction. The motion was denied. It is not imperative that all actions in district court must begin with filing a petition, that summons must be issued and served, etc. In this instance the parties agreed on a form of initiating a proceeding in district court, not according to the code, but which in fact presented the issues in a real controversy to the district court. They appeared there according to the agreement as if the case had been commenced and issues framed in the regular way. They went to trial in accustomed manner. Therefore the motion to dismiss was properly denied.
In the opinion in the Shuster-Finan case occurs the following:
“But to sustain jurisdiction, all that is essential is, to show that the tribunal had jurisdiction of the person, and of the subject matter. The district court is one of general original jurisdiction, and if parties come voluntarily into that court to litigate a matter of which it could take cognizance, and which is within the scope of its jurisdiction, and make no objection to the form of the proceedings, they will not be heard to say that the court had no jurisdiction, or that its judgment is not binding.” (p. 116.)
The statement that, to sustain jurisdiction, all that is essential is to show the court had jurisdiction of parties and subject matter, was not necessary to the decision, and, properly speaking, was dictum. Besides that, the statement was too broad. The remainder of the paragraph was as undiscriminating as the first statement, and the paragraph has caused confusion in the decisions.
Consider this case: Trial of a slander case before a justice of the peace, judgment for plaintiff, defendant appeals. When the case is called in district court, defendant demands a jury trial. Defendant then hires a lawyer who knows the statute expressly prohibited the justice of the peace from entertaining the subject matter of the action. Before the case is called for trial, defendant moves to dismiss on the ground the justice of the peace had no jurisdiction and the district court could not obtain jurisdiction of subject matter by appeal. Notwithstanding defendant appeared in district court, asked for affirmative action, and so submitted his person to the jurisdiction, the district court acquired no jurisdiction of subject matter. If the district court acts in such cases, its judgment is simply void.
In the case of Armour v. Howe, 62 Kan. 587, 64 Pac. 42, a city court, having the same jurisdiction as a justice of the peace, had before it a case of forcible detainer. It certified the case to the district court as one in which title was involved. The parties appeared in district court and, after a trial, plaintiff prevailed. Defendant appealed to this court. The statute relating to certification to the district court, when title is involved, did not apply to an action of forcible detainer, there could be no appeal to the district court, and the district court could not obtain jurisdiction of subject matter by appeal. The question was not raised by the parties in district court nor in this court, but this court, of its own motion, dismissed the case, becausevthe district court acted without jurisdiction, and its judgment was void.
A justice of the peace is given, by statute, limited jurisdiction in certain classes of cases. By implication he is forbidden to take jurisdiction in other cases. Consider this situation: The justice tries an equity case for an accounting, a case not in the prohibited class, but not within his granted jurisdiction, and an appeal is taken to the district court. Berroth v. McElvain, 41 Kan. 269, 20 Pac. 850, was such a case. It was admitted that both the justice of the peace and the district court had jurisdiction over the persons of both the plaintiff and the defendant. It was held the district court did not and could not take jurisdiction of the case.
Consider the common case in which a justice of the peace or a city court merely exceeds the limitation on granted jurisdiction. Trial, judgment for plaintiff, defendant appeals. In district court, defendant demands a jury trial, and the case is placed on the jury calendar. Defendant has submitted himself to the appellate jurisdiction of the district court. Defendant then hires a lawyer, who examines the appeal papers and discovers no bond was given, and the attempted appeal was ineffective to bring up subject matter. Before the case is called for trial, defendant moves to dismiss. When a case is appealed from a city court to the district court, the district court literally sits as the city court and, sitting as the city court, may do what the city court could have done. (McConnell v. Rhone, 128 Kan. 257, 259, 276 Pac. 830.) In the supposed case under consideration, plaintiff who appealed may not deny he invoked appellate jurisdiction only; all defendant did in the first place was to respond to the appeal and exercise a right incident to appellate jurisdiction. It simply forces the facts to say he voluntarily submitted himself to original jurisdiction, and it is not material that in a case originally commenced in district court, appearance would have held the case there.
The following are declarations of general principles governing appellate jurisdiction of the district court:
“Where a justice of the peace before whom an action was brought had no jurisdiction of the subject matter of the action, no jurisdiction of the cause of action is conferred upon the district court upon the appeal of plaintiff from a judgment rendered in the justice’s court, and such action should be dismissed by the district court.” (Sims v. Kennedy, 67 Kan. 383, syl. ¶ 3, 73 Pac. 51.)
“If jurisdiction over the subject matter of an action be lacking in a justice of the peace, it will not be conferred on the district court by an appeal.” (Parker v. Railway Co., 70 Kan. 168, syl. ¶ 4, 78 Pac. 406.)
“A district court on the trial of an action appealed from an inferior court has such jurisdiction only as had the court from which the appeal was taken.” (Dry Goods Co. v. Grear, 76 Kan. 164, syl. ¶ 1, 90 Pac. 770.)
“Upon an appeal of a replevin action from the justice court to the district court, the district court has only such jurisdiction of the subject matter as the justice court had.” (Woodworth v. Maddox, 115 Kan. 445, syl. ¶ 3, 223 Pac. 275.)
“The district court upon the trial of an action appealed to that court from a justice court has such jurisdiction only as the justice court had, but the mode of procedure during the trial in the district court should be according to the rules of practice in the district court.” (Duncan v. Rider, 133 Kan. 307, syl. ¶ 2, 299 Pac. 591.)
In the case of Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631, Challiss commenced an action against Wagstaff before a justice of the peace. After judgment, the case was appealed to the district court, where judgment was rendered in favor of Challiss. The judgment was reversed by this court, and the cause was remanded. Challiss then demanded that Wagstaff file a bill of particulars of set-off, and obtained an order that Wagstaff should do so. Wag-staff complied, and Challiss moved to strike the set-off, because the amount was beyond the jurisdiction of the justice of the peace where the case originated. The motion was allowed. Wagstaff then asked leave to file a new pleading in furtherance of justice, claiming set-offs amounting to nearly $3,000. The motion was denied, and Wagstaff appealed. If any court ever had jurisdiction over parties, the district court had jurisdiction over Challiss and Wagstaff. However, the judgment of the district court was affirmed by this court, because of the limitation on jurisdiction of the district court on appeal, over subject matter. The syllabus reads:
“1. Where an action is appealed from a justice of the peace to the district court, the district court takes merely appellate jurisdiction, and no original jurisdiction, and can hear and determine the case only as a case within the jurisdiction of a justice of the peace.
“2. Where an action for recovery of money only has been commenced before a justice of the peace, and is afterward appealed to the district court, the defendant has no absolute right in the district court to set up, claim and prove a set-off exceeding the amount of $300.
“3. And in such a case where the defendant sets up and claims a set-off exceeding $300, and does not withhold setting off any portion of the same, the district court has no jurisdiction to hear and determine such set-off or any portion thereof.”
In the case of Ball v. Biggam, 43 Kan. 327, 23 Pac. 565, defendants were defeated in an action before a justice of the peace, and appealed. The claim was beyond the jurisdiction of the justice of the peace. In the district court a jury was impaneled, and a witness was placed on the stand. Then defendant, who had taken the appeal and had gone to trial in the district court, objected to jurisdiction of the district court. The court proceeded with the trial, and judgment was again rendered against defendant. On appeal by defendant to this court, it was held the judgment of the district court should be reversed and the cause remanded, with direction to dismiss the appeal. In the opinion it was said:
“The plaintiffs concede that ordinarily the jurisdiction that the district court obtains by virtue of an appeal is simply that of the justice’s court; but they claim that because the defendant appealed and sought the district court as the forum in which to try the action he has waived this rule. The jurisdiction of the district court is exclusively and wholly appellate; its .original jurisdiction is not invoked at all. If the justice’s court was without jurisdiction, it follows that the district court was also without jurisdiction. If the court had no jurisdiction over the subject matter of the controversy, objection could be made at any time during the trial in the district court. The judgment before the justice, being coram non judice, was void, and could have been enjoined in an attempt to collect the same by execution.” (p. 328.)
“The taking of an appeal would waive any question of jurisdiction of the person, and all irregularities in the appeal, but there was no waiver of the jurisdiction of the court of the subject matter by defendant appealing. His objection to the jurisdiction made in the district court was in time and in the proper manner, and should have been sustained and the action dismissed.’ (p. 329.)
In the case of Milling Co. v. Stevens, 94 Kan. 745, 147 Pac. 815, plaintiff sued in the city court of Wichita on an Oklahoma judgment, and recovered. Defendant appealed, and filed an answer in district court attacking the Oklahoma judgment on various grounds and praying for relief against collection of it. Plaintiff demurred, and so submitted himself to the jurisdiction of the district court. The opinion of this court reads:
“The city court in which this action was brought has no power to vacate judgments or to enjoin their enforcement [citations], and as the district court in trying the cause on appeal was sitting as a city court it had no jurisdiction to prevent the enforcement of the judgment by injunction [citations]. And likewise it was powerless to set the judgment aside [citations].” (p. 748.)
On principle there is no sound distinction, so far as jurisdiction of the district court is concerned, between no subject matter to take to the district court by appeal, and an appeal ineffective to take subject matter to the district court. As indicated, some distinctions have been established which must be observed; but mere personal appearance of the appellee in the district court in an appeal which did not bring subject matter to the district court, will not vest the district court with a larger jurisdiction than it would have obtained by a valid appeal.
As indicated above, there is some contrariety in the utterances of this court respecting the subject proposed at commencement of this opinion. Some of the diversity was unnecessary.
In the case of Miller v. Bogart, 19 Kan. 117, which immediately follows the Shuster-Finan case, the specific ground of the decision was that the question regarding right of appeal was presented too late (syllabus). The opinion, however, repeated the dictum of the Shuster-Finan case.
In the case of Mo. Pac. Rly. Co. v. Lea, 47 Kan. 268, 27 Pac. 987, plaintiff sued before a justice of the peace for $300 damages for burning hay worth $360. The sum sued for was within the jurisdiction of the justice of the peace. Plaintiff recovered, and defendant appealed. In district court, plaintiff filed a petition, claiming judgment for $360 and an attorney fee. Defendant indorsed leave to file, in writing, on the petition, and then answered by general denial and by pleading contributory negligence. Several months after the answer was filed, defendant moved to dismiss, and objected to introduction of evidence. By giving leave to file and then by answering the petition, defendant consented to enlargement of the issues. However, the court, by Horton, C. J., said, the motion to dismiss came too late, and then said:
“Under the statute, the district court had jurisdiction of the cause of action even if there had never been any bill of particulars filed before the justice. The voluntary and general appearance of the railway company in the district court gave it jurisdiction over the defendant.” (p. 270.)
In the case of Telegraph Co. v. Moyle, 51 Kan. 203, 32 Pac. 895, it was sufficient to say the jurisdictional question was not raised in the district court, and could not be raised for the first time in this court, but the court, by Horton, C. J., cited the Lea case and repeated 'substantially what was there said.
Time and space forbid further comment on the cases. In this instance, the motion to dismiss was occasioned by the decision of this court in Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585. Until the motion to dismiss was filed, the parties and the court had proceeded on the assumption an appeal had been duly taken, and nothing was done by court or counsel inconsistent with jurisdiction by appeal. The attempted appeal did not bring up the subject matter of the controversy. The appearance of the parties did not bring up subject matter of the controversy. The term had not expired at which judgment was rendered, and the cause was as much before the court as it ever had been. When the court was apprised by the motion of the fact the subject matter of the controversy had not been brought within the court’s appellate jurisdiction, the court, which was in legal effect sitting as the city court, was not required to change its habiliments, put on the robe of original jurisdiction, and proceed to exercise original jurisdiction.
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The opinion of the court was delivered by
Johnston, C. J.:
Mrs. Cooper owned a farm prior to her death. She executed a will giving the life estate to her husband, and the remainder to her children. After the death of the owner and on May 10, 1930, the life tenant leased the land to Cyr for twelve months. Payment for the lease was one-third of the crops produced on the land. Cyr had been an undertenant for two or three years and had put out crops. During the months of September and October, 1930, Cyr sowed wheat upon the real estate so leased. On December 28, 1930, the life tenant died. The share of the grain to which the life tenant would have been entitled if he had lived, was claimed by the remainderman, A. E. Cooper. He brought this action in two counts; one alleged the use of the premises for the term mentioned. On a motion filed in the district court the second count of the petition was stricken out, which alleged that Cyr was to deliver one-third of all grain grown upon the place. A demurrer was interposed to the other count, which the court sustained, holding the remainderman may not recover any part of the rent.
The lease had been made in the preceding May; the undertenant was not a trespasser then when he sowed the wheat. The court could take judicial notice of the time and manner of making farm leases in Kansas. Those ordinarily made in the summer are effective the following March, and fall wheat, if any is to be raised, must be sown several months before. It was claimed that at the very least the tenant farmer who sows wheat would be a tenant by sufferance, and based upon Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 366, 1087, the court held the remainderman cannot maintain his action and the demurrer to .the petition should be sustained.
The appellee harvested approximately 1,800 bushels of wheat from the premises, and one-third of this would be 600 bushels. The appellant brought an action to recover the landlord’s share. The motion to strike the second cause of action on the ground it did not state a cause of action was sustained by the court. Thereafter a demurrer was filed to the first cause of action and was likewise sustained. From both of these rulings the plaintiff appeals.
The case of Wyandt v. Merrill, supra, has led to some confusion in litigation and is cited by both parties in the present case. It will be noted that the writer of the opinion in that case does not take up or discuss whether the common law on the subject is adapted to or is inconsistent with our system of government. The common law had been the rule in force on the subject until it was changed, and the rule contended for by defendant has not been the common law of England for hundreds of years. It was changed by parliament by the statute of 11 George II, chapter 19, section 15, in the year 1737. At that time the American colonies were under the rule of England, and when the law went out in England it was abolished in the colonies. In 1855 the territorial legislature passed an act adopting the common law and the statutes and acts of parliament of a general nature. (Clark v. Allaman, 71 Kan. 206, 221, 80 Pac. 571; Stat. Kan. Ter., 1855, ch. 96.) The earliest statute on the subject expressed the contrary view to that of the common law of England of about two hundred years ago. For about that time it was regarded as unsuitable to the welfare of England, and had been set aside by act of parliament. The law as interpreted in Wyandt v. Merrill, supra, provided that the lease, legal when made, died with the lessor because it had not fully accrued during the existence of the lease; that the common law did not permit apportionment and rent could not go to the remainderman because he is a stranger to the lease. When a right under it accrued the advantage thus given to the lessee or cropper, cutting out the interest represented by the life tenant or descendant, of any right upon his death, was denounced as unfair and was repealed by act of parliament. A contract legally made is protected, and has been from the inception of this government. Some of the provisions are provided for in R. S. 67-515 to 67-520, and these show that the landlord’s right is protected, and has been from the beginning.
It has been held since Wyandt v. Merill, supra, was decided that from the beginning the landlord’s interest did not pass with the death of the life tenant. In Bank v. Equity Exchange, 113 Kan. 696, 216 Pac. 278, it was held that —
“The landlord’s interest, however, is inchoate with the sowing of the seed in his ground; it attaches to the growing grain to such an extent that he may sue for damage done by a wrongdoer (Sayers v. Railway Co., 82 Kan. 123, 107 Pac. 641); it may be sold before maturity or division of the crop (Howell v. Push, 27 Kan. 702); and it ripens into full ownership with maturity of the crop. This interest the tenant is powerless to encumber or defeat, and he could not maintain an action to recover for its destruction (Sayers v. Railway Co., supra). The statute would be a mockery to landlords if, at any time after planting and before maturity, even the day before maturity, the tenant could deprive the landlord of his share of the crop; and as between landlord and tenant and persons claiming under the tenant, the landlord’s statutory ownership relates to incipience of the crop.” (p. 698.)
In Snodgrass v. Carlson et al., 117 Kan. 80, 230 Pac. 83, the subject was again examined, and it was held that the right or lien of the landlord attaches at the beginning of the tenancy, and in the case of crops, from the commencement of their growth, whether or not the rent is then due. It was said that there is language in Wyandt v. Merrill, supra, which supports the opposite view, and to the extent that it is opposed to the view stated it is disapproved. It appears that the case of Wyandt v. Merrill was expressly overruled.
In Bowland v. McDowell, 132 Kan. 820, 297 Pac. 691, a phase of the subject was involved, and the view taken in Snodgrass v. Carlson, supra, was cited and approved.
It appears that from the beginning of things the doctrine of Wyandt v. Merrill, supra, has not been considered, and that the life tenant has an interest in the crop after it has commenced to grow which he might sell or which the owner might sell or mortgage and that his contract would be protected. It was a share that would descend or pass to the real owner whoever he might be.
The life tenant’s share may be apportioned by the district court in accordance with the laws of the state and the growth of the crop. The crop had grown from September to December 28, and may be apportioned and paid to the life tenant or the executor of his estate. The will gave the land to the plaintiff and required him to make adjustment by the payment of money to other children. In any event the share goes to plaintiff and the apportionment may be made to him in accordance with the views expressed in Snodgrass v. Carlson, supra, and other cases mentioned and not according to the interpretation placed on Wyandt v. Merrill, supra.
The judgment is reversed and the cause remanded with directions to apportion the rental in accordance with the rule applicable in such cases. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action under R. S. 9-163 by two depositors against a director of a bank found to have been insolvent and in failing circumstances at the time the deposit was made. The jury found the director liable under the statute, and he appeals, specifying many errors.
This is the second trial of the case. In the first trial the judgment was reversed and a new trial ordered mainly because of the giving of certain instructions. The opinion is reported in 137 Kan. 186, 19 P. 2d 723. A rehearing was granted,- and in the opinion thereon, reported in 138 Kan. 319, 26 P. 2d 453, details as to instructions requested and refused and evidence admitted and excluded were exhaustively treated. On the second trial the rulings and reasons assigned in these two opinions were generally observed, and the case was so greatly narrowed in its scope and application to spe cific facts that the serious feature now appears to be that possibly a part of the duty of the jury as to a finding of fact, necessary to liability, may have been covered as a matter of law in the instructions.
The trial court rightly held the burden of proof was on the defendant, which he assumed. It was admitted in advance that the bank was actually insolvent on the 28th day of February, 1930, when the deposit was made for the plaintiffs, and that it closed its doors on account of insolvency on March 19, 1930, and the defense of the bank director was that he did not know of the fact that it was insolvent or in failing circumstances and that by his frequent examinations into its affairs it was not possible for him to know its insolvent condition.
The part of the statute under which this action was brought, R. S. 9-163, is as follows:
“It shall be unlawful for any president, director, manager, cashier, or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and it is hereby made the duty of every such officer, agent or manager of such banking institution to examine into the affairs of the same, and, if possible, know its condition. And upon failure of any such person to discharge such duty, he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section shall be individually responsible for such deposits so received, and all such debts so contracted.”
There was no evidence introduced except by the defendant, although liberal cross-examination was allowed. The motion of plaintiffs at the close of the evidence of defendant for an instructed verdict was overruled, but the case was submitted to the jury, which, in addition to its verdict for plaintiffs, answered a number of special questions submitted by the court.
The. whole trouble was brought about by a dishonest cashier who has since admitted his guilt and is now suffering the usual punishment therefor. He was brought back and testified in the case, frankly admitting just what he did and how .he did it, including the manipulations of the records, the falsifying of adding machine totals and forgeries.
There were over $50,000 of forged notes included in the assets of the bank, and the total of the actual deposits, as shown by the adding machine through the manipulation of it, was about $41,000 less than the correct total. The failure of the defendant, a director of the bank, to discover or detect either of these two impairing features appeared to be the main grounds for his not being informed as to the actual insolvent condition of the bank. The testimony of the cashier was that both these features of deception had been followed for a long time.
The evidence further shows that these adding-machine totals that were submitted to the directors were not shown to the bank examiners, who always made their own totals, but about $41,000 worth of depositors’ accounts were regularly removed by the cashier from the alphabetical list of depositors’ balances whenever the examiners came. The receiver, the defendant, and other bank directors testified to the condition in which they found the bank, its notes, records and accounts after it was closed and further investigation was made. They stated the particular difficulties in detecting that the notes had been forged and that the totals of deposits had been reduced by the manipulation of the adding machine.
Appellant complains especially of the giving of instructions 10 and 11, which are as follows:
“10. You are instructed that the directors may, and indeed should collaborate in examining the bank; but, of course, if a director does not attend the meetings of the board of directors and does not collaborate with them in examining the bank, then to avoid civil liability in a case'like this his independent examinations must be of such frequency, accuracy and thoroughness that he will ‘if possible’ know its condition. In making such examinations, if the defendant, Heinen, was relying upon his independent examinations, to meet the requirements of law, he should have carefully checked and added the depositors’ accounts and the notes, to ascertain the true status of the bank’s liabilities and likewise to have ascertained if the bank’s assets were sufficiently intact to meet those liabilities; in short, if possible, to know its condition. It is no defense for Mr. Heinen to say that he implicitly relied upon the supposed honesty of the cashier, Mr. Buist, and that therefore he did not meet the above requirements, nor make the required examinations and additions. Nor is it a defense for Mr. Heinen to claim that it was useless for him to make such examination because the manipulations of the cashier, Buist, were of such character, carried on and concealed with so skillful a hand that he, Heinen, not being an expert could not have discovered them.
“11. You' are further instructed that if the defendant relied upon the figures and additions made by the cashier, Buist, and such additions were incorrect, and such defendant did not add such figures or make any attempt to learn if such additions were correct, then and in that event the defendant failed in his statutory duty, and your verdict should be for the plaintiffs and against the defendant in the amount with interest as heretofore mentioned.”
The first sentence, or first third of instruction 10, is virtually copied from the opinion on the rehearing at the top of page 320. The latter part of the next sentence, or the middle third, of this instruction, is substantially the same language as given in the original opinion near the bottom of page 191 in speaking of what the statute must have contemplated; the earlier part of this middle third states only the difference between an examination of the affairs of the bank in company with the other directors and an examination by one director alone. The last third of this instruction, consisting of two sentences, is virtually copied from page 348 of the opinion in the case of Forbes v. Mohr, 69 Kan. 342, 76 Pac. 827, except that there is added to the statement that it is no defense that the director relied upon the honesty of the cashier and therefore did not make the required examination, the two words “and additions,” which are not in the Forbes case, supm. This apparently makes the verification of the addition a positive requirement of the statute.
As above quoted, the statute when enacted must have contemplated that depositors’ accounts should be carefully checked and added. This is quite different from making the failure to make such addition the basic feature of liability. Instruction 11 tells the jury as a matter of law that if the director did not add the figures in the list furnished by the cashier, and learn if such addition was correct, he failed in his statutory duty and the verdict should be for the plaintiffs. There was nothing under this instruction left for the jury to do, because it was admitted by the defendant on the witness stand that he had not made such additions. If such is the law of the case then under the admission of the defendant the motion of the plaintiffs for a peremptory instruction should have been sustained and the jury so instructed.
There surely are many ways of verifying the financial affairs of a bank, and if there are several, can it be said as a matter of law that because of the failure to use a certain particular one of them, liability exists? The court in the original opinion in this case, on page 191, said concerning a certain finding of the jury:
“. . . neither the trial court nor this court should say as a matter of law that the evidence touching the deceitful manipulation of the adding machine and consequent falsification of the amount of deposits was so subtle that it was not reasonably possible for defendant to discover that the discrepancy of $41,000 existed.”
Neither could the court say the contrary as a matter of law. These are matters for the determination of the jury. The failure of the defendant to add such figures, or make any attempt to learn if such additions were correct, was certainly competent evidence for the consideration of the jury in determining whether or not under the statute the defendant officer of the bank had performed his duty by examining into the affairs of the bank so that, if possible, he might know its- condition. It was a proper piece of evidence for the consideration of the jury, and with or without further evidence of examining into thé affairs of the-bank, or failure to do so, the jury might determine the liability of the defendant under the statute. We think both these instructions invaded the province of the jury and conclude a proposition that is not a matter of law. We might have some doubt 'as to 'the purpose and intention of the trial court but for an expression made-in overruling the motion for a new trial. We think the giving' of instructions 10 and 11, and particularly the latter, constituted error for which a new trial must be granted, and, as stated in the opinion in the former trial, the new trial should be de novo notwithstanding the answers to the special questions under rules prevailing in other lines of cases might eliminate some features of the case;
We have carefully examined all the other specifications of error, and while we find merit in some of the points urged and stressed, none of them appear to be necessary to be here set out or particularly discussed. The opinion in the rehearing of the first trial of this case was largely devoted to matters that might affect or help in the retrial of the case, and it would be difficult to amplify or enlarge upon the ideas there expressed, as a consideration of the remaining points in this case would necessarily be concerning similar topics and subject.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a building and loan association to recover from the makers of a promissory note given to the association, and to foreclose a real-estate mortgage securing the note. Judgment was rendered pursuant to the prayer of the petition, an order of sale was issued, the real estate was sold to the association for the full amount of the judgment, the sale was confirmed, and a certificate of sale was issued to the purchaser. After-wards, but in due time, defendants appealed from the judgment on the ground the judgment included interest on the indebtedness at too high a rate.
The note, which was payable in monthly installments, and the mortgage, were dated August 22, 1930. The answer alleged the association had been doing business under the statute relating to issuance of rural-credit shares and investment of funds obtained from that source. The association orally represented that the loan to defendant, for which the note and mortgage were given, was made from rural-credit funds. • The statute provided that rural-credit mortgage notes should draw a definite rate of interest, but the rate should not exceed by more than 1% per cent the average rate of interest or dividends paid on rural-credit shares. The note bore interest at the rate of 6% per cent per annum. In February, 1932, the association ceased to pay interest or dividends on rural-credit shares, and the answer alleged that no interest should be charged on the note after February, 1932, or at most, interest should not be charged at a rate greater than 1% per cent per annum. This was the sole defense, éxecution of note and mortgage and default being expressly admitted. The association replied by a general denial.
The case came on for trial in May, 1934. Defendants were represented by counsel. The record shows the association introduced its evidence and rested. The defendants introduced no evidence, and the judgment followed as a matter of law. Defendants filed no motion for a new trial, and the judgment became absolute.
The defendant, Albert M. Spencer, appeared in this court and made the statement of his case. He said he was not notified of the time the case would be tried. The association was not required to give notice of the time the case would be tried. Parties must themselves keep track of the progress of their lawsuits in court. Besides that, defendants were represented at the trial by their attorney, and no showing has ever been made to the district court that defendants were prevented from defending because of unavoidable casualty or misfortune.
Cases must be conducted in court according to the rules of civil procedure established by the legislature, or chaos would reign in the administration of justice. This case was disposed of by the district court in accordance with those rules, and the district court has done nothing for which it may be reversed.
The foregoing disposes of the case. In order, however, that defendants may understand they were not unjustly treated, a few words may be added.
Because of certain statutes relating to taxation, the rural-credit business of building and loan associations flourished for a time. Consequent on a change in the tax laws, the business declined. Defendants’ answer alleged that the plaintiff association ceased paying interest or dividends on rural-credit shares in February, 1932. It was admitted in this court that the rate of interest or dividend had theretofore been five per cent. Defendants’ default occurred nearly a year after February, 1932. There was then no rural-credit standard by which to compute the interest defendants should pay, and the rate specified in the contract controlled. If the last rural-credit rate were to be applied, defendants were not overcharged. Doubtless this was the view of the attorney who represented defendants at the trial.
In his statement to the court Mr. Spencer said the rate of interest did not occasion his default, and would have no bearing on his ability to redeem.
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment allowing recovery of taxes paid under protest.
For our purposes the facts may be stated as follows: Plaintiffs are residents of Texas, where in the spring of 1929 they owned and had large numbers of cattle which were duly assessed for taxation for the year 1929, the tax being ultimately paid. About May 1, 1929, they shipped some of the cattle to Riley county to be placed in pastures for the grazing season. The proper officers of Riley county assessed the cattle for taxation for the year 1929, under R. S. 79-314 to 79-321, both inclusive, and thereafter a tax warrant issued and was to be executed; the plaintiffs, learning of this, paid the tax under protest, concerning the sufficiency of which there is no controversy. On December 5,1929, plaintiffs sought relief before the state tax commission, which was denied, and on August 6, 1930, they filed a claim for repayment with the board of county commissioners of Riley county, which was not allowed. Thereafter they brought the present action, in which recovery was allowed. The defendant’s motion for a new trial was denied and it appeals.
Considerable space in the briefs is devoted to the question whether the cattle were in course of transport in interstate commerce, but we shall not discuss that, for whether the plaintiffs were entitled to recover is determinable upon the question of the constitutionality of the taxing statutes as applied to the undisputed facts. Appellant urges that the case is determined by our decision in Mosby v. Greenwood County, 98 Kan. 594, 158 Pac. 657, while appellee contends that case was not correctly decided and should be overruled.
In 1876 a comprehensive tax law was enacted, and under section 7 of chapter 34 of the Laws of 1876, which covered other matters as well, it was provided that—
“Animals and farming implements shall be listed and taxed where permanently kept: Provided, That if the owner of such animals lives outside the limits of a city, such property shall be taxed in the township where the owner resides; but in case such animals and farming implements are temporarily outside the limits of this state, or in any unorganized county of this state, then said animals and implements shall be listed and taxed in the county, township and school district where the owner resided on the first day of March.”
This section was amended by the Laws of 1877, but the above portion was not changed. It was again amended by chapter 34 of the Laws of 1881 (G. S. 1889, § 6852), where the above language, with slight change in punctuation, was reenacted, and the following sentence was added:
“When any stock shall be driven into any county of this state from any unorganized county or from beyond the boundaries of this state, for the purpose of grazing therein, at any time prior to the first day of December of any year, such stock shall be liable to be assessed for all taxes leviable in that county for that year, the same as if the owner thereof resided and held said stock in said county on the first day of March of that year.”
From the opinion in Graham v. Comm’rs of Chautauqua Co., 31 Kan. 473, 2 Pac. 549 (decided in 1884), it appears that Graham, a resident of Montgomery county,, in May, 1880, bought some steers then in the Indian territory. In November, 1880, some of the steers were brought into this state and then taken back to the territory where they remained until in March and April, 1881, when they were taken into Belleville township in Chautauqua county where they were assessed for taxation. Later they were moved to another township in the same county and in October, 1881, they were again driven into the Indian territory. The tax on the cattle had been paid in the Indian territory. Graham' brought an action to enjoin the collection of the tax, contending that all property is taxable as of March 1 and there being no general provision for taxing property brought into the state after March 1, the result was an attempt to tax only certain kinds of property, and therefore a violation of the constitutional requirement of uniformity. Reference is made to. the statute of 1881, and the opinion states:
“We conclude, therefore, that the statute, so far as it attempts to provide for the listing of cattle brought into the state after the first of March for the purpose of grazing therein, is a departure from the constitutional rule of uniformity in matters of taxation, and cannot be upheld.” (p. 478.)
In 1899 an act (Laws 1899, ch. 248) was passed providing for assessment and taxation in certain cases, the third section providing for the assessment of property brought into the county after March 1 and before September 1.' This section was amended by chapter 364 of the Laws of 1901, to include the italicized words hereafter shown, and was thereafter unchanged until in the revision of 1923 a change in reference to a certain statute was made. It appeared as R. S. 79-316 and was in force when the cattle in the instant case were assessed. It reads in part:
“When any person, association or corporation shall settle or organize in any county in this state, and bring personal property therein after the 1st day of March and prior to the 1st day of September in any year, it shall be the duty of the assessors to list and return such property for taxation that year, unless the owner thereof shall show to the assessors, under oath, . . . that the same property has been listed for taxation for that year in some other county of this state or in some other state or territory oj the United States,” etc. (Italics ours.)
In Hull v. Johnston, 64 Kan. 170, 67 Pac. 548, Hull, a resident of Greenwood county, made his tax return for 1899. On May 1 he bought cattle in Texas and shipped them into Greenwood county where an attempt was made to tax them under chapter 248 of the Laws of 1899. He brought suit to enjoin collection and ultimately prevailed, it being held:
“The provisions of chapter 248, Laws of 1899 (Gen. Stat. 1901, § § 7519-7526), the title to which chapter is ‘An act providing for the assessment and taxation of property in certain cases,’ do not apply to property brought into a county by a resident thereof after the 1st of March, where such resident had fully listed all of his property for taxation under the general tax laws of the state.” (Syl.)
In Lingenfelter v. Ferguson, 71 Kan. 154, 80 Pac. 48, it appeared that Ferguson, a resident of Sumner county, listed his property as of March 1, 1902. On April 1 he brought into the county 852 head of cattle which he had purchased in Oklahoma and on which the tax had been paid for 1902. The cattle were assessed in Kansas, a tax warrant issued and suit to enjoin enforcement was instituted. In disposing of the appeal it was held:
“Where a resident of Kansas brings into this state, between March and September, cattle that he has purchased elsewhere with money which he has already listed for taxation for that year in the city of his residence, such cattle are not subject to taxation under the provisions of the act (Gen. Stat. 1901, sections 7519-7521) providing in certain cases for the assessment and taxation of personal property brought into the state after the 1st of March.” (Syl.)
In Mosby v. Greenwood County, 98 Kan. 594, 158 Pac. 657, George Mosby, a resident of Missouri, purchased cattló in Oklahoma, where they were assessed for taxation as of March 1, 1914, the tax being subsequently paid. On May 1, 1914, he brought the cattle into Greenwood county, where they were placed on the tax roll. Mosby had previously returned his personal property in the county for taxation. He did not discover until January, 1915, that his cattle had been taxed and the sheriff was about to sell them on a tax warrant. He paid the taxes under protest and brought suit to recover. The court discussed the purposes of the act and referred to Hull v. Johnston and Lingenfelter v. Ferguson, supra, but made no reference to the Graham case above noted. It was held that:
“The provisions of chapter 248 of the Laws of 1899, as amended by chapter 364 of the Laws of 1901, which authorizes the assessment of property brought into the state after March 1 and prior to September 1 of any year, and which contains an exception that a resident owner will not be required to pay taxes on such property if he shall show to the assessor that the property has been listed for taxation for that year in some other county of the state or in some other state or territory, is not an unjust discrimination against a nonresident, nor does it deny to him the equal protection of the laws.
“It is competent for the state to impose taxes upon all property brought within its jurisdiction, and this power is not lost because such property may have been subjected to taxation for that year in the state from which it was brought.”
The principal question before us is whether the last-mentioned case was properly decided, whether it should be adhered to or overruled.
• The force and effect of the decisions above noted is that by the Graham case it was held that farm machinery and animals cannot be singled out and subjected to taxation, otherwise the rule as to uniformity is violated; by the Hull and Lingenfelter cases that if the owner were a resident of Kansas on March 1, he could not be assessed on property brought into the state thereafter and. prior to September 1, if the tax for that year had been paid in the state of origin, but under the Mosby case, if he were a nonresident of the state, the property could again be taxed even though tax for the current year had been paid in the state of origin. The conclusion to be reached from the Hull, Lingenfelter and Mosby cases is that whether tax is assessable or not under the same circumstances depends on the residence or nonresidence of the owner, and that to so tax a nonresident is not in violation of his constitutional rights.
At about the same time the present plaintiffs brought cattle into Riley county, they also brought into Wabaunsee county about 4,000 head of cattle which were likewise placed on the tax roll, a tax warrant issued, the tax was paid under protest, and suit was brought in the district court of the United States for the district of Kansas to recover. The trial judge sustained a demurrer to the petition and an appeal was taken to the circuit court of appeals, where our statutes and decisions were reviewed. That court was bound to accept the state statute as construed by this court in the Mosby case, but held that the statute subjecting only nonresidents’ property brought into the state during certain periods of the year to taxation violated plaintiffs’ rights under article 4, section 2, clause 1 and under amendment 14, clause 1 of the United States constitution. (Bivins v. Board of Comm’rs of Wabaunsee County, [Kan.] 66 F. 2d 351.) In the opinion that court quotes from In re Jarvis, 66 Kan. 392, 71 Pac. 576, as follows:
“The statute [Laws 1901, ch. 271] therefore attempts to impose a tax upon nonresidents of the state, from which certain residents of the state are exempted by the fact of such residence. This is an obvious discrimination in favor of the resident and against the nonresident, and is repugnant to section 2 of article 4 of the federal constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” (p. 332.)
And see In re Irish, 122 Kan. 33, 250 Pac. 1056, and Hair v. City of Humboldt, 133 Kan. 67, 299 Pac. 268, where discrimination against nonresidents is treated.
Upon consideration of the facts of the instant case, we are of opinion that to hold, as was done in the Mosby case, that cattle owned by a nonresident of Kansas, and on which the tax for the current year was paid in the state of origin, and brought into this state after March 1 and before September 1 of the current year, could be taxed, whereas under our decisions had they been owned by a resident of Kansas they would not have been subject to tax, would be to discriminate against such nonresident owner in violation of his rights under the United States constitution, article 4, section 2, clause 1, and amendment 14, clause 1, thereto. Mosby v. Greenwood County, 98 Kan. 594, 158 Pac. 657, is overruled.
It may be remarked that by section 1 of chapter 14 of the Laws of 1930, the above statute, R. S. 79-316, was amended, so that under its terms there is no longer any discrimination.
The judgment of the lower court is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Zena Higgins for recovery of damages from the Southern Kansas Stage Lines Company because of its negligence in failing to provide her, a prospective bus passenger, with a comfortable .place in which to await the arrival of the bus at the North American Hotel, Ottawa, where defendant and the Southern Kansas Greyhound Company jointly used the hotel lobby as a station room. Because of this alleged negligence plaintiff was compelled to leave the waiting station in the hotel and go out in the cold and was denied the privilege of a comfortable place to await the coming of the bus. It was the seventh of January and the night was cold, snowy and blustery. It appears that plaintiff and her husband purchased round-trip tickets from defendant company in Kansas City 'and went to Ottawa, where they visited over Sunday. That evening they went to defendant’s station in Ottawa to return to Kansas City. On the front of the hotel a sign said “Southern Kansas Stage Lines Bus Depot.” They entered the lobby of the hotel, walked over to a desk where there were pictures of buses and maps and asked the man behind the desk if he was the manager' or the depot agent, and when informed that he was they presented their return tickets and he said they were all right. They inquired when the bus to Kansas City would arrive and were informed it was due about”the hour of 9:02, but that it would probably, be a little late. .At the time it- was about 7:30 p. m. After talking to the man in charge of the ticket-desk they started to take seats in the hotel lobby, but were- immediately informed by the same man that they could not sit there.- He informed them there was no place in the lobby for colored people. When plaintiff asked what she was to do, as it was snowing and blowing and cold outside, his response was that it' could not be helped, that they could not stay in the lobby. Plaintiff and her husband then proceeded to leave the hotel lobby, but- as they passed through a small vestibule they stopped before a little gas heater to warm themselves, and then continued outside, where they stood in front of the hotel in the cold or walked up and down the block attempting to keep warm until the bus arrived, about an hour and a half afterwards.-
When the bus finally arrived they presented their tickets to the driver and informed him of what had occurred in the bus waiting room. The driver responded that it had happened down there before, and was not an uncommon thing. The bus was a Southern Kansas Greyhound Line bus, with which the defendant company interchanged passengers and divided receipts.
On the way to Kansas City plaintiff’s throat became sore and she commenced aching and- had chills. When she arrived home she gargled and used some liniment and the next day called a doctor. Two days later plaintiff was running a high fever and had developed bronchial pneumonia.. The doctor treated her for over three weeks, visiting her some nine times. Thereafter plaintiff developed pleurisy which continued for several weeks. Plaintiff sued the Southern Kan sas Stage Lines Company and recovered a judgment in the amount of $500.
The jury made special findings of fact as follows:
“1. What company did plaintiff ride with from Ottawa" to Kansas City, Kansas? A. Southern Kansas Greyhound, to Fourteenth and Main, Kansas City, Mo.
“2. Did the Southern Kansas Stage Lines Company have any bus leaving Ottawa for Kansas City, Kansas, after 12:50 p.m. January 7, 1934? A. No. ..
. “3. At what time did plaintiff arrive at the hotel in Ottawa before taking the bus? A. Seven-thirty to eight o’clock.
“4. If you find for the plaintiff, state what acts on the part of the defendant, The Southern Kansas Stage Lines Company, caused said injuries, if any. A. Ejected from building by representative.
“5. If you find for the plaintiff, state the items of damage and the amount of each. A. Doctor bill, $27; medicine and sickness, $473.
“6. Did plaintiff or her husband purchase a round-trip ticket on January 6, 1934, good for passage to'and from Ottawa, Kan., on defendant’s bus? A. Husband. • '
. “7. If you answer question No. 6 in the affirmative, state whether plaintiff or her husband presented said tickets to defendant company for passage on their bus at Ottawa, Kan., on the day in question. A. Yes; husband.
- “8. If you answer question No. 7 in the affirmative, state if defendant’s agent in charge of said bus station at Ottawa, Kan., advised plaintiff or plaintiff’s husband that defendant’s next bus would arrive at Ottawa at 9:02 p.m. of said day. A. Yes; husband.
“9. Was plaintiff requested by said defendant company’s agent to leave the bus station on the night in question? A. Yes.”
Defendant filed motions for a new trial and for judgment on the special findings of the jury; The motions were overruled and judgment on the verdict was allowed.
Appellant argues five assignments of error. The second, fourth and fifth assignments are somewhat related and will be considered together. They concern the refusal of defendant’s request for an instructed verdict, refusal to instruct that defendant could not be held for the negligence of agents or employees of the Greyhound-company, and in overruling defendant’s motion for judgment on the special findings. These complaints are all founded on the evi-" dence and findings, to the effect plaintiff rode the bus of the Gfeyhound company back to Kansas City and not the bus of appellant; that there was no other bus out of Ottawa-to Kansas City that night; and that appellant had no permit to sell its own transportation between Ottawa and Kansas City, and did not share in the revenue from the trip; that plaintiff came to the station to catch a Grey hound bus and was a prospective passenger of that company and that in respect to the plaintiff, the employees at the station were the employees of the Greyhound company and not appellant, and were not acting within the scope of an employment with defendant-company in ordering plaintiff from the lobby.
There are several answers to these arguments. In the first place, the first and second findings of the jury, that plaintiff rode the Greyhound bus to Kansas City and that there was no bus of defendant available that night, do not necessarily support defendant’s contention. These findings must be construed with later ones wherein the jury found it was defendant’s representative who ejected plaintiff from the station; that the return tickets were presented to defendant company for passage on its bus and that it was defendant’s agent in charge of the bus station who advised plaintiff that defendant’s next bus would arrive at Ottawa at 9:02. Plaintiff presented herself at the place designated as defendant’s bus depot at Ottawa. Her ticket, issued by defendant company, was recognized by the man who said he was in charge- of the ticket office and who advised her as to the time of defendant’s next bus. Plaintiff was entitled to believe the agent was speaking of the defendant’s bus and that she was entitled to comfortable and adequate accommodations until the bus arrived. Furthermore, defendant is concluded by the pleadings with respect to the question of the person in charge of the station being defendant’s agent. Plaintiff alleged in her petition that such person was the agent of defendant company and this allegation was not denied by defendant under oath. Defendant is bound by his statements and responsible for his acts. In 4 R. C. L. 1132, 1133, it is said:
“A ticket seller in a union depot, -whose business it is to sell tickets over various lines of railway whose trains enter and depart therefrom, is such an agent of any company furnishing tickets to be sold there which are accepted by the conductors of its trains as its tickets, that the company is bound by any of the declarations of such ticket seller as to the running of its trains. . . . It is, also, usually held to be within the implied power of a ticket agent to bind the company by his representations concerning the route to be taken by a passenger; as to what trains the ticket will be good for passage upon, at least, in the absence of knowledge on the part of the passenger that such information was incorrect, . . .”
Defendant cites and relies upon A. T. & S. F. Rld. Co. v. Cochran, 43 Kan. 225, 23 Pac. 151. In that case a party took passage on a train of the Atchison road for Holliday, a junction of the Atchison and Southern Kansas. There he purchased a ticket over the Southern Kansas. He. was compelled to wait. When the Southern Kansas train pulled in on the second track he started to cross to it and was struck by an Atchison train. The following quotation from the opinion sufficiently indicates the lack of basis for the claim of similarity :
“It is clearly apparent from the instructions of the court and the findings of the jury, that the recovery for the plaintiff below against the railroad company was upon the theory that Mr. Gibson, at the time of his injury, was entitled to the rights and privileges of a passenger of the Atchison company. This upon the claim that the Atchison company controlled, directed and managed the Southern Kansas Railway. The testimony in the record will not sustain a verdict upon this ground. ... As the rights and powers of the Atchison road in the- Southern Kansas were those of a stockholder only, the instruction of the court that the jury might find from the testimony that the Southern Kansas Railway Company, for all practical purposes, was managed, controlled and operated by the Atchison company, was misleading. The finding of a verdict upon this and similar instructions cannot be sustained.
“The fact that Mr. Gibson purchased a ticket to ride over the Southern Kansas road at the station of the Atchison road at Holliday did not make him a passenger of the Atchison road, or make the Atchison road responsible for the negligence of the Southern Kansas road. The jury found that the person in charge of the ticket office at the station of Holliday was agent both for the Atchison Company and the Southern Kansas Company; but even if the ticket agent at Holliday acted for the Atchison road, and the Atchison road sold the ticket for the Southern Kansas road, this would not make the Atchison road liable for the negligence of the Southern Kansas. The ticket purchased by Mr. Gibson shows that the contract of carriage was made on behalf of the Southern Kansas Railway Company.” (pp. 233, 236.)
The case is clearly not applicable or controlling in the present case. Here the action was brought against the Southern Kansas Stage Lines Company, which issued the ticket carried by the plaintiff. The agent of that company was the one who examined and approved the ticket. He was in charge of that station marked oh the building as “Southern Kansas Stage Lines Bus Depot.”- The plaintiff and her husband were recognized as prospective passengers entitled to the comforts and accommodations of passengers for the coming bus, and were afterward turned out, holding that they could not remain in the depot and were driven out in the cold on a 'January night.
Defendant argues that the station agent was acting outside the scope of his employment. But defendant’s own witness testified that he was the acting bus agent for the Southern Kansas Stage Lines; that he did not permit persons using the hotel lobby to have the run of the place and he would stop them from going places they were not supposed to go, and that such was the general order of all officials. It is held in many jurisdictions that the doctrine of scope of employment of the person in charge of the station is inapt and erroneous to apply to a case similar to this. (4 R. C. L. 1168.)
In 10 C. J. 889 it is said:
“In accordance with the foregoing rule, it is generally held that where any servant or agent of the carrier while engaged in carrying out the carrier’s duty of transportation assaults a passenger, or otherwise infringes the right of protection to which he is entitled, the carrier is liable, irrespective of whether the servant or the agent in the thing done was acting for the carrier or for his own purposes. ...”
See, also, Middleton v. Railroad Co., 112 Kan. 793, 212 Pac. 909; A. T. & S. F. Rld. Co. v. Henry, 55 Kan. 715, 41 Pac. 952.
Defendant makes no contention that it was not bound to provide comfortable accommodations for its prospective passengers. Under the provisions of R. S. 1933 Supp. 66-1,110, and R. S. 66-242, it would seem that defendant was bound to provide reasonable station facilities.
The claim that the case was prematurely tried and that defendant was prejudiced thereby is unsupported by the facts. The summons was served eighty-four days before the time of trial, and trial had fourteen days after issues were joined. Nothing appears to show premature trial. The defendant had twenty days in which to file an answer, but it answered within ten days with a general denial. It was not tried for fourteen days after it was at issue, and was properly docketed for trial.
Defendant complains of the court’s refusal of a requested instruction on the degree of care owed a passenger in or about the depot. There was no issue as to degree of care required and the court committed no error. The instruction given was adequate.
The evidence has been considered, and is held sufficient, if believed by the jury, as it evidently was, to sustain the findings and judgment rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This action was filed in the district court to enjoin the collection of a judgment rendered in a justice of the peace court. The parties defendant were the justice of the peace and the plaintiff in the action in the justice court in whose favor the judgment had been rendered. After a hearing on the merits the trial court enjoined the judgment in part only and directed further proceedings in the justice of the peace court. The defendants have appealed. Appellants here contend the trial court erred in setting aside any part of the judgment of the justice court, while appellee complains that the court did not set all of it aside.
The facts shown by the record may be stated as follows: On August 24,1932, Everett Webb filed an action in the justice court of J. A. Stanton at Fort Scott against the Southern Kansas Stage Lines Company upon an account for wages due for services rendered defendant and an item of merchandise, amounting in all to $54.46. He alleged that defendant was not operating a steam surface railway, nor engaged in the production of farm and dairy products, as defined in R. S. 44-301, but is a corporation doing business in the state operating buses and trucks for hire; that he was an employee of defendant and discharged on June 29, 1932; that, as provided by R. S. 44-303, his wages were due and payable the day he was discharged; that he had made written demand on defendant by letter of July 1, which was received by defendant July 2, 1932; that defendant had neglected and refused to pay plaintiff within twenty-four hours, as provided by the statute last referred to, and that under it plaintiff is entitled to his daily salary of $3.71 for each day since July 2, 1932, to the time when he is paid the wages mentioned in his account. The prayer was for $54.46 and the additional sum of $3.71 per day since July 2,1932, until payment should be made.
In that action the Southern Kansas Stage Lines Company filed an answer which contained a general denial and a specific denial that it was indebted to plaintiff under any statutory penalty, but admitted owing plaintiff wages in the sum of $4.46, which it tendered into court.
This action came on for trial in justice court on September 12, 1932, at which time it appears most of the day was spent in a wrangling trial, the defendant contending certain collections made by plaintiff for it had not been accounted for as the reason for the delayed payment. At some time during the day defendant called plaintiffs counsel’s attention to the fact that R. S. 44-301 and 44-303 had been specifically repealed by chapter 215 of the Laws of 1931. Plaintiff then asked the court for permission to amend his bill of particulars, and the request was granted; but plaintiff’s counsel at that time had in mind no definite amendment he desired or expected to make. The trial was completed on that day without any amended bill of particulars being filed, or any statement of what it would contain if plaintiff should file one later. The justice of the peace took the cause under advisement and announced that he would render a decision within three days, as provided by statute (R. S. 61-903), and counsel for defendant returned to his home in Wichita. On September 14 plaintiff filed an amended bill of particulars in which the original one was made a part, and he alleged defendant employed him to perform labor, for which labor performed defendant was indebted to him in the sum of $52.51, and had failed and neglected to pay plaintiff within ten days from the termination of his services; that defendant is a corporation employing labor in this state, as defined in R. S. 44-307, and in violation of that section has failed, neglected and refused to pay plaintiff his wages within ten days of the date of his discharge, June 29, 1932; that under R. S.- 44-308 he was entitled to receive wages from the date of his discharge at the same rate, $3.71 per day, until he was paid; that he had begun an action for his wages on August 24, 1932, which was within sixty days after his discharge, and that there was due and owing plaintiff from defendant the sum of $52.51 and an additional sum of $3.71 from June 29 and each day .since then until the defendant shall make full payment. The prayer was for $300 and costs, but there was no specific waiver of any sum in excess of that due plaintiff by his computation. A copy of this amended bill of particulars was sent to defendant’s attorney and received by him on September 15. He then called the justice of the peace by telephone and learned that judgment was rendered on that day in favor of plaintiff for $300. Thereafter defendant attempted to appeal to the district court, but for some reason his appeal was dismissed and that procedure abandoned.
Thereafter the defendant in the action before the justice of the peace brought this action. The trial court held plaintiff had not had its day in court on a claim for penalties under the amended bill of particulars filed in justice court, and held to be void all the judgment rendered in justice court in excess of $52.51 and costs, and enjoined the collection of the void portion of the judgment, but decreed that the plaintiff in the justice court should be allowed to amend his original bill of particulars, and the defendant in that court should have time to plead to it, and that the question should be tried out in the justice court whether or not the plaintiff in that court was entitled to recover from the defendant there any penalties, as fixed by law, on account of failure to pay wages due the plaintiff.
We will take up -the legal questions of this somewhat scrambled lawsuit, and first of those in the justice court. Plaintiff’s claim for penalties in the original bill of particulars was predicated on the statute which not only had been repealed by the legislature (Laws 1931, ch. 215), but which previously had been held to be invalid. (Livingston v. Oil Co., 113 Kan. 702, 216 Pac. 296.) Hence, he made no claim for penalties which it was possible for the court to allow, and was the same in legal effect as though no claim for penalties had been attempted. One suing for wages need not claim penalties even though the circumstances would justify him in doing so. Indeed, he may settle without suit and waive them. (Howell v. Machine Co., 86 Kan. 537, 121 Pac. 366.) The result is, at the time of the trial the justice had no issue respecting penalties before him unless it was to deny recovery of penalties claimed under a supposed statute which did not exist. “The evidence on the trial shall be confined to the items set forth in said bill.” (R. S. 61-601.) There was no item for penalties in the bill. The trial was completed September 12 on the bill of particulars then before the court, and the case was taken under advisement. Two days later plaintiff filed an amended bill of particulars claiming penalties under other statutes. Whether plaintiff would have been entitled to such penalties we need not now consider, for there never has been a trial on that issue. No one seriously contends there had been such a trial. By the time the defendant learned the amended bill of particulars had been filed,, judgment had been rendered. The rendering of judgment on this amended bill of particulars, without notice to the defendant of the additional claim made therein, was unauthorized and void, not only under our statute, but under fundamental rules of 'due process of law. There is an additional reason why the justice could not entertain the amended bill of particulars, or render judgment thereon, in that it set forth a claim of a sum due in excess of the jurisdiction of the court. The $52.51 claimed as wages due, plus $3.71 for each day after June 29 to Sep tember 14, the day the amended petition was filed, presents a claim of more than $300. (R. S. 61-102.) It is true the prayer of plaintiff’s amended bill of particulars was for but $300, but there was no waiver of the excess claimed to be due, and issues are determined by the allegations of the bill of particulars rather than by the prayer. (Webster v. Broeker, 97 Kan. 219, 155 Pac. 15.) The result is, the justice of the peace had no jurisdiction at all of the case presented by the amended bill of particulars. (Ball v. Biggam, 43 Kan. 327, 23 Pac. 565.) At the time the justice rendered his decision he had before him the claim of the plaintiff on his account for $54.46- and had it within his power to render judgment for that amount and for costs. That is all he had before him.
Turning now to the matters in district court. That court was justified in holding to be void the judgment rendered by the justice court upon the amended bill of particulars for penalties and in limiting that judgment to $52.51 (the item originally claimed for merchandise appears to have been lost somewhere) and costs, for it is the rule that a judgment of a court entirely outside of issues before it is unauthorized and void, and particularly should that be held to be true when the adverse party had no notice or opportunity to be heard. (Gille v. Emmons, 58 Kan. 118, 48 Pac. 569; New v. Smith, 86 Kan. 1, 8, 119 Pac. 380; Insurance Co. v. Carra, 101 Kan. 352, 354, 166 Pac. 233; Skaer v. Capsey, 127 Kan. 383, 385, 273 Pac. 464.)
The remainder of the judgment of the district court directing new pleadings to be filed in the justice court and a hearing on the matter of penalties appear equally to be outside the issues before the district court. That court was called upon to determine the validity of the judgment of the justice court — nothing more.
The result is, the judgment of the district court appealed from is affirmed in so far as it held the judgment of the justice court to be void in excess of $52.51 and costs, and is reversed in so far as it undertook to direct further proceedings in the justice court. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an order and judgment of the district court sustaining objections to the final account of an executrix. It involves a question of the effect to be given to an agreement entered into by the children of the testatrix and principal beneficiaries under the will for equal division of the estate; the effect of a specific bequest of bonds which were disposed of by testatrix before her death; and the jurisdiction of the district court on appeal from a ruling on a final account.
The testatrix, Alice C. Noble, died February 19, 1928. Two sons, J ames S. Noble and Floyd W. Noble, and two daughters, Hulbertina A. Myers and Bessie Y. Birkett, survived her as heirs at' law.
The will and codicil of Mrs. Noble contained bequests of $1,000, each to Hulbertina and James; and bequests of $500 each to two grandsons, children of Bessie. The residue was given to the four children share and share alike. Item 3 of the will provided r
“I am now the owner of United States bonds in the sum of $1,000. Should I still be possessed of these bonds at the time of my decease I hereby direct that the same be divided and distributed as follows, to wit: One-fourth, or $250, to my son, James S. Noble; three-eighths, or $375, to my daughter, Hulbertina A. Myers, and three-eighths, or $375, to my grandsons, Edward Birkett and Noble Birkett, in equal shares ...”
Prior to the opening and reading of the will the four children entered into an agreement for distribution of the estate. This agreement was subsequently put into writing and filed contemporaneously with the will. The agreement is as follows:
“It is hereby agreed on Feb. 22, 1928, by and between J. S. Noble, Floyd W. Noble, Hulbertina A. Myers and Bessie V. Birkett, the four legal heirs of Alice C. Noble, deceased, that they all share equally in the estate of the above deceased. It is also agreed by the above-named J. S. Noble, Floyd W. Noble, Hulbertina A. Myers and Bessie Birkett that Hulbertina A. Myers act as administratrix with the will annexed and shall serve without bond.
(Signed) J. S. Noble,
F. W. Noble,
Hulbertina A. Myers,
Bessie V. Birkett.”
The order admitting the will to probate was filed March 20, 1928, and letters testamentary appointing Hulbertina executrix of the estate were granted and filed March 17,1928. A partial distribution of $1,400 each to the four children was made August 2. The executrix filed an annual account on March 23, 1929, and no further accounting was made until the filing of the final account on March 24, 1931. The final account was made pursuant to citation issued upon application of one of the children, Floyd W. Noble, which application was filed February 26, 1931. The final account contained the following statement with respect to the special bequest contained in item 3 :
“The said executor further represents that the U. S. bonds mentioned in this item of said will became due before the death of the said Alice C. Noble and were by her collected and the proceeds of the same invested in the Beatrice Building and Loan Association stock, mentioned in inventory, in the sum of $1,000, and of which she was the owner at the time of her death; that on January 1, 1931, this executor collected the ám'ount due on said building and loan stock, and the same has not been distributed to the legatees named in said item III of said will. . -
“This executor therefore prays the court for an order authorizing her to make distribution of the proceeds of said building and loan stock; to the legatees darned in said will, or so much thereof'as may remain after paying all debts and' expenses of administration of said éstate.” -
Subsequently the executrix 'petitioned the "court for • final discharge, and on May 9, 1931, the probate court entered its order approving the final account of the executrix and discharging her from her trust.
Objections to the final account were .entered by Floyd. W. Noble. Specific objections were made to certain payments to the executrix herself and .to James S. Noble and to-the payment of $500 to each of the two grandsons. The objections recited the making of the family settlement and the partial distribution which' had been made pursuant thereto; that thereafter no accounting was made until in March, 1931, and that: “Not until that time did this objecting heir learn that said executor had been paying out funds contrary to the agreements above set forth”; that both according to the terms of the above agreements and the provisions of the will the legacies to be paid out of the United States government bonds have failed, and the request of the executor to pay them out of other moneys should be denied. The objections concluded with a prayer that:
“The final account of Hulbertina A. Myers, executor, be not allowed and that the payments above objected to be required returned into court and distribution made as provided in the above agreements wherein this said Floyd W. Noble is to receive an undivided one-fourth of the estate after payment of expenses.”
These objections were overruled, and Floyd W. Noble appealed to the district court. Subsequently he died and the action was revived in the name of Mabel A. Noble, the appellee herein. The district court, on December 2, 1932, entered judgment affirming the order of the probate court. Later, and on October' 2, 1933, a new trial was granted and the hearing continued to the January term, 1934.
On April 5,1934, judgment was entered sustaining the objection to the final account. The judgment reads:
“Now, therefore, it is considered, ordered and adjudged by the court that appellant’s objections to the final account of Hulbertina A. Myers, executrix of the estate of Alice C. Noble, be and the same are hereby sustained and that the final account of said executrix is not approved; it is further ordered by the court that the terms of the family settlement, to wit: one-fourth of the assets of said estate to each of the four children of Alice C. Noble, deceased, being James S. Noble, Floyd W. Noble, Hulbertina A. Myers and Bessie V. Birkett, is sustained, but it is ordered that the portion given to the two minors in the will of Alice C. Noble, to wit: Edward Birkett and Noble Birkett, in the amount of 8500 each, shall go to them independently of their mother’s share, which said final account shows has already been paid to them; it is further ordered that the specific bequest in said will of the United States government bonds fails and is of no effect; it is further ordered that Hulbertina A. Myers, executrix, make distribution according to the foregoing order, which entitles the appellant herein to one-fourth of all the net assets of said estate; that said executrix shall pay the payment to the appellant and file a corrected final account following the terms of this judgment, and upon filing receipts from all of the heirs provided herein and any other receipts needed to complete said final account that the said Hulbertina A. Myers, executrix, and her bondsmen shall be discharged (the same to be done within 40 days from this date), . . .”
What is the effect of the agreement? It has been definitely decided that beneficiaries under a will have a right to agree among themselves upon a distribution of the estate contrary to the disposition made under the will. (68 C. J. 909-915; 69 C. J. 1276, note 53; Rogers v. Benz, 136 Minn. 83; Foote v. Foote, 61 Mich. 181; Fore v. McFadden, [Tex. Civ. App.] 276 S. W. 327.) But such agreements will not be given effect to defeat a trust or specific restrictions placed upon the property in the will. (69 C. J. 1275, sec. 2674.) This court has passed upon questions somewhat analogous. In Riffe v. Walton, 105 Kan. 227, 182 Pac. 640, it was said:
“It is competent for the widow and the heirs of an intestate to enter into an agreement for the distribution of an estate upon a plan different from that prescribed by the statute of descents and distributions.” (Syl. If 2.)
In Schnack v. City of Larned, 106 Kan. 177, 186 Pac. 1012, a contest of a will was threatened and it was held that the city, a beneficiary, might "lawfully compromise its claim to the residuary estate.”
Concerning sufficiency of consideration for such agreements, it has been said:
“That contracts between beneficiaries for a division of the property will be supported in equity without inquiry into the adequacy of the consideration on which they are founded. A valid consideration has been held to exist in the agreement of all beneficiaries binding their respective interests, a surrender of rights under the will, the relinquishment of other legal rights, or the avoidance of litigation and the effecting of a family compromise, and the consideration of love and affection, and the desire that family harmony should not be destroyed by an unequal distribution provided by the will, has been held sufficient to support an agreement for an equal distribution in disregard of the terms of the will.” (69 C. J. 1277.)
In West v. West, 135 Kan. 223, 9 P. 2d 981, it was said:
“The settlement made between the children agreed upon with the plaintiff was itself a consideration. . . .” (p. 229.)
In Snuffer v. Westbrook, 134 Kan. 793, 8 P. 2d 950, the court said:
“There was also the additional consideration of settlement of a family controversy which has always been recognized as a sufficient consideration for a contract or a financial obligation.” (p. 795. See, also, Babst v. Babst, 130 Kan. 826, 288 Pac. 593.)
In Bottom v. Harris, 108 Kan. 7, 193 Pac. 1058, it was held:
“A note given in settlement of a controversy arising between brothers and sisters over the will of their father, all of whom are beneficiaries thereunder, but one of whom is threatening to contest the will, is upon sufficient consideration.” (Syl. 112.)
In the instant case we are of the view there was sufficient consideration, notwithstanding the fact the agreement was made before the will was read. It is reasonable to assume that the children anticipated some inequality might result from the will, and to prevent strife and sustain the family harmony and good will, the agreement was made.
A more serious question, and the vital one in this lawsuit, involves the jurisdiction of the probate court — the district court on appeal— to enforce this agreement, arising as it does on objections to the final account of the executrix. In Roberts v. Benz, supra, the Minnesota court held the probate court cannot distribute property according to the contract of the parties. But in view of the situation here, and considering the fact the executrix was a party to the agreement; that the agreement, which was in effect an assignment of the interests of the beneficiaries, was filed in the probate court contemporaneously with the will, thus indicating a view on the part of the beneficiaries that probate of the will and administration were necessary, probably because all beneficiaries were not parties to the agreement, we hold that enforcement of the agreement involved a collateral issue and one logically arising from the court’s-exercise of jurisdiction and authority respecting settlement of the estate arid 'clearly within its powers.
The modern tendency is to extend the jurisdiction of the probate court in respect to matters incidental and collateral to' exercise of its recognized powers. (In re Osborn’s Estate, 99 Kan. 227, 229, 161 Pac. 601.)
“A probate court has full jurisdiction to adjudicate all questions arising in proceedings before it, and it has such incidental and ancillary jurisdiction as is necessary to an efficient exercise of the jurisdiction conferred on it.” (15 C. J. 1012.)
In 1 Woerner on American Law of Administration, 3d ed., page 483, it is said:
“Where jurisdiction is conferred over any subject matter, and it becomes necessary in the adjudication thereof to decide collateral issues or incidental matters over which no jurisdiction has been conferred, the court must, of necessity, decide such collateral issues.”
In Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, the plaintiff brought an action in the district court to cancel his assignment of his interest as sole heir of his deceased son. His assignee, the administratrix, declared her intention to convert the entire distributable estate to her own use, pursuant to the assignment. It was held the issue was one for adjudication by the probate court. The syllabus reads:
“Specific authority is conferred upon the probate courts to settle the accounts of administrators, and to order the distribution of the estates of deceased persons, and, having jurisdiction to make distribution of an estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate.
“An heir of an intestate assigned his interest to the administratrix of the estate, who was proceeding with the settlement. While the proceedings were yet pending in the probate court, and after due notice had been given that final settlement and distribution would be made, the heir brought an action in the district court against the administratrix, charging maladministration, that the assignment was obtained by misrepresentation, and asking for an accounting and a recovery against the administratrix and her bondsmen. In due time, and upon legal notice, the proceedings in the probate court were continued to completion. Although the heir had full knowledge of the condition of the estate and of the wrongs alleged to have been committed by the administratrix, and had notice of the final settlement and distribution, he ignored the proceedings in the probate court, and without appearance or objection allowed final settlement to be made, the estate distributed, and the final decree entered, discharging the administratrix and releasing the sureties on the bond from further liability. No appeal was taken from the determination of the probate court, nor was any direct attack made upon the proceedings. Held, that the heir was concluded by the adjudication of the probate court.”
See, also, Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, reviewing an order of the probate court for payment to the assignee of a benef ciary under a will.
There remains for consideration the bequest of the bonds, contained in item 3 of the will. Since the agreement is to be enforced, a construction of this item is necessary only as it bears on the bequests therein to the grandchildren. Unquestionably this bequest constitutes a specific legacy and was destroyed when the testatrix disposed of the bonds and bought the building and loan stock. The intention of the testatrix is clearly expressed in the words “should I still be possessed of these bonds.” There is no alternative disposition in case the bonds were converted or entirely disposed of, but on the contrary the language clearly indicates that none was contemplated.
Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026, involved a specific bequest of $9,000 in described war bonds. When the testator died he had only $6,000 in such bonds. The legacy was held good as to the $6,000 war bonds, but ineffectual to pass other property. And the fact the bonds had matured or been called was said to be immaterial.
In 73 A. L. R. 1256, note 2 reads:
“The expression of the ownership of property by such words as 'my,’ ‘in my possession,’ ‘owned by me,’ ‘standing in my name,’ ‘which I now hold,’ is a well-defined indication that a bequest of that property is a specific legacy.”
See, also, Walton v. Walton, 7 Johns Ch. (N. Y.) 258, 11 Am. Dec. 456; Dryden v. Owings, 49 Md. 356; Stilphen, Appellant, 100 Me. 146.
It follows that the balance of the estate remaining after payment of the bequests of $500 each to the two grandchildren should be distributed to the contracting parties share and share alike, pursuant'to their contract.
The judgment of the district court is affirméd. | [
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The opinion of the court was .delivered by
Dawson, J.:
This was a divorce case. The question for review relates to the paucity of the share of the plaintiff’s property allowed to defendant by the judgment of the trial court.
In brief, the facts were these: In 1926, when plaintiff was about 73 years old, he married the defendant, who was then about 22 years old. Plaintiff had a business building somewhat unfavorably located in Lawrence, in one corner of which he had a room poorly fitted and furnished for residential purposes. He brought his bride to that abode and she lived with him for seven years. Prior to the marriage plaintiff gave defendant an automobile. During their married life they used up about $2,800 of plaintiff’s savings.
The marriage had no more than the usual success which ensues from a union of April and December, and defendant may have developed a wandering foot. At all events plaintiff sued her for a divorce, charging extreme cruelty and gross neglect of duty.
Defendant filed a verified answer and cross petition, alleging matters of no present importance, but she also alleged that plaintiff owned real estate and a large amount of valuable machinery and tools; that he was a skilled craftsman and capable of earning large amounts of money'; that she was the owner of a Buick roadster, model 1924, at the time of her marriage, and that plaintiff withheld it from her. She prayed for a fair and just allowance as alimony out,of plaintiff’s property and earnings.
While the action for a divorce was pending the trial court ordered plaintiff to pay to defendant the sum of $3.50 per week as temporary alimony until the further order of the court. Plaintiff obeyed that order for four weeks and thereafter defaulted. The court also ordered plaintiff to pay $35 to enable defendant to employ an attorney to make her defense and protect her interest in the action. This order was disobeyed.
At the trial plaintiff was granted a divorce on the grounds prayed for in his petition. As a share in her husband’s property, $250 was decreed in favor of defendant, in which amount was included the $35 attorney’s fee theretofore allowed and the aggregate of the small sums which had been allowed defendant as temporary alimony, some twelve weeks’ payments of which were in default. By later amendment of the judgment, and in deference to the statute (R. S. 60-1511), the court also ordered that defendant’s ten-year-old automobile be delivered to her or $40 in cash in lieu thereof. This judgment was made conditional upon a return of certain buffalo horns belonging to plaintiff which defendant had carried off and to which plaintiff attached a sentimental value as a memento of his experience as a hunter in the Black Hills many years ago.
Defendant appeals, urging that the meager award allowed her was grossly unjust, and did not comply with the statute which provides that where a divorce is granted by reason of the fault of the wife, the court, among other matters, must award to her such share of her husband’s real and personal property as to the court shall appear just and reasonable. (R. S. 60-1511.)
The evidence showed that defendant was wholly without property or means except her automobile. The testimony of two real-estate dealers was that plaintiff’s real property was worth $4,000 to $5,000. Their qualifications to testify were not questioned and there was no other evidence on the subject except a showing that the property was valued at $2,435 for purposes of taxation. The evidence also showed that plaintiff was well supplied with tools and machinery for the pursuit of his vocation, but no estimate of its value appears in the record.
Was $250 a just share of her husband’s real and personal property under those circumstances? Counsel'for appellant reminds us that when the defaulted allowances for temporary alimony are deducted (and the woman had to live at somebody’s expense during the interim until this case was tried), and when the $35 attorney’s fee is also deducted, the net award accorded to her by this judgment was $173. This was a very small sum of money on which this cast-off wife must exist until she. can make the necessary readjustments in her mode of life and have a fair opportunity to find employment suited to her limited capability to earn her own living. It was on such and similar considerations that the legislature enacted that no matter how culpable a delinquent wife may have been, when she is divorced some substantial provision must be made in her behalf so that she will not forthwith become an object of charity or the victim of her own frailty. (See Davison v. Davison, 125 Kan. 807, 266 Pac. 650; Metcalf v. Metcalf, 132 Kan. 535, 296 Pac. 353.) In Hendricks v. Hendricks, 136 Kan. 69, 72, 12 P. 2d 804, which is to the same effect, it was pointed out that where the divorce is granted on account of the wife’s fault, the statutory allowance to which she is entitled is not to be precisely characterized as alimony, but the distinction in terminology is not important. (1 J. B. K. 169.)
Where the vital question in an appeal is whether the trial court in fixing the share or amount to be awarded to a wife divorced on account of her own fault abused its discretion, the appellate tribunal must allow a considerable margin for differences of opinion. The justices of this court are not unanimous as to how much this woman should have. Three times, even four times as much as the trial court decreed, would reflect the judgment of some of our number. This court, however, is in substantial agreement that the award should not have been less than twice the sum allowed by the district court, exclusive of any deductions. We also conclude that this judgment should be modified in another respect. While the defendant should return the buffalo horns if within her power to do so, yet this condition of the judgment will be unduly oppressive if the horns are altogether beyond her control. The burden will be on defendant to show the facts if she does not comply with the trial court’s order for the return of the buffalo horns.
In view of the foregoing the cause will be remanded with instructions to the trial court to set aside its award of $250 and to enter judgment in favor of defendant as follows: Plaintiff shall be required to return to defendant her automobile or pay her $40 in cash in lieu thereof. He shall likewise pay to defendant the full amount of the defaulted allowances heretofore made in her behalf for temporary alimony, aggregating $42. He shall likewise pay her the sum of $35 he was heretofore ordered to pay to her as an attorney’s fee for services in the trial court; and shall pay the defendant the sum of $500 as a just and reasonable share of his property in conformity with the statute. Plaintiff shall likewise pay the costs in the trial court, and for the full satisfaction of the judgment a lien shall be imposed on plaintiff’s real estate. The costs of this appeal, including the reasonable cost of printing.defendant’s abstract and brief, and an attorney’s fee of one hundred dollars for services rendered in defendant’s behalf in this court, are taxed against the plaintiff.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by the state from a ruling and judgment of the district court sustaining a motion to quash an information in a criminal action. The information was drawn undei; R. S. 21-930, and, omitting formal opening and closing, reads as follows:
“. . . that Bruce Terry, Cále (Curley) Bray and Myrel Thomas Farmer, late of said county of Sedgwick, at and within the county of Sedgwick, in the state of Kansas aforesaid, and within the jurisdiction of this court on or about the 1st day of August, a. d. 1933, did then and there unlawfully, feloniously, willfully, and intentionally, deal, play, and practice a confidence game or swindle known as five-card stud poker, with the intent and purpose of them, the said Bruce Terry, Cale (Curley) Bray, and Myrel Thomas Farmer, to cheat, swindle, and defraud one Sadie Wolf, and that by means and use of the aforesaid game, to wit: Five-card stud poker, they, the said Bruce Terry, Cale (Curley) Bray, and Myrel Thomas Farmer, did then and there deal, play, and practice said game known as five-card stud poker, and did then and there swindle, cheat, and defraud the said Sadie Wolf out of the sum of two hundred seventy-five dollars ($275) . . .”
The statute in question reads:
“Whoever shall in this state deal, play or practice, or be in any manner accessory to the dealing, playing or practicing of the confidence game or swindle known as three-card monte, or of any such game, play or practice, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not to exceed five thousand dollars, and by confinement in the penitentiary not less than two nor more than five years.” (R. S. 21-930.)
The question presented is whether the information states an offense under this statute; or, more definitely, whether five-card stud poker is “any such game, play or practice” as “the confidence game or swindle known as three-card monte.” Three-card monte is defined:
“A game of Mexican origin in which three cards, previously shown and named, are dexterously thrown on the table by a gambler, and the victim is induced to bet he can pick out one previously designated.” (Webster’s Dictionary.)
“A sleight-of-hand game or trick played with three cards, one of which is usually a court-card. The performer throws the cards face down upon a table in such a manner as to deceive the eye of the onlooker, who is induced to bet that he can pick out the court-cards. Called in England ‘three-card trick.’ ” (Standard Dictionary.)
“A gambling game, of Mexican origin, played with three cards, of which one is usually a court-card. By skillful manipulation, the cards are so thrown on the table, face down, as to deceive the eye of the manipulator’s opponent, who bets on the position of one of the cards, usually the court-card.” (Century Dictionary.)
“A sleight-of-hand game or trick played with three cards. While as generally known and understood, it has been said-to be a confidence game, on the other hand, it has been held that the game is not necessarily a cheating game, but, on the contrary, that it is fundamentally a game of skill, he whose part it is to indicate the stated card pitting his quickness of eye against the quickness of hand of him who manipulates the cards.” (62 C. J. 946.)
If of Mexican origin it has spread over a wide area. In France it is known as “bonneteau” and has been declared an “escroquerie”; that is, a swindle, or a cheating, swindling game. We are told that in Belgium it is held exclusively a game of skill, and not a fraud or cheat if played according to the rules. In England (Rex v. Governor of Brixton Prison [1912], 3 K. B. 568), passing on the extradition of persons charged with having played the game in Norway, it was spoken of as “the three-card trick.” The headnote reads:
“Where two confederates are engaged in what is known as the three-card trick — a game in which one player, having shown three cards, places them face downwards and rapidly shifts their relative positions, and then the other player has to indicate the position of a particular card — the fact that they fraudulently pretend to be strangers and when playing together arrange that the one who has to point out the particular card shall win, with the view of inducing the prosecutor to play, is not a ‘fraud or unlawful device or ill practice in playing at or with cards’ within the meaning of s. 17 of the gaming act, 1845, so as to support a charge of obtaining from the prosecutor by false pretences money won from him at the game. Reg. v. Bailey and Others, (1850) 4 Cox, C. C. 390, followed.”
This holding was followed by the Canadian court in Rex v. Rosen and Lavoie, 61 D. L. R. 500. The headnote reads:
“The element of fraud and cheating is not essential to the game of 'three-card monte’ and the game if played according to its rules is not an offense under section 442 of the criminal code.”
In this country it appears to fall within the general class of confidence games (12 C. J. 419). Perhaps this grew out of the fact that the manipulator of the game frequently became so skilled in his sleight-of-hand performances that the “court-card” would be held in the palm of his hand, or slipped up his sleeve, without being noticed by the “victim,” so that any card the victim picked up from the table was certain not to be the court-card, with the result that he was sure to lose. Minnesota had a statute (Gen. Stat. 1878, ch. 99, § 15) specifically applying to the game. (State v. Gray, 29 Minn. 142, 12 N. W. 455.) In 1874 Missouri enacted a statute (now Rev. Stat. 1929, § 4312) making it a felony for anyone to play the game, whether he won or lost. (State v. Edgen, 181 Mo. 582, 80 S. W. 942.) In 1876 the legislature of this state enacted the identical statute which had been enacted two years earlier in Missouri. (Laws 1876, ch. 81, § 1, which is now R. S. 21-930.) It is clear this statute was aimed directly at “the confidence game or swindle known as three-card monte,” or “any such game, play or practice.” It made anyone who participated in such a game guilty of a felony and subject to severe penalties. Its obvious purpose was to stamp out that game, or any suah game. It was not aimed at fraud or deceit in the many forms that might be practiced, or at gambling devices or at gambling generally, for we already had many sections of our statutes dealing with those matters; for example: R. S. 21-551, 21-552, 21-915, 21-916, 21-923, 21-924.
In this country three-card monte is not generally recognized as a card game.. It “is a sleight-of-hand game or trick played with three cards” (27 C. J. 973), or perhaps with four, if the court-card is concealed.
On the other hand, five-card stud poker is a recognized card game. From 27 C. J. 972 we read:
“Poker is a well-known American game. It is a game played with cards, and, usually with chips, for diversion or gain. There are several kinds of poker, such as ‘straight poker,’ ‘draw poker,’ ‘stud’ or ‘stud-horse’ poker, and ‘senate poker,’ but a slight variation in name or mode of playing does not prevent a game from being ‘poker’ where it is decided on a showing of cards by the same high cards and combinations of cards as in common poker.”
Webster defines poker as—
“Any of various card games in which players bet on the value of their hands to win a pool. When one player has bet, those following must equal his bet (see or call him), increase his bet (raise him), or drop out of the game for that hand (pass). ... In stud poker, all cards but the first round are dealt face up and the betting usually begins after the second round. . . .”
The game may be played for entertainment only, or for gain. Frequently it is a gambling game. Those who participate in it as a gambling game may be prosecuted for a misdemeanor (R. S. 21-924). The proprietor of a gambling house, operating the game as a gambling game, may be prosecuted for a felony (R. S. 21-915), but the punishment is not so severe as for one who deals, plays or practices "the confidence game or swindle known as three-card monte.” Five-card stud poker is not a “confidence game or swindle,” but is a game of skill and chance. Of course it is possible for one to cheat at almost any card game, and' in many business transactions, but the fact that such cheating may be done does not convert those games, or business transactions, into “the confidence game or swindle known as three-card monte,” nor constitute them “any such game.” Statutes exist for the prosecution of those guilty of fraud or deceit when loss results, but defendants were not prosecuted under those statutes. We are not asked to pass upon an information drawn under such statutes.
The general rule is, statutes should be construed to carry out their obvious purposes, and criminal statutes in particular should not be extended beyond those purposes. (State v. Prather, 79 Kan. 513, 100 Pac. 57; State v. Hanchette, 88 Kan. 864, 129 Pac. 1184; State v. Brown, 118 Kan. 603, 236 Pac. 663; State v. Keester, 121 Kan. 167, 246 Pac. 865.) It is clear R. S. 21-930 was directed at those who participate in three-card monte, and any such game, play or practice. It never was designed to apply to such’card games as five-card stud poker.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover medical and hospital expenditures made by plaintiff, consequent on injury to his son in an automobile accident, and to recover for loss of services of the son. The judgment was for defendants, and plaintiff appeals.
While defendant, Walter Compton, was driving an automobile belonging to his employer, the defendant, F. E. Maher, plaintiff’s son, Maura Balandrán, ran from behind a sand truck on the highway, ran in front of the automobile, and was injured. With a general verdict for plaintiff for $1,300, the jury returned special findings of fact which follow:
“2. Did the plaintiff’s son run from behind a sand truck and in front of the automobile the defendant Compton was driving? A. Yes. .
“3. If you answer question 2 ‘Yes,’ then state how close said boy was to Compton’s car when he ran in front of it. A. Fifteen feet.
“4. If you answer question 2 ‘Yes,’ then state whether or not there was anything to prevent said boy seeing the automobile approaching. A. Yes.
“6. After the defendant Compton saw the boy, did he have time to sound the horn or apply the brakes before striking him? A. Yes.
“7. After the defendant Compton saw the boy, would the sounding of the horn or applying the brakes have prevented the accident? A. No.
“8. Was the plaintiff’s son on the paved or unpaved portion of the highway when struck by the automobile? A. Unpaved portion.
“9. What portion of the automobile struck the plaintiff’s son? A. The left front portion of the car.
'TO. Was the defendant Compton guilty of negligence which caused the accident? A. Yes.
“11. If you answer the last question ‘Yes,’ then state what the acts of negligence consisted of. A. Insufficient knowledge of car he was driving.”
The general verdict and the special findings were returned on May 12. Plaintiff did not challenge the findings in any way, and made no motion for a new trial. On May 13 defendants moved for judgment in their favor, notwithstanding the general verdict, and the motion was allowed.
Plaintiff pleaded eight grounds of negligence, all of which related to operation of the automobile. The court separately numbered the charges of negligence and submitted all of them, so numbered, to the jury. Being unable to find Compton guilty of any one of the charges of negligence contained in the petition and submitted by the court, the jury invented the special act of negligence stated in the answer to question 11. The result was the motion for judgment on the special findings was properly allowed.
The motion for judgment was allowed and judgment was rendered for defendants on May 27. On May 31 plaintiff filed a motion for a new trial. The motion was nugatory as a motion for a new trial, and was properly denied.
Plaintiff says the general verdict finds support in the general findings. This is true to a limited extent, but the general verdict was nullified by finding 11, which acquitted Compton of all negligence pleaded.
Plaintiff says defendant’s liability was settled in a previous action against defendants, in which the injured boy recovered. That litigation settled nothing between the parties to this action.
Plaintiff says the jury disobeyed instructions. If so, the subject is of no consequence in this appeal.
Other subjects-presented by -plaintiff as grounds for reversal are without merit, and the judgment of the: district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from a judgment rendered in an action for partition of real and personal property. While other property was involved, we need notice only one tract, concerning which there is no dispute of fact, for the specific questions raised by the appeal pertain to the extent of interest obtained by a life tenant of real estate and the remaindermen, under an o.il and gas lease.
Walter Scott Burden, then a widower, owned a certain 12.58-acre tract of real estate, and on April 7, 1913, he conveyed it to his children, William W. Burden, Anna Keesling and Ethel Barngrover, appellees, reserving to himself a life estate therein. Later he remarried and on September 12, 1929, he and his wife executed an oil and gas lease to the Gypsy Oil Company, which put down two producing wells. The lease was for the sole purpose of mining and operating for oil and gas and laying pipe lines, etc., to produce, save and take care of such product from the leased premises for a term of ten years and as long as oil or gas is produced from the land by the lessee.
On July 18, 1933, the appellees executed a written agreement with the oil company confirming the lease made by their father, stating it should not be construed as' a denial of their father’s title nor as an acknowledgment he and his wife had any interest. The extent of the reservations and exceptions is not here material.
On October 20, 1933, Walter Scott Burden died intestate and left surviving as his heirs his widow and the three children. The widow was appointed administratrix of his estate, and she brought this action in her individual and in her representative capacities, claiming that she is entitled to a three-fourths interest in the oil produced from the leased premises, seeking an adjudication of rights as between plaintiffs and defendants and for partition of the property.
We need not notice the answer of the Gypsy Oil Company. The individual defendants’ answer need not be noticed further than to state it raised the issue that the interest of the life tenant ceased at his death. Among other things, they prayed judgment requiring the administratrix to account for the principal of all sums paid to Walter Scott Burden by the Gypsy Oil Company on account of royalty.
The trial court made findings of fact concerning all the real estate involved in the action, and therefrom made conclusions of law, which, so far as here material, are:
“1. The oil and gas leases conveyed no title to the oil in the ground.
“2. Up to the date of the death of Walter Scott Burden, or W. S. Burden (being the same person), he was entitled to receive the interest upon the fund realized on account of the production of oil from the real estate in which he held a life.estate, but he was not entitled to the principal of that fund and it is no part of his estate.
“3. When Walter Scott, or W. S. Burden (being the same person), died, his interest in the land ended absolutely and forever, and there was nothing for anyone to inherit from him; the fee title in that real estate had been vested in the three children of Walter Scott Burden; namely, William W. Burden, Anna Keesling and Ethel Barngrover.
“4. The administratrix of the estate of Walter Scott Burden is not, as such, entitled to any part of the money realized on account of the sale of oil from the real estate in which Walter Scott Burden had only a life estate; the title to said fund followed the title to the real estate and was vested in the said three children of Walter Scott Burden as real estate.”
“10. Defendant Gypsy Oil Company and Derby Oil Company are entitled to have their leases, and they hereby are, adjudged to be valid and existing oil and gas leases upon the real estate described in such leases, and such leases are confirmed and approved by the court.”
The plaintiffs appeal, contending that after the execution of the leases and discovery of oil by drilling, the oil in the ground became dissevered absolutely from the land, was personal property, and on the death of the life tenant lessor became the property of his heirs and personal representatives, and that oil produced after his death did not belong to the remaindermen, or, stated another way, that the royalty arising under an oil and gas lease on real estate, in which the lessor has only a life estate is personal prdperty, is not appurtenant to the leased real estate, and descends to the lessor’s heirs upon his death, and does not belong to the remaindermen.
It has been held repeatedly that an oil and gas lease is not a lease in the ordinary sense, conveys no interest in the land, but is merely a license to explore. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398; Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750; Beardsley v. Gas Co., 78 Kan. 571, 96 Pac. 859.) Other cases to the same effect could be cited.
It has likewise been held that an oil and gas lease is an incorporeal hereditament and that as such it is personal property. (See Gas Co. v. Neosho County, supra; Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048; Robinson v. Smalley, 102 Kan. 842, 171 Pac. 1155; Huston v. Cox, 103 Kan. 73, 172 Pac. 992.)
Appellants contend that it having been held that the lease is an incorporeal hereditament, it passes as personal property. Counsel for appellants argue that when an oil and gas lease has been granted, and the lessee discovers oil and gas, a disseverance takes place and the oil in place becomes personal property. In support of this claim they rely upon Dickey v. Brick Co., supra, where it was held that when oil and gas 'are found, the right to produce becomes a vested right. Very well, but what is the nature of this right and in whom is it vested?
A profit a prendre is the right to take soil, gravel, minerals and the like from the lands of another and is in its nature an incorporeal right. In Brinkman v. Empire Gas & Fuel Co., 120 Kan. 602, 245 Pac. 107, it was held the nature of the grant of an oil and gas lease was of a profit a prendre which the grantee might utilize or refrain from utilizing, subject to the conditions of the grant, and in the recent case of Hardcastle v. McCluskey, 139 Kan. 757, 33 P. 2d 127, it was held that it is the grantee who has the profit a prendre.
And does leasing, exploration and discovery of oil work a dis-severance of oil in place from the real estate, so that it may be said to be personal property?
In Gas Co. v. Neosho County, supra, the question involved was the taxation of mineral rights under an oil and gas lease. It was there said:
''Suck being the scope and purpose of the law, the lease in question brought into existence no state of facts to which it might apply. The lease grants no estate in the land or in the oil or gas which it may contain. It creates an incorporeal hereditament only — a license to enter and explore for oil and gas, and if they are discovered to produce and sever them. (Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683; Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398.) Until discovered and brought to the surface no severance of title occurs. The minerals not only remain a constituent part of the land, but they belong to the owner of the surface-soil beneath which they lie. The lessee has no ‘right or title’ to them (see Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995), and they are not separately taxable to him.” (p. 339.)
In Hover v. McNeill, 102 Kan. 492, 175 Pac. 150, an oil and gas lease similar to that here was involved, the question being whether void because of failure to record and return for taxation, and it was held:
“The provisions of an oil and gas lease examined, and held, the instrument did not operate to sever and convey, as real estate, subsurface mineral deposits.” (Syl.)
In Robinson v. Smalley, supra, it was said an oil and gas lease does not operate as a grant and severance of mineral in place.
In Hardcastle v. McCluskey, supra, in discussing what was included in a mortgage of real estate, it was said:
“Oil in place is part of the land, and was mortgaged precisely as soil and other physical constituents of the land were mortgaged.” (p. 758.)
In connection with the above, our attention is directed to the question of what constitutes royalty, and that it is personal property, and Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52, is cited. But under that case royalty refers not to the oil in place, but to the share in the oil and gas produced and paid as compensation for the right to drill and produce, and does not include a perpetual interest in the oil and gas in the ground.
Appellants further contend that under Davis v. Davis, 121 Kan. 312, 246 Pac. 982, a life tenant has the right to make a valid oil and gas lease. In the above case it was held:
“Where a tenant in tail, on the erroneous assumption that she held a mere life estate in certain real property, in her individual capacity and also as trustee and guardian for others, executed an oil and gas lease to a lessee who for a consideration assigned and warranted such lease to a third person, and the tenant in tail afterwards cut off the entailment by a conveyance of the property to her husband, following which she and her husband executed another lease to the same original lessee, who then challenged the validity of the lease he had theretofore assigned to the third party for a valuable consideration which the original lessee and assignor still retains, it is held that the assignee has a valid lease of the premises, good against both the plaintiff and the original lessee.” (Syl. If 6.)
The case does not support appellant’s contention 'that the holder of a life estate can make an oil and gas lease. When the first -loase was executed, Mrs. Davis, supposing she had only a life estate, sought the aid of a court of equity and had herself appointed as trustee for her unborn children who might become’remaindermen, and in the probate court she had herself appointed as guardian for her then living children, and under orders of both courts she executed an oil and gas lease in which she and her husband and her adult son joined. Later, on being advised her estate was one in fee tail, she cut off the entailment by conveyance to her husband and made a new lease. In disposing of the case it was said:
“The fact that precedent to the execution of the lease in 1923 there was a lot of superfluous and ineffective preliminaries — concerning a trusteeship for Willie Kellogg and the unborn, possible issue of Mrs. Davis, and a guardianship for her minor children, and the sanction of the district court and the probate court to the execution of the lease — certainly did not vitiate that lease so far as the grant thereof by Vera Mable Davis individually was concerned. The tenant in tail could make a valid lease of the premises during the existence of her tenure. (Gannon v. Peterson, 193 Ill. 372, 55 L. R. A. 701; Hilles v. Dils, 53 Ind. App. 576, 581; Tiedeman on Real Property, 3d ed., § 36 et seq.) And, indeed, it is hardly possible to build up any rational theory on which it could be held that the lease of 1923 to Stout executed by Vera and husband individually (and by Vera as trustee and guardian) was invalid, but that such a lease executed by her husband and herself in 1925 to the same lessee was valid. Moreover, there is a manifest want of equity in Stout’s attitude. He was the lessee of both leases. He sold the lease of 1923 to L. H. Wentz by an instrument in which he warranted himself to be its lawful owner and that he had good right to convey and assign it. Estoppel is a principle of equity which applies when it ought to apply, and certainly Stout is estopped to question the rights of his own grantee, who purchased those rights in reliance on Stout’s written instrument of assignment with its representations and recitals, and when Stout, also, still retains the consideration paid therefor.” (pp. 320, 321.)
In the Davis case no question seems to have been raised that a life tenant could not make a valid oil and gas lease and thus in effect commit waste against the remaindermen. In the proceedings for the first lease that was contemplated and guarded against. When the fact that Mrs. Davis was not a life tenant was later discovered, of course it was clear the proceedings were nugatory. When the second lease was made the circumstances were such that the doctrine of estoppel should have been and it was applied.
In Benson v. Nyman, 136 Kan. 455, 16 P. 2d 963, this court held:
“While a life tenant under a will may not develop an oil and gas property to the deprivation of remaindermen, such rule does not apply where all developments were made under and by virtue of the provisions of a lease made by the landowner in his lifetime with a third party as lessee.” (Syl. ff 2.)
In an annotation in 43 A. L. R. 811, on rights of life tenant and remaindermen inter se as to oil and gas, it is said:
“It is established, practically without dispute, that a life tenant has no right to exploit the gas and oil resources of the property for his own benefit, or to authorize, by lease or otherwise, another to do so, where such exploitation had not been begun or authorized before the commencement of the life estate and no such right has been conferred upon him by the will or other instrument by which the life estate was created, or by agreement or consent of the remainder-men entitled to the eventual estate. As the rule is sometimes expressed, the life tenant has no right to open new wells where none has been opened or authorized before the commencement of the life estate.”
And in Fourth & C. Tr. Co. v. Woolley, 31 Ohio App. 259, 261, 155 N. E. 742, decided since the above annotation was published, it was said:
“The unbroken line of authorities in several states is to the effect that a tenant for life has no right to operate for- oil on the premises in which such estate is held, or to make an oil lease thereon, when operations were not commenced before the life estate accrued.” (Citing cases.) (p. 261.)
It may hardly be said that Davis v. Davis, supra, where the question was not raised, is authority for holding that in Kansas a life tenant can make an oil and gas lease, the claimed effect of which will be to make royalties which may come due in the future personal property to the extent that after the death of the life tenant his heirs and personal representatives take such royalties, and the remaindermen take nothing.
But whatever may be said as to the validity of an oil and gas lease executed only by the holder of a life estate, in the case before us, and during the lifetime of the life tenant, the remaindermen executed a document approving the lease “to all intents and purposes as though they had on the date of the execution of said lease joined therein as parties of the first part.”
Appellants argue the remaindermen could not have made a lease without consent of the life tenant. Let it be conceded. There was nothing to prevent their joining in a lease with him, and that was the effect of the original lease and the approval above referred to. The remaindermen are bound and it would not lie in the mouth of the life tenant or his personal representative to say his lease was bad.
In support of their whole theory, appellants’ counsel cite a number of authorities to the effect that a different rule applies to the construction of oil and gas leases than to ordinary leases, and that they are to be construed most strongly against the lessee and in favor of the lessor. We need not comment thereon, for the controversy here does not warrant the application of the rule.
It is not contended by any party that the lease is not valid, the question is whether the rights of the life tenant to royalty were cut off and determined at his death, and it is our judgment they were.
The remaining- question is whether the royalties accruing during the lifetime of the life tenant went absolutely to him, or whether the trial court ruled correctly that the life tenant was entitled to receive, not the principal sum of royalties paid to him, but only interest on that principal sum. This proposition has received the attention of other courts, but has never been decided in Kansas.
In Summers on Oil & Gas, p. 618, § 196, it is said:
“Because of the nature of their respective interests, neither the life tenant nor the remainderman or reversioner have the privilege to take oil and gas, or the power to lease the land for oil and gas purposes. If, however, they join in a lease to a third person, the question is raised as to the manner of the apportionment of the income from the lease. Since the oil and gas form a part of the corpus of the estate, the courts usually hold that the life tenant is entitled only to the interest upon the rents or royalties for the period of his life, and that the remainderman or reversioner is entitled to the principal of such sum.”
In Barnes v. Keys, 36 Okla. 6, 127 Pac. 261, 45 L. R. A., n. s., 178, it was held:
“Where the owners of a life estate and the owners of the remainder join in an oil and gas mining lease, and the lessee develops the lease and produces oil, the life tenants are entitled either to have the royalties invested and to receive the income therefrom, or to receive such a proportion of the royalty as will amount to the present value of an annuity for the life expectancy of the life tenant equal to the interest on the royalties at 6 per cent.” (Syl.)
And to the same effect see cases noted in the annotation in 43 A. L. R. 816, ¶[ 5; annotation in 36 L. R. A., n. s., 1108; Thornton on Oil & Gas, 5th ed., ch. 10, p. 721 et seq.; The Fourth & C. Tr. Co. v. Woolley, supra; Blakely v. Marshall, 174 Pa. St. 425, 34 Atl. 564; Eakin v. Hawkins, 52 W. Va. 124, 43 S. E. 211; Meredith v. Meredith, 193 Ky. 192, 235 S. W. 757, id. (on rehearing) 204 Ky. 608, 264 S. W. 1109; Parker v. Riley, 250 U. S. 66, 63 L. Ed. 847; also, 17 R. C. L. 634 (Life Estates, § 24); and 21 C. J. 947 (Estates, § 86). An examination of the above authorities will show the rule to be that where the life tenant and remaindermen join in an oil and gas lease they may agree as to division of rents and royalties, and in the absence of agreement the life tenant is entitled either to have the royalties invested and to receive income therefrom, or to receive an apportionment of the royalties dependent on the value of his expectancy.
It cannot be said that our former decisions holding that the royalty arising from an oil or gas lease is personal property are contrary to the above rule, for in such cases the controversy decided did not involve the question of ownership of such royalty as between life tenants and remaindermen.
When the lease in question was drawn, the-possibility that Walter Scott Burden might not be the owner of the entire fee was contemplated, and provision was made that:
“If said lessor owns a less interest in the above described land than the entire and undivided fee-simple estate therein, then the royalties and rentals herein provided shall be paid the lessor only in the proportion which his. interest bears to the whole’ and undivided fee.”
In view of the almost unanimous holdings as to rights existing between life tenants and remaindermen under oil and gas leases coming into existence after the life estate vests, we may well hold that the life tenant intended by the contract to procure for himself only the right to receive income from the principal of any royalties arising under the lease.
We conclude that the judgment of the lower court was correct, and it is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of burglary and larceny and appeals, assigning as error misconduct of the jury and -of the county attorney.
On presentation of his motion for a new trial, defendant showed by one Button, who was a witness against him, that Button was an inmate of the reformatory at Hutchinson, but was confined in the county jail at Fort Scott pending defendant’s trial. It appears that the room in which the jury deliberated was about forty feet east, across an alley, and about fifteen feet higher than the portion of the jail where the witness was confined. While the jury was deliberating, one or perhaps two 'jurors stood at a window and one called across to Button: “I see you are still here.” Button replied “yes,” and a further question was asked as to when he would be taken back. -Nothing further was said. Button stated he did not know any of the jurors and did not know who spoke to him. No juror was called to testify. The court denied the motion for a new trial.
Appellant contends that the above constitutes prejudicial error. In support of his contention, he relies on Madden v. The State, 1 Kan. 340, where it was held that where opportunity for improper influences prejudicial to the accused is afforded, if the verdict is against him the presumption is the irregularity was prejudicial to him, and it is incumbent on the state to show lack of injury by reason thereof. In that case an outsider was permitted to hold communications with the jury, the jury was allowed to separate, one of the jurors was seen communicating with a person at a hotel, and the bailiff kept outsiders informed as to how the jury stood. Other cases in which the Madden case is cited are also called to our attention. The trial court may not have believed Button’s statement, but assuming it did, how was appellant prejudiced? Had there been any conflict in the evidence, it would have been a question of fact for determination by the trial court. Giving to Button’s testimony every inference that could be drawn therefrom that would be favorable to appellant, wherein can it be said he was prejudiced? Our independent examination of the record convinces us that the ruling of the trial court was correct. (See State v. Casebier, 130 Kan. 762, 764, 288 Pac. 736.)
The contention as to the county attorney is that in argument he likened the defendant’s reputation to that of two persons whom he named. It does not appear the statement was taken by the court reporter or that any affidavits were filed. The trial court heard the argument and also what was said on motion for a new trial and concluded there was no error. Nothing before us warrants any different conclusion.
With respect to both contentions it may be said if there was any error it was technical, and on appeal this court must give judgment without regard thereto. (R. S. 62-1718.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to contest a will, for partition of the real estate belonging to the decedent, and for an accounting of certain personal property.
One J. F. Geopfert, who resided in Jefferson county, died in 1911, testate. He gave specific bequests to each of his four sons and made them residuary legatees. One of the sons died shortly after his father, leaving the brothers as his sole heirs. Orlin Geopfert died in 1913, and the plaintiff, Gladys Opal Geopfert, is his sole surviving heir. Shortly before his death, the father had conveyed lands to his sons Cyrus and Theodore. Shortly after his death these two brothers made some exchange of deeds so that in the event of the death of one, the other should succeed to all of the property of the decedent. We are not concerned with the legal effect of such deeds. Later Cyrus married, and an attorney was consulted, and shortly thereafter, under date of May 5, 1918, the two brothers joined in a will by the terms of which Cyrus gave one-half of his property to his wife and one-half to Theodore. Theodore, by the will, gave all of his property to Cyrus. The wife of Cyrus consented to the terms of this will. She subsequently died, and Cyrus remarried. The second wife never consented to the terms of the will, although that is not material here.
On September 13, 1931, Theodore Geopfert died, being the owner of about 180 acres of land, personal property valued at about $500, and the alleged owner of a cause of action against his brother for an accounting for farm rents and profits. The above-mentioned will was admitted to probate. Under its terms, no executor was named and the defendant, Amos Leech, was appointed administrator with the will annexed and duly qualified.
Plaintiff, by her next friend, brought an action as above indicated, and from a judgment in her favor the defendants appeal, the assignments of error presented covering two propositions, i. e., that the trial court erred in not sustaining a demurrer to plaintiff’s evidence, and that the court’s findings are not sustained by substantial evidence.
Plaintiff’s evidence showed that after the death of the father of Cyrus and Theodore, they continued to occupy the farm on which they resided, title thereto being in Cyrus, and that Cyrus managed and controlled the farming operations on the lands of both and looked after all <bf the business necessary to be done; that shortly after the father’s death, Theodore’s share of the estate passed into the management of Cyrus; that Theodore lived in the home of Cyrus after the latter’s marriage; that Theodore worked upon the farms of himself and brother in the manner usual to a hired hand, Cyrus marketing all crops and receiving all proceeds, that Theodore never developed mentally, and was always under the domination of Cyrus; that he never exercised his own independent judgment about the farm or its operation, but depended on his brother. The evidence showed that the only transaction of business he ever looked after was the sale of produce amounting to about two dollars at a time Cyrus was absent. Witnesses who testified to their acquaintance and means of knowledge stated that Theodore could not learn at school, and that he was feeble-minded. One said he was a half-wit; another said he was an idiot; another said he had no knowledge or understanding of the value of his property. Other witnesses said he was crazy, not of sound mind, and that he had always been so. There was also evi dence that he had no bank account and no money except on occasions when Cyrus gave him a small amount to spend, he would go to barber shops and places where he would spend small amounts, returning unspent portions to Cyrus. Theodore told one witness he was working on the farm to get spending money. The above is not intended to be a complete summary of plaintiff’s evidence but only a sufficient statement in view of the demurrer lodged against it. On cross-examination some of the witnesses used milder language with reference to Theodore, some said he knew what property he had, etc., but there was sufficient evidence which, if believed, warranted the conclusion that Theodore never developed normally and never had capacity to make a will. There was no error in overruling the demurrer.
The defendant introduced evidence tending to show the mental capacity of Theodore; that he attended to business, knew what he possessed, knew his relatives and their relationship to him. Cyrus Geopfert testified his relations with his brother were always friendly and that he transacted business for him at his request; that in 1911 $4,300 of Theodore’s money was turned over to him for which he gave a note; that he paid the note and destroyed it; that he had other moneys to invest for which he gave notes which he afterwards paid. It is significant here, and must have been to the trial court, that although Cyrus testified that he had always accounted to Theodore for his share of crops and for moneys borrowed from Theodore, yet since 1911 he had purchased 200 acres of land for which he paid $13,200, while his reports to the probate court showed that Theodore’s lands remained the same as at the date of the father’s death, except an undivided one-half interest in 40 acres purchased in 1918 from the heirs of his brother Orlin, and his personal property was worth less than $500, even though it is conceded Theodore had at least $4,300 shortly after the father’s death.
The trial court made findings of fact, including the following:
“5. That on the 20th day of April, 1911, the said J. F. Geopfert, father of Theodore and Cyrus Geopfert, died testate, leaving certain money and personal property from which the said Theodore Geopfert and Cyrus Geopfert each received approximately $6,000, in money and personal property.
“6. That at the time of the distribution of the personal property of the said J. F. Geopfert practically all of the portion thereof belonging to the said Theodore Geopfert was by the executors, upon order of Theodore Geopfert, delivered to the defendant, Cyrus Geopfert, and was by the said Cyrus Geopfert placed in his individual account and the same was used, appropriated and disposed of as the said Cyrus Geopfert saw fit and no accounting or settlement to or with said Theodore Geopfert for said personal property so delivered to him was ever made by the defendant, Cyrus Geopfert.
“7. That after the death of the said J. F. Geopfert, the said Cyrus Geopfert took charge of the above-described real estate belonging to the said Theodore Geopfert and managed and controlled the same, looking after the renting of said real estate, collected all the rents and profits arising therefrom and, in general, managed and controlled all of the business affairs of the said Theodore Geopfert during the remainder of his lifetime.
“8. That no accounting was ever made by the said Cyrus Geopfert to Theodore Geopfert for the rents and profits collected from said real estate or for other business transactions conducted by said Cyrus Geopfert for or on behalf of Theodore Geopfert. That from and after the death of J. F. Geopfert, the said Theodore Geopfert during the remainder of his life made his home with his brother, Cyrus Geopfert, in the dwelling establishment and built by the said J. F. Geopfert and by him deeded to the said Cyrus Geopfert.
“9. That, during the above-mentioned time the said Theodore Geopfert served as a farm hand, performing manual labor, always under the will, direction and orders of his brother, Cyrus Geopfert, receiving such compensation therefor his board, shelter, such ordinary clothing as his circumstances required in his station in life and such sums of money for spending purposes and recreation as the said Cyrus Geopfert provided.
“10. That the said Theodore Geopfert was feeble-minded during the whole of his natural life, his mind not developing, improving or changing with maturity, save and except the acquisition of a few cardinal facts, such as the names of people, animals and objects with whom and with which he came in constant contact. That he never exercised his own will or judgment, possessed no reasoning power, but acted always under the direction and obeyed the will of his brother, Cyrus Geopfert.
“11. That the said Theodore Geopfert was incompetent to attend to business affairs of any nature or kind whatsoever at any time during his life and that he did not transact business at any time, leaving the entire management and control of his business affairs to his brother, Cyrus Geopfert.
“12. That at the time of the execution of the purported last will and testament of the said Theodore Geopfert, to wit, on May 5, 1918, the said Theodore Geopfert was wholly without testamentary capacity, was mentally incompetent to make “a will or otherwise dispose of his property, real or personal, wholly unable to grasp and understand the gravity of such a business transaction and did not understand or comprehend what disposition he had made of his property by the execution of said purported will; but understood, believed and carried the impression throughout the remainder of his life that by signing said purported will he had entirely disposed of his property to his brother, Cyrus Geopfert, except that in exchange for said property he was to have a home for the remainder of his life.
“13. That at the time of the execution of said purported will and at all times from and after the death of J. F. Geopfert during the remainder of the life of Theo. Geopfert, the said Cyrus Geopfert was the confidential agent of] and occupied a position of trust toward the said Theo. Geopfert, having at said time and at all times after his father’s death, the possession, management and control of all of the property of the said Theo. Geopfert, real and personal, and at all such times exercised such influence over the said Theo. Geopfert as amounted to an absolute and complete control of his will and was the adviser of the same Theo. Geopfert in all matters, business, social and personal.”
Appellants contend that under the decision in Klose v. Collins, 137 Kan. 321, 20 P. 2d 494, there was evidence that Theodore Geopfert knew and understood what property he had, knew about his relatives and others who might be the objects of his bounty, and was therefore able to direct and make disposition of his property with understanding and reason. It is conceded there was evidence to this effect. But did it dispose of the evidence to the effect that Theodore Geopfert had always been subnormal, an imbecile dependent on his brother, etc., as indicated above? It has become trite to say the trial court had an opportunity to observe the witnesses on the stand, their demeanor, and their candor or lack of it, which we cannot get from the printed page. Essentially this was a fact case, no difficult questions of law were involved in it, and no reason appears why the judgment of the lower court, finding the issues in favor of the plaintiff, should be set aside.
Two specifications of error with reference to admission of and refusal to admit certain testimony are not argued in the briefs, but we have examined the record and do not discern any reversible error in the court’s rulings.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action on a fire insurance policy, and the serious question involved is whether the forfeiture of the policy by a violation of the encumbrance clause was waived by the adjuster after the loss had occurred.
The plaintiffs purchased a new automobile from a Ford agency, paying only a part of the purchase price, and the agency arranged for a loan for the balance of the purchase price with the -Universal Credit Company, to which company a chattel mortgage was given, and this fire insurance- policy was procured by the agency at the same time, and the mortgage to the credit company was mentioned in the policy. About six months later the plaintiffs were able to reduce the indebtedness by more than $100 and did so by paying off the entire loan and making a new chattel mortgage for the reduced amount to one Max P. Nutsch. On August 10, 1932, about four months later, the automobile was destroyed by fire. The insurance company was notified of the loss, and on August 16, 1932, the adjuster of the defendant company went to the home of the plaintiffs for the purpose of adjusting and investigating the loss.
To the petition of the plaintiffs was attached as an exhibit a copy of the policy containing the usual encumbrance clause, rendering the policy void if the insured property was ever encumbered without the written consent of the insurance company. The defendant company in its answer alleged the making and -giving of the chattel mortgage to Max P. Nutsch without its knowledge or consent, and it claimed thereby to be relieved of any and all liability under the policy. The plaintiffs by way of reply alleged a waiver of forfeiture, if any such operated or applied in the case, by the acts, words and conduct of the adjuster of the defendant company.
It is hot seriously contended by counsel for plaintiffs that the encumbrance clause is not applicable here or that the giving of the chattel mortgage to Nutsch would not forfeit plaintiffs’ claim under the policy, so that feature of the case need not be considered in this case, as there appears to be none of the exceptions urged that are usually considered in connection with such claims of forfeiture.
Another feature of the case which will not need special consideration is the sending of a blank “statement of loss” by the adjuster to the plaintiffs six days after the adjuster had been at the residence, of plaintiffs to appraise and determine the loss because such blank had printed on it a statement that the furnishing of such blank should not be a waiver of any of the rights of the insurer.
The trial court made findings of fact and conclusions of law and rendered judgment thereon in favor of the plaintiffs, from which the insurance company appeals.
Three questions seem to be involved: (1) Did the adjuster have any authority to waive the terms of the policy; (2) did the adjuster intend to waive the terms of the policy; (3) did the acts and conduct of the adjuster as shown by the findings of fact, and upon which the second conclusion of law is based, operate as a waiver of the terms and conditions of the policy?
The important findings of fact bearing on these questions involved are the following:
“7. About August 16, 1932, one A. W. Haerer, employed by the Western Adjustment and Inspection Company, independent adjusters, came to plaintiffs’ residence for the purpose of adjusting and investigating the loss and to determine the liability of the defendant company. Said adjuster proceeded to view the loss and had a conversation with the son of plaintiffs and with the plaintiff Anna Sedlachek, the plaintiff Joe Sedlachek not being at home.
“8. Defendant insurance company frequently employed the Western Adjustment & Inspection Company to adjust losses for it, and Witness Haerer had personally adjusted a large number of losses in the course of his employment by the Western Adjustment & Inspection Company for defendant insurance company.
“9. During the conversation between Haerer and the son of plaintiffs he learned for the first time of the mortgage given by plaintiffs to Max P. Nutsch.
“10. After learning of the mortgage to Nutsch the adjuster determined the amount of loss to be $350, less $12.50, the value of the salvage, which amount plaintiff Anna .Sedlachek and her son told the adjuster was not an adequate amount for the loss, and which they refused to accept.
“15. On September 1, 1932, the Western Adjustment & Inspection Com-' pany wrote a letter to plaintiffs stating in substance that ‘We as adjusters in charge of your claim for total loss deny liability because of the Nutsch mortgage not being, recognized in your policy. This in accordance with instructions received from the interested insurance company.’
“16. The adjuster, Haerer, never communicated to plaintiffs any limitations on his authority, as to making adjustment of the loss, and there was nothing in the instructions to the adjuster from the defendant company limiting or not limiting his right to waive conditions in the insurance policy.
“17. The actual value of the automobile at the time of its destruction was $500.”
The conclusions of law made by the trial court were the following three:
“1. The court concludes as a matter of law that the adjuster had authority to waive provisions in the policy of insurance.
“2. That after learning of the right to avoid the policy on account of the Nutsch mortgage his continuing to deal with the plaintiffs by offering an amount in settlement of the loss and by requesting further statement of loss amounted to waiver of the right of the company to insist on a forfeiture of the policy.
“3. That the plaintiffs should have judgment for the value of the car together with a reasonable attorney’s fee.”
Defendant company filed a motion for judgment on the findings of fact, calling special attention to the apparent discrepancy between the actual finding in No. 10 and the language used in conclusion of law No. 2 as to offering an amount in settlement of the loss. The court overruled the motion, stating that the finding is as far as he feels justified in finding and determining upon the evidence presented. We are at a loss to understand how a supposed fact can be made the basis of a conclusion of law when the court does not feel justified in including it among the findings of fact, and we are compelled to disregard such statement in the conclusion of law as a finding of fact under the ruling in Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307, and if it were an essential finding and alone on the subject the conclusion would have to be disregarded. However, there are in this case other findings tending toward that mentioned in the conclusion which we think will remedy the situation in this respect.
On the question of the authority of the adjuster to waive the terms of the policy, findings 7, 8 and 15 strongly indicate such authority, and finding 16 is about conclusive that such was his authority. There appears to be sufficient evidence, if believed by the trial court, to support these particular findings. In fact, the evidence of the adjuster himself, if credited, would practically place no limit whatever on his power to waive provisions in the policy if he wanted to do so.
There has always been a distinction as to waiver of provisions in the policy which form a part of the contract of insurance and those matters which may be performed after the loss has occurred. It is said in 14 R. C. L. 1345:
“A clause in a policy of insurance prohibiting any waiver unless indorsed thereon refers only to those provisions of the policy which enter into and form part of the contract of insurance, and which may properly be designated as conditions; it has no reference to those stipulations which are to be performed after á loss has occurred. . . .”
In 2 Couch on Insurance Law, page 1503, it is said:
. . restrictions in the policy upon an agent’s powers do not relate to conditions to' be performed after loss has occurred, such, for example, as .giving notice, furnishing proofs, submission to arbitration, etc. Likewise, a stipulation in a policy prohibiting waiver of any conditions in the policy’ by an agent, of the company, unless authority to waive be conferred upon the agent by a writing signed by an officer,. does not relate to conditions to be performed subsequently to the loss.”
The third syllabus in Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, is as follows:
“A provision in an insurance policy respecting encumbrances on the property insured may be waived by the insurance company or its general agent; and this although the policy contains a printed stipulation that no agent of the company or any person other than the president or secretary shall have authority to waive any of the terms or conditions of the policy, and all agreements by the president or secretary must be signed by either of them.”
This principle was thoroughly approved and forcibly supplemented in the opinion in the case of Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120.
Counsel for appellant cite Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611, where a different rule was sustained, but under exceedingly different circumstances. When the adjuster came to the place of the loss he refused to confer with the insured or proceed in any way to adjust the loss unless and until the insured should sign an agreement that any action taken by the adjuster shall not waive or invalidate any of the conditions of the policy, and the court held that under.such special agreement there was no waiver of the provisions of the policy.
The case of Klein v. Farmers & Bankers Life Ins. Co., 132 Kan. 748, 297 Pac. 730, is also cited in this connection and had to do with requirements necessary to the taking effect of the policy and the payment of the premium thereon as distinguished from those requirements, and incidents occurring and arising after the loss.
Did the adjuster intend to waive the terms of the policy, and did his acts and conduct, as shown by the findings, operate as a waiver? Finding No. 10 has most to do with this question, and it is supplemented by finding No. 15 about the letter he wrote the plaintiffs. While finding No. 10 does not contain a finding of an offer in settlement of loss, as indicated in conclusion No. 2, yet'it does contain a statement that the adjuster determined the amount of loss to be $350 less $12.50, the value of the salvage, and the further statement that one of the plaintiffs, the wife, and her son told the adjuster that the amount he had determined to be the loss was inadequate “and which- they refused to accept.” They did not tell him they would refuse to accept it when the company would offer it to them, but when they told him it was inadequate they at the same time refused to. accept it. Refusing to accept implies an offer or a proposal of something that might be accepted. The adjuster must have told them of his having determined dhe amount of loss or they would not have been able to tell him the amount was inadequate and refused to accept it. Taking the language of the tenth finding in the most exacting sense, it necessarily conveys the conclusion that it contained the elements and features of a negotiation. Besides, the adjuster determined the loss to be $350, while the trial court found it to be $500. In other words, the adjuster was working to the interest of his employer to the extent of thirty per cent of the value of the car, if his determination should be accepted.
While in matters of review we are limited to the findings of fact, yet there is an exception as to written documents introduced in evidence which can be considered if they go farther or contain something more than shown in the findings. Finding No. 15 quotes a part of the letter of the adjuster finally denying liability of the insurance company, and we think the full text of the first paragraph of that letter not only indicates something along the line of previous negotiations, although not very strongly, but does definitely admit the authority of the adjuster in the matter of adjustment of loss. It is as follows:
“It is regrettable that we, as adjusters in charge of your claim for total loss by fire on your 1931 Ford Tudor, must advise you that we are herewith respectfully denying any and all liability on your car because of the circumstances of a mortgage thereon not recognized in your policy contract.”
Appellant cites Crandon v. Insurance Co., 99 Kan. 785, 163 Pac. 458, wheré an offer was made of fifty per cent of the loss on the merchandise by fire where the iron-safe clause was violated, and the policy also covered real estate not lost, and the premium was retained, and the court held the offer did not constitute a waiver. However, this case is very much like the Knerr case, in that a plain and positive oral statement was twice made by the adjuster of the nonliability of the company before any conference was had along the line of any adjustment, and this is mentioned in the opinion in connection with the holding of nonwaiver.
The case of Elliott v. Bankers & Shippers Ins. Co., 137 Kan. 492, 21 P. 2d 376, is in many ways very similar to the case at bar. It was about insurance on an automobile lost by fire. The owner’s name was not in the fire insurance policy. When the car was purchased and arrangement was being made for a loan on the car for the balance of the purchase price, the credit company declined to take the note of the purchaser, and his brother was induced to sign the note and mortgage instead of the owner of the car. The defense was made by the insurance company that the car owner’s name was not in the policy and the company was not liable to him. The decision was in favor of the car owner because of waiver by the adjuster. The following is part of the opinion on this subject from pages 497 and 498:
“If there was anything lacking in the support of this view it would be cured by the act of the adjuster, the representatives of the defendant, who had been sent there to adjust the loss. The various steps which he took towards adjustment after learning of the omission of the plaintiff’s name in the contract, and the dealing with the plaintiff as the purchaser, would of itself bind the defendant. He called the plaintiff and together they made repeated inspections of the car to determine the extent of the damage, and discussed with him the credit the defendant would be entitled to obtain from the salvage; then he negotiated with the garage man as to the amount he would pay for the damaged, car. When he returned some weeks later he still recognized the plaintiff as a purchaser and owner of the automobile, and took from him another statement or claim of loss. While the adjuster denied his authority to settle the loss, that was his business, and he also admitted that he had adjusted and settled losses for the defendant prior to that time. Knowing of the omission in the insurance contract, he carried on negotiations with plaintiff as a purchaser, and the defendant in effect thereby recognized the claim of plaintiff that he was the purchaser and therefore entitled to the insurance which belonged to a purchaser in the scheme of insurance.”
In Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335, it was held:
“When a fire insurance company, after the occurrence of a loss by one of its policyholders, receives knowledge of an act upon his part justifying it in declaring a forfeiture of his policy, and fails to make such declaration, but, instead, negotiates with him for a settlement of the loss, it will be deemed, when sued upon the policy, to have waived the right of forfeiture.” (Syl. ¶ 2.) (See, also, Insurance Co. v. Allen, 69 Kan. 729, 77 Pac. 529; Mayse v. Great American Ins. Co., 123 Kan. 692, 256 Pac. 1002; and Ring v. Assurance Co., 100 Kan. 341, 164 Pac. 303.)
We conclude that the adjuster not only had authority to waive the terms of the policy and by his acts, words and conduct intended to do so, but also that his acts, words and conduct, as contained in the findings of fact, operated as a waiver of the terms and conditions of the policy as to encumbrances and support the conclusions of law in favor of plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
JohnstOü, C. J.:'
This was an action involving the sale of land and the recovery of the purchase price of the same. It appears that the sale was made October 3,1929. The land sold was the southwest quarter of the southeast quarter of section eighteen, township three, range twenty-two. The price was $10,000, $500 of which was paid in cash at the time of the sale. A note for $500 and another for $9,000 payable $60> on the first of each and every month until it was ultimately paid,- made up the remaining part. ■ It was provided that if payments were not made as agreed upon then, at the option of the holder, the debt was to become due and foreclosure might be had and the property, sold in satisfaction of the defendant’s claim. •
In a suit'filed in Doniphan county, plaintiffs charged the defendant with fraud in the sale of the land, particularly alleging that defendant showed them one tract of land and conveyed a different .tract by the deed. .On the issues thus formed they went to trial, and the decision was against the plaintiffs and in favor of the defendant. No .other issue of fraud or defense was presented. Afterwards, on May 29,1930, the defendants sued the plaintiffs on the $500 note.- It was brought in Buchanan county, Missouri. The plaintiffs then charged another ground of fraud in that the land was encumbered when it was represented that the title was clear. Upon the issues thus formed, defendant (plaintiff here) prevailed and judgment was entered, sustaining the contract of sale,, and deciding that it was free from misrepresentation and fraud.
In the suit in Missouri the plaintiffs recovered a judgment on the note, but on the counterclaim for the $600 encumbrance it was found and determined that they did not learn of the encumbrance until after the Doniphan county judgment was rendered. An appeal was taken from that which they say has since been affirmed.
The question presented on this appeal is whether the misrepresentations and fraud in the sale were subject to adjudication in the first trial of the case in Doniphan county, where the charges of misrepresentation and fraud were tried out and it was adjudged that no misrepresentation or fraud was perpetrated by the defendant, Ramsel. It is well established that:
“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.” (Marshall v. Railroad Co., 96 Kan. 470, 476, 152 Pac. 634, quoted from C. K. & W. Rld. Co. v. Comm'rs of Anderson Co., 47 Kan. 766, 29 Pac. 96.)
In Snehoda v. National Bank, 115 Kan. 836, 224 Pac. 914, it was ruled that:
“Rule applied that a litigant is entitled to whatever relief her cause of action pleaded and proved, or admitted or not denied, entitle her, whether such relief is included in the prayer of her petition or not; and an amendment to the prayer of her petition is not a prerequisite to such relief.” (Syl. j[ 1.)
It was further held:
“Rule applied that a lawsuit between litigants in their ordinary capacity adjudicates between them not only what they chose to litigate but everything incidental thereto, ...” (Syl. If 2.)
Lux v. Columbian Fruit Canning Co., 120 Kan. 115, 242 Pac. 656, was a suit brought upon a carload of berries in which it was contended that the berries did not correspond with the samples under which they were sold. That issue was tried and decided in a first action and then in the later action brought, in which it was again pressed, the court remarked:
“The first action was a suit to recover the purchase price of the berries. Payment was resisted because the berries did not conform to the samples on which the berries were sold. The cause of action on which the plaintiff seeks to recover in this action — the failure of the berries to correspond with the samples — was set up as a defense in the former action. Whether or not the berries corresponded to the samples can be litigated but once. That question could have been and was litigated in the former action. It cannot become the subject of another lawsuit.” (p. 118.)
In Fletcher v. Kellogg, 125 Kan. 330, 263 Pac. 1048, the question was raised that the subject had been determined, that the elements of identity such as identity of parties and identity of the causes of action, and of the relief demanded, were involved. The issues were well defined, and upon them evidence was received and judgment in general form was rendered. It was held following Snehoda v. National Bank, supra, that everything litigated by the parties which they chose to litigate as well as everything incidental thereto which could have been litigated under the facts constituting the cause of action, became res adjudicata. First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53, and Hargreaves v. Maryland Casualty Co., 130 Kan. 388, 286 Pac. 231, are of the same import and held to have been adjudicated in the former actions.
When the Doniphan county case was determined, the alleged misrepresentations in the sale of the land were held to be free from fraud. The extra misrepresentation or fraud which was added in the later case was incidental to the issues in the first case and available to them, and could and should have been urged. The claim that the plaintiffs did not know of it is no excuse for the omission. They could have known and presented the added misrepresentation, and their claim that it was not within their knowledge was not available to them.
The judgment is affirmed. | [
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The opinion! of the court was delivered by
Smith, J.:
This is an action in mandamus wherein plaintiff seeks to compel the state charter board to reinstate the charter of' the Metropolitan Building Company, which was forfeited for nonpayment of annual fees.
The Metropolitan Building Company defaulted in the payment of its fees for 1932 and 1933. Its charter was forfeited on December 31,1933.
The attorney-general brought a suit to wind up the affairs of the company. A receiver was appointed by the district court. This receiver took charge of the affairs of the company, and now has charge of them.
The fees of the company amounted to $250 for each year. On August 10, 1934, the Metropolitan Building Company made application to the charter board for reinstatement of its charter. At the same time the company deposited a check for $500 with the secretary of the .charter board in payment of the fees for 1932 and 1933. The charter board denied this application. This suit followed.
The state charter board is comprised of the secretary of state, the bank commissioner and the attorney-general. The position of the charter board at the hearing on the application for reinstatement, which is urged in this action, is that the charter board has no authority except that conferred upon it by statute, and the statute makes no provision for the reinstatement of a charter of a corporation for profit, which has been forfeited for nonpayment of fees.
R. S. 17-701 provides, in part, as follows:
“Every corporation organized under the laws of’ this state, for profit, shall make a report in writing to the secretary of state annually, on or before March 31, showing the condition of the corporation at the close of business on the 31st day of December next preceding the date of filing and in such form as the secretary of state may prescribe . . . .”
This statute provides for the payment of an annual fee when the report is made. This fee is based on the amount of paid-up' capital stock in the company.
R. S. 17-706, among other things, provides, as follows:
“The failure of any domestic corporation to file the annual statement and to pay the annual fee herein provided for within ninety days of the time for filing and paying the same shall, in addition to other penalties, work the forfeiture of the charter of such corporation organized under the laws of this state and the charter board may at any time thereafter declare the charter of suck corporation forfeited; and upon the declaration of any such forfeiture it shall be the duty of the attorney-general to apply to the district court of the proper county for the appointment of a receiver to close out the business of such corporation.”
It was in pursuance of this statute that the charter was forfeited and the attorney-general brought the action that has been spoken of to wind up the corporation. The charter board makes no defense based on the wisdom of allowing the reinstatement. It defends its action solely upon the ground that it has no authority to allow the reinstatement. Therefore, if the power for the charter board to grant this reinstatement and to accept the back fees may be found in the statute, the peremptory writ should issue.
It may be said at the outset that the charter board has no power or authority that is not bestowed on it by the statute. See State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 22 P. 2d 1093, and authorities cited.
There are some statutes that deal with the authority of the charter board to reinstate forfeited charters.
One of these is R. S. 1933 Supp. 17-701a to 17-701c. These sections are as follows:
“That all corporations organized under the laws of this state, and all foreign corporations admitted to do business in this state, which are not organized and operated for pecuniary profit and not now required by law to file annual reports with the secretary of state shall make a report in writing to the secretary of state, annually, on or before the 31st day of March, on blanks to be furnished by the secretary of state, covering, as of December 31 next preceding the date of filing, the following facts: (1) The name of the corporation: (2) location of its principal office or place of business; (3) names of the president, secretary and treasurer and members of the board of directors or trustees, with the post-office address of each; (4) date of the annual election of the officers of such corporation. Such report shall be signed by the president, secretary or other managing officer of such corporation, and forwarded to the secretary of state. At the time of filing such annual report each such corporation shall pay to the secretary of state a filing fee of one dollar.” (17-701a.)
“That no corporation shall be required to file its annual report under this act until the proper month hereinbefore provided for the filing of such report, next following the expiration of six months from the date of its incorporation or admission to do business in this state.” (17-701b.)
“That if any corporation fails or refuses to file the annual report and pay the filing fee as herein provided for within ninety days of the time for filing and paying the same, the state charter board may, at any time after having served due notice in writing by registered mail of such failure, declare the charter or certificate of authority of such corporation forfeited: Provided, That whenever any corporation shall have inadvertently let its charter or certificate of authority be forfeited and canceled under the provisions of this act, without any intention to surrender its corporate privileges, the president and secretary, or the board of directors or trustees, of such corporation may within one year from the date of such forfeiture and cancellation file a written application, stating these facts, with the state charter board for reinstatement. Upon receipt of such application the state charter board shall immediately set aside said forfeiture and cancellation of said charter, and thereupon said charter shall stand as if all reports and fees required by law had been promptly made and paid and no forfeiture or cancellation thereof had: And provided further, That the corporate acts of such corporation between the date of such forfeiture and cancellation and the date of setting aside thereof are hereby legalized and their rights and equities preserved to them.” (17-701c.)
Defendants contend these sections relate only to nonprofit corporations. To understand the situation, it will be necessary to study the history of these sections. They were chapter 139 of the Laws of 1931. This chapter amended R. S. 17-710 and repealed the original section. R. S. 17-710 was originally section 10 of chapter 135 of the Laws of 1913. That chapter provided for corporations paying annual fees, and provided for the forfeiture of the charter of a corporation that failed to pay. Section 10 of that chapter is as follows:
“All educational, religious, scientific, charitable corporations and all insurance, building and loan associations or corporations and all corporations which are not organized or operated for pecuniary profit, which are not doing business for pay, are exempt from the provisions of this act: Provided, That no other corporations doing business in this state shall be exempt: And provided further, That building and loan associations in order to secure such exemptions must list for taxation all mortgages by them owned in excess of capital stock.”
It will be noted that the abov.e section provides that the duty of paying fees and making reports and the danger of having its charter forfeited did not apply to certain types of corporations.-
The plaintiff in this case does not belong to any of the classes covered by that section. It is a corporation for profit.
Section 10 of chapter 135 of the Laws of 1913 Was amended by chapter 136 of the same session laws so as to include banking corporations. As so amended, it was included in the Revised Statutes as R. S. 17-710 and was the law until the enactment of chapter 139 of the Laws of 1931, which amended and repealed it.
It will be noted that section 1 of that act provides that -all cor-' porations, whether organized under the laws of this state or not, organized or doing business for profit, shall make an annual report to the secretary of state containing certain information, and pay a fee of one dollar.
The third section, being R. S. 1931 Supp. 17-701b, provides for additional time in which the corporation may make its report.
The fourth section, being R. S. 1931 Supp. 17-701c, is the section upon which plaintiff relies. It provides that if any corporation fails to file the annual report or pay the fee as “herein provided” the state charter board may declare the charter forfeited. The section then contains the following provision:
“That whenever any corporation shall inadvertently let its charter or certificate of authority be forfeited and canceled under the provisions of this act, without any intention to surrender its corporate privileges, the president and secretary, or the board of directors or trustees, of such corporation may within one year from the date of such forfeiture and cancellation file a written application, stating these facts, with the state charter board for reinstatement. Upon receipt of such application the state charter board shall immediately set aside said forfeiture and cancellation of said charter, and thereupon said charter shall stand as if all reports and fees required by law had been promptly made and paid and no forfeiture or cancellation thereof had: And provided farther, That the corporate acts of such corporation between the date of such forfeiture and cancellation and the date of setting aside thereof are hereby legalized and their rights and equities preserved to them.”
This statement of the history of R. S. 1933 Supp. Í7~701a and 17-701c shows that the legislature gave consideration to what class of corporations should pay the fee based on capital stock and what class should pay an annual fee of one dollar. At any rate, there is no ground at all for a conclusion that the provisions of section 4 applied to any other class of corporations than those named in the first section of the act.
Plaintiff next argues that R. S. 17-223 confers on the charter board the power contended for here. That section is chapter 130 of the Laws of 1911. It was passed in a chapter by itself and by its own terms .applies to corporations which have permitted their charter to expire by lapse of time, and to no other. The charter of plaintiff did not expire by lapse of time, but was forfeited for nonpayment of fees. This conclusion is fortified by the fact that the two chapters immediately preceding chapter 130 of the Laws of 1911 deal with penalties to be collected for nonpayment of fees, and to cancellation of charters for nonpayment of fees,
Apparently plaintiff has construed R. S. 17-223 and R. S. 17-224 together. They deal with different situations. We have already considered R. S. 17-223.
R. S. 17-224 was section 1 of chapter 120 of the Laws of 1917. It provides as follows:
“That whenever any corporation, created under the laws of the state of Kansas and which has been continuously engaged in carrying on one or more of the purposes of its organization since the forfeiture and cancellation of its charter under chapter 129 of the Session Laws of 1911 of the state of Kansas, shall have inadvertently let its charter be so forfeited and canceled, but without any intention to surrender its corporate privileges and retire from business, such of said facts that are not shown by the records of the secretary of the state of Kansas or of the state charter board being established by resolution of its present board of directors, certified by its present secretary under the seal of said corporation, then and upon written application, accompanied by said certified resolution, made by the present president and secretary of said corporation to the said charter board, and upon payment by said corporation of all corporate fees owing the state of Kansas by said corporation, ascertained in such amounts as if duly paid by such corporation, and upon filing a report as now required by the laws of the state of Kansas by such corporation, such application, report and payment being made within six months, said charter board shall immediately set aside said forfeiture and cancellation of said charter and thereupon said charter shall stand as if all reports and payments required by the laws of the state of Kansas had been promptly and duly made and no forfeiture or cancellation thereof had: Provided, also, That the corporate acts of such corporation between the date of such forfeiture and cancellation and the date of such setting aside thereof, are hereby legalized and their rights and equities preserved to them.”
It will be seen that the section only applies to corporations whose charters were forfeited under the provisions of chapter 129 of the Laws of 1911. An examination of the history of that act is interesting. At the time the legislature met in 1911 the law provided that corporations should make annual reports to the secretary of state containing certain information and should pay a fee of one dollar. The statute gave the charter board power to forfeit the charter of any corporation that did not make the report and pay the fee. One who reads the session laws with the eye of a historian, as well as the eye of a lawyer, would conclude that the charter board had not been as zealous about requiring the reports as some members of the legislature deemed desirable, because the session of 1911 passed chapter 128, which provided for a penalty of five dollars for each day that a corporation’s report was delinquent and made it the duty of the attorney-general or county attorney to collect it. The same legislature passed chapter 129. It provided as follows:
“Within ninety days after the passage of this act the charters of all domestic corporations, for profit, which have failed during the three years next preceding to file their annual statements with the secretary of state, as required by law, are hereby declared forfeited, and the state charter board is directed to cancel said charters: Provided, That any corporation whose charter is declared forfeited and is canceled shall have the right within sixty days after the cancellation of its charter to bring an action in any court of competent jurisdiction to revive said charter, and upon payment of all delinquent fees and the costs of such action by the plaintiff the court may give judgment reviving such charter and reinstating such corporation. The plaintiff shall file with the secretary of state for the guidance of the charter board a certified copy of the judgment.” (Laws 1911, ch. 129, § 1.)
The effect of that chapter was to forfeit their charters at once. It will be noted the only way provided for a reinstatement of one of the forfeited charters was by an action in the district court.
The only way in which a charter forfeited by chapter 129 of the Laws of 1911 could be reinstated was by action in court until the enactment of chapter 120 of the Laws -of 1917. That chapter is R. S. 17-224. Just why the legislature did not give the charter board general power to reinstate the charter of a corporation that had been forfeited no one knows. The fact remains that the power to reinstate charters that had been forfeited for nonpayment of fees was confined to those whose charters had been forfeited under the provisions of chapter 129 of the Laws of 1911.
Plaintiff argues that since the charter board has been reinstating forfeited charters upon payment of back fees since 1911 that this should be construed as an interpretation of its power by an administrative body and entitled to careful consideration by the courts. Such an interpretation is entitled to careful consideration. In a case where the statute was ambiguous or where there was a question about the intention of the legislature, the operative interpretation might tip the scale in favor of holding that the board had the power claimed. We do not know of any case, however, where the operative interpretation has been the only ground upon which a board has been held to have a claimed power. Such would be the case here if we should hold in favor of plaintiff in. this case. There is no ambiguity or doubt in the statute.
The motion of defendants to quash the writ is therefore allowed, and the peremptory writ is denied. | [
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The opinion of the court was delivered by
Hutchison, J.:
The question here involved is the validity of a fire insurance policy containing the usual provision that it shall be void if the personal property insured shall be encumbered by a chattel mortgage or the fact of its being so encumbered be concealed from the insurance company, when no inquiry was made by the insurer as to encumbrances and no misrepresentations were made by the insured.
The plaintiff was a tenant owning an undivided two-thirds interest in 147 acres off growing wheat on July 7, 1931, and the remaining one-third interest therein belonged to the landowner. An agent of the defendant insurance company saw the landowner and tenant together and went with them to the wheat field, examined the crop, wrote and signed the application himself, and two days later when the premium was paid handed to plaintiff a policy covering the combined interests in the wheat crop of both parties. The policy covered a period of two months only, but the wheat was entirely destroyed by fire within that time, after it had been harvested and stored in a private granary. The company paid the landowner for his share of the loss, but refused to pay the tenant because it had learned after the fire that there were two chattel mortgages on his share of the crop at the time the policy was written and at the time of the fire.
The tenant commenced this action to recover his share of the loss, attaching to his petition a copy of the policy which provided that the policy would be void “if the subject of insurance be personal property and be or become encumbered by a chattel mortgage,” and further, that “this entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated therein.” The answer pleaded as a defense the provisions contained in the policy, as above stated, and also set out the names of two parties who held separate mortgages for substantial amounts on the tenant’s share of the wheat, which had been executed prior to the giving of the policy of insurance and existed as encumbrances thereon at the time of the fire. The reply admitted there were statements in the policy similar to those pleaded in the answer and that the two mortgages mentioned existed as stated in the answer, but denied all other allegations of the answer.
After the introduction of evidence by plaintiff the defendant demurred thereto, which was overruled, and the jury rendered a verdict for plaintiff for $510.59, and the court rendered judgment thereon after overruling defendant’s motion for a new trial.
The evidence of plaintiff was mainly to the effect that he had not been asked by the agent of defendant anything about mortgages or encumbrances upon the wheat.
Appellant insists that it was error for the trial court to overrule its demurrer to the plaintiff’s evidence and its motion for a new trial, urging that the case of Humble v. Insurance Co., 85 Kan. 140, 116 Pac. 472, on which the appellee strongly relies, should not be controlling in this case for the reason “that it is contrary to the clear weight of authority,” and for the further reason that in that case the existence of a mortgage was a disputed question of fact. In the Humble case it was held:
“Where a policy, containing a clause prohibiting encumbrances, is issued on an oral application and no inquiries are made as to mortgages or encumbrances on the property, and no representations in regard to the encumbrances are made, and the insured does not intentionally conceal the facts, and is not guilty of any misleading conduct, the existence of a mortgage on the property will not invalidate the policy nor prevent a recovery from the insurer.” (Syl. 115.)
The same case was back again after a new trial had been ordered, and the opinion is reported in 91 Kan., at page 307, 137 Pac. 980, adhering in general to the conclusions reached in the earlier case. In both cases the existence of a mortgage was a controverted matter, but in the opinion on a rehearing of the second review, reported in 92 Kan., at page 486, 141 Pac. 243, a majority of the court adhered to the opinion previously expressed on the theory that “the insured who is asked and who answers nothing respecting encumbrances on the property, and who pays his money in the belief that he is procuring insurance, should not be bound by the encumbrance clause.”
Appellee also cites other cases where the answers and information given by the insured were not correctly noted by the agent in the applications, but these cases are not strictly applicable here where no information was given by the insured about encumbrances and no questions were asked about the same by the agent, although the application signed by the agent stated there were no encumbrances on the property.
The case of Akers v. Farmers Alliance Ins. Co., 118 Kan. 241, 234 Pac. 956, was under very similar circumstances and conditions. It was an action on a fire insurance policy for the loss of grain subject to a chattel mortgage. No reference was made in the written application about encumbrances and nothing was said on this subject by the agent or the insured. The defendant was a mutual company and a copy of its by-laws was attached to the policy, providing that in the absence of an agreement indorsed on the policy it should be void if the personal property insured was encumbered by mortgage. • The policy was held to be void, and judgment was rendered for the defendant insurance company. Extended reference was made in the opinion in this case to the decision on this one point in the Humble case, and the concluding sentence on the subject is as follows:
“The decision is not controlling in the present case, but it may be noted that it is contrary to the clear weight of authority.” (p. 243.)
In 26 C. J. 184, after referring to the decision in the Humble case and other similar cases on this subject, it is said—
"... the current of authority asserts that the policy stands avoided if there is an encumbrance not disclosed and the policy contains an express condition or requirement of disclosure, although insured had no actual knowledge of the condition; and such condition is reasonable and valid.”
It was said in the opinion in Supica v. Metropolitan Life Ins. Co., 137 Kan. 204, 19 P. 2d 465, which was an action to collect the amount of a life insurance policy, where only a portion of the last semiannual premium had been paid when due a few months prior to the death, of the insured, contrary to the provisions of the policy requiring it to be fully paid, that— .
“There is no more reason why the courts should modify a plain and unambiguous insurance contract than that they should write a new contract for any other parties.” (p. 208.)
In 14 R. C. L. 1062 it is stated as a general proposition that—
“A condition that an insurance policy shall not be valid if the property is mortgaged does not contravene public policy, and where there exists such a warranty an encumbrance avoids the policy.”
In 28 A. L. R. 801 this subject is exhaustively treated pro and con with numerous citations leaning strongly toward the conclusion that the policy is void where it contains provisions making it void if the property is encumbered by chattel mortgage, and the insured knew of such encumbrance and failed to disclose such fact, regardless of whether any inquiry was made by the agent concerning such matter.
In 4 Couch Encyclopedia of Insurance Law, section 909, it is stated:
“In the absence of statutory prohibition a condition voiding the policy if the insured property be personalty, and shall be or become encumbered by a chattel mortgage, is reasonable and valid, or, as it has been held, conditions prohibiting encumbrances and liens upon insured personal property without the consent of the insurer, and declaring the policy void in case of a breach thereof, are not only legal and conformable to public policy, but also reasonable and proper. This follows from the fact that parties who are sui juris may make whatever insurance contracts they please, so long as no fraud or deception is'practiced.”
In Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87, where the iron-safe clause was involved in the action on the policy, it was said, iii the opinion, on page 582:
“As to all terms and conditions not made the subject of previous stipula tion the plaintiff had the right to assume, and was bound to know, that the policy would be in the usual form issued by the defendant.”
We must assume that the insured knew of this usual provision in the policy of insurance about encumbrances making the policy void, and at any rate he could have no justifiable excuse for not knowing of it after receiving the policy. If the insured knew of the existence of these mortgages on the wheat, his failure to so inform the agent, regardless of whether or not any inquiry was made by the agent, would amount to such a concealment as would under the provisions of the policy render it void. For these reasons there was error in overruling the defendant’s demurrer to the plaintiff’s evidence and its motion for a new trial.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an' action to foreclose a mortgage, the questions raised by the appeal relating to the amount of credits allowable to the mortgagor under the building and loan association statutes.
The petition alleged a loan by the plaintiff association to defendant Flossie Bitters, afterwards Flossie Bitters Fitzpatrick, of the sum of.$1,600, to evidence which she executed her.note dated April 22, 1925, and to secure which she executed her real-estate mortgage; that the loan; note and mortgage were all part of one transaction and were made in accordance with the by-laws of the association. ' Copies of the note, mortgage and by-laws were attached to the petition. That as further security, the mortgagor assigned a certificate of stock in plaintiff association to it in accordance with the by-laws of the association, a copy of the certificate being attached; that the mortgagor had made payments of interest and dues to and including July, 1932, and was in default of all subsequent interest and dues; that there was due plaintiff from the mortgagor the sum of $1,600 with interest at ten'per cent per annum from Aügust 1, 1932, less the withdrawal value of her stock, alleged to be $1,109.95, and that plaintiff was entitled to have the stock canceled and the withdrawal value applied on the indebtedness. Further allegations need Hot be noticed, further than that a payment of insurance premium was made by plaintiff association for the defendant on December 1, 1932, in the amount of $4.40. The prayer was for the several amounts due, with interest, less the withdrawal value of the stock, and for the foreclosure of the mortgage and sale of the mortgaged real estate and application of the proceeds.
The note was a promise, on the maturity of the stock pledged, to pay the association $1,600, being the amount advanced on $1,600 of the capital stock of the association represented by certificate No. 25519, for sixteen shares, together with interest at ten per cent per annum, the same to be due and payable on the twenty-fifth day of each month thereafter until the principal sum had been fully repaid according to the constitution and by-laws of the association. To secure the note the stock was pledged, and the maker agreed to pay monthly dues of $9.60 on the stock, and monthly installments of interest of $13.33, together with all fines chargeable upon arrears of such payments, until the stock should fully mature and be fully paid in and of the value of $100 per share according to the terms and provisions thereof and of the constitution and by-laws. Provision for default is made, and in event of foreclosure and sale of the mortgaged premises “said association shall cancel said stock and apply the withdrawal value of the same as payment on the said indebtedness.”
The mortgage was in proper form and made appropriate reference to the note, some of its provisions being repeated in substance.
The by-laws covered the field of operation of the association. Section 9 provided for a fine of ten cents a share'against each stockholder failing to pay his monthly dues by the twenty-fifth of the month, the total of fines not to exceed dividends. Section 10 provided for withdrawal of installment shares on giving notice, the shareholder to receive his dues and a percentage of dividends credited according to the time of withdrawal, e. g., “after seven years and eighty-four payments, seventy per cent,” and less in all cases all legally assessed fines, etc. Section 12 provided that dividends shall be apportioned on January 1 and July 1 of each year. Section 21 provided that the borrower shall pay in addition to his dues on shares pledged for a loan, interest at the rate of ten per cent in monthly installments by the twenty-fifth of the month.
The certificate of stock certified that Flossie Bitters was the owner of sixteen shares of class E installment stock of the value of $100 each, on which she agreed to pay sixty cents per share each month until maturity and at maturity the association agreed to pay her $1,600. It recited it was issued and accepted subject to the bylaws as printed thereon. While this certificate did not include all of the by-laws, it did include those to which specific attention is directed above.
The answer of Flossie Bitters Fitzpatrick admitted the execution of the note and mortgage and alleged payments of monthly installments up to and including July 21, 1932, and “that this defendant has paid to the plaintiff more than a sufficient amount to pay said note and mortgage in full, if the same had been properly credited upon said note and mortgage.” It was further alleged that she was owner of sixteen shares of association stock and the dividends thereon; that the corporation had earned money which should have been credited as dividends, and that it should be compelled to account; that she should have credit on her indebtedness and judgment for the overplus, if any.
The reply was a denial of the new matter.
The trial was on October 19,1933. Among other things, plaintiff’s evidence showed there had been no payments on the principal of the loan, but interest had been paid to and including July, 1932; that dues on the stock had been paid to the same time and amounted to $835.20; that dividends had been credited in the sum of $392.51, and upon cancellation the shareholder would be entitled to seventy per cent of the dividends under section 10 of the by-laws, or $274.75; that fines had been charged against the certificate from August, 1932, to August, 1933, inclusive, at the rate of $1.60 per month, amounting to $20.80, pursuant to section 9 of the by-laws; that the association had paid an insurance premium of $4.40 on December 1, 1932, and was entitled to ten per cent interest thereon. There was some testimony respecting dividends declared and that the instant certificate received the same credit as all others of like kind. The defendant offered no testimony in support of her allegations.
The court took the matter under advisement, and on February 17, 1934, made findings which may be summarized as follows:
Amount of loan.................................................. $1,600.00
Interest from August 25, 1932, to July 1, 1933, at 10 per cent.........146.63
Insurance and interest............................................ 4.70
$1,751.33
Giving defendant credit for cash value of shares on account of dues paid.................................... $835.20
Dividends thereon ....................................... 392.51
- 1,227.71
Balance ......................................................... $523.62
Interest from July 1, 1933, to February 17, 1934.................... 33.67
Total ...................................................... $557.29
The journal entry recites an order the plaintiff association cancel the stock certificate and credit the withdrawal value on defendant’s indebtedness,. and that it have judgment for $557.29, with interest from February 17, 1934, -at ten per cent per annum, the mortgage was foreclosed, sale provided for, together with disposition of proceeds. The plaintiff and defendant Flossie Fitzpatrick each filed motions for a new trial, both of which motions were denied. The plaintiff has appealed and Flossie Fitzpatrick has filed a cross-appeal. For convenience, the parties will be referred to as the association and the defendant.
It may be well to observe that the object of building and loan associations is the accumulation of capital in money derived from payments by its members in periodical payments or otherwise, as provided in its by-laws, the statute authorizing the issuance of full-paid, prepaid, deposit, installment and permanent shares (R. S. 17- 1006) and rural-credit shares (R. S. 17-1052). The accumulated moneys may be loaned to the shareholders. Although other methods are provided, the association may, by by-law, dispense with offering its money for bids and in lieu thereof loan to its members at a rate of interest to be fixed in the by-laws, and in an amount not in excess of the ultimate or par value of his shares (R. S. 17-1007). This last method was followed in the instant case. For every loan made, a note and mortgage shall be given which shall be nonnegotiable and nonassignable and a first lien on the real estate, with exceptions which need not be noted here, and shall be accompanied by a transfer and pledge of shares of stock of the borrowing member. (R. S. 17-1011.) In the event of default of payments of dues, interest, fines and other charges required by the by-laws for a period of six months, the association may foreclose its mortgage, in which event the defaulting borrower, in addition to the amount loaned, shall be charged with all dues, interest, premiums, fines, taxes and insurance due and in arrears, and shall have credit for the withdrawal value of his shares as provided where the shares are voluntarily withdrawn (R. S. 17-1012).
The provision for withdrawal is that the shareholder wishing to withdraw shall, subject to the provisions of the by-laws, have power to do so, and be entitled to receive the money actually withdrawable according to the by-laws and the provisions of the certificate. We need not notice provisions as to notice, limitations on the amount dependent on receipts, etc. It is further provided that no shareholder whose shares are pledged to secure a loan from the association shall be entitled to withdraw without first paying his loan. (R. S.' 19.33 Supp. 17-1016.) The usury laws of the state apply to the association and the total received as premiums, fines and interest shall not exceed ten per cent on the money actually borrowed (R. S. 17-1009).
Defendant insists that having paid interest at the rate of ten per cent in monthly installments, the payment of dues on her stock is an inducement to contract under R. S. 41-103, and that by reason thereof, she is entitled to monthly credits thereof on her loan; that the trial court, in not giving effect to such claimed credits, wrongly concluded as to the amount due. Such reasoning can only be followed by assuming (1) that the contract was not'within the terms of the building and loan statutes, or (2) that the usury statutes take precedence of the building and loan statutes, or (3) that the building and loan statutes must be so construed that payments of all items of interest, fines, premiums and dues on stock must not exceed ten per cent of the claimed balance remaining from time to time unpaid of the principal sum borrowed. Neither contention can be sustained. First, the note, mortgage, stock certificate and bylaws constitute the contract here, and so far as they do not contravene the statute, are enforceable according to their terms. Second, the usury statute must be read in connection with the building and loan statutes. The payment of dues is for the purpose of paying for stock which, when matured, will pay the loan; it is no inducement for the making of the loan as is denounced in R. S. 41-103. The dues being paid are allowed to accumulate and dividends are paid thereon, and when under the by-laws the shares mature the amount or value thereof is used to retire the loan. Third, the statute expressly limits the ten per cent to the payment of premiums, fines and interest. If it had been intended to include dues on stock, appropriate language could easily have been used.
The defendant further urges that we should construe the purchase of stock and the borrowing of money as one contract entered into solely to permit a loan to be made, and that the purchase of stock, with requirements for payments of dues thereon, is only a subterfuge to violate the usury laws, citing in support Fidelity Savings Assn. v. Shea, 6 Idaho 405, 55 Pac. 1022, which supports the contention. That case was commented on in Fidelity Savings Assn. v. Bank, 12 Wyo. 315, 75 Pac. 448, where it was said:
“The ease of Fidelity Savings Association v. Shea, decided in Idaho (55 Pac. 1022), is much relied on by counsel for defendant in error. It was held in that case that a similar contract was usurious; that conclusion was reached by not only adding the interest and premium together, for, as we understand the case, the sum so found would not have exceeded the rate authorized by the statutes of Idaho, but the collection of monthly payments on account of stock dues without reducing the interest from time to time was held objectionable, in opposition to the very great weight of authority on that subject; and the transaction was treated as though the borrower was not the owner of any shares in the association. As already shown, we view the transaction in a different light.
“The authorities are so numerous sustaining contracts of this character when not in violation of some positive usury statute that it would be useless to attempt an exhaustive citation of the cases. The following are cited as fairly representing the prevailing views upon some of the questions herein discussed: (citing cases.)” (p. 353.)
Without pursuing the subject further, it may be said that our statutes, as outlined above, make a distinction between the purchase-of shares, and the note and mortgage evidencing a loan. (See Prudential Bldg. & L. Assn. v. Greenlee, post p. 667, 43 P. 2d 217, this day decided.)
The association complains that the court erred in allowing defendant credit for the full amount of dividends apportioned to her-stock. It is undisputed that when defendant defaulted in failing to-pay her dues in August, 1932, she had previously made payment of eighty-seven installments. Under the by-laws, on withdrawal, she-was entitled to credit for seventy per cent o.f the dividends apportioned to her stock. No reason is made to appear why the by-law-is not proper, and under it and R. S. 1933 Supp. 17-1015 and 17-1016, she was not entitled to full credit for the dividends, but only to seventy per cent thereof.
The association also complains that it was not allowed to deduct, fines amounting to $20.80 from the value of the stock. R. S. 17-1009 provides that the total amount received for premiums, fines- and interest' shall not exceed ten per cent per annum. In view of' the fact the interest was paid or charged at the rate of ten per cent, there was no room to allow any fine.
And lastly, the. association complains because the court in rendering judgment computed amounts due as of the date of filing the petition, and not as of the date of rendering judgment. In this we think the court erred. Under R. S. 17-1012 provision is made that in ' event of six-months default the association may proceed, according.to law, to foreclose its mortgage, in which event the borrower is. charged with certain enumerated items and given credit for others. Until foreclosure was decreed, these various amounts could not be-determined, and the certificate of stock was not canceled until the ■ day judgment was rendered. The calculation of amounts chargeable to the defendant and of the amounts of credits allowable to her should have been made as of date the judgment was rendered,, for that was when the mortgage was foreclosed.
The record shows that defendant’s default started August 25, 1932. From what has been said, it appears the defendant should have been charged with the principal sum of $1,600 with interest thereon at ten per cent from August 25, 1932, to February 17, 1934, amounting to $236.45, and with insurance premium paid December - 1, 1932, in the sum of $4.40, with interest'to February 17, 1934, at. ten per cent, amounting to $0.54, or a grand total of $1,841.39, and. •should have been credited with dues paid of $835.20 plus seventy per cent of the dividends apportioned, totaling $392.51, or $274.75, making a total credit of $1,109.95, and leaving a balance due of $731.44, which should bear interest from February 17, 1934, at the rate of ten per cent per annum.
In so far as the judgment of the lower court fixing the amount due plaintiff association from the defendant is concerned, it is reversed, ■and the cause remanded with instructions to render judgment consistent herewith. In so far as foreclosure of the mortgage is con•cerned, the judgment is affirmed. | [
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The opinion.of the court was delivered by
Harvey, J.:
When this action was here on its merits (140 Kan. 20, 34 P. 2d 553) the principal controverted question was whether the trust company had purchased the note known as the Talbot note. That question and those immediately incident to it were then determined. While the record disclosed what had been done with the bonds the trust company held for Hamilton it was not argued in the briefs what judgment should be directed with respect to them in the event the judgment of the court below was reversed; hence, the court gave little consideration to that matter, and in fact followed the prayer of plaintiff’s petition that the specific bonds mentioned therein should be returned to plaintiff. A mandate to that effect was sent to the trial court. When that court came to enter the mandate and render judgment thereon it was advised that a judgment literally following the mandate could not be complied with and would be ineffectual for the reason that the specific bonds referred to had become due and paid to the trust company, or it had disposed of them and had received the proceeds thereof which it had mingled with its assets. The trial court, however, rendered a judgment on the mandate with at least the tacit understanding that either party might move for its modification and be heard upon such motion. The trust company did file such a motion, denominated a motion for a new trial upon the judgment rendered on the mandate. Pending a hearing on that motion this court has been asked to modify its mandate in view of the facts disclosed by the record, and not previously specifically called to its attention, that the bonds themselves could not be returned. This court set that motion for hearing and asked counsel to point out the facts from the record from which a more appropriate mandate might be issued, which request they have complied with.
It now is stated by counsel on both sides that in view of the fact the specific bonds cannot be returned, and that the proceeds of them have been received by the trust company, this court, in lieu of ordering judgment for a return of the bonds, should direct judgment to be entered for plaintiff against the trust company in a definite sum.
The only controversy now between the parties is how to arrive at the sum for which that judgment should be directed. They have directed our attention to the portions of the record which disclose that the bonds which Hamilton bought from the trust company were of the face value of $15,000, being $5,000 Fairfax board of education bonds, $4,000 Roff board of education bonds, and $6,000 Shawnee board of education bonds. Hamilton paid the trust company premiums and accrued interest on these bonds aggregating $532.03, so his actual investment in the bonds was $15,532.03. The Fairfax and Roff bonds bore interest at the rate of six per cent per annum, payable semiannually. The interest on those two issues due January 1 and July 1,1927, were collected by the trust company and remitted to Hamilton. On September 6, 1927, the trust company filed its amended and supplemental answer, in which it, for the first time, denied it had purchased the Talbot note and denied' plaintiff’s ownership of the bonds; so, as to these bond issues, we think they should be computed as drawing straight interest at the rate of six per cent per annum since July 1, 1927, in determining the amount of the money judgment which should be entered.
The Shawnee board of education bonds, of the face value of $6,000, bore interest at the rate of five per cent. This was a part of a large issue, perhaps $100,000, held by the trust company. The bonds were due May 1, 1927. By that time a question had arisen as to their validity. The trust company urged Hamilton to sue on those bonds in federal court, and because of its interest in other bonds of the same issue offered to have its attorneys prepare the action and conduct the litigation without expense to Hamilton. This was done, except that, perhaps, Hamilton employed an attorney to sit in or assist in the case. At any rate, the action was brought in Hamilton’s name on the $6,000 face value of bonds which the ■company had sold him, with the result that the bonds were held valid and a judgment for $6,150 obtained in the name of Hamilton. After the judgment of the trial court, from which the appeal in this action was taken, that judgment came into the hands of the trust company under circumstances which need not be detailed here, but as a part of the result of the judgment appealed from, and the trust company, on July 8, 1933, collected the full amount of the judgment, $6,150, but without interest since the date of the judgment. In determining the amount of the money judgment to be directed in this case it is our judgment that the trust company should be charged with this $6,150 as of the date it collected that money, with straight interest at six per cent per annum since that time. Perhaps this is more favorable than it should be, with respect to the Shawnee bonds, but plaintiff clearly is entitled to that much, and it is not clear he is entitled to more.
As previously determined in this court, on a motion for rehearing in this action (140 Kan. 282, 36 P. 2d 529), the trust company is entitled to a credit of $1,500 it paid Hamilton July 27, 1927, and $450, August 26, 1927. In determining the amount of the money judgment to be entered the trust company should be credited with those items and straight interest on them at the rate of six per cent per annum.
The computations, therefore, as above determined, are as follows, to January 15,1935: The trust company is charged with the amount of' the Fairfax and Roff board of education bonds, $9,000, with interest thereon at six per cent per annum since July 1, 1927, $4,072.50; also with the amount it collected, on the Shawnee board of education bonds, $6,150, with interest thereon at six per cent since the date of collection, July 8, 1933, $560.66; making a total charge of $19,783.16. The trust company is credited with the $1,500 it paid Hamilton, July 27, 1927, with six per cent interest thereon since that date, $672; also credited with $450 paid Hamilton, August 26, 1927, with interest at six per cent since that date, $199.42; making a total credit of $2,821.42. This leaves a balance due plaintiff from the trust company, as of the date of January 15, 1935, of $16,961.74.
In view of these conclusions it is now, at the same term of this court in which the former mandate was issued, ordered and adjudged that the former mandate of this court in this cause be and the same is hereby recalled, and the trial court is hereby directed to set aside its order spreading that mandate of record, and to set aside any judgment rendered thereon, and to dismiss any proceedings pending by reason thereof, and to enter judgment for plaintiff and against the defendant trust company for the sum of $16,961.74, as of the date of January 15, 1935, with interest on that sum at the rate of six per cent per annum from that date until the judgment is rendered, if it is not rendered on that date; also to provide in the judgment rendered that the amount of the judgment shall bear interest from the date of judgment until paid at the rate of six per cent per annum; and the trial court also shall render judgment in favor of plaintiff and against the said defendant for the cost of this action, including the costs in this court. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by E. McDermed against Arthur L. Ackley, Helen Ackley and Mary C. Ackley to compel specific performance of a contract to sell oil royalty. The Ackleys had conveyed to E. J. Reardon, who had conveyed to the Chaparral Oil Company, of Tulsa, Okla. Reardon and the oil company were joined as defendants. Judgment was rendered for McDermed. The court also rendered a judgment protecting interest of the oil company, derived from the Ackleys through Reardon. All defendants except Reardon appeal.
Mary C. Ackley, as life tenant, and her son, Arthur L. Ackley, as remainderman in fee, owned a quarter section of land in the vicinity of Hutchinson. Helen Ackley was Arthur’s wife. The landowners possessed fractional oil royalty arising from leases of the land to the extent of what were called for convenience eighty royalty acres. Mary C. Ackley was getting old, Arthur was a railroad section man, the land was mortgaged, the royalty was their only resource for taking care of the mortgage, and they very much desired to dispose of sixty royalty acres. McDermed, who resided in Hutchinson, was a friend of the Ackleys. For a long time he had been a faithful business adviser with respect to their oil interests, and he had rendered them valuable services in that regard.
On January 16, 1934, Arthur Ackley and his wife executed a written instrument giving McDermed a ninety-day option to purchase sixty of the eighty royalty acres for $2,400, or $40 per royalty acre. The grantors agreed to make deeds for any number of royalty acres called for, and to apply all moneys received from sales to discharge of the mortgage on the land, which was of record. Mary Ackley did not sign the option instrument, and it was not recorded. On February 6, 1934, all the Ackleys executed, acknowledged and delivered to McDermed six royalty deeds, blank as to grantee, each for a specified number of royalty acres, and all of them totaling sixty royalty acres. This was done to facilitate sales pursuant to the option.
When the option was granted the land lay in unproved territory. The nearest producing oil well was several miles away. A well had been drilled on the Adam Base farm, about two miles from the Ackley land, but the well was nonproductive. The Ackley royalty had been hawked about the oil and gas Rialto of Kansas, the city of Wichita, until it had no appeal. By getting control of it and by proper handling McDermed hoped to make it attractive and to dispose of it at the option price, plus a profit to himself. The term of the option was fixed at ninety days, to enable him to do this. After obtaining the option, and pursuant to promise he would do so, McDermed made several trips to Wichita in furtherance of advantageous disposition of the royalty.
Those interested in the Base well commenced to deepen it, and out of Wichita came persons to Ackley to see about purchase of royalty. When the option was granted Ackley promised he would refer all such persons to McDermed. Ackley testified he did this, and several persons were named who were referred to McDermed. One of them was a Mr. Oldfather. Oldfather was an independent operator who bought and sold leases and royalties. He saw Mc-Dermed, McDermed made him a price of $50 per royalty acre, and Oldfather declined to buy.
Oldfather was acquainted with Homa Wood. They had one or two deals together, and Wood testified Oldfather mentioned the Ackley royalty to Wood. Wood was a lawyer, resided in Wichita, was vice president of the Chaparral Oil Company, and represented his company in Kansas. The principal business of the company was purchase of oil royalties. On January 29, 1934, Wood went to Hutchinson, went to the courthouse, made a pencil abstract of the Ackley land, ascertained where Ackley lived, and went to see him. The McDermed option had not been filed for record.
Wood testified Ackley wanted to sell, made a price of $40 per royalty acre, and Wood wanted to buy; but Ackley said he had a friend with whom he advised concerning oil deals, Wood was a stranger, Ackley had previously encountered considerable trouble, and Ackley might want to consult his friend. It was apparent no deal could be made that day, but Wood said he would see Ackley the next day. The next day Wood could not go to Hutchinson, and he communicated with Ackley by telephone. Wood testified as follows:
“I told him it wasn’t possible for me to come to Hutchinson to-day to see him about this royalty, and I said, ‘I am calling you to advise you about it.’ I said, ‘Have you made any deal on it?’ He replied, ‘No.’ I said, ‘Is your royalty still for sale?’ He said, ‘Yes.’ I said, ‘What price?’ He said, ‘$40 an acre.’ ‘Well,’ I said, ‘I will try to be up to-morrow and we will make the deal.’ He said, ‘There is no use for you to come; you cannot deal with me.’ I was astonished, and asked him why I could not make a deal with him, and he replied that he did not care to deal with a man who demanded that certain things be done by him with his money, and I said, ‘You mean that mortgage?’ And he said, ‘Yes.’ ‘Well,’ I said, ‘Don’t you understand that a man putting good money into that royalty with a mortgage coming due next year would want it free and clear?’ He said, ‘My land is mortgaged, but my royalty isn’t mortgaged.’ I saw there was no use to waste further telephone cost with him, so I said, ‘Very .well, good day, Mr. Ackley,’ and I never saw him again about it.”
McDermed’s option provided for application of proceeds of sale of royalty to discharge of the mortgage. The testimony of Ackley, of Mrs. Ackley, of Mary C. Ackley and of McDermed, was all to the same effect, namely: that proceeds of sale were to be applied on the mortgage. There was no other thought in the mind of anybody. The sale to Reardon included application of proceeds of sale to payment of the mortgage, and the district court was authorized to reject Wood’s testimony concerning what prevented sale to Wood. Ackley was not called to corroborate Wood. Wood admitted that in his personal interview with Ackley, Ackley said he might want to consult a friend with whom he advised concerning oil deals. That friend was McDermed, who controlled the royalty and was pricing it at $50 per royalty acre. Ackley testified he referred all inquirers to McDermed. That included Wood, and Wood testified that in the telephone conversation Ackley told Wood that Wood could not deal with Ackley. Therefore the court was authorized to believe Wood’s testimony was invented to avoid admission of knowledge of Mc-Dermed’s unrecorded option.
In deepening the Base well a previously unknown oil-bearing sand was struck, the well became productive, and there was excitement in Wichita. The next day after the Base well came in Wood and Old-father went together from Wichita to the well, in Wood’s car. From the well they went to Hutchinson. At Hutchinson they separated. The discovery at the Base well was an outstanding discovery, and the prices of oil royalties in the vicinity were certain to go up. Wood went to see Base. Oldfather went to see McDermed.
Oldfather told McDermed he was representing a man who was in town with Oldfather. Oldfather could talk with the man and could let McDermed know if the man would accept a price McDermed would fix. At that time McDermed had just about completed arrangements to take the Ackley royalty himself, and he made a price to Oldfather of $300 per royalty acre, which was confessedly more than the royalty was worth. That evening Oldfather and Wood returned to Wichita together in Wood’s car. Wood gave the following remarkable testimony:
“Q. Did it occur to you at all for a moment that Mr. Ackley may not have sold his royalty, this same royalty you were working on, a month or so before? Did you think about that? A. No, I don’t think so.
“Q. You did not even think about that Ackley land? A. No, sir.
“Q. Mr. Oldfather did not tell you anything about what he had done that day? A. Not that I recall.”
The record shows that McDermed subpoenaed Oldfather and paid him mileage and witness fees for one day’s attendance. Pursuant to the subpoena, Oldfather appeared on the first day of the trial. The next morning he was gone.
It was perfectly plain that the only way to get hold of the Ackley royalty was to go around McDermed. This was accomplished through Reardon, also of Wichita. Reardon went to Hutchinson and saw Ackley. Reardon had tried to buy of McDermed before, but had not succeeded, and in this instance the obstacle to purchase from Ackley was the McDermed option. Various attorneys were consulted, and it must be said to the credit of the Hutchinson attorneys that not one of them joined in the scheme to circumvent' McDermed. Finally, on Thursday, March 15, or Friday, March 16, Reardon succeeded in obtaining Ackley’s agreement to sell sixty royalty acres to Reardon for’ $3,600, or $60 per royalty acre. On Friday afternoon Wood agreed to buy from Reardon the Ackley royalty for $60 per royalty acre and to pay Reardon $5 per royalty acre profit to Reardon. On the morning of Saturday, March 17, as soon as the bank opened, Wood gave his check to Reardon for $3,600, to be paid to the landowners, and Reardon executed his deed to Wood’s company, and delivered it to Wood, all at the Fourth National Bank in Wichita. However, the deal was to be closed at the Bisonte Hotel in Hutchinson at noon that day; Wood and Reardon proceeded to Hutchinson. Wood again went to the office of the register of deeds and checked the Ackley title. The deal was closed as contemplated at the hotel at noon, and Ackley’s deed to Reardon and Reardon’s deed to Wood’s company were promptly filed for record.
Wood testified Reardon was a stranger to Wood. Wood had never heard of Reardon until Reardon called Wood by telephone on Wednesday to find out if Wood would be interested in purchasing “this royalty.” It does not take a mind reader to know that Wood went to Hutchinson on Saturday and inspected the record to see if McDermed had filed his option for record.
Reardon was a defendant in the case, filed a false answer that he had no information of any kind relating to McDermed’s option, and prayed in his answer that McDermed take nothing by his petition. Reardon, although present at the trial, did not take the witness stand. It would have been fatuous for him to deny that an attorney at Hutchinson was called out of a picture show at night for consultation with reference to McDermed’s option as an obstacle to purchase by Reardon, and Reardon was not called to corroborate Wood.
McDermed promptly made tender of the option price to Ackley, and on March 19 commenced action to set aside the Ackley deed to Reardon and Reardon’s deed to the oil company, and to compel specific performance of the option contract. The Ackley royalty became of great value, and what would otherwise be small points are argued with great vigor. When the facts are known the law questions are simple, and the court will dispose of all but one of them briefly.
While Mary C. Ackley did not sign the option, she executed the royalty deeds of February 6, the purpose of which she understood. There were two considerations for the option contract, payment for services previously rendered and special promises made by Mc-Dermed when he took the option, which he fulfilled. The Chaparral Oil Company was a purchaser with notice of the McDermed option. The Chaparral Oil Company is not in position to question the equity of specific performance of the option contract, and if it were, specific performance was equitable.
The remaining law question relates to a matter of pleading. By their pleadings and at the trial the Ackleys joined with the oil company to defeat McDermed. The Ackleys continued in this attitude by post-decision motions and by taking an appeal to this court from the rulings from which the oil company appealed. Afterward the Ackleys commenced to see as in a glass, but not darkly. They deserted the oil company and took a separate appeal from the judgment in favor of the oil company and against them. In this court they abandoned what was in effect a joinder with the oil company in appeal from the judgment in favor of McDermed. As a matter of fact, they have entered into a contract with McDermed with respect to what they shall do, if the judgment in favor of the oil company and against them shall be affirmed.
It will be recalled the Ackleys had eighty royalty acres. They granted to McDermed an option to buy sixty unsegregated and unidentified royalty acres for $40 per acre. Then they deeded to Reardon sixty unsegregated and unidentified royalty acres for $60 per acre and received the money. McDermed’s $2,400 were paid into court. The Ackley deed to Reardon and the Reardon deed to the oil company were warranty deeds, and the Ackleys had royalty acres with which to make good sale of twenty royalty acres to Reardon, and by Reardon to the oil company, after giving Mc-Dermed sixty royalty acres. The court confirmed title in the oil company to twenty royalty acres and ordered the $2,400, paid by McDermed, to be held for use and benefit of the oil company. In their second appeal, the Ackleys say the judgment in favor of the oil company was void, not merely erroneous, but void for a single reason: The judgment was not within the issues.
McDermed’s petition prayed that his title to sixty royalty acres be quieted. The oil company’s answer pleaded the Ackley deed to Reardon, and attached a copy as exhibit A, pleaded the deed from Reardon to the oil company, and attached a copy as exhibit B, and alleged the oil company was the owner of an undivided three-eighths interest in all oil produced from the Ackley land, which was described. The prayer of the answer follows:
“Wherefore this defendant prays that the plaintiff take nothing by his petition and that this answering defendant be adjudged and decreed to be the owner of an undivided three-eighths (%) interest in and to all the oil, gas and other minerals in and under [description of land] for a period of fifteen (15) years from March 17, 1934, and so long thereafter as oil or gas may be produced from said land in paying quantities in accordance with the terms and provisions of exhibits A and B hereto attached, and that this answering defendant recover its costs herein, and for such other and further relief as to the court may seem just and equitable.”
The answer of the Ackleys expressly admitted execution of their deed to Reardon. The prayer of the oil company for relief did not stop with asking that McDermed take nothing, and did not ask for any decree that the oil company was the owner of the same sixty royalty acres on which McDermed had an option. Based on pleaded, facts, the prayer was for a decree that the oil company was the owner of sixty royalty acres. All parties were in a court of equity and were demanding equitable relief. Even the Ackleys did that. When the court reached formulation of a decree, the oil company was entitled to recover sixty royalty acres as against the Ackleys. The court could not grant full relief, and under well-understood equitable principles, it granted relief to the oil company as far as possible.
The Ackleys are quite mistaken in saying the relief granted was not within the issues made by the pleadings. The issue was unmistakably tendered by the oil company’s answer. The Ackleys were privileged to contest or not, as they chose. What happened was, the Ackleys were so intent on defeating McDermed they did not dispute what the oil company claimed. They cannot now mend their hold.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on an account for merchandise sold. It was brought in the city court and the defendants named were L. E. Smith and W. H. Hollis, Jr., partners as Smith & Hollis. By an amended bill of particulars Joseph Duncan was made a party defendant, and the action later was dismissed as to Smith & Hollis. There was a judgment for plaintiff, from which Duncan appealed to the district court. He died while the action was pending and it was revived in the name of his executor. The trial of this and two allied cases was by the court, which made findings of fact and conclusions of law and rendered judgment for plaintiff. The defendant has appealed. The principal question presented is whether there is any evidence to sustain the judgment of the trial court, on any theory.
There is no serious conflict in the evidence. The record discloses that on January 1, 1930, Joseph Duncan was the owner of a certain store building in Salina. He was also the owner of the stock of goods, furniture, fixtures and equipment belonging tó a mercantile business there being conducted, which he desired to sell to Smith & Hollis, and on that date they entered into a written contract which recited these facts. In that contract Duncan was referred to as the first party and Smith and Hollis as the second parties. Shortly stated, it provided that in consideration of the sum of $3,087.01, to be paid to the first party by second parties at the times and in the manner therein stated, with eight per cent interest on deferred payments, the first party “agrees to sell and deliver said stock of goods, furniture, fixtures and equipment to said second parties upon full payment therefor as hereinafter set forth.” The second parties agreed “to conduct the business ... as the agents of the said party of the first part, and out of the proceeds arising from said business to pay said first party”: First, $120 per month rent for the building; second, $100 per month to apply upon the purchase price, with interest. It further was agreed that second parties might take out of the proceeds of the business “for their services in conducting the same” not more than $75 per month; that they should keep accurate books showing the financial condition of the business, which books should be open to the inspection of the first party; that they should pay taxes upon the stock, and should keep it insured, with loss payable to the parties as their interest might appear. It further was agreed that until the payment had been fully made, as provided in the contract, “the title and the right to possession to said stock of goods, . . . and any and all other goods that may at any time be purchased and added to said stock of goods shall remain in the said party of the first part.” The contract contained this paragraph:
“It is further agreed by and between the parties hereto that any merchandise, furniture or equipment that may be purchased by the said second parties shall be purchased for cash only, and paid for at the time of purchase, and that the said second parties shall have no authority of any kind to purchase any goods upon credit except upon the written consent of said party of the first part.”
It further provided that if second parties should fail to make the payments provided therein, or if the first party deemed himself insecure, the first party had the right to take immediate possession of the stock of goods, furniture, fixtures and equipment and to sell the same as though they had been taken upon a chattel mortgage, and after deducting the expense of the sale and the amount due first party to pay any surplus to the second parties. It further was agreed that upon full payment and compliance with the contract by second parties the stock of goods, furniture, fixtures and equipment then belonging to the stock of merchandise should become the absolute property of the second parties.
Smith & Hollis took possession of the stock of merchandise under this contract with Duncan and conducted a retail mercantile business in the building for more than a year before this action was brought. In fact, they had conducted the same line of business in the same location for many years under the name of Smith &'Hollis Furniture Company, handling new and used furniture. Some months before making this contract with Duncan it appears they became financially involved, and through a credit association made an assignment for creditors, as a result of which the assignee sold the stock of merchandise. Duncan bought the stock at that sale. That is how he came to own it on January 1, 1930. Sometime in 1930, while Smith & Hollis were conducting the business of the store under their contract with Duncan, plaintiff’s traveling salesman called upon Smith & Hollis and took their order for a bill of merchandise to be purchased on account on customary terms as to discount and time of payment. This was sent to plaintiff’s headquarters at St. Louis, where the credit man O. K’d the order, and the goods were shipped. They were received by Smith & Hollis and placed in the stock of merchandise. This account was not paid, and this action was brought in January, 1931. Soon after this action was brought Joseph Duncan filed a replevin action in the district court against Smith & Hollis for the recovery of the possession of the stock of merchandise then on hand, alleging that he had a special ownership to the amount of $2,000 in such merchandise by reason of the contract hereinbefore set out. Duncan succeeded in getting possession of the merchandise by that replevin action, and thereafter advertised the goods and sold them as sales would be conducted under a chattel mortgage. Soon after the replevin action was brought plaintiff filed its amended bill of particulars in the city court making Duncan a party defendant.
Plaintiff’s right to recover from Duncan depends upon the construction to be given to the contract between him and Smith & Hollis.' Appellant characterizes the contract as “a combination between a conditional sale contract and a limited agency contract.” As the contract pertains to a sale it is one by which the owner agreed to sell in the event certain things were done in the future, as distinct from a contract evidencing a consummated sale. The agency features of the contract were quite broad. Smith & Hollis were “to conduct the business ... as agents of” Duncan. Clearly they were authorized to sell merchandise in the stock of goods and to buy additional merchandise — in other words, to conduct it as a going mercantile business concern. The only restrictions upon the authority of Smith & Hollis to purchase merchandise to add to the stock was that they would not purchase any goods upon credit; but even this could be done with Duncan’s written consent. This contract never was recorded, nor does it appear to have been made public in any other way. • Plaintiff knew nothing about this limitation, nor is there any indication that any of the firms from whom, Smith & Hollis purchased merchandise knew anything about it. It seems clear that Smith & Hollis were conducting this mercantile business in their own names, but in fact as agents for Duncan, who was their undisclosed principal. The trial court found, among other things, that under the terms of the agreement with Duncan of January 1, 1930, “Smith & Hollis, Jr., took charge of the stock of goods and the furniture and fixtures, and conducted the business of buying and selling goods and merchandise in the building, ... all the. time acting as the agents of the said Duncan, but holding themselves out as the owners of said business, the said Duncan all the time knowingly permitting them so to hold themselves out. While con-, ducting said business it became necessary, as the stock of goods was depleted, to purchase new goods, and in the operation of the business they purchased goods and merchandise from the plaintiff.”
This finding is sustained by the evidence, and we regard the contract properly interpreted as authorizing and intending that the business should be handled in that way.
The rule of law applicable to the situation is well stated in 21 R. C. L. 890, as follows:
“For most purposes the contract of an agent, who deals in his own name without disclosing that of his principal, is the contract of the principal. When discovered the principal may be held liable. . . . For example, where a broker or agent purchases goods, without disclosing his principal, the principal, when discovered, is nevertheless liable for the price.”
To the same effect, see 2 C. J. 840. The courts of various states many times have followed with approval what was said in Hubbard v. Tenbrook, 124 Pa. St. 291, 16 Atl. 817, where it was held:
“Where one is put forward to conduct a separate business in his own name, but with the property and as the agent of an undisclosed principal, the latter may not escape liability for goods sold to the agent in the course of the business, by a limitation upon the agent’s authority to purchase.” (Syl. ¶ 1.)
See cases collected in American Digest, Principal and Agent, § 145. Our own case of Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 529, is to the same effect. (See, also, Hawkins v. Windhorst, 87 Kan. 176, 123 Pac. 761.)
In Restatement, Agency, § 195, the rule is thus stated:
“An undisclosed principal who intrusts an agent with the management of his business is subject to liability to third persons with whom the agent enters into transactions usual in such businesses and on the principal’s account, although .contrary to the directions of the principal.”
See, also, sections 161, 194, and comments on each of them.
Apparently appellant concedes Smith & Hollis could do all they did do except to buy on credit without his consent. Under the rule as above stated Duncan would be liable even though the goods were purchased on credit without the written consent of Duncan. That is a common method for retail merchants to use in buying goods. Since plaintiff had no knowledge of the limitations of Smith & Hollis with respect to buying goods on credit, and conducted business with them in the manner in which such business ordinarily is conducted, they are not bound by such limitation of authority. The trial court correctly held Duncan to be the undisclosed principal of Smith & Hollis, his agents to conduct a retail mercantile business for him, and to be bound by their acts in purchasing from plaintiff merchandise on account, as such merchandise ordinarily is purchased by retail merchants.
Appellant relies largely on Wheeler v. McGuire, Scoggins & Co., 86 Ala. 398, 5 So. 190. That case did not involve the question of an undisclosed principal. Plaintiff knew it was selling goods on credit to an agent of the principal. The liability turned on the extent of the agency and the duty of plaintiff to inquire into the agent’s authority. The judgment of the trial court for plaintiff was reversed because of limited or restricted language used in some of the instructions. In discussing general principles of agency in the opinion some language is used in harmony with the cases herein-before cited. The case is not in point on the question here involved.
The trial court also held Duncan liable on the theory of ratification. The evidence tending to support that conclusion may be summarized as follows: The merchandise purchased from plaintiff consisted of fifteen trunks and nine suitcases. The aggregate invoice was $112.68. These goods reached the store in March, 1930, and became a part of the stock of merchandise. Some of it was sold in the regular course of retail trade and the proceeds used as provided by the contract of January 1, 1930. Such articles as had not been sold were in the stock of merchandise taken by Duncan in the replevin action, the proceeds of which he received. In that action he claimed a special ownership, by virtue of his contract, in the merchandise and fixtures, to the amount of $2,000, and alleged that a $100 payment due him had not been made. From this it reasonably may be inferred that he had been paid more than $1,000 of the sum to be paid him by the contract of January 1,1930, in addition to rents. Before he brought the replevin action Duncan knew Smith & Hollis had bought merchandise on credit. He did not repudiate those purchases, but advised Smith & Hollis to write the firms from which they had purchased goods on credit and ask for an extension of time in which to pay. He wrote to one such firm asking it to grant the extension requested. We think these facts justified the finding of the court that Duncan ratified the purchases on credit.
When the amended bill of particulars was filed making Duncan a party defendant and setting up a copy of his contract with Smith & Hollis, he moved to strike it from the files as being a departure. (R. S. 60-759.) He complains that the motion was not sustained. The point is well taken. The action against Duncan was really a new action. In cases such as before us, where merchandise was sold to an agent doing business in his own name, and the seller did not know he was dealing with an agent, the principal being undisclosed, when the seller learns that his transaction really was with an agent of an undisclosed principal, the books (2 C. J. 843) lay down the rule that he should elect whether to hold .the agent or the principal, which election should' be made within a reasonable time. The idea seems to be that the liability of the agent and of the principal is not joint, and that the seller may pursue either, but not both. What the plaintiff did by filing the amended bill of particulars making Duncan a party defendant and seeking to recover from him as the undisclosed principal, and dismissing the action as to Smith & Hollis before a trial, was to elect to pursue the principal. In effect it was a new action against him, and perhaps should have been brought as a separate action. However, we do not regard the error of the court in ruling upon this matter as being of any importance in view of the fact that the case was tried out both in the city court and in the district court as against the principal only. The only effect it would have would be to charge the plaintiff with costs in the city court up to the time the amended bill of particulars was filed. It does not appear that the court was requested to do that. Since the matter has been tried out, to reverse the case on the ground here contended would not be in the furtherance of justice. (R. S. 60-3317.)
Appellant complains of some of the other rulings of the court and of some of the findings. It is not necessary to treat these in detail. The controlling features of the case have been considered. The other matters complained of are comparatively unimportant.
We find no material error in the case. The judgment of the court below is affirmed. | [
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Meyer, J.:
This is an appeal from Kerwin Brown’s (appellant’s) conviction of the crimes of burglary (K.S.A. 21-3715), of misdemeanor theft (K.S.A. 21-3701), and of misdemeanor criminal damage to property (K.S.A. 21-3720).
On June 23, 1978, the Townsman Restaurant in Parsons, Kansas, was burglarized; a cigarette vending machine had been pried open and the coins removed from it. Appellant was seen at approximately 2:20 a.m. riding away from the area of the Townsman Restaurant on a motorcycle at a high rate of speed; he was not wearing a shirt.
At approximately 3:00 a.m. on that same date, appellant went to the American Legion in Parsons and knocked at the front door. The manager recognized the appellant but did not answer the door. She heard a car drive to the rear of the building and heard a pounding noise on the back wall which sounded to her like brick breaking. After the manager heard the sound at the rear of the building, she called the police and appellant was arrested while driving away from the American Legion. A pick and some other tools were discovered in his car and $12.90 in change was found on his person. A shirt was later found in some bushes near the restaurant and testimony established that it was similar to the one appellant had been seen wearing. The Kansas Bureau of Investigation laboratory examined the shirt and established that hair found on it was similar to hair of the appellant.
Appellant was charged with aggravated burglary, attempted burglary, possession of burglary tools, misdemeanor theft and misdemeanor criminal damage to property. The aggravated burglary charge was reduced to burglary before trial.
At trial, the State was allowed to introduce evidence of a prior conviction of appellant for burglary and theft of a grocery store, over appellant’s objection. Appellant’s first issue is his claim that the trial court erred in admitting evidence of his prior conviction.
The trial court conducted a hearing out of the presence of the jury and determined that appellant’s prior conviction for burglary and theft of a grocery store in Parsons was admissible as relevant to the issue of identity on the burglary charge and intent with regard to the attempted burglary and possession of burglary tools charges.
Under K.S.A. 60-455, it is incumbent upon the trial court to first decide whether the former conviction is relevant to prove one of the specific factors of proof listed in the statute. In addition, the court must determine that the particular factor or factors sought to be proved are substantially in issue. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976). Lastly, the court must determine if the evidence of other crimes has probative value which outweighs its prejudicial effect upon the jury. See State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974); State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977).
One of the grounds for the prior conviction to be admitted was that it was relevant to prove identity. Where the prior conviction is used to prove identity, the evidence should disclose sufficient facts and circumstances to raise 'a reasonable inference that the defendant committed both offenses. It is not sufficient simply to show that the offenses were violations of the same or a similar statute. State v. Donnelson, 219 Kan. 772, 775-76, 549 P.2d 964 (1976).
The similarities between the present crime and the prior conviction of appellant are: (1) both the crime charged and the prior conviction were for burglary, and both were burglaries of business establishments as opposed to residential burglaries; (2) the time of the crimes was similar, that is, in the very late-night or early-morning hours; (3) cigarettes were the focal point in appellant’s earlier conviction and in the present case a focal point was a cigarette machine; (4) in both the prior conviction and the instant case entry was made by forcing open a door; and (5) both incidents were committed in Parsons, Kansas.
In considering the above similarities, we note that in State v. Marquez, 222 Kan. 441, 448, 565 P.2d 245 (1977), the court states:
“Here the similarity in the two burglaries in the city of Liberal and the jewelry store burglary can be established in four respects. First, all three burglaries took place during the late-evening, early-morning hours. Second, all three burglaries were directed toward a business establishment as opposed to a residence. Third, in all three burglaries entry was forced by the use of a long metal tool. Finally, in all cases the burglary was directed at a business establishment after all personnel had vacated the building.”
It is noted the similarities of the Marquez case and the instant case are striking. Other cases finding a similarity under factual situations like the instant case are State v. Jackson, 222 Kan. 424, 565 P.2d 278 (1977), and State v. Howard, 220 Kan. 117, 551 P.2d 835 (1976). We conclude the prior conviction was relevant to prove identity.
Next we consider whether the prior conviction was relevant to prove intent and whether intent was substantially in issue. In the instant case an intent to burglarize an establishment is not obvious from the chipping away at the outside of the American Legion building, nor is such an intent obvious from the possession of the tools taken from defendant. In State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974), the court said:
“Where an act in itself may be susceptible of two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character.”
We conclude that the prior conviction was relevant to show intent and that intent was substantially in issue with regard to the attempted burglary charge and the possession of burglary tools charge.
Appellant also argues that the previous conviction of the appellant herein was too remote and that it occurred some eight years before the instant charges were brought. However, we note in State v. Carter, 220 Kan. 16, Syl. ¶ 3, 551 P.2d 821 (1976), the court held:
“Generally the remoteness in time of a prior conviction, if otherwise admissible, affects the weight of the prior conviction rather than its admissibility.”
Appellant raises another issue with regard to the admission of the prior conviction. He stated that only the journal entry was presented at the trial, and therefore, the jury did not have sufficient facts before it to make the determination that the prior conviction was similar to the case at bar. The record discloses, however, that counsel examined a patrolman who had investigated the prior crime. The patrolman testified as to the time, place, manner of breaking in, and the fact that the cigarettes were taken rather than money. The jury thus had before it the similarities between the crimes. Furthermore, in State v. Faulkner, 220 Kan. at 157, the court states:
“[W]hile, ordinarily, evidence of prior convictions of similar crimes is relevant to prove a specific intent without a showing of the specific facts and circumstances involved in the prior offense, this general rule must be tempered with the requirement of ‘similarity.’ The similarity of offenses is a key factor in relevancy. [Citations omitted.]” (Emphasis in original.)
We find no error as to appellant’s claim in this regard.
Finally, we find in State v. Cross, 216 Kan. 511, 520, 532 P.2d 1357 (1975):
“ ‘The determination of relevancy is a matter left to the judicial discretion of the trial judge. However, exercise of that discretion must not be abused. It must be based upon some knowledge of the facts, circumstances or nature of the prior offense.’ ” (Citing from State v. O'Neal, 204 Kan. 226, 231, 461 P.2d 801 [1969].) (Emphasis added.)
Appellant contends the trial judge abused his discretion in finding that the probative value of the conviction outweighed its prejudicial effect. As was said in LaRue v. LaRue, 216 Kan. 242, 249-50, 531 P.2d 84 (1975):
“One seeking to establish an abuse of discretion assumes a heavy burden, for ‘If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.’ ” (Citing from Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 [1973].)
We find no abuse of discretion herein.
Appellant’s other claim of error is that the trial court erred in requiring the exercise of peremptory challenges to be made in chambers instead of in the presence of the jury.
In the instant case, when it came time to exercise the peremptory challenges, the record discloses the following:
“THE COURT: All right. I’m just wondering do we need to go back in the courtroom and pass the jury for cause and then recess for the peremptory challenges?
“MR. TUCKER: It’s on the record. I’ve passed them for cause. I just passed them for cause. I don’t see any problem with going ahead. Your Honor, on the other hand, I think maybe I would like to go back in there. At least I would, like to see them sitting there one more time before we strike because it’s very difficult for me and the defendant to strike out of 24 if we don’t have a pretty good look at them ‘cause it’s hard to remember just from a spot on a page. In face, I prefer to conduct that with the jury seated.
“THE COURT: I know you do.
“MR. TUCKER: By just passing a sheet, and that’s the way I’ve done it in many courts.
“THE COURT: I know you do, but I don’t, and I decline to exercise peremptory challenges in the courtroom. I think they should be done in chambers. But we’ll go back in the courtroom and you can pass the jury for cause in the courtroom, then.
“MR. TUCKER: Maybe we can get a look at them that way.
“THE COURT: I take it that’s what you want to do.
“MR. TUCKER: Just to get another look at them, try to see where they’re at and get them fixed in my mind because it’s very difficult.
“THE COURT: Peremptory challenges, though, will be done in chambers. Okay.
“MR. TUCKER: Fine.”
From the briefs of the parties herein, it is apparent that neither of them could find a case discussing the problem raised by this issue. While our research has disclosed no Kansas case on this matter, we have found a North Carolina case where the court stated:
“ ‘. . . Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him. . . .’ ” State v. Hayes, 291 N.C. 293, 297, 230 S.E.2d 146 (1976), citing from State v. Perry, 277 N.C. 174, 177, 176 S.E.2d 729 (1970).
Also, an early United States case states as follows:
“Any system for the empanelling of a jury that [prevents] or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned. And, therefore, he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice.” Pointer v. United States, 151 U.S. 396, 408-9, 38 L.Ed. 208, 14 S.Ct. 410 (1894).
While the Kansas criminal code is no help to us in this matter in that it fails to advise where, or upon what conditions, peremptory challenges are to be exercised, the code of civil procedure at K.S.A. 60-247(c) states in part:
“Peremptory challenges shall be exercised in a manner which will not communicate to the challenged prospective juror the identity of the challenging party or attorney.”
We assume that it is this language which causes some district judges to choose to have peremptory challenges exercised in chambers.
We conclude that the manner and place of exercising peremptory challenges is within the sound discretion of the trial judge. In the rural areas of the state, it often occurs that the jurors are known both to the parties and to counsel. Under such circumstances, we can find no problem with conducting the peremptory challenges in chambers. However, in metropolitan areas, it is entirely possible that the attorneys would be inconvenienced to a considerable degree if they were unable to view the jury at the same time as they exercised each peremptory challenge.
The problem is not an “open court” problem as that matter was determined in Morris v. State, 2 Kan. App. 2d 34, Syl. ¶ 3, 573 P.2d 1130 (1978), where it was stated:
“If, in the judge’s office or ‘chambers’, the court is in session as to the matter on trial, any judicial action is taken ‘in court’ and not ‘in chambers’.”
Rather the problem is one of practicality, and can be summarized as follows: Is it reasonably necessary, or would it be beneficial to assuring the defendant a fair trial, that he and his attorney be able to actually view the entire panel as he exercises each of his peremptory challenges and as same are exercised by the State? This must be decided on a case-by-case basis. We do believe that in the event a defendant specifically requests that he be permitted to exercise his peremptory challenges at a place where he can view the jurors as he does so, his request should be granted.
In the instant case, however, we conclude that appellant effectively waived his rights to complain about the manner of the jury selection when he stated that his primary desire was to get a look at the panel again before exercising peremptory challenges. Appellant responded in a way to indicate his acquiescence in the decision to hold such challenges in chambers and he did not preserve his objection for appeal. We conclude that by this the appellant effectively waived his right to complain about peremptory challenges being exercised in chambers.
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Rees, J.:
The will of Italo Giacomini, deceased, dated June 14, 1976, was admitted to probate by order entered in the Leavenworth County District Court on June 28, 1978. This appeal is brought by Josephine Hauber from that order as demonstrated by the certified copy of the order filed in this court with her notice of appeal pursuant to Rule 2.04, 224 Kan. xxxiv.
Although her written objections to admission of the will to probate set forth multiple assertions including, among others, denial of testamentary capacity, the sole contentions relied upon on appeal are three in number, each of which challenges the status of Robert E. Davis as a witness to the will.
Decedent left two sisters and a brother who would take by intestate succession: Julia Strout, Josephine Hauber and Hugo Giacomini. The will includes five specific monetary bequests in the amount of $1.00 each; one of these is to Julia and one is to Hugo. In addition there are specific bequests of $2,000 to Josephine and $5,000 to the Immaculata High School of Leavenworth. The will quarters the residue of decedent’s estate and leaves it as follows: one-fourth to St. John Hospital, Tulsa, Oklahoma; one-fourth to St. John Hospital, Leavenworth; one-fourth to Immaculate Conception Church and St. Joseph of the Valley Church, both of Leavenworth, in equal shares; and one-fourth to Leavenworth County Handicapped Association and St. Mary’s College, Xavier, in equal shares.
The nature and extent of decedent’s estate is not disclosed by the record before us; it appears its approximate value may be in excess of $100,000. Although depositions were taken, the parties have included none in the record on appeal for our review.
Robert E. Davis, a Leavenworth attorney, was the legal adviser of the decedent and the scrivener of the will. He is named in the will to serve as executor without bond, and within his specifically enumerated powers is the power to employ his own law firm to whom compensation may be paid without court approval. He is one of the two subscribing witnesses to the will. Although not shown by the record, counsel for the estate does not dispute appellant’s factual assertion that Davis was a member of the board of trustees of St. John Hospital, Leavenworth, and served on the fund-raising advisory council of St. Mary’s College, both testamentary beneficiaries. It is not disputed that the decedent had no “independent advice” with reference to the will (see K.S.A. 59-605).
Appellant bottoms her argument before us on three specific statutes: K.S.A. 59-604, 59-605 and 59-606. The relevant language of these statutes is as follows:
“A beneficial devise or bequest made in a will to a subscribing witness thereto shall be void, unless there are two other competent subscribing witnesses who are not beneficiaries thereunder. But if such witness would have been entitled to any share of the testator’s estate in the absence of a will, then so much of such share as will not exceed the value of the devise or bequest shall pass to the witness from the part of the estate included in the void devise or bequest.” K.S.A. 59-604.
“If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto.” K.S.A. 59-605.
“Every will . . . shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by express direction of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same.” K.S.A. 59-606.
To ascertain whether the will in this case is invalid by reason of K.S.A. 59-605, the question is whether Davis is the principal beneficiary in the will. This question is readily answered. Davis is not a beneficiary in the will. This being so, there is no need to concern ourselves with arguments concerning whether he is the principal beneficiary. See In re Estate of Barclay, 215 Kan. 129, 134-135, 523 P.2d 376 (1974); Stunkel v. Stahlhut, 128 Kan. 383, 389, 277 Pac. 1023 (1929); Kelty v. Burgess, 84 Kan. 678, 681-682, 115 Pac. 583 (1911).
Why is Davis not a testamentary beneficiary? He has no pecuniary interest in the distribution of the estate unlike an heir, devisee, legatee, or creditor. The fact Davis was nominated as executor and had the right and duty to petition for probate of the will, and would be compensated when appointed, gave him no such pecuniary interest; his interest in the estate after appointment as executor, aside from his duty to faithfully serve as such fiduciary, was for reasonable compensation only in return for services rendered. In re Estate of Harper, 202 Kan. 150, 160-161, 446 P.2d 738 (1968). Cf. In re Estate of Porter, 164 Kan. 92, 95-96, 187 P.2d 520 (1947) [G.S. 1945 Supp. 59-605 not applicable to trustee]; Gilpin v. Burch, 145 Kan. 224, 232-233, 65 P.2d 308 (1937) [trustee not ordinarily considered beneficiary under G.S. 1935,22-214]. That Davis was empowered to employ his law firm to represent him in his capacity as executor and compensate his firm without court approval gives rise to no pecuniary interest in the estate distribution. In the exercise of his fiduciary duty as executor, it would be incumbent upon him to compensate his firm only in reasonable amount for services rendered. We are satisfied his faithful exercise of his fiduciary duty is subject to judicial review and approval in the event of challenge regardless of the will language. See K.S.A. 59-1104; K.S.A. 59-1502.
To say that because Davis was a member of the board of trustees of St. John Hospital and served on the fund-raising advisory council of St. Mary’s College (we are shown nothing more) requires the conclusion that Davis has a pecuniary interest in the estate distribution, is an argument necessitating speculation of the most extreme order. The truth of the matter is that appellant makes no suggestion of pecuniary interest; she suggests only that the benefit to Davis is the intangible benefit of good repute. See In re Estate of Williams, 158 Kan. 734, 737-741, 150 P.2d 336 (1944) [husband of testamentary beneficiary not disqualified as attesting witness to will]; Kennett v. Kidd, 87 Kan. 652, 656, 125 Pac. 36 (1912), aff’d on rehearing 89 Kan. 4, 130 Pac. 691 (1913) [membership in lodge does not render witness incompetent where lodge is testamentary beneficiary]; 53 A.L.R. 211; 79 Am. Jur. 2d, Wills § 297, n. 7.
The reasoning for our determination of appellant’s contention that the will is rendered invalid upon application of K.S.A. 59-605 also disposes of the contention that K.S.A. 59-604 is a meritorious basis for appellant’s challenge of the admission of the will to probate. Aside from other good and sufficient reasons negating application of K.S.A. 59-604 to render the will ineligible for probate, the bottom line is that since Davis is not a beneficiary in or under the will, K.S.A. 59-604 simply does not come into play.
The third and last argument made by Hauber is that the will was not attested and subscribed by at least two competent witnesses and it therefore does not comply with K.S.A. 59-606. Appellant’s argument continues as before, that is, Davis was rendered incompetent by reason of his status as a testamentary beneficiary. We say again Davis is not a beneficiary in or under the will. It is not necessary that we undertake a dissertation on the meaning of “competent witnesses” as that term is used in the cited statute.
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The opinion of the court was delivered by
Hutchison, J.:
The only question involved in this appeal is whether the homestead exemption privilege can extend to and embrace two parcels of land cornering on each other.
The defendant owned all of the southeast quarter of section 36 except the southeast 40 thereof, being 120 acres, which went to the center of the section. His -residence was on this 120-acre tract. He later purchased the south half of the northwest quarter of the same section, which also cornered in the center of the section. He farmed the entire 200 acres himself. About thirty years ago the defendant obtained oral permission from the owner of the northeast quarter of the section to put in a 16-foot gate in the fence between them at this center corner, that he might go across the extreme corner of the northeast quarter from the 120-acre tract to the 80-acre tract cornering in the center of the section. This privilege was never reduced to writing, but has never been interrupted or de nied, although the northeast quarter has changed owners since that privilege was first granted.
The plaintiff bank, after obtaining a personal judgment against the defendant, levied execution upon this 80-acre tract in the northwest quarter of the section and sold it at sheriff’s sale. Defendant served notice before the sale of his claim of the east 40 thereof as part of his homestead entitled to be exempt from execution. After the sale the bank moved for confirmation and defendant moved to set aside the sale as to the east 40 — the 40 acres touching the center corner. After hearing evidence on the subject the trial court confirmed the sale as to the west 40 and set aside the sale as to the east 40, sustaining the claim of the owner that it was a part of the defendant’s homestead. From this ruling the bank appeals.
Appellant urges two points of error in holding this 40-acre tract to be a part of the homestead: First, that two parcels of land that corner on each other cannot be included in the same homestead under the homestead exemption statutes of this state; and, second, that the oral privilege granted by the owner of the northeast quarter to put in a 16-foot gate and drive across the corner of his land to get from one parcel to the other will not so connect the two tracts and make them one as contemplated in the homestead exemption law.
The following is the language of the homestead exemption statute:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law. . . .” (R. S. 60-3501.)
The verbiage is identical with that in the constitution - (art. 15, §9). Another section referring to homesteads, which took, effect the same day as the exemption law above quoted, viz., October 31, 1868, is R. S. 22-103, concerning decedent’s estates, which is as follows:
“If the intestate at the time of his death owned a greater number of acres of land adjoining his residence than is allowed for a homestead in the preceding section, the widow may select said homestead.”
In this last section the word “adjoining” is used, which is not in the other sections.
The first point raised has been completely settled in this state for many years. In the case of Linn County Bank v. Hopkins, 47 Kan. 580, 28 Pac. 606, it was said in the syllabus:
“Under the homestead exemption laws of this state, the homestead must consist of one body of land. A person residing upon one 40-acre tract of land and owning a second upon which he does not reside, and which only corners with the first, cannot hold the second 40 exempt as a homestead.”
In the opinion emphasis is placed upon the requirement that the homestead must be “occupied as a residence of the family,” and that it is impossible to occupy two tracts of land that are not contiguous, touching or adjoining. Reference is made in the opinion to the decision in the case of Randal v. Elder, 12 Kan. 257, where it was held that “a homestead, under the homestead exemption laws, must consist of only one tract or body of land.” (Syl. ¶ 1.) In that case the homestead claimant had his house on one lot in town and his barn on another, separated by an alley, and had permission to fence in the alley and use both lots and the alley together. The court held the title to the alley was in the county and it made an absolute separation between his two lots, and his exemption rights were limited to the lot on which he resided. We observe the distinction between the separation made by the alley in town and that by a road or highway in the country where the title to the land used for highway belongs to the adjoining landowners. See Griswold v. Huffaker, 48 Kan. 374, 29 Pac. 693.
“A debtor who owns and occupies 240 acres of land lying in a body,- from 'whatever source obtained or by whatever title or tenure it is held, is entitled to select 160 acres of the same as his homestead from any of the subdivisions thereof which are contiguous and will include the one upon which he resides.” (Ard v. Pratt, 61 Kan. 775, syl. ¶ 2, 60 Pac. 1048. See, also, Peak v. Bank, 58 Kan. 485, 49 Pac. 613.)
The same general principle was approved in the opinion in a recent case, State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714, where a construction was given to the term “piece of land” in connection with the validity of an ordinance attempting to extend the city limits. In most cases in other states where two separate tracts are permitted to constitute one homestead there is not always as positive a requirement as to its being occupied as a residence, and in some states the limit is prescribed by a maximum value; in others it is sufficient if the separate parcel be used in connection with the resident property. (29 C. J. 830.)
Does the oral privilege of the use of a sixteen-foot gate and driveway across the corner of the neighbor’s land change the situation? The thought is that if it is required that the lands be contiguous, touching and adjacent, then this arrangement with the owner of the northeast quarter will accomplish that purpose and meet that requirement by an actual touching of sixteen feet. It will not be necessary for us to decide what might be the result if the defendant had purchased the wedge-shaped tract in the corner sixteen feet wide and had procured a valid conveyance thereof. All that we have here is an oral permission to use this passageway. It could have been revoked at any time and can now be revoked any day the present owner so desires. It is not a title of any kind; it is not even a lease. It is doubtless included in the homestead of the neighbor, and probably has been so regarded all these thirty years. It may possibly be mortgaged or it might be taken on execution against the real owner. It is at most a license and not capable of forming the connecting link between two otherwise disconnected tracts.
“An easement for a private way is an interest in lands, and cannot be created by a parol grant.” (Insurance Co. v. Haskett, 64 Kan. 93, syl. ¶ 1, 67 Pac. 446.)
Neither does the long-continued use give title by prescription, because its use was by permission and it lacks the element of adverse possession and use necessary to give title by prescription.
“To obtain an easement for a private way by prescription, the use of such private way must be substantially such a use as, if applied to land, would give title by adverse occupancy. It must have been continuous, exclusive to the extent the nature of the use will permit, and adverse. A use under a mere license will not ripen into an easement by prescription.” (Insurance Co. v. Haskett, supra, syl. ¶ 2.)
Appellee makes no claim of having paid anything for this license or privilege, and for that reason he has no such right to this privilege as will serve the purposes and requirements of this case. As far as substantial rights are concerned the legal principle is the same whether the privilege granted was as a neighborly act of kindness or for a fraudulent purpose.
“To impress land with a homestead character some real interest or ownership must exist, and a-mere gratuitous grantee of one who conveys to defraud his creditors does not acquire any real interest or ownership.” (Kline v. Cowan, 84 Kan. 772, syl. ¶ 2, 115 Pac. 587.)
Another test to which this license or privilege must be subjected before it reaches the dignity of ownership sufficient to make a substantial connecting link is the exclusiveness of the privilege. There is nothing in the record to show that the owner was in any way ex-cluded from the use of it. See Smyre v. Kiowa County, 89 Kan. 664, 132 Pac. 209.
“A license is defined as a personal, revocable and unassignable privilege-conferred either by writing or parol to do one or more acts on land without possessing any interest therein. It is a distinguishing characteristic of a license-that it gives no interest in the land and that it may rest in parol.” (17 R. C. L. 564.)
We conclude that this mere verbal, gratuitous, revocable and unenforceable license or privilege is not such a title as to make it-capable of being contiguous to real property or affording the legal" contact necessary between two otherwise ' disconnected tracts for homestead purposes:
The judgment is reversed and the cause is remanded with instruct tions to confirm the sale of the southeast quarter of the northwest-quarter of the section. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is from a judgment of $450 recovered by the plaintiff as commission for the sale of real estate belonging to the defendant, and the errors assigned concern the introduction of the evidence, the giving of instructions and a question of procedure. The issues raised by the pleadings were that of agency, listing of property for sale, and authority of plaintiff under a city ordinance to act as agent and collect commissions.
After the demurrer to plaintiff’s evidence had been overruled the deposition of the defendant was read in evidence, and our attention is called to the excluding of an answer, which presents a serious question. After answering several preliminary questions as to his age, residence, vocation, and sale of the property to Doctor Krall for $13,000, he was asked: “Who represented you in 'the sale of this property?’’ The record then shows, "Objected to,” “Objection sustained,” but does not show the ground of the objection. The answer in the deposition, which was excluded by the ruling and not read to the jury, was as follows: “There wasn’t anybody representing me. Mr. Goebel took care of what I had done.” The evidence later shows that Mr. Goebel was an officer of the bank where the defendant did business and where this transaction was closed.
The appellee justifies this ruling on the ground that the question calls for a conclusion on the ultimate fact which the court and jury were trying. We think the question calls for a statement of fact as to whether the plaintiff or some one else was representing the owner. The plaintiff had already testified in effect that he represented the defendant owner in the sale of the property, and surely it was pertinent and proper for the owner to affirm or deny it. The answer is a positive denial of his being represented by the plaintiff in the sale of the property, with the addition that Mr. Goebel took care of what was done. The record does not show that the defendant was permitted to answer other questions of the same or similar import, and the exclusion of the answer to this question effectually deprived the defendant of the privilege and right of supporting his verified answer on the question of agency and refuting the testimony of the plaintiff that he, the plaintiff, was negotiating this sale for the defendant. The question of agency was the main issue in the case, and the exclusion of the answer to this question is reversible error.
The question asked was not in violation of the general i*ule that witnesses must testify only as to facts instead of conclusions of law.
“In receiving the testimony of the alleged agent to prove or disprove the fact of agency, the general rule that a witness must testify to facts and not to conclusions is applicable, and hence it is not competent for the agent to give his opinion or state his conclusion as to the fact of agency; but he may state the facts and circumstances concerning the various transactions between himself and the alleged principal, leaving the court and the jury to determine, under the facts disclosed, whether or not he was such agent.” (2 C. J. 935.)
The same rule, of course, applies to the principal as to the agent, and whether or not the plaintiff or anyone else represented the defendant in this transaction was absolutely a question of fact. “Represent” means “to stand in the place of; perform the duties, speak and act with authority in behalf of.” (Webster’s New Int. DiCt.) These are facts, not conclusions.
“Lowry’s agency, not being evidenced by writing, was provable by his testimony regarding the facts of his appointment and authority, but not by his declarations or conduct.” (Key v. Thomas Lyons Co., 109 Kan. 281, syl., 198 Pac. 928.)
When, in the consideration of the errors assigned, it becomes evident, as in this case, that the judgment must be reversed and the cause remanded for a new trial, the court so'metimes continues with a discussion of the other law points raised and with which the court and attorneys will be concerned in the retrial of the case, but in this case there are very unusual circumstances which make the further consideration of the remaining errors alleged of doubtful propriety. The court files, including the instructions given, the motion for new trial, and the journal entry of judgment, are lost and cannot be found. The instructions were attempted to be supplied in part by the court stenographer from old papers, with some admitted inaccuracies. A serious matter of procedure is discussed at length and with great earnestness on both sides, but without any record whatever except the affidavits of the attorneys. For these very unusual reasons we think no good purpose can be served by a further discussion of these debatable questions, resting to some extent upon debatable foundation.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order overruling a demurrer to the petition in an action for damages for personal injuries. So far as is necessary to be considered here, the petition alleges:
“That on or about the 26th day of March, 1927, on or about 8:30 p. m. of said day, it being after night and dark, he was riding as a guest in a Buick automobile owned and driven by the defendant Vick Haney; that said defendant Vick Haney was driving said automobile out of the city of Harvey-ville, Kan., towards the city of Topeka, Kan.; that said Vick Haney while driving said automobile in a careless and negligent manner and not keeping a proper lookout, when he approached the intersection of said township road, county highway and the A. T. & S. F. Ry. Co. crossing which intersects on said A. T. & S. F. Ry. Co. crossing about one-fourth mile in a northwesterly direction from Harveyville, Kan., that said Vick Haney saw or by reasonable diligence could have seen said intersections on said highway crossing on the railroad right of way approach, and could with the exercise of reasonable diligence have stopped his automobile in time to have prevented any injury to this plaintiff and could have prevented the accident and from running said automobile into said ditch and hole on said railroad right of way, yet notwithstanding the defendant, Vick Haney, did not stop his automobile, nor did he slacken the speed thereof, but ran said automobile in a careless and negligent manner as hereinbefore stated until said automobile slipped off the side of said A. T. & S. F. Ry. Co.’s narrow approach to said tracks, on said railroad right of way, and turned over upon this plaintiff, pinning him under the same.”
The petition further alleges that the railway company was negligent in that it failed to construct, keep and maintain a sufficient and safe crossing over the railway track; “that the said crossing and approach was not twenty-four (24) feet wide and was more than the required six per cent grade, as required by Statutes of 1923 (R. S. 66-227), and not on the same grade for thirty (30) feet on each side of the center of the railroad track”; that the railway company had received no permission from the board of county commissioners not to comply with this statute at this crossing; that the railway company maintained a deep hole, or ditch, approximately five or six feet deep near the approach on its right of way without guard rails, fence, or warning; “that the said automobile owned and driven by said Vick Haney while being driven in a careless and negligent manner, and on account of the negligence of the defendant the A. T. & S. F. Ry. Co., a corporation, in failing to keep and maintain a safe and proper crossing as hereinbefore set out, turned over and rolled down the approach to said railroad crossing . . . into said hole or ditch . . . injuring the plaintiff. . . .”
Plaintiff made both the driver of the automobile, Vick Haney, and the railway company parties defendant. The railway company demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff and against the railway company. This demurrer was overruled, and the railway company has appealed. The sole question before us is whether the petition states a cause of action in favor of the plaintiff and against the railway company.
We are not concerned on this appeal with the issues between plaintiff and the defendant Vick Haney. His answer is no part of the record on this appeal. Appellee should not have brought it here by a counter abstract, and appellant’s motion to strike the counter abstract from the files is sustained.
Turning now to the petition to see if it states a cause of action against the railway company, it will be rioted that the petition does not state to what extent or degree the crossing was not constructed as required by the statute. For all that is alleged in the petition the crossing might have been almost twenty-four feet wide and but very little more than six per cent grade on the approach and on the same grade with the track for almost thirty feet on each side of the center. In short, there is no fact stated in the petition from which it necessarily follows that the crossing was inherently dangerous, or in fact unsafe. On the other hand, it is, at least inferentially, alleged that the crossing was in such condition that one could readily drive over it with safety, for it is specifically alleged that the driver, Vick Haney, “could have prevented the accident and from running said automobile into said ditch or hole on the said railroad right of way” if he had used due care. From this it necessarily follows that whatever the shortcomings of the railway company were with respect to the manner in which the crossing had been constructed, they were not of such a character as would have prevented the driver of the automobile from passing over the crossing safely.
We pass by the thought that perhaps the statute (R. S. 66-227) was not designed to protect a guest from the negligence of his host, as our decision must be for appellant on other grounds. We may observe, however, that while a breach of statutory duty is a form of negligence (Roman v. St. Louis-S. F. Rly. Co., 120 Kan. 585, 245 Pac. 115), such negligence is actionable only when the injury complained of is one the statute was designed to prevent. (Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Shelden v. Wichita Railroad and Light Co., 125 Kan. 476, 264 Pac. 732.)
It is a fundamental rule in actions for tort that negligence which does not result in injury forms no basis for an action for damages. (Comm’rs of Pottawatomie Co. v. O’Sullivan, 17 Kan. 58, 60; Railway Co. v. Fowler, 61 Kan. 320, 59 Pac. 648; Gibson v. Packing Box Co., 85 Kan. 346, 116 Pac. 502; McGrew v. Investment Co., 106 Kan. 348, 187 Pac. 887.) Here it is clear from the allegations of the petition that the failure of the railway company to comply in full with the statute in constructing and maintaining the crossing and approaches thereto was not the thing which resulted in injury to plaintiff.
It is clear, also, from the petition that the failure of the railway company to fully comply with the statute in constructing and main taining the crossing was not the proximate cause of the injury. The-legal principle involved is' much like that presented in Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024, where it was held:
“Before a violation of statutory specifications touching the maintenance of a railway crossing over a public highway can form a basis for the railway company’s liability in damages for the death of a person killed at such crossing, it must be made to appear that the defective character of the crossing was the proximate cause of the accident.”
And in the opinion it was said:
“. . . to fasten liability upon the railway company it was not enough to show that the railway company had failed to comply with the statute touching the character of crossing maintained by it on this highway. It was necessary to show that defendant’s failure and neglect to construct and maintain this crossing in accordance with the statutory standard was the proximate cause of the accident which brought about the death of W. A. Yenne. (Williams v. Electric Railroad Co., 102 Kan. 268, and citations, 170 Pac. 397; Carson v. Railway Co., 103 Kan. 138, 172 Pac. 1000; Note to Shatto v. Erie R. Co., 59 C. C. A. 5, 10, 19.)” (p. 706.)
Here it is clear from the allegations of the petition that plaintiff would have sustained no injury had it not been for the negligence of the driver of the automobile. Hence, that negligence was the proximate cause of the injury. (See Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885.) While the question of proximate cause is ordinarily one for the jury (Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320; Corley v. Railway Co., 95 Kan. 124, 147 Pac. 842), when the facts are undisputed,- or are alleged in such a way as not to be open to question, as they are in the petition in this case, the question is one of law for the court. (Gas Co. v. Dabney, 79 Kan. 820, 102 Pac. 488; Hartman v. Railway Co., 94 Kan. 184, 146 Pac. 335. See, also, Green, Rationale of Proximate Cause, p. 66 et seq.) It is true that a negligent condition may or may not be a proximate cause of an injury, depending upon varying circumstances, illustrated in part at least by Lambel v. City of Florence, 115 Kan. 111, 222 Pac. 64, and McRae, Adm’r, v. Railroad Co., 116 Kan. 99, 225 Pac. 1032. But here the facts alleged make it clear that the negligent condition of the crossing was not the proximate cause of plaintiff’s injury.
Appellee relies strongly on the case of Bringle v. Gale Township, 127 Kan. 115, 272 Pac. 126. The case, however, is not in point. There the driver of the car was not made a party defendant, and it was specifically alleged in the petition that the driver of the automobile was using due care, and facts were stated in the petition as to how the driver handled the car which tended to support that view. Here just the opposite set of facts are alleged, namely, that the driver was negligent, and that the injury to plaintiff would not have occurred had he used due care.
The judgment of the court below is reversed with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Harvey, J.:
Sebastian Rausch was found guilty on two counts of the violation of the intoxicating liquor laws. He has appealed, and contends that the evidence is insufficient to support the verdict.
The evidence disclosed that defendant lived upon and conducted a farm; that the officers went to his place for the purpose of making a search. No one was at home. 'At the barn, a short distance from the house, were found forty-five 52-gallon barrels, several of which contained mash in process of fermentation, then having an alcoholic content of five per cent. Ten or fifteen of the barrels had just been emptied. There were a lot of empty bottles, corks, jugs, thermometers for testing liquor, funnels, and a frame on burners, and a number of empty five-gallon kegs. The bottles had contained whisky. A number of broken bottles were just outside of the barn. There was a gasoline pump to pump water, and a well drilled in the barn. Just outside of the barn there were some empty kegs and a new barrel that had contained liquor, with a big hole cut in it. On the ground near the barrel was a wet spot, and when a match was touched to this it burned. The coil for distilling was not found. With the exception of the coil there was a complete outfit for the manufacture of intoxicating liquors, which had been, in part at least, wrecked and dismantled just before the officers reached the place.
Defendant testified that he was in possession and control of the premises, but denied that he personally had anything to do with this liquor manufacturing outfit; that a week or so previous to the raid he had met a man in a neighboring town who wanted permission to install the outfit in his barn. The man was a stranger, said it would be safe to make mash and liquor there, and offered defendant $50 a week for the privilege of doing so, which privilege he granted on those terms.
Perhaps the jury did not believe the last part of defendant’s story. Certainly they were not compelled to do so. But it is really not material, for, under his own evidence, given full credence, he aided and assisted in the unlawful business (R. S. 21-2137), and could be prosecuted as a principal (R. S. 62-1016).
There is no merit in the appeal, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages sustained by plaintiff in a collision between his motor cycle and defendant’s automobile under circumstances which raised an issue of negligence on the part of defendant and one of plaintiff’s contributory negligence.
The jury resolved both issues against the defendant, and he appeals, contending that the evidence was insufficient to support the judgment. What the evidence did show was that Fern street in Wichita runs north and south and is crossed at right angles by Maple street, which runs east and west. As plaintiff came from the north on Fern street towards its intersection with Maple street, and turned into Maple street and headed west, he was overtaken by defendant’s automobile, which came from the east on Maple street. The two machines came together, ups'etting the plaintiff, breaking his leg and causing other injuries. The testimony for plaintiff tended to show that his motor cycle rounded the corner from Fern street into Maple street slowly, at six or eight miles an hour, and that defendant— according to his own estimate of his speed — was driving his automobile at eighteen or nineteen miles an hour when the two machines came together. A witness who saw the accident testified:
“The car was about 25 feet back when the motor cycle was going around the corner, and hadn’t straightened up yet [when] the-car came and hit the motor cycle.”
The defendant himself testified:
“At the time of the accident I was driving west on Maple street; ... as I came to Fern street, I think I had passed the middle of the center section, something struck me. At the time I did not know what it was. I did not know whether I had struck something or it had struck me. . . . The -first I knew of the accident was when I felt the contact.”
The plaintiff testified:
“Something hit me after I had been around the corner a little ways, and the next thing I knew I was being dragged. My head was against the right front wheel, and kept bumping up and down, and my body was at an angle dragged underneath there. . . . When the automobile stopped I was under the front end of the car. My head was still right next to the wheel. The motor cycle was under the back wheels. ... I saw Mr. Martin after the collision. I was pulling myself out from underneath the car and he came around and says: ‘Hello, Buddy; where did you come from?’ ”
Such testimony, with the inferences which were fairly deducible therefrom, was sufficient to take the case to the jury on the question of the actionable negligence alleged by plaintiff. This court has not overlooked those features of the evidence which tended, in part, to support the defense of contributory negligence, but that matter was exclusively and conclusively for the jury’s determination. The record presents nothing which would permit the verdict and judg- - ment to be disturbed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J:
In a petition for rehearing it is said the case is controlled by the decisions in the cases of Allen v. Douglass, 29 Kan. 412; Wright v. Bacheller, 16 Kan. 259, and Venable v. Dutch, 37 Kan. 515, 15 Pac. 520. The principle announced by those decisions is in effect that an answer in ejectment used as the basis for affirma tive relief quieting the defendant’s title must state a cause of action with the same completeness and particularity as a petition to quiet title. Of course the principle is sound as a general principle, but conditions may make the principle of no consequence in a given case. This court did its best to demonstrate that the principle was not involved in the present case. The court does not feel that anything can be added to the original opinion making the matter plainer, but the points may be recapitulated.
The answer was not attacked in the district court until after judgment. The answer was then amended. The statute conferred on the district court power to amend if there was anything amendable on file. The answer was sufficient to challenge judicial attention and action, and so was amendable. The amendment was not questioned in the district court. Therefore the judgment rested on a perfectly good answer, and the form and contents of the original answer were no longer of any consequence.
The petition for rehearing undertakes to raise a question in this court which is not involved in the appeal. The appeal was from a decision of the district court in a case in which the plaintiffs appeared generally, and which the district court was authorized to determine. Plaintiffs’ reasons for wanting to dismiss were of no interest to the district court. It was trying an action to quiet title. The question presented by the appeal was whether the judgment of the district court quieting title was erroneous. The function of this court ended with the decision of that question, and the decision is adhered to. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of an attempt to rob as defined in the extortion and blackmail statute, and appeals.
The statute reads as follows:
“Every person who shall knowingly send or deliver . . . any letter or writing, with or without a name subscribed thereto . . . threatening therein . . . to do any injury to the person or property of anyone, with a view or intent to extort or gain any money or property of any description, belonging to another, shall on conviction be adjudged guilty of an attempt to rob . . .” (R. S. 21-532.)
The prosecution was based on a letter addressed to Columbo Massa, a merchant of Corona, Kan. The letter was dated July 8, 1928, was postmarked Joplin, Mo., July 9, and was received by Massa by mail at Corona on July 10. The letter threatened harm to Massa and his family unless he placed $10,000 at the northeast pier of the Cherry creek bridge at nine o’clock July 12. Massa prepared a package containing old blank checks and $40 in $5 bills, and at about eight o’clock in the evening of July 12 deposited the package at the designated place. The package was so deposited that it could not be seen from the road and was covered with grass and weeds. The bridge extends east and west. At about four o’clock the next morning defendant and three companions ap proached the bridge from the east. Arriving at the east end of the bridge, they, scattered out. A little later one of the men struck the railing of the bridge three times with some kind of a metal article, whereupon two of the men walked over to the northeast pier. An officer in hiding called out, “What are you fellows doing up there?” Defendant and his companions ran west across the bridge and were subsequently captured. The package had been taken from its place of concealment and had been dropped on the floor of the bridge at a point about twenty-five feet west of the pier, and about three or four feet out in the roadway.
The defendant disclosed a stratigraphical condition which has not been touched on by scientists in the reports of the various geological surveys of the state which have been made. Those reports define the limits of the various geological formations from the Pre-Cambrian crystalline floor of the state to the Post-Tertiary deposits, and have greatly aided in the discovery of oil. The operation and effect of physical agencies, such as those of the glacial epoch, are fully described, but the geological effect of social agencies, such as our bone-dry law and national prohibition, have been entirely neglected. Defendant’s. expert witnesses — he did not take the stand himself — disclosed that portions of the region in which Corona is situated contain pools or pockets of intoxicating liquor, whether on the syncline or anticline was not shown. Those reservoirs may be discovered by prodding the strata, in the nighttime, with iron rods. The defendant, those who were later with him at the bridge, an automobile driver for the party, and two other men in another automobile, drove some twenty-five miles from defendant’s home, equipped to investigate this interesting geologic formation. By mere coincidence they chose the night the officers hid themselves at the Cherry creek bridge. About daybreak, after defendant and his companions had spent most of the night in fruitless exploration of the formations of the township, they just happened to come down to the bridge to- find their driver. Not understanding the scientific character of the expedition,' the concealed officers called to defendant and his fellow-investigators in harsh tones, chased them, shot at them, and rudely took them into custody. The county attorney went so far as to prosecute defendant criminally as having had something to do with the letter and package. The jury, not being composed of trained scientists, failed to grasp the significance of defendant’s effort to develop the natural re sources of the state, and he was convicted and sentenced to the penitentiary.
The foregoing presents about all there is to the appeal. Some evidence which defendant regarded as important was rejected, but it was not produced when the motion for new trial was heard.
Defendant’s daughter was subpoenaed as a witness for the state. She attended the trial the first day. The next day, when she was called to testify, it satisfactorily appeared that she was in Missouri, and her testimony given at defendant’s preliminary examination was properly read to the jury.
The court refused to give a requested instruction that defendant must have done some overt act. The court correctly instructed the jury with reference to commission of the overt acts of sending and delivering the letter, and correctly instructed the jury it was not' necessary defendant should have personally written or sent or delivered the letter if he conspired with others or another to do so.
The court correctly instructed the jury that the postal service was an agency of the sender to carry and deliver the letter, and that the proper place of prosecution was Cherokee county.
An assignment of error relating to order of proof is fully covered by the opinion in the case of State v. Shaw, 108 Kan. 781, 196 Pac. 1100.
The verdict was well supported by the evidence, and the motion for a new trial was properly denied.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on behalf of a six-year-old girl who was injured on a public street in Kansas City, Mo., by being knocked down by an automobile driven by an employee of the defendant.
Plaintiff’s petition alleged negligence in various particulars. Defendant’s answer contained a general denial, and alleged contributing negligence on the part of the child’s mother in permitting so young a child as plaintiff to be on the public street at the time and place without care, control or attention.
Jury trial; special findings and general verdict for $5,000 in favor of plaintiff; judgment accordingly.
Defendant contends that various errors inhere in the judgment, among which we note the following:
It developed at the trial that plaintiff was the daughter of a Mexican named Castro and that she herself had attended school bearing the name of Chona Castro. Plaintiff’s father and mother had separated and the latter went by the name of Maria Garcia and had gotten herself appointed guardian and curator for the plaintiff in a Missouri court, and had gNen .the child her own-patronymic, Garcia, whereby, as defendant contends, it was completely misled and prevented from making any investigation of the facts of the case previous to the trial. However, defendant did not ask for a continuance when this incident developed. Moreover, there was no real dispute about the child being knocked down and her leg broken by a driver of defendant’s automobile at the intersection of Twenty-fourth and Holly streets, in Kansas City, Mo. Both parties called Jesse J. Lambert, the driver, and he gave his version of the accident and testified that he called a-doctor for the child and notified the police. An official of the defendant company also appeared on the scene of the accident before the child was taken to a hospital, and if he had been .so disposed or concerned he could have kept in touch with the doctor, and would not have lost trace of the injured child — whatever name she might have.
Another incident developed at the trial was the fact that one Jones, a lawyer in plaintiff’s employment, accompanied the child to the offices of three doctors who were appointed by the court- to examine her physical condition. He told the doctors that they were expected to examine the child’s leg. The record reads:
“I am a lawyer. I am connected with McCanles and Kennard. I was down to these doctors when they examined this girl, practically there all the time. I supposed I was supposed to. I took them down there.
“Here an objection was made for the reason that it is misconduct of counsel for them to do that. A motion was made to dismiss the jury on account of misconduct of counsel.
“The Court: I don’t see what this has got to do with the jury.
[Counsel for Defendant] : “It has got lots to do with it.
“The Court: Well, of course, he probably should not have been there present at the time of the examination. If that is all that occurred, I don’t see that it cuts very much figure.
“Q. Well, you stayed there during the entire time of the examination? A. Yes, sir.
“Q. And you told them what to examine? A. Showed them what there was to be done. All they wanted and pictures of the leg taken. I was there while they were taking the X-ray picture.
[Counsel foe Defendant] : “I ask your honor to appoint another commission to examine this child.
“The Court: Well, I don’t think I want to do that. I don’t think it Teally affects the- commission at all. This commission of doctors won’t be affected that way — by that.
“Q. And you directed them to examine the girl? A. I asked them — they asked what was to be done, and I told them about the leg.
“Q. Is that all you told them? A. I told them that she had a pain in her' body and her head, but they didn’t examine that at all.
[Counsel for Defendant] : “I ask to have the commission discharged and another examination made of this girl out of the hearing and direction of plaintiff’s counsel.
“The Court: It will be denied at this time. Of course, if it is shown that that had any effect upon the commission, we can proceed later.”
In this connection defendant calls attention to plaintiff’s petition, which alleged that she sustained all sorts of injuries because of the negligence of defendant’s driver:
“That because of all of said negligence plaintiff was struck by said automobile, and was injured as follows:
“She received a concussion and contusion of her brain and of her spinal cord; bruises, cuts and lacerations on her head, ears, face, neck, shoulders, arms, sides, body, hips, legs, knees and feet; a compound comminuted fracture of her right leg in and near the knee, breaking the bursse in plaintiff’s right knee joint; fracturing plaintiff’s skull, greatly wrenching, twisting and misplacing the bones of plaintiff’s spine, causing soreness, inflammation, abscesses, adhesions and growths in plaintiff’s back and light knee; greatly shocking, injuring and impairing her nerves and central nervous system, so that as a direct result thereof her vital organs, including her brain, lungs, heart, intestines, stomach, liver, kidneys and ductless glands, fail to properly perform their natural functions, and are slow and sluggish in their movements; causing a slowness in the growth of plaintiff’s skull, so that the growth and development of her brain is checked, causing mental disturbances, aberration and incoherence of her brain activity; causing plaintiff’s respiratory, digestive and assimilative processes to be greatly interfered with so that the growth of plaintiff’s body is checked, causing plaintiff to suffer and will ever after cause her to suffer great physical pain and mental anguish.”
Defendant argues that because of these sweeping and all-inclusive allegations of injury defendant had no reason to concern itself more .about the injury to plaintiff’s leg than to the multifarious other but apparently fictitious injuries alleged in the petition, and that it had a right to have a comprehensive examination made of the child, .and defendant alleges that Jones’ statement to the doctors tended to mislead them and to induce them to limit their investigation to the extent of the injury to plaintiff’s leg, and that if Jones had not meddled with the investigation the doctors would have discovered that the child was undernourished, tubercular and afflicted with the rickets, and that the affliction which caused her right leg to be slightly crooked and shorter than her other leg was merely the result of a “green stick” fracture and her subnormal physical condition.
Touching this incident, it would be rather drastic to hold that the statement of Jones to the doctors prevented them from giving the plaintiff a thorough physical examination. Whether the youngster’s subnormal condition, if such was the fact, was insufficiently brought out, and whether that should have constrained the granting of a new trial, will be considered below with the other matters urged in that behalf.
Error is assigned on alleged misconduct of plaintiff’s counsel in his argument to the jury touching the fact that defendant’s driver had called the police. He argued thus:
“Why did he call the police?
“It was a guilty heart or he would not call them.
[Counsel fob Defendant] : “Objected to for the reason that the law of Missouri requires persons driving to remain at the scene of an accident.
[The Court] : “Counsel for plaintiff has a right to comment on that and draw any inference that he wishes to.”
This sort of argument by plaintiff’s counsel cannot be commended — if it did not amount to downright pettifogging; but neither it nor the court’s ruling thereon rose to the gravity of reversible error.
It is also contended with considerable plausibility that the verdict of $5,000 was excessive — a contention which might be difficult to refute — but a careful scrutiny of the record fails to disclose that this point was squarely raised or seriously pressed in the trial court. It was not specified as one of the grounds upon which a new trial was asked, and indeed it does not now appear in defendant’s specifications of error presented for appellate relief. In consequence error based on the excessive verdict is not subject to our review. (Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, syl. ¶ 3, 277 Pac. 57, decided May 4, 1929.)
Error is urged on the overruling of defendant’s motion for a new trial, in support of which the doctors who had served on the commission deposed that they had only examined the plaintiff’s injured leg, but that she also showed symptoms of rickets or tuberculosis, and if a complete physical examination would disclose that she was suffering from such disease “it might change their testi mony regarding curvature of the injured leg.” The school hygienist made affidavit that the roots of the child’s teeth were exposed, that she was manifestly undernourished and could not masticate her food, and that she had received no report, or complaint that the child had a broken leg or had been injured. The principal of the school deposed to the same effect. Two Mexican women, acquaintances of plaintiff and her mother, made affidavits to the effect that the child was lame before she was knocked down by the defendant’s automobile, that she had formerly sustained a broken leg in Texas, and that she was suffering from tuberculosis and was ailing with some sort of affliction of the leg bone.
It may be admitted that these affidavits made a somewhat persuasive showing in behalf of the defendant’s motion for a new trial, but in the last analysis the controlling question before us is whether it was clearly established in the trial court that this array of facts or of evidence could not have been brought together for use in the trial by the exercise of diligence on the part of defendant. Defendant’s investigator testified that he did not know of the Mexican witnesses until after the trial; he did not know where the child went to school or whether she went to school; and that he had been unable to find any witness who had seen the accident. But to what extent this investigator had exerted himself to discover these witnesses or the facts about which they testified does not appear. When a person is subjected to a lawsuit for damages he cannot safely let' matters drift until the trial and then complain that he knew nothing of the facts developed in evidence and only then bestir himself to search for witnesses and evidence to obtain a new trial. The trial court quite fairly may have concluded that defendant’s showing of diligence was disproven by the circumstances, and quite fairly may have concluded that defendant’s strategy in this case was largely confined to making the most of whatever weaknesses in plaintiff’s case might develop in the progress of the trial rather than on the diligent accumulation of evidential facts on its own behalf to withstand plaintiff’s cause of action. Furthermore, the doctors’ affidavits did not positively aver that plaintiff was afflicted with rickets or tuberculosis ; they went no further than to say that if a complete examination should reveal such a condition it might change their testimony regarding the curvature of plaintiff’s leg. Certainly a new trial is not demandable as a matter of right on a mere showing of what-“might” be the testimony “if” certain suggested facts should be revealed as true.
A final error is predicated on the trial court’s refusal to instruct the jury that because of the plaintiff’s age it was the duty of her parents or guardian to care for her in proportion to the danger of her surroundings, and that if her parents or guardian were negligent in that respect and that negligence contributed to her injury plaintiff could not recover. There is no such law. If the parents were suing in their own behalf some such instruction might have been proper and pertinent. (Howard v. Scarritt Est. Co., 267 Mo. 398.) But no matter who may have contributed jointly or concurrently with defendant to the plaintiff’s injury, plaintiff being too young to have such negligence attributed to herself, defendant was not thereby relieved of liability for its driver’s negligence and the consequences thereof.
The other matters urged on our attention suggest nothing for further discussion. There is no error in the record of sufficient gravity to overthrow the judgment, and it must therefore be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to foreclose a mortgage on real estate, and a cross action to recover on a policy of fire insurance, the details of which will require to be stated at some length.
The defendant, Frank A. Johnson, was the owner of several valuable farms in Republic county. Three of these farms were separately mortgaged to the Mutual Benefit Life Insurance Company for the amounts of $9,500, $8,000 and $12,000, respectively. These mortgage loans had been negotiated by a firm of loan brokers in St. Joseph,, Mo., named Bartlett Brothers; and they and their subagents and business associates in the farm-loan business conducted a corporation called the Lincoln Land Company which advanced moneys to pay interest and taxes for delinquent borrowers so as to maintain the prestige of the mortgage loans negotiated and marketed by Bartlett Brothers.
On one of these farms (NW¼, sec. 4, twp. 4, range 5 west), owned by Johnson and mortgaged as above for $9,500, was a farmhouse which was insured by the Republic Mutual Fire Insurance Company, plaintiff, for $3,000, which policy was payable to the Mutual Benefit Life Insurance Company, mortgagee, as its interest might appear. By agreement, also, to which the mortgagor, mortgagee and insurer were parties, the insurer had the right to purchase the mortgage loan and take over all the rights of the mortgagee. By its terms the policy provided that if the insured parted with his title the insurance contract would thereby become terminated and without effect, unless the insurer gave its consent thereto,
In 1923, while Johnson's three farms were covered with the mortgages mentioned above, he defaulted in his payments of interest and taxes. The Lincoln Land Company took care of these, and on May 9, 1924, its representative called on Johnson to adjust or settle these advances. To that end Johnson executed deeds to two of his mortgaged farms in favor of the Lincoln Land Company, and in return he accepted a lease of them whereby he agreed to farm them under directions from the Lincoln Land Company and to deliver to it as rent one-half of the wheat and hay and two-fifths of the corn raised thereon. The lease also provided that subject to their incumbrances Johnson could repurchase the two farms for $4,548.47 plus any additional taxes the Lincoln Land Company might pay, and it reserved to itself the privilege of paying whatever taxes might thereafter accrue. At the same time Johnson executed a promissory note in favor of the Lincoln Land Company for $2,371.49 and gave it a chattel mortgage on his interest “as tenant” in the crops to be grown on the two farms he had just deeded to the Lincoln Land Company.
While this status of affairs existed • between the Lincoln Land Company and Johnson the house on the first farm described above was destroyed by fire. .The plaintiff insurer thereupon exercised its option to buy the interest of the mortgagee, and having had the Johnson note for $9,500 and related mortgage assigned to it, this action was begun to recover on the note and to foreclose the mortgage. Johnson answered admitting the indebtedness but setting up a cross action upon the insurance policy for'the destruction of the house and praying for a recovery of $3,000 thereon to be credited upon his $9,500 indebtedness.
For answer to defendant’s cross petition plaintiff pleaded that by the deeds executed by Johnson in favor of the Lincoln Land Company on May 9, 1924, he had sold and conveyed the farm on which the house had burned and had ceased to be its owner, and the policy of insurance had been thereby terminated and defendant had no interest therein.
The foregoing issuable facts and others of less significance were developed in appropriate pleadings. The cause was tried by the court, which made findings of fact, one of which was that the deed conveying the farm on which the house afterwards burned was in fact a mortgage to secure the amount advanced by the Lincoln Land Company on Johnson’s defaulted interest and taxes, but that the indebtedness of Johnson pertaining thereto had been fully paid, although the Lincoln Land Company did not in fact reconvey the title to Johnson until after the house burned.
Judgment in favor of the plaintiff was entered for the amount of the mortgage and its incidents, and judgment in favor of defendant was entered for the amount of the insurance policy, which latter amount was ordered to be credited as a payment upon the amount due on the mortgage indebtedness. An attorney’s fee was also allowed defendant on his cross action and judgment on the fire insurance policy.
Plaintiff appeals, urging various errors which chiefly center upon the question of what effect the transactions of Johnson and the Lincoln Land Company had upon the policy of fire insurance. Plaintiff contends that by the deed of March 9, 1924, Johnson ceased to be the owner of the farm, and thereafter the fire insurance policy was at an end. The pertinent provision of the policy reads:
“Article 36. If the insured shall cease to be the owner or dispose of the property covered by his policy, . . . the insurance shall immediately terminate. . . .”
At the time this insurance policy was written the mere act of incumbering the property did not vitiate the policy, so the first question we have to determine is whether the transactions between the Lincoln Land Company and Johnson on May 9, 1924, .were fairly susceptible of the interpretation placed upon them by the trial court, or whether they were no more than what they purported'to be — an outright and unqualified conveyance of all of Johnson’s title and interest to the Lincoln Land Company with a mere option to repurchase upon terms dictated by the new owner— or whether they were in legal effect and intention an equitable mortgage to secure the repayment of the sums advanced by the Lincoln Land Company on account of interest and taxes due from Johnson to the original mortgagee.
In the determination of this question it is plaintiff’s contention that the only evidence to be considered is the text of the deeds from Johnson to the Lincoln Land Company and of the farm lease and option granted to Johnson. Of course, if that contention were correct, their ostensible tenor would prevail over their actual character. Such, however, is not the law. There is no principle of equity better settled, or better supported in justice and good conscience, than the doctrine that a deed purporting to convey all title and interest from a grantor to a grantee may in fact be no more than an equitable mortgage (McNamara v. Culver, 22 Kan. 661; Overstreet v. Baxter, 30 Kan. 55, 1 Pac. 825; Timma v. Timma, 72 Kan. 73, 82 Pac. 481; Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346; Gilmore v. Hoskinson, 98 Kan. 86, 157 Pac. 426; Kolar v. Eckhardt, 119 Kan. 518, 240 Pac. 947; Rusco v. DeGood, 127 Kan. 708, 275 Pac. 201); and between the parties thereto and those in no better position than the contracting parties the facts pertaining to the execution of such an instrument may be shown by any competent evidence, parol or otherwise. (Bank v. Kackley, 88 Kan. 70, syl. ¶ 2, 127 Pac. 539; Dyer v. Johnson, 109 Kan. 338, 198 Pac. 944; Bank v. Bank, 111 Kan. 682, 208 Pac. 636; Clark v. Howe, 121 Kan. 204, 247 Pac. 113.) See, also, Farmers State Bank v. St. Aubyn, 120 Kan. 66, 70, 242 Pac. 466.
In the early case of Moore v. Wade, 8 Kan. 380, 387, it was said:
“This deed was absolute upon its face, but as it was taken only as a security it was, in effect, a mortgage. This principle has been so long and so well settled by courts of equity that we do not think it is necessary to refer to authorities to sustain it. But asmo written defeasance was executed between the parties, it is claimed that no parol understanding, intention, or agreement can be shown to create a parol defeasance. Now, while it may not be sufficient in an action at law to show by parol evidenoe that a deed, absolute upon its face, was understood or intended or agreed to be a mortgage, or was understood or intended or agreed to be defeasible, yet it has always been sufficient in a court of equity to show a state of facts outside of the deed which should render the deed a mortgage, or would render it defeasible.”
Now, it cannot be claimed for the plaintiff insurance company in respect to the transactions between Johnson and the Lincoln Land Company that it is in a stronger position than the Lincoln Land Company itself. (22 C. J. 1292-1294.) And while that company went through the formulary operation of taking deeds to two of Johnson’s farms and leasing them back to him, and in such lease he gave it a landlord’s unusual privilege of telling him how to farm those lands, and promised to pay it a share of the crops as rent, yet the Lincoln Land Company paid no attention to these ostensible rights and privileges as landlord; it did not concern itself about the farming of the lands, and neither received nor demanded a landlord’s share of the crops. On the contrary, it kept accounts with Johnson until he had paid the ostensibly optional amount of $4,-548.47; and the officer of the Lincoln Land Company who conducted the negotiations with Johnson explained how that amount was computed. That sum was thus fixed to include the several amounts of interest 'and taxes the Lincoln Land Company had advanced for Johnson, plus the interest which would fall due at the next interest-paying period, plus an estimate of the expenses which the agent would incur in attending to the details of the transaction, viz.:
NW14 of 4-4-5 (property insured).................... $1,082.50
SW!4 of 33-3-5 ..................................... 1,094.48
NE% of 31 and NWÍ4 of 32, all in 3-5............... 2,371.49
Total............................................. $4,548.47
Furthermore, of this so-called option it was shown too clearly for any cavil that a substantial part of it, $2,371.49, inevitably had to be paid by Johnson, which proved quite conclusively that to the extent of that amount, at least, the sum denominated an option was in fact a debt. (Winston v. Burnell, 44 Kan. 367, 24 Pac. 477.) In the so-called lease, also, the plaintiff as “lessor” reserved the “privilege of paying any such taxes coming due prior to the expiration of this lease” — quite a superfluous reservation if the conveyance from Johnson to the company and the lease from the company to Johnson were indeed what they purported to be.
But plaintiff advances a plausible argument that the negotiations between Johnson and the agent of the Lincoln Land Company on May 9, 1924, culminated in two wholly unrelated transactions— one which pertained to the deeds to two of Johnson’s farms, and another unrelated transaction which dealt with the advancements made by the company of interest and taxes on the half section mortgaged for $12,000. As to this latter transaction there was a loan to Johnson which had to be repaid, hence the note for $2,371.49 and the chattel mortgage to secure its payment. Apparently the trial court had no difficulty, in seeing through the plausibility of that argument, and neither do we. As already said, whatever the tenor of instruments concerning the. ostensible transfer of title, courts of equity are authorized to delve through forms to the substance of things, and the factors which made up the “optional” payment by which Johnson could “repurchase” the farms were potent evidence that the entire “option” was a debt which Johnson was expected to repay. If further evidence of the actuality were requisite, it was fairly supplied by the fact that the farm on which the house burned was worth $20,000, yet he deeded it to the company without receiving the consideration of one dime therefor. We have not failed to note that the admissibility of this and other highly probative matters of evidence was and still is stoutly disputed, but their competency is easily determined by the application of the elementary test: Did the facts or circumstances offered in evi dence tend to throw light upon the question the court had to decide — whether the transactions of May 9, 1924, were merely what they purported to be, deeds, lease and option, or were they intended to serve the interests and purposes of the parties as an equitable mortgage? Under that time-honored and practical, test the evidence objected to was admissible. (Moore v. Wade, supra.)
Another point raised by appellant pertains to an amendment to the by-laws of the plaintiff fire insurance company. It seems that the insurance policy which covered the farmhouse provided that it was issued subject to the by-laws of the company, and that these might be changed, and after the policy was issued and before the house burned the by-laws were changed so as to avoid any policy issued by the insurer by “encumbering the property, changing the risk or increasing the hazard after issuance of policy, without the written consent of the company.” This was a sound and prudent provision, no doubt, but not fairly susceptible of an interpretation that it affected the contract rights of holders of policies which were already issued and outstanding before that amendment to the bylaws was promulgated.
Yet another error is urged on our attention, based upon the allowance of an attorney’s fee to defendant. However, it is clear that defendant had a bona fide cross action against plaintiff to recover on the insurance policy, regardless of the plaintiff’s action to foreclose its mortgage. The 'statute is plain that where a lawsuit is necessary to realize on a policy of fire insurance an attorney’s fee shall be awarded to the insured if he prevails, so here apparently the fee was awarded to defendant as a matter of strict statutory right. (R. S. 40-416.)
The size of the fee awarded is also criticized as excessive — $500. “ ’Tis a good round sum,” but that is a matter which is hard for this court to disturb. The record does show that unusual ability and resourcefulness of counsel were brought into the contest to defeat défendant’s cross action on the fire insurance policy, and it can readily be discerned that considerable time, talent and energy were expended by defendant’s counsel in prosecuting his cross action. But the record is too meager to permit this court to say that the trial court was too generous in fixing the amount of the attorney’s fee.
Nowhere in the record does prejudicial error appear, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The petitioner herein makes application for a writ of habeas corpus, claiming he is entitled to a discharge from custody by the warden of the state penitentiary for the reason that the verdict rendered against him and the sentence imposed thereon are both void; that the verdict is void because it finds him guilty of a different offense than that with which he was charged, and the sentence because it imposes a longer term of imprisonment than that prescribed by the statute for the offense charged.
The petitioner was charged in four counts of the information with having purchased and received stolen property knowing the same to have been stolen. The property described in each count was chickens, which were alleged to have been of a greater value than $20. The third count included glass jars and other property in addition to chickens.
The petitioner was found not guilty as to the third and fourth counts and guilty as to the first and second counts. The verdict in the first count found the petitioner guilty of buying and receiving-chickens that he knew had been stolen “in the nighttime, as charged in the first count of the information.”. The verdict in the second count was just the same except that the concluding phrase above quoted contained the word “second” instead of the word “first.” There was no charge in the information that the chickens had been stolen in the nighttime.
The petitioner was charged and sentenced under the provisions of the following statutes of Kansas:'
“Persons convicted of grand larceny shall be punished in the following cases as follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; second, for stealing a horse, mare, gelding, colt, filly, neat cattle, mule or ass, by confinement at hard labor not exceeding seven years; third, in all cases of grand larceny, except as provided in the two succeeding sections, by confinement at hard labor not exceeding five years.” (R. S. 21-534.)
“Every person who shall buy, or in any way receive any goods, money, rights in action, personal property, or any valuable security or effects whatsoever, that shall have been embezzled, taken or secreted, contrary to the provisions of the last four sections, or that shall have been stolen from another, knowing the same to have been so embezzled, taken or secreted, or stolen, shall upon conviction be punished in the same manner and to the same extent as for the stealing the money, property, or other thing so bought or received.” (R. S. 21-549.)
The only crime of which an accused can ever be convicted is that which is charged in the information. Some crimes in themselves include lesser crimes, which are, of course, contained in the greater when properly charged, but nothing placed in the verdict can in any way change or modify the crime charged. With the exception of a case where a lesser crime is included, the verdict finds the defendant either guilty or not guilty of the crime charged. So the three words “in the nighttime” included in this verdict are mere surplusage and do not affect the finding or verdict in any particular. Besides, the concluding words “as charged in the first count of the information” make the crime definite and specific by direct reference. It has fre quently been held that a verdict can be properly interpreted by reference to the charge in the information.
“The information may be looked to for the purpose of interpreting a verdict in a criminal case.” (In re McLean, 84 Kan. 852, syl. ¶ 3, 115 Pac. 647.)
By such reference the words “in the nighttime” can serve no purpose and must be eliminated and disregarded, and they in no way disturb, confuse or render indefinite the real meaning of the verdict or create any doubt as to the nature or character of the offense charged. Neither do they in any way render indefinite or affect the validity of the verdict. See In re Mote, 98 Kan. 804, 160 Pac. 223; Brandon v. Mackey, 122 Kan. 207, 251 Pac. 176.
The sentence imposed was for a term not less than five nor more than ten years on each count, and the sentence on the second count was to commence after the expiration of that on the first count, whereas under the statute above quoted the sentence should have been for a term not less than one nor more than five years upon each count. This is conceded by the state, and it is also admitted that because of it the sentence is void. The petitioner argues that because the sentence is void he should be discharged, and that any attempt to correct or impose the sentence would constitute a second jeopardy. Since the sentence is void, it is not subject to correction as it might have been if it were merely voidable or irregular; but being void, it is not a sentence or judgment and never was such. It is exactly the same as if no attempt had ever been made to pronounce a sentence on the verdict. The verdict is valid and the case stands ready for sentence and judgment upon the verdict.
“If the punishment attempted to be imposed by the judgment be greater than is authorized by law, the judgment is void. . . . The attempted sentence being a nullity, the petitioner stands in the position of one who has not been sentenced at all. He has pleaded guilty to a definite charge of a crime, but has not been sentenced therefor. . . . It is the judgment of this court that the sentence is void; but the conviction being regular and valid, the petitioner ought not to be discharged. A valid judgment should be rendered, and the petitioner should be returned to the custody of the proper authorities for that purpose.” (In re Howard, 72 Kan. 273, 277, 278, 83 Pac. 1032.)
We conclude that the sentence imposed was and is void, but the verdict is valid and therefore the writ should be denied, but a valid sentence and judgment should be pronounced and rendered upon the verdict by the district court where the case was tried, making it effective from the date upon which it shall be rendered, but directing that full credit be given the petitioner for all time served by him under the void sentence.
It is the order of the court that the writ be denied, but that the respondent present the petitioner in his own proper person before the district court of Wabaunsee county at a date to be fixed by that court as soon as reasonably possible, to be sentenced by that court according to law upon the verdict rendered against him in that court. | [
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The opinion of the court was- delivered by
Hutchison, J.:
The errors assigned in this case are in permitting the defendant to amend its answer during the trial by referring to a circular and advertising matter as explaining a written contract and warranty, and in admitting such circular and advertising matter in evidence, and oral evidence along the same line, which, it is claimed, was in violation of the rule against the admission of evidence tending to alter, vary or contradict the terms of a written instrument.
The plaintiffs sued to recover upon a written contract for the purchase of one Perfection self-unloading header barge, shipped and delivered to the defendant. The written contract consists of an order of purchase, which refers to a warranty on the back thereof, in the following language:
“It is distinctly understood that the above-mentioned machine is purchased subject to the warranty on the back and no other.”
The part of the warranty printed on the back of the order which most concerns us at this time is as follows:
“Any machine of our make is guaranteed 'to do good and efficient work for which it is intended when properly operated.’ ”
The answer admitted the execution of the order or contract and alleged a breach of warranty, and referred to and attached a copy of a circular or advertising matter describing the barge, its qualities', and what could be accomplished with it, and later, with the permission of the court, the answer was amended by referring to the contract and warranty as explained in the circular or advertising matter attached to the -answer as an exhibit.
A reply in form of a general denial was filed, and the defendant assumed the burden of the issues. Witness Dunbar, who represented the defendant in the negotiations for the purchase of the barge, testified that the agent of the plaintiffs gave him the circular, a copy of which is attached to the answer, and from it explained to him what work the barge was intended to do and what was meant by being guaranteed to do good and efficient work for which it is intended when properly operated; to which the appellants objected as tending to alter, vary and contradict by parol the terms of a written instrument. The court overruled the' objection and admitted the evidence, and later overruled a similar objection to the admission of the circular. The circular contains eight cuts of the barge in different positions, describes how it works and what it will do and what can be accomplished by it, and answers fourteen questions said to be frequently asked about it and its operation.
There is no claim of implied warranty in the case and no claim of fraud. Appellants maintain that the warranty is not ambiguous and is complete in itself, and therefore parol and extrinsic evidence i$ inadmissible. The vital purpose of this general rule is to exclude evidence which tends to alter, vary or contradict the terms of the written instrument. Evidence which does not contradict but only explains or supplies something that is omitted or incomplete is not within the rule invoked. This was the effect of the ruling in Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867, where the contract of purchase “contains no words of express warranty, either of the quality of the article sold dr its fitness for a particular use.” In the case of Railway Co. v. Vanordstrand, 67 Kan. 386, 73 Pac. 113, the rule was stated as follows:
“Such a contract, made without fraud in its execution, full and complete in its terms, unambiguous, reasonable, and plain, . . . cannot be supplemented by parol proof.” (Syl. ¶ 3.)
In Buxton v. Colver, 102 Kan. 871, 171 Pac. 1158, the rule is applied, “the contract being complete and unambiguous,” and in Radebaugh v. Dillon, 119 Kan. 492, 240 Pac. 406, the rule was enforced “where a written contract was complete and free from ambiguity.”
Is the language of the warranty in this case plain, complete and definite in itself, or does it need anything to explain it in any way? It warrants the machine “to do good and efficient work for which it is intended when properly operated.” Is it definitely known as to the work for which it is intended without any explanation? Does the name the Perfection self-unloading header barge fully enlighten us on that subject? The eight cuts showing the machine in different stages of performance explain it and very substantially inform us as to the work for which it is intended. Neither the contract nor the warranty give us this much-needed information. Likewise, the answers to the fourteen questions and the description as to size, quality and capacity supply a further incompleteness as to what is intended to be done by this machine.
“A written contract for the sale of a thrashing machine contained a general warranty, in the following words: ‘That said machinery is well made, of good materials, and, with proper management, capable of doing well the work for which the machines respectively are made and sold.’ Nothing in the contract showed the nature of the machine or the purpose for which it was made or sold. Held, parol evidence was admissible to prove that it was made and sold for the purpose of being used to thrash all kinds of grain.” (Nichols v. Maxson, 76 Kan. 607, syl. ¶ 1, 92 Pac. 545.)
“Where a written instrument, executed pursuant to a prior verbal agreement or negotiation, does not express the entire agreement or understanding of the pai'ties, the parol evidence rule does not apply to prevent the introduction of extrinsic evidence with reference to the matters not provided for in the writing.” (22 C. J. 1283. See, also, 28 A. L. R. 998.)
Neither the testimony of the witness Dunbar nor the contents of the circular contradict the terms of the written instrument, but they do explain what work the machine is intended to do, which cannot be determined from the instrument itself, and therefore such parol and extrinsic evidence was not inadmissible and. there was no error in the overruling of the objection thereto.
“Parol testimony is competent ... to explain certain indefinite matter contained in a written contract to which defendant had subscribed.” (Schroyer v. Ruffhead, 122 Kan. 767, syl. ¶ 4, 253 Pac. 414.)
“. . . Parol evidence is admissible to prove the terms of the contract not contained in the letter.” (Thurston v. Lubrite Refining Co., 120 Kan. 137, syl., 242 Pac. 126.)
See, also, the following authorities on the same question: Shepard v. Haas, 14 Kan. 443; Wichita University v. Schweiter, 50 Kan. 672, 32 Pac. 352; Heskett v. Elevator Co., 81 Kan. 356, 105 Pac. 432; Royer v. Silo Co., 92 Kan. 333, 140 Pac. 872; Clark v. Townsend, 96 Kan. 650, 153 Pac. 555.
It is argued by appellants that the machine might “do good and efficient work” without regard to its size, capacity, quantity accomplished, or height of stack. This reasoning might be sound if we would eliminate from the warranty the words, “for which it is intended.” No one would contend the work would be good and efficient if it could only operate on a stack five or six feet high, however efficient it might be to that height. It would not be the work for which it was intended, and as the warranty is silent as to what was intended such information must be obtained from extrinsic sources to supply that which is incomplete in the warranty.
The 'same ruling was made by the trial court as to the testimony along similar lines given by other witnesses, and the witness Clothier in particular, who was a salesman for the local dealer handling these barges for the plaintiffs, and who testified that the plaintiffs’ agent told him that if the barges did not give satisfaction according to the printed circulars the buyers hadn’t bought anything. We find no error in this ruling, even as to the witness Clothier.- The fact that he indirectly represented the plaintiffs and stated directions given him by a superior with reference to the circular in question does not make him or his evidence incompetent. His evidence tended to show the views of the plaintiffs as to the work for which the barge was intended.
The amendment made to the answer was in line with the evidence introduced explaining the contract by the printed circular, and permitting it to be made was not error.
Complaint is made of the giving of instructions 3 and 4, which informed the jury that plaintiffs by their conduct had waived the requirement of the notice prescribed in the warranty and permitted the jury to consider a failure of the machine to measure up to the requirements of the contract and the printed circular as a failure to fulfill the warranty. We see no error in these instructions nor in overruling the demurrer to the evidence of the defendant, nor in refusing to direct a verdict for plaintiffs and grant a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a widow to recover from the administrator of the estate of her deceased husband for breach of an alleged antenuptial contract. Other heirs (three grandchildren of the deceased, who under a will were devised one-half of the estate) sought to intervene, were defeated and appeal.
It was alleged in plaintiff’s petition that—
“Prior to her marriage with David Taggart, now deceased, she entered into' an oral agreement with him whereby he promised to devise and bequeath all of the estate owned by him at his death to the plaintiff, in consideration of her marriage to him and that during th,e remaining years of his life she would look after and take care of him until his death; that at the time said contract was entered into David Taggart was a man of eighty years of age and in poor health and living alone in Ellis, Kan., with no one to look after him; that the plaintiff agreed to look after him as aforesaid and did thereafter marry him and duly carry out her contract with him and fully performed all of the conditions to be performed on her part, and at his death the said David Taggart left in cash and other personal property the sum of about §3,300, which property and claims are in the hands of said executor, and this plaintiff is entitled to have said contract specifically enforced by the court, giving to her all of the estate of the said David Taggart, after the payment of his funeral expenses and lawful indebtedness.”
When the case was called for trial the appellants asked leave to intervene because of being heirs of David Taggart under his will, by the terms of which they jointly were to receive one-half of his estate. The plaintiff and the executor, after a conference, concluded that further litigation would result in the depletion of the assets of the estate to such an extent that none of the parties interested would receive any substantial amount, and they therefore agreed to an entry of judgment by the terms of which the plaintiff would receive approximately the sum of $452 and leave a balance of something like $450, or one-half the estate, to the three heirs who are here complaining. After an informal hearing the court concluded that, regardless of the merits of the plaintiff’s claim and the claims of the grandchildren, such a judgment would be more advantageous than to permit the grandchildren to intervene and litigate the questions at issue with the plaintiff. • However, before the final journal entry of judgment was submitted to the trial court the matter was presented to the probate court, which gave its sanction to the settlement in language as follows:
“Now on this 4th day of November, 1927, comes H. W. Chittenden, administrator of said estate, with the will annexed, and files his application asking for authority and direction from this court to make a compromise settlement of certain litigation now pending in the district court of this county, in which Ida Veirs Taggart, widow of said deceased, is plaintiff, and said administrator is defendant, and the court, after due and careful consideration of said petition, finds that the allegations therein contained are true, and that the settlement offered by said Ida Veirs Taggart as outlined in said application of said administrator, is a provident one and to the best interest of said estate and to the grandchildren who are devisees named in the will, and it is therefore by the' court
“Ordered, that said H. W. Chittenden, administrator of said estate, be and hereby is authorized and directed to make a compromise settlement of said litigation and of said case in the district court of. Ellis county, Kansas, under the terms mentioned and set forth in said application of said administrator, and to consent that judgment be rendered in said district court case for the plaintiff and against said estate, and said administrator, for the sum of $710 with a credit on said judgment of $258, and the plaintiff in said district court case to pay the costs of said case in the district court, leaving a balance of $452 on said judgment, and it is further ordered that out of the remaining estate in the hands of said administrator that may be left after the payment of said balance of $452 on said judgment, that all probate court costs remaining unpaid, be paid by said administrator, and the compensation of said administrator and his attorney fees be paid, and any balance left after said payments be retained by said administrator for distribution among the grandchildren of said deceased, who are devisees and legatees under his will, as may be ordered by the court upon the final settlement of said estate in this court.”
It appears that if the appellants had been permitted to intervene, and if they and the executor had been successful in defeating the claim of the plaintiff, they would have accomplished no more than was accomplished for them by the compromise and settlement. The plaintiff, as-wife of the deceased, was, under the statute, after payment of the debts and costs of administration, entitled to one-half of his estate. The grandchildren under his will were entitled to one-half.
The journal entry of judgment in part reads:
“It was by the court found that the amount of $1,017.05 constitutes all of the estate of David Taggart, deceased, after the payment of various claims heretofore paid by the executor, the payment of which has been approved by the probate court. The court further finds that under the issues in this case, the plaintiff Ida Veirs Taggart would be entitled as the widow of David Taggart, deceased, to have one-half of the net proceeds of the estate of said David Taggart, deceased. The court further finds that there is in controversy in this case only one-half of said $1,017.05, from which there would necessarily have to be deducted expenses and costs of administration, which would reduce said amount to somewhere in the neighborhood of $900, leaving the amount actually in litigation practically $450.
“It is therefore by the court considered, ordered and adjudged that the plaintiff do have and recover judgment against H. W. Chittenden, executor of the estate of David Taggart, deceased, the sum of $710, upon which judgment it is acknowledged by plaintiff in open court that there has been a payment made of $258, leaving a balance due to said plaintiff from said estate in the sum of $452, and this shall be and is by agreement of party and decree of court a full settlement of all claims of plaintiff.
“It is further considered, ordered and adjudged by the court that said plaintiff pay the costs 'herein taxed at $25.95, except an item of $6, which has been retaxed to defendant H.-W. Chittenden as administrator, etc., leaving a balance of $19.95.
“And the court orders, regardless of the merits or demerits of the claim of the plaintiff and defendant herein, that the settlement effected and the judgment rendered would be as advantageous to the interest of the parties who have attempted to intervene as they would be to result a favorable litigation in their behalf, which would necessarily reduce the estate of David Taggart, deceased.”
We are directed by the code to disregard all technical errors which do not appear to have prejudicially affected the substantial rights of the complaining party. The statute reads:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” (R. S. 60-3317. See numerous cases cited under this section.)
We are of the opinion that the substantial rights of the appellants were not materially prejudiced by the judgment of the trial court, and even if the acts of the court complained of were erroneous they furnish no basis for a reversal.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, doing business as The Block Tire Company, sued the defendant, an employee of the Frisco Railroad Company, in the city court of Kansas City, for $13.30, and garnisheed the railroad company, which was then indebted to the defendant for wages due him. The defendant in that action in that court filed a bill of particulars against the plaintiff, in which the defendant asked for judgment against the plaintiff in the sum of $50 for damages sustained by the defendant on account of the oppression of the plaintiff in bringing the action and garnisheeing.the railroad company and in refusing to relinquish the garnishment after the defendant had paid to the plaintiff more than was due him in order to secure a dismissal of the action and a relinquishment of the garnishment, and asked for $200 as punitive damages. The action was tried in that court, which resulted in a judgment in favor of the defendant for $107.50, from which the plaintiff appealed to the district court. The action was again tried, which' resulted in a judgment in favor of the defendant for $200, from which the plaintiff has appealed to this court.
The defendant, in his bill of particulars, alleged that after the action was commenced he offered to pay the plaintiff the sum of $5.80 which the plaintiff claimed was due him for automobile tires which he had sold to the defendant, and demanded a discharge of the garnishment and a release of the garnishee, which was refused by the plaintiff until the defendant should pay an additional sum of $5 ■costs and $7.50 called an “expense and handling” charge; that the wife of the defendant was sick; that he was in need of money; that the defendant, by reason of his distress and in fear of losing his employment with the railroad company, paid the $18.30 demanded by the plaintiff; but that the plaintiff refused to relinquish the garnishment or release the garnishee. When the case was called for trial the plaintiff dismissed his cause of action against the defendant. The action was tried on the defendant’s bill of particulars.
The plaintiff claims that there was no evidence to show that he acted with malice toward the defendant in the effort to recover the amount due. There was evidence which tended to prove that the amount due to the plaintiff was $3.80; that the plaintiff claimed that there was $5.80 due; that the defendant thought all had been paid; that the plaintiff sued to recover besides the $5.80 which he claimed to be due, $7.50 which he denominated as a charge for expenses and handling; that immediately upon receiving notice of the action and garnishment, the defendant went to the plaintiff and offered to pay the amount claimed by him to be due; that the plaintiff refused to accept payment until the $7.50 handling charge and the cost of the action, $5, had been paid; that the defendant immediately borrowed $18.30 and paid it to the plaintiff; that the plaintiff did not then dismiss the action, relinquish the garnishment, nor release the garnishee; that the defendant was employed by the Frisco railroad and was afraid of losing his employment on account of the garnishment; that his wife was sick and needed medicines and medical attention; that he had no money with which to pay for them; and that he was dependent upon his wages for money. The action was commenced on July 14, 1926. The action was tried on August 12, 1926, on the defendant’s bill of particulars, on which day the plaintiff dismissed his action against the defendant. The garnishment was afterward relinquished. That evidence strongly tended to prove oppression by the plaintiff toward the defendant and justified the jury in finding malice.
The plaintiff says that the defendant, by paying the $18.30 to the plaintiff, completed an accord and satisfaction, and for that reason is not entitled to recover either actual or exemplary damages. To complete an accord and satisfaction it was necessary for the plaintiff to relinquish the garnishment and dismiss his action immediately on the payment of the $18.30. That was not done. For that reason, if there was no other, there was no accord and satisfaction. (Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875; 1 C. J. 523, 533, 564.)
The plaintiff claims that the matters set up by the defendant in his bill of particulars were not proper to be set up as a counterclaim against the plaintiff’s cause of action. That question does not seem to have been presented to the trial court in any form. For that reason it cannot be presented at this time.
The plaintiff complains of the argument of counsel for the defendant on the submission of the case to the jury. The defendant by affidavit denied making the statements asserted by the plaintiff to have been made by counsel for the defendant. If the argument was made as contended for by the plaintiff, it would, in any ordinary case, have been improper and would have justified a reversal of the judgment, but the circumstances surrounding the commencement and prosecution of this action by the plaintiff showed that the argument of the attorney for the defendant was justified even if it was made in the manner complained of by the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on two promissory notes of $500 each, signed by the defendant and made payable to the plaintiff. The defendant answered and alleged that the notes were renewals of other notes which had been given to the Kansas Steel and Wire Company; that the signatures to the original notes had been procured by the fraud of the Steel and Wire Company; that those notes had been given without consideration; and that they had been taken in violation of the laws of Kansas relating to the sale of stock and securities. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The evidence established that in 1925 the defendant signed two notes of $500 each made payable to the Kansas Steel and Wire Company for stock in that company, a corporation; that the notes were transferred to the plaintiff; that the notes recited the following: “Given for sháres, in the Kansas Steel and Wire Company”; that they were due in six months; that when they were due the defendant renewed them by signing other notes for $500 each payable in six months, in which the plaintiff was named as payee; that when those renewal notes were due the defendant signed the notes sued on.
Section 17-1219 of the Revised Statutes provides that notes given for stock in corporations shall have written therein the following language: “Given for shares in --,” “Given for units in-,” or “Given for interest in-
Section 17-1220 of the Revised Statutes makes such notes nonnegotiable and therefore subject to all defenses.
Section 16-107 of the Revised Statutes reads:
“All contracts in writing, signed by the party bound thereby, or his authorized agent or attorney, shall import a consideration.”
Under this statute all the notes given by the defendant implied that ample consideration was given for each of them, although the first notes were nonnegotiable and all were subject to defenses.
The court in one of its instructions to the jury said:
“You are instructed that the plaintiff must satisfy your mind, by a preponderance of the evidence, that it acted in good faith when it purchased defendant’s two promissory notes.”
In another instruction the court said:
“The burden of proof is upon the plaintiff and it is for it to prove its case by a preponderance of the evidence.”
The plaintiff argues that it was error to give those instructions. The execution of the original notes and of the notes sued on was admitted. In Machine Co. v. Morse, 47 Kan. 429, 28 Pac. 152, this court declared the law to be that—
“Where under the pleadings and § 108 of the civil code the plaintiff’s case is admitted by the defendant, and where nothing materially adverse is admitted by the plaintiff, the burden of proof rests upon the defendant.
“Where the burden of proof under the pleadings and the law rests upon the defendant it is material error for the court to instruct the jury otherwise.” (Syl. ¶¶ 1, 2.)
The execution of the notes being admitted, the plaintiff’s cause of action was established by the pleadings. It was not necessary for it to introduce any evidence in advance of evidence to establish some defense. The facts alleged in the answer, if true, were matters of defense, and the burden was upon the defendant to prove those defenses by a preponderance of the evidence. Under those circumstances it was error for the court to instruct the jury that the burden of proof was upon the plaintiff to prove its case by a preponderance of the evidence.
Several propositions are presented by the plaintiff which would justify a reversal of the judgment, but it is not deemed'best, to discuss those propositions.
The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Burch, J.:
The petition stated a cause of action for recovery of money paid on a claimed sale of patent right made- by the vendor without complying with the state statute relating to such sales. The answer was a general denial. A demurrer to plaintiffs’ evidence was sustained, and they appealed. In this court defendant made no suggestion that his answer or his demurrer to evidence raised any question regarding constitutional validity of the state statute; and defendant made no suggestion that in ruling on the demurrer to evidence the district court passed on validity of the statute. In this court defendant made no contention that the statute is invalid. The contention was that the contract was one of appointment of an agent, and not one of sale of a patent right. In a petition for rehearing defendant contends the statute is invalid. He is not entitled to raise that question in this appeal.
Other questions presented by the petition for rehearing were determined by the original opinion, to which the court adheres.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case is before us on a rehearing granted as to one feature only, viz., the sufficiency of the petition against a demurrer as to the right to recover damages either for breach of contract or in tort for conversion and detention of personal property for a period of about two hundred days between the date of the dissolution of an injunction and the date of judgment in the mechanic’s-lien action, during which time it is alleged the property remained in the possession of the defendant. The judgment of the trial court sustaining the demurrer was affirmed by this court. (Baker v. Craig, 127 Kan. 811, 275 Pac. 216.)
The petition contained three counts for the recovery of damages for the wrongful conversion and detention of personal property, the first upon the breach of an oral contract, the second in tort and the third for malicious prosecution. The petition states that an injunction had been secured by the defendants a few days after they had deprived the plaintiff of the possession of the property in question, which property was later held by the court to belong to the plaintiff. It further states that recovery was had upon the injunction bond, but the property was detained and wrongfully withheld from the plaintiff about two hundred days after the dissolution of the injunction; to be exact, from November 20, 1926, to June 13, 1927. It was held by this court that “an injunction bond given under our statute is intended to cover all the damages the party restrained may sustain by reason of the order being wrongfully procured, except such as are the result of malice and want of probable cause” (syl. ¶ 1); and also that the action for malicious prosecution was barred by the statute of limitations. In the opinion it was stated that the injunction bond did not cover damages incurred after the dismissal of the injunction suit, but that this short period was not specifically covered by the pleadings to entitle plaintiff to maintain his action under the first and second counts of his petition for damages for this short period separate and apart from the entire period. Perhaps the continuing feature of the unlawful conversion and wrongful detention alleged in the petition was not given the full force to which it was entitled. No separate and specific allegation of such was made as to this short period, and no allegation of such wrongful detention as being renewed after the injunction was dissolved, except that it continued until June 13, 1927.
Among the allegations in the first count are the following:
“That plaintiff was, in violation of the terms of said oral contract, kept out of the possession of said tools all of said time, and was prevented by the filing of said answer and cross petition in said suit by the defendant from bringing suit to recover possession of said tools during all of said time and up to the said 13th day of June, 1927, for the reason that the title of said drilling tools was in controversy in the suits then pending.
“That plaintiff has been deprived of the use of said tools during all of said time from the filing of said answer in the suit in Butler county, Kansas. [October 12, 1921] until and including June 13, 1927, or a total of 2,000 [200] days, during which time plaintiff was able to find use and employment for said tools and that their use is reasonably worth the sum of $100 per day.”
And among those in the second count are the following:
“The defendants in disregard of their said legal duty, and the rights of the plaintiff, unlawfully detained said drilling tools and property and kept the plaintiff out' of the possession of the same from the said June 1, 1921, until the said June 13, 1927.
“That the defendants refused to deliver said drilling tools to the plaintiff upon his oral demand therefor made on about the said June 1, 1921.
“That plaintiff has been deprived of the use of'said tools during all of said time from the filing of said answer in the suit in Butler county, Kansas, until and including June 13, 1927.”
There can be no question as to this language being broad enough to include the time after the dissolution of the injunction as well as the time prior thereto. They are allegations of conversion in June, 1921, and of wrongful detention continuously since that time. Conversion, strictly speaking, is an act which usually occurs only once in a given transaction. If the conversion were the entire and complete wrong done either in breach of contract or in tort, that could be remedied, except perhaps for nominal damages, by immediate return of the property to the owner. But the serious wrong is in the unlawful detention of such property and depriving the owner of the lawful use thereof. The allegations cover this continuing situation during the entire period until the property was returned to the plaintiff on June 13, 1927.
We said in the opinion that the defense in an independent action like the mechanic’s-lien suit would not toll the running of the statute of limitations, but the rule is different with injunction, which prevents the plaintiff from interfering in any way with the posses sion of the defendants. This action for damages was not commenced and could not properly have been brought until the injunction had been dissolved. That was the date from which we computed'the time for the limitation in the malicious prosecution count and is the proper date from which the limitation should commence to run in the first and second counts for damages, if any, for a period outside of that covered by the injunction bond.
“Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” (37 C. J. 1039. See, also, City of Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589; Campbell v. Durant, 110 Kan. 30, 202 Pac. 841.)
It is urged that this action as far as it applies to the two-hundred-day period is an action of detinue and not of conversion, and that the petition contains no appropriate allegations for such an action. In Kansas we have the replevin statute, which practically takes the place of the old common-law forms of actions of detinue, trover and conversion, and while the old forms still exist and can be used and followed, the statutory replevin has served to extinguish and almost entirely wipe out the technical distinctions as to their use and application. The modern definitions of these formerly very distinct remedies now overlap, and while we think of detinue as applying to the wrong of detention with an original lawful possession, as distinguished from conversion with a wrongful taking as a single original act, we find such distinction does not now maintain and each of these terms now contain distinctive elements of the other.
“Detinue is a common-law action which lies for the recovery of personal chattels, in specie, or their value if they cannot be had, from one who acquired possession of them lawfully, but retains them without right, together with the damages for the wrongful detention. Under the almost universal modem rule, however, the action will lie not only where the original taking was lawful, but also where it was tortious.” (18 C. J. 990.)
“A mere detention of another’s chattels which rightfully came into one’s possession is not an actionable conversion. If, however, the detention be based on a negation of the owner’s right, or be accompanied by an intent to convert' the property to the holder’s own use, a right of action for conversion will arise.” (38 Cyc. 2028.)
“The essence of conversion is not acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner; . . . Acts of conversion have been classified as follows: (1) A taking from the owner without his consent; (2) an unwarranted assumption of ownership; (3) an illegal use or abuse of the chattel; and (4) a wrongful detention after demand.” (38 Cyc. 2007, 2009.)
In the original opinion it was said:
“The allegations do not show any demand or attempt to get possession of them during that period.” (Baker v. Craig, 127 Kan. 811, 816, 275 Pac. 216.)
The expression was not intended to imply that an actual demand was necessary,’ but only to emphasize the fact that nothing new of any kind was alleged to have been done or attempted during that short period of two hundred days.
Appellees contend that since the so-called mechanic’s-lien action determined the right of possession as would have been done in a replevin action then the damage matter here involved is res adjudicata for the reason that in a replevin action a claim for damages for wrongful detention could be heard and determined in connection with the question of the right of property and right of possession, and what could have been considered is held as having been consid-' -ered and determined. We cannot accept the application of this well-recognized rule to the so-called mechanic’s-lien case. The pleadings in that case apparently did not pass through any technical scrutiny. It certainly was not, strictly speaking, a mechanic’s-lien case. Both sides recognized it as one for an accounting and determining the right to the possession of property, and they abided by the result reached by the trial court even to the division of costs. But we think it would be a very strained construction to imply that it necessarily included in it the element of damages for wrongful detention.
We conclude that the allegations of the first and second counts of the amended petition are sufficient to support claims of damages - from the defendants covering the period of two hundred days after the dissolution of the injunction, and that the demurrer to these two counts of the amended petition should be overruled as far as they apply to that limited period of time. The former decision affirming the ruling of the trial court will be set aside as far as it applies to the period of two hundred days after the dissolution of the injunction under the first and second counts of the amended petition, and the demurrer to the first and second counts of the amended petition will be overruled as far as they apply to the period after the dissolution of the injunction.
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents for review the question whether certain monetary bequests in the will of Mary Schott in favor of her two sons were chargeable upon the real estate which she devise'd to her daughter, it having developed that Mary’s personal estate is insufficient to satisfy them.
The pertinent parts of the will and codicil read:
“Third. I give to my daughter Emma five dollars and the note of $50 that she owes me.
“Fourth. I give to my son Otto five dollars and the note of $100 that he owes me.
“Fifth. I give to my son Hugo three hundred dollars and the note of $100 that he owes me. ...
“Sixth. I give to my daughter Gertrude all the balance of my estate, personal, real or mixed. The one hundred sixty acres of land on which I live belonged to my husband, and at his death I inherited one-half‘ interest in the same and the [five] children inherited the other half. I have since purchased the interest of Otto and Hugo, and it is my intention to convey hereby to Gertrude all my interest in said real estate, including that purchased from Otto and Hugo.
“Codicil No. I: I hereby change clause ‘five’ of within will to read: ‘Fifth. I give to my son Hugo the note of $-100 he owes me. . . .’
“Codicil [No. Ill]: I, Mary Schott, of Douglass county, Kansas, hereby direct and devise that my bequests in my last will and testament, pertaining to my sons Otto Schott and Hugo Schott, be increased from the sum of ($5) five dollars each to said Otto Schott and Hugo Schott to (1500) five hundred dollars to each Otto and Hugo Schott. I feel, in justice to them and to myself, that if they had not sold me their one-tenth interest in the farm to me, after their father Fred Schott died intestate more than twenty years ago, they would, from the increase in value, receive double the amount now of what they did receive at the time of their sale to me.”
Mary’s personal estate realized $1,122.28. Lawful charges thereon had reduced that amount to $495.46 and the notes mentioned in the will; and costs and claims estimated at $250 were unpaid when this cause was on trial in the district court.
This action took the form of a suit in partition by the daughter Emma. Hugo and Otto filed separate answers pleading various matters, but particularly that by the text of the mother’s will, and also by her oft-expressed intention, the land devised to Gertrude was subject to a lien to pay the $500 bequests to them.
The executor, W. M. Clark, filed a petition of intervention alleging that the personal property of Mary’s estate in his hands was insufficient to pay the legacies and costs and expenses of administration and praying for a construction of the will on the question .whether the real estate was chargeable with the payment of legacies.
Gertrude answered with a general denial, admitted the allegations of the intervener’s petition, and set up the will, and prayed judgment quieting her title to the real estate.
The trial court ruled in favor of Gertrude, holding that the legacies to Hugo and Otto were not a charge upon the real estate devised to her.
Was this error? Appellants emphasize the legal • significance of the first two lines of the sixth clause of the will:
“I give to my daughter Gertrude all the balance of my estate, personal, real or mixed.”
This language, of course, is a mere devise of the residual estate, and if that were all we had to consider it might not be difficult to hold that the general estate, real and personal, was chargeable with the satisfaction of the bequests and that only the net remaining estate devolved on Gertrude. (In re Estate of Strolberg, 106 Neb. 173, 26 A. L. R. 643; 40 Cyc. 2011, 2023; 28 R. C. L. 306.) But that is not all of the sixth clause of the will. It proceeds with a statement touching the source of Mary’s title to the real estate, and then explicitly declares her testamentary intention:
“And it is my intention to eonvejr hereby to Gertrude all my interest in said real estate including that purchased from Otto and Hugo.”
This language is so clear that it leaves nothing for lawyers to argue or courts to cogitate. All of Mary’s interest in the land goes to Gertrude, not that interest less two bequests of $500 each to Mary’s two sons.
In Warlick v. Boone, 120 Kan. 148, 242 Pac. 135, it was said:
“It is a rule of law that legacies are payable out of personal estate only, unless a contrary intention be derivable from the will, and if personal estate be insufficient to pay gifts not charged on land, they fail. Legatees may be disappointed, and the testator’s desire may not be fulfilled, but the subject is one over which the testator has full control, and there is no occasion for departing from the common-law rule.” (p. 149.)
It is argued on behalf of appellants that they should have been permitted to show aliunde that Mary’s intention was that the bequests should be paid out of the real estate. To this there are two answers: At no time did appellants adduce evidence to that effect (Newton v. Newton, 127 Kan. 624, 274 Pac. 247), and the intention of a testator is to be derived from the will itself where that intention is plainly expressed on the face of the testament. In the instant case evidence aliunde was neither necessary nor permissible. (Fries v. Osborn, 190 N. Y. 35, 19 L. R. A., n. s., 457; Crocker v. Crocker, 230 Mass. 478, 5 A. L. R. 1617; Kerens v. Union Trust Co., 283 Mo. 601, 11 A. L. R. 288; 40 Cyc. 1388-1390; 28 R. C. L. 214, 215.)
Some other minor points are urged against the judgment. These have been examined and disapproved and are not of sufficient gravity to justify discussion.
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The opinion of the court was delivered by
Hutchison, J.:
The errors alleged in this case are the exclusion of evidence and the sustaining of the demurrer of the plaintiff to the defendant’s evidence in an action on a note where the execution of the note was admitted and the defendant assumed the burden of proof in making a defense to the note. Judgment was rendered for the plaintiff on the note, and defendant appeals.
The plaintiff introduced the note and rested. It was signed on the back, “The Merc. Co., E. L. Morgan, Mgr.,” and on the face, “Robt. Pringle, Pres.,” and was made payable to the plaintiff herein. The action was brought against Robert Pringle, who died before the issues were joined, and the case was revived in the name of his executrix. The answer admits the execution of the note, but makes three defenses thereto, viz.: First, that he executed it as president of the Mercantile Company, for which the manager had already signed on the back, that he as president was duly authorized to execute such for the company, that it was so understood at the time, and that he refused to execute it as an-individual; second, that it was without consideration as to him individually; and, third, that it had been compromised and settled — that he had paid his part in full, which had been accepted by the plaintiff. A reply was filed denying either generally or specially all of the allegations in defense. Very little evidence was introduced, because the trial court sustained the plaintiff’s objections to much that was offered by the defendant, and then sustained plaintiff’s demurrer to defendant’s evidence and rendered judgment for plaintiff on the note.
We will first consider the error assigned in sustaining the demurrer to the evidence, which is a question of law as to the sufficiency of the evidence actually introduced to constitute a defense to the note, regardless of the evidence excluded, because such evidence could not have gone to the jury if the demurrer had been overruled.
Z. M. Johnson, a salesman of the plaintiff, was called by the defendant, and testified that he had sold most of the goods to the Mercantile Company of Tribune; that he and another representative of the plaintiff, after going over the account with the manager of the Mercantile Company, made out the note in question, on the back of which the manager signed the name of the Mercantile Company by him as manager. Then he and the representative of the plaintiff went out to see Mr. Pringle and talked with him of the condition of the store, and he signed the note. He further testified that the note was given in settlement of the account of the Mercantile Company due on that date (March 4, 1925); that he remembered being in the office .of Mr. Glenn in Tribune in December, 1925, with a representative of another wholesale company, trying to get a settlement of the Mercantile Company accounts; that several of the stockholders of the company were there,"and a written agreement was made out to settle the accounts with the creditors; that Mr. Pringle was not at the meeting when the agreement was signed by the stockholders present; that he and the representative of the other wholesale house went to see Mr. Pringle; that the talk included the settlement of the note now in suit, as well as the open account of the Mercantile Company, the whole thing; that Mr. Pringle said he would be willing, if the other stockholders were willing, to all pay in so much per share, and Mr. Pringle gave him his check for something like $180, representing his share; that he came back to Tribune and cashed the check and then went to Mr. Glenn’s office. On cross-examination he said: “I told Mr. Glenn and the rest of the men present that I wasn’t the credit man, and had no authority from my house to make any final settlement, and anything they wanted to submit I would have to submit to the house for approval, and that I couldn’t make any final settlement.”
Mr. Glenn, attorney for defendant and appellant, was sworn, and testified he was a director in and secretary of the Mercantile Company, and was present at the conference of the stockholders with Z. M. Johnson in his office in December, 1925, and that Mr. Pringle was not present.
This is substantially all the testimony shown in the record, and while there is some testimony as to a settlement with Mr. Pringle of the note, it was conditioned on Mr. Pringle’s part upon the other stockholders being willing, of which we have no evidence except that those of them present at the conference signed an agreement, the contents of which we do not know. It was also conditioned upon the action of the plaintiff, because the testimony shows all the witness could do was to submit it to the house for approval.
. Appellant argues that the long time intervening between the ■acknowledged receipt of the cash from Mr. Pringle’s check would justify the presumption of approval on the part of the house. That would seem to be a violent presumption. Approval is a separate and distinct act from the submission of the proposition. Presumption of approval needs some step in the direction of approval which, with long intervening time, might justify such inference (22 C. J. 83 et seq.), and we do not have any such intervening step; we do not even have any evidence of the submission.
It is further argued that the evidence as to the obligation, the preparation and the execution' of the note, however limited, was sufficient to go to the jury as against a note of the form and character of the one in question. Was there sufficient evidence admitted to establish the intention of Mr. Pringle when he signed the note? The fact that he gave it in settlement of the account of the Mercantile Company will not relieve him, if otherwise obligated. That is substantially all the oral testimony given on’ that subject. We think it was not sufficient to constitute a defense against his individual liability thereon, even if an ambiguity existed in the note itself as to who was liable thereon. There not being sufficient evidence to constitute any defense to" the note, the demurrer was properly sustained.
“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.” (R. S. 52-604.)
“Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal does not exempt him from personal liability.” (R. S. 52-220.)
Counsel on both sides have ably and fully argued the question as to the legal effect of the signature to the note, but we can see no good purpose in going into that legal question here, where the defendant has admitted the execution of the note, accepted the burden of proof, thereby admitting plaintiff’s prima facie case, and where the demurrer has been sustained to the evidence in defense. Under such circumstances judgment properly follows in favor of plaintiff. But the exclusion of the evidence by the court is probably the reason the demurrer had to be sustained, if there was an ambiguity making parol evidence competent, and that brings us to the rule of procedure which has existed for twenty years, the application of which sometimes seems harsh, viz.:
“In all cases where the ground of the motion is error in the exclusion of evidence, want of fair opportunity to' produce evidence, or newly discovered evidence, such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.” (R. S. 60-3004.)
The excluded evidence was not produced in this case on the hearing of the motion for new trial, and the error, if any, in excluding it is therefore not reviewable.
“A ruling excluding evidence is not reviewable when the evidence was not presented to the trial court by affidavit or otherwise at the hearing of the motion for a new trial.” (Nutter v. Black, 126 Kan. 331, syl. ¶ 2, 267 Pac. 961.)
This applies to the exclusion of the evidence of the attorney in the case as well as that of the other witness, and the offer made in the record is not in compliance with the requirement of the statute. Many other cases could be cited sustaining this rule, but it is unnecessary.
Appellant’s counsel, in recognition of this rule, cited and presented decisions of this court which either directly hold, or by reference indicate, that such rule does not apply where a demurrer to the evidence is sustained and a judgment is rendered. There is no such exception in the statute, nor justified by it, but the decisions cited are confusing and should be explained. We will first consider the case of Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299, which refers to one earlier decision, and the same situation will apply to all earlier decisions on this question. In the opinion in that case it was said:
“A demurrer to evidence raises nothing but a question of law, and it is impossible for its decision to be a decision of the issues of fact. If sustained, it not only leaves the issues of fact undetermined, but it deprives the party against whose evidence it is directed of any opportunity of having them determined by a verdict, report or decision; and it is only ‘after’ a verdict, report or decision which, unless vacated, settles all controversy with reference to the issues of fact that a motion for the reexamination and settlement anew of those issues is in order. The suggestion in Gruble v. Ryus that an improper exclusion of evidence may have induced the ruling sustaining the demurrer to the evidence does not change the procedure which the statute plainly establishes. Both errors may be presented to this court without a preliminary motion for a new trial in the district court, because the abortive trial did not progress to a verdict, report or decision on the issues of fact.” (p. 286.)
This opinion was filed March 10, 1906. At that time the statute above quoted requiring excluded evidence to be produced upon the hearing of the motion for new trial had not been enacted and did not take effect until three years later. At that time the only requirement to produce evidence in connection with a motion for a new trial was to produce newly discovered evidence. (See sections 306, 308 and 309 of the civil code.)
The case of State Bank v. McBride, 115 Kan. 51, 222 Pac. 141, is the next one cited in this connection, which refers to the former decision but also recognizes and cites the new statute as follows:
“A motion for a new trial was filed and overruled, but at its hearing no evidence was produced, by affidavit or otherwise, of the facts the plaintiff’s witnesses would have testified to, as required by the civil code. (§ 307; R. S. 60-3004.) It has been said that where a demurrer to the plaintiff’s evidence is sustained rulings rejecting evidence offered by him may be reviewed without a motion for a new trial. (Wagner v. Railway Co., 73 Kan. 283, 286, 85 Pac. 299.) Whether or not a motion for a new trial was necessary to support an appeal from the rulings complained of, one was filed and considered and an opportunity was thereby afforded to advise the court of the force of the excluded evidence.” (p. 52.)
In two recent cases reference has been made to the cases above cited in connection with the present requirement under R. S. 60-3004, viz., City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963, and Berg v. Citizens State Bank, 127 Kan. 354, 273 Pac. 462. In both cases the present rule was observed, but inadvertently the prior rule was referred to as applicable where a demurrer to the evidence was sustained as stated in Wagner v. Railway Co., supra. This was the rule under the old statute, but the new statute of 1909 is general and permits of no exception of this kind.
Reverting briefly to the question of intention of maker, with reference to being obligated individually, we can readily recognize the force and application of the cases cited from other jurisdictions, but that intention was established by parol evidence in those cases, which was not sufficiently done in this case, and its exclusion cannot now be considered on appeal, because it was not produced on the hearing of the motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Bankers Mortgage Company brought an action upon a supersedeas bond executed by the defendants, H. J. Robson, C. D. Robson and J. W. Bramblett, which had been given upon the appeal taken by the Robsons from a judgment rendered against them and in favor of the Bankers Mortgage Company. When the bond was given the Robsons procured a stay of the judgment pending the determination of the appeal. The bond was signed by the Robsons and by J. W. Bramblett as surety and it recited that they “hereby undertake to the above-named plaintiff the Bankers Mortgage Company, a corporation, in the penal sum of $2,500, that said appellants will abide the judgment if the same shall be affirmed and pay the costs.” The judgment was affirmed on July 11, 1927. (Bankers Mortgage Co. v. Robson, 123 Kan. 746, 256 Pac. 997.) This action upon the bond was commenced on April 27, 1928, in which plaintiff alleged that the judgment remains unpaid and unsatisfied and it asks for judgment against the defendants for $1,-794.90. The execution of the bond was admitted, and Bramblett answered that later proceedings had been brought by the plaintiff against the Robsons, that a receiver was appointed who had on hand as proceeds from the rental property which was involved in the controversy sufficient funds to pay the amount claimed by the plaintiff in this action, and that he should be required to pay and apply the aforesaid funds to the claim made under the supersedeas bond. It was further alleged that the Robsons had directed the plaintiff and the receiver to pay from the funds on hand the amount of the claim herein involved. There was a further allegation that he signed the supersedeas bond as surety only without compensation to accommodate the defendants, and that if any judgment is rendered in favor of plaintiff in this action he would be entitled to a judgment against the Robsons equal tó the amount that might be recovered against him. He also set forth that by reason of the nonpayment of the claim involved here, from the funds in the hands of the receiver, defendant Bramblett had been required'to employ counsel and to make several trips from his home in Wichita to Ellsworth which has resulted in damage to the defendant in the sum of $500,. for which he prayed judgment.
In their answer the Robsons set forth the same claim with reference to the payment of this claim out of the moneys in the hands of the receiver that was pleaded by their codefendant, Bramblett.
The court made findings of fact setting forth the original proceedings, including the-appeal and the supersedeas bond given and the disposition made of the appeal, and then stated that on April 27, 1926, another suit had been brought for accrued rental in which judgment was rendered and that the judgment had not been appealed from, but remains unpaid and unsatisfied; that on the 28th day of April, 1926, a receiver was appointed in that action by the district court of Ellsworth county to take possession of the property, collect the rentals on the apartments in the hotel and insure the furniture against loss by fire, and the receiver was required to give a bond in the sum of $5,000, conditioned that he would faithfully discharge his duties as receiver in that action.
It was also found that two other actions had been brought by the plaintiff against the Robsons for rent that had then accrued, it being payable monthly, in which judgments had been rendered in favor of plaintiff and from which no appeals' had been taken, and that these judgments had become final and remained unsatisfied. There was n finding, too, that the plaintiff held a chattel mortgage on personal property of the Robsons, and the court had directed that an order of sale be issued for the sale of that property and the proceeds thereof brought into court to abide its further order, but that no sale of the property has yet been made. The court also found that the Robsons had demanded that the receiver take from the rents and profits collected by him and from the proceeds of mortgaged furniture of the estate and apply so much as would satisfy the judgment indebtedness involved herein. It was found that the plaintiff had received the sum of $1,784.10 in cash and the use of the hotel site of the building in controversy to the value of $1,650 covering a term of eleven months, and that the net balance remaining in the hands of the receiver after deducting fees and expenses amounted to $336. The court found as a conclusion of law that plaintiff was entitled to judgment against the defendants for $2,500 with interest thereon, and that the prayer of the defendants that the claim be satisfied and discharged out of the funds received by the plaintiff and the receiver should be denied.
The liability of the principals and surety on the supersedeas bond “became absolute when the judgment was affirmed and payment thereon was in default. (Harris v. Elevator Co., 66 Kan. 372, 71 Pac. 804, 4 C. J. 1280, 1298.) The claim that defendants were entitled to have the funds in the hands of the receiver applied on their liability upon the supersedeas bond did not constitute a valid dedense. The receiver was not appointed in the case in which the judgment was rendered. He was appointed in a subsequent suit between the same parties and the title to the property and assets of the insolvent defendants passed at once to him. He was the arm or agent of the court and was required to dispose of the property and .distribute the assets of the estate as the court in that case directed. Claims against the estate or the funds derived from it by the receiver must be presented to and approved by that court before pay:ment from the assets could be made. It was the function and duty of that court to supervise and direct the conduct of the receiver and rmalce all necessary orders as to the rights of claimants, including any existing rights of priority and preference. No claim was ever presented to the court to have payment of liability on the bond paid out of the assets in the hands of the receiver, if indeed any such ap-plication could have been considered. Anyone claiming a part of this fund which was in custodia legis should have applied to the court in the proceeding in which the receiver was appointed. The defendant, iBramblett, was not a party to that action and neither he nor the 'Robsons had any right in this action to require a disbursement of the fund or the application of other assets in discharge of their liability upon the supersedeas bond. When the matter of distribution -comes before the court there may be priority in some of the claims ..against the fund, as, for instance, the expenses of the receivership, and no distribution can be made until these questions are determined 'by the court in the case in which the receiver was appointed. The defendants say they directed the receiver to pay from the fund in ;his hands the judgment involved herein, but they had no right or authority to control the action of the receiver in the matter of the . disbursement of the fund. No claimant can insist on a share of the fund or interfere with the receivership except by order of the court appointing the receiver. (Cramer v. Iler, 63 Kan. 579, 66 Pac. 617. See, also, Fleeger v. Swift & Co., 122 Kan. 6, 251 Pac. 187.)
It appears from the finding of the court that the receiver has not . at any time had sufficient funds in his hands to satisfy the judgment rendered in the action in which he was appointed and pay the subsequent judgments for rent that plaintiff obtained. An obstacle to-the defense presented is that defendants are seeking to obtain from the receiver a share of the fund then in his hands in an action in which the receiver is not even a party. Neither was the defendant, Bramblett, a party in the receivership action and, as we have seen, has never applied there for a share of the fund. Besides, it appears that he has paid nothing upon the judgment involved or in discharge of his obligation upon the bond and is not in a position of a claimant. Neither have the other defendants paid anything on the judgment. If the defendants ever acquire a right to a share of the fund, they should present it in the receivership action where the court has the custody of the fund and the control of the receiver. None of the defendants has shown any right to share in the fund nor any defense to the action on the supersedeas bond and, therefore, the judgment must be affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to require specific performance of a contract to convey land. The question was whether the vendor could give good title. The cause was submitted to the court on an agreed statement of facts. From a judgment in favor of plaintiff defendant appeals. The agreed statement of facts is appended hereto.
The principal contention may be stated as follows: The deed referred to in paragraph 5 of the agreed statement of facts constituted a gift of the land to D.ora Raney from her husband; R. S. 60-1511 required that when divorce' was granted for fault of the wife, the land should be given to her as land separately acquired and owned by her after marriage; therefore the court was without jurisdiction to award the land to the husband.
It is true that R. S. 60-1511 provides that, if a divorce shall be granted for fault of the wife, the court shall restore to her all property separately acquired by her before or after marriage. It is also true the provision applies to gifts made by husband to wife. (Davison v. Dawson, 125 Kan. 807, 266 Pac. 650.) The section, however, provides further as follows:
“And to such property, whether real or personal, as shall have been acquired' by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the-parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same, apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect, a fair and just division thereof.” (R. S. 60-1511.)
The statute clearly contemplates that in adjusting property rights the divorce court may inquire into and determine property origins. In this instance the court made an investigation and found the land was acquired by the husband and wife out of their joint earnings after marriage. The statute provides that no matter in which party title stands the court may give property so acquired to either one. The question before the court was whether this provision becomes inoperative if, after joint acquisition, the husband deeds to the wife. Prima facie, the distinction in the statute is between property originally acquired separately by one spouse, and property originally acquired jointly by both, and when divorce is granted for fault of the wife it is not material whether title of property originally acquired with joint funds stands in one or the other, or both. In any event the question before the court was one of statutory interpretation. Manifestly the court had power to make a decision, and whether the decision was sound or unsound it was not void for want of jurisdiction. If the judgment was erroneous it could be corrected only by appeal. No appeal was taken, and the judgment is a final adjudication both as to marital status and property interests of the-parties.
The fact that the petition for divorce did not allege insanity and accrual of cause of action for divorce before insanity, did not vitiate it. It stated a good cause of action. Service was duly made on the defendant, she was represented by a guardian for the suit, and the-court’s express finding that plaintiff was entitled to a divorce was a general finding of all facts essential to a valid decree. In the opinion of the district court the provision made for the insane wife was fair, just and reasonable, as the statute required, and the court so found. The finding was not subject to review by the district court in this action, and is not subject to review here.
The judgment of the district court is affirmed.
APPENDIX.
AGREED STATEMENT OP PACTS.
It is hereby agreed by and between the plaintiff and defendant that the controversy involved in the above-entitled cause of action be submitted to the court'-on the following agreed facts:
1. That the contract, a copy of which is attached to plaintiff’s petition, was duly executed by plaintiff and defendant.
2. That plaintiff furnished abstract of title as agreed.
3. That the defendant paid the sum of $100 as earnest money.
4. That the property described in said contract was acquired out of the joint earnings of O. E. Raney and his wife, Dora Raney, and was conveyed' by warranty deed made and executed by E. R. Barnes, a single man, to O. E. Raney, September 15, 1899, a copy of said deed recorded at page 162 of vol. 273 of the records of Shawnee county, state of Kansas.
5. That on the 28th day of July, 1902, the said property was conveyed by warranty deed by O. E. Raney to Dora Raney, his wife, and deed recorded July 28, 1902, in vol. 290, page 322, records of Shawnee county, Kansas.
6. That in 1903 plaintiff entered into a contract with the Topeka Iron Co. for the purchase of a tract of land in North Topeka, and known as street number 301 East Curtis street, for a homestead, made all payments' for same, and received a deed to same from the Topeka Iron Co. July 19, 1911, which said property has been the homestead of plaintiff from the date of contract, and is at this time the homestead of plaintiff.
8. That on the 3d day of March, 1924, in case- No. 2251 in the probate court of Shawnee county, Kansas, Dora M. Raney, the wife of the plaintiff herein, was found to be insane and a proper person for care and treatment in some institution for the insane, and was committed to the state hospital for the insane in Topeka, where she is at this time.
9. That on October 28, 1927, this plaintiff filed suit for divorce against his wife, Dora Raney, being the same person as Dora M. Raney, the insane person; the petition setting out that no children have been born to this plaintiff and the said Dora Raney; that the defendant has been guilty of extreme cruelty toward plaintiff; that she has repeatedly and continuously ridiculed and belittled the plaintiff in his religious beliefs for a number of years.
10. That there is no allegation in the petition that the defendant therein was an insane person, or that the cruelty complained of took place before the defendant, Dora Raney, was adjudged insane.
11. That no guardian at any time has been appointed by the probate court of Shawnee county aforesaid, either of her person or property.
12. That no application has been made in the probate court aforesaid for the appointment of a guardian of either the person or property of the said Dora Raney; neither has an application been made to the said court for permission to sell real estate of the said Dora Raney for her support.
13. That in the said divorce action personal service of summons was had on the said Dora Raney on November 1, 1927, after which a motion was filed asking for the appointment of a guardian ad litem, who'on December 12, 1927, filed a general denial of all allegations in the petition, except those relating to the residence of the parties, the marriage, and no children, which allegations are admitted in the answer of said guardian ad litem.
14. That on March 3, 1928, the cause came on for trial, the plaintiff appearing in person and by attorney, and the guardian ad litem appearing for the defendant. After hearing evidence of plaintiff and his supporting witnesses, the court made the following findings’and entered the following judgment:
Thereupon the court, being fully advised in the premises, finds that each and all of the allegations contained in plaintiff’s petition were true and correct, and that the plaintiff is entitled to a divorce from the defendant.
It was further shown to the court, and the court found, that satisfactory arrangements had been made with the state board of administration for the keep and maintenance of the defendant in the state hospital, located at Topeka, Kan., whereby $2,000 should be placed by the plaintiff in trust with the National Bank of Topeka, city of Topeka, Kan., providing that the income and so much of the principal as might be necessary, after payment of the expenses of handling said trust estate, should be paid by said trustee for the support and care of the defendant in the Topeka state hospital, as required by the state board of administration, with the provision that any of said fund which might remain unused at the date of the death of the defendant, after the payment of all expenses, including her funeral expenses, should revert to the plaintiff or to his estate if deceased, and that upon depositing of said $2,000 the plaintiff should be relieved from further responsibility for support or maintenance of said defendant. The court finds that such provision is just, fair and equitable, and it is approved and decreed by the court to be in full settlement and satisfaction of all claims for alimony or maintenance of the defendant upon the plaintiff.
The court further finds that the plaintiff and defendant, out of their joint earnings since their marriage, have acquired the property located in the city of Topeka, Shawnee county, Kansas, described as follows, to wit:
The south ten (10) feet of lot one hundred thirty-seven (137) and the north nineteen (19) feet of lot one hundred thirty-nine (139) on Polk street, in the city of Topeka, Shawnee county, Kansas.
The title to the above-described real estate is now vested in the name of Dora Raney, the defendant, but such property is not her separate or individual property, but is the community property of the plaintiff and defendant.
The court further finds that the title to such property should be vested in the plaintiff by this decree, upon the payment of said fund of $2,000 to the clerk of this court for the National Bank of Topeka, trustee, as hereinbefore provided.
The court further finds that upon the payment of said $2,000 the defendant should be forever barred from any right, title, or interest in, or claim to, the real estate above described, or any of the property, either real or personal, now belonging to or hereafter acquired by the plaintiff.
It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff be and he is hereby granted an absolute divorce from the defendant.
It is further considered, ordered, adjudged and decreed by the court that the defendant be awarded alimony as follows, in full, of all claims against 'the plaintiff.
Within six months from this date the plaintiff shall pay the clerk of this court the sum of $2,000 in cash, which sum shall be paid over by the clerk to the National Bank of Topeka as trustee, and shall be held in trust by said trustee subject to the following conditions, to wit:
Said trustee shall keep the principal thereof invested and, after deducting the reasonable charges for acting as such trustee, shall disburse so much of the income or principal as may be necessary for the support and maintenance of the defendant, Dora Raney, at the Topeka state hospital, upon the order and •direction of the state board of administration of the state of Kansas, or any other person authorized by them; and upon the death of the defendant, Dora Raney, if any of the principal of said fund should then remain in the hands of the said trustee after the payment of all expenses of her care and maintenance up to the time of her death, and including the expenses of her illness and funeral, such balance shall be paid to the plaintiff or his estate, in the event of his death, by the trustee.
It is further considered, ordered, adjudged and decreed by the court that upon the payment of said $2,000 to the clerk of this court, the plaintiff be and he is hereby discharged from any and all further liability for the care and maintenance of the defendant; that the title to the real estate hereinbefore .■set out be and the same is by this decree vested in the plaintiff free and clear ■of any right, title, or interest therein, or claim thereto, by the defendant; and that the plaintiff be and he is hereby vested with full and complete title in and to any and all property, real and personal, owned by him or the defendant, or both of them, at the date of this decree.
It is further considered, ordered, adjudged and decreed by the court that this •decree shall not take full force or effect until six months from the date hereof; and that the plaintiff pay all costs of this action, including guardian ad litem fee of $35 for Glen J. Logan, the guardian ad litem herein.
(Signed) Geo. H. Whitcomb, Judge.
15. It is furthermore agreed that the said Dora Raney has living heirs, a mother, sister, and brothers, and that plaintiff owns other property in his own right acquired since Dora Raney was declared insane.
17. It is agreed that the defendant herein, Stella Matney, has paid out the .sum of $20 for examinations of the abstract of titles. | [
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The opinion of the court was delivered by
Johnston, C. J.:
G. D. Rohr brought this suit upon a promissory note executed by J. B. Senecal, of Rooks county, payable to the Midwest Hail Insurance Company, of Sedgwick county, which, it is alleged, was indorsed and transferred by that company to the plaintiff. Payment was demanded of Senecal, and was refused by him, and notice of the refusal was given to the insurance company. Both of these parties were named as defendants. Judgment was given against Senecal and the receiver of the insurance company for $100.78. Senecal appeals.
The suit was brought in Sedgwick county, where service was obtained on George A. Jeffery, who had been appointed receiver of the insurance company, and the summons was then sent to Rooks county, and served upon Senecal in that county. On July 25, 1928, he filed a motion to quash the service of the summons upon him on the ground that no cause of action was stated against the insurance company which had passed into the hands of a receiver, and that the company was only impleaded with him to enable plaintiff to institute an action against him in Sedgwick county instead of in Rooks county, where he resided, and that this was done in fraud of his rights “for the purpose of enabling the plaintiff to institute this action in Sedgwick county, Kansas, against the defendant, Senecal, a resident of Rooks county, Kansas.” The case was called for trial on August 24, 1928, when no appearance was made by or for Senecal, but the other defendant was represented by counsel. The court held that legal service had been made upon both defendants, and upon evidence presented rendered judgment against both. Senecal appeared on November 14, 1928, and moved the court to sustain his motion to quash the summons. He was permitted to present the motion and after a hearing it was overruled. Senecal contends that judgment by default could not be rendered against him when the motion attacking the service was pending and undisposed of.
The motion to quash the service should have been heard and decided before entering a judgment by default. It is a general rule that a judgment by default cannot be entered while a motion challenging the legality of service of summons upon a defendant is pending unless the motion itself shows that it is frivolous or absolutely without merit. (34 C. J. 171.) It is said in behalf of plaintiff that he was unaware of the pendency of the motion when judgment was entered, and that he has no objections to giving defendant his day in court.
There was service upon the defendant in a county other than the one in which the action was brought and wherein judgment was rendered. Valid service was made upon the other defendant in Sedgwick county and if a cause of action was stated against that defendant there was authority to make service on Senecal in Rooks county. But if no cause of action existed against the codefendant, or if it was not brought into the case in good faith, and it was joined merely to obtain jurisdiction of Senecal, the court was without power to enter judgment against him. Whether jurisdiction of Senecal was obtained depends upon whether the note upon which the action was brought is a negotiable instrument, and that a liability thereon existed against the insurance company. If the note was nonnegotiable and the transfer by the insurance company did not render it liable thereon, it was not a real party and the service upon Senecal in another county was unauthorized. The following is a copy of the instrument:
“$89.76. Zurich, Kansas, June 2, 1927.
“On or before the first day of S'ep., 1927, for value received, I promise to pay to the order of The Midwest Hail Insurance Company, at its office at Wichita, Kansas, the sum of ($89.76) eighty-nine and 76/100 dollars with interest at ten per cent from date, if not paid at maturity.
“To secure the payment of said sum of $89.76 and interest, I hereby mortgage unto said The Midwest Hail Insurance Company, or assigns, 90 aeres of wheat now growing or to be grown on S. E. quarter of sec. 32, twp. 10, range 19, and- quarter of sec. -, twp. -, range - N, in the county of -and state of Kansas, during the year 1927.
“And it is agreed that said sum of $89.76 and interest shall be a lien upon said crop until full payment is made. Said lien to be enforced as other lien on personal property, and it is further agreed that said sum shall become due at the time said crop shall be threshed. In case said crop shall be threshed before the first date above given, this note shall immediately become due and payable, and that no part of said crop will be mortgaged, sold or removed (except 25 per cent of the crop for the purpose of paying this note, harvesting and threshing expenses) from said premises until said debt is fully paid.
“I- further state that there is no encumbrance against said wheat except ( — —) and that I own and have a good right to mortgage the same.
J. B. Senecal.
“P. O. Address: Zurich, Rooks county, Kansas.
“(Indorsed on note) No. 6791. Agent: Lisenby & Stevens. Maker: J. B. Senecal. Postoffice: Zurich, Kansas.”
It will be observed that the instrument contains a number of promises and stipulations other than to pay a single sum of money at a certain time. Besides the fact that more than one date of payment is stated, there are stipulations and promises as to a lien upon a crop, the threshing of the same, that no part of the crop shall be mortgaged, sold or removed by the promisor until the debt is paid; that one-fourth of it may be sold for the purpose of paying the harvesting and threshing expenses and also the payment of the note; and a further stipulation as to the title of the property, that is, that there is no encumbrance on the property and that the maker owns and has a good right to mortgage the same. In Killam v. Schoeps, 26 Kan. 310, it was said:
“It is essential to the negotiability of paper that there is in it but the single promise to pay money. You may not incorporate with such a promise stipu lations and agreements as to other matters, and then say that the absolute promise to pay money lifts the contract into the region of negotiable paper. This is the general rule, and whatever exceptions there may be, this is not one. In 1 Daniel on Negotiable Instruments, § 59, the rule is thus stated: ‘In the sixth place, it is essential to the negotiability of the bill or note, that it purport to be only for the payment of money. Sudi at least may be stated to be the general rule, for if any other agreement of a different character be engrafted upon it, it becomes a special contract, clogged and involved with other matters, and has been deemed to lose thereby its character as a commercial instrument.’ Now this instrument touches other matters, and contains other stipulations and provisions than those respecting the payment of money. It is a contract in respect to the title to property. It is also a contract for the possession of property, and because of these additional stipulations it is something more than a simple promise'to pay money.” (p. 312.)
Manifestly the note contains stipulations which are foreign and distinct from the payment of money, and under the rule in the Killam case they are of such a character that it cannot be regarded as a negotiable instrument. See, also, Bank v. Gunter, 67 Kan. 227, 72 Pac. 842; Bank v. Heslet, 84 Kan. 315, 113 Pac. 1052; Bank v. Hoffman, 85 Kan. 71, 116 Pac. 239; Bank v. Engler, 112 Kan. 708, 212 Pac. 656. It is said that making the note due and payable if the threshing is done prior to the first date mentioned, and if no threshing was then done it would be absolutely due on the first date, would make the time of payment become certain. It is argued that where there is a fixed time of payment and the note is also made subject to a contingency of being payable upon the happening of a condition before the time of the absolute payment stated, it may be regarded as negotiable. The threshing is to be done at such a time as the maker chooses and not upon the option of the payee, but if the maker should attempt to sell or mortgage the property, the payee would be at liberty to enforce his lien and compel payment of the debt. There are authorities that where a note fixes a time of payment and also contains a provision that it may be paid at an earlier time, upon the option of the maker himself, it will not render the instrument nonnegotiable. (Clark v. Skeen, 61 Kan. 526, 60 Pac. 327.) But aside from the uncertainty as to the- time of thresh.ng, there are so many other promises and stipulations in the instrument that it cannot be held to be negotiable.
As plaintiff had not set forth a cause of action against the insurance company or its receiver, and no judgment could be rendered against it, that defendant was not a proper or necessary party. Not being rightly brought in Sedgwick county, there was no warrant for sending a summons to Rooks county, and the service of it upon Senecal there. His motion to quash the service should have been sustained.
The judgment is reversed and the cause remanded with directions to sustain that motion. ' | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in mandamus to compel the county assessor to tax the property of certain life insurance companies in accordance with the directions of the state tax commission. That commission determined and instructed the assessor that the provision relating to the taxation of - corporations, namely, R. S. 79-310, prescribes the governing rule in the assessment and taxation of the property of these corporations under which all capital stock is to be assessed at its true money value and that no deductions or exemptions should be made under other statutory provisions. On the other side it is contended that R. S. 79-324 provides a distinct and exclusive rule for the assessment and taxation of the assets and other property owned and in the control of insurance companies, and that such companies are entitled to deductions of nontaxable property which it owns and to such deductions and exemptions as are permitted under other statutes where taxes are imposed by a different method. The statutory provision for the assessment of general corporate property provides—
“That no person shall be required to include in the list of personal property any portion of the capital stock of any company or corporation which is required to be listed by such company or corporation; but all incorporated companies, except such companies and corporations as are specially provided for by statute, shall be required to list by their designated agent in the township or city where the principal office of said company is kept, the full amount of stock paid in and remaining as capital stock, at its true value in money, and such stock shall be taxed as other personal property: Provided, That such amount of stock of such companies as may be invested in real or personal property which, at the time of listing said capital stock, shall be particularly specified and given to the assessors for taxation, shall be deducted from the amount of said capital stock: Provided, That mortgages owned by any such company on property, real or pei’sonal, in any other state, shall not be deducted: Provided further, That real or personal property in any other state, or county in this state, shall be deducted if it be made to appear that the same has been duly listed for taxation in such other state or county in this state.” (R. S. 79-310.)
The other statute, which relates specially to life insurance companies, reads as follows:
“The property of all life insurance companies organized and operating under the laws of this state shall be subject to taxation for state, county, municipal and school purposes, as provided in the general revenue laws of this state. Each such company or association shall make returns: First, of all the real estate held or controlled by it; second, of the net value of all its other assets or values in excess of the legally required reserve'necessary to reinsure its outstanding risks, and of an3^ unpaid policy claims, which net value shall be assessed and taxed as the property of individuals: Provided, That nothing herein shall operate to exempt from such taxation the paid-up capital stock of such companies.” (R. S. 79-324.)
There is little if any conflict in the two provisions quoted. Section 79-324, relating especially to insurance companies, declares that the property and assets of such companies shall be subject to taxation for all purposes as provided in the general revenue laws of the state, and the principal provision for the taxation of all incorporated companies is found in section 79-310. Because of the peculiar character of the business and assets of insurance companies they are required to list first their real estate and the net value of all their other assets less the legal reserve which they are required to provide for the reinsurance of their outstanding risks, and also less the unpaid policy claims which really belong to insured persons. In order that there might be no misapprehension on account of the exceptions made as to reserve for reinsurance and unpaid policy claims, the legislature declared that nothing in the act should operate to exempt from taxation the paid-up corporate stock of such companies. Both sections provide for the listing and taxation of capital stock and the latter section refers in terms to the former one, accompanied with the declaration that nothing in the act should operate to exempt from taxation the paid-up capital stock of such companies. In measuring the value of the capital stock regard must be had to net value, or the amount of taxable valuation after deductions and exemptions provided for in this and other provisions of the general revenue laws have been made. This was determined in Life Insurance Co. v. Anderson et al., 117 Kan. 451, 232 Pac. 592, where deductions were refused for government bonds which constituted a part of the assets of the company. There it was held that—
“Under the statute.the property pf life insurance companies is subject to taxation for public purposes as provided in the general revenue law of the state. Such corporations are required to list or make returns of their property for taxation, and in doing so are to list the full amount of the paid-up capital stock which remains as capital at its true value in money. The stock is to be listed and taxed as personal property, and the public officers are enjoined to tax the stock as other personal property is taxed. Other taxpayers owning personal property, a part of which is government bonds, cannot be required to pay taxes on such bonds and are entitled to have the amount of the same deducted from the listed valuation.” (p. 453.)
This ruling is in effect controlling as to the right of the insurance companies to have deductions made from the true value of the paid-up capital stock for items of property that are exempt, and also to deductions for certain of their assets and securities taxed'in a different way under the general revenue statutes. Where their assets are made up of municipal bonds and the like, they are taxable under the intangible tax law of 1925, chapter 277, as amended by chapter 326 of the Laws of 1927, wherein it is specifically provided that such property shall be exempt from all other taxation. Where the securities owned or controlled by them are mortgages on real estate upon which registration fees have been paid in lieu of all other taxes as provided in chapter 273 of the Laws of 1925, corporations taxed on the outstanding shares of stock are entitled to deduct from the valuation of such shares the value of mortgages on which the registration fees have been paid. The right of corporations to deductions under the intangible tax law and upon mortgages where the registration fees have been paid was fully considered in Davis-Wellcome Mortgage Co. v. Haynes, 119 Kan. 1, 237 Pac. 918, where both of these laws were held to be Adalid and to warrant deductions by corporations of the taxes so paid from the taxable valuation of outstanding shares of stock. The plaintiff concedes that Davis-Wellcome Mortgage Co. v. Haynes, supra, and Life Insurance Co. v. Anderson et al., supra, are against its contention, and we are asked to reconsider and overrule them. These decisions were carefully considered with a full knowledge of their application and the effect of their operation, and we see no occasion to overrule or modify them.
Considerable is said about the results of the application of these statutes so interpreted to corporations like the one in question and of the unwisdom of the policy of the statutes which, as we have seen, constitute a part of the general revenue system of the state. But the wisdom or policy of statutes where they are within the constitutional limitations, or whether some other policy would be wiser and conduce to better results, is a question for the legislature and not for the courts.
Following the decisions mentioned, it must be held that while the insurance companies must make return for taxation of the paid-up shares of stock of such corporations, they are entitled to the deductions mentioned in R. S. 79-324, and to the other deductions from the listed valuation provided for in the general revenue laws of the state, where assets are taxed by a different method, and therefore the writ to compel the assessor to comply with the directions of the state tax commission is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one against the county for damages occasioned by the wrecking of plaintiff’s autotruck when it went off the unguarded end of a culvert. A demurrer to plaintiff’s petition was sustained, and he appeals.
The petition, which was otherwise sufficient, contained the following account of the accident:
“Plaintiff further says that at the time and place aforesaid, as he approached the place in the highway where said culvert was located and maintained, the steering arm of the said automobile truck suddenly broke, rendering the truck unmanageable, so that plaintiff was not able to control it; that plaintiff immediately decreased the speed of the truck by applying the brakes, and would have been able to pass safely over said culvert but for the absence of the guard rails required to be kept and maintained on each side thereof, he having arrested the motion of said truck to such degree that as the same approached the edge of the culvert its^ motion had almost ceased, and said truck could and would have been stopped entirely if the guard rail had been maintained as required by law; that upon reaching the edge of the culvert said truck fell into a, deep hole with such force as to become completely wrecked, . . .”
The statute reads as follows:
“That it shall be the duty of the county board on all county bridges and culverts, and the township board on all township bridges and culverts, to place and maintain at all times good, solid, substantial guard rails, not less than three (3) feet high on each side of all bridges, culverts, and trestlew’ork.” CR. S. 68-1110.)
This statute was interpreted in the case of Dent v. Jefferson County Comm’rs, 118 Kan. 519, 235 Pac. 873. The syllabus reads:
“The purpose of the statutory requirement that all bridges shall have guard rails along the sides is not alone to prevent a vehicle from running off, by interposing a barrier sufficient to stop or turn it, but also to help the driver to see the position of the bridge and direct his course accordingly.” (¶ 3.)
In the Dent case an automobile missed a bridge and plunged into the bridged ravine. The precise question was whether one purpose of the legislature in requiring guard rails was to disclose location of bridge or culvert in the highway. The court regarded it as obvious that one purpose was to interpose a barrier sufficient to stop, or turn the vehicle and prevent it from running off the bridge. This feature of the statute is directly involved in the present action, and the court adheres to the interpretation announced in the Dent case.
Defendant argues that the breaking of the steering gear, on account of which the truck became unmanageable, was the proximate cause of the accident. Normally a vehicle will not be driven near the unguarded edge of a bridge or culvert or come in contact with a guard rail. The statute, however, is based on experience. It con templates fortuitous deviation from the middle of the road, and the breaking of plaintiff’s steering gear merely brought his truck to the place where it should have encountered a proper guard rail. The initial accident had nearly spent its force. Motion of the truck had almost ceased, and a statutory guard rail would have arrested its progress. Because there was no guard rail the truck was not stopped, and the very harm which a guard rail was designed to prevent resulted. It is not necessary to thread the mazes of the decisions dealing with the subject of proximate cause. In this instance it is plain the dominating cause of the injury, in the legal as well as the physical sense, was absence of a statutory guard rail.
The judgment of the district court 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
Harvey, J.:
This is an action by a wholesale seed house against the railroad company for damages to two carloads of unthrashed blue-grass seed destroyed or damaged by fire while on defendant’s track near plaintiff’s warehouse, the fire having originated in the warehouse from unknown causes. The trial court rendered judgment for defendant, and plaintiff has appealed.
The action was submitted to the court below on an agreed statement of facts, the material portions of which may be summarized as follows: Plaintiff is a corporation engaged in the wholesale .seed business at Atchison. Its elevator and warehouse were constructed and maintained on lots or right of way of the defendant railroad company under a lease which contained, among others, the following provisions:
“In consideration of the premises, said lessee shall occupy said leased property at the lessee’s own risk entirely, and shall assume, and hereby does assume, all risk of damage by fire, water or otherwise, arising from the maintenance or operation of said lessor’s railway, over and upon, or near said property, whether such fire be caused by sparks from locomotives of said lessor, or in any other manner, while this lease is in force, and said lessee shall indemnify and save harmless the said lessor, from all loss, damages, charges, expenses and costs of every kind and nature, arising or that may arise from the death of or injury to any and all person or persons, upon, or going to or from, said property, or to the live stock, teams, or vehicles, belonging to or operated by said lessee, or other persons aforesaid, caused by said lessor or its employees, while operating locomotives or cars upon or adjacent to the leased property, and from injury to any and all buildings and other improvements erected or to be erected upon the land hereby leased, and from injury to any and all personal property in and upon said leased property, whether said loss, damages, expenses or costs shall arise out of the operation of said railroad or any branches, spurs, sidetracks or additions thereto, now or hereafter constructed, or shall arise out of fire set by engines or cars of said lessor, or from any other causes whatsoever, and the said lessee does hereby remise, release and forever discharge the lessor of and from all actions and causes of action at law or in equity arising or that may arise out of the matters and things aforesaid.”
Approximately ten feet to the rear and south of the premises leased from defendant by plaintiff the defendant maintained and operated a switch track which, at one time prior to the fire of September 14, 1922, served several industries, but at the time of such fire served only the plaintiff as an unloading track to the elevator and warehouse of plaintiff constructed on the leased premises. This switch track, and the land upon which it was constructed, was not under lease to plaintiff, but was the property of, and operated by, and under the control of the defendant. On or about September 8, 1922, plaintiff purchased from one Craig of Cawood, Mo., a quantity of unthrashed blue grass seed f. o. b. Cawood, Mo., which on that date Craig loaded into two cars for shipment to plaintiff. A shipper’s order bill of lading was issued at that point by the Chicago, Great Western Railroad Company covering both cars, which bills of lading were duly executed, and the cars were billed to the order of Craig with directions to notify plaintiff at Atchison. Under these bills of lading the defendant, through its agents and connections (The Chicago, Great Western Railroad Company and the A. T. &.S. F. Railway Company), contracted and became bound to deliver the blue-grass seed to the consignee in as good condition as received from the consignor, unless excused by provisions of contract or law covering existing facts. Both cars moved over the lines of the Chicago, Great Western Railroad Company from Cawood, Mo., to St. Joseph, Mo., thence over the A. T. & S. F. railway to Atchison, where they arrived on September 11, and at 2:45 p. m. on that day the agent of the A. T. & S. F. Railway Company notified the consignee, and plaintiff paid the freight charges. On September 12 plaintiff ordered the agent of the A. T. & S. F. Railway Company to switch both, cars to the defendant for delivery to plaintiff at its elevator and warehouse. Both cars were transferred from the A. T. & S. F. railway to the defendant’s line, in the customary manner and at the customary place for making such transfers, some time-September 12, and both cars were switched by the defendant and were placed at the usual unloading place on the switch track serving the elevator and warehouse of the plaintiff at 10:30 a. m. on September 13, all of which was known to plaintiff. About 5 a. m. on September 14 fire originating in the elevator and warehouse of plaintiff completely destroyed the elevator. At the time of the fire, and while the elevator was burning, the cars stood at the unloading track of the elevator, where they had been placed at 10 a. m. the previous day. As a result of the fire 334 bags of blue-grass seed were destroyed by fire. Plaintiff had paid $1,335.17 for the seed and $50 for the bags, and 216 bushels of blue-grass seed were damaged by water, creating an additional loss of $162. Freight charges in the sum of $97.26 had been paid by plaintiff on the two cars to the local freight agent of the Atchison, Topeka & Santa Fe Railway Company at Atchison. This payment of freight included freight or switching charges due defendant, being the published and lawful rate on file with the Interstate Commerce Commission. It was the habit and custom of plaintiff to unload all cars placed on the switch track at its elevator and warehouse for unloading on the day same were received, and it was customary for plaintiff to break the seals on cars consigned to it and placed at its elevator and warehouse on the switch track without special permission, or any agent of defendant being present, but neither of the cars was unloaded at the time of the fire. At the time of the fire it was the established rule lawfully on file with the Interstate Comm’erce Commission, and compulsory wit hall common carriers, to grant forty-eight hours' (two days) free time for unloading all commodities after car had been placed for delivery; that pn cars delivered on other than public delivery tracks the free time is computed from the first 7 a. m. after actual or constructive placement on such track; that actual placement is determined by the precise time the engine cuts loose; that any railroad track or portion thereof assigned by a railroad company for individual use will be treated “as other than public delivery track.”
Defendant argues that the covenants of the lease hereinbefore set out relieve it from liability. This is not an action to recover the value of the warehouse or elevator, or its contents, destroyed by fire caused by the railway company, nor for damages for personal injury to the agents or employees of plaintiff. Consideration of the provisions of the lease discloses its covenants do not specifically cover a release from liability for the loss and damages sought to be recovered in this action. When a carrier attempts to limit its common-law liability it should do so by language so clear that it cannot be misunderstood. (Heuman v. Powers Co., 226 N. Y. 205.) More than that, interstate carriers are not permitted to relieve themselves from liability as carriers by a stipulation in an independent contract such as the lease of an elevator or warehouse having no connection with the contract of shipment of the goods. (Grain Co. v. Railroad, 182 Mo. App. 339.) To permit this to be done would tend to violate section 2 of the transportation act, 49 U. S. C. A. § 2. The following cases, while not directly in point, have some bearing on this question: United States v. Union Stockyard, 226 U. S. 286; Lumber Co. v. Railroad, 270 Mo. 629; Fourche R. R. Co. v. Bryant Lumber Co., 230 U. S. 316; Central of Georgia Ry. Co. v. Blount et al., 238 Fed. 292; State Line & S. R. R. Co. v. Lehigh V. R. R. Co., 277 Pa. St. 227.
For a similar reason the fact that it was the custom of plaintiff to unload a car on the same day it was set on the track near its elevator for unloading has no bearing on the liability of defendant. It has been held that evidence of custom is inadmissible to impose a limitation on the earner’s liability. (United Artists Corp. v. Puget S. E. R., 122 Wash. 537.)
It is plaintiff’s contention that defendant’s liability as a carrier continued through the forty-eight-hour period of free unloading time provided for in the bill of lading and referred to in the agreed statement of facts, and that since the loss occurred within that time plaintiff should recover in this case. This ‘common-law liability of carriers has been many times stated by text writers and in the opinions of the court. Perhaps the statement in Milling Co. v. Railroad Co., 91 Kan. 783, 139 Pac. 397, is a clear statement of it so far as the case before us is concerned. It was there said:
“At the common law carriers were insurers of freight except for loss occurring from the act of God or a public enemy; and two other exceptions have gradually come to be recognized, viz., where the goods are taken by authority of law, or where the loss is occasioned by the act of the shipper.” (p. 788.)
That this was the liability of the carrier while the goods were being transported is not questioned. The real question is how long that liability continued, if at all, after the shipment had arrived at its destination. The question appears first to have arisen in this state in L. L. & G. Rld. Co. v. Maris, 16 Kan. 333. It was there held that the extraordinary liability of a railroad company as a carrier of goods extends not merely to the termination of the actual transit of the goods to the place of destination, but also until the consignee has.a reasonable time thereafter to inspect the goods and remove them in the usual hours of business and in the ordinary course of business, and that after the expiration of such reasonable time the carrier is responsible not as a carrier, but only as a warehouseman and for ordinary negligence. In that case the then conflicting views of the courts on the question were referred to, the authorities cited, and the merits of the rules discussed. In Mo. Pac. Rly. Co. v. Grocery Co., 55 Kan. 525, 40 Pac. 899, the rule declared in the Maris case was reaffirmed and held to apply to the facts in the case. That was an action for the value of two carloads of sugar destroyed by fire. The sugar had been originally shipped from New Orleans to the plaintiff at Wichita and transported over the Texas & Pacific railroad to Paris, Tex., thence over the Frisco to Wichita, where it was placed on a wye and switched by the Missouri Pacific to a spur track, owned and under its control, to plaintiff’s warehouse. The freight had been paid by plaintiff to the Frisco and included two dollars a car which the Frisco paid to the Missouri Pacific. The spur track was one that had been constructed by the Missouri Pacific for use in shipping carloads of merchandise to and from the warehouse of the plaintiff, and in fact served only that company. It was the practice, after cars were placed on this track, for the grocery company to break the seals, open and unload the cars without further nbtice to the railway company, or any of its agents or employees being present. The railway company placed the cars on this track at the usual place-for unloading by 'plaintiff on a Sunday afternoon. Sometime on Monday morning the store building of the grocery company burned, and the two carloads of sugar were burned. It is not claimed that the railway company was in any way responsible for this fire, or negligent concerning the same. The court held there had not been a reasonable time for unloading, and that the railway company was liable. These cases were referred to approvingly in Ward v. Railway Co., 87 Kan. 824, 826, 126 Pac. 1083.
Since the early decisions of this court above referred to, federal legislation (U. S. C. A. 49) has been enacted by which the rights of the parties in interstate shipments are governed. (Milling Co. v. Railroad Co., supra.) Under this legislation and the rules of the Interstate Commerce Commission the bill of lading contains a provision, among others, as follows:
“Property not removed by the party entitled to receive it, within forty-eight hours exclusive of legal holidays, after notice of its arrival has been duly sent or given, may be kept in car, depot, or place of delivery of the carrier subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only . . .”
Since these provisions have become controlling, in no case to which our attention has been called has this court passed upon the nature of the carrier’s liability within the forty-eight-hour period after notice of the arrival of the goods at destination has been duly sent or given. It will serve no purpose to refer to decisions of other state courts, since they are neither in accord nor are they controlling. (See Dec. Dig., Carriers, Key No. 114, 140.) In Milling Co. v. Railroad Co., supra, the goods had been shipped as directed by the bill of lading (although there had been an error in that) and reached their destination on April 4, and on that day notice to the consignee named in the bill of lading was duly sent. The fire which destroyed the shipment was on April 9. It was said:
“As observed, the bill of lading contains a provision that property not removed by the party entitled to receive it within forty-eight hours after notice of its arrival had been duly sent or given may be kept in car, depot or place of delivery of the carrier subject to the carrier’s responsibility as warehouseman only.” (p. 789.)
And it was held that, since the forty-eight hours had elapsed after the notice was sent, the liability of the carrier was that of a warehouseman only.
The question of the nature, of the carrier’s liability during the forty-eight-hour period has, however, been directly passed upon by the supreme court of the United States in Mich. Cent. R. R. Co. v. Mark Owen & Co., 256 U. S. 427. That action arose in the municipal court of Chicago for damages for loss on several shipments of grapes. We quote quite liberally from the opinion:
“It is stipulated that the cars were transported by the railroad company from their respective points of origin to Chicago, arriving there at different days and times of day. Upon the arrival of each car it was placed on a public delivery track of the railroad company and notice thereof given. Respondent accepted each car, breaking the seals thereof. And it is stipulated that, at the time respondent started to unload, each of the cars contained the number of baskets and pounds of grapes received for transportation. The loss, whatever there was, occurred after the acceptance of the cars and after their unloading had commenced, and whether the railroad company is liable therefor, and in what capacity liable — whether as carrier or warehouseman, or at all — is the question in the case.
“The answer depends upon the construction to be given to the first paragraph of section 5 of the bill of lading [which is then quoted].
“Regarding the words of the section merely, they are clear enough, and present no ‘double sense.' But controversies have arisen and judicial judgments have divided upon them. The point of the controversies has been, and is, as to the relation of the carrier to a shipment within forty-eight hours after notice of its arrival has been duly sent or given, and the contentions upon the point are in sharp antagonism. That of respondent is that the railroad company during the forty-eight hours is responsible as a carrier, this relation not terminating until the expiration of that time. The contention of the railroad company is contra, and that it is liable neither as carrier nor as warehouseman — not as carrier because the shipment had been delivered and accepted — not as warehouseman because no negligence has been proved against it. The supreme court decided against the contentions of the railroad company and held it liable for loss' on all of the shipments. As to three of them we may say immediately, in disposition of them, respondent withdraws any claim on account of them and confines the issue to one car which was undoubtedly unloaded within forty-eight hours of the notice of its arrival. There is question of the other cars.
“The importance of the issue, however, still remains, although it is concerned with only thirty-one baskets of grapes of the value of $8.68, and the difficulty of its determination is indicated by the fact of the diversity of judicial reasoning upon a like issue in other cases. And counsel have been at pains to set the cases in opposition with approving or disapproving comment of their own.
“The differences of the cases cannot be reconciled and a review of them for the purpose of selection would manifestly extend this opinion to a great length. Their outside principle is simple enough; the bill of lading is a contract between the transportation company and him who is interested in the shipment, and legal when within the policy and edicts of the law regulating that relation.
"By recurring to section 5 of the bill of lading, it will be seen that it supposes a contingency and provides for its occurrence. It supposes that property may not be removed when it has reached destination, and is available for delivery, and two periods of time are provided for. One of forty-eight hours after notice of the arrival of the property has been sent or given. During this time there is no declaration of the relation of the railroad company to the property. The other period commences at the expiration of the first or forty-eight-hour period, during which the provision is that the property is subject ‘to carrier’s responsibility as warehouseman only.’ The comparison has its significance and must be accounted for. Realizing this the railroad company 'makes a distinction. Its contention is that where delivery has been made of the property, as it insists was true in the case at bar, the responsibility of the railroad company as carrier immediately ceases. If, however, it is neither-delivered nor removed within forty-eight hours after notice of its arrival, the responsibility of the railroad company thereafter is that of ‘warehouseman only.’
“To the distinction and the contention based upon it the supreme court of the state answered that the bill of lading provides for property ‘not removed’— not to property ‘delivered’ or ‘not delivered,’ and it must be taken at its word.
“The answer puts too much emphasis upon the distinction between property removed and property delivered. The property here was not delivered; access was only given to it that it might be removed, and forty-eight hours were given for the purpose. Pending that time it was within the custody of. the railroad company, the company having the same relation to it that the company acquired by its receipt and had during its transportation.
“The bill of lading is definite, as we have pointed out, in its provisions and of the time at which responsibility of the company shall be that of warehouseman, and by necessary implication, therefore, until that responsibility attaches, that of carrier exists.”
There was a dissenting opinion which pointed out the far-reaching effect of the decision of the court and some hardships that might arise by reason thereof, which shows that these matters had the attention of the court.
We regard this decision of the supreme court of the United States to be controlling as to the nature of the liability of the carrier during the forty-eight-hour free unloading time. This same conclusion was reached by the supreme court of West Virginia in the case of Del Signore v. Payne, 89 W. Va. 275, where it was held:
“Section 5 of the conditions contained in such uniform bill of lading, properly construed, gives the owner forty-eight hours after notice by the.carrier of the arrival of the goods, within which to remove the goods before the-lia bility of the carrier as such ceases and its liability as warehouseman begins.” (Syl. ¶ 2.)
That is also the view taken by the court of appeals of Ohio in the case of L. & N. Rd. Co. v. Riley, reported in 27 Ohio App. 188.
The judgment of the court below is reversed, with directions to enter judgment for plaintiff for the sum agreed upon as plaintiff’s loss in the agreed statement of facts.
Dawson, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of mandamus to compel the secretary of a local lodge of the Fraternal Aid Union to call a special meeting of the lodge to elect a representative to the district convention of the association, which elects delegates to the supreme lodge. Plaintiff prevailed, and defendant appeals.
The Fraternal Aid Union is a fraternal beneficiary association organized according to the lodge system, and plaintiff is a member of Coffeyville lodge, No. 777. Defendant has been acting as secretary of the lodge by appointment of the president of the association. The by-laws of the association provided that a representative to the district convention should be elected at the first regular meeting of the lodge in May, 1929. The lodge had held no regular meetings for a number of years, and no regular meeting was held. A field man of the association and the secretary of the lodge discussed the subject of a lodge meeting to elect a representative to the district convention. They agreed on May 6 as the date of the meeting. The by-laws of the lodge, which was unincorporated, and performed the functions usually committed to local lodges under the supremacy of a supreme lodge, contained the following article:
“Article 4. Special meetings may be called by the president (or, in his ab sence, by the vice president, and in the absence of both these officers, by the secretary), upon written request of three members of this lodge, at any time, by giving at least two days’ notice, mailed to each member, or by personal notice by the secretary.”
No notices of the meeting of May 6 were mailed, but a number of resident members were notified personally, and a meeting was held, with a quorum present. F. M. Fritts was elected representative, and Guy Foland was elected alternate. Plaintiff had no notice of the meeting, and was absent from Coffeyville on May 6. Plaintiff desired to be a candidate for representative and, discovering what had occurred, he and four other members requested the secretary to call a special meeting to elect a representative to the district convention. The request complied with the by-law, but the secretary declined to call the meeting.
The statute reads as .follows;
•'.'“•Thd writ of mandamus may be issued by the supreme court dr-the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting .from an office, trust, or station; . . .” (R. S. 60-1701.)
The office of representative to the district convention of the Fraternal Aid Union is not an office existing under or recognized by any law of this state. It exists solely by virtue of the law of the association. The office is an honorary one, and no civil or property right of plaintiff is involved. This court has no legal standard by which to determine whether the election held on May 6 was of any effect. Credentials were issued to the persons who were declared elected, and whether the district convention would or would not be bound to recognize those credentials is a question for determination under the laws of the order. Let it be assumed the election held on May 6 was void under the laws of the order. This court has no legal standard by which to determine whether an election of a representative to the district convention at a special meeting, called pursuant to plaintiff’s request, would confer title or color of title to the office. To determine that question the court would be obliged to go to the statute book of the association, the first object of which, as declared in section 6 of its constitution, is to promote fraternal regard among its members.
Looking into the by-laws of the Fraternal Aid Union, the court discovers that the national president has power to interpret the laws and deside all questions of law of the association and, in conjunction with the board of directors, to pass on appeals. The bylaws also provide that members shall take their grievances to the tribunals of the association. The court has not examined the laws of the association to determine whether a specific method of bringing plaintiff’s particular grievance to the national president or board of directors is prescribed. Any method which would challenge attention would suffice. (Tucker v. Kirkpatrick, 106 Kan. 881, 883, 189 Pac. 946.) This court is not concerned, however, with whether plaintiff did or did not appeal to the national president, or with plaintiff’s reasons for whatever course he took. In essence and effect the proceeding was one to contest the election of Fritts and Foland, without notice to them and opportunity to be heard. Beyond that a judicial writ was sought commanding that a new election be held to give plaintiff opportunity to exploit his political ambition. Plaintiff’s interest is not one cognizable by a court, and if defendant owes any duty in the premises, it arises solely under the laws of the association, and not under any law referred to in the mandamus statute.
The district court was without jurisdiction. Its judgment is reversed, and the cause is remanded with direction to dismiss the action. | [
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The opinion of the court was delivered by
Dawson, J.:
The question in this appeal is the sufficiency of an oft-amended petition which succumbed before, defendants’ motions to strike and the order of court dismissing the action with prejudice.
The action was begun on December 17, 1925, when plaintiff filed his first petition, in which he set up a claim for $3,335.29 for services as attorney for a partnership comprised of defendants, which professional services covered a period of several years up to June 30, 1923. He also alleged that on January 31, 1925, his stated account for these services had been accepted on behalf of defendants by one of their number, J. W. Lough.
This petition was subjected to a motion to make more definite and certain, and without awaiting a ruling thereon plaintiff, on February 3,1926, with leave of court filed an amended petition setting up the facts alleged in his first petition and adding an allegation touching a contract of dissolution of the defendant partners, dated June 20, 1923, whereby J. W. Lough undertook to conduct the partnership business until it could be wound up and its debts paid. To that first amended petition defendants filed a demurrer, which was not ruled on, and on August 13,1926, by leave of court, plaintiff filed a second amended petition in which he again pleaded his employment as attorney for defendants and his services thereunder from January 1, 1921, to June 20, 1923, and set up his claim for compensation therefor. To this second amended petition plaintiff attached an itemized statement of account which roughly approximated the amount prayed for in this and the two preceding petitions. This petition, however, did not mention the account stated which had been pleaded in both prior petitions.
To this second amended petition separate demurrers were lodged by two groups of defendants, the grounds therefor being that it did not state a cause of action, and showed on its face that plaintiff’s claim was barred by the statute of limitations.
Again, without awaiting a formal ruling on these demurrers, on November 13, 1926, plaintiff filed a third amended petition which differed in no substantial particular from the facts pleaded in the original petition and in the first amended petition. It narrated plaintiff’s employment and services as attorney for defendants up to June 20,1923, the statement and acceptance of his account by J. W. Lough on behalf of defendants on January 31, 1925, and pleaded the contract between the defendant partners which pertained to the winding up of the business and the payment of its debts by J. W. Lough as liquidating partner.
This third amended petition was subjected to separate motions to strike on various grounds — that it was frivolous, a mere repetition of the first amended petition already “held defective on demurrer,” and a departure from the first and all succeeding petitions filed prior to June 20,1926.
These motions were sustained on April 4,1927, but leave was given plaintiff to file instanter his fourth amended petition, which once more alleged the facts of plaintiff’s employment and services as attorney prior to and down to June 20, 1923, and defendants’ indebtedness to plaintiff thereunder as shown by an itemized account attached to the petition. In this petition a second count was formulated purporting to be founded on the same claim for attorney’s services, and which set up the contract of the defendant partners whereby J. W. Lough was to serve as liquidating partner, and pleading the statement and acceptance of plaintiff’s account by J. W. Lough on defendants’ behalf.
To this fourth amended petition some of the defendants filed a motion to strike on the ground of departure. Others filed a motion pleading departure, repetition of earlier pleadings abandoned by plaintiff, and repetition of the first amended petition “held bad on demurrer.”
The trial court sustained these motions, dismissed the action with prejudice and entered final judgment accordingly. Hence this' appeal.
Before considering the propriety of the judgment on its merits it is needful to settle a dispute which has arisen in this court between counsel touching the disposition in the trial court of defendants’ demurrer to plaintiff’s first amended petition. According to plaintiff’s abstract that demurrer was not passed on, and plaintiff was permitted either expressly or without objection to file a second amended petition. In that situation, it serves no purpose for counsel for defendants to volunteer a statement to the contrary. It was their duty to supplement the abstract with something of record, even if that had to be provided by court order nunc pro tunc, to show that the trial court had sustained the demurrer to the first amended petition. (Rules of the Supreme Court, No. 5; Platts v. Thompson, 126 Kan. 544, 549, 268 Pac. 833, and citations.) Failing that, this court must accept the record submitted by plaintiff as correct. However, this matter is of little consequence unless there was a substantial departure between the first and last petitions filed herein which might be affected by the statute of limitations or by the time allowable for appellate review.
What about this question of departure? The proper answer will be discovered by a careful examination of the nature of plaintiff’s claim. Against a plea of departure or variance under our liberal civil code the precaution of prime importance in the amending of pleadings is that the cause of action or defense be not materially changed. (R. S. 60-759; Bogle v. Gordon, 39 Kan. 31, 17 Pac. 857; Culp v. Steere, 47 Kan. 746, 750, 751, 28 Pac. 987; Grand Lodge v. Troutman, 73 Kan. 35, 37, 84 Pac. 567; Kibby v. Kernel, 81 Kan. 229, 231, 105 Pac. 696; Taylor v. Railway Co., 81 Kan. 232, 68 Pac. 691.) In the original petition plaintiff’s claim was one for services as an attorney, with the additional allegation that his claim therefor had been simplified and settled by an account stated. Defendants did not like the issue thus tendered and lodged motions against that petition. In an effort to formulate an issue upon which they might be willing to join, plaintiff, as was his privilege, filed an amended petition. It continued to plead his claim as one for attorney’s services. In none of the suceeeding amended petitions did it ever cease to do so. Ordinarily a question of departure in a plaintiff’s pleadings only arises when there is a seeming inconsistency between the petition and reply, but the really important fault of departure arises where there is a palpable inconsistency between the earlier and later pleadings of a litigant which prevents his adversary from squarely joining issues with him on material matters, and which, if countenanced by the court, would substantially change the action or defense from what it had been at its inception. (Johnson v. Bank, 59 Kan. 250, 52 Pac. 860; Surety Co. v. Bragg, 63 Kan. 291, 65 Pac. 272; Sturgeon v. Culver, 87 Kan. 404, 124 Pac. 419.)
In Hunter v. Allen, 74 Kan. 679, 685, 88 Pac. 252, it was said:
“New matter in the reply which the plaintiff is forced to plead in order to-meet the allegations of the answer will not constitute departure if it does not contradict the facts stated in the petition and if it is not adopted as a new basis for relief in place of the cause of action presented by the petition.”' (Syl.)
In Minter v. Shearer, 117 Kan. 511, 512, 232 Pac. 249, it was said:
“By the decision in Hunter v. Allen the court intended to sweep away finical notions of departure which had previously prevailed, and to restrict application of what was left of the doctrine of departure to those instances in which actual prejudice might result from confusion of issues.”
In Phillips on Code Pleading, section 273, it is said:
“Departure in pleading is the dereliction of an antecedent ground of complaint, or of defense, for another that does not fortify the former. This is forbidden, because if the parties were allowed at pleasure to abandon the ground of complaint or defense first asserted and to resort to another, the pleadings would be prolonged, the formation of ah issue delayed, and the foundation of the action, or of the defense, might be entirely changed. At common law departure may take place in any pleading subsequent to the plea; in code pleading it can occur only in the reply.”
Counsel for appellees cite good authority that an action brought upon an account stated cannot be established by proving the items of the account (Coal Co. v. Stallsmith, 89 Kan. 81, 83, 129 Pac. 831), and vice versa, an action upon an open account cannot be maintained by proof of an account stated. (1 C. J. 660, 661; id. 724.) But that sensible rule does not forbid a litigant to plead all the material facts. Plaintiff’s original petition contained allegations sufficient to state a cause of action upon a genéral account for services, and sufficient to state a cause of action upon an account stated, yet it was clear that no dual recovery was sought. Under technical rules of pleading the facts as alleged in plaintiff’s original petition in one count could always be formulated in alternative counts, one on the original indebtedness for his services, and one on the account stated. In Goings v. Patten, 1 Daly (N. Y.) 168, it was said:
“But a party might always join with an account stated a, count for the original debt, and if he failed upon the one, he might recover upon the other. (1 Saunders on Pleading and Evidence, p. 42.)” (p. 170.)
In 1 Chitty on Pleadings, 16th Am. ed. 473, it is said:
“In framing the pleading rules of Hil. Term, 4 W. 4, it was considered that in assumpsit and debt on simple contract it is just that the plaintiff should be at liberty to proceed as well for the original debt as also upon any admission that it is due, and therefore the rule expressly provides, ‘that a count for money due on an account stated may be joined with any other count for a money demand, though it may not be intended to establish a distinct subject-matter of complaint in respect to each of such counts.’ ”
“A party may join a count for the original debt with a count upon an account stated, and, in such condition of the pleadings, should he fail upon the account stated, he may recover upon the original debt; and the converse is likewise true. . . .” (1 C. J. 724.)
See, also, Phillips on Code Pleading, 185-188.
Tested by these authoritative views, the fourth amended petition contained no substantial departure from the cause of action pleaded in plaintiff’s original petition, nor from that pleaded in either of the later intermediate petitions, and the grounds urged in defendants’ motions to strike were insufficient to justify the ruling of the trial court thereon, and the final judgment which followed was erroneous. We have not failed to note that the second amended petition contained no allegation concerning an account stated, but that matter was of no consequence since that petition was abandoned. Nor is it important, if true, that some of these amended petitions were filed without formal leave of court. The fourth amended petition with which we are presently concerned was filed by leave of court, and our only concern is whether the essential nature of plaintiff’s claim has been changed since the inception of the action. That controlling question must be decided in the negative; and it follows that the judgment must be reversed and the cause remanded for further proceedings.
Reversed.
Hutchison, J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.;
The defendant made application to the district court of Reno county for a modification of the judgment in a divorce action between the plaintiff and the defendant by which the custody of their minor children was given to the plaintiff and certain alimony was given to her for their support. The defendant asked that he be given the custody of the children; that he be given the use and possession of the home theretofore set aside as the home of the children; and that the decree of the court with reference to alimony be modified. The court refused to modify the decree concerning the custody of the children or concerning the use and possession of the home, but did reduce the amount of alimony that should be paid to the plaintiff for the support of the children from $100 per month to $50 per month. The court refused to allow any attorney’s fee to the plaintiff for resisting the application. She appeals.
In order to get a fair understanding of the circumstances surrounding the present application, it is necessary to look into the previous litigation between these parties.
We quote from Hipple v. Hipple, 121 Kan. 495, 247 Pac. 650, as follows:
“Lulita Hipple brought this proceeding to vacate and modify a judgment that had been rendered divorcing her from her husband, giving her the custody of three minor children, setting aside and placing in trust property of the defendant for the plaintiff and the children by providing that it should be held in trust for the children; that plaintiff should reside thereon as long as she remained single, and that if the children died before the death of defendant the property would revert to him, but if he died first then the property should go to the children absolutely. It was also decreed that defendant should pay to plaintiff as alimony $150 per month, and also pay to her for the support of the children $100 per month. Jurisdiction of the case was retained by the court for the purpose of modifying the judgment as to alimony and allowances for the support of the children. The decree was entered June 29, 1925, and on August 25 plaintiff filed a motion alleging that the terms of the decree were unjust towards her; that she had been led to believe by her attorneys that more liberal allowances of alimony would be awarded; that she informed her attorneys that she did not desire a divorce, but was led to believe that if she did not obtain a divorce one would be awarded to the defendant; she also alleged that when the case came up for trial, which was very brief, attorneys gave her no advice or information; that they filed no motion for a new trial and did not have a record made of the testimony taken at the trial . . . Testimony was taken on the motion to vacate the judgment, and at the conclusion the motion was denied.
“Plaintiff contends that the action of the court in the trial for divorce betrayed an attitude of prejudice against her; that attorneys did not fairly represent her; that the amount of property owned by the defendant was not fairly presented to the court, and that she consented to ask for a divorce because of statements by the court to the effect that a divorce would be granted to her husband if she did not amend her petition and ask for one.” (pp. 496, 497.)
The next appearance of these parties in this court is found in In re Hipple, 124 Kan. 3, 256 Pac. 1015, where this court said:
“This is an original proceeding in habeas corpus wherein Floyd Hipple, a resident citizen of Hutchinson, seeks to obtain the custody of his two small children now with their mother, Lulita Hipple, who resides in Wichita.
“The pertinent facts are these: In June, 1925, the parents, Floyd and Lulita Hipple, then residents of Hutchinson, Reno county, were divorced. Lulita was given the custody of their three children, Miriam, Betty Jean and Francis Byron. The eldest daughter, Miriam, presumably because she was of an age which privileged her to choose her own guardian, continued to make her home with her father, the petitioner herein. The petitioner’s fine modern ten-room, well-furnished family residence, situated in spacious grounds in a restricted district, close to school and church and to a city park, was set apart by the court as a home for the children, together with a monthly allowance of $100 to the mother for their maintenance, and the mother was given the privilege of residing in the home thus provided so long as she remained unmarried, and she was also awarded $150 per month on her own behalf as alimony. The father was permitted to visit the children at reasonable intervals, and he was required to pay the taxes and insurance on the home and keep it in repair. (See Hipple v. Hipple, 121 Kan. 495, 247 Pac. 650.)
“That arrangement was followed until early in 1926, when the mother went to Excelsior Springs for two months, leaving the two children in their father’s care. Later, in the summer of 1926, the mother took the two children to Peck, in Sumner county, and a month later to Wichita, where she rented an apartment of two rooms and a kitchenette and set up housekeeping therein for herself and the children, and had them enrolled in the Wichita city schools.
“The father complained of this to the district court, and that court dispatched the sheriff of Reno county to Wichita to bring the children back to their Hutchinson city home. He was halted with a writ of habeas corpus issued by one of the judges of the Sedgwick county district court at. the instigation of the mother. Before this latter judge the father also sued out a writ of habeas corpus for the possession of the children, setting up the Reno county judgment and certain supplementary orders of that' court. The two cases were heard together and judgment was entered in favor of the mother.
“To speedily determine the best interest of these children, which manifestly is in danger of being lost sight of in the hostile and litigious proclivities of their parents, and to put a summary quietus on what bids fair to develop into a scandalous conflict of jurisdiction of district courts, the original and paramount jurisdiction of this court is invoked. . . .
“This court holds that the excuse of the father’s alleged drunkenness, profanity and violence, if true, did not warrant the respondent in taking the children from their home. We think the matter of immediate and paramount concern in this lawsuit is that these two children be promptly returned to their home in Hutchinson, and the order of this court will be to that effect. But the court is reluctant to deprive the mother of their custody, and for the present it will not do so if she is disposed to return with them to their home in Hutchinson. Neither is the court convinced as to the father’s alleged unfitness to have the custody of the children, so if the mother does not choose to return with them to their home it will be this court’s order that the custody of the children be transferred from the mother to the father. If the mother returns with the children to the Hutchinson home, the father will be privileged as heretofore to visit them at reasonable intervals, to wit: twice a week in the daytime, at which specified intervals he may take them to places of amusement and automobile riding. And it will be the further order of this court that if hereafter the mother shall have any reasonable basis to complain against the petitioner on account of drunkenness, violence or profanity during his visits to the children, or by disturbing her peace in any other fashion, she may invoke such redress as this court, or the police authorities or the courts of Reno county can afford.” (pp. 3, 4, 6.)
The plaintiff applied for a change of venue on the ground of the bias and prejudice of the trial judge. Her affidavit was read in support of her application, which was denied. The court in passing on the application took cognizance of his feelings and attitude toward the plaintiff. In Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100, this court said:
“The allowance or refusal of an application for a change of venue rest's largely in the discretion of the court.” (Syl. ¶ 3.)
“As to the bias and prejudice of the judge, the court was not bound to consider only the statements in the affidavits of the appellant, but could also take into consideration his own consciousness of the facts, and, knowing his own mind and feelings, he could overrule the application on the ground that the facts stated were not true. The allowance or refusal of an application for a change of venue is a matter resting largely in the sound discretion of the court, and error will not be predicated thereon unless there is good ground for believing that the appellant has been prejudiced by the refusal to grant the request.” (p. 624.)
See, also, Vaughn v. Hixon, 50 Kan. 773, 32 Pac. 358, and Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190.
The history of the litigation between the parties to this action is found in the two decisions of this court from which extensive quota'tions have been set out. This court takes judicial notice of one of those decisions, and the other one was brought into the record by reference to it. That litigation, together with the knowledge of the judge’s feelings toward the plaintiff, justified him in refusing the application for a change of venue under the discretion vested in him by law.
The judgment recites the following finding of fact made by the court:
“The court further finds that all alimony, together with the money to be paid by the defendant to the plaintiff for the support and maintenance of said children, has been fully paid, up to the date of this hearing.”
The plaintiff complains of that finding and argues that it was unjustified because it was not within the issues made by the pleadings. It was not directly within the issues, but it was a fact to be considered in determining whether or not the judgment concerning alimony should be modified. The finding may have been irregular, but it was not sufficiently irregular to justify a reversal or modification of the order of the trial court.
The plaintiff contends that the district court had no jurisdiction to modify the award of alimony because this court in In re Hipple, 124 Kan. 3, 256 Pac. 1015, said:
“For the present this court will retain jurisdiction of this cause for such other or further orders as events shall justify.” (p. 7.)
Nothing was involved in that case except the custody of the children. The, order from which the present appeal is taken did not make any order concerning the custody of the children except that—
“The court, having heard the evidence, and being fully advised in the premises, finds that said motion should be denied, provided, however, that should the plaintiff at any time refuse to permit the defendant to see and have said children, in accordance with the prior order of this court, said custody should thereupon be forthwith transferred to said defendant.”
The court had jurisdiction to modify the award of alimony. No change was made in the custody of the children and that question is not now before us.
The plaintiff made an application for an allowance of $500' attorney’s fee, which was denied; of that denial she complains. In this state it has long been the practice to allow attorney’s fees to the wife in divorce actions. In the present case the wife was allowed alimony for the support of herself and the minor children. A court granting a divorce has power to change the award of alimony in a. subsequent proceeding brought for that purpose. In a proceeding to reduce the amount of alimony previously awarded to the wife she has the right to resist the application for the reduction and has the right to be represented by counsel. Where she has no means of employing counsel, except by taking from the alimony awarded to her, she should be allowed a reasonable attorney’s fee for resisting the application, the amount of such fee being within the sound discretion of the trial court. Under the circumstances disclosed in the present proceeding, a reasonable attorney’s fee should have been allowed to the plaintiff.
The judgment is affirmed as to the custody of the children and the award of alimony, but the judgment disallowing an attorney’s fee is reversed and the cause is remanded to the trial court with directions to allow a reasonable attorney’s fee to plaintiff for resisting the application of the defendant. | [
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'The opinion of the court was delivered by
Hopkins, J.:
This is an original proceeding in mandamus by ithe attorney-general to compel the bank commissioner to return to certain banks bonds deposited by them and held by him, under the provisions of the bank guaranty law. (R. S. 9-201 et seq.) The bank guaranty law was repealed by chapter 89 of the Laws of 1929, and provision made for the return of such bonds. The bank commissioner questions the validity of the act. The section requiring return of the bonds reads:
“The state bank commissioner is hereby authorized and directed to return to all banks participating in said depositors’ guaranty fund which have paid all assessments made by the bank commissioner up to the time this act takes effect, all bonds and money deposited with the bank commissioner as security for the payment of such assessments. The state treasurer shall return to the state bank commissioner all such bonds and money upon request of said bank commissioner.” (Sec. 2.)
The defendant contends that the act is unconstitutional because it deprives certificate holders in failed banks which were members of the guaranty fund of vested statutory rights without due process of law.
A brief review of the depositors’ guaranty law as it existed prior to the enactment of the act in question may be helpful. (R. S. 9-201 to 9-217.) There had been some amendments to the law since 1923, but they are immaterial here. R. S. 9-201 provided for the voluntary membership of state banks in the state guaranty fund. No bank was compelled to become a member. Each acted voluntarily through its board of directors and stockholders in applying for membership. R. S. 9-202 provided for the deposit of bonds or money as evidence of good faith that the depositing bank would pay all assessments levied against it during its membership and otherwise comply with the requirements of the act. At the time of the passage of chapter 89 only thirty-three banks remained members of the depositors’ guaranty fund, and they could not withdraw the bonds deposited by them except in compliance with the then existing law. The statute provided that—
“Any bank electing to withdraw from the bank depositors’ guaranty fund may do so by giving notice to the bank commissioner and displaying a card as aforesaid, and at the expiration of the six months as aforesaid, may receive its bonds (provided always that said bank shall have paid assessments in full to date) when the affairs of all failed banks in liquidation at the expiration of said six months shall have been closed up and the bank shall have paid its assessments on -account of same.” (R. S. 9-205.)
R. S. 9-204 provided that when any bank, a member of the depositors’ guaranty fund, should fail, the bank commissioner should issue a certificate bearing six per cent interest to each of its depositors secured by the fund for the amount of his deposit; that dividends be paid the certificate-holding depositors until the assets of the failed bank were exhausted; that after the payment of the last dividend by the officer in charge of the failed bank, the balances due on certificates issued as aforesaid should be certified to the bank commissioner, who should draw checks for the balances due, payable to the various depositors, on the depositors’ guaranty fund. R. S. 9-202 provided for the making of assessments by the bank commissioner upon the member banks to the amount of one-twentieth of one per cent of the available deposits of a member bank eligible to guaranty, less its capital and surplus. R. S. 9-203 provided for the annual assessment of a like amount against member banks and also that in extreme cases the bank commissioner might make as many as five assessments during the calendar year.
When the several state banks made application to become members of the system, it was necessary for them to deposit bonds, money or other securities, with the state treasurer subject to the order of the state bank commissioner, as a guaranty that they would pay all the assessments which shotdd become due during the period they were members of the system, and that they would abide by the provisions of the bank guaranty law, which included the declaration that “any bank electing to withdraw . . . may receive its bonds . . . when the affairs of all failed banks in liquidation at the expiration of said six months shall have been closed up and the bank shall have paid its. assessments on account of same.” (R. S. 9-205.) In other words, when there were failed banks against which certificates of deposit had been issued it was the duty of the bank commissioner not only to levy assessments on the other members of the system with which to pay the certificate holders but, when necessary, to exhaust the bonds on deposit to satisfy certificate holders of all failed banks whose affairs were not closed at the end of said six months.
State, ex rel., v. Bone, 120 Kan. 620, 244 Pac. 852, was a case in which the state, on relation of the attorney-general, sought to compel the bank commissioner to sell the bonds of certain banks for the payment of unpaid assessments levied by the bank commissioner against such banks. In the opinion it was said:
“As to the bank voluntarily withdrawing under that act, its bonds pledged should be returned to the withdrawing bank unless at that time there are certificates on the guaranty fund which have been issued to depositors of failed member banks then in process of liquidation. If such certificates are outstanding and it is necessary to make future assessments to replenish the depositors’ guaranty fund so that such certificates may be paid, the bonds (or money) pledged of the withdrawing bank can be converted into the bank depositors’ guaranty fund only to the extent that they may be necessary to pay assessments later made to replenish the bank depositors’ guaranty fund to enable it to pay the certificates drawn on that fund in favor of depositors of failed member banks then in liquidation. If all of its bonds pledged are not needed for that purpose, the residue should be delivered to the withdrawing bank. These bonds (or money) were pledged for that purpose, and, like any property pledged for a specific purpose, may be sold to the amount necessary to make good the purpose of the pledge.” (p. 629.)
See, also, Thompson v. Bone, 122 Kan. 195, 251 Pac. 178; State, ex rel., v. Bone, 125 Kan. 818, 266 Pac. 85.
It is argued that the banks noted in plaintiff’s petition had paid up all assessments until the time of the repeal of the act in question and co'mplied with every legal requirement of the state bank commissioner, and that to use the bonds for the purpose of liquidating claims on the guaranty fund after payment of the required assessments would be a different use from that for which the bonds were pledged. 'This contention cannot be sustained. The banks had not complied with all the provisions of their pledges until the affairs of all failed banks not'liquidated at the end of six months had been closed. Their bonds constituted a trust fund for the benefit of certificate holders of such failed banks; and while the legislature could repeal the bank guaranty act, it could not destroy or take away the fund then existing, to the detriment of such certificate holders. Each certificate holder had a vested right to a certificate bearing interest at the rate of six per cent.per annum for the amount of his deposit; a vested right to be paid from the assets of the failed bank and from the*depositors’ guaranty fund. He had likewise a vested right to partake of the proceeds of the bonds then on deposit.
We conclude that chapter 89 of the Laws of 1929 was valid in its repeal'of article 2, chapter 9 of the Revised Statutes of 1923, but that it was invalid and of no effect in so far as it attempted to authorize return of the bonds in question.
The writ is denied.
Marshall, J., dissenting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to open up a judgment obtained by default in favor of Cora Ford and against W. H. Blasdel, upon the ground that the defendant was prevented by unavoidable casualty and misfortune from making a defense. The judgment was set aside and plaintiff appeals.
An earlier motion had been filed by defendant to quash the summons and to set aside the judgment rendered on the ground that no summons was served upon him, that he had no knowledge of the action or judgment, and that therefore the court was without jurisdiction. He asked that the summons be quashed and the judgment set aside. After hearing testimony as to the residence of the defendant, and as to the place in Wichita where a copy of the summons had been left on the theory that it was his usual place of residence, the court overruled the motion. Following that ruling the defendant then filed a verified petition to vacate or open up the judgment for unavoidable casualty and misfortune by which he had been prevented from defending against plaintiff’s action. In compliance with the code provision the defendant set forth the grounds for the opening of the judgment and also pleaded his defense to the action. On the showing made on this petition the court determined that defendant had been prevented by unavoidable casualty from presenting his defense, and that having set forth a meritorious defense he was entitled to be let in to defend. Plaintiff contends that the decision denying the motion to quash the summons and set aside the judgment for lack of jurisdiction is an adjudication which barred the original petition to vacate or open up the judgment in order that a defense might be made. The contention is not sound. The first motion challenged the jurisdiction of the court because of insufficient service of the summons, and the second proceeding was brought after the term and'on the assumption of the defendant that there was jurisdiction, but that he by reason of unavoidable casualty had not been permitted to present a meritorious defense which he had to plaintiff’s action. While some of the testimony given in the latter motion as to movements of the defendant and his residence at the time the action was brought and pending was presented on the motion to quash the service, the two proceedings, however, were distinctly different, were based on different grounds and brought for a different relief. One treated the judgment as a nullity and the other as an existing adjudication which would be binding unless set aside for equitable reasons prescribed by law. The statute provides that for certain reasons, one of which is that a defendant who was prevented from making a defense by unavoidable casualty or misfortune, a party may have the judgment set aside and be permitted to defend if he satisfies- the court that he has a meritorious defense to the action. (R. S. 60-3011 et seq.) The former ruling is in no sense a bar to the proceeding to open up the judgment. In Cheyenne County v. Walter, 83 Kan. 743, 112 Pac. 599, it was held that the fact that the defendant had challenged the validity of a service and the jurisdiction of the court does not preclude defendant from making an application to have the judgment opened up and be given an opportunity to defend. In .that connection it has also been said:
“Where the second application is for different relief, as, for instance, where the former motion was to vacate a judgment as a nullity, and the second is to open such judgment and let the applicant in to defend, or vice versa, the denial of the first motion is no bar as to the second.” (34 C. J. 389.)
It is argued that the evidence was not sufficient to warrant the action of the court in opening the judgment. There was conflict in the evidence, but it is sufficient, we think, to sustain the ruling. The statute under which the judgment was opened up is remedial in its nature and must be liberally interpreted. (Cheyenne County v. Walter, supra; Dunlap v. Denison, 83 Kan. 757, 112 Pac. 598.) Of that statute it has been said:
“Indeed, in order to do justice .to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can possibly be done consistent with the rights of other parties.” (Albright v. Warkentin, 31 Kan. 442, 445, 2 Pac. 614.)
It was the province of the court to weigh the evidence as to whether the casualty or misfortune relied on was real or an affectation. It has been ruled that:
“Whether or not the plaintiff by unavoidable casualty was prevented from defending was a question of fact to be determined from the evidence. That question was determined against the plaintiff on evidence which supported the finding of the court. That finding is therefore conclusive at this time.” (Pease v. Reser, 122 Kan. 433, 252 Pac. 211.)
It may be said that in granting or refusing an application of this kind, the court’ is vested with considerable discretion. On the record of the case it cannot be said that there was an abuse of the sound judicial discretion vested in the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The Kansas Wheat Growers’ Association commenced an action against the plaintiffs for an injunction to restrain them from purchasing wheat from any member of that association, obtained a restraining order and gave bond in the sum of $500 with the Western Surety Company as surety. That restraining order was afterward set aside and the action dismissed. The plaintiffs in the present action sued on the bond and recovered judgment, from which the defendants appeal.
The defendants demurred to the petition of the plaintiffs and to the evidence introduced by them in support of that petition, and requested certain special instructions. Their demurrers were overruled, and the court refused to give the instructions requested. The defendants complain of those adverse rulings. All of the questions argued by the defendants may be reduced to one proposition, and that is that because the plaintiffs did not allege or prove any damage sustained by them except what was connected with and incident to their efforts to secure a dissolution of the restraining order, they are not entitled to recover any judgment whatever on the bond.
The petition alleged:
“That by reason of the issuance of the temporary restraining order as aforesaid the plaintiffs have been greatly damaged; that they have been obliged to lose considerable time and have been put to a great deal of inconvenience and expense in defending themselves in said cause, and have been obliged to obligate themselves to pay attorney fees in the sum of five hundred ($500) dollars.”
There was evidence which tended to prove that J. L. Keppler, who was manager of the plaintiff elevator company, spent a considerable portion of time in going to and returning from Wichita for the purpose of securing the dissolution of the restraining order, and that for the same purpose the plaintiffs had obligated themselves to pay a reasonable attorneys’ fee, which was shown to be $500. The evidence disclosed that the elevator company was engaged in the purchase of wheat at Garden Plain, Kan., and that neither of the plaintiffs knew who were members of the Kansas Wheat Growers Association.
The elevator company was engaged in a legitimate business with the right to purchase wheat from any person who had the right to sell wheat. There is nothing in the statute prohibiting one person from buying wheat from another person who is a member of an association organized under the statute. As between the member of the association and the association, the member would not have the right to sell a third person the wheat which the member had agreed to sell to the association; but the right of the association to purchase the wheat grown by its members did not go to the extent of prohibiting persons not members of the association from purchasing wheat from its members. There is no principle of law that prohibits an elevator company from purchasing wheat from a member of the wheat growers association where the company does not know that the seller is selling wheat that he had contracted to sell to the association. When the temporary restraining order was issued it prohibited the plaintiffs from doing what they had a legal right to do.
There was evidence which tended to prove that the plaintiffs did not intend to purchase wheat from any member of the wheat growers association. That fact is the keystone of the argument of the defendants. They say that if the plaintiffs did not intend to purchase wheat from any member of the wheat growers association they were not prohibited from doing anything that they wanted to do. The evidence showed that it was difficult for the plaintiffs to ascertain who were and who were not members of the wheat growers association. Compliance with the injunction imposed a burden on the plaintiffs not imposed by law. They were justified in resisting the imposition of that burden. To do so it was necessary for them to spend time and money in addition to employing attorneys, all of which are proper elements of damage to be recovered by the plaintiffs under the bond.
In Miner v. Kirksey, 113 Kan. 715, 216 Pac. 284, this court said:
“Expenses, including attorneys’ fees necessarily incurred in obtaining the dissolution of a temporary injunction upon a motion made pending the litigation and before a hearing upon the merits, may be recovered in an action on the injunction bond after it has been finally decided that the injunction was wrongfully issued, and where the plaintiff dismisses his action upon the dissolution of the temporary injunction.” (Syl. ¶ 1.)
See, also, 32 C. J. 470.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued the defendant for a divorce. Divorce was granted to him and he was ordered to pay to the defendant $1,227 in cash and she was given a one-half interest in the mineral (oil and gas) rights of the plaintiff in certain real property in Cowley county. From that judgment the defendant appeals.
The defendant argues that the evidence was insufficient to support the judgment granting a divorce to the plaintiff, and that it was error to grant a divorce to him. She did not want a divorce, and in her brief says she refused to accept one. There was evidence which tended to prove that the defendant was almost constantly quarreling with the plaintiff; that she did not take care of their home; that she interfered in the business of the plaintiff, which was that of a wholesale representative of brick manufacturers doing business in the state of Kansas; that she neglected him during his serious illness; and that she falsely accused him of communicating to her a venereal disease. The abstract discloses that the defendant was of an excitable, uncontrollable disposition, and that it was diffi cult for the court to get her version of the difficulties between herself and her husband. After a careful examination of the evidence, as disclosed by the abstracts, this court is unable to say that the judgment was not supported by evidence or that .the court committed error in granting a divorce to the plaintiff.
Complaint is made concerning the amount of alimony awarded to the defendant. There was evidence which tended to prove that the plaintiff owned a one-seventh interest in 160 acres of land in Illinois of the value of about $150 an acre, all encumbered by a mortgage of $4,000; that he owned a one-seventh interest in 560 acres of land in Cowley county of the value of $35 to $50 an acre, his interest in which was encumbered to the extent of $2,500; that the plaintiff was the representative in Winfield of brick manufacturing companies doing business in the state of Kansas, and had an office and office fixtures and an automobile, which the testimony tended to prove was of the value of $2,000; and that the financial statement submitted by the plaintiff to the. court, covering a period of one year, showed receipts from his business of $10,280.11, expenses of $9,590.37, and an indebtedness of $10,617. The plaintiff’s interest in the Illinois land, according to the evidence, amounted to $2,857, and in the Cowley county land to $3,385.70. Disregarding the encumbrances thereon, the plaintiff’s land values, calculating the Cowley county land on the basis of $42.50 an acre, amounted to $6,242.70. His personal property would increase this to the sum of $8,242.70. The Cowley county land was shown to be in the vicinity of an oil field. The defendant was given one-half of the 'plaintiff’s interest in the oil or gas that might be produced from that land, and judgment for $1,227. This court is unable to say that the trial court committed any reversible error against the defendant in the award of alimony to her.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a bank, the payee of a promissory note, to recover from the makers. The defense was that the makers executed the note without consideration and solely for the accommodation of the bank. Defendants prevailed, and plaintiff appeals.
The note sued on was dated March 10, 1927, was for $4,000, payable on September 10, 1927, and was secured by real-estate mortgage. The makers were M. M. Richardson and his wife, Maggie L. Richardson. The payee was the Hudson State Bank. F. W. Tretbar, a practicing physician, was president of the bank. Two of his brothers, one a physician and the other a dentist, were stockholders. E. O. Anderson was cashier. M. M. Richardson had two .sons, Clayton, aged twenty-three, who was an automobile salesman at Mulvane, and Raymond, a high-school boy fifteen or sixteen years old, who was a clerk in a drug store at Stafford, and had an aspiration to become a pharmacist. R. B. Paine had a drug store at Hudson. In January, 1925, Clayton Richardson, who had no money, bought the drug store, and, by previous arrangement with the bank, paid for the drug store by his check on the bank for $8,347. After the transaction of sale was concluded, Clayton Richardson gave his note to the bank for the amount of the check. Afterwards M. M. Richardson signed the note. Clayton’s wife and mother also signed, but it is not necessary to carry their names throughout the narrative. In April or May, 1925, the original note was taken up by two notes, one for $4,000 signed by M. M. Richardson, and one for the remainder of the original note signed by Clayton Richardson. The note sued on was a renewal of M. M. Richardson’s $4,000 note.
The testimony of the Richardsons concerning the origin of the notes and the circumstances under which they were executed cannot be reconciled with the testimony of the bank officers. The ■court and jury accepted the testimony of the Richardsons, and this ■court has no further interest in the opposing testimony. The testimony of the Richardsons disclosed that M. M. Richardson received no consideration whatever for the notes he signed, was not assisting his son to purchase the drug store, and signed purely for accommodation of the bank, when assured he would not be obliged to pay.
It would serve no useful purpose to present the testimony at length. It is sufficient to say the sale of the drug store to Clayton Richardson was brought about by the president of the bank. The president said Paine was largely indebted to the bank, did not make a success of the drug store, the bank was likely to lose money on him, and they intended to get rid of him; it took no money to buy the drug store, the bank would finance the purchase, the store would pay it out, and all the bank wanted was interest and somebody to run the store. The cashier of the bank procured Clayton Richardson’s signature to the original $8,000 note, saying he expected they had better be putting up a note or something to show how the check went through the bank for the store. Afterwards the president procured the signature of M. M. Richardson as a favor to the bank, because, on account of the limited capital of the bank, it could not lend that much to one man; it was an excess loan for the boy, and it would look-better for the bank. When the original note was divided, the cashier told Clayton Richardson the doctors were going to take up the paper as soon as they could; Clayton’s responsibility to the bank was not cut down, and he still owed the bank $8,000, the amount of the two notes; Clayton’s father would not be held responsible, and they had his father sign a note and mortgage until they could take care of 'it themselves. The president procured M. M. Richardson’s signature to the $4,000 note under the representation the bank examiner was hot after the bank on account of the $8,000 note, it had to be reduced, and the only way the president knew was to make two notes out of it. M. M. Richardson testified as follows:
“So I told him, I says, ‘F. W., now supposing the boys can’t make a go of this thing, you will have me stuck.’ ‘Why,’ he says, ‘Mote, as long as we have been friends, and you know Mr. Anderson, and as long as you have knew him, do you think we would defraud you in that manner?’ He said, ‘It is only to get by the bank examiner so we can carry this note through the bank here and the boys can have all the time they want;’ and with that persuasion he came up and put his arm around my shoulder, and I consented to sign that mortgage.”
In the course of some of the conversations the word “security” was used, and M. M. Richardson spoke of signing as security, but the testimony made it clear that M. M, Richardson was not furnish ing security for Clayton Richardson. What M. M. Richardson did he did to help the bank in the matter of the drug-store sale and its consequences, and not to help his son. It is this distinction which makes the cases cited by plaintiff inapplicable here. In Stevens v. Inch, 98 Kan. 306, 158 Pac. 43, Miss Inch, who was without funds, desired to purchase a millinery business. It was represented to her that if she gave her note it would hurt her credit. So to help her, her mother and brother gave a note. In Bank v. Watson, 99 Kan. 686, 163 Pac. 637, Blitz had borrowed from the bank all the money it could lend to one person. To help Blitz get more money, which the bank desired to lend, Watson gave his note. In Bank v. Pirotte, 107 Kan. 573, 193 Pac. 327, it was Peter Pirotte, and not the bank, who was accommodated when his mother signed his notes. In Swan Savings Bank v. Snyder, 124 Kan. 827, 262 Pac. 547, a borrower from the bank could not pay at maturity, and was requested to get security to obtain an extension. He and not the bank was accommodated when his mother signed the renewal note. These cases illustrate the principle involved, and it is not necessary to refer to others.
In this instance Clayton Richardson had all the credit he desired and needed without his father’s help. The bank agreed to finance him, and did so. It permitted him to buy the drug store with a check on the bank, and then took his note for the amount of the check. Subsequently, for its own purposes, the bank needed M. M. Richardson’s assistance to carry out the bank’s drug-store scheme. The result is, the original and subsequent notes were given without consideration so far as M. M. Richardson was concerned, and for the benefit and accommodation of the bank. (National Bank v. Williams, 117 Kan. 501, 232 Pac. 252.)
There remains the question whether M. M. Richardson was forbidden to urge want of consideration. He was privileged to do so unless he intentionally and understanding^ aided the bank officials in a scheme to deceive the bank commissioner concerning the true character of the paper which it held.
M. M. Richardson did not assist Clayton Richardson in obtaining or the bank in making the excess loan. Credit had been extended to Clayton Richardson, the money had been spent, and Clayton Richardson had given his note for it before M. M. Richardson was asked to sign. When he was asked to sign all he knew was the bank was not able to lend that much money to one man, it was too much for Clayton to’ carry through the bank in his own name, and the bank could not handle it that way. All he intended was to help the bank carry the paper. An excess loan note was not taken out of the bank, and the note of a competent borrower substituted as a sound asset, as in the case of State Bank v. Olson, 116 Kan. 320, 226 Pac. 995. In that case the contested note was signed by a director of the bank. She was the wife of the cashier. Her purpose was to mislead the banking department. She intentionally participated in a transaction designed to deceive. In this case M. M. Richardson, j anitor of the Hudson school building, was in effect requested to do a formal act recommended to him by the president of the bank as necessary to enable the bank to promote its interests and to provide a drug store which would pay itself out and be a credit to Hudson.
When the first note was divided “to get by the bank examiner,” M. M. Richardson’s comprehension of the transaction was that as a favor to an old friend he was helping the bank to comply with a requirement of the bank examiner. The jury made a special finding on the subject. The finding was, M. M. Richardson did not know and understand and intend that his note and mortgage would be placed among the assets of the bank and be passed on by the bank examiner as assets of the bank. He merely understood he was satisfying the bank examiner. The finding expresses a fair inference from the testimony.
The distinction to be made in cases of this character is quite like the distinction between fraud in law, which regards consequences only, and fraud in fact, which regards intention to deceive or defraud. The distinction was recognized in the case of Holloway v. Gano, 125 Kan. 3, 262 Pac. 573. In that case the defense that the note sued on was given to the payee without consideration and for its accommodation, was established against the receiver of a failed bank. Concerning accommodation of the bank the court said:
“It is not at all unreasonable for this accommodation to have been asked for and given to the bank. The bank was new and, as said by its president, could not well stand the loss of 70 per cent on the paper of Rust, occasioned by the bankruptcy proceedings. By the complicated deal it was reasonable to hope that the bank would ultimately collect the full 100 per cent, notwithstanding the bankruptcy proceedings.” (p. 10.)
One of the issues in the case was whether the maker of the note knew and understood the note was executed and delivered for the purpose of being placed in the bank as an asset and for the purpose of deceiving the directors of the bank and the banking department. It was argued in the brief for the receiver that as a business man the maker should have known the effect of his act. The court said that whether he did know and understand was the important thing, and it would not avail the receiver if the purpose (of the president of the bank who solicited execution of the note) was to deceive, but the maker did not know it.
Some special findings of the jury are criticized. The first special question was compound, and the answer responded to the portion relating to the bank’s ownership of “any interest” in the drug store. The amount of Paine’s indebtedness to the bank and' his solvency were not matters on which the rights of the parties depended. They were important only as they bore on the question whether the bank desired to get rid of Paine, and it did desire to get rid of him. In answering the third special question the jury did not credit the testimony for the bank. If the answers to questions four and five were not strictly accurate, they were not far wrong. The tenth question, relating to how the bank was accommodated, was compound, and by its answer the jury doubtless intended to say the bank would be better secured by getting Paine out of the drug store and getting the Richardson boys in.
The foregoing disposes of the merits of the case. The questions involved were questions of fact: First, was the note given without consideration, to accommodate the bank? Second, did M. M. Richardson intentionally participate ip a transaction with knowledge that its object and purpose were to falsify the assets of the bank and deceive the banking department? The verdict answering both questions in his favor was sustained by sufficient evidence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a suit by the First National Bank in Carmen, Okla., against the defendant, an individual, upon his guarantee of a certain note for $2,500 and interest, designated as the Arkansas note.
The defendant in his answer alleged a reciprocal relationship between the old bank at Carmen, called the Carmen National Bank,, assignor of the plaintiff at and prior to the time of giving the note and guarantee, and the Fairview State Bank, another Oklahoma bank twenty miles distant therefrom, by which each of said banks borrowed from the other when in need of currency or having excess loans by giving and assigning notes as collateral security for such loans. Defendant also by way of set-off and counterclaim set up two notes assigned to him by the Fairview State Bank on which it had loaned to the bank that was assignor of plaintiff the face value thereof many years before and for which the present notes were renewals as collateral for such loans. These notes were known as the Winslow note and the Allen note, which were for $1,500 each. The trial court made findings of fact and conclusions of law and rendered judgment for the defendant for $98, allowing the plaintiff’s claim and the set-off thereto, the $98 being the amount in excess of the claim of the plaintiff. From this judgment the plaintiff appeals.
The appellant treats its several assignments of error under four headings as follows:
1. That plaintiff as a purchaser of the assets of the Carmen National Bank was not liable for these two notes held by the defendant.
2. That the Carmen National Bank was not liable on these two notes or the ones for which they were substituted.
3. That there was no liability on the Winslow note, because if it was given for collateral the account was barred by the statute of limitations and there was no assignment of the account to the defendant, and because all the benefits from the two notes went to Winslow and not to the Carmen National Bank.
4. That plaintiff is not liable for more than sufficient to offset plaintiff’s claim.
The findings of fact and the evidence show that the Carmen Na tional Bank went into the hands of a receiver in January, 1924. All three of these notes were past due at that time. One C. W. Watson, acting for the purchasers, investigated the condition of the bank, its assets and liabilities, and was informed of the disputed claims upon these three notes. The new bank, plaintiff herein, was organized and purchased the assets about one month after the failure of the old bank. Watson became president of the new bank and the cashier of the old bank became the cashier of the new. The evidence also shows the old bank entirely discontinued business, the new one taking all of its assets and assuming liability for its deposits and certain other obligations enumerated and listed in the contract of purchase, the Winslow and Allen notes not being in the list. The only additional assets of the new bank were the $40,000-new capital.
Appellant urges the well-recognized doctrine that:
“Where one bank purchases the business and takes over the deposits of another bank, in the absence of an express contract to that effect, it cannot be held for the liabilities of the bank purchased, other than its deposit liabilities.” (Farris v. Hodges, 59 Okla. 87, syl. ¶ 3.)
And the further rule that even where the officers of the old and new bank are the same, unless there is fraud, the purchaser at a receiver’s sale may limit its liability to that assumed in the contract. But these cases do not approach the question of merger or consolidation as is claimed to be in this case. The case of First State Bank of Mangum v. Lock, 113 Okla. 30, cited and relied upon by appellant, had in it none of the elements of merger or consolidation. The old bank continued to exist and liquidate and was even joined with the purchaser as a defendant in the litigation. In the case of Farris v. Hodges, 59 Okla. 87, cited, there was no evidence tending to show that the purchasing bank assumed any of the liabilities of the selling bank and none to show it was a mere continuation of the former. Neither was there any evidence as in this case to show that the officers of the new bank were fully informed and acquainted with all the disputed claims of the litigating parties. The distinction is clearly pointed out in Riegel v. Planters State Bank, 100 Okla. 42, as follows:
“If the Planters State Bank acquired the assets of the Mountain Park State Bank by an unconditional sale, and paid value for such assets, then there is no liability. If, however, the transaction between the Mountain Park State Bank and the Planters State Bank is a consolidation or a merger, or if the Planters State Bank is a successor of the Mountain Park State Bank in a legal sense, then the Planters State Bank is liable for the indebtedness.” (p. 43.)
In the second place, appellant strenuously insists that the old bank was not liable on the Winslow and Allen notes nor the ones for which they were substituted.. In this connection complaint is made as to the introduction of oral evidence to show the contract between the banks as to the borrowing of money from each other and the purpose and method of transferring notes as collateral security. There was no attempt by the oral evidence to show an undisclosed principal or to alter or vary the terms of a written instrument. The oral evidence tended to show the plan and terms of procuring and making loans and securing the account by assignment of notes as collateral and renewing of and substituting for such notes. The following are portions of the findings of fact along this line which appear to us to be fully supported by competent evidence:
“During the latter years of the Bowling administration there grew up between the two banks a reciprocal relationship or arrangement by and through which the two banks would exchange notes from their note cases and each bank credit the other bank with the notes received, and would also exchange currency when either of the banks needed an increased reserve of" currency. Notes so exchanged were not discounted, but were credited at face value, the sending bank usually being charged six per cent interest upon the notes and at the collection of the note the sending bank was credited with the difference between that rate and the rate which the notes bore. Generally the sending bank was responsible for the collection and paid the incidental expenses therefor. Frequently notes were renewed from time to time and the renewal notes forwarded to replace the former notes.
“The matters were handled between the various banks by means of oral conversations between the presidents thereof and also through written correspondence and telephone communications. These would take place from time to time as exchanges in notes or dealings between the banks required.
“From time to time, and contemporaneous with the making and renewal ■of the notes in question and with other transactions between the banks through correspondence accompanying the various notes, agreements and understandings were entered into between the two banks as to the handling of its paper. An understanding and custom of handling papers had also grown up between the two banks through a period of a number of years.
“By reason of the agreements between the two banks and in the handling ■of the various notes, including the Allen note and the Winslow note and their predecessors, each bank was carrying an account for money loaned to the other bank and holding the notes as collateral security for the loan. Each bank had a right to charge back in the account any objectional notes held for the other bank. Each bank became engaged in the role of debtor and creditor as to the other bank as their accounts and transactions might show from time to time.”
The oral evidence as to such a contract between the banks and the use of the notes in connection therewith was well confirmed by numerous letters transmitting the notes and the renewals thereof. Such evidence and the findings thereon come well within the ruling in the case of Bank v. Bank, 98 Kan. 563, 159 Pac. 403.
“A judgment rendered on an oral contract between banks concerning the transfer of notes and credit given will not be reversed when based on a general finding, where the evidence is not clear as to what the oral contract was, but shows that the contract was afterward confirmed by letters which referred to the oral contract but did not state the complete terms thereof, and the contract is partly explained by the subsequent conduct of the parties.” (Syl. ¶ 1.)
“Where notes are transferred from one bank to another by indorsement, evidence to show the contract between the banks as to the purpose for which the notes were transferred is competent.” (Syl. ¶ 2.)
The opinion in the case of Bank v. Bank, 116 Kan. 303, 226 Pac. 998, relied upon by appellant, distinguishes that case from the case in 98 Kansas above cited by showing that in one the oral evidence was used to vary the terms of a written instrument, which is entirely different from outlining the terms of a loan contract and the use of collateral security therefor and that being confirmed by a number of letters putting such plan into actual use and operation. It was further held in 98 Kansas, supra:
“Negotiable promissory notes are indorsed for various purposes; sometimes for the purpose of transferring all title, sometimes as collateral security for other obligations, and sometimes for collection, or other purposes. The purpose for which the notes are indorsed rarely, if ever, appears in the indorsement. It is not necessary that the purpose shall so appear. The evidence objected to was competent.” (p. 566.)
The decision in Hanover Nat. Bank v. First Nat. Bank, 109 Fed. 421, a Kansas case, covers many features of the one at bar. It not only sanctions the use of oral evidence to outline and explain the oral contract to borrow money, but also considers the attempt to relieve the borrowing bank of liability by later making the claim that the loan was made to an officer individually and not to the bank, which is urged in this case.
The following is the holding of the federal court in the eighth circuit in a recent case from North Dakota;
“Where the.stockholders of a state bank organized a national bank which took over the assets of the state bank for a consideration of one dollar and its agreement to pay the deposits, time certificates, cashier’s checks, and certain bills payable of the state bank, and the state bank returned to its princi pal stockholders the amount of the assessment levied against all the shares a few years before which had all been paid by the principal stockholder, and the sum so returned was used by him to repay the loan of the money necessary to organize the national bank and to purchase additional stock in the national bank, the transfer of the assets rendered the national bank liable for the amount of a loan made to the state bank secured by a note pledged as collateral.” (Merchants’ Nat. Bank v. First Nat. Bank, 238 Fed. 502, syl. ¶ 4.)
See, also, Bank v. Bank, 96 Kan. 558, 152 Pac. 769, and Andale State Bank v. Wichita State Bank, 126 Kan. 441, 268 Pac. 735, where the borrowing banks were held liable to the loaning banks where the loans were made by an officer with the use of his individual signature for the benefit of the borrowing banks.
The appellant contends that the account of the defendant secured by the Winslow note was barred by the three-year statute of limitations, and that it would not come under the provisions of R. S. 60-715 as a set-off or counterclaim because it was barred before the claim of the plaintiff originated, showing the plaintiff’s note and guarantee were delivered to the plaintiff’s assignor February 16, 1922, and that the original note, which according to the theory of the defendant was given as collateral for an account with the Fairview State Bank, was the Hartshorn note dated April 2, 1918. This particular account commencing that date would be three years old on April 2, 1921, and would therefore be barred several months before the giving of the note and guaranty held by the plaintiff on February 16, 1922. If these were the only dates and facts there were in the record perhaps such reasoning would be logical, but shall we not properly consider the fact that the interest was paid on that account many times, or on the note securing the same, and that this note was twice renewed by Hartshorn? Then at the request of the Carmen National Bank the'note of the Grizzly Bear Oil Company was substituted for it, and the latter note was renewed four times and then substituted by the note of Winslow, the president of the bank, and it in turn was renewed eight times, the original account itself never having been settled. On the other hand, if we are to go back to the original-account of the Fairview State Bank and original note securing the same, why should that plan not apply to the note set up by the plaintiff when it sues upon the last renewal and guarantee thereof? The court found the original Arkansas note came into correspondence in March, 1920, and was assigned to the Carmen National Bank two months later for the benefit of the Eairview State Bank. The two accounts and evidences of indebtedness were running concurrently, and the frequent payments of interest on the Winslow note to apply on the account which it secured .prevented the statute of limitations from running. The adverse claims were coexisting and were overlapping in point of time as live demands. (O’Neil v. Eppler, 99 Kan. 493, 162 Pac. 311; McKenna v. Morgan, 102 Kan. 478, 170 Pac. 998; Ramsel v. Brandt, 119 Kan. 756, 241 Pac. 117.) The relation of these banks was, as to their respective dealings as found by the court, that of debtor and creditor. The two remaining subdivisions of this heading are not matters of law but of evidence. A full copy of exhibit 7 set out in the counter abstract shows that not only the Winslow and Allen notes were assigned by the Eairview bank to the defendant, but also the account with the Carmen National Bank which they secured. And the undisputed evidence shows, in harmony with the findings, that the money borrowed from the Fairview State Bank, and secured by the two notes of which these were renewals or substitutions, was transmitted to the Carmen National Bank. The transaction was between the banks, and the rights of the loaning bank will not be affected by the fact that the borrowing bank may have later paid the same amount of money to an individual officer of its bank without the knowledge of the loaning bank.
Finding, as we do, that the statute of limitations had not run to ’bar the account of the defendant before the origin of the plaintiff’s claim, the fourth heading is disposed of without the use or application of R. S. 60-715.
We therefore conclude that the two notes held by the defendant were not barred by the statute of limitations, that they constitute .a proper set-off and counterclaim against the claim of the plaintiff, and that they were obligations of the old bank for which the new "bank under all the circumstances became liable by reason of its purchasing, absorbing and continuing the business of the old bank with full knowledge of these adverse claims before the purchase.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling defendants’ demurrer to a petition in which plaintiff sought to recover damages for injuries she sustained in falling down a stairway in defendants’ hotel.
Plaintiff’s petition alleged that defendants conducted a public hotel in Mankato, and that on January 2, 1928, she was a guest therein and had a room assigned to her. Plaintiff alleged that she was not familiar with the hotel except that she had a general knowledge of the location of her room; that about 8 o’clock in the evening she had to go along a hallway to reach her room, and that this hallway was insufficiently lighted; that near her room was a stairway leading down to a basement, and that the door to the stairway was 'ojpen and unguarded, with no warning or barrier to apprise her of danger or prevent her making a mistake, and that all of these conditions existed because of the negligence of defendants; and that she set out from the hotel lobby to her room, and—
“While so proceeding, without negligence on her part, she reached the aforesaid opening to the east of said hallway, and there being no barrier, no warning and not sufficient light to apprise her of the true situation and of her danger, or to prevent mistake, she turned east at the said opening and was precipitated down said stairs to the basement of said hotel.”
Plaintiff concluded with allegations concerning her injuries for which she prayed damages.
• Defendants demurred on the ground that plaintiff’s petition did not state a cause of action. This demurrer being overruled, the case is brought here for review; and on the error thus assigned defendants argue the insufficiency of the petition and that it contained allegations of fact which were tantamount to a confession of contributory negligence.
Following the course of defendants’ argument, their first point is that there is a statute which makes it the duty of the hotel commissioner (R. S. 36-108) to see to it that every hotel is properly equipped and its premises put in a condition to meet the requirements of the act governing the conduct of hotels; that the act provides a fine of $5 per day for failure to comply with its terms, and provides for the closing of the hotel if it is not set to rights after a conviction of the hotel keeper; that one section of the act (R. S. 36-110) specifically provides, among other matters, that every hotel shall be properly lighted, and that “such proper lighting shall be construed to apply to both daylight and illumination.” The statute (R. S. 36-122) further provides the kind of notice to be served by the hotel commissioner and how service may be made, after which the hotel keeper has thirty days in which to comply with those requirements. From this critical examination of the statute defendants deduce the conclusion that there is no duty resting on the hotel keeper to properly light his hotel until the hotel commissioner has determined what is necessary to be done to bring his lighting facilities up to the standard prescribed by law, and that until he has been served with the statutory notice he cannot be guilty of any possible culpability or legal delinquency until a lapse of thirty days thereafter. The contention is made that aside from the governance of the statute there is no duty resting on the hotel keeper to light his hotel. Furthermore, defendants contend that since the petition did not allege that the hotel commissioner had determined that the hall along which plaintiff walked was insufficiently lighted, or that notice to that effect had been given, and that defendants had failed to meet any requirements of the hotel commissioner, it must be presumed that the lighting facilities of the hotel were adequate under the statute, and consequently the explicit allegation in plaintiff’s petition that the hallway along which she had to go was insufficiently lighted must be ignored and disregarded, and that there was no' failure to conform to the law and no liability resting on defendants for the injuries sustained by plaintiff.
Many pages of defendants’ brief are formulated' around the foregoing argument, and while we have taken considerable space to state defendants’ contention, and trust we have stated it fairly, we' feel impelled to dispose of it by a frank avowal that such argument and contention do not commend themselves to our judgment; that all defendants have to say about the hotel commissioner and his statutory duties and the presumption that he has performed them have no practical bearing on this lawsuit. ■ Plaintiff’s petition alleged that the corridor along which she had to pass to reach her room was insufficiently lighted, and the only way for defendants to meet that allegation is to deny it and let her prove it if she can, or for defendants to prove the contrary if they can, and this proof or disproof will have to come from the lips of witnesses — unless the parties can agree as to the facts. Of course, defendants may, if so advised, admit the truth of plaintiff’s allegation that the hallway or corridor near her room and near this open stairway was insufficiently lighted and contend as a matter of law that such insufficient lighting was not negligence; but they cannot by demurrer raise the point that what the plaintiff alleges as a fact cannot be true or that her allegation of fact can be overcome by the whimsical presumption to the contrary advanced by defendants. We do not fail to note that the petition alleged that the hallway was insufficiently lighted “by the circumstances and by the statute . . . R. S. 36-110,” but so far as concerns a civil action for damages against a hotel keeper by a guest, based upon the insufficient lighting of the hotel, the statute does no more than declare what most courts would hold to be the rale at common law. Where reasonable diligence for the safety of his guests requires a hallway in a hotel to be lighted and it is not lighted or insufficiently lighted, and a guest is injured in consequence, this court could not escape its duty to define the hotel keeper’s duty on the sophistical excuse that the legislature had not spoken on the subject.
Defendants cite cases from other jurisdictions holding a hotel keeper not liable under circumstances not altogether different from those alleged by plaintiff (Walimaa v. Maki, 163 Minn. 352, 41 A. L. R. 965, and annotations thereto); but by none of our own analogous cases could it be ruled as a matter of law that plaintiff’s petition failed to allege actionable negligence. Whatever refinements may be discovered in particular decisions, the rale is general that wherever men engaged in business invite the public to come upon their premises to patronize them, whether the business be that of hotel keeper, or merchant, or railway carrier or what not, there is a duty resting on the proprietor or manager in control of the business to keep in a reasonably safe condition those portions of his premises where guests or customers may be expected to come and go, and where he fails in that duty and a guest or customer is injured thereby &cause of actionable negligence will arise. This court has held there was actionable negligence where a woman fell down an open stairway in a dimly lighted part of a mercantile establishment (Reese v. Abeles, 100 Kan. 518, 164 Pac. 1080), where a woman stepped into a depression in the grounds of an amusement park (Needles v. Amusement Co., 104 Kan. 716, 150. Pac. 768), where a woman fell from a rickety seat in a circus (Lewis v. Shows Co., 98 Kan. 145, 157 Pac. 397), and where a man seeking employment fell through an unguarded trap door in a factory (Zeigler v. Maniifacturing Co., 108 Kan. 589, 196 Pac. 603).
While the analogy between these cases and the one at bar is not extremely close, yet they were governed by the same pertinent rule of law that the party in control of business premises is under a duty to keep them in a reasonably safe condition for guests or customers whom he invites to use them, and that the negligent breach of that duty will subject him to liability in damages.
A case quite similar to the one at bar was Hayward v. Merrill, 94 Ill. 349, where plaintiff was a guest at a hotel. To reach his room he had to pass along a hall which was lighted but not brightly. The door of his room was about two and one-half feet from another of the same appearance, behind which was an elevator opening. Plaintiff had some familiarity with the hotel, having theretofore been a guest and occupying the same room. By mistake he opened the wrong door and fell down the elevator opening and was injured. A judgment in plaintiff’s favor based upon the negligence of the hotel keeper was affirmed. In the opinion, the Illinois supreme court, in part, said:
“The proprietor of a hotel to which he invites the public to come, that he may make gains thereby, has no right to permit the existence of such an opening as this one was, unless suitably guarded, that the slightest mistake on the part of the guest might not prove fatal. Had plaintiff been intent on observing the number on the room door he might have discovered the room he wished to enter, but by the merest accident he opened the next door, and this slight inattention was the cause of his severe injuries. The opening ought to have been better protected than it was, and the omission to do so, under the circumstances proven, may well be attributed to defendant as gross negligence.” (p. 357.)
An instructive case on the liability of an owner or other person in possession of premises to a person going thereon for a business purpose, or otherwise as an invitee, and who was injured by going through the wrong doorway, was Downing v. Merchants Nat. Bank, 192 Ia. 1250, 20 A. L. R. 1138, and annotations. It was there held that in circumstances not substantially different from the case at bar the court could not say as a matter of law that the defendant bank was not negligent, nor hold as a matter, of law that the plaintiff was guilty of contributory negligence, but that both these •questions were for the jury.
Other recent personal-injury cases arising from plaintiffs falling down unguarded stairways or elevator shafts on defendants’ business premises, and which were held to present issues requiring the determination of a jury are: Morganstern v. Sheer, 145 Md. 208; Gallagher v. Murphy, 221 Mass. 363, Ann. Cas. 1917E 594; Falder v. B. Nugent & Bro. Dry Goods Co., [Mo. App.] 251 S. W. 138; Wiggins v. Pay’s Art Store, 47 S. D. 443, 199 N. W. 122. See, also, 32 C. J. 562, 563; 20 R. C. L. 55 et seq.
Appellant also contends that the petition disclosed facts and legitimate inferences deducible therefrom which in legal effect constituted contributory negligence. This is based upon plaintiff’s allegations that she “had a general knowledge of the location of her room” and that she received her injuries “at a time when said hallway and said opening therefrom were dark and not protected by proper lights and barriers.” It is argued that under such circumstances she was guilty of contributory negligence “for not having sought more light or in proceeding to her room in the dark.” Such an argument may have some weight with a jury; but those facts and inferences are certainly not so potent that this court would be justified in holding plaintiff guilty of contributory negligence. When subjected to a general demurrer, a petition is entitled to be favorably and leniently considered. (Balmer v. Long, 104 Kan. 408, 179 Pac. 371; Hebrlee v. Hawley, 112 Kan. 398, 211 Pac. 129; McCroskey v. Manufacturing Co., 112 Kan. 434, 211 Pac. 133.)
The other matters urged against the trial court’s ruling on the demurrer to the petition have been duly noted, but they present nothing requiring further discussion. Whether some of defendants’ arguments urged here may be availing when the issues are joined and the evidence is presented to the tribunal qualified to determine issues of disputed fact, we do not decide.
The judgment was correct and it is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.;
The action was one to recover under an accident insurance policy for personal injuries. Plaintiff prevailed, and defendant appeals.
Issuance of the policy was admitted but liability denied because the accident was alleged to have been caused or contributed to by the manner in which defendant drove his automobile; that he attempted to turn a corner at a speed of thirty miles an hour which is in excess of the speed allowed by law. The policy contained this provision:
“The insurance under the accident and health provisions of this policy does not cover any loss caused or contributed to by riots, violation of law, disappearance, alcoholism, or self-inflicted injuries.”
The plaintiff related substantially that he was driving from Cawker City at thirty miles an hour; that he did not know he was near the corner; that when he came over a hill and the lights were thrown down the slope he saw the corner; that he tried to slow down, but was too near the corner and a grader ditch; that he ran into the grader ditch with one front wheel and upset his car, and that it turned over on its side. He wrote a letter to the defendant describing the accident as follows:
“Received your letter in regards to how fast I was going at the time of the accident. About thirty miles per hour. The deep grader ditch caused my car to turn over, and I was coming down grade and there was no road straight on, so it was turn or run straight in the four-foot bank. I thought I could save myself by turning a little, but it didn’t.”
Information as !fco the lay of the ground and the familiarity of plaintiff with the location was brofight out on cross-examination:
“I left Rudolph Sheet’s home between two and three o’clock . . . driving a Dodge car. I have lived in this county all my life . . . forty years old. I have been over this road at different times during the past twenty years. The hill is west of the corner, 100 yards from the corner, maybe 200 yards from the comer. It is slightly down hill from there to the corner. The road connects with a road running north and south. It does not go on east. The corner is rounded.”
Section 1 of chapter 84 of the Laws of 1925 regulates the driving of motor vehicles on the public highway. A portion of that section reads:
“Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning corners, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing or intersection.”
In Rowe v. United Com. Trav. Ass’n, 186 Ia. 454, 172 N. W. 454, it was said substantially that a statute limiting the speed of automobiles on the highway is a law within the meaning of „an accident insurance policy providing that its benefits shall not be extended to cover any death, disability or loss resulting from any violation of law. In the opinion it was said:
“The language of the insurance contract which appellant relies upon as affording it exemption from liability to the plaintiff is that ‘the benefits under this article shall not extend to or cover any death, disability or loss resulting from the violation of any law.’
“The statute above quoted is a law within the meaning of the contract. It prescribes a duty for the violation of which a penalty is provided, and it follows of necessity from the agreement that, if Rowe violated this law, and his death ‘resulted from’ such violation, then there can be no recovery of benefits; and 'this, we hold, the jury should have been told.” (p. 467.)
In that case the policy provided that the insurer would not be liable if the injury “was caused through violation of law and voluntary exposure to danger.” The policy in the instant case reads “caused or contributed to.”
The courts are in agreement that there' must be some causative connection between the acts which constitute the violation of the law and the injury or death of the insured. If the acts constituting the violation of law have ceased before the injury, then it is not within the provision of the policy. (See note 17 A. L. R. 1005.)
In Duran v. Insurance Company, 63 Vt. 437, the insured was hunting on Sunday, which constituted a misdemeanor. The insured slipped on frozen ground and was injured. It was held the insurer was not liable because the insured was injured while violating a law. It was said in the opinion:
“R. L. 4316 prohibits hunting, shooting, pursuing, taking, or killing wild game, or other birds or animals, on Sunday. A person violating the provisions of these sections is to be fined. At the time of the accident the plaintiff was engaged in hunting. He had his gun with him and was ready to shoot any game he might see, whether in the field or along the highway on his way home. He started out to secure game wherever he might find it, and it does not appear that at the time of the accident he had abandoned his purpose. In hunting he was violating the law of this state. The traveling of the plaintiff was as much a part of his act of hunting as carrying his gun and ammunition or shooting or capturing game when the opportunity occurred in the course of the hunt. Without walking, the plaintiff could not have engaged in his hunt. Thus the accident was caused directly by plaintiff’s violation of the law in hunting.” (p. 439.)
In Bloom et al. v. Franklin Life Insurance Company, 97 Ind. 478, a similar provision was contained in a life insurance policy. The court said:
“While the unlawful act of the assured must' tend in the natural line of causation to his death, in order to work a forfeiture it is not necessary that the act should be the direct cause, nor that the precise consequences which actually followed could have been foreseen. It is enough if the act is unlawful in itself, and the consequences flowing from it are such as might have been reasonably expected to happen, for in such a case the ultimate result is traced back to the original proximate cause.” (p. 485.)
(See, also, Lundholm v. Mystic Workers, 164 Ill. App. 472; Wells v. Insurance Co., 191 Pa. St. 207; and Hatch v. Mutual Life Insurance Company, 120 Mass. 550, cases where the insured died following criminal abortion and where recovery was denied.)
It has been held that driving an automobile at a rate of speed in excess of that fixed by the statute, being a misdemeanor, constitutes culpable negligence within the meaning of R. S. 21-420 (State v. Bailey, 107 Kan. 637, 193 Pac. 354), and for violating the speed laws one may be prosecuted. (State v. Pfeifer, 96 Kan. 791, 153 Pac. 552.)
In Flannagan v. Provident Life & Accident Ins. Co., 22 F.(2d) 136, it was held:
“Insurance companies held not liable on accident insurance policies for death of insured, resulting from injuries sustained while driving automobile in intoxicated condition, in violation of Prohibition Law Va. (Acts 1924, c. 407), secs. 25, 80, under policy provisions excepting from coverage accidents encountered while violating the law.” (Syl. ¶ 3.)
The policy issued by the company contained a provision that—
“This insurance does not cover . . . accidents encountered while insured is intoxicated or under the influence of intoxicants or narcotics, whether such condition contributed either directly or indirectly to the accident . . . accident encountered while violating law. . . .
“The law in the state of Virginia, where the deceased resided and where the accident happened, made it an offense to run an automobile while under the influence of intoxicants. ...
“The deceased was running an automobile while intoxicated, within the meaning of the Virginia statute above cited, and in so doing was violating the Virginia law. This being true, under the conditions of the policies sued on, there was no resultant liability for his death.” (pp. 137, 139.)
(See, also, North Carolina Mut. Life Ins. Co. v. Evans, 143 S. E. 449 [Ga.].)
Did plaintiff’s excessive speed contribute to the accident? We think it did. One may safely turn a corner at eight miles per hour. As the speed increases the hazard increases. Plaintiff said: “I tried to slow down, and I was too near the corner and the grader ditch on the east side.” That is to say, he was going so fast that he ran past the corner and into the ditch on the other side of the road. He was going so fast he could not turn. He had contracted to observe the rules regulating travel on the highway. He failed to observe one of those rules, and his injury followed directly on that failure. In driving up to the corner at a rate of thirty miles per hour he violated the statute. Such driving resulted in the accident. His excessive speed (in violation of the statute) caused his injury. Under the circumstances a demurrer to plaintiff’s testimony should have been sustained.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Hutchison, J.:
These are appeals by the state in two cases upon questions reserved for assigned errors of the trial court in sustaining a motion, in each case, to quash and set aside the information. The information in each case charged the defendants with a violation of R. S. 55-121, differing only in the description of the land on which the violation occurred, alleging in each case that the defendant, having the control of certain oil and gas wells, unlawfully permitted salt water, oil and refuse from such wells to escape upon the ground and flow away from the immediate vicinity of such wells; that the defendant did fail to keep salt water, oil and refuse from such wells safely confined in tanks, pipe lines or ponds; that such salt water, oil and refuse escaped and flowed away from the immediate vicinity of such wells because of circumstances within the control of the defendant and not because of circumstances beyond his control.
It will be at once observed that the information does not mention or describe any injury or harm as being done to any person or to the community at large, or any danger that has arisen or is likely to arise by reason of the acts and omissions complained of. Does the crime intended to be charged consist of the waste or destruction of private property to an extent that would be a deprivation to the public? Or does it so pollute the soil as to destroy its value to the detriment of the neighbors? Or does it pollute the air with noxious .and offensive odors to the discomfort of the inhabitants of the vicinity? Or does it in any other way affect the health, comfort, safety or convenience of the public, or destroy vegetation, or in any other way disturb or interfere with the interests of others? The answer to these questions is that the pleader has followed the statute. R. S. 55-121 is as follows:
“It shall be unlawful for any person, having possession or control of any well drilled, or being drilled, for oil or gas, either as contractor, owner, lessee, .agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow away from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof: Provided, however, That this act shall not be construed to apply to the escape of salt water, oil or refuse because of circumstances beyond the control of the person in the possession or control of such well and under circumstances which could not have been reasonably anticipated and guarded against.”
The offense seems to consist of permitting salt water, oil and refuse to escape and flow away from the immediate vicinity of the well and the failure to confine it in tanks, pipe lines or ponds so as to prevent its escape. If so, we can dismiss the natural queries .above propounded and all others like them except to think of them as within the probable legislative intent and purpose of the enactment.
Three grounds were presented by the appellees for quashing the informations and are now urged in supporting the ruling of the trial court. They are: first, that the act is unconstitutional because in violation of section 16 of article 2 of the constitution; second, that the act is in violation of the fourteenth amendment to the constitution of the United States in that it deprives the defendants of their property without due process of law; and, third, that the act is in violation of section 10 of the bill of rights to the Kansas constitution, in that the defendants 'were not apprised of the nature and cause of the accusation against them.
The statute in question was enacted in 1921, being chapter 198 of the session laws of that year. The showing made by the appellees that the subject of the act was not clearly expressed in its title was very forceful and convincing, but it all became of no avail when the fact was observed that this statute was reenacted in the 1923 revision of the statutes and any such defect in the original title was entirely cured by the new title in the revision. (State, ex rel., v. Davis, Governor, 116 Kan. 663, 229 Pac. 757, and City of Wichita v. Wichita Gas Co., 126 Kan. 764-768.)
In supporting the second proposition the appellees claim that the law deprives them of the use of their own property without due process of law and insist that the legislature does not have power to prevent them from wasting their own property, if by so doing they in no way injure others; and they call specific attention to the fact that they are not charged with polluting the water but only charged with permitting salt water, oil and refuse to flow away from the immediate vicinity of the wells. They recognize the police power of the legislature and the full right to enact laws for public safety, public health and other similar purposes, but maintain that no such protection is afforded anyone by this act. Indiana has a statute making it an offense to waste natural gas by burning it in flambeau lights, and the supreme court of that state upheld the law as valid when it harmed no one in particular and the gas belonged to the one who was'wasting it.
“Section 2316, Burns’ R. S. 1894, declaring that burning natural gas in flambeau lights is a wasteful use thereof, and forbidding such use under penalty of fine, is not in violation of the fifth and fourteenth amendments to the federal constitution, providing that no person shall be deprived of his property without due process of law.” (Townsend v. The State, 147 Ind. 624, syl.)
Indiana has another act to prevent the flow of gas without control for more than two days after it has been struck, and it was held in a criminal case under this statute:
“If the natural gas escaping from wells is dangerous to persons and property in the vicinity, the legislature, in the exercise of its police power, has the right to regulate the sinking and casing of wells.
“A legislative act for the protection of the public is not invalidated because it results in the deprivation of property.” (Given v. State, 160 Ind. 552, syl. ¶¶ 4, 5.)
This last statute was interpreted by the supreme court of the United States in a civil action and it was there held that the act “is not a violation of the constitution of the United States; and its enforcement as to persons whose obedience to its commands were coerced by injunction is not a taking of private property without adequate compensation, and does not amount to a denial of due process of law, contrary to the provisions of the fourteenth amendment to the constitution of the United States, but is only a regulation by the state of Indiana of a subject which especially comes within its lawful authority.” (Ohio Oil Company v. Indiana [No. 1], 177 U. S. 190.)
Oklahoma enacted a law on this subject very much like ours in 1921 with civil and criminal provisions, and in a civil action it was upheld' in the following language:
“Said statutes come clearly within the police power of the state. Protection of the purity of the streams and lakes for the preservation of the life, health, and happiness of the people, as well as animal life, is the public policy of the state.” (Verland Oil & Gas Co. v. Walker, 100 Olka. 258, 259.)
Similar decisions are found in many states, although Wisconsin, Montana and perhaps others have adhered to the right of the owner to do with his own much as he pleases unless there is a showing of direct injury or detriment to others. Some of the statutes on this subject mention the pollution of the streams and the injury or damage to lower or adjoining land. We have in Kansas a number of specific requirements imposed by statute with reference to casing and plugging oil and gas wells in which the specific purpose is not expressed but is left to be inferred, and if applied to the extreme instance proposed by the appellees of a single well in the midst of a large cattle ranch the purpose of the law might not be apparent.
R. S. 55-110 is as follows:
“It shall be unlawful for any person, firm, company or corporation in this state to drill or operate gas or oil wells within one hundred feet of the center of the right of way of any steam or electric line of railway.”
The next section imposes a penalty. There is nothing expressed in this act to indicate why the landowner should be deprived of the privilege of drilling the well where he pleases on his own land, but anyone can readily conclude that it is for the public safety, as was held in Winkler Oil Co. v. Anderson, 104 Kan. 1, 177 Pac. 521:
“The statute making it unlawful to drill or operate oil or gas wells within 100 feet of the right of way of any steam or electric line of railway does not ■ contravene the provisions of the constitution of the state of Kansas, or the provisions of the constitution of the United States, and is the product of a proper exercise of the police power of the state.” (Syl.)
In the opinion it was said:
“The police power extends not only to the protection of the public safety, health and morals, but also to the promotion of the common convenience, prosperity, and welfare. While oil and gas wells are not nuisances per se, .and the business of drilling and operating them is ordinarily legitimate and harmless, it is conceivable that they may become detrimental in a high degree.” (p. 2.)
A few years ago when trading stamps were in use Kansas enacted a statute restricting the use of them and imposing a license tax with n penal clause for the violation thereof, and the following is the ruling of this court thereon:
“In the case of a business which the state under its police power has a right to prohibit on the ground that it is injurious to the public, the legislature may exact as a requirement to its continuance the payment of a license tax so large as to be practically prohibitory.” (State v. Wilson, 101 Kan. 789, syl. ¶ 3, 168 Pac. 679.)
Some generally accepted definitions, rules and tests may be helpful.
“In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare, that there is some clear, real and substantial connection between the assumed purpose of the enactment and the actual provisions thereof.” (12 C. J. 929.)
“Admitting that the subject to which the statute relates is within the scope of legislative power, the test of validity within the police power is whether or not the regulations prescribed are reasonable; and the test of reasonableness is whether the attempted regulation makes efficient constitutional guaranties and conserves rights, or is destructive of inherent rights.” (12 C. J. 934.)
“Everyone who brings oil or stores it on land must confine it securely in pipes, tanks or reservoirs, or at least not permit it to escape on to the land of another, whether by flowing over the surface or percolating through the soil, and if he does not, even though guilty of no negligence, he will be liable for whatever damage is suffered by the oil escaping.” (Thornton’s Law of Oil and Gas, 3d ed., p. 923.)
“Statutes imposing penalties for permitting the escape of oil or gas have-been held to be valid, whether the main object of the statute was the public-safety or the prevention of waste; and the fact that compliance with such a statute might result in deprivation of property was held not to invalidate the statute. Such a statute has been held to be penal in its nature.” (40 C. J. 1137.)
We think this law meets the standard test of reasonableness; that there is a clear, real and substantial connection between the evident purpose of the law and the attempt to prevent the escape of salt water, oil and refuse, and that the law is valid and not in contravention of the fourteenth amendment of the United States constitution. It is patent to everyone that the legislative intent in the enactment of our statute on this subject was to protect the purity of streams, wells and lakes from pollution by such salt water, oil and refuse for the preservation of the life and health of the people as well as animal life, by preventing these products of oil and gas wells from flowing over the land or percolating through it.
The third ground urged to make the law invalid is that it is in violation of section 10 of the bill of rights in that it does not apprise the defendants of the nature and cause of the accusation against them. This contention is based mainly upon the apparent indefinite limits beyond which the escape of these articles constitutes a crime. It is claimed the words “immediate vicinity” are too indefinite to-apprise them of any reasonable limits, and what would be reasonable limits in one instance might be unreasonable in another. Where the evil sought to be prevented is apparent, a reasonable construction of the language employed is justified and uncertainty can frequently be removed by resort to the context instead of attempting to construe words by themselves.
“In determining the meaning of a statute, consideration should first be given to the language employed therein but, especially in applying a criminal statute, the courts should have regard to the evil sought to be remedied, for that, which is not within, the spirit of the statute, although within the letter thereof, is not in legal contemplation a part of it.” (State v. Hanchette, 88 Kan. 864, syl. ¶ 2, 129 Pac. 1184.)
“In a statute authorizing the revocation of a dentist’s license for specific-offenses, the additional phrase ‘or for any other dishonorable conduct’ is not void for indefiniteness.” (Richardson v. Simpson, 88 Kan. 684, syl. ¶ 3, 129 Pac. 1128.)
“If the act is capable of reasonable construction, ... it will not be declared void for uncertainty.” (36 Cyc. 969.)
“Legislation should not be held invalid on the ground of uncertainty if susceptible of any reasonable construction that will support and give it effect.” (25 R. C. L. 810. See, also, Young v. Regents of State University, 87 Kan. 239, 124 Pac. 150.)
But the legislature in the enactment of the statute under consideration supplied an interpretation of the alleged indefinite terms by following it with another clause which is in itself an interpretation of the former clause or a restatement of the offense prohibited, given in language of a duty imposed. The first clause is: “It shall be unlawful for any person ... to permit salt water, oil or refuse ■ from any such well to escape upon the ground and flow away from the immediate vicinity of such well.” The second clause, separated only by a comma, is as follows: “and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof.” .The last clause imposes a duty, the failure to perform which will be unlawful, and it has no field of usefulness for the term “immediate vicinity,” used in the first clause. The evident purpose of the legislature was to prevent the escape of these three articles in the interest of safety and public welfare, and parties accused need not have been in doubt'as to the nature and cause of the accusation if they had observed the second clause which made it their positive duty to keep -such articles safely confined in tanks, pipe lines or ponds to prevent the escape thereof. If this has not been done, the law has been violated and there is nothing indefinite about the nature of the violation.
We think neither of the constitutional points urged by the appellees are well taken and that the motion to quash the information should not have been sustained.
The judgment is reversed, and the cause is remanded with directions to overrule the motions to quash .the informations. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion was filed in this action on April 6,1929. (Heath v. Ficho, ante, p. 97, 276 Pac. 61.) After the opinion was filed, the defendants showed to the court that the abstract presented by the plaintiff did not state the pleadings correctly; for that reason, a rehearing was granted. The case has been reargued, and the opinion is again written.
In this action the plaintiff sued to recover on a promissory note signed by Thomas G. Ficho, in which the plaintiff was named as payee, and to foreclose a chattel mortgage given to secure the payment of the note. As against Nicholas G. Ficho, the petition alleged:
“That at the time of the execution, of the aforesaid note and mortgage Thomas C. Ficho was then the owner of an undivided one-half interest in the Style Lunch, but that thereafter, on .or about June 24, 1925, Thos. G. Ficho sold his half interest to his brother, Nicholas Ficho, who assumed and agreed to pay the note.”
The answer contained a verified general denial of the allegations of the petition and pleaded that the plaintiff was not the owner nor the holder of the note; that it had been given to Tom Ladenes; that Tom Ladenes was the owner of it; and thaü it had been fully paid. The answer also alleged:
“The defendant, Thomas G. Ficho, admits the execution and delivery of a certain promissory note and chattel mortgage, dated on or about the 25th day of March, 1925, for the total sum of thirteen hundred dollars ($1,300), to one Tom Ladenes, and made in the name of W. Rea Heath, for reasons hereinafter set out, but that' exhibit A, set up by the plaintiff herein, is not a true and correct copy of the note executed and delivered by said defendant.”
The plaintiff testified that he was acquainted with the signatures of the defendants and'that the signatures on the note sued on and produced by him were their genuine signatures. The defendants admitted that the signatures to the note were their signatures. The plaintiff introduced the note in evidence.
The evidence of the defendants tended to prove that, at and prior to the time when the note was given, Nicholas G. Ficho and Tom Ladenes each owned a half interest in a restaurant in Topeka; that. Tom Ladenes sold his interest in the restaurant to Thomas Ficho for $2,500, $1,200 of which was paid, and the note in controversy in this action for $1,300 was given for the balance; that the name of the plaintiff, W. Rea Heath, was inserted in the note as payee for the-convenience of the parties; that Tom Ladenes was the person actually interested in the note and was the owner thereof; that payments were made on the note until the full amount thereof was paid;: that at the time the payments were made Tom Ladenes had the note in his possession; that at the time the note was given the plaintiff was not present and did not take any part in the negotiations for the sale of the half interest in the restaurant by Tom Ladenes to Thomas Ficho; and that Nicholas G. Ficho and Thomas Ficho are brothers and Tom Ladenes is their brother-in-law.
In stating the issues to the jury the court said that the execution of the note had been admitted by the defendants, and instructed the jury as follows:
“The burden of proof in this case is upon plaintiff. It is for him to prove his cause of action by-a preponderance of the evidence. By a preponderance of evidence is simply meant a greater weight of evidence. When you have weighed all the evidence in this case, if you find there is a greater weight on the side of the plaintiff than on that of the defendant, then the plaintiff has proven his cause of action by a preponderance qf evidence, and your verdict should be for plaintiff. But if you find the evidence equally balanced, or if you fiad there is not a greater weight on the side of plaintiff than on that of the defendant, then plaintiff has failed to prove his cause of action by a preponderance of the evidence, and your verdict should be for the defendants. The burden of proof is likewise upon the defendants to prove to your satisfaction, by a preponderance of the evidence, the affirmative allegations of their answer.”
The plaintiff argues that it was error to give that instruction. The plaintiff was the payee of the note. He produced it in court. Its execution and that of the mortgage was conclusively established by the evidence of both the plaintiff and the defendants.
In Esley v. People of Illinois, 23 Kan. 510, this court said:
“Where a person executed a promissory note for value received, he thereby admits prima jaoie that the payee thereof has the power to take the note, and sue thereon when the same becomes due.” (Syl. ¶ 1.)
This court used the following language in King v. Bellamy, 82 Kan. 301, 302, 108 Pac. 117:
“It is a well-established general rule that the possession of negotiable paper proves prima jaoie the ownership of the holder.”
The execution of the note being admitted by the defendants on the trial, the plaintiffs cause of action was established.
The facts alleged in the answer, if true, were matters of defense, and the burden was upon the defendants to prove those defenses by a preponderance of the evidence. Under these circumstances it was error for the court to instruct the jury that “the burden of proof in this case is upon the plaintiff ... to prove his cause of action by a preponderance of the evidence.”
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 action is one to foreclose a mortgage on real property given to secure the payment of a note for $750, and interest. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The defense was that the defendant and Ella T. Moorhead had been husband and wife; that they had marital difficulties; that about August 1, 1922, in Kearny county, Kansas, they executed a contract settling their property rights and divided their property between themselves; that under the contract the defendant gave to Ella T. Moorhead the note-and mortgage sought to be foreclosed in this action; that they afterwards became reconciled and moved to California, where other property was accumulated by them; that in California, on January 20, 1927, Ella T. Moorhead was granted a divorce from the defendant, in which she was given the property in California, and the defendant was given the real property which is the subject of this controversy; and that after re suming marital relations Ella T. Moorhead and Robert J. Moorhead regarded the separation contract as null and void and the note and mortgage as canceled.
The action was tried by the court without a jury, and the .court found—
“For the plaintiff and against the defendant that all of the allegations in plaintiff’s petition contained are true.”
The separation agreement, the record in the divorce action in California, and a transcript of the evidence in that action were introduced in evidence in the present action. The order in the divorce action divided the property as indicated in the defendant’s answer. The transcript of the evidence in that action said nothing about the separation agreement pr property rights thereunder, although that agreement was called to the attention of the trial court.
Ella T. Moorhead testified:
“That there never was any oral or written agreement between her and Mr. Moorhead that this postnuptial contract be rescinded or regarded as void and of no effect; that the note and mortgage for $750 which Mr. Moorhead executed and delivered to her in accordance with the above contract, she traded to the appellee herein on a tract of land in Missouri; that after she and Mr. Moorhead became reconciled, he never asked her to give up the note and second mortgage she held.”
The evidence showed that the note and mortgage, after they were given to Ella T. Moorhead, were always in her possession until they were transferred by her to the plaintiff.
In Dennis v. Perkins, 88 Kan. 428, 129 Pac. 165, this court said:
"Reconciliation and the resumption of marital relations do not necessarily avoid a separation agreement previously made by the parties, such effect depending on the question whether the provisions of the contract and the conduct and circumstances show an intention to treat the agreement as no longer in force.
“Such reconciliation and resumption do not warrant the court in deeming such contract avoided any further, if at all, than its terms taken in connection with the situation and conduct of the parties indicate their intention to avoid it.” (Syl. ¶¶ 1,2.)
Ross v. Ross, 103 Kan. 232, 173 Pac. 291, recognizes the principle that the resumption of marital relations does not of itself abrogate a separation agreement previously entered into by a husband and wife. The defendant pleaded abrogation or cancellation of the note and mortgage. It was incumbent on him to prove that fact. He. failed so to do. The evidence of Ella T. Moorhead was positive that there had been no cancellation or abrogation. The note was allowed to remain in existence and in the possession of Ella T. Moorhead. The mortgage was not released of record. The evidence was sufficient to uphold the general finding of the court in favor of the plaintiff against the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These are motions to dismiss two actions brought by the state on the relation of the attorney-general to compel the board of county commissioners of Leavenworth county to proceed with the improvement and completion of two state highways, each of which had been duly petitioned for on the benefit-district plan, and had been approved and found to be a public utility by the board, but for one reason or another the board had failed to proceed with the construction of the highways. Judgments compelling the commissioners to proceed with the construction of the highway were entered. (State, ex rel., v. Leavenworth County Commissioners, 121 Kan. 148, 245 Pac. 1051; State, ex rel., v. Leavenworth County Commissioners, 126 Kan. 571, 268 Pac. 837.) In each of these cases jurisdiction of the court was retained for the purpose of making the judgments effective in case further orders became necessary. These state highways have not been completed, no bonds have been issued, nor assessments made by the commissioners, and the motions are based on the change of legislative control in the building of state highways as shown by chapter 225 of the Laws of 1929. It is contended that the new act places the whole duty of construction, control, operation and maintenance of these highways in the state highway commission, and relieves the board of county commissioners entirely from any control or duty in respect to them. It appears from the decisions made that one.of the projects was instituted and the improvement ordered to be made in 1919, under the benefit-district plan as provided in R. S. 68-701 to 68-709 and the subsequent amendments thereto, and that now, after the lapse of about ten years, the road has not been constructed. The other road mentioned was ordered to be improved in 1925,-and as yet little has been done towards its construction. The new act, which took effect on April 1 of the present year, provides in section 3 that highways heretofore designated as state highways and all bridges and culverts thereon shall be deemed to comprise a state highway-system, and that all other highways shall be either county or township roads, and that the state highway shall be constructed, improved, reconstructed and maintained by the.state highway commission. The director of the highway commission appointed by the state highway commission is given supervision of the work. (Sec. 7.) The state highway commission is authorized to perform all work, or enter into, perform and require the performance of all contracts incident to the construction, improvement, reconstruction and maintenance of the state highway system. (Sec. 8.) There is also a provision in section 3 that the state highway system' shall be constructed and all work done thereon by the state highway commission, “from funds hereinafter and otherwise by law provided.” In section 17 of the act provision is made for the transfer and distribution of the funds which had been derived or will be derived under the law from fees on motor vehicles, and also from gasoline or other fuel taxes on motor vehicles, and that these funds shall be transmitted by the county treasurers to the state treasurer and placed in the highway fund. Then follows the provision:
“On the first day of April, 1929, the unexpended balances remaining in the various funds provided by section 7, chapter 255, Laws of Kansas, 1927, except the funds applied to county and township roads, shall be transferred and paid to the state treasurer and by him credited to the highway fund: Provided, Such sums, transferred from the county and township road funds or from the funds allotted to the counties from the county free fund, shall be expended by the state highway commission within the respective counties from whence same are paid. All funds received by the various counties from the sale of benefit-district bonds heretofore or hereafter issued, under the provisions of Revised Statutes 68-701 to 68-709 and amendments thereto, shall be transferred by the county treasurers to the state treasurer and by him placed in the highway fund; and such amounts shall be expended in the counties from which they are received and for the purposes for which said bonds were issued: Provided, That nothing in this act shall be construed to relieve any county in which a benefit district has been organized under the provisions of sections 68-701 to 68-709, inclusive, Revised Statutes 1923 and amendments thereto, from the duty and liability to issue and sell bonds under the provisions of said act in the amount necessary to pay such part of the cost of the construction of such benefit-district roads in said benefit district required by said act to be paid by the county, township and benefit district. Any unexpended balance remaining in the fund in which is placed that part of the fees for registration sent to the secretary of state or other official designated by law to receive the same, and appropriated for use in the administration of the motor-vehicle registration act, unexpended at the time this act takes effect or at the end of any calendar year, shall be placed in the highway fund.” (Laws 1929, ch. 225, § 17.)
In section 18 of the act provision is made for reimbursement of the payment of installments of benefit-district taxes assessed on property in such districts to all taxpayers on whom assessments have been made and collected from time to time according to a prescribed method, with a further provision that when no tax or assessment has been levied against the lands and improvements the state highway commission shall pay the portion of the cost chargeable to the lands and improvements in such benefit district, in which event no special assessment shall be levied against the land in said benefit districts. There is a further provision that the commission shall not be bound to reimburse to any township or to any county under the benefit-district plan more than five per cent of the amount found to be due such township or county in any one year, and gives the commission discretion as to reimbursement to any township or county the whole or any large amount found to be due, but shall not make any reimbursement unless it can be made under the order of apportionment of the fund as provided in sections 3 and 17 of the act.
In behalf of the defendant it is contended that the two cases should be dismissed from this court for the reason that the county commissioners have no further functions to perform relating to the construction, operation or maintenance of these state highways or the raising of revenue therefor. They assert that while the court had previously commanded them to carry on in the construction of the roads upon the benefit-district plan, the new act of 1929 places the control, construction and completion of the highways upon the state highway commission and gives that commission full control of the funds provided for that purpose, as well as all machinery, equipment and road materials which counties purchased from county and state road funds, and has provided further that the state highway commission shall assume the rights and liabilities of counties on existing contracts for the construction, improvement and maintenance of highways, and for such machinery, equipment and road material on state highways as provided in section 19 of the new act. As already stated, the court reserved jurisdiction of these cases for such further orders as might become necessary, and the board of county commissioners contends that it is not subject to any further orders of this court since all duties and responsibilities formerly resting on it respecting state highways have been transferred to and placed upon the state highway commission. It is true that all the powers pertaining to the construction, reconstruction, operation and maintenance of state highways have been vested in the state highway commission, and also the power of expending funds raised under the act or otherwise provided by law has been vested in that commission. While this transfer of power is clearly expressed in the act, it is equally clear that where a benefit district had been organized under the provisions of the former law it is still incumbent on the counties to issue and sell the bonds of such benefit districts. The new act expressly declares that not only all benefit-district bonds heretofore issued but also all such bonds hereafter issued shall be transferred by the county treasurer to the state treasurer, and thus has provided for the issuance of such bonds after the act has come into force. And then, to make it clear that county commissioners are not relieved from the duty of issuing such bonds and the raising of revenue for the- building and improvement of state roads in benefit districts, it provides :
“That nothing in this act shall be construed to relieve any county in which a benefit district has been organized under the provisions of sections 68-701 to 68-709, inclusive, Revised Statutes 1923, and amendments thereto, from the duty and liability to issue and sell bonds under the provisions of said act in the amount necessary to pay such part of the cost of the construction of such benefit-district roads in said benefit district required by said act to be paid by the county, township, and benefit district.” (§ 17.)
The act contemplates that where benefit districts have been organized the plan so instituted shall be carried through to completion. The legislature has specifically declared that counties are not relieved from the duties and liabilities of issuing and selling bonds to be used in the construction of benefit-district roads. The counties act through their boards of county commissioners in the issuance and sale of benefit-district bonds. That duty rests on the defendant respecting the two benefit districts in question. Besides the issuance and sale of the bonds, it will also be incumbent on the board, when the bonds become due, to levy a tax to pay the same unless money sufficient to pay them is derived from other sources. These duties at least rest on the board of county commissioners of Leavenworth county.
Attention is called to a provision of section 18 of the act that when no tax or assessment has been levied against the land and improvements in benefit districts the state highway commission shall pay the portion of the cost chargeable to the lands and improvements in such benefit districts, in which event no special assessment shall be levied against the lands in said benefit district. This section, as will be observed, is dealing with the subject of reimbursement to the taxpayers of a benefit district, and nothing therein is said respecting the issuance and sale of bonds. While it provides for an adjustment of the amounts chargeable against the land where no assessment has yet been made upon the land, it does not excuse the issuance of bonds from which payment for construction of the roads is to be made. Apart from the charge made upon lands of taxpayers the county and the township is chargeable with part of the amount necessary to the construction of the road, and which is to be included in the bonds that are issued. The reference to the reimbursement, and that in a certain event no special assessments shall be levied, does not nullify the express provision that counties are not to be relieved from the duty of issuing and selling the bonds of the benefit district which are necessary to pay the costs of the benefit-district roads. Of course, no more bonds should be issued than are necessary to meet the cost of construction. It will be observed that in paragraph 3 of section 17 provision is made for a quartérly fund of $700,000 to be proportionately divided among the counties of the state on the basis of assessed valuation. This fund is to be used for reimbursement where state highways have been built on the benefit-district plan, and also for some other purposes. If a county should derive sufficient money from that fund to pay for the construction of the highways it would be unnecessary to levy a tax on the lands of the district. Bonds, however, may be required to meet the cost of the construction and these are to be issued and sold by the county commissioners. So long as that duty rests on this defendant under the law and under the judgments heretofore rendered against it in this court, it is not entitled to a dismissal of the actions. The only question before us at this time is the right of the defendant to a discontinuance of the actions pending here, and it appearing that there are still duties and functions for them to perform, our conclusion is that the motions should be denied. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a habeas corpus proceeding. J. B. McIntyre was accused of the crime of arson in the first degree. Upon the filing of a complaint he was arrested and brought before a magistrate for a preliminary examination. A hearing was had and the magistrate found that the crime had been committed and that there was probable cause to believe that the petitioner was guilty of the offense charged. It appears that his codefendant, Ephraim Garrett, jointly charged with commission of the crime, pleaded guilty to his part in the burning of the building and has since been sentenced to the penitentiary-. Petitioner was admitted to bail, and after giving a bond for $5,000 binding him to appear for trial in the district court he was discharged from custody. A few days before the time set for trial in the district court he concluded to test the right of the magistrate to bind him over for trial, by habeas corpus proceeding, and so a surrender by his surety was effected, and he then brought this proceeding, upon the alleged ground that the proof was insufficient to warrant a belief that he was guilty of the offense charged.
No question is- raised as to the sufficiency of the complaint or of the warrant, nor that he was not fully advised as to the nature of the crime with which he was charged. The ground upon which he seeks release from what looks like a self-imposed custody, after a bond had been given, is that the testimony of a witness on the preliminary examination as to petitioner’s connection with the arson was hearsay. The witness, a state fire marshal, who had made an examination of the case, testified that the petitioner burned the building, and upon cross-examination it developed that he did not see nor have personal knowledge of the part taken by the petitioner in the burning of the building, but had gained information of it- from Ephraim Garrett, who was jointly charged with the petitioner for the arson, who said that he had been hired by McIntyre to commit-the offense. The confession of Garrett was not made in the presence of McIntyre, and therefore it is contended that the testimony was wholly incompetent and should have been stricken from the record and from consideration of the magistrate. The confession was that of a codefendant. A preliminary examination is not a trial of a defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime. The main object, it has been said, is:
“To apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district’ court." (King v. McKnight, 120 Kan. 692, 695, 245 Pac. 105.)
And where an attempt has been made to give an accused a preliminary examination and he has been given reasonable notice, by the papers and proceedings in the case, of the nature and character of the offense charged, the examination has served its principal purpose and is ordinarily regarded as sufficient. (State v. Bailey, 32 Kan. 83, 3 Pac. 769; State v. Geer, 48 Kan. 752, 30 Pac. 236.)
The purposes of an examination have been quite well subserved in the present case. There is no question that the crime charged had been committed, and it is reasonably clear that the petitioner had notice of the crime charged against him and the kind of testimony that he would have to meet. It appeared that the witness testified that petitioner had committed the offense charged, and it was disclosed on cross-examination that he had gained his information mainly from a confession of a codefendant of the accused. It is insisted that upon this disclosure the testimony should have been stricken out, but the magistrate ruled to the contrary. Probably this testimony would have been stricken out if it had been given upon the final trial of the petitioner in the district court. ‘Proceedings in a preliminary examination are not expected or required to be as regular and formal as in a final trial*'' The same strictness as to the admissibility of evidence is not as necessary where probability of guilt is at issue as where actual guilt is the matter on trial. (State v. Spalding, 24 Kan. 1.) It has been said that:
“Preliminary examination affords and is designed to afford general information to the person held to answer respecting what he must meet.” (State v. Powell, 120 Kan. 772, 777, 245 Pac. 128.)
Here there was a bona fide attempt to give the petitioner a preliminary examination which afforded him general information as to the charges he must meet, and it appears that when he was held for trial he gave bail for his appearance in the district court. In the bond which he presented and upon which he gained his release from custody it was stated that:
“Whereas, it' appears that the offense of arson in the first degree has been committed, and there is probable cause to believe that the defendant, J. B. McIntyre, is guilty of its commission; now, we the undersigned,” etc.
This recital was the view of the petitioner at that time, and we think he should have submitted to a trial, which he could have had much earlier than he could obtain a decision upon the application for a release on habeas corpus.
Our conclusion is that under the facts and circumstances presented the application must be denied and the petitioner remanded. It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs, the father and mother of Dallas E. Wagner, deceased, sued the board of county commissioners of Clay county to recover $10,000 damages for his wrongful death alleged to have been negligently caused by a defect in a bridge and highway in Clay county. Verdict was returned in favor of the plaintiffs in the sum of $250. On their motion the. verdict was set aside, and a new trial was ordered as to the amount of damages sustained by the plaintiffs. The defendant also filed a motion for a new trial. That motion was denied. The defendant appeals.
The defendant complains of the order overruling its demurrer to the evidence of the plaintiffs. That evidence tended to prove that at a bridge on a county road in Clay county there were no guard rails on the sides of the bridge nor on the approach to it; that the center of the bridge had been built four and one-half feet to one side of the center of the road; that there was a graded approach to the bridge, one side of which had been washed away by high water, and which had been filled in with soft dirt a short time prior to the accident in which Dallas E. Wagner was killed; that he, with others, was riding in an automobile on the highway toward the approach at about twenty-five to thirty-five miles an hour; that it was dusk in the evening; that the approach could not be distinctly seen; that the surface of the road appeared to be solid and firm; that part of the road was soft because fresh dirt had recently been placed in the road; that the automobile in which Dallas E. Wagner was riding ran off the side of the road as it approached the bridge, ran into a ditch, turned over, and killed Dallas E. Wagner; and that the chairman of the board of county commissioners had notice and knowledge of the condition of the bridge and road more than five days before the accident occurred. Under that evidence the court could not properly say that the plaintiffs had not proved facts sufficient to constitute a cause of action. The demurrer was properly overruled.
One instruction requested by the defendant contained the following language:
“The burden of proof is upon the plaintiffs to show by a preponderance of the evidence that there was no contributory negligence upon the part of said Dallas E. Wagner.”
The court, after stating the issues, instructed the jury that — ■
“The burden of proof in this case rests upon the plaintiffs to establish to your satisfaction by a preponderance of the evidence, all of the material allegations made and contained in their petition.
“The burden of proof in this case rests upon the defendant to prove to your satisfaction by a preponderance of the evidence that the deceased, Dallas E. Wagner, was guilty of contributory negligence as alleged by defendant in its answer.”
The defendant complains of the refusal of the court to give the instruction requested concerning the burden of proof as to contributory negligence and complains of the instructions given on that subject.
Section 68-301 of the Revised Statutes, in part, reads:
“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. . . .”
In Falls Township v. Stewart, 3 Kan. App. 403, 42 Pac. 926, the court said:
“The plaintiff in an action to recover damages under this statute must allege and prove that the injuries were sustained without contributory negligence on his part, and, if the defendant deny the allegations of the petition, the burden of proof of contributory negligence is on the plaintiff; but where the defendant in its answer denies all the allegations of the petition, and then pleads contributory negligence on the part of the plaintiff, and sets out certain particular acts of the plaintiff, and alleges that by reason of such acts the plaintiff was injured, the burden of proving such fact is thrown upon the defendant.” (Syl. ¶ 4.)
To the same effect is Township v. Guldner, 7 Kan. App. 699, 51 Pac. 943. The opinion in the first of those cases was filed December 7, 1895, and the opinion in the last was filed January 18, 1898. In Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, the supreme court of this state said:
“The statute (sec. 1, ch. 237, Laws of 1887, ¶ 7134, Gen. Stat. 1889) giving a right of action against counties and townships in favor of persons who, without contributory negligence, sustain damage by reason of defective bridges, or highways, changes the burden of neither pleading nor proof so as to require a plaintiff suing for damages for injuries caused by such defects to allege or prove nonnegligence on his part.”
The opinion in the last-cited case was filed March 6, 1897. The answer in the present action alleged that “if the said Dallas E. Wagner came to his death at any time from any cause, that his own fault, carelessness and negligence were contributing causes thereof.” The answer does not quite bring the present action within the rule declared by the court of appeals because it does not allege the specific acts of negligence of Dallas E. Wagner. The principle declared by this court in Reading Township v. Telfer, supra, does apply to the facts as pleaded in the present action. If there is a conflict between the decision of this court and the decisions of the court’ of appeals, the decision of this court must control. Following the decision of this court it must be declared that neither the refusal of the court to give the instruction requested by the defendant nor the giving of instructions by the court constituted error.
Complaint is made of many of the instructions given and of the refusal of the court to give a number asked by the defendant. These have been examined. This court has been unable to find any material error in any of the instructions given. Concerning those requested which might have been properly given, an examination of those given reveals that those requested were substantially given so far as they should have been, not in the language asked by the defendant, but in language sufficiently clear to enable the jury to understand the instructions. The manner in which these complaints are made is not such as to assist the court in determining whether or not the propositions contended for by the defendant are good. After such an examination as the court has been able to make the court concludes there was no reversible error in the instructions given, nor in refusing to give those requested.
The defendant complains of the introduction and exclusion of evidence. No prejudicial error appears to have been committed in the admission of evidence on behalf of the plaintiffs. Mrs. Foster Morton, who saw the accident in which Dallas E. Wagner was killed, lived in Clay county and was a witness'on behalf of the plaintiffs on the first trial. She was unable to be present, and by stipulation her deposition was taken and read on that trial. Between that and the second trial the deposition was lost. On account of her health she was unable to attend as a witness at the second trial. Her husband who heard her testify in the deposition was offered as a witness by the defendant and asked concerning what she said when her deposition was taken. The court refused to permit Mr. Morton to testify concerning what his wife had said. Her evidence was produced on the hearing of the motion for a new trial in the following manner: The former court reporter transcribed from his notes the deposition given by Mrs. Morton on the former trial, and his transcript of her evidence was produced at the hearing of the motion for a new trial. No application for a continuance of the trial was made when it was learned that the deposition had beén lost and Mrs. Morton could not be procured as a witness. The record does not show any effort to secure a reproduction of her evidence by the court reporter who took it. In other words, the record does not show proper diligence on the part of the defendant to procure the evidence of Mrs. Morton. The complaint concerning the exclusion of the evidence of Mr. Morton cannot be sustained.
The defendant complains of the order of the court granting a new trial on the; question of damages only. It appears from the record presented to this court that the action has been tried twice in the district court, the first time resulting in a .verdict in favor of the plaintiffs for $151. That verdict was set aside and a new trial was granted. The second trial resulted in a verdict in favor of the plaintiffs for $250. In the judgment on the motion of the plaintiffs for a new trial on the amount of damages, the court said:
“Two juries having passed upon the question of negligence and found defendant guilty thereof, and the court being dissatisfied with the amount of damages allowed by the jury at each trial does find that the motion of the plaintiffs for a trial upon the question of damages only should be sustained and that the motion of the defendant for a trial upon all of the issues herein should be overruled.”
Section 60-3004 of the Revised Statutes, in part, provides that — ■
“A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such issues are separable.”
The statute contemplates that a trial court may grant a new trial on a specific issue. But should the new trial have been limited to damages only in the present action? The automobile in which Dallas E. Wagner was riding ran off the road fifty-seven feet before it reached the bridge. The absence of guard rails on the bridge contributed but slightly, if at all, to the accident. There was evidence which tended to prove that Dallas E. Wagner was driving the car, and that he was guilty of negligence which contributed to the accident. There is that in the record which indicates that neither of the juries which tried the action treated the, evidence fairly. The amount of damages allowed, but little more than the actual expenses paid by the plaintiffs, was ridiculously small. The jury may have been, and probably was, influenced by the fact that Dallas E. Wagner might have been guilty of contributory negligence, and for that reason may have reduced the damages, desiring to remunerate the plaintiffs for the expense they had incurred, but not to give them any substantial damages for the death of their son.
The plaintiffs cite Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1038, where this court ordered an action remanded to the district court to ascertain the amount of damages sustained by the plaintiff in that action and to render judgment accordingly; but in that action, on a motion for a modification of judgment of this court, it w;as ordered that the cause be remanded for a new trial as to all issues.
The nature of the accident which caused the death of Dallas E. Wagner, the evidence introduced on the trial, the amount of damages awarded, and the action of the court in setting aside the verdict as to that amount, convince this court that the entire verdict should have been set aside, and a new trial as to all issues should have been granted.
For that reason the district court is directed to set aside the verdict in toto and grant a new trial as to all issues. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for the value of a furnace which defendant had removed from plaintiffs’ house on the assumption that it had the right to do so because of the terms of a contract under which the furnace had been installed.
The facts developed by the pleadings and by an agreed statement of facts were to this effect:
Plaintiffs owned a house in Kansas City. On February 1, 1927, they made a contract for its sale to one Lumsden and his wife. The contract provided that the Lumsdens should pay $150 in cash for an option to purchase, which option might be renewed from month to month by the payment of $25 per month until a total sum of $3,650 should be paid, whereupon the house should become the property of the Lumsdens. The contract also provided that the Lumsdens might take possession, but that any improvements which they made on the house should become the property of the owners. Other details of the contract, which was quite elaborate, may be of no present concern.
The Lumsdens entered into possession and shortly thereafter made a contract with the defendant, the Holland Furnace Company, to install a furnace in the house. By its terms the Lumsdens were to pay $13 in cash and a like sum each month until the full price of the furnace, $280, was paid, and title to the furnace and the right to remove it on default of the monthly installments were reserved to the furnace company. The furnace was accordingly installed in the spring of 1927. To do so defendant had to cut the floors for the hot-air registers. In the earthen basement defendant laid a cement foundation for the furnace and attached the requisite pipes, flues, shafts, etc.
In a few months the Lumsdens threw up their option contract to purchase the house and vacated the premises. They also made default in their payments on the furnace, and defendant’s workmen removed the furnace and such appendages thereto as could be gotten out without substantial damage to the house, but they left the fittings which were attached to the floor and walls of the house. The agreed statement of facts recites:
“That on or about the 11th day of October, 1927, said defendant, without the consent or knowledge of said plaintiffs, entered in and upon said premises and loosened said furnace from said cement base, dismantled and took said furnace and pipes in said basement from said building; that the registers, boxing, hot- and cold-air pipes attached to the floor and walls of said building were installed by defendant at an expense of $108.99, for which defendant makes no claim herein, and which were not removed from said building by said defendant; that the reasonable value of said furnace was $200; that the reasonable cost of reinstalling a furnace in said house is $50.”
Plaintiffs’ petition contained no allegation of damages. It merely-prayed for judgment for $200 as the reasonable value of the furnace removed and for $50 as the reasonable cost of reinstalling such a furnace. The trial court made a general finding in favor of defendant and judgment was entered accordingly.
Plaintiffs appeal, contending that because no previous agreement had been made with them relating to the installing of the furnace, it became part of the realty, and that its removal by defendant was a wrongful trespass for which it was liable in damages.
The rule thus contended for was the prevailing one at common law and some eminent courts still adhere to it. (Des Moines Impr. Co. v. Holland Furnace Co., 204 Ia. 274, 212 N. W. 551; Tippet & Wood v. Barham, 180 Fed. 76, 37 L. R. A., n. s., 119 and note.) The case of Flocke v. Troske, [N. D.] 222 N. W. 262, also adheres to the old rule, but it also rests its decision on two other unassailable grounds— a local statute, and the specific terms of the contract under which the fixtures, a Delco light plant and a hay carrier, were annexed to the house and barn.
Looking into other decisions, however, we find that many courts do not admit that the fact of annexation of a chattel to realty is conclusive that its character as personal property is extinguished, but hold that the intention of the parties to the annexation and the attendant circumstances may be of controlling significance. (Holland Furnace Co. v. Jefferson, )173 Minn. 121, 216 N. W. 795; Ratchford v. Cayuga Co. Cold Storage & W. Co., 217 N. Y. 565, L. R. A. 1916E 615; and see, also, Ann. Conditional Sale, Fixtures, 13 A. L. R. 448.)
However, it is really unnecessary to make an extended examination of the decisions in other jurisdictions, for the principle which controls the case before us is settled by our own precedents. In the early case of Eaves v. Estes, 10 Kan. 314, 317, 318, this court quoted approvingly from the still earlier case of Ford v. Cobb, 20 N. Y. 348, thus:
“It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot in general be changed by the convention of the parties. Thus it would not be competent for parties to create a personal chattel interest in a part of the separate bricks, beams or materials of which the walls of a house are composed. . . . But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to, the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement, or of any special relation between the parties in interest, they would be part of the real estate.” (p. 317.)
The syllabus of this 57-year-old decision of our own court reads:
“Where E. & Co. built a steam engine for the mill of K., and while it was still at their shop took a chattel mortgage on it, with a stipulation of their right to take possession of the same, whether it was affixed to the freehold or not: Held, that where-the facts leave the court in doubt as to whether the engine had by its attachment to the realty become a fixture, the intention of the parties, as evinced by the chattel mortgage, might be looked to as controlling in the determination of the character of the property, and that the court below properly held that it remained personal property and subject to the chattel mortgage.”
In Marshall v. Bacheldor, 47 Kan. 442, 28 Pac. 168, one Hollis, an implement dealer, sold a windmill and feed grinder to Bacheldor, a farmer. These chattels and incidental equipment were set up on Bacheldor’s homestead farm upon an agreement that they would remain the property of Hollis until paid for and that he might retake possession at any time he deemed himself insecure. Bacheldor did not pay. Hollis brought suit and recovered judgment and sought to subject Bacheldor’s homestead to execution to satisfy the judgment. It was recognized by court and counsel that if the windmill and grinder had become improvements annexed to the realty in contemplation of law, the homestead character of the farm would-not exempt it from execution to satisfy the judgment. (Const. art. 15, § 9; Hurd v. Hixon & Co., 27 Kan. 722.) But it was held that the contract under which the windmill and grinder were sold and erected on the farm — to remain the property of Hollis until paid for and he to have the right to remove them if he felt insecure — was valid, and consequently they did not become part of the real estate, and Bacheldor’s homestead could not be subjected to execution levy and forced sale to pay for the windmill and grinder as improvements to the realty.
The rule announced in Eaves v. Estes, supra, was reiterated in Bromich v. Burkholder, 98 Kan. 261, 158 Pac. 63, and neither of these can be distinguished in principle from the case now under review. In both these cases the reserved title of the vendor of the chattel was upheld against the claims of a prior mortgagee and the purchaser at the mortgage foreclosure sale. And the situation of these plaintiffs is no stronger in law or equity than that of a prior mortgagee.
Plaintiffs do not allege that the removal of the furnace damaged the house. They merely ask for the value of the furnace and the cost of reinstalling another. Defendant actually enhanced the value of the house by fitting it with air shafting and floor registers which it was impracticable to remove without possible damages to the house, and so these parts of the completed heating plant, worth $108.99, were not removed by the furnace company.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to compel specific performance of a contract to convey real estate. Plaintiffs prevailed, and defendant appeals. The question is whether there was a contract.
Defendant inherited an undivided one-seventh interest'in 320 acres of land. A Mrs. Nugent inherited a like interest, and there were other heirs. In a letter of February 27, 1928, plaintiffs informed defendant they had partially made a deal with Mrs. Nugent for her interest. The letter stated that plaintiffs were advised defendant desired to sell, that some of the heirs practically refused to sell, and that Mrs. Nugent desired that any who wished to dispose of their interests when she disposed of hers might have an opportunity to do so. The letter contained the following:
“We would like if possible to hear from you by that time if you wish to sell, with the best cash price you will consider for your undivided interest which we understand to be the same as that of Mrs. Nugent and, where the time is short will ask that you kindly telegraph us, at our expense, on receipt of this letter, the best price you will consider.
“From our talk with these folks we take it that you have a price in mind at which you will sell, but if not'and you are not acquainted with values and wish us to submit a proposition kindly advise and we will be glad to do so with the understanding that you will give us a definite answer by Thursday. . .
“Should you name price at which we can buy at this time there will be no expense attaching; we would make up proper deed and forward to you to be executed, the same to be returned to our bank here, through your bank or attorney, for collection of the purchase price.
“You have no doubt by this time heard from Mrs. Nugent as she expected to write you regarding this matter, but would suggest that you wire us direct if you have concluded to sell so that if possible we may have a definite understanding by Thursdaj'.”
The letter committed plaintiffs to nothing except to submit a proposition in case defendant wished them to do so. Plaintiffs did not say they would buy if defendant named a satisfactory price, and what plaintiffs wanted to know was whether defendant wished to sell, whether she had concluded to sell, and the best price she would consider. Defendant did not answer those questions, but sent plaintiffs the following telegram:
“Wire me price you are paying Mrs. Nugent for her land.”
Plaintiffs replied by the following telegram:
“Mrs. Nugent is taking equity in another piece of land adjoining their present home for her interest. For immediate acceptance will give one thousand cash for your one-seventh interest. Same offer submitted to other heirs, answer.”
This telegram did not answer defendant’s question or give defendant any information respecting the value of what Mrs. Nugent was to receive. The facts were that plaintiffs were dealing with Mrs. Nugent on the basis of $1,500 for her one-seventh interest, and plaintiffs offered her that sum.
Defendant sent plaintiffs the following telegram:
“Fifteen hundred dollars net cash is my price.”
This telegram did not offer to sell the land to plaintiffs or anybody else for $1,500 or for any other sum of money, and nothing in the previous communications warranted the plaintiffs in regarding the telegram as anything more than a statement of the net price which defendant would consider. Plaintiffs, however, sent defendant the following telegram:
“We accept your proposition of fifteen hundred dollars cash net to you for your one-seventh interest in C. M. Shain land. Telegraph confirmation and advise how you want deal closed.”
From a legal standpoint, this completes the story. Some correspondence followed. Defendant wrote to plaintiffs the following letter:
“When I received a letter from Mrs. Nugent on March first asking me to sell with her and make a price I wrote her immediately that I was not familiar with Kansas land prices and would be governed by the price she was taking for her land. And when I received your letter I wired you to send me the price you were offering Mrs. Nugent. I also wired Mrs. Nugent to wire at my expense the price she was receiving for her land and she sent me the following worded telegram: ‘Our deal held up, letter follows.’ Your telegram said Mrs. N. received land for her interest in C. M. Shain farm and you offered me a thousand. Up to date, I have not received any letter or other communication from Mrs. Nugent. . . .
“I will not accept any offers until I find out the value of this farm.”
This made it plain that defendant did not intend to make an offer to sell to plaintiffs for $1,500 in cash. Defendant’s mental attitude, however, when she sent her final telegram is not controlling. The question is whether plaintiffs were justified in understanding that defendant was expressing a fixed purpose to sell to plaintiffs if they chose to buy at the stated price. (American Law Institute, Restatement, Contracts, §§ 5, 25.) As indicated above, defendant made no proposition to sell. She merely stated a price at which she held the land. She remained free to get more if she could or to take less if she desired. (American Law Institute, Restatement, Contracts, § 5, Illustration 4.) Plaintiffs’ final telegram contained an offer to buy and not an acceptance of an offer to sell. Defendant did not telegraph confirmation or otherwise accept the offer, and there was no contract. (13 C. J. 288, note 95, [a] Illustrations.)
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a habeas corpus proceeding. The trial court denied the writ, and the petitioner has appealed.
On October 27, 1928, the petitioner pleaded guilty to an offense under the intoxicating-liquor law and was sentenced to pay a fine of $100 and the court costs, and to be committed to the j ail of Grant county for sixty days. On his application he was granted a stay of execution until January 1, conditioned on his good behavior. This condition was broken and he was taken into custody by the sheriff. On November 12, on his application, he was granted a parole. On November 26 his parole was revoked, and for cause shown, which is not now questioned, he was transferred to the j ail of Seward county, in the same judicial district. He had paid his fine and costs. He thereafter filed a motion to be transferred to a hospital or sanitarium for the reason that he was suffering from a heart affliction to such an extent and degree that further confinement in the jail, or other penal institution, would result -in serious impairment to his health, and prayed for such an order concerning his care and dispo sition as appeared suitable and proper. Upon the hearing of this motion it was treated as an application for a parole for the purpose of enabling the petitioner to be treated for his physical ailments, and the court made the following order:
“Order op Temporary Parole.
“It is therefore ordered that the defendant be and he hereby is granted a temporary parole from said jail sentence, upon the following terms and conditions, to wit:
“1. (His physician was appointed patron.)
“2. That the defendant, immediately upon his release from said jail, enter Epworth hospital for the purpose of taking the course of treatment he has represented that he desires to take, and such as may be recommended and administered by his said physicians.
“3. That during the tenure of this parole the defendant will not, under any conditions whatsoever, leave said Epworth hospital, without the consent of his said patron or of this court, and then only for such purposes as he may be advised pertaining to his course of treatment there being taken.
“4. That the defendant will faithfully submit himself to the treatment he has requested to be permitted to take, and faithfully and diligently conform to the advice and instructions given by his said physicians for that purpose.
“5. That the defendant will pay or arrange for all necessary fees and expenses in connection with said treatment, and save the county of Grant harmless from any liability in connection therewith.
“6. That the duration of this temporary parole shall be until such time as the defendant shall have completed his course of treatment and be ordered discharged from said hospital by his attending physician, unless this order shall be sooner revoked by order of this court because of irregularities or improper conduct on the part of the defendant.
“7. That the defendant will not, either directly or indirectly, violate any of the laws of the state of Kansas, and especially the prohibitory liquor law, during the time of his release under this order.
“8. That upon discharge from said hospital by his attending physician that the defendant will immediately surrender himself to the custody of the sheriff of Seward county, Kansas, where he is now confined as provided by law under the aforesaid sentence, and that the defendant give bond to the state of Kansas in the sum of 8250 that he will so surrender himself when released.”
The petitioner accepted the conditions of the above order, He entered the hospital, where he was treated until January 15, 1929, when he surrendered himself to the sheriff. On the same day he filed his petition for a writ of habeas corpus, on the ground that he had served the full term of his jail sentence, the petitioner contending that he was serving his j ail sentence while he was in the hospital. The court denied this contention.
The sole question before us is whether the time the petitioner was in the hospital should be credited on the term of his jail sentence. The pertinent portion of the statute (R. S. 62-2202) provides that the court may- — ■
. . parole such person and permit him to go at large, upon such conditions and under such restrictions as the court or judge granting the parole shall see fit to impose.”
Appellant stresses the words “permit him to go at large,” and argues that he was not permitted to go at large; that by the court’s order he was confined to the hospital and not permitted to leave without the consent of his patron or the court; that the words “go at large” mean without constraint or confinement (5 C. J. 1437). But, as used in the statute, the words indicate the maximum liberty of movement which may be granted. This broad meaning is restricted by what follows: “to go at large, upon such conditions and under such restrictions as the court . . . shall see fit to impose.” This seems to give the court almost unlimited authority to impose conditions and restrictions on the permission of one paroled to go at large. (State v. Harris, 116 Kan. 387, 226 Pac. 715.) Appellant recognizes this, but says if the statute be so construed the court might, under the guise of paroling a.prisoner, keep him confined indefinitely. Perhaps a court might abuse its discretion in naming the conditions and restrictions which it placed in a parole, but the record in this case discloses no such abuse of discretion. Here was a prisoner who had twice violated orders which had granted his liberty, and had been taken into custody the third time. He represented to the court that he was ill, and that he desired to take treatment at his own expense from a certain physician and at a specified hospital. The court granted the request, but because of the previous history of defendant’s conduct deemed it proper to impose the conditions and restrictions contained in the order. Among these was the condition that he submit himself to the treatment in good faith — by doing so the court could avoid being imposed upon by a feigned illness — and was not unreasonable. The order provided that when the treatment was completed defendant should submit himself to the custody of the sheriff. Hence, defendant had no misunderstanding of the conditions of his parole. He was at liberty to accept or reject the conditions. (In re Patterson, 94 Kan. 439, 146 Pac. 1009.) He did accept them, and is not in good position now to complain of them.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the court setting aside a judgment rendered .in the absence of defendants or their counsel, which absence is alleged to have resulted from the mistake, neglect or omission of the clerk.
The matter came up in this way: Plaintiff sued on an account for merchandise sold, and alleged that the defendants named were partners doing business under a trade name. The trial court directed a verdict for defendants. The plaintiff appealed, and the judgment of the trial court was reversed (Samuel Ach Co. v. Thorpe, 115 Kan. 812, 224 Pac. 917), and a new trial was directed. This was in April, 1924. The case should have been placed on the docket of the trial court for the October, 1924, term, but the clerk did not do so. The case remained in that situation about two years. After the dockets had been printed for the October, 1926, term of court, counsel for plaintiff observed that the case was not on the printed docket, and on October 7, 1926, wrote to the clerk calling his attention to that fact and asking that it be placed on the docket. In Sedgwick county there are four divisions of the district court, each division being presided over by a district judge. The clerk of the court keeps the record for all of the divisions, and under rules of the court the clerk assigns cases to the respective judges or divisions. A rule of the court (No. 3), applicable to all divisions, reads in part as follows:
“When a case has been assigned by' the clerk to any judge for trial, he shall have full charge of said case until judgment has been entered, and all applications for continuance or interlocutory matters shall be addressed to such judge.”
When the case was originally filed in court it had been assigned by the clerk to division No. 3, presided over at that time by Judge Wall, and the case was tried before him and in that division before its appeal to this court. Since that time Judge Pierpont has succeeded Judge Wall as judge in that division. On the receipt from plaintiff’s counsel of the letter of October 7, 1926, the clerk of the court entered the ca,use on the trial docket of division No. 2, presided over by Judge Sargent. Neither defendants nor their counsel were notified of this. The case was not reached for trial during that term. Before the beginning of the January, 1927, term of court Judge Sargent, of division No. 2, having previously given notice that he would do so,, on December 31, 1926, made an assignment of cases in his division for trial in the January, 1927, term of court. In making such assignment this case was assigned for trial on January 19, 1927. Counsel for defendants, not knowing that this case was on the docket of division No. 2, were not present at the time of this assignment, and had no notice of it. A young man from their office was present, but he had not been instructed to look after the assignment of this case and did not recognize it as being one in which defendants’ counsel were interested. The printed dockets for the January, 1927, term of court were distributed on January 7. At that time counsel for defendants learned that this case was on the docket of division No. 2, but had no knowledge at that time that it had been assigned for trial, and expected to be notified by the clerk of the court in accordance with the rules and practice of the court if and when the case was assigned for trial. They received no such notice. The case was tried on January 19 in the absence of defendants and their counsel, and without their knowledge. Judgment was rendered for plaintiff. Nothing further appears to have been done about the matter, or any information conveyed to defendants or their counsel, until after that term of court had expired. It was not until May, 1927, that defendants’ counsel learned that this judgment had been taken. At that time they filed a motion as above stated. On the hearing of this motion evidence was taken and the court made findings as incorporated in the journal entry, the substance of which has been above stated. The trial court set aside the judgment. Plaintiff has appealed and complains of this ruling. We see no error in it. The pertinent statute reads:
“The district court shall have power to vacate ... its own judgments, . . . at or after the term at which such judgment . .' . was made. . . . Third, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.” (R. S. 60-3007.)
The proceedings shall be by motion (R. S. 60-3010), commenced within three years (R. S. 60-3008). It seems quite clear that the mistake, neglect and omission of the clerk consisted in not placing this case on the docket for more than two years, then placing it on the docket of the division to which it did not belong without notice to counsel for defendants, and in not notifying them of the assignment of the case for trial. Counsel for defendants had every reason to expect that when the case was docketed for trial it would be in division No. 3.
Appellant calls our attention to the fact that the rule uses the term “judge” rather than “division,” but since each division is presided over by one judge until his term of office expires and someone else succeeds him, we think the court fairly interpreted the rules applying to the division as distinct from the individual presiding over it.
Several minor questions are discussed in the case, but they do not require special treatment.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J:
The question presented here is whether the statute against drunkenness is part of the prohibitory liquor law; whether conviction of a second offense of drunkenness constitutes a persistent violation of the prohibition law. The question arises on a motion to quash the information. The motion was sustained and the state appeals.
The statute against drunkenness, enacted in 1883, reads:
“If any person shall be drunk in any highway, street or in any public place or building, or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars or by imprisonment in the county jail for a period not exceeding thirty days.” (R. S. 21-2128.)
The persistent violator statute reads:
“Any person who, having once been duly convicted of violations of the prohibitory law and who shall thereafter, directly or indirectly, violate the provisions of the prohibitory liquor law, shall be considered a persistent violator of the prohibitory liquor law and shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the state penitentiary at hard labor for not more than one year; and every violation, directly or indirectly, of any provision of the prohibitory liquor law, by a person who has heretofore been or shall hereafter be once convicted of any violation of the prohibitory liquor law, shall be considered a separate and distinct felony.” (R. S. 21-2146.)
The information charged previous convictions of defendant of “being drunk and under the influence of intoxicating liquor at the residence of Henry Schmailzl in Rawlins county, ... of having been drunk and under the influence of intoxicating liquor at the residence of Mrs. E. E. Andrews in the city of Atwood, Rawlins county.”
The state contends that the crime of drunkenness is a violation of the prohibitory liquor law because the statute prohibiting drunkenness is intermingled with sections referring to that law. We think not. The arrangement by the early compilers of the statutes in question was probably for convenience and was followed by later compilers for the same reason. The general prohibitory liquor law was enacted in 1881 while the drunkenness chapter (Laws of 1883, ch. 104) was enacted later, with no reference to the prohibitory liquor law violations. The original law was enacted to put in force the constitutional prohibition against manufacture and sale of intoxicating beverages. (Laws of 1881, ch. 128.) Section 19 of the act made it “unlawful for any person to get intoxicated,” and provided a penalty for any person found in a state of intoxication. In State v. Barrett, 27 Kan. 213, section 19 was held unconstitutional for the reason that the title of the act was not sufficient to include the provision mentioned. In the opinion it was said:
“All that it (the act) seems to have had in contemplation was the prohibition of the manufacture and sale of intoxicating liquors in certain cases, and the regulation of the manufacture and sale of intoxicating liquor in certain other cases. With regard to what should be done with the liquors, independently of their manufacture and sale, it was silent. The title to the act does not, in the slightest or most remote degree, refer to the use of the liquor in the abstract. So far as the title of the act is concerned, after the liquor has-been manufactured and sold, any person in the lawful and bona fide possession of it may use it as he sees fit; he may drink it, or burn it, or give it away, or he may use it in any other manner or for any other purpose to which his inclinations may lead him. The title to the act is wholly silent with reference to these matters. When the liquor is manufactured and sold, if manufactured and sold and purchased in good faith and according to law, the title to the act has then spent its force; it has then no further room for operation; its mission is then ended. When the sale is completed, it can have no further application to any transaction.” (p. 219. See, also, Harris v. Hardesty, 111 Kan. 291, 207 Pac. 188.)
It has been held that personal use of intoxicating liquor and drinking the same is not a crime — except public drinking on street or interurban cars or passenger trains. (State v. Munson, 111 Kan. 318, 206 Pac. 749.) It was not intended by the legislature that merely because one drinks to the extent of becoming intoxicated he has violated the prohibitory liquor law, or that because one has become intoxicated several times he has become a persistent violator of the law and guilty of a felony.
The law against drunkenness is of ancient origin. It was an offense under the common law of England, when attended with circumstances making the offender a common nuisance. No changes or amendments have been made in the drunkenness statute since its enactment and there is nothing to indicate that it was intended to be one of the provisions of the prohibitory law. It was enacted long-before many of the present provisions of the prohibitory law were placed in the statutes.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant is charged in this case with the crime of forcible rape upon Mrs. Mildred Carroll. He was tried, found guilty and now appeals, alleging error in refusing to grant a continuance, in admitting and excluding evidence and in failing to instruct as to the lesser offense included in the charge.
The story of the prosecuting witness was that she and her husband were making an overland trip from Kansas City to Oklahoma City, catching rides in automobiles as much as possible, and had reached the west edge of Independence, Kan., when they hailed the defendant, going in their direction in his car. He granted their request by taking them in, but told them he was only going about a quarter of a mile farther to his garage. After learning their destination he said he had a collection to make about fifteen miles on their way and he could take them that far. He stopped at his garage, looked after some business, got a revolver and continued on the journey to the town of Wayside. On the way he is said to have slapped the prosecuting witness on the knee, to have taken her by the ankle and placed her foot on the other side of the gear shift, and to have unnecessarily mentioned some of her probable articles of apparel in the suit case they had with them. On reaching the edge of Wayside he told them that was as far as he was going. The husband got out first and the defendant covered him with the gun, held in his right hand back of the prosecuting witness, started up the car and drove away with the woman. He drove very rapidly through the town with his arm back of the woman and his left hand on the wheel, turned off the main road, making several turns on roads where there was less travel, stopped the car and by threats and with the revolver in hand compelled the woman to submit-to his demand, which she says was fully accomplished under such threats and by physical force. He returned her part way to the town and let her out and he drove back to Independence by another than the usual road. He met an-acquaintance on the way back and requested him never to tell they had met. When confronted with the woman and her husband that night after being arrested he said he had never seen them before. The defendant on the trial said that on the road to Wayside the husband proposed a private party with the woman for an inconsiderable sum, which proposition he accepted, and for that reason the husband got out of the car at Wayside, but the plan was abandoned because the travel on the road prevented privacy.
At the preliminary hearing the attorneys for the defendant made an extended cross-examination of the prosecuting witness and her husband as to their lives and conduct, and where and for whom they had worked, and in preparing for the trial took depositions to contradict and impeach their statements along these lines. It was for the purpose of getting more testimony of this impeaching character that the continuance was requested. In the trial the same extended cross-examination was pursued, against which testimony a number of impeaching depositions were offered by the defendant and on objection by the state were rejected by the court. The defendant made two requests for a continuance of the case for the term for the purpose of procuring the depositions of parties residing outside of the state, each being supported by an affidavit in the usual form. The crime was alleged to have been committed on March 12. The preliminary hearing was held March 27. The information was filed March 31 and the case was called for trial April 3. The first motion for continuance was heard and denied April 6, but the court continued the case to the heel of the docket, setting it for trial April 18. On that day the second motion was heard and denied, but the court continued the case to April 23, and it was reached for trial two days later.
The granting of a continuance to the defendant in a criminal case is not a matter of right, but rests in the sound discretion of the trial court, and while the exercise of such discretion is subject to review, yet it will not be disturbed in the absence of a clear abuse of discretion. Aside from the question of the nature and character of the evidence desired to be procured by deposition, we think the extension of time granted was reasonable under all the circumstances —twelve days on the first request and four on the second.
“The defendant, charged with the offense of statutory rape, asked a continuance of the trial over the term because the names of three witnesses had just been indorsed on the information by the state. The trial was postponed four days, but a continuance to the next term of court was denied. Held, that the ruling was not an abuse of the discretion vested in the court.” (State v. Bisagno, 121 Kan. 186, syl. ¶ 1, 246 Pac. 1001.)
“A party charged with a crime has no natural or inalienable right to a continuance, and in the absence of a statute is not entitled to the same as a mere matter of right or of law. At common law such applications were addressed to the sound discretion of the court, and its decision thereon could not be assigned as error, and while now the practice acts in perhaps all American jurisdictions authorize the review of such decisions by the appellate tribunals, the rule is well established that the trial court still acts within its own discretion in granting or in refusing an application for a continuance in a criminal case, whether it is on behalf of the accused or of the state; and its ruling will not be disturbed in the absence of a clear abuse of discretion.” (16 C. J. 451.)
See, also, State v. Gould, 40 Kan. 258, 19 Pac. 739; State v. Kipers, 109 Kan. 577, 201 Pac. 68; State v. Giles, 119 Kan. 417, 239 Pac. 756.
Much of the testimony mentioned in the first application for a continuance was taken during the twelve days’ delay granted, and when offered in evidence was rejected as being incompetent. That mentioned in the second request was the deposition of the juvenile judge at Springfield, Ill., who had already furnished a record of the conviction of the prosecuting witness in his court four or five years earlier as a delinquent, and defendant expected to show by him that she was found guilty of being incorrigible and also afflicted with a venereal disease and unfit to associate with other people; that her delinquency consisted of street walking and lewd conduct. The affidavit further stated that defendant would be able to prove that she had been married' before and not divorced; that she and her former husband had been implicated in a robbery, and that she had used an assumed name in procuring a license to marry Mr. Carroll.
This evidence is quite similar to that which the court rejected in the depositions that had been taken. The difficulty with the testimony to which an objection was sustained was that it was based upon answers to questions about irrelevant matters in an attempt to affect the credibility of the witness by impeaching the answers given to such questions. The court admitted four or five such depositions showing these witnesses had not worked at the places they said they had, but sustained an objection to a number of others along the same line upon the theory that the testimony merely rebutted collateral facts brought out by the defendant upon cross-examination. It was perfectly competent for the defendant to discredit and impeach the prosecuting witness by showing that her reputation for truth and veracity and for chastity was bad, and by showing that statements made by her were untrue. But all the impeaching evidence offered in these depositions was in rebuttal to immaterial matters brought out by the defendant in cross-examination, and was therefore inadmissible. When the defendant in the cross-examination reaches out to collateral and immaterial affairs not pertinent to the question of the guilt or innocence of the defendant, the answers given to such questions are not a basis for impeachment;
“It is not error for the trial court to refuse to permit the cross-examination of a witness upon a collateral matter, or to refuse to permit other witnesses to testify to statements made by such witness concerning a collateral matter; for the purpose of contradicting such witness.” (State v. Sweeney, 75 Kan. 265, syl. ¶ 2, 88 Pac. 1078.)
In the opinion of the case just cited the English rule or test is stated as follows:
“The rule is well recognized that a witness can be contradicted only upon some matter that is material or relevant to some issue in the case.- It is not always easy to determine when matter thus sought to be contradicted is collateral, and it must generally be determined from the facts of the particular case. A test which appears to contain all the elements of the rule is found in Attorney-general v. Hitchcock, 1 Exch. (Eng.) 91, and is thus stated: Could the fact, as to which the prior self-contradiction is predicated, have been shown in evidence for any purpose independent of the self-contradiction?” (p. 268.)
Under this rule all such impeaching evidence was inadmissible because tending to contradict matters brought out on cross-examination, which matters could not independently have been introduced as pertinent to the issue of guilt or innocence.
Other depositions went to the reputation of the prosecuting witness for truth and veracity and for chastity, but they did not measure up to the usual and well-known definition of reputation because the witnesses stated that their expressions as to reputation were not based upon what others said, but upon their own individual opinions, or upon some specific incidents. (Craft v. State, 3 Kan. 450, State v. Brown, 55 Kan. 766, 42 Pac. 363; State, ex rel., v. Lyons, 107 Kan. 312, 191 Pac. 281.)
The restriction of cross-examination, of which the defendant complains, was much along the same line but particularly as to who was paying the expenses of prosecuting witness and her husband while waiting for the trial and for details as to their being brought back into the state on a criminal charge in time to testify in this case. These matters were not material to the issue and there was no error in sustaining the objections thereto.
Certain rubber articles were found in the pocket on the inside of the door of the defendant’s automobile and were introduced in evidence by the state over the objection of the defendant, that such were not relevant and would tend to prejudice the jury. The case of State v. Mariano, 37 R. I. 168, 91 Atl. 21, is cited as conclusive on the subject, but in that case the court, while recognizing the danger of exciting the prejudice of the jury, held that notwithstanding that danger, if the object offered in evidence was relevant it should be introduced and that it was not error in that case to introduce the pieces of the skull of the deceased to show that it must have been fractured by a blunt instrument or stone. The same rule was clearly expressed by this court with reference to exhibiting the clothes of the deceased, which, although revolting, were held to be properly admitted in the case of State v. Moore, 80 Kan. 232, 102 Pac. 475. Regardless of the use of any of the rubber articles in connection with the crime herein charged, they were relevant to the issue, like the evidence of the commission of other distinct and different offenses of the same kind in cases of this character, as tending to show a lustful disposition and the trend of mind and inclination of the defendant in that he was equipped with convenient accessories for such lascivious indulgence. (See 2 Wharton on Criminal Evidence, § 518e; 16 C. J. 617; State v. Sweet, 101 Kan. 746, 168 Pac. 1112; State v. Stitz, 111 Kan. 275, 206 Pac. 910.)
The last error assigned is in the failure of the court to instruct as to the lesser crime included in that charged. The original information contained a second count charging an attempt to commit the crime of rape, but the court sustained the motion of the defendant to quash that count and trial was had on the first count only. Appellant urges the necessity of an instruction as to an attempt as-a lesser offense included in the greater because of the surroundings and circumstances making the consummation of the crime charged physically impossible, but such is not the testimony. The only testimony we have as to the commission of the offense is that it was not an attempt but a full and complete offense. There was no duty to instruct as to a lesser crime unless there was some evidence to support a verdict of that character.
We find no error in the conduct of the trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The answer admitted execution of the note, but undertook to plead want of consideration, fraud and illegality. Judgment was rendered for plaintiff on the pleadings, and defendant appeals.
Plaintiff confesses error, and some brief observations for guidance of the trial court will suffice.
Want of consideration was sufficiently pleaded. Fraud was not pleaded in the portion of the answer denominated “answer,” although it was stated that the note was obtained by fraud and misrepresentation. The portion of the answer denominated “cross petition” did, however, plead fraud in due form and, taken as a whole, the answer should be construed as pleading fraud as a defense. While the plea of illegality was retrenched, it tolerably disclosed what the pleader was driving at, and was sufficient, as against a motion for judgment on the pleadings, to challenge validity of the note under section 5242 of the Compiled Laws of North Dakota, 1913.
The judgment of the district court is reversed, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Harvey, J.:
Appellee moved for a rehearing “for the reason the court in its opinion overlooked the decision of Gift v. Lennen, 114 Kan. 322,” 218 Pac. 996. It would appear that counsel who prepared the motion for rehearing had not read the opinion, for it is clear that the decision in that case was not overlooked. The case was specifically cited and discussed (Beach v. Norris, 127 Kan. 619, 623, 274 Pac. 256), and we endeavored to point out the reason why the decision in that case was not applicable to the case under consideration. In an amended motion for rehearing counsel for appellee quotes from our former opinion in this case much of what was said about the decision in Gift v. Lennen, and says “it is hard to follow the reasoning in this opinion,” and argues, as in the original brief, that the legal question decided in Gift v. Lennen is identical with the question involved here, and that the following of the decision in that case requires an affirmance of the judgment of the court below in this case.
While we think the distinction between the two cases was made at least reasonably clear in our former opinion, we shall go over the question again with the hope that we can state it so counsel can understand it.
The facts and questions involved and decided in Gift v. Lennen may be stated briefly as follows: Henry Torson, a resident of and an owner of real property in Finney county, died intestate April 15, 1921. In September, 1921, O. L. Lennen, a resident of Ness county, purchased from the heirs of Henry Torson the real property which he owned in Finney county at the time of his death, and procured deeds, or a deed, from such heirs for that property, which deeds were duly recorded in the office of the register of deeds of Finney county. On September 24, 1921, Eli E. Gift, claiming to be a creditor of Henry Torson, filed in the probate court of Finney county an affidavit of the death of Henry Torson, with a schedule of his property— being the real property which the heirs had sold to Lennen — and asked that an administrator be appointed, and on October 1, 1921, John T. Reed was appointed as such administrator. On October 29, 1921, Eli E. Gift filed a verified claim against the estate of Henry Torson for a balance of $589.96, claimed to be due him from Torson on a mutual account which was itemized. A notice, or exhibit of demand, of this claim was served on the administrator, with a notice the same would be presented to the court for allowance on November 7. The administrator in writing waived notice of presentation of the claim and consented that the same be presented at any time. On November 7, 1921, the claim was presented to the court and allowed and assigned to the third class. No notice of any of these proceedings in the prdbate court was given to the heirs of Henry Torson or to O. L. Lennen, their grantee. On January 23, 1922, O. L. Lennen filed a motion in the probate court, setting out that he had purchased the land from the heirs before an administrator was appointed; that he had no notice of the appointment of the administrator, or of the filing and allowance of the claim of Eli E. Gift, and alleged that he had a good defense to such claim in that Torson was not indebted to Gift, and moved the court to set aside the order of November 7, 1921, allowing the claim. This motion was overruled by the probate court, and Lennen appealed to the district court, where evidence was taken as to his knowledge of Gift’s claim before he purchased from the heirs. The court affirmed the ruling of the probate court and Lennen appealed to this court. The questions presented to this court were, first, whether notice of Gift’s claim should have been given to the heirs, and, second, if Lennen, the purchaser from the heirs, could raise that question. As to the first of these it was held:
“It is necessary to the power of a probate court to hear and determine a demand against an estate of a deceased person, that due notice of the presentation of the demand shall be served upon the executor or administrator and also that a copy of such notice shall be mailed to heirs or legatees or their guardian, if any, resident in the county where the claim is presented.” (Gift v. Lennen, 113 Kan. 467, syl. ¶ 1, 218 Pac. 996.)
And in the opinion it was said:
“The record discloses that no notice of the demand of Gift or of its presentation to the probate court was given to the heirs or to Lennen. The notice-to the administrator alone was insufficient. Prior to 1911 a notice to the executor or administrator of the presentation of a demand met the statutory-requirements, but the legislature of that year amended the law by requiring that a copy of the notice should be mailed to each of the heirs or legatees or their guardian, if any, resident of the county in which the claim is presented, and this is to be done within two days after it had been served upon the-executor or administrator. (Laws 1911, ch. 188, § 5.) The additional notice is-as essential to the jurisdiction of the probate court to hear and determine-demands against an estate as is the notice to the executor or administrator himself, and for this reason the case should have been reopened and the order set aside.” (p. 468.)
The statute of 1911 referred to in this quotation is R. S. 22-713, which has since been amended (Laws 1927, ch. 193). On the second question presented it was held that Lennen could raise the question of want of notice. The judgment of the court below was reversed. On the motion for rehearing it was made clear, for the first time, that none of the heirs of Henry Torson resided in Finney county, and it was contended that the statute of 1911 (R. S. 22-713) did not apply to them. A rehearing was granted. The question was then presented of whether the statute applied to heirs, legatees or guardians who were nonresidents of the county. On that question the court held:
“In the presentation of a demand against the estate of a deceased person, due notice must be given to the administrator of the estate, and if heirs or legatees or the guardians of either reside in the county of presentation, a copy of the notice must be mailed to each within two days after the notice is served, but no notice is required to be mailed to such parties who reside outside of the county.” (Gift v. Lennen, 114 Kan. 322, 218 Pac. 996.)
The opinion discloses this was the only question considered by the court. At no time in the presentation of the case were Black v. Elliott, 63 Kan. 211, 65 Pac. 215, or Musick v. Beebe, Adm’r, 17 Kan. 47, or any of the other authorities cited in our former opinion in this case (127 Kan. 622, 274 Pac. 256) cited, nor were the legal principles of those authorities referred to or relied upon. In neither of the opinions in Gift v. Lennen did the court consider those authorities or the legal principles announced in them. Counsel have no sound basis for their assertion that by the decision in Gift v. Lennen the former decisions of this court, cited as authority for the former opinion in this case, were overruled.
It is possible the parties in Gift v. Lennen had a situation in which they could have presented the question presented to us in this case — we shall not further analyze the record to see if that could have been done. The fact is they did not present that question, and it was not considered nor decided in that case.
The motion for rehearing is denied. | [
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The opinion of the court was delivered by
Hutchison, J.:
This appeal raises two questions — first, whether the former appeal was still pending in this court when the trial court resumed the trial of the case, and, second, whether the appellant had by his conduct in the former trial waived his right to request a jury under the occupying-claimant’s statute.
The appellant brought an action against the appellee to quiet the title to real property which he was occupying in good faith and to which he had deeds of conveyance from the owner. The defendant, in addition to her general denial, filed a cross petition in the form of an action in ejectment, and asked for an accounting as to the rents and profits. A trial on the issues thus formed was had in June, 1927, which involved the question of the validity of a will, and the court found and decided in favor of the defendant and against the plaintiff on the question of title. The plaintiff appealed to this court, where the judgment was affirmed, as reported in Carlyle v. Pee, 125 Kan. 727, 265 Pac. 1113. That opinion was handed down April 7, 1928. A petition for rehearing was filed in this court by appellant April 25, 1928. .It was considered and denied May 11, 1928, and the mandate was sent to the clerk of the district court immediately thereafter. On May 16, 1928, a request was filed by the appellant for permission to file a second petition for rehearing, and this was denied on May 20, 1928. The records here show the above dates and that the mandate was never recalled.
The case was called for further trial in the district court on May 31, 1928, at which time the objection was made by appellant that the court was without jurisdiction because the matter was still pending in this court upon appeal. The appellant may not have had before him all the above facts and dates at the time of making the objection to the jurisdiction of the trial court, but the facts show conclusively that there was nothing pending in this court when the case was called for further hearing in the trial court and that court had complete jurisdiction of the case. When the case was called for further hearing on May 31, 1928, the appellant called for a jury under the occupying-claimant’s act, and the court refused to grant the request because the appellant had in effect waived that right by participating in the introduction of evidence along that line without objection or such request at the trial in June, 1927, under the issues raised by the cross petition in ejectment filed by the defendant calling for an accounting, and that branch of the case had been continued for further hearing when decision had been rendered on the question of title. The journal entry of that trial, after disposing of the question of title, stated:
“It is ordered that the hearing and taking of testimony on accounting for rents of premises, claimed of the plaintiff by the defendant, Katie T. Pee, be continued to a later date.”
It is strongly urged and maintained by the learned counsel for the appellant that R. S. 60-1903 requires that a journal entry of the judgment be first made, when the judgment is against the occupying claimant, before it is incumbent upon either party to the action to make the request for a sheriff’s jury to determine the value of the improvements. He cites in support of this view of the law three Kansas decisions, viz., North v. Moore, 8 Kan. 143; Lemert v. Barnes, Ex'r, 18 Kan. 9; and Hazen v. Rounsaville, 35 Kan. 405, 11 Pac. 150. In the first case the court refers to this feature of the case as a separate proceeding from the original suit and one that grows out of it, and holds that, while the statute does not require any notice of the further hearing, in fairness there should be reasonable notice, and concludes this subject as follows:
“It is too late to object to want of notice, or want of sufficient notice, when a party has appeared without objection, and has taken the chance of a satisfactory decision, has taken steps to obtain such a .decision, and makes his objection only when the decision is not such as he expected or desired. By his appearance and participation he waived his right to insist on notice, or to claim that it was not a reasonable one.” (p. 153.)
The second case cited suggests that the occupying claimant would not want to make such request while he was contesting the question of title, as he might thereby appear to “confess the hopelessness of his cause.” But the court in the same discussion says, “We suppose it makes but very little difference which was done first” (p. 13), referring to the request and the rendition of judgment.
In the third ease cited the request was made after the judgment on the title had been rendered, and the court sustained the request and allowed further proceedings. On appeal this court held it was not in itself an appealable order, but restated the right of the occupying claimant to make such request after an adverse judgment. There is no doubt this is the orderly way intended under and by the statute — to try the question of title first and reserve the question of accounting as to rents and profits for a subsequent hearing. In many decisions this question of accounting is referred to as the question reserved, meaning that it is either by request or by common consent deferred during the progress of the trial of the case on the question of title. But it surely is not error to try both matters together when there is no objection or request for a jury, and in that event the right to a jury would certainly be waived.
Appellant cites the case of Kuykendall v. Taylor, 93 Kan. 471, 144 Pac. 818, to show the request can only be made after the judgment and the filing of the journal entry. The second paragraph of the syllabus is as follows:
“The unsuccessful occupying claimant is entitled, upon request, to have a sheriff’s jury drawn to assess the value of the lasting and valuable improvements made on the premises by him, but the failure to make the request within a reasonable time after the right to possession has been adjudged and until the court is proceeding to determine the value of such improvements is deemed to be a waiver of that right.”
While, as stated above, this is the orderly way to proceed if the question is properly reserved, yet the claimant may by his own conduct waive his rights, as the court held in the case just cited, as stated in the opinion:
“When plaintiffs asked to have the reserved questions adjudicated, the defendants objected, and the trial court, instead of authorizing a sheriff’s jüry, proceeded to try this question as well as those relating to taxes and rentals, and disposed of them on the evidence submitted in the original trial. It may be that the failure of defendants to specifically ask for a sheriff’s jury and their general objection to proceeding with the trial of the reserved questions was treated by the trial court as a waiver of the right to a jury. A sheriff’s jury might have been called on the motion made by plaintiffs, but as defendants had allowed months to elapse after the original judgment without requesting a jury and then objected to the further consideration of the reserved questions, including that relating to improvements, they are hardly in a position to complain that the question of improvements was determined by the court instead of by a jury drawn under the occupying-claimants law. Their conduct in the case was, in effect, a waiver of their right to demand a jury.” (p. 473.)
The record in this case shows that during the trial of the original case on the question of title in June, 1927, considerable evidence was introduced by the appellee on the accounting feature of the litigation, particularly as to rents and taxes. The appellant himself was called as a witness by the appellee and answered as to rents received by him, and on cross-examination he told of the expense of keeping the houses insured. A stipulation was made as to the taxes paid by appellant. The motion for new trial evidently set up the same two points urged by appellant in this court, and the journal entry of the ruling thereon shows that the trial court considered the appellant to have waived his right to a sheriff’s jury by reason of having participated in the introduction of evidence on the accounting branch of the case in the original trial without the question being reserved during the trial or a request being made for a jury. The following is a portion of such journal entry:
“The undersigned judge further finds that on May 31, the date of resuming the trial, the mandate of the supreme court was on file in this court, had not been recalled, and no order of stay asked or obtained; that the trial of this action was commenced on the 21st day of June, 1927, upon issues joined by the petition of plaintiff asking that his title be quieted to the real estate therein described; and the answer and cross petition of defendant, Katie Pee, asking that she be decreed the owner of the premises, that plaintiff be ejected therefrom, and that the plaintiff be required to account for the rents and profits of the premises during the period of his occupancy. The judge further finds that on and prior to the date of commencement of said trial on said issues plaintiff did not demand a jury, and the said action proceeded to trial to the court without a jury; that defendant, Katie Pee, on said trial introduced evidence showing the amount of rents and profits due her from plaintiff; that the court then took said case under advisement, and on the 5th day of July, 1927, adjudged the defendant, Katie Pee, the owner of and entitled to the possession of the greater portion of the real estate described in plaintiff’s petition, but not being entirely satisfied with the testimony introduced as to said accounting and the rents and profits, and desiring further testimony thereon, ordered that the further hearing and taking of testimony on said accounting and for rents and profits be continued to a later day; that the trial had on May 31, 1928, and to which this motion for a new trial is directed, was a continuation of the trial of this cause on the issues joined herein, begun on June 21,' 1927.
“The undersigned finds that the plaintiff, not having demanded a jury prior to the commencement of trial of said action, and having, without objection, proceeded to the trial of said action without a jury, thereby waived his right, if any, to a trial of said cause by jury.”
We think that appellant waived his right as an occupying claimant to request a sheriff’s jury ydien he participated in the introduction of evidence on the accounting branch of the original case without objection or request for jury or for reservation of such question, and that the request was properly denied when made nearly a year later when the cause was called for further hearing as to rents and profits.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Charles R. DuBois against the city of Galena to recover for hauling dirt from one section of the city to another in order to make a fill on a street upon which a sidewalk might be placed. The plaintiff recovered, and defendant appeals.
In the petition it was alleged that on the first of December, 1926, he entered into a verbal contract with the city for the work mentioned, for which it was agreed'he should be paid the sum of $500; that the work was completed about the ninth day of February, 1927, according to the terms agreed upon; that payment had not been made, and he asked for judgment for $500. The defendant moved the court to require the petition to be made more definite and certain in several particulars, and that motion was sustained as to one ground, namely, to state the name of the person or persons with whom the contract was made and where it was made, and it was overruled as to the other grounds.
The plaintiff thereupon filed an amended petition which, among other things, stated that the contract was made by the mayor, the chairman of the street committee and the city engineer, who agreed to pay him $500 for excavating the dirt and transporting it to make the fill upon the street. He also added an allegation that the work had been done in compliance with the agreement; that $500 was a fair and reasonable price for the work, and that a claim for the same had been presented to the city; that later, in November, 1927, the council at a meeting allowed the account, passed an ordinance to appropriate the money upon the conditions that the mayor, city engineer and chairman of-the street committee would O. K. it; that thereafter these officers approved the bill as provided in the ordinance, but the city has failed and refused to pay the claim. When the demurrer was overruled the defendant was given ten days to answer, but it elected to stand upon its demurrer, and judgment was entered for plaintiff. -
There is nothing substantial in the contention that the court erred in overruling in part defendant’s motion to make the petition more definite and certain. One ground was that it was indefinite in failing to state whether the contract was made with the plaintiff or with a representative of the plaintiff. It was specifically alleged that it was made with plaintiff. Defendant also asked that plaintiff be required to state the exact terms and conditions of the contract, but the allegations appear to adequately state the substantive facts of the transaction. It is further stated that the petition was not definite as to the time when a verified claim was filed. The plaintiff alleged that he filed with the city clerk an itemized verified statement of his claim prior to June 1, 1927, but the exact date he could not state. Other allegations were to the effect that the claim was brought before the' mayor and council and was acted on by that tribunal. Sufficient was alleged to show the nature of the claim and to enable the defendant to make any legitimate defense it had. It was not necessary that every detail of the transaction should be recited, and it is not the function of a petition to narrate the evidence. It is enough to set forth the substantive facts. (K. P. Rly. Co. v. McCormick, 20 Kan. 107.) In motions of this character the court is invested with considerable discretion and it cannot be said that there was any abuse of that discretion in the ruling in question. (Combs v. Thompson, 68 Kan. 277, 74 Pac. 1127.)
Complaint is also made of the overruling of defendant’s motion to strike out what was alleged as redundant matter.. Reference is made to the allegation that the work was done and that the fair and reasonable price for it was the amount of $500, for which plaintiff asked judgment. It appears that plaintiff in effect set forth two causes of action in a single count, one on contract and another in quantum meruit. No motion was made to separately state and number the causes of action pleaded, and in the absence of such a motion the plaintiff was entitled to rely on either the contract or on the reasonable value of the work done for and accepted by the city. There was no prejudicial error in the ruling.
It is further contended that the petition was demurrable in failing to show that there had been an estimate of the improvement by the city engineer, and that the contract had been let for a price within the estimate of that officer in compliance with R. S. 14-440. It may be questioned whether a minor matter like the filling of a hole in the street is within the meaning of that statute, but, passing 'that question, it must be held that it is too late for the city to refuse payment for work done at its request, which it had accepted, because of the lack of an estimate by the city engineer. According to the petition the work was properly done at the instance of the city. It had power to contract for the improvement. The work was approved by the city as evidenced by the ordinance it passed. It has had the benefit of the work which it procured to be performed, and the amount of the claim is alleged to be the reasonable value of that work. Under the circumstances the city may not now question the regularity of the contract. (Baxter Springs v. Light Co., 64 Kan. 591, 68 Pac. 63. See, also, Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176; City of Topeka v. Ritchie, 105 Kan. 398, 184 Pac. 728; Webb v. Crawford County Comm’rs, 127 Kan. 547, 274 Pac. 249.) In City of Topeka v. Ritchie, supra, it was held that where a contract has been made for services by a city which it had the power to make, in which there was not a formal compliance with the provisions of a statute, it will be held liable where the services had been recognized and accepted and where the city had received valuable benefits from the services. In such a case the city is deemed to be on the same plane as an individual. (Ritchie v. City of Wichita, supra.) In that case the court aptly quoted from another authority that—
“ ‘Municipal repudiation of honest indebtedness, which the municipality intended to contract, and could have lawfully contracted, is no more to be tolerated than individual repudiation of honest indebtedness, merely because it was not incurred in pursuance of a duly executed express contract, unless the municipal charter or the statutes prohibit the municipality from incurring any liability by implication.’ ” (p. 669.)
Through an inadvertence a slight excess was included in the judgment. Interest was reckoned from March 1, 1927, when it should have been from June 1, 1927. This is admitted by the plaintiff and the modification should be made.
So modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action was prosecuted by Mary Ferguson, the widow of J. C. Ferguson, against his children to obtain partition of certain real property. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The petition alleged that J. C. Ferguson died seized of a large quantity of land situated in Greenwood county, describing that land, which the court after calculation assumes to have been approximately 1,600 acres, included within which was the land in controversy in this action. The petition further alleged:
“That only after the death of the said J. C. Ferguson did she [the plaintiff] learn, that a few days prior to her marriage with said J. C. Ferguson he had fraudulently attempted, without consideration, to transfer his property, as above set out, to his said children, the defendants herein.”
In the abstract of the appellant is found a “stipulation and statement of facts dictated by the court”, as follows:
“It is admitted for the purposes of this trial that the only question in issue is as to the construction of two deeds, one made by J. C. Ferguson September 12, 1923, to Dorothy Rush, and another made the same date by J. C. Ferguson, widower, to Ella Rice.
“In the first deed as to the description 'and west half following real estate, all that part northwest quarter section 2, township 27, range 11, which lies southwest of center of channel of Fall river, containing 125 acres more or less, and southwest quarter of northeast quarter, 38 acres, and southeast quarter of northwest quarter, 40 acres, both being in section 32, 26, 11,’ and the following description: ‘and east half of all following described real estate, to wit, all that part northwest quarter, section 2, in township 27, range 11, which lies southwest of center of channel of Fall river, and being 125 acres more or less; and northwest quarter of northeast quarter section 4, township 27, range 11’ in the same deed; and the question of construction referring in the first deed is as to whether the clause ‘and west half’ limits the land described as southwest quarter of the northeast quarter and the southeast quarter of northwest quarter in section 32, or only limits that part of the northwest quarter of section 2 which lies southwest of the center of the channel of Fall river. And in the second deed as to whether the clause ‘and east half’ limits the description northwest quarter of northeast quarter of section 4, township 27, range 11, or only limits that part of the northwest quarter of section 2, township 27, range 11, which lies southwest of the center of the channel of Fall river.
“For the purposes of this construction it is also admitted that as to the first deed the grantor, J. C. Ferguson, at the time or after making said conveyance, conveyed the west half of all that part of the northwest quarter of section 2, township 27, range 11, which lies southwest of the center of the channel of Fall river, and containing 125 acres more or less; he also conveyed the east half of said tract to another daughter, but that he did not at that time or at any future time convey the east half of the southwest quarter of northeast quarter, nor the east half of the southeast quarter of the northwest quarter, both in section 32, to a daughter or to anyone else.
“It is also for the purposes of this construction admitted that as to the second deed, at the time of the making of same, or thereafter, the grantor, J. C. Ferguson, conveyed the west half of all that part of the northwest quarter of section 2, in township 27, range 11, which lies southwest of the center of the channel of Fall river, and being 125 acres; he also conveyed the west half of said tract to another daughter, but that at that time and at no time subsequent, did he convey the west half of the northwest quarter of northeast quarter of section 4, township 27, range 11, to a daughter or to anyone else.
“And this being the only question to be determined by the court at this time, in view of a consideration of the descriptions of these lands as written in the deeds, and in view of the intention of the party as indicated, in the judgment of the court, by the manner of conveying parts of the land covered by these descriptions to other parties, it is the judgment of the court, and found, that as to the first deed, the whole of the southwest quarter of the northeast quarter, 38 acres, and the whole of the southeast quarter of the northwest quarter, 40 acres, both being in section 32, township 26, range 11, was conveyed by the grantor to Dorothy Rush, and as to the second deed the whole of the northwest quarter of the northeast quarter of section 4, township 27, range 11, was conveyed to the grantee, Ella Rice. Such is the judgment of the court.”
On and prior to September 12, 1923, J. C. Ferguson, then a widower, owned the land in all that part of the northwest quarter of section two (2), township twenty-seven (27), range eleven (11), which lies southwest of center channel of Fall river, containing one hundred and twenty-five (125) acres more or less, and owned the southwest quarter of the northeast quarter, thirty-eight (38) acres, and owned the southeast quarter of the northwest quarter, forty (40) acres, both of said last-mentioned tracts being in section thirty-six (36) in township twenty-six (26) range eleven (11), all in Greenwood county, Kansas.
On September 12, 1923, J. C. Ferguson executed a warranty deed to his daughter, the defendant, Dorothy Rush, by which he conveyed to her—
“The east half of the southeast ¼ section thirty-three (33), and west half (½) of southwest quarter (¼) section thirty-four (34), township twenty-six (26), range eleven (11), and west half (½) following real estate all that part northwest quarter (¼) section two (2), township twenty-seven (27), range (11), which lies southwest of center of channel of Fall river, containing 125 acres more or less, and southwest quarter (¼) of northeast quarter (¼), 38 acres, and southeast quarter (¼) of northwest quarter (¼), 40 acres, both being in sec. 32-26-11.”
On the same day, J. C. Ferguson executed a quitclaim deed to his daughter, the defendant, Ella Rice, by which he conveyed to her—
“The east half of southeast quarter of section twenty-five (25), in township twenty-seven (27), range eleven (11), and lots three (3) and four (4), in section thirty (30), township twenty-seven (27), range twelve (12), and east half (½) of all following-described real estate to wit:
“All that part northwest quarter (¼) section two (2), in township twenty-seven (27), range eleven (11), which lies southwest of center of channel of Fall river, and being 125 acres more or less, and northwest one quarter (¼) of northeast quarter (¼) section four (4), township twenty-seven (27), range eleven (11).”
Afterward J. C. Ferguson and the plaintiff were married. He subsequently died, leaving the plaintiff as his widow.
This controversy is over the southwest quarter of the northeast quarter and the southeast quarter of the northwest quarter of section thirty-two (32), township twenty-six (26), range eleven (11), and over the northwest quarter of the northeast quarter of section four (4), township twenty-seven (27), range eleven (11), all in Greenwood county. The plaintiff contends that the deeds conveyed only one-half of each of the last-named tracts, while the defendants contend that the deeds conveyed the whole of each of those tracts. The description in each deed may be separated into three parts: the first in which all the land therein described is conveyed; the second, in which one-half of the 125 acres is conveyed to each of the daughters; and the third, in which .the tracts following the description of the 125 acres is conveyed. The language used to describe the interest conveyed in the last-described tracts is ambiguous. No evidence was introduced to explain that ambiguity. The trial court was compelled to construe the language from the pleadings and the deeds.
Attention is directed to the allegation in the petition that J. C. Ferguson had transferred his property to his children for the purpose of défrauding the plaintiff. That allegation implied that J. C. Ferguson had transferred all his property in the manner alleged. Attention is also directed to the language of the court, as follows:
“In view of a consideration of the description of these lands as written in the deeds, and in view of the intention of the party as indicated ... by the manner of conveying parts of the land covered by these descriptions to other parties.”
The trial court reached his conclusions from the original deeds which he had in his possession and from which he dictated the stipulation and statement of facts hereinbefore set out. This court does not have the original deeds nor an abstract of them; it has certified copies of the record of those deeds and an abstract of them. A question has been raised in this court concerning the accuracy of the copies set out in the abstract of the appellant. The trial court had the original deeds. For that reason he was in a little better position to determine the meaning of the deeds than this court is at this time with certified copies and the abstract from which to reach conclusions.
The whole of the description in each of the deeds strongly indicates that J. C. Ferguson intended to convey all of the land therein ' described and not retain title in himself to any of it. That, in connection with the allegations of the petition, justified the conclusion reached by the trial court. The same conclusion is reached by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The defendants, August Sieverling and his wife, conveyed a tract of land to the Fontron Loan and Trust Company. On November 20, 1926, in connection with the sale of the transfer, that company executed and delivered to the Sieverlings an option contract to the effect that if they would pay the company $1,500 in three annual payments, on October 1, 1927,1928 and 1929, and also pay the interest on the $10,000 mortgage held by that company on the land when it became due, and would pay all taxes thereon when due, the company would convey the land back to the Sieverlings. They failed to make the required payments, and by mutual agreement surrendered the option contract on December 13, 1927. Then they leased the land from the company for a term ending August 1, 1928. It was alleged that the lease expired and the right of possession under the tenancy ceased on that date. On June 12, 1928, the company conveyed the land by deed of general warranty to the plaintiff, J. H. Tharp. He afterwards brought this action against the Sieverlings, alleging that notwithstanding the expiration. of the lease, defendants had refused to permit him to cultivate the land; that he desired to plow and prepare the land for fall seeding, and that he would be greatly damaged by being kept out of its possession. He alleged that he has no adequate remedy at law, as the damages that will result will be so speculative and uncertain as to be incapable of ascertainment, and further, that the financial condition of defendants is such that it would be impossible to recover any damages from them. He therefore prayed for an injunction restraining defendants from continuing their farming operations and from interfering with plaintiff in preparing the land for cropping.
On the filing of plaintiff’s petition, the probate court, in the absence of the district judge, heard the application and found that plaintiff was entitled to a temporary injunction, and an order was issued enjoining the defendants from all farming operations and from interfering with the plaintiff in cultivating and seeding the land. No order was made as to the occupancy of the buildings on the farm by the defendants. The order-of injunction was issued on condition that a bond of a fixed amount be given and the plaintiff complied with this order. Later a motion was made by defendants to set aside the injunction, and upon the petition the court dissolved the injunction and at the same time stayed the effect of the order until a proposed appeal to this court be determined.
An appeal was taken by plaintiff, and the question for determination is whether injunction will lie to prevent defendants from trespassing on the land and excluding plaintiff from going upon it in time to put in his fall crop.
Plaintiff recognizes the general rule that a court of equity will not restrain a naked trespass where there is an adequate and complete remedy at law; but he insists that if the trespass and injury are irreparable in kind, the legal remedy inadequate in that the damages claimed can only be measured by conjecture and not by any pecuniary standard, that the trespasser is insolvent and therefore not able to respond in damages for the trespass or threatened injury, a court of equity may grant injunctive relief. These elements being pleaded, plaintiff contends he was entitled to an injunction.
The fact that an action at law may be maintained to recover damages for a trespass does not preclude the granting of an injunction if the remedy at law is inadequate. It is said that—
“It is well settled that if the bill shows- that irreparable injury will result from a trespass, a sufficient ground for the interference of equity by injunction to restrain its commission or continuance, is made out. Where the injury is of such a nature that it cannot be fully compensated in damages or cannot be measured by any certain pecuniary standard, it is irreparable and the trespass may be enjoined.” (32 C. J. 135.)
In an action where a trespasser/ who was insolvent, had gone into possession of land and was interfering with flocks of sheep rightly grazing there, and where he by one means and another was preventing them from grazing on the premises, an action for damages was deemed to be inadequate and it was held that equity will interfere and afford relief by injunction. (Webster v. Cooke, 23 Kan. 637.) Similarly, it has been ruled that—
“Injunction, will lie to prevent a trespass where the acts complained of are continuous, or where the injuries occasioned thereby are of such a character that they cannot be compensated by any ordinary standard of value, or when for any reason the remedy at law would be inadequate.” (Mendenhall v. School District, 76 Kan. 173, syl. ¶ 2, 90 Pac. 773.)
In that case it was held that where the trespass is a continuing one and damages would not compensate, and the trespasser is insolvent or for other reasons an action at law is not adequate, that is, not complete, efficient and prompt as a remedy in equity, injunction will lie. Likewise it has been held that a continuing trespass on land which threatens irreparable damage may be enjoined and as against such a wrong a remedy at law is inadequate. (Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372.)
In McBroom v. Wilgus, 108 Kan. 14, 193 Pac. 1068, an owner had leased land to a tenant for a fixed time, and the lease provided that the tenant might have an option to extend the lease for one year if exercised within a certain period. The tenant failed to exercise the option, and after the lease had expired the owner desired and undertook to put in crops on the land in season, but the tenant declined to allow him to do so or to proceed with the cultivation of the land. It was held that the owner was within his right in insisting on planting the crop in season and was entitled to an injunction preventing the tenant from meddling with the land. See, also, Hawes v. Starliper, 126 Kan. 150, 267 Pac. 17.
Here a willful trespass of a continuing kind was alleged. The planting of the crop in season was a matter of great importance to plaintiff. The time for planting had arrived and defendants without right were preventing plaintiff from taking the necessary steps for cropping the land. Unless crops are planted in season there can be little if any harvest. The result will be that the land will be idle for a year and thus there will be the added element of waste. Any .action to recover damages for the injury would not be adequate. It would be difficult to estimate the damages resulting from the loss of crops and the interference with plaintiff’s use of the land. The damage's of necessity would be speculative in nature and would be incapable of certain ascertainment. Who can measure the damages which would result from the loss of a crop, considering the dangers of drought, flood, frost, hail and wind, in a particular section of the .state? If the conditions should be favorable the crop might be abundant, and if adverse there might be little if any return. Besides the deprivation of the use of the land for a period, an action for damages for the injuries would have been fruitless because of the insolvency of the defendants. An action for damages was ■clearly inadequate, and plaintiff was therefore entitled to resort to equity in the first instance, and the court erred in denying him injunctive relief.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Harvey, J.:
In this action plaintiff alleged that he had guaranteed the payment of a certain note which was secured by a mortgage, and that the mortgagee was about to release the mortgage without requiring payment of the note. .The makers and the payee of the note and mortgage were made defendants. Plaintiff sought to have the rights of the parties adjudged to be as alleged, and to enjoin the payee from releasing the mortgage without the payment of the mortgage debt. Issues were joined, there was a trial to the court, judgment was for defendants, and plaintiff has appealed.
The facts disclosed by the record material to be considered here are as follows: The plaintiff, who appears to have been a man of some means, resides at Grand Rapids, Mich. In 1924, at Tulsa, Okla., he became acquainted with R. W. Talbot, C. B. Talbot and A. G. Hazlett, who were engaged in the gas- and oil-production busi ness, having, among other properties, two blocks of leases (or contracts for leases) on land in Montgomery county, Kansas, on which they desired to drill for oil and gas. They did not at that time have the money to pay the expense of drilling such wells, nor did they have credit by which they could get the money — at least they did not have such credit at the First National Bank of Tulsa. They discussed this matter with plaintiff, and as a result of such discussion the parties entered into a written contract with respect to one block of leases as follows:
“Contract.
“This indenture, made and entered into on this 3d day of September, 1924, by and between R. W. Talbot, C. B. Talbot, and A. G. Hazlett, hereinafter designated as first parties, and Claude Hamilton, hereinafter designated as second party, witnesseth:
“That whereas, the first named R. W. Talbot is the owner of oil and gas mining leases covering the following-described real estate situated in Montgomery county, Kansas, to wit: (Description of said real estate is here given.) And the said C. B. Talbot and A. G. Hazlett have an interest therein, said leases now being in escrow in the Citizens State Bank of Elk City, Kan., according to the terms of an escrow agreement hereinbefore executed by R. W. Talbot with the fee simple owners of the real estate so described; and
“Whereas, second party desires to purchase a one-eighth (%) interest in the said oil and gas mining leases:
“Now, therefore, in consideration of the mutual covenants and agreements herein contained, it is agreed between the parties hereto, as follows:
“First: That the second party simultaneously with the execution of this agreement agrees to and does obtain for the first parties the sum of five thousand dollars ($5,000) in cash, payable six (6) months after date hereof, without interest, according to the tenor of a note of even date herewith executed by the first parties.
“Second: That the said five thousand dollars shall be used for the drilling of a well for oil and gas upon the said real estate so described, by the first parties, the same to be drilled upon a forty (40) acre portion thereof to be designated by first parties, the same to be drilled to the Wilcox sand found at approximately seventeen hundred (1,700) feet.
“Third: That an assignment of an undivided one-eighth (%) interest shall be made, executed and delivered by the first parties to the second party covering the said forty-acre tract upon which the said well shall be drilled, immediately upon the moving in of tools and machinery and the commencement of a well upon said premises.
“Fourth: It is further agreed that the first parties shall have'the right to sell any or all of the additional acreage heretofore described at such prices as they may see fit, the proceeds from the sale thereof to be used for the payment of the original purchase price for the said leases, to wit: Fifteen dollars ($15) per acre, or an aggregate total of twelve thousand four hundred and fifty dollar’s ($12,450). It is further agreed that after the said twelve thousand four hundred and fifty dollars shall have been paid by the sale of leases and the second party shall be reimbursed for the said five thousand dollars, that the first parties shall then make, execute and deliver to him an assignment of an undivided one-eighth (%) interest in all leases and moneys derived therefrom in the said contract that shall remain in the hands of the first parties.
“Fifth: It is further agreed that in the event a well is discovered that shall produce oil or gas, or either of them, in paying quantities, that the second party shall pay his pro rata, of one-eighth share of the expenses of equipping and operating the said property, including the discovery well and all other wells that may be drilled thereon, or at his option may surrender his one-eighth interest to the first parties.
“Sixth: It is further agreed that first parties will hold the second party harmless from any future or additional expense other than specified in this contract.
“In witness whereof, we have signed this instrument in duplicate, this 3d day of September, 1924. ,iR w Talb(H[j
C. B. Talbot,
A. G. Hazlett, Parties of the first part.
Claude Hamilton, Party of the second part."
On the execution of this contract plaintiff went to the First National Bank of Tulsa and there, by personally guaranteeing the payment of the loan, made arrangements that the Talbots and Hazlett could borrow $5,000 from, the bank. The Talbots and Hazlett executed their note to the bank for $5,000, dated September 3, 1924, due in 120 days, and got the money on the note. The plaintiff did not sign this note, but he did pay the interest on it for the term for which the note was drawn. The Talbots and Hazlett used the money so obtained on this note in drilling the well on the leases described. While drilling this well they sold part of the leases for sums aggregating $6,000. The well came in a dry hole. There is a controversy as to whether the Talbots and Hazlett made the assignment to plaintiff on the forty-acre tract spoken of in paragraph 3 of their contract, but this is not now material. No assignment was made to him of any other portion of the leases.
On September 10, 1924, the same parties entered into another contract with respect to the other block of acreage in Montgomery county. This contract need not be set out. It is identical with the first one, except as to the description of the property, and the amount to be paid for the leases (paragraph 4) was $6,400. It contained a similar provision by which plaintiff agreed to obtain for the Talbots and Hazlett $5,000 to be used in drilling a well on that lease. Plaintiff made a similar arrangement with the First National Bank of Tulsa with respect to this $5,000, and the Talbots and Hazlett, on September 11, 1924, executed their note to that bank for $5,000 due in 120 days and got the money on it. Plaintiff paid the interest on the note for the time it was to run, but did not sign the note. The well on this block of acreage came in a dry hole, and of this acreage the Talbots and Hazlett sold $1,000 worth while the drilling was going on.
These two $5,000 notes were not paid when due, but were renewed, the makers giving some additional security which proved to be of no value, and plaintiff ultimately had to pay them, which he did about August 1, 1925. Thereafter Hamilton sued the Talbots and Hazlett on these two notes, the suit being brought in Oklahoma.
The Talbots and Hazlett had taken a number of oil and gas leases on land in Lyon county, Kansas, and had organized a corporation — the Center Oil Company — which is described as a family affair, all the stock being owned by the Talbots and Hazlett except a few qualifying shares, to which company these Lyon county leases had been assigned, and they had borrowed from the American National Bank — later reorganized as the American-First Trust Company of Oklahoma City, and hereinafter spoken of as the Trust company — $66,000 secured by a mortgage on their oil and gas holdings in Lyon county, Kansas, and perhaps at other places. This mortgage contained a provision by which it would secure additional indebtedness of the makers to the payee. Plaintiff learned of this situation and took up with the officials of the Trust company the matter of taking up the indebtedness of the Talbots and Hazlett to him in such a way that it would be secured by this mortgage.
As a result of conferences on that subject the Talbots and Hazlett individually, and as officers of the Center Oil Company, executed a new note for $10,946.91, being the amount of the two $5,000 notes which they had given to the First National Bank of Tulsa and which plaintiff had guaranteed and later paid, with the interest that. had accrued thereon after the maturity of the first notes given. This note was made payable to the Trust company, and its officers executed an affidavit to the effect that they had extended an ad-' ditional credit to the Center Oil Company and the Talbots and Hazlett, under their mortgage, to the amount of this note, and that the same was- secured by the mortgage previously executed by the makers by virtue of the clause above referred to, which affidavit was duly filed in the office of the register of deeds of Lyon county, where the mortgage had been previously recorded. When this was done the suit brought in Oklahoma by plaintiff against the Talbots and Hazlett on the two $5,000 notes was dismissed. It is plaintiff’s contention in this action that he sold the $10,946.91 note to the Trust company and guaranteed its ultimate payment, and by this action he seeks to require the Trust company to collect it from the mortgaged property, which he alleges is ample for that purpose, and which payment would relieve him of liability on his guarantee to the Trust company.
Some parties intervened, claiming rights under the mortgage, or the property described in it. Numerous pleadings were filed, only a few of which need to be noted. The Talbots, Hazlett and the Center Oil Company alleged, in substance, that the assignment to plaintiff of the undivided one-eighth interest in the forty-acre tract under one contract was of the value of $600, and under the other of $900, and that this amounted to usury under the laws of Oklahoma, for which usury, in a cross petition, they asked judgment; also alleged that they were induced to execute the $10,946.91 note by false representations, in that plaintiff had agreed to refinance them with a much larger- loan, which he failed to do, and that by reason thereof there was no consideration for this note. The plaintiff joined issues on these allegations. The trial court took the view that under the contract of September 3, 1924, hereinbefore set out, it was the duty of plaintiff to furnish defendants $5,000 for the assignment of the one-eighth interest of the leases to be made, as therein provided; that plaintiff was to be reimbursed in the event only that enough acreage was sold to pay, first, the original cost of the leases, and then to pay plaintiff.
With this interpretation the court held that there was no consideration for the $5,000 note executed by the Talbots and Hazlett to the First National Bank of Tulsa on September 3. By similar reasoning the court held there was no consideration for the second $5,000 note executed by those parties to the bank on September 11, 1924. Since plaintiff’s contention was that these notes formed the consideration for the $10,946.91 note, the court held that note to be without consideration, and the plaintiff was not entitled to any relief. Plaintiff complains of that ruling of the court, first, for the reason that it was not within the issues, and, second, for the reason that it is not supported by the evidence, nor a proper interpretation of the contract. We think this complaint is well founded. The question was not within the issues. These defendants in their answer had referred to those $5,000 notes as loans, and from their testimony it is clear that they borrowed the money, that plaintiff guaranteed it, that they received the money and used it; and the only defense they pleaded against those notes was the defense of usury. The trial court incorrectly construed the contract. It provided that plaintiff “agrees to and does obtain for the first party the sum of $5,000.” The evidence clearly shows how that was to be obtained, and how it was in fact obtained. For furnishing this credit and paying the interest on the sum for a stated time plaintiff was to have an assignment of an undivided one-eighth interest in the forty acres on which the well was being drilled, but if it produced oil or gas in paying quantities he was required to pay his pro rata one-eighth share of the expense of equipping and operating the property, including the discovery well, and all other wells that were drilled thereon. Stress is laid on the fourth paragraph, which contained a provision contemplating that the Talbots and Hazlett might sell some of the leases, except the forty acres being drilled upon, and out of the proceeds pay the first cost of the leases and then reimburse plaintiff for the $5,000 he had secured, as indicating the only method for the payment of the $5,000 which plaintiff obtained for them. This does not purport to be the only method of such payment. It provided simply a method for its payment in the sense of security for the payment. Not only the contract itself indicates that, but there is evidence that it was so understood. This error requires a reversal of the case for a new trial. Since the court took the view it did, there was no specific ruling upon other questions raised in the case as between the plaintiff and the defendants, the Talbots and Hazlett, and no other questions concerning these parties need be discussed.
The Trust company first answered to the effect that all of the allegations of plaintiff’s petition were true except that it was not threatening or about to release the mortgage without the payment of the note in question. Later it filed an amended answer in which it is contended that it had been induced by plaintiff to file the first answer by his fraud, denied that it ever purchased the note in question from plaintiff, or that it had any right to collect it under its mortgage. The plaintiff replied more in detail as to the manner in which he had guaranteed to the Trust company the payment of the note, and in this respect alleged, in substance, that he had an agreement with the Trust company by which he would leave with the Trust company a sum of money equal to the amount of the note, to be invested in municipal bonds, or similar security, to be held in escrow by the Trust company for plaintiff, the proceeds, if necessary, to be used in the guarantee of the note; that plaintiff had in fact left with the Trust company $15,000, which the Trust company had, at his direction, invested in bonds for him, and asked more specific relief in that the Trust company be required to bring these bonds into court for plaintiff’s use, or to be disposed of as the court might order. The allegations of this reply with respect to the specific manner in which plaintiff had guaranteed the payment of this note to the Trust company were stricken out on the Trust company’s motion that they constituted a departure. The trial court held they did constitute a departure and refused to receive evidence concerning them.
Plaintiff complains of this ruling. It was erroneous. The reply simply amplified allegations already made in the petition. It did not change the claim of plaintiff. Perhaps all the evidence offered in respect to that could have been offered under the petition, but there was nothing improper in so specifically pleading the facts. The court excluded evidence offered by plaintiff, much of which constituted correspondence between plaintiff and the Trust company with respect to the manner in which the Trust company took the note in question, the manner in which plaintiff had guaranteed it, and the investments made by the Trust company for plaintiff. We see no reason why any of this evidence should have been excluded. It is true that some of this evidence was not offered on the motion for a new trial, and appellant is not in position to complain of the ruling excluding that; but much of it was documentary and did not have to be so offered in order to predicate error upon the ruling. These matters can be properly handled on a new trial.
The Trust company contends that it should not be compelled to. litigate in the courts of a state foreign to its domicile the matter of its financial arrangements or obligation with plaintiff. We see no merit in this contention. It is in court for all purposes. There is no reason why a court of equity, having all the parties before it, should not consider and determine the entire controversy.
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The opinion of the court was delivered by
Burch, J.:
The action was one .to establish a preferred claim against the receiver of the Burlington State Bank. Plaintiff recovered, and the receiver appeals. The case is companion to that of Peoples State Bank v. Burlington State Bank (ante, p. 274, 277 Pac. 89).
The administrator of an estate kept his funds in the Burlington State Bank, of Burlington, Kan. Desiring to make partial distribution of the estate, the administrator mailed to Nellie Griffith, one of the heirs residing at Riverside, Cal., his check on the bank for $2,000. Nellie Griffith delivered the check to the First National Bank of Riverside, which forwarded it directly to Burlington State. A form letter was used in transmitting the check, which read:
" We inclose the following items for collectio and{Return Credit ”
Riverside National had no account with Burlington State, was not opening an account with Burlington State, was not given credit by Burlington State, and the letter was properly understood and treated as if it read “for collection and returns.”
Burlington State charged the check to the administrator’s account, and sent Riverside National a draft on Burlington State’s Kansas City, Mo., correspondent, the Commercial National Bank. The draft was dated April 6, 1927. At close of business that day Burlington State suspended. When the draft was presented to Commercial National, payment was refused. When the administrator’s check was drawn and paid, his account was more than sufficient to take care of the check. When the draft on Commercial National was drawn and forwarded to Riverside National, Burlington State’s account with Commercial National was more than sufficient to take care of the draft. When Burlington State closed, it had cash on hand in the sum of $3,918.42. The financial relations between Burlington State and Commercial National are stated more at length in the opinion in the Peoples State Bank case.
When a check on a bank is sent to the bank for collection it acts as agent of the sender to make the collection, and when the collection is made it gets the proceeds in the same capacity as if the collection were made from another bank across the street. In this instance the bank made the collection by charging the check to the account of the administrator. The check was authority from the administrator to make the charge, and his funds subject to check were reduced by the amount of the check. Having made the collection, the bank’s relation to the fund was the same as if the collection had been made from a bank across the street, and the principles apply which governed the decision in the Peoples State Bank case. The precise question was determined in the case of Kesl v. Bank, 109 Kan. 776, 204 Pac. 994 (1921).
In the opinion in the case of Guymon-Petro Mercantile Co. v. Farmers State Bank, 120 Kan. 233, 243 Pac. 321, the Kesl case was distinguished and there was no analogy between the two cases. In the Guymon-Petro case, the sole obligation of the failed bank was to pay its depositors’ checks. It was not agent of anybody to do anything. The relation to the drawer of each check was that between debtor and creditor, and the fact that its checks came to it for payment from a chain of collecting agencies did not change that relation. All that happened was, the obligation of the debtor to its creditors was not discharged. Delivery of a worthless draft by way of discharge did not convert funds of the bank on which unpaid checks and unpaid draft were drawn into trust funds. In the Kesl case, and in the case under decision, the banks on which the checks were drawn obtained possession of the checks under conditions which created a fiduciary relation.
In the opinion .in the Guymon-Petro case the technical, even artificial, character of the principal-agent-trust-fund doctrine was adverted to. The observation contains a possible implication which if carried to its logical conclusion would upset the doctrine. To illustrate: In the Peoples State Bank case Commerce Trust sent a draft on Burlington National to Burlington State for collection and remittance. The possible implication referred to is that whatever Burlington State might do in the collection transaction would be done by Commerce Trust, and consequently Commerce Trust could not hold Burlington State for violation of its instruction to collect— which meant to collect money or its full equivalent, and its instruction to remit — which meant to remit money or its full equivalent. That would permit an agent for collection and remittance to convert, by its own act, its fiduciary relation to that of debtor and creditor— something which an agent to collect and remit has no power, express, apparent, or implied, to do.
The principal-and-agent doctrine was accepted by all the members of the court in the Kesl case and in the companion case of Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992. The dissent in each case was on the ground no change in the assets of the failed bank occurred. The subject of principal and agent was not discussed in the opinion in the Tire & Rubber Company case, because there was no dispute about it. The matter of augmentation of assets, concerning which the members of the court did not agree, was not material unless the failed bank were a trustee of the fund acquired in execution of its agency to collect. The judgment was that preference be allowed, which required existence of three necessary elements enumerated in the brief of counsel for the prevailing party as follows:
“First. There must be a showing that a fiduciary relationship existed between the claimant and the bank, such as that of principal and agent.
“Second. There must be a showing that the transaction resulted in an increase in the funds of, or a swelling of the assets of the bank.
“Third. There must be a showing that the increased assets were not dissipated by the bank, but remained in its general assets and passed into the hands of the receiver at the time of his appointment.” (Tire & Rubber Co. v. Bank, No. 23,810, Briefs 109 Kan.)
In this instance Riverside National manifested no intention that Burlington State should become its debtor. Riverside National did manifest intention that Burlington State should become its agent, and the fiduciary relation constituted Riverside National’s security. (Holder v. Western German Bank, 136 Fed. 90, 92.) If a bank were to be permitted to change at will the relation of agent to that of debtor, forwarding banks would be compelled to require shipment of currency in order to protect themselves. The effect upon the transaction of business would be so disastrous that the evil consequences would far outweigh the hardship to depositors resulting from application of the principal-and-agent doctrine to occasional bank failures.
Following the decisions in the Tire & Rubber Company and Kesl cases, it must be held that the funds of Burlington State which came into the hands of the receiver were augmented to the amount of the Griffith check. When the Griffith check was collected, Burlington State held the proceeds precisely as it held the proceeds of the collected draft in the Peoples State Bank case. The proceeds taken out of the account of the administrator did not belong to Burlington State or form part of its assets available for distribution among creditors. The receiver, however, got the benefit of them.
The receiver contends that if a preferred claim be allowed, he should account to the extent of the cash in the bank’s vault when it failed, and no further. While Burlington State was a going concern it designated the fund out of which its obligation to Riverside National should be discharged. It wrote and mailed its draft on Commercial National.
In the case of Clark v. Bank, 72 Kan. 1, 82 Pac. 582, the syllabus reads:
“Ordinarily the issuance of a bank draft does not, prior to its acceptance, operate as an assignment of a part of the fund against which it is drawn.” (If 1.)
As applied to the case under decision, this means that the right of Burlington State to funds on deposit in Commercial National to the amount of the draft sent to Riverside National was not effectively transferred to Riverside National so that Riverside National could enforce the right against Commercial National. .The draft, however, did manifest intention of Burlington State that funds in possession of Commercial National to the amount of the draft should be used to pay the draft. A portion of a specific fund was thus in effect segregated and appropriated to discharge the trust resulting from collection of the Griffith item. As in the Peoples State Bank case, that fund was traced to possession of the receiver. The receiver’s estate was enriched to the amount of the Griffith check, and plaintiff has a preferred claim on the estate for the amount of the check.
In the Tire & Rubber Company and Kesl cases, Justice Mason’s objection to the holding that the receiver’s estate was bettered was that fiction was substituted for fact. In the dissenting opinion in the Tire & Rubber Company case it was said:
“The theory of an increase in assets can be given effect only by changing the transaction — by regarding an arrangement for the transfer from one person to another of money the bank was already holding as the bringing of new money to it. . . .” (Tire & Rubber Co. v. Bank, 109 Kan. 772, 775, 204 Pac. 992.)
The writer agreed with Justice Mason. Perhaps this view was too realistic. The view was confined strictly to the corpus of the estate as a physical thing, and did not sufficiently regard distinct legal relations of the thing. However that may be, the writer regards the subject as stare decisis, and does not contend further.
Carefully considered decisions of other courts are in accord with the decisions of this court, but it is not necessary to cite them.
The judgment of the district court is affirmed.
Harvey and Hutchison, JJ., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
Mrs. Hancock has filed a petition for rehearing. She desires to reargue the question of sufficiency of evidence to sustain the verdict against her, free from any entangling alliance with her codefendant, Sanders. In disposing of Mrs. Hancock’s case the court was not confused by the briefs and the oral argument in behalf of Sanders. Mrs. Hancock’s brief and the oral argument in her behalf made it clear that she is the mother of two daughters in school, and the court noted what she had to say pertinent to the case. It was pointed out that the court is not interested in quantity of evidence and strength of inferences from evidence in her favor. The question was whether there was substantial evidence to warrant the jury in finding her guilty. The court was not disposed to spread the evidence on the pages of the Kansas reports. Counsel for Mrs. Hancock still insist there was no substantial evidence to sustain conviction, and so in effect challenge the court to produce it.
Mrs. Hancock was proprietor of a restaurant in the small town of Zenda. Complaints about the place had been made by different persons to the sheriff. The city marshal was a deputy sheriff, and the sheriff and marshal arranged a code to be used in communications between Zenda and the sheriff’s office relating to the place. About 4 o’clock in the afternoon of December 18, 1927, the marshal communicated with the sheriff, and about 4:30 the sheriff and two deputies arrived with a search warrant. As indicated in the former opinion, liquor was found in a rear room of the restaurant. One of Mrs. Hancock’s daughters was in the room when the officer came in. She said the first thing he did was to lock the door, and the next thing was to walk straight to the can of floorsweep in which the liquor was hidden, under one of her dresses. A groceryman of Zenda had told the city marshal there was liquor in the restaurant, and that a named person had bought liquor there that day. The marshal communicated the information to the sheriff.
Besides the bottle of liquor found in the can of floorsweep, a gallon jug was found in Sanders’ car, which contained a small quantity of liquid smelling strongly of alcohol. There were a good many people in Zenda that day, attending a showing of the new Ford car. Sanders’ conduct at the time of the raid was described in the former opinion. The description need not be repeated here, but it is pertinent as disclosing Sanders’ appreciation of the state of affairs at the restaurant.
Sanders was Mrs. Hancock’s cook. He had previously been convicted of selling cigarettes, and had previously been arrested for selling liquor, but was not convicted. When the officers arrived he was working a machine placed in the restaurant that morning containing six dice agitated by a spring. If certain numbers came up the operator got so- much in trade. Besides being Mrs. Hancock’s cook Sanders had social relations with her. She was a- divorced woman, and she said she went to church and to picture shows with him. When asked if she went to dances with him she said she had been to dances where he was, but did not remember of going with him. When cross-examined she remembered going to a dance one night in an automobile with four men, one of whom was Sanders.
On one occasion the city marshal saw two men in the kitchen of the restaurant drinking from the same bottle. On another occasion Mrs. Hancock remarked to a man that he had a bad cold. He said probably a little tobacco smoke would do him some good. She asked if anything else would do, and said she had it for $2.50. The witness said he did not know what she meant; but it was not necessary there should be a mind reader on the jury for the jury to know what she meant. After she was arrested Mrs. Hancock admitted to the sheriff that men had drunk and gambled in the restaurant.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for breach of an oral agreement to execute a written option contract for the sale of gas properties. Demurrers to plaintiff’s petition were sustained, and he appeals.
For convenience the J. B. Kirk Gas and Smelting Company will be designated the company. The petition alleged substantially that on or about May 14, 1927, the defendants orally agreed with the plaintiff that in consideration of plaintiff’s incurring the expense and inconvenience of having the gas properties owned by the company inspected, investigated and appraised by engineers employed by the plaintiff and his associates, that upon the arrival of the engineers at Iola, the defendants would make, execute and deliver to plaintiff or his nominees their written option contract by which the defendants would agree to sell and transfer all the property and assets of the company, except the oil-prodiicing properties, to plaintiff or his nominees for the sum of $1,100,000; that the defendants agreed that this written option contract should continue from its execution so long as the engineers of the plaintiff and his associates were actively engaged in the investigation of the properties and business of the company, and that plaintiff should have the exclusive right to purchase at any time during such investigation, and the plaintiff and his associates orally agreed to purchase the properties provided it checked out with the representation, data and other information furnished to plaintiff by the defendant, J. B. Kirk; that it was agreed between plaintiff and Kirk, who was at all times acting for himself and in behalf of the company, that the plaintiff was also considering the purchase of the T. S. Salathiel properties, which, by reason of their location, production and pipe lines, would make a favorable merger with the Kirk properties; that Kirk and Salathiel orally agreed between themselves and with the plaintiff that they and each of them would make their written option contract for their respective properties on the conditions above stated when the engineers of plaintiff arrived in Kansas, or within a reasonable time thereafter, for the purpose of making the investigation and appraisal of the Kirk and Salathiel properties; that Salathiel, who carried on the negotiations between the plaintiff and defendants, advised the defendants that the plaintiff was acting for and on behalf of .himself and certain associates for whom he was expecting to purchase the properties and that the Kirk properties would be placed in a merger for the sum of $1,200,000, which would net the plaintiff $100,000; that after the making of said oral contract and with a view to carrying the same into effect and in performance of his agreement therein, the plaintiff and his associates did retain and employ engineers skilled in public utilities and in the making of appraisals and prepared to bring them from Pittsburgh, Pa., to Kansas for the purpose of making an inspection of the properties and appraisals thereof necessary in effecting a sale of said properties; that after the plaintiff and his clients had employed said engineers they, through T. S. Salathiel, communicated to the defendant Kirk the fact of such employment and the fact that said engineers would leave Pittsburgh about a certain time and arrive in Kansas about a certain time; that upon receipt, of said communication, Kirk by letter advised Salathiel that he did not regard his transaction as a binding contract and while he would not say that he would not go through with the deal he wanted it understood that he was negotiating with other people regarding the sale of the properties; that at that time Kirk for himself and in behalf of the company was negotiating with others for the sale of the Kirk properties, and when plaintiff’s engineers arrived Salathiel executed his written option contract, but the defendants declined to execute theirs and said that they would wait until the following Saturday before determining whether or not they would make the written option contract; that the engineers waited at Iola at Kirk’s request until Saturday, when the defendants refused to carry out their agreement but entered into a contract with other parties for the sale of their properties for $1,250,000, or $150,000 more than the plaintiff had agreed to pay the defendants; that the plaintiff had at all times been able, willing and ready to perform, but defendants, having sold their properties, were unable to perform, to the damage of the plaintiff in the sum of $100,000; that defendants knew when they made this oral agreement for an option on their properties that .the plaintiff would make a profit of $100,000 and that he would be damaged and suffer that loss if defendants breached their contract.
It will be observed that the action is not based upon an option contract, but upon an alleged oral agreement to later enter into an option contract.
The first question presented is whether the petition alleged a consideration for the contract. The plaintiff contends that it shows a benefit to the promisor, or a detriment to the promisee; a benefit to a third person and a promise for a promise; that its allegations are sufficient as against a demurrer. We cannot concur in plaintiff’s contention. Viewed in its most favorable aspect, the consideration alleged for the oral agreement was the incurring of the expense and trouble of having the properties owned by the company inspected by engineers to be employed by plaintiff. According to the alleged arrangement the plaintiff was not bound to provide the engineers and Kirk could not compel the plaintiff to perform by procuring the engineers. Plaintiff could abandon the matter at any time without liability. In Miami Coca-Cola Co. v. Orange Crush Co., 291 Fed. 102, it was said:
“I understand the law to be, where the consideration for a promise of one party is the promise of the other, there must be absolute mutuality of engagement, so that each party has the right to hold the other party to a positive agreement. In other words, both parties must be bound or neither will be.” (p. 103.)-
See, also, Marble Company v. Ripley, 10 Wall. 339, 19 L. Ed. 955; Willard Co. v. United States, 262 U. S. 489, 67 L. Ed. 1086; McCaffrey v. B. B. & R. Knight, Inc., 282 Fed. 334; 1 Williston on Contracts, pp. 219-222.
In 6 R. C. L. 688 the rule is thus stated:
“Where a contract is intended to bind both parties, or when it is of such form or nature that it contains mutual executory provisions — that is to say, where both parties have bound themselves or intended to bind themselves by reciprocal obligations — the doctrine as to the requirement of mutuality ap plies; and in such a case, if for any reason one of the parties is not bound, he cannot compel performance by the other. The reason is that the promise of the party who is not bound is not a sufficient consideration for the promise, of the other party.”
In Electric Management & Engineering Corp. v. United P. & L. Corp., 19 E. (2d) 311, it was said in the opinion:
“The rule is thus stated: ‘When there is an agreement founded on a consideration, it is not invalid for want of mutuality because one party has an option, while the other has not, or, in other words, because it is obligatory on one and optional with the other.’ (9. Cyc., p. 334; Conley Camera Co. v. Multiscope & Film Co., [C. C. A. 8] 216 F. 892, 896.)
“The foregoing rule applies where there is a valuable consideration paid by one party to another for the privilege of doing a certain thing. It is otherwise when the sole consideration is a promise for a promise, and the things to be done or the goods to be furnished are uncertain, indefinite,- and optional with the party seeking to enforce the contract. (Conley Camera Co. v. Multiscope & Film Co., supra; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., [C. C. A. 8] 114 F. 77, 57 L. R. A. 696; City and County of Denver v. Stenger, [C. C. A. 8] 277 F. 865.)” (p. 313.)
“Where an executory contract consists of mutual promises both-parties must be bound, or it will be void for want of mutuality.” (Heiland v. Ertel, 4 Kan. App. 516.) See, also, Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664; Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759; Van Deren v. Heineke & Co., 122 Kan. 215, 252 Pac. 459, and authorities cited. “Mutuality of obligation is an essential element of every enforceable agreement.” (13 C. J. 331.) And this mutuality must exist and be present at the time of the execution or the making of the agreement. (City and County of Denver v. Stenger, supra.)
In this instance, if what plaintiff said about employing engineers took the verbal form of a promise, such promise was not the price demanded and paid for defendant’s promise to grant an option. It was nothing bargained for by defendants and given to them in exchange for their promise, and so did not satisfy the definition of consideration. (Am. Law Inst. Restatement, Contracts, § 75.)
The allegations of the petition were very indefinite and uncertain, but we are of the opinion they showed that there was such want of mutuality that nobody was bound and plaintiff’s expenditures in employing engineers were voluntarily made. The conclusion at which we have arrived renders it unnecessary to discuss other questions ably argued in the briefs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of violating the prohibitory liquor law and appeals.
The facts were substantially these: Some federal prohibition officers, with a deputy sheriff, visited defendant’s farmhouse about eight miles from Independence, fortified with a search warrant. They found defendant’s wife in the kitchen and defendant in the next room. In one corner of the kitchen they found two gallon jugs containing intoxicating liquor. The wife began to cry; said she had begged them not to bring liquor into the house. The defendant, who was within hearing distance, claimed someone else must have left the liquor near his mail box; that he innocently brought it to his house. The jury saw and heard the witnesses and resolved the question of fact against the defendant. There was ample evidence to sustain the verdict, and no reason is apparent why the jury’s decision is not conclusive.
A contention that the court erred in the instructions to the jury is without substantial merit and cannot be sustained.
A contention that the court erred in admitting testimony of a former occasion when liquor was found in defendant’s possession must fail on authority of State v. Dunkerton (ante, p. 374, 277 Pac. 1019) and authorities cited.
We find no error in the record and are constrained to say that the appeal is without substantial merit.
The judgment is affirmed. | [
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