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Per Curiam:
A thrashing-machine company held the defendants’ note, secured by a chattel mortgage upon an engine. The note not being paid at maturity, the chattel mortgage was foreclosed and the engine sold at public sale to the mortgagee for $100. The expenses of the sale were deducted and the net proceeds, amounting to $84, were credited. The note then came into the hands of the plaintiff, who brought suit for the balance due. The defendants counterclaimed as follows:
“That said engine was well and reasonably worth the sum of $600 at the time it was taken and seized by said Minnesota Thrasher Company or this plaintiff, and that afterward the said Minnesota Thrasher Company or this plaintiff unlawfully and fraudulently, and without posting any notices of the time or place of such sale, and without notice to these answering defendants, fraudulently and unlawfully pretended to sell the same, and fraudulently and unlawfully pretended to buy said property for a sum unknown to these answering defendants, and, as alleged in the petition herein, indorsed on the note in controversy the grossly inadequate sum of $84 as the pretended proceeds of said pretended sale, said plaintiff or the Minnesota Thrasher Company well knowing at the time that said engine was actually and well worth the sum of $600.”
The defendants assumed the burden of proving their answer, and the court instructed the jury that such was the law of the case. Verdict and judgment went for the defendants.
The defendants introduced no evidence whatever to show that notices of sale were not posted, and one of them admitted attending the sale. The verdict and judgment, therefore, are not supported by the evidence as to that feature of the answer. The only Other ground upon which the defendants claim the right to recover is inadequacy of price, and inadequacy of price at a public sale is not in itself sufficient, unless so utterly gross as to show fraud. The jury found the engine to be worth $400, and it cannot be said that a sale for $100, the highest bid, shows fraud. More than this, the jury found that the fraud which vitiated the sale inhered in “the way they disposed of said engine at the time and place of said sale” — something not pleaded in the answer or supported by the proof.
The answer, the evidence, the special findings and the general verdict cannot be made to match. Therefore the judgment of the district court is reversed and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Smith, J.:
This suit was commenced in the district court of Cowley county to compel the specific performance, by four of the defendants, of a written contract to convey certain lands to the plaintiff, and to bar four other defendants from any interest therein, and to quiet the title to the land.
The plaintiff was guilty of laches in preparing for trial prior to the time the suit was set for hearing, in March, 1905, but -this seems in some measure to have been excused, though probably not wholly justified, by the fact that the suit was commenced in August, 1903, by Mr. Dana, as the principal attorney for the plaintiff, and who had charge of the case until he assumed the office of district judge, in January, 1905, and it was expected the case would be heard at the December, 1904, term of the court. The plaintiff and at least some of his witnesses resided in Chicago, Ill., and Mr. Tor- ranee, who had charge of the case in March, 1905, had had practically no opportunity to consult with his client, did not know the names of his witnesses, and could not detail in his affidavit for a continuance the evidence they were expected to give. An ineffectual attempt, in good faith, as it appears, was made to procure the depositions of the absent witnesses. When this failed the plaintiff started with his witnesses and had reached Kansas City, and had telegraphed his attorney accordingly, before the case was called for hearing, sometime in the afternoon of March 23, 1905.
Upon the calling of the case plaintiff’s attorney presented his affidavit setting forth the facts and asked a continuance for the term or a postponement until the next morning. The court denied both requests and dismissed the case for want of prosecution. The next morning, all parties, and so far as any intimation from the record appears all the witnesses, being present, the plaintiff appeared at the opening of court and filed his affidavit denying certain unsworn statements said to have been made in his absence which tended to impeach his good faith, and stating facts which in a measure should excuse, if not justify, his apparent want of diligence in prosecuting the suit. Thereupon he filed his motion asking that the case be reinstated, which motion was also denied by the court.
It is the duty of litigants to exercise great diligence both in prosecuting and in defending actions in court, and, as there are usually many cases set for hearing at each term of the district courts, the orderly dispatch of the business and the protection of other litigants from expensive delays and accumulating costs make it the duty of the court strictly to require the parties to every action to be ready for trial promptly at the time the case is set for hearing or to prove that in the exercise of due diligence they have been unable to do so. So great is the necessity for the prompt dispatch of court business that the statute authorizes courts to and they generally do impose upon the unfortunate litigant who, even through no fault of his own, is unprepared to proceed at the time set all -the costs of the necessary delay. This is usually sufficient to insure the making of every reasonable effort to be ready at the time appointed, unless vexation and delay be the real object of the litigation or unless some real or fancied advantage may accrue to one party by a course of procrastination. In such cases of designed obstruction or in case of gross or reckless inaction, if the fault be on the part of the plaintiff, it may become the duty of the court to dismiss his action; if the defendant be at fault he may be pénalized by proceeding with the trial notwithstanding his unreadiness.
The incidents of life, however, refuse to conform themselves to the plans of any man or to march in regular procession on the order of any court or earthly power. Even death steps in at the most unanticipated times to stay proceedings. It should be borne in mind that mere order and regularity of proceeding are not the purpose for which courts exist and are held, but are only aids to the grand purpose of dispensing justice, and should not be carried to the extreme and become the cause of injustice. “Extreme justice is injustice.”
In this case it seems that the plaintiff, evidently a busy man, had left his office on an extended trip and negligently omitted to instruct a clerk to open the mail which should have been expected from his attorney, and in consequence a notice to take the depositions of his witnesses in Chicago failed to reach the hands of his local attorney there, but was instead forwarded to plaintiff hundreds, of miles away, and it became impossible to return the notice in time to take the depositions before the case was set for hearing. Thereupon plaintiff returned to Chicago, unsuccessfully tried to find one witness who was absent, and taking such witnesses as he could started by rail for the place of trial. several hundred miles ■ away, and had accomplished probably three-fourths of the journey when the case was called for trial. His attorney was in court and was kept advised by wire of his movements, and the attorney by affidavit informed the court of the facts, so far, it is presumed, as he knew them, and asked a delay of only a few hours. This was refused, and the suit was dismissed for want of prosecution. The next morning all the parties, and so far as any intimation in the record goes all the witnesses, were present, and no reason appears for the refusal to allow plaintiff’s motion to reinstate the suit, unless it was to punish him for his former delinquency.
Especially considering the nature of this case, where the pendency of the suit might be the only protection of a valuable legal right and the dismissal thereof might impose upon the plaintiff great loss, the action of the court seems extreme — in short, an abuse of judicial discretion.
The order of the district court dismissing the action is reversed and the case is remanded, with instructions to reinstate it. | [
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Per Curiam:
The facts in this case are the same as those in Davies v. Benedict, ante, p. 47, except that there is involved another quarter of the same section of school-land. The cases were argued and submitted together. On the authority of the Benedict case the judgment in this case is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Appellant was convicted in the district court of Republic county of the unlawful sale of intoxicating liquors, and appeals. The bill of exceptions contains numerous assignments of error, but only those which are insisted upon in the brief will be considered.
It is claimed that the court erred in permitting improper questions on the cross-examination of Henry Oliver, who was produced as a witness for the defendant. To understand the force of this and other objections made by the appellant it is necessary to know something of the general features of the case and the relation of the witnesses thereto. Defendant was charged with selling beer to Raymond Ryser, who was the nephew of Albert Miller, the prosecuting witness. After the state rested the defendant put Henry Oliver on the stand for the purpose of discrediting the testimony of Seth Miller, an important witness for the state, by showing that the latter had made statements prior to a former trial of the case before a justice of the peace, from where it was appealed to the district court, indicating a hostile feeling toward the defendant. When Seth Miller was on the witness-stand for the state, on cross-examination, he testified in part as follows:
“Ques. Do you remember of being at Sunday-school the day before this trial came up at Cuba? Ans. Yes, sir.”
“Q. After Sunday-school did you not state there and then in the presence of some of the people who were there: ‘To-morrow is the day we are going to put the fixings to Roy Pugh’ ? A. That is part of it.”
“Q. State your.language. A. I said: ‘To-morrow is the day we will put the fixings to Roy Pugh or him to us.’ ”
On direct examination Henry Oliver said:
“Ques. You may state what, if anything, Seth Miller said right after the dismissal of Sunday-school, in the presence of whoever was there, in regard to what he was going to do in the Pugh case the following day. Ans. He said the next day was the day they was going to put the fixings to Roy Pugh.
“Q. What else did he say? A. That is all I heard him say about it.”
On the cross-examination of Oliver the county attorney attempted to show that the witness was unreliable. The entire examination was objected to, and is here given; it reads:
“Ques. You testified, did you not, down in the court below? Ans. Yes, sir.
“Q. You had a talk with me, did you not, in the presence of this gentleman here, as to- what your evidence would be in the trial down there? A. Yes, sir.
“Q. At that conversation you told me, did you not, that you had purchased beer of him?” [Objected to.]
“By Mr. Bullen: I am simply questioning this boy to show his character for truth and veracity; I will show that this boy’s word is not worth anything. . . . .” [Overruled and request denied.]
“Q. You were subpoenaed down there for the state? A. Yes, sir.
“Q. When I got down there I got a room in the hotel to talk with the witnesses to find out what they were going to testify, did I not? A. I guess you did.
“Q. And you came up in the room a.t my request to talk with me? A. Yes, sir.
“Q. Mr. Miller was there, was he not? A. Yes, sir.
“Q. I asked you there what you would testify, did I not? A. Yes, sir.
“Q. Did- you not tell me there on the stand that you could testify that you had purchased beer of him; you and your brother ? A. No, sir.
“Q. You say you did not tell me that? A. No, sir; I did not say my brother was with me at all.
“Q. You told me that you bought beer, did you not? A.. I said I bought it myself and I supposed it was beer. I did not say it was beer.
“Q. Then, after telling me that, did you not go on the stand about three hours afterward, and when I asked you the question as to whether or not you had purchased beer of the defendant did you not then say that you had not bought beer of him, and that you had not told me so when I asked you if you had not told me that you had? A. I told you the truth both times. I told you that Seth Miller and-was with me. I bought it for them, and not for myself.”
“Q. After you had told me that you had bought beer of Mr. Pugh, the defendant, in the room where I had invited you, did you not then afterward go on the stand and testify that you had not told me that you had purchased intoxicating liquor of him? A. I did not say I bought beer. I never did because I never tasted beer in my life; never tasted any kind of beer. I told you I had bought what I supposed was beer; I did not open it.
“Q. When you were talking in the room you said it was beer? A. No, I said I did not know it was beer.
“Q. When you were down in the lower court you admitted, did you not, that you had told me those things ? A. It was not me. That was my brother.
“Q. Who was it? A. My brother.
“Q. You did not then, at the trial down below, testify that you had bought anything intoxicating, or bought any beer of him? A. I said I bought a bottle I supposed was beer.
“Q. Did you say that on the trial ? A. Yes, sir.”
When the prosecuting witness was cross-examined by the defendant an attempt was made to show that the witness offered to compromise and settle the suit for a sum of money, and that his object in making the complaint was general hostility toward the defendant and his family. On redirect examination by the county attorney he was asked to explain why he brought the suit, and in answer thereto he said: “Because it was known all over the neighborhood that he was selling whisky.”
Complaint is made that the county attorney and the court were each guilty of misconduct — the former in his opening statement to the jury, in informing them of the trial before the justice of the peace, and in stating that the defendant was tried there on four counts and convicted on one. When objection was made he promptly withdrew the statement, but in sisted that he had a right to make it. He also assumed' that the defendant was guilty as charged, and had been engaged in selling beer as a business. He also placed on the table, in full view of the jury, a bottle upon which there was a label showing that it contained beer.
On further examination of Henry Oliver the witness told the county attorney that the. conversation about which he was talking occurred with the brother of the witness, to which the county attorney replied: “I remember your brother. I will fix him when he comes up.” On objection this was stricken out by the court.
The misconduct of the court, when particularized, consists of its failure to rebuke the county attorney for his misconduct, thereby leaving the jury to infer that such conduct was proper practice. A few other complaints are made of the same general nature and of about the same importance, and they may all be considered together.
The sole purpose of witness Oliver was to discredit the testimony of Seth Miller, who was one of the state’s principal witnesses, and the object of the cross-examination of Oliver was to discredit him as a witness. Under such circumstances it was proper for the court to give wide latitude to the county attorney in such examination. The extent permissible in such cases must be left to the discretion of the trial court, whose action will not be disturbed by this court except for such abuse as works an injury to the party complaining. In the case of The State v. Abbott, 65 Kan. 139, 69 Pac. 160, it was said:
“There is no better method of sifting the conscience and testing the veracity and credibility of a witness than by cross-examination, and there is abundant authority holding that for the purpose of impairing the credibility of the witness he may be cross-examined as to specific acts tending to discredit him, although such acts are- irrelevant and collateral to the main issue.” (Page 141.)
In the syllabus to the case of Fourth National Bank v. Albaugh, 188 U. S. 734, 23 Sup. Ct. 450, as reported in 47 L. Ed. 673, it was said:
“The discretion of the trial court in permitting the cross-examination of a witness to be extended beyond the limits of his direct examination will not be reviewed on appeal.” (See, also, Bassett v. Glass, 65 Kan. 500, 70 Pac. 336; The State v. Collins, 33 Kan. 77, 5 Pac. 368; The State v. Greenburg, 59 Kan. 404, 53 Pac. 61.)
In the conduct of trials before a jury much must be left to the good judgment of the trial court, and reviewing courts can only interfere therewith when the rights of the complainant appear to have been prejudiced thereby. In cases where the evidence is very close injury will be inferred more readily from irregularities occurring during the trial than when the evidence is strongly against the party complaining and justice seems to have been done. In this case no evidence whatever upon the question of guilt was presented by the defendant, although several witnesses were placed upon the stand by him who were in a situation to know, being members of his own family. The only effort made in the way of a defense was an attempt to discredit the credibility of the witnesses for the state. The conduct of the county attorney in some respects transgressed the rules of strict propriety, and the court might very properly have reprimanded him therefor, but nothing serious occurred, and we are unable to see how the rights of the defendant could have suffered thereby. The earnestness with which defendant’s counsel insist upon these irregularities as grounds for reversal indicates that he sincerely feels that, but for them, the defendant would have been acquitted. The record, however, shows that two boys, the son and the nephew of the prosecuting witness, bought beer of the defendant and were intoxicated therewith. This evidence is not in any way contradicted, and we think it was the plain duty of the jury to convict, regardless of the slight lapses of propriety shown on the part of the county attorney.
Objection is made to an instruction given by the court which reads:
“The law of this state provides that any person who shall sell or barter any spirituous, vinous, malt, fermented or other intoxicating liquors without having a druggist’s permit from the probate judge of the county to do so shall be guilty of a misdemeanor, and it is this law which the defendant is charged with violating. In order for you to find the defendant guilty it will be necessary to' find from the evidence, beyond a reasonable doubt, first, that the defendant, Roy Pugh, made the sale to the witness, Raymond Ryser, as claimed, and, second, that said sale was made in Republic county, Kansas, the exact time when the sale was made being immaterial, except that it must have been within two years next prior to the commencement of this action, which was on the 13th day of July, 1906.”
Counsel contends that the court here assumes as an established fact that the defendant made an unlawful sale of intoxicating liquor. We do not think this the natural or fair interpretation of the instruction. The court was instructing about the sale with the making of which the defendant was charged. That charge is what was being tried. The jury must be credited with some discernment. Any person of ordinary intelligence would understand that by “sale” or “said sale” as used in the instruction the court meant the sale of which the defendant was accused. We cannot discover any error in this instruction. Similar objection is made to other instructions, which it is unnecessary to consider. We have examined them and find no error.
This cáse was commenced before a justice of the peace, where the paper containing the charge is called the complaint. The case was appealed and tried upon the original papers. The court in its instructions referred to the charge as being contained in the first count of the information, and the verdict found the defendant guilty, as charged in the first count of the information. It is insisted that this misuse of terms is reversible error. It does not appear that any objection was made to this when the verdict was returned. The meaning is clear, and the verdict of the jury is therefore sufficient. (The State v. Wade, 56 Kan. 75, 42 Pac. 353.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a conviction under the prohibitory liquor law. The information contained thirteen counts charging sales, and one for maintaining a nuisance. Appellant was convicted under one count charging a sale, and also under the nuisance count.
It has been difficult to ascertain clearly the errors complained of. Appellant’s brief disregards the provisions of rule 10 and contains no specification of errors, but refers us to the specifications set forth in the petition in error. The latter contains twenty-nine separate specifications of error. The purpose of the requirement that the errors claimed shall be specified is that the contentions of the parties may be narrowed, and the labors of the court and opposing counsel to some extent lessened. In this case the specifications cover three pages of the record. They embrace every ruling made during the progress of the trial, and include a number which have reference solely to counts upon which the appellant was acquitted. They are so drawn out and amplified that they serve to bewilder and confuse instead of to aid either the court or counsel.
Many of the contentions of the appellant are not deemed of sufficient importance to require comment. We. will discuss those upon which he appears most strongly to rely for a reversal.
The information was verified positively by B. L. Sperling, assistant attorney-general for Miami county. It is claimed by appellant that at the time the information was filed the assistant attorney-general had no personal knowledge of the offenses charged but depended wholly upon the information contained in sworn statements taken by him. This was brought to the attention of the court by affidavits of the appellant in support of a motion to quash, a motion that the information be made more definite and certain, and a motion to require the affidavits to be filed in court, as well as by a motion asking the right to inspect the written testimony. The assistant attorney-general was placed upon the stand, and upon examination admitted that he had no personal knowledge of the acts charged, and that the only information he possessed was that procured in the form of affidavits taken by him prior to the filing of the complaint.
All these motions were denied and error is alleged in each ruling. It is contended that an information can only be verified positively where the prosecutor has personal knowledge of the charges; that where it is made to appear to the court that the prosecutor has no personal knowledge of the truth of the charges the positive character of the verification disappears, and it then stands as though made upon information and belief; that at once it becomes the right of the accused to have the written evidence upon which the prosecutor based his information filed in court; and that the state is then confined in its proof to the offenses specified therein.
Most of the cases cited in support of this contention are those wherein the information was verified on information and belief. These, of course, are not in point. We can conceive of no reason why the prosecutor in this class of cases may not verify a complaint positively if he chooses so to do, and base his verification upon information obtained from others. He does this in an information charging murder or other felony, where he rarely has personal knowledge of the facts:
The provisions of section 2473 of the General Statutes of 1901 are that where a county attorney has examined witnesses on oath with reference to violations of the prohibitory liquor law he may file the statements with the information, and when so filed they, together with the information verified by him on information and belief, shall have the same effect as if the information had been verified positively. Appellant argues that this provision was inserted in the prohibitory act solely for the benefit of the accused. We think its primary purpose was to provide for the filing of informations in cases where the county attorney might hesitate to verify positively, to the end that the law might more readily be enforced. True, it has been held that when the prosecution is begun in that way the state is confined in its proof to the offenses specified, and in such cases defendant has been said to be entitled to the benefit of the statements- in the preparation of his defense. (The State v. Whisner, 35 Kan. 271, 10 Pac. 852; The State v. Lawson, 45 Kan. 339, 25 Pac. 864.) But there is no attempt or purpose in the act to destroy or limit the effect of an information or complaint filed in the usual and ordinary way and verified positively.
In The State v. Huffman, 51 Kan. 541, 33 Pac. 277, the information was verified positively, and defendant filed his plea in abatement, supported by an affidavit to the effect that the county attorney had no personal knowledge' of the alleged offenses but acted solely upon information contained in sworn statements of witnesses, which statements were in his possession, and which he refused to file in the cause. To this plea the state demurred. The trial court held the plea good and quashed the information. On appeal by the state the cause was reversed. In the opinion the court said:
“We are unable to perceive any good reason why a county attorney may not, if he feels warranted in so doing, verify an information charging a violation of the prohibitory liquor law, as well as any other offense, positively, and why such information, so verified, is not sufficient.” (Page 543.)
The trial court’s ruling on these various motions was correct. There is'no authority for placing on the witness-stand the prosecuting attorney and subjecting him to an examination in reference to the knowledge he acted upon in verifying the information positively. When the information is verified positively the same rule obtains as in ordinary prosecutions, and no inquiry can be made touching the source or extent of the prosecutor’s knowledge.
Over appellant’s objection the attorney for the state was permitted to ask some of the state’s witnesses whether they had not in their examination before him testified to having bought liquor of appellant; and a witness identified his signature to one of the written statements. The court refused to order the attorney for the state to allow counsel for appellant to examine this statement. The statement itself was not offered in evidence.
Some of the witnesses were unfriendly to the state. The extent .to which witnesses who appear to be unfriendly may be cross-examined by the party producing them rests always in the sound discretion of the court. We find no abuse of discretion or error in the rulings complained of.
Fifty instructions were asked by appellant, all of which were refused, and the refusal of each is assigned as error. None of these instructions is printed in the brief, as required by rule 10. Fourteen of them were predicated upon the proposition that appellant could not be convicted of any offense of which the assistant attorney-general did not have actual or personal knowledge. As the information was sworn to positively, none of these instructions was proper. A number of others asked were to the effect that the jury should receive with great care and caution the testi mony of any witnesses of the state who were detectives, or spotters, or who hunted up testimony of sales of liquor made by defendant in order to testify against him. Several witnesses for the state testified that they had contributed money to aid in prosecuting violators of the prohibitory law; and some of them had purchased liquor of appellant with a view of furnishing testimony against him.
The case of The State v. Snyder, 8 Kan. App. 686, 57 Pac. 135, cited as authority for the contention that it was error to refuse these instructions, is not a parallel one. There the state relied solely upon the evidence of hired detectives, brought from a distance, and' it was said that where the state relies solely for a conviction on the testimony of professional detectives employed by the prosecuting attorney a similar instruction is proper and it is error to refuse it.
In the case at bar none of the witnesses was a professional detective; none was paid or to be paid in the event of conviction. Instead of being paid for their time and work in' securing evidence, they contributed money to aid the prosecution. The most that can be said is that they were interested witnesses; not more so, perhaps, than the injured person who testifies in any criminal action. The court gave the usual instructions with respect to the weight and credibility of all the witnesses, and the jury were instructed to consider the interest of any witness in the result of the trial, and this, we think, under the circumstances of this case, was .sufficient.
There was no error in the refusal of the instructions asked, many of which were upon matters embraced in the instructions given. The latter, we think, fully protected the rights of appellant. There was ample' evidence to warrant the conviction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The appellant was convicted in the district court of Dickinson county of being the keeper of a nuisance in violation of the provisions of the prohibitory law. Being dissatisfied with the conviction he has brought the case here for review. In his bill of exceptions he complains of the trial court for admitting incompetent evidence at the trial, and this is the only question presented.
The testimony claimed to have been erroneously submitted to the jury consists of a copy of entries from a record in the office of the collector of internal revenue for the district of Kansas, designated as record No. 10. This record contains the names of special-tax payers and registers within the district; also the kind of busi ness for which tax is paid, its location, date of certificate, amount of tax, when paid, and the number of the stamp.
The paper to which objection was made contains several names of persons, with certificates, among whom is that of the defendant. Opposite each name in appropriately designated columns the items above mentioned are stated. The nature of the record is indicated by a headline which reads: “Record of special-tax payers and registers, district of Kansas.” Attached to the paper is a certificate which reads:
“This is a correct copy of the above names as they appear on record No. 10 in the office of the collector of internal revenue for the district of Kansas. J. M. Simpson, Coll., per C. L. Danner, Depy. Coll. Sept. 4, 1906. Leavenworth, Kan. Seal.”
It is urged that this copy was erroneously admitted in evidence for the reason that it does not appear to be a record which the law requires to be kept in that office, and that the certificate does not show it to be a correct copy of anything more than the mere names of special-tax payers.
It seems to have been made obligatory upon the collectors of internal revenue to keep such a record in their offices by the provisions of section 4 of chapter 13 of the act of December 24, 1872, which reads:
“Each collector of internal revenue shall, under regulations of the commissioner of internal revenue, place and keep conspicuously in his office, for public inspection, an alphabetical list of the names of all persons who shall have paid special taxes within his district, and shall state thereon the time, place, and business for which such special taxes have been paid.” (U. S. Comp. Stat. 1901, § 3240.)
The paper was probably admissible, therefore, without any preliminary proof; but if any such proof was necessary we are compelled to assume that it was fully made, as the record contains no evidence other than the paper in question, which is accompanied by the statement that it was only a part of the testimony presented by the state.
We are unable, therefore, in any view of the case, to say that the action of the trial court was erroneous, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of unlawful and forcible entry and detainer. F. A. Campbell leased a hotel' or residence building, a refectory and pagodas in Vinewood Park from E. W. Wilson for the park season of 1904, beginning about April 15 and ending about November 15, with the option of continuing the contract for the season of 1905 if the conduct of the business should prove satisfactory to Wilson. Under the lease Campbell furnished and equipped the hotel and other buildings and conducted the business during the season of 1904, and then left the building’s so furnished and equipped in the care of his agent, Shick, who lived in the hotel and guarded the property. Near the end of the season a general notice to terminate the lease was given by Wilson to Campbell, but there was no statement that his conduct of the business was unsatisfactory nor any reason given why he should not have the benefit of the option to continue for another year. He remained in possession of the buildings until Sunday, March 12, 1905, when a number of men acting for Wilson invaded the premises in the absence of Campbell and Shick, his agent, detached and carried out his furniture and fixtures, loaded them on a car and brought them to the city, where they were placed in a warehouse.
The doors were locked when Shick left the buildings on that day, and when he returned he found that the doors had been unlocked, the carpets taken up and the furniture and fixtures removed, some of which had been already loaded upon a car and a part of which was' lying outside upon the ground. Afterward there was a strife between the parties to gain and regain possession, including some injunction proceedings. Campbell did regain a scrambling possession of one building, but subsequently lost it to Wilson, and thereupon the present proceeding was brought. He filed a complaint in the court of Topeka, alleging that the defendant “unlawfully entered” the premises and “unlawfully and forcibly detains said premises.” After the appearance of the parties, and after the plaintiff had produced his evidence in that court, he was permitted to amend the complaint by alleging an unlawful and forcible entry. The extent of the amendment was to add the words “and forcible” to the allegation of an “unlawful” entry. The trial resulted in a judgment for the defendant, and the plaintiif appealed to the district court, where he was successful.
It is first contended that the district court was not authorized to try the case on the amended complaint alleging an “unlawful and forcible entry,” when the original complaint only alleged an “unlawful entry.” The amendment was permissible. In one sense the term “unlawfully entered” is broad enough to include a forcible entry. But assuming that it is defective, the theory of the code is that defects in pleadings may be cured by amendments, and judgments have been reversed because the trial court would not permit defects in such complaints to be amended. (Schuster v. Gray, 8 Kan. App. 222, 55 Pac. 489.) In Packing Co. v. Howe, 68 Kan. 663, 75 Pac. 1014, the manner in which such a complaint is considered was before the court, and it was said:
“The proceeding, however, is a summary one for the speedy adjustment of controversies about possession, and, as it is cognizable before justices of the peace not familiar with pleading, it would indicate that it was never intended that the,strict and technical rules of pleading should be applied to complaints in these actions.” (Page 666.) ' '
It is next argued that as the lease had expired Wilson, the owner, was entitled to occupy his property, and that having gained possession he was entitled to retain the same even by force. .If the owner entitled to possession can legally obtain it he may undoubtedly hold the same, but he has no right to resort to unlawful and forcible means to gain possession. The remedy of forcible entry and detainer is provided so that possession of real property may be obtained in a judicial and orderly way and without resorting to violence or steps likely to provoke a breach of the peace. Having this remedy, no one is .permitted to vindicate his claimed rights with his own hand. (Campbell v. Coonradt, 22 Kan. 704.)
It is said that Wilson’s men in gaining an entrance and dispossessing Campbell did not exercise such force as is necessary to render this remedy available. While the action of forcible entry requires that the entry and ouster shall be forcible, no great degree of force or of personal violence is required to be used or threatened to constitute a forcible entry. There was no lack of force, however, in dispossessing Campbell. There was a considerable display of force, too, as a number of men acting together invaded the premises, opened the buildings, and threw the goods out. They took advantage of the absence of Campbell and his agent, and hence there was no more resistance to the entry than locked doors afforded. While little force was required to unlock the doors, considerable force was exercised in detaching and removing the furnishings and fixtures in the buildings, and force was used in the effort to keep him out. In Burdette v. Corgan, 27 Kan. 275, it was said:
“But even where an entry is made in the absence of the party entitled to the possession, and afterward he appears, and the party making the entry keeps him out of possession by force — this is sufficient to authorize the party entitled to possession to maintain the action of forcible entry and, detainer against the wrong-doer.” (Page 285.)
It has been held that every unlawful entry upon the possession of another is in the eye of the law a forcible entry, and that where possession surreptitiously obtained is maintained by force the entry will be considered forcible. (Burt v. State, 2 Tread. [S. C.] 489.) Without giving unqualified approval to that rule, it is enough for the present case that the unlawful entry was accompanied by some force; that it was maintained by force, and was of such a character that under our authorities Campbell was entitled to avail himself of the remedy of forcible entry and detainer. (Campbell v. Coonradt, 22 Kan. 704; Coonradt v. Campbell, 25 Kan. 227; Burdette v. Corgan, 27 Kan. 275. See, also, Cathcart v. Walter, 14 Mo. 17; Febes v. Tierman, 1 Mont. 179.)
The court rightly told the jury that not even an • owner has a right forcibly to take real estate from the peaceable possession of another, no matter how justly he may be entitled to it, and that if Campbell was in the peaceable possession of the premises, and Wilson’s men entered the premises when the doors were locked and removed his goods during his absence and against his will, and while his possession continued, it would constitute a forcible entry under the law of this state. The action of forcible entry and detainer brought to obtain the possession so wrested.from Campbell cannot be regarded as a moot case. Assuming that the testimony of the plaintiff was true, as the jury must have found, Wilson was not justified, whatever, right he may have had in the premises, in taking forcible possession of the same. It has been said:
“One-great object of the forcible entry act is to prevent even rightful owners from taking the law into their own hands and attempting to recover, by violence, what the remedial process of a court would give them in a peaceful mode.” (Mitchell v. Davis, 23 Cal. 381, 384.)
The law of the case was fairly presented in the instructions given by the court, and no grounds are found for reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The executors and trustees of the will of David Weaver, deceased, which will had been duly probated in the probate court of Harvey county, brought this action in the district court of that county to have the will interpreted and construed.
Christiana Hurst, being one of the beneficiaries, and also her minor children, for whom a guardian ad litem was appointed, appeared and answered, issues were formed, a hearing was had, and the construction of the will made in the decree of the court being unsatisfactory to Mrs'. Hurst she brings the case here for review.
The will in controversy is quite lengthy. Special devises of tracts of land were made to certain heirs, and preference was given to certain heirs in the purchase of other tracts, but only two of the eleven subdivisions of the second paragraph are in dispute. No other provision of the will affects the interest of Mrs. Hurst. The tenth subdivision reads as follows:
“As soon as convenient and advisable after my death, it is my will that my executors shall make sale, to the best advantage possible, of all the residue of my property, except the real estate and the personal property which is to be held and used by my wife during her lifetime, as herein directed, and convert the same into money and apply and distribute such money as follows:
“Such money shall be paid and distributed to the following of my children, to wit: John M. R. Weaver, Mrs. Christiana Hurst, David M. Weaver, Moses M. Weaver, Menno B. Weaver, Titus Weaver, Reuben M. Weaver, and Mrs. Anna M. Miller, so that each shall receive an equal share and portion, when taken and considered together with the amount of money which I have advanced to said children, respectively, and the amount of money which I have paid for buildings and improvements for certain of said children, respectively, during my lifetime. I have advanced to said children the sums of money set opposite their respective names, as follow: To my son, John M. R. Weaver, $690.03; to my daughter, Mrs. Christiana Hurst, $901.43; to my son, David M. Weaver, $1412.71; to my son, Moses M. Weaver, $544.77; to my son, Menno B. Weaver, $899.56; to my son, Titus Weaver, $666.62; to my son, Reuben M. Weaver, $576.27; to my daughter, Mrs. Anna M. Miller, $578.37. And I have paid out for improvements and buildings for the benefit of said children the amounts set opposite their respective names, as follow: To my son, John M. R. Weaver, $1149.97; to my son, Reuben M. Weaver, $1600; to my son, Menno B. Weaver, $1209.26; to my son, Titus Weaver, $775; to my daughter, Mrs. Anna M. Miller, $900.
“It is my will and desire that the amount advanced to each child, as stated above, and the amount paid out for buildings and improvements for each child stated above, shall be considered a portion of the share of such child in apportioning and distributing the proceeds of sale of my property, as stated above.
“In case of the death of any child prior to my déath, the share of such deceased child shall pass to the children of such deceased child, in equal shares, and if there be no children of such deceased child, then to the legal heirs of such deceased child.
“It is my will, and I do hereby direct, that the share and portion of my said, daughter, Christiana Hurst, shall be held, controlled and invested by my executors for the sole use, benefit and support of my said daughter and her children, during her lifetime, and in case of her death prior to the death of her husband, David K. Hurst, and while the-wife-of said David K. Hurst, then such share and portion shall be held, controlled and invested by said executors for the sole use and benefit of said David K. Hurst, and the children of my said daughter, and upon the death of my said daughter, if she survives her said husband, and upon the death of said David K. Hurst, in case he survives his said wife, then such share and portion shall immediately pass to the children of my said daughter, and their heirs, share and share alike.
“It is my will, and I do direct, that the share and portion of my said son, David M. Weaver, shall be held, controlled and invested by my executors for the sole use, benefit and support of my said son and his children; provided, that when he is able to work that no part of said share and portion shall be used for his personal support; and after his death, the remainder of such share and portion shall pass to his children and their heirs, share and share alike.” '
The material portion of the eleventh subdivision is as follows:
“It is my will, and I do hereby direct, that the proceeds of sale of said above real estate, described as tracts Nos. 1, 2, 3 and 4, shall be by my executors divided and distributed in equal shares, to the following of my children: John M. R. Weaver, Mrs. Christiana Hurst, Menno B. Weaver, David M. Weaver, Moses M. Weaver, Titus Weaver, Reuben M. Weaver, and Mrs. Anna M. Miller; and that the share and portion . .' . of my daughter, Mrs. Christiana Hurst, shall be held, controlled and invested and used by my executors in the same manner as the share and portion given to my said son, David M. Weaver, and my said daughter, Mrs. Christiana Hurst, under provision No. 10, above.”
It is first contended that the court erred in admitting evidence as to the different removals and the financial success of Mrs. Hurst and her husband prior to the execution of the will; that the will should be construed and interpreted solely from a consideration of the language used therein. It must be conceded, however, that the direction that the proceeds of the sale of his property “be paid and distributed” to certain named heirs, including Mrs. Hurst, cannot be reconciled with the subsequent direction that the “share and portion” of Mrs. Hurst be “held, controlled and invested by my executors” for her use and benefit. Much learned discussion has been indulged in to determine which of two inconsistent provisions in a will should govern, and it has been said that where a clear gift has once been expressed the courts will not give effect to a subsequent provision in diminution of the gift, unless the intent of the testator to make such diminution is manifest and the terms clear and unambiguous.
. Where the provisions of a will are unambiguous, and are consistent with each other, there is nothing left for construction or interpretation. The right of the testator to do as he pleases with his own is recognized, as in all other cases, and his will is followed to the letter. When, however, ambiguity of statement occurs, or provisions are made which are apparently contradictory or inconsistent, then it is the duty of the court, if possible, to learn the circumstances under which the will was made and to ascertain the relations and feeling existing at the time of the execution of the will between the testator and the beneficiaries — in short, to put itself in the testator’s place for the purpose of determining his intention. This the court did, and was not in error to the prejudice of Mrs. Hurst in receiving the evidence. We incline to the opinion that the will itself, without the aid of extraneous evidence, should have led the court to the construction given to it. If so, the evidence was unnecessary but was harmless.
It will be noted that the portion of the will which purports to bequeath to Mrs. Hurst a portion of the •proceeds of the testator’s property includes her simply as one of the legatees — one of a class. In the subsequent paragraph of the same subdivision of the will, however, she is singled out and specific directions are given that her portion is to be held and invested by the executors in trust for her benefit. Thus, unmistakably, is the intent of the testator recorded. It is a general rule of construction that a specific statement as to the thing specified overcomes a general or class statement, where the two cannot be harmonized.
It is said that the terms of the trusts imposed on the executors are too indefinite, and that it cannot be said who are the beneficiaries thereof, but the objection is not well taken. The testator relied upon the discretion of his sons whom he appointed trustees to invest the fund for the benefit of their sister and her children, apparently leaving to their discretion the application of the proceeds, and it should not be presupposed that the confidence was misplaced. Should cause of complaint arise the courts are open to afford a remedy.
Again, it is urged that the bequest to Mrs. Hurst, where first defined in the tenth subdivision, is an absolute gift, and authorities are cited in support of the proposition that an absolute devise or bequest cannot be cut down by a subsequent proviso or condition. We think the authorities cited are not generally applicable to this case. The case of McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, which is cited, certainly has no application. That will purported first to convey to the devisee an absolute estate in land, with full power of conveyance. A subsequent paragraph purported to dispose of the remnant of the estate, if any remained at the death of the devisee. The second paragraph was held to be in substance a remainder over, and to be void. The cases of Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, and Lohmuller v. Mosher, 74 Kan. 751, 87 Pac. 1140, are more analogous to the case at bar.
Again, it is contended the court erred in ordering all the costs and attorneys’ fees to be paid out of Mrs. Hurst’s share of the estate. Section 5077 of the General Statutes of 1901 authorizes the trial court in this class of actions to tax and apportion the costs as in its discretion seems right and equitable. There seems, at least, to have been no abuse of discretion in this case. It appears by the pleadings and agreed statement of facts that none of the other beneficiaries was interested in the result of this action. The issue was between-Mrs. Hurst and the trustee-executors: whether her share should be paid over to her by them, as executors, or should be retained by them as trustees and invested for the benefit of herself and her children.
The judgment is affirmed.
Johnston, C. J., Greens, Burch, Mason, Graves, JJ., concurring. i | [
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Per Curiam:-
The court is unable to discover any just cause for the defendant to complain of the judgment against him. He gave the note in suit, and has never paid it or offered to pay it. He had no right to contest the title to the note further than was necessary to preclude h}s future liability upon it. It was no concern of his if there were unadjusted matters between the plaintiff and the bank, provided a judgment against him in favor of the plaintiff would relieve him of responsibility to the bank. The plaintiff did in fact always own the note. The surrender of possession of the note by the bank to the plaintiff for suit upon it ended all possible liability of the defendant to the bank, and the payment of the debt for which the bank had held the note as collateral ended even the claim of the bank on the plaintiff for a part of the proceeds.
The action as originally begun was for rent, and the note was for the same rent. The amendment of the pleadings was strictly in furtherance of justice. The costs were taxed to the plaintiff, and the continuance and recasting of the pleadings gave the defendant every possible opportunity to prepare and meet the plaintiff’s claim and all the claim she has against him. Con sequently the defendant has suffered no harm whatever in respect to the matters involved in the principal ássignments of error.
There is no dispute in the authorities that a party complaining of the conduct of a trial court must show prejudicial error, and under the statutes of this state this court must disregard all errors and defects in legal proceedings which do not impair substantial rights. (Hopkinson v. Conley, ante, p. 65.)
The verdict and findings are amply sustained by the evidence. The findings relate only to some of the facts in the cáse. They are entirely consistent with the general verdict, when considered in connection with other facts shown by the evidence concerning which the jury were not interrogated specially. There is evidence that the defendant got all the corn except what was paid for husking it. The jury allowed the defendant for the stalks, and even if the. ninth instruction were erroneous the court is unable to see that the defendant lost anything on account of the use and occupation of the buildings. The defendant moved away without expectation of return, did not return, desired to use them neither for himself nor for others, and voluntarily surrendered the key when it was applied for. Even if there were a technical ouster no substantial damage followed.
Rule 10 not having been complied with, the claim of error respecting evidence rejected cannot be investigated.
The judgment of the district court is affirmed. | [
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The opinion of t¿e court was delivered by
Smith, J.:
The plaintiff sued the defendants for libel. The defendants in their answer alleged that they constitute the board of trustees of a church organization, and as such investigated charges against the plaintiff, who was a member' of the church, and as such trustees passed a resolution dismissing her from such membership; that they caused the clerk of the board to send her a letter enclosed in a sealed envelope and addressed to her, informing her of the action of the board and that she was dismissed “for conduct unbecoming a Christian lady.”
Upon the trial of the action the plaintiff introduced her evidence and rested her case. The defendants demurred thereto, .the demurrer was sustained, and judgment was rendered against her for costs. The plaintiff brings the case here for review.
The question is presented whether the written mat ter was libelous per se, and, also, whether it was or was not a privileged communication. In the conclusion we have reached, however, it is not necessary to determine either of these questions.
“The sending of a libelous communication or libelous matter to the person defamed does not constitute an actionable publication, even though the matter does actually reach the hands of a third person, where this is not intended nor reasonably to be expected by the sender.” (18 A. & E. Encycl. of L. 1017.)
“Sending a libelous communication to a married woman respecting herself, enclosed in a sealed envelope, is not a publication of the libel.” (Caroline Wilcox v. Isaac S. Moon, 64 Vt. 450, 24 Atl. 244, 15 L. R. A. 760, 33 Am. St. Rep. 936.)
We have adopted the rule as above stated. (Lyon v. Lash, 74 Kan. 745, 88 Pac. 262.) But this is not the rule in criminal prosecutions for libel, where the gravamen of the offense is as much the provoking of the defamed person to wrath as is the effect of the publication upon his relations to the public. (Gen. Stat. 1901, § 2271.)
The wrath or personal indignation aroused in the defamed cannot be computed or compensated in damages, although the wrong-doer may be punished by the state for his wrongful act. So an assault' from which no public humiliation and no actual injury occurs other than to the feelings of the assaulted may not be the basis of an action for damages, although it may subject the offender to a penalty.
If, however, the author of a libel sends it to the defamed in such a manner as to indicate that he intends it shall or that it is probable it will reach other hands, and it does reach other hands, it is a publication and may be the basis of damages. (18 A. & E. Encycl. of L. 1017.)
In the case at bar the plaintiff proved the receipt of the libelous matter from her husband. She also offered to prove by her husband that he received the commu nication in a letter addressed to himself, but the court properly held that he was an incompetent witness to testify to such fact. She also offered to prove by her husband that for years he had been her agent to receive and convey her mail to her, but offered no eviT dence of his agency to open and read her letters or of any inability on her part to read them. Nor did she offer any proof of knowledge on the part of any of the defendants that the husband habitually or ever received or opened his wife’s mail. Hence, even if the husband was competent to testify, his evidence was properly excluded.
That injustice may sometimes result from debarring a husband or wife from testifying as a witness in a civil action for or against the other except as to transactions in which the proposed witness has acted as the agent of the other may readily be conceded. The law is, however, explicit, and has long been upon the statute-books. That it is generally in furtherance of justice is evidenced by the absence of an attempt to repeal it. Were it conceded to be vicious, which it is not, the courts must enforce it so long as it is the law.
We conclude that even if the alleged libel was actionable per se, and was not a privileged communication, still the plaintiff failed to produce evidence of its publication, and the demurrer to her evidence was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Whether equity will decree the specific performance of a contract rests entirely in judicial discretion, and always upon the facts of the particular case. (Hennessy v. Woolworth, 128 U. S. 438, 9 Sup. Ct. 109, 32 L. Ed. 500.) Before relief will be granted it must appear that good conscience and natural justice require it.
There is no rule of public policy which forbids the making of an agreement to dispose of property in a particular manner by will. (Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773.)
When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on. the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts. (Roehl, Administrator, v. Haumesser, 114 Ind. 311, 15 N. E. 345; Gall v. Gall, 71 N. Y. Supr. Ct. 600, 19 N. Y. Supp. 332; 60 Cent. L. J. 265.)
The principle upon which courts of equity undertake to enforce agreements of this kind is well stated in Bolman et al. v. Overall, Ex’r, et al., 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107. It was there said:
“It is not claimed, of course, that any court has the power to compel a person to execute a last will and testament carrying out his agreement to bequeath a legacy, for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed so long as he lives, And after his death he is no longer capable of doing the thing agreed by him to be done. But the theory on which the courts proceed is to construe such an agreement, unless void under the statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisee, and to enforce such trust against the heirs and personal representatives of the deceased or others holding under them charged with notice'of the trust. It is in the nature of a covenant to stand seized to the use of the promisee, as if the promisor had agreed to retain a life-estate in the property, with remainder to the promisee in the event the promisor owns it. at the timé of his death, but with full power on the part of the promisor to make any bona fide disposition of it during his life to another, otherwise than by will.” (Page 455.)
The case of Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, was this: A man and wife entered into an agreement to adopt plaintiff as their child and leave her their property when they died, but failed to execute the agreement as to the adoption. Plaintiff wholly performed the agreement on her part by living with them and paying them all the attention due from a child to parents for many years. The husband died leaving his property to the wife. Plaintiff continued living with the wife as her child, and upon the death of the wife the court held that the contract was valid and that plaintiff was entitled to specific performance. It was contended there, as it is here, that the statutory mode of adoption had not been complied with and that equity could not dispense with the requirement, and therefore that plaintiff could not recover, but the decision was placed squarely upon the ground that plaintiff’s rights depended entirely upon the agreement and the action of the parties under the agreement. The court said:
“This agreement was not merely and solely one to adopt the plaintiff, but was in part to leave the plaintiff the property at their death. The fact that the parties, and each of them, may have failed and neglected to execute it, so far as the adoption was concerned, should not, we think, exonerate them from its further obligation to transfer their property.” (Page 654.)
The case of Winne v. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647, was exactly like the one here. The contract was in writing; it had been lost, and its contents were proved by secondary evidence. The trial court made a finding that a written contract had been made by a childless person with plaintiff’s mother for his benefit, to the effect that the former would maintain plaintiff, then an infant, as her own child, and at .her death give him all her property, if his mother would surrender to her his custody and control. The court of appeals, in affirming the judgment of the trial court, reviewed the authorities quite fully and held that the agreement was clear, definite and certain, based upon a sufficient consideration, binding in equity, and enforceable against the estate of the promisor. The court said:
“It has been suggested that such a contract might be in conflict with the statute relating to wills and to their manner of execution. This was not a contract in the nature of a testamentary disposition of the decedent’s property. On the contrary, it was a contract to be chiefly executed during the life of the decedent, with compensation to be made at her death. It was a method adopted to provide for the payment by her for •the custody, control and services of the plaintiff during his minority. It may be observed in passing that the decedent before her death received the full consideration provided for by the agreement.” (Page 268.)
Referring to some of the many considerations which might influence a court of equity in this class of cases the court further observed:
“If, however, the plaintiff, instead of following her admonitions, and thus becoming an upright and respected man, had become dissolute or otherwise led an unworthy life, and thus entailed upon her sorrow and disgrace, the court might well have refused this relief.” (Page 272.)
Another case very like the one at bar is Sutton et al. v. Hayden et al., 62 Mo. 101. The contract there was found by the court to have been embraced in a letter written to plaintiff by her aunt, promising that if plaintiff, her niece, would come and live with her she would treat the niece as her own daughter and at her death all she possessed should become the property of the niece. The letter became lost and its contents were proved by the evidence of a witness who had seen it, as in this case. Specific performance of the contract was enforced against the heirs at law. (To the same effect see Schutt v. Missionary Society, 41 N. J. Eq. 115, 3 Atl. 398; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.)
The case of Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490, is another very similar one on the facts, except that the contract was not in writing. In- this and in the following cases contracts like the one involved here, but which were in parol, were enforced upon the theory that-performance by the child had taken the contract out of the statute of frauds, and for the reason that the services rendered were of such a character, that their value could not be determined by pecuniary standards and the courts could say that it was not intended by the parties that the services should be so measured. (Brinton v. Van Cott, 8 Utah, 480, 33 Pac. 218; Shahan, Ex’r, et al., v. Swan, 48 Ohio St. 25, 26 N. E. 222, 29 Am. St. Rep. 517; Wright v. Wright, 99 Mich. 170, 58 N. W. 54, 23 L. R. A. 196; Van Tine v. Van Tine [N. J. Eq.], 15 Atl. 249, 1 L. R. A. 155; Van Duyne v. Vreeland, 12 N. J. Eq. 142; Teske v. Dittberner, 65 Neb. 167, 91 N. W. 181, 101 Am. St. Rep. 614, 70 Neb. 544, 98 N. W. 57; Kofka v. Rosicky, 41 Neb. 328, 59 N. W. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685; Brantingham v. Huff, 43 N. Y. Supr. Ct., App. Div., 414, 60 N. Y. Supp. 157; Gates v. Gates, 34 N. Y. Supr. Ct., App. Div., 608, 54 N. Y. Supp. 454; Parsell v. Stryker, 41 N. Y. 480; Pom. Cont., 2d ed., § 114; and cases cited in 60 Cent. L. J. 265.)
The defendants rely upon the case of Renz v. Drury, 57 Kan. 84, 45 Pac. 71. That case is readily distinguished from this. Rights of inheritance were claimed, based upon a common-law adoption in Iowa. The court held that where the adoption of children is regulated by statute rights of inheritance can only be acquired through adoption substantially in compliance with the statute. There was, it is true, a further claim of an agreement entered into by the foster-parents with the child when she was fifteen years of age, and of a compliance on her part, and the agreement was similar to the one in this case; but the court found that it rested in parol and was within the statute of frauds. In the present case, while there is some claim that the Palmlunds agreed to adopt plaintiff, the suit is not based upon that part of the agreement; but, like Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, it is based upon the agreement to leave to plaintiff whatever property they possessed when they died. The opinion in Renz v. Drury, supra, which was by Mr. Chief Justice Martin, refers to Sharkey v. McDermott, and distinguishes that case for the reason that the contract there was in writing.
The main contention of the defendants is that the evidence is not sufficient to warrant the finding that the contract was made or to show its exact terms. With respect to the character of evidence necessary in cases of this kind to warrant a court in decreeing specific performance the rule is that the agreement should be clearly and definitely established, We are satisfied with the language of the court in Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265, as follows:
“But, equally,, would it be the duty of a court of equity to refuse that relief, where the agreement sought to be given effect was not certain and definite. Cleanly, it should hesitate to assume the- grave responsibility of implying an agreement, whose existence depends upon circumstances, inconclusive in their nature and permitting an inference either way. It is not essential to the intervention of equity, in order to prevent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established from such facts and circumstances as will raise an implication that it was made; and may have reinforcement from thé evidence of the conduct of the parties, at the time and subsequently.” (Page 567.)
The proof was sufficient to justify the court in making the findings of fact. While but one witness testified to the contents of the correspondence which made up the contract, the fact that a contract existed, and its terms as found by the court, are supported and reinforced by the conduct of all the parties.
The Palmlunds had no other child. The enforcement of the contract is not, therefore, opposed to public policy, as in those cases where it would result in the exclusion of the children or the wife or husband of the deceased. (Gall v. Gall, 71 N. Y. Supr. Ct. 600, 19 N. Y. Supp. 332.) The opposing claimants are all collateral heirs. These matters are always proper for the consideration of a court of equity. As suggested at the outset, the remedy rests in judicial discretion, and must depend upon the particular facts of the case. The claim that it is against public policy for the reason that it provides for the surrender of the care and custody of the child has no force. The contract had been performed upon the part of Hilda Anderson, and her parents as well. The state is no longer concerned. This is not a suit to compel the parents to abide by their part of the contract, nor is it a suit by the parents to secure the custody of a child, as in Chapsky v. Wood, 26 Kan. 650, 40 Am. Rep. 321.
We cannot agree with the contention of the defendants that the terms of the contract are incomplete and uncertain. Its terms provided that the Palmlunds were to receive Hilda Anderson at the age of eight years into their home; to care for, raise and educate her; to have her custody and control; and, in consideration of these benefits, arid the opportunity thus afforded them to gratify their parental love and to receive her obedience, society and services in all respects as though she were their own child, they agreed that she should be given whatever property they possessed when they died. The parents, in consideration of the future benefits to their child, surrendered the possession and control of plaintiff.* She performed her part fully. The contract, then, so far as plaintiff is concerned, has passed from an executory to an executed one. All the authorities to which we have referred sustain the doctrine that a contract of this nature will be enforced when it is not inequitable. As was said by Chancellor Williamson in Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 773:
“It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it' is- governed in the exercise of this branch of its jurisdiction.” (Page 335.)
The rights of plaintiff depend in no respect upon any contract for adoption, nor upon any claim of inheritance through adoption, but wholly upon contract. We are content to rest our decision in this case upon the facts found by the trial court: that there was a definite contract entered into in writing, which removes the case wholly from the operation of the statute of frauds; that the contract was equitable and fair, based upon sufficient consideration, and fully performed by plaintiff; and for the reason, that the particular facts and circumstances of the case are such, in our opinion, as to justify a court in its sound judicial discretion in granting the relief asked. Upon different circumstances and different proof a court might, on the other hand, deny specific performance of the same kind of a contract.
We do not regard Renz v. Drury, 57 Kan. 84, 45 Pac. 71, as laying down the hard and fast rule that a court of equity should never compel the specific performance of a parol contract of this character, but rather as an illustration of the doctrine, recognized almost universally, that each case depends upon its own particular facts and circumstances, and the granting or denying of the remedy rests in judicial discretion.
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The opinion of the court was delivered by
Graves, J.:
The appellants were convicted in the district court of Cloud county of being the keepers of a nuisance, in violation of the prohibitory law. From such judgment they have appealed to this court. They have assigned several errors in the bill of exceptions, the first being the refusal of the trial court to allow the defendants’ motion to quash the eleventh count in the information, that count being the one under which they were convicted. The objection to the count is that it contains two or more separate and distinct offenses. There were ten other counts, each charging a specific sale, the date of the sale and person to whom it was made being stated. The sales so charged were made upon three different dates — April 26, May 6, and May 13. The eleventh count alleges that upon each of these dates, ever since, and now, the place was and is a place where intoxicating liquors were and are kept, etc.; that the defendants were at each of said dates, ever since have been, and are now, the keepers thereof, etc. It is contended that this avers the commission of an offense on each of the days named, which would constitute three separate offenses.
We understand time, in a case like this, to be immaterial. Whatever date may be alleged, the proof may fix the time on any day within the statute of limitations. In a sense an averment that the defendant unlawfully sold intoxicating liquors on January 1, and on sundry and divers days since that date, would charge as many separate and distinct offenses as there were days between the date named and the filing of the information. Such an averment, however, would not render the information bad for duplicity. Maintaining" a public nuisance is a continuous act, extending from day to day, and the allegation as to time may and ought to be broad enough to cover either all the time within the statute of limitations or as much of it as the prosecutor desires; and while within such time the defendant may have been guilty many times, he can be tried for but one offense, which may be fixed as having occurred upon such date as will best suit the evidence of the state. The averment as to time in this information is practically the same as if the pleader had stated: “on and ever since April 1, 1905,” etc., leaving out all other dates and sales, and states but one offense. The motion to quash was properly denied. (28 Cyc. 227; 10 Encyc. Pl. & Pr. 511-513; 11 Encyc. Pl. & Pr. 522.)
A further complaint is made because the court permitted articles seized by the sheriff in the defendants’ place of business at the time of their arrest to be shown to the jury. For the purpose of determining the kind of place the defendants kept this evidence was clearly admissible. A bar, glasses, bottles, kegs found under a counter, with faucets therein and containing beer, barrels, empty beer cases, bottles with labels like the following — “Hapstone Rye, king of them all. Joseph Giroux, Clyde, Kan. From Samuel Westheimer & Son, Wholesale Liquor Company, Liquor Merchants, 117 So. Third St., St. Joseph, Mo.,” and “Budweiser Lager Bier gebraut aus feinstem Laazer Hopfen und Bester Gerste fruher fur C. Conrad & Co., Von Anheuser Busch Brewing Assn., St. Louis, Mo. Adopted 1876, C. C. & Co. Trade Mark. Original Budweiser Registered 1877” — in the absence of other evidence indicating the kind of busiriess con ducted where seized, seem to be proper evidence for the jury to consider, and in connection with the beer captured, which is presumed to be intoxicating, would justify an instruction that the presence of intoxicating liquors at defendants’ place of business is prima facie evidence that they were kept there for sale or use in violation of law. The other evidence presented, however, , abundantly established that these defendants openly maintained a saloon, and was sufficient to justify their conviction under every count in the information.
It is urged that this evidence was inadmissible for the reason that the goods were not found at defendants’ place of business until after the complaint was filed and the warrant issued. The case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, is cited as being decisive of this question. In this case, however, the complaint was filed, warrant issued and seizure made on the same day and within two hours and a half of each other. The complaint alleged that a nuisance was being maintained by the defendants on the day the complaint was filed and prior thereto, as herein-before stated, while in the case cited the complaint charged the existence of a nuisance five days before the seizure was made, and the court instructed the jury that evidence obtained by such seizure might be considered in determining whether the defendant was the keeper of a nuisance at that place at the time charged. The cases are therefore materially dissimilar. In this case the time when the offense was alleged to exist and when the goods were seized is coincident. It is unnecessary, therefore, to rely here upon the retroaction of a presumption, as in the case cited.
It is further claimed that the court erred in refusing to instruct the jury that none of the “bottles and jugs and packages” offered in evidence could be considered in arriving at a verdict unless it was shown, beyond a reasonable doubt, that they contained intoxicating liquors. This instruction was properly refused. It ignores the distinction between evidence which is merely admissible and proper to be considered and that which constitutes 'prima facie proof. These bottles, jugs a,nd packages, together with the other paraphernalia exhibited to the jury, were proper for them to consider in determining the kind of place kept by the defendants, but unless their contents were shown to he intoxicating they would not constitute a prima facie case under the statute.
It is also contended that the court erred in not instructing the 'jury that before the defendants could be convicted the state must prove beyond a reasonable doubt that they did not have a druggist’s permit from the probate judge,- and also erred in instructing that it was not the duty of the state to make such proof in the first instance. There was no occasion for the court to say anything about a permit in this case. It is not suggested that the defendants sold liquor for medical, scientific or mechanical purposes, and therefore the question whether they had a permit is ifnmaterial.' The probate judge is not authorized to issue a permit to a joint-keeper, or to one who maintains a public nuisance, and this is the business which the evidence shows these defendants to have been engaged in. Where intoxicating liquors are 'sold to be used as a beverage, or where they are kept under circumstances which make the place where they are kept a public nuisance, the question whether the keeper had a permit cannot arise. (The State v. Nippert, 74 Kan. 871, 86 Pac. 478.)
This- disposes of the questions presented. Being unable to find error in the proceedings of the district court, its judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Plaintiff sued the railroad company for the value of a car-load of corn. The right to recover was predicated upon the defendant’s negligence. The corn was delivered to the company at Frankfort, on May 22, 1903, for transportation and delivery to the plaintiff’s agent at Kansas City, Mo. The loaded car stood on the track at Frankfort until May 28, when it was hauled to its destination, only to be overtaken and destroyed by the unprecedented flood of May 30, 1903. The delay .was protracted through the negligent omission of the company to move the car. The flood was an act of God. The district court rendered judgment for the defendant, and the plaintiff prosecutes error.
If the fundamental principles of legal liability for negligence are to be regarded, the judgment of the district court is correct. The maxim is: “In jure non remota causa, sed próxima, spectatur.” If a carrier be guilty of negligence not in itself harmful, but wrongful only because of injurious consequences which may follow, and a new cause intervene between such negligence and the injury complained of, which new cause is not a consequence of the original negligence, which reasonable prudence on the part of the original wrongdoer could not have anticipated, and but for which the injury- could not have happened, the new cause is the proximate cause and the original negligence is disregarded as not affecting the final result.
Carriers do not assume the risk of loss caused by the act of God.
Sir Frederick Pollock, a man admirably fitted by temperament, learning and literary skill to do so, has summed up the law relating to proximate cause, as established by the judicial wisdom of England, in his book on Torts. He develops the essential principles in the following eminently scientific way:
“We shall now consider for what consequences of his acts and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether .his act was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connection may be, in the accustomed phrase, too remote. The maxim ‘in jure non remota, causa sed próxima, spectatur’ is Englished in Bacon’s constantly cited gloss: ‘It were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree.’ Liability must be founded on an act which is the ‘immediate cause’ of harm or of injury to a right. . . . The meaning of the term ‘immediate cause’ is not capable of perfect cr general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shah endeavor to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed ‘immediate,’ ‘proximate,’ or, to anticipate a lit- tie, ‘natural and probable,’ which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. . . . This principle is commonly expressed in the maxim that ‘a man is presumed to intend the natural consequence of his acts’; or, in the terms of a judicial statement, ‘a party must be considered, in point of law, to intend that which is the necessary and natural consequence of that which he does.’ . . . Although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as ‘natural’ — or, more fully, ‘natural and probable’ — consequences. . . . The doctrine of ‘natural and probable consequence’ is most clearly illustrated, however, in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight; it has been defined as ‘the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and' reasonable man would not do.’ Now a' reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin, namely, ‘that a person is expected to an ticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur,'’ appears to contain the only rule tenable on principle where the liability is founded solely on negligence. ‘Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated/ may be the ground of legal compensation under some rule of exceptional severity; and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.” (Pollock, Torts, 6th ed., 28, 30, 83, 34, 39.)
■A similar service has been performed for the jurisprudence of the United States by Thomas M. Cooley. Under the title “Proximate and Remote Cause” he says:
“It is not only requisite that damage, actual or inferential, should be suffered, but this damage must be the legitimate sequence of the thing amiss. The maxim of the law here applicable is that in law the immediate and not the remote cause of any event is regarded; and in the application of it the law rejects, as not constituting the foundation for an action, that damage which does not flow proximately from the act complained of. In other words, the law always refers the injury to the proximate, not to the remote, cause. The explanation 'of this maxim may be given thus: If an' injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote. The chief and sufficient reason for this rule is to be found in the impossibility of tracing consequences through successive steps to the remote cause, and the necessity of parsing in the investigation of the chain of events at the ¿point beyond which experience and observation convince us we cannot press our inquiries with safety. To the proximate cause we may usually trace consequences with some degree of assurance; but beyond that we enter a field of conjecture, where the uncertainty renders the attempt at exact conclusions futile. A writer on this subject has stated the rule in the following language: If the wrong and the resulting damage áre not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action.
“As this principle is of the highest importance in the law of torts, and the right of action in many cases, and the extent of recovery in others, depends upon it, it may be well to consider it a little further. In doing this we lay down the following propositions:
“(1) The one already more than once mentioned, that in the case of any distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary and proximate result. Here the wrong itself fixes the right'of action; we need not go further to show a right of recovery, though the extent of recovery may depend upon the evidence.
“ (2) When the act or omission complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission as to appear to have resulted therefrom according to the ordinary course of events, and as a proximate result of a sufficient cause.
“(3) If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote.” (Cooley, Torts, 3d ed., 99.)
This text is illustrated by the “squib case” — Scott v. Shepherd, 3 Wils. (Eng.) 403, 2 W. Bl. 892, the “balloon case” — Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234, the flood case of Morrison v. Davis & Co., 20 Pa. St. 171, 57 Am. Dec. 695, and by others. The statement and discussion of Morrison v. Davis & Co., which is strictly analogous in its facts to the present case, are as follow:
“In that case common carriers undertook to transport goods from Philadelphia to Pittsburg by canal. While on their way the goods were destroyed by an extraordinary flood. There was evidence that the goods would not have been at the place of injury but for their having been delayed by the lameness of a horse' attached to the boat; and the argument made on behalf of the plaintiff was that the culpability of the defendants in allowing the boat to be delayed by the lameness of the horse, having exposed the boat to the flood, was the proximate cause of the loss. Now, if human foresight could foresee the exact time when such a flood might be anticipated, the argument would be unanswerable; but as this is impossible, and an accident of the sort is as likely to overwhelm a boat that has been moved with due diligence as one that has been unreasonably delayed, it is obvious that the antecedent probabilities are equal that the delay will save the boat instead of exposing it to destruction. As is said by the court in the case referred to: ‘A blacksmith pricks a horse by careless shoeing. Ordinary foresight might anticipate lameness, and some days or weeks of unfitness for use; but it could not anticipate that by reason of the lameness the horse would be delayed in passing through a forest until a tree fell and killed him or injured his rider; and such injury would be no proper measure of the blacksmith’s liability.’ ” (Cooley, Torts, 3d ed., 107.)
Two acute and able authors, Mr. Hughes and Professor Street, have recently undertaken to rescue the drifting doctrines of the law from the flood of “cases” pouring from the multitude of opinion-writing courts in this and other countries, and to bring them back to safe moorings. They seek to do this by an investigation of the fountainheads of the law, its maxims and the utterances of its great masters, and by a consideration of its history and philosophy, to the neglect of “weight-of-authority” decisions and those which are merely “recent.” Mr. Hughes indicates his views upon the matter in hand as follows:
“From the definition of negligence it appears that, to be actionable, it must result from an act of commission or omission in violation of a law commanding or forbidding it; consequently it must be the natural, direct and probable cause of the injury complained of. . . If an independent agency intervene, this will break the causal connection, unless under all the circumstances of the case this intervention itself should have been anticipated.” (2 Hughes, Proc. 1043.)
Professor Street refers to Morrison v. Davis & Co., 20 Pa. St. 171, 57 Am. Dec. 695, and Denny v. New York Central Railroad Company, 79 Mass. 481, 74 Am. Dec. 645 — another case involving delay by a carrier and loss by flood — in the following language:
“In the following cases the admitted or established negligence of the defendant was held not to be the effective legal cause or proximate cause of the damage or injury for which recovery was sought. It is obvious that in these cases the damage could not be said to be the natural result of the negligence declared on. It was simply due to some other factor. And the conclusion reached in these cases must be the same whether liability is supposed to extend to all natural consequences or only to such as may be foreseen.” (1 Street, Found. Leg. Liab. 118.)
This court has upon numerous occasions discussed the principles upon which the problem involved must be solved. (A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, 377, 15 Am. Rep. 362; Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402; Light Co. v. Koepp, 64 Kan. 735, 68 Pac. 608; Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399; Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938, 69 L. R. A. 246; Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A., n. s., 515. See, also, the opinion of Garver, J., in C. K. & W. Rly. Co. v. Bell, 1 Kan. App. 71, 41 Pac. 209.)
In the early case of A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362, Mr. Justice Valentine said:
“In law, proximate and remote causes and effects do not have reference to time, nor distance, nor merely to a succession of events, or to a succession of causes and effects. A wrong-doer is not merely responsible for the first result of his wrongful act, but he is also responsible for every succeeding injurious result which could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural and probable consequence of his wrongful act. He is responsible for any number of injurious results consecutively produced by impulsion, one upon another, and constituting distinct and separate events, provided they all necessarily follow from the first wrongful cause. Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be considered in law as the proximate result of the first wrongful cause. But whenever a new cause intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrong-doer, which could not have been foreseen by the exercise of reasonable diligence by the wrong-doer, and except for which the final injurious consequence could not have happened, then such injurious consequence must be deemed to be too remote to constitute the basis of a cause of action.” (Page 377.)
In the case of Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, 58 L. R. A. 399, it was charged that grain-doors for cars were negligently piled and permitted to remain upon a depot platform. A severe gale blew them upon the railway track, causing the derailment of an engine and the death of its fireman. It was held that the gale was the proximate cause of the fireman’s injuries. The syllabus reads:
“In a case where two distinct, successive causes, wholly unrelated in operation, contribute toward the production of an accident resulting in injury and dam age, one of such causes must be the proximate, and the other the remote, cause of the injhry.
“A prior and remote cause cannot be made the basis of an action for the recovery of damages if such remote cause did nothing more than furnish the condition, or give rise to the occasion, by which the injury was made possible, if there intervened, between such prior or remote cause and the injury, a distinct, successive, unrelated and efficient cause of the injury.”
In the case of Stephenson v. Corder, 71 Kan. 475, 80 Pac. 938, 69 L. R. A. 246, a man tied his mare to a hitching-rail on a public street. The chin-strap of the halter was defective. A boy struck the mare on the nose with his foot while turning “flip-flops” over the rail. She broke loose, ran away, collided with a buggy, and injured its occupant. It was held that the striking of the mare on the nose by the boy’s foot was the proximate cause of the injury. The court said:
“The injurious result would not have followed had not the new and independent cause intervened. This new cause had no causal connection with the negligence of Stephenson. The hitting of the mare on the nose by the boy was not caused by the defect in the halter, nor was it under the control of Stephenson; nor can it be said with the slightest fairness that it could have been foreseen by the exercise of reasonable diligence on his part.” (Page 482.)
It is scarcely worth while to debate further than these authorities have done the propriety of the rule that a carrier cannot be negligent, and therefore liable in damages, for omitting to take precautions against events which are beyond human foresight and which he does not cause. He is obliged to anticipate that delay in transportation may result in the deterioration of perishable freight, and that fluctuating markets may fall, but he cannot be charged with foreknowledge of floods like the one which devastated the railroad yards at Kansas City in 1903. He is under no duty to make provision against such phenomena. In the present case there is no causal relation between the negligence charged and the catastrophe which overtook the plaintiff’s property. The carrier’s delay did not produce the flood, and for all the carrier could foresee promptitude might have been as dangerous as delay. The delay was a mere incident to the destruction of the car of grain. The causa causans was the flood, the inevitableness of which could not be determined by anything which the carrier might do. As expressed by Mr. Justice Peters in the casé of O’Brien v. McGlinchy, 68 Me. 552, 557, the negligence of the carrier had but a casual, while the'flood had a causal, connection with the ultimate event.
Little can be added to the reasons given by Lord Bacon and Judge Cooley for resting responsibility upon the proximate cause. The pages upon pages of dreary disquisition upon the subject attest the folly of embarrassing the administration of justice by entangling it in logical and metaphysical refinements and subtle- ' ties. It is sufficiently difficult in most cases to aiscer-'tain even the proximate cause. The affairs of life are so varied and complicated, the relations of cause and consequence so complex and-far-reaching, that the law, as a practical science, cannot, with any degree of safety or assurance, pass beyond the near, efficient and predominating cause to investigate whether others more remote have contributed to an event. If it were to attempt to do so, and negligence in any degree were to be counted, the punishment might be outrageously disproportionate to the fault; and a maze of difficulties would encompass every effort to make a just apportionment of damages. As Mr. Justice Marston, of the supreme court of Michigan, has said:
“It may be true that had there been no delay whatever on the part of the defendant the loss would not have happened. The law, however, cannot enter upon an examination of, or inquiry into, all the concurring circumstances which may have assisted in producing the injury, and without which it would not have occurred. To do so would only be to involve the whole matter in utter uncertainty, for when once we leave the direct, and go to seeking after remote causes, we have entered upon an unending sea of uncertainty, and any conclusion which should be reached would depend more upon conjecture than facts.” (Michigan Central R. R. Co. v. Burrows, 33 Mich. 6, 14.)
The principles discussed have been applied in the following among other cases: Railroad Company v. Reeves, 77 U. S. 176, 19 L. Ed. 909. (Freight not forwarded promptly — overtaken by unprecedented flood. See, also, St. Louis &c. Railway v. Commercial Ins. Co., 139 U. S. 223, 237, 11 Sup. Ct. 554, 35 L. Ed. 154.) Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 135 Fed. 135. (Shipment of cattle delayed by negligence — loss at Kansas City by flood of 1903. In the opinion Pollock, district judge, collates decisions of the federal courts.) Lehman, Durr & Co. v. Pritchett, 84 Ala. 512, 4 South. 601. (Delay in executing order to sell cotton — loss by fire.) James v. James, 58 Ark. 157, 23 S. W. 1099. (Failure to gin cotton promptly— destruction by fire.) Rodgers v. C. P. R. R. Co., 67 Cal. 607, 8 Pac. 377. (Defective bridge destroyed by cloudburst.) Dubuque Wood and Coal Association v. City and County of Dubuque, 30 Iowa, 176. (Delay in repairing bridge — wood awaiting removal lost by flood.) James Dalzell v. Steamboat Saxon, 10 La. Ann. 280. (Delay in carriage of goods — injury by sudden rise of river.) Denny v. New York Central Railroad Company, 79 Mass. 481, 74 Am. Dec. 645. (Delay in transporting wool — loss by flood. See, also, Hoadley v. Northern Transportation Company, 115 Mass. 304, 15 Am. Rep. 106.) Michigan Central R. R. Co. v. Burrows, 33 Mich. 6. (Delayed freight encountered freezing weather. See, also, Carnegie, Phipps & Co. v. Holt, 99 Mich. 606, 58 N. W. 623.) Wharfboat Association v. Wood & Co., 64 Miss. 661, 2 South. 76, 60 Am. Rep. 76; Railroad v. Millsaps, 76 Miss. 855, 25 South. 672. (Failure to ship cotton at first opportunity — loss-by fire.) Clark v. Pacific R. R., 39 Mo. 184, 90 Am. Dec. 458. (Transportation delayed — on arrival at destination goods destroyed by public enemy.) Grier v. Railroad, 108 Mo. App. 565, 84 S. W. 158; Commission Co. v. Railroad Co., 113 Mo. App. 544, 88 S. W. 117; Elam v. St. Louis & S. F. R. Co. (Mo. App.), 93 S. W. 851. (These cases involve losses consequent upon the Kansas and Missouri river floods of 1903.) McVeagh & Co. v. A. T. & S. F. R’y Co., 3 N. M. 327, 5 Pac. 457. (Failure to forward goods — seizure on. legal process.) Extinguisher Co. v. Railroad, 137 N. C. 278, 49 S. E. 208. (Negligent failure to forward goods — loss by fire.) Daniels et al. v. Ballantine et al., 23 Ohio St. 532. (Tug towing barge suspended voyage — after voyage resumed barge destroyed by storm.) Morrison v. Davis & Co., 20 Pa. St. 171, 57 Am. Dec. 695. (Canal-boat drawn by lame horse wrecked by flood. See, also, Jones v. Gilmore, 91 Pa. St. 310.) Lamont & Co. v. Nashville & Chattanooga Railroad Company, 9 Heisk. (Tenn.) 58. (Neglect to forward goods promptly— loss by flood.) G. C. & S. F. Ry. Co. v. Darby & Cauthen, 28 Tex. Civ. App. 229, 67 S. W. 129; International & G. N. R. Co. v. Bergman (Tex. Civ. App.), 64 S. W. 999. (Delay in delivering, shipment of wheat —loss by great storm at Galveston.) Davis & Gay v. C. V. R. R. Co., 66 Vt. 290, 29 Atl. 313, 44 Am. St. Rep. 852. (Delay in forwarding grain stored in defendant’s elevator — elevator burned.) Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322. (Delay in transporting stock — damage by exceptional snow and cold.) The question of the carrier’s liability as an insurer of freight was not involved in some of . the decisions cited. But it must be obvious .that if the law, not only for practical reasons but as a means of substantial justice, altogether rejects and refuses to consider remote causes and regards the proximate cause only, the carrier is entitled to claim exemption for a loss of which the act of God is the proximate cause.
“It is said to be an ancient and universal rule, resting upon obvious reason and justice, that a wrong-doer shall be held responsible only for the proximate and not for the remote consequences of his actions. 2 Parsons, Con. 456. The rule is not limited to eases in which special damages arise; but is applicable to every case in which damage results from a contract violated or an injurious act committed. 2 Greenl. Ev. §256; 2 Parsons, Con. 457. And the liabilities of common carriers, like persons in other occupations and pursuits, are regulated and governed by it. Story, Bail., 586; Angell, Car., 201; Morrison v. Davis, 20 Penn. St. 171, 57 Am. Dec. 695.” (Denny v. New York Central Railroad Company, 79 Mass. 481, 485, 74 Am. Dec. 645.)
“A common carrier assumes all risks except those caused by the act of God and the public enemy. One of the instances always mentioned by the elementary writers of loss by the act of God is the case of loss by flood and storm. Now, when it is shown that the damage resulted from this cause immediately, he is excused.” (Railroad Company v. Reeves, 77 U. S. 176, 189, 19 L. Ed. 909.)
“A common carrier is protected from liability for the loss of property entrusted to it for transportation only when it is made to appear that the loss was occasioned by the act of God or the public enemy, or where the loss or damage results from some inherent quality or infirmity in the property itself. Against losses from all other causes the carrier is an insurer. For the prompt delivery of goods entrusted to its care for transportation it is held to the exercise of only ordinary care. Railway Co. v. Levi, 76 Tex. 337, 13 S. W. 191, 18 L. R. A. 323, 18 Am. St. Rep. 45. Inasmuch as it is undisputed that the loss of the cotton was occasioned by the storm of September 8, 1900, and as that catastrophe conies within the strictest definition of the act of God, it will serve to acquit the company of liability, unless it is made to appear that there is some casual connection recognized by law between the negligence of the company in failing to make timely delivery of the goods and their destruction by the storm, for we regard it as well settled that the doctrine of proximate cause is applicable to cases involving the loss of goods by a carrier, where responsibility must be predicated upon negligence of the carrier. [Citing cases.] What, then, is the true legal relation between the failure on the part of the company to make timely delivery of the cotton and its subsequent destruction by the storm ? In order to constitute proximate cause of an injury the injury must be the natural and probable result of the negligent act or omission. Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162. In the course of the opinion in the case just cited Chief Justice Gaines says further: ‘Since every event is the result of a natural law, we apprehend the meaning is that the injury is such as may probably happen as the natural consequence of the negligence under the ordinary operation of natural laws.’ Again, he says: ‘It would seem that there is neither a legal nor a moral obligation to guard against what cannot be foreseen.’ In- applying the principle to such a state of facts as is presented by the case before us the courts have with remarkable uniformity held that in a legal sense there is no causal connection between the act of negligence and the destruction by the act of God.” (International & G. N. R. Co. v. Bergman [Tex. Civ. App.], 64 S. W. 999.)
“A common carrier, though guilty of negligent delay in transporting stock, is not liable for injury thereto inflicted by severe weather which overtook them in transit in consequence of the delay. The severe weather, and «not the delay, is the proximate cause of the injury, and to this cause only does the law look. Severe weather is an act of God, for the consequences of which a common carrier is not liable.” (Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322.)
Cases are cited to the contrary, among which are the following: Michaels v. N. Y. Central R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Wolf v. The American Express Co., 43 Mo. 421, 97 Am. Dec. 406. (See, however, American Brewing Ass’n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538.), Wald v. P., C.,C. & St. L. R. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332. (Merely adopts the New York rule.) Cassilay, &c. v. Young & Co., 4 B. Mon. (Ky.) 265, 39 Am. Dec. 505. (No discussion of principles.) Ala. Great Southern R. R. Co. v. Quarles & Couturie, 145 Ala. 436, 40 South. 120. (Carrier’s delay — destruction by cyclone.) Bibb Broom Corn Co. v. Atchison, T. & S. F. Ry. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509; Shoe Co. v. Railway Co., 130 Iowa, 123, 106 N. W. 498; Wabash R. Co. v. Sharpe (Neb.), 107 N. W. 758. (The last three are 1903 flood cases.)
In the case of Michaels v. N. Y. Central R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415, the opinion securing the adherence of the greater number of the members of the court was written by Mr. Justice Davies. His statement of principles is as follows:
“The law is well settled that common carriers, while engaged in the transportation of goods for hire, are not responsible for injuries to them caused by an act of God or the public enemy. With the exception of injuries thus caused, they are liable for all damage to goods entrusted to them, while under their care and control. For the reasons stated in the opinion in the case of Read v. Spaulding, decided at this term, the carrier, to exempt himself, must show that he was free from fault at the time the injury or damage happened. He must show that he was without fault himself, and that no act or neglect of his concurred in or contributed to the injury. If he has departed from the line of duty, and has violated his contract, and “while thus in fault, and in consequence of that fault, the goods are injured by an act of God, which would not otherwise have produced the injury, then the carrier is not protected.” (Page 578.)
The same judge delivered the opinion in Read v. Spaulding, which purports to be based upon authority. The case of Davis v. Garrett, 6 Bing. (Eng.) 716, is its chief prop. That case was one of deviation, a positive misfeasance, which makes the carrier liable as for conversion. (6 Cyc. 383; Railway Co. v. Dunlap, 71 Kan. 67, 80 Pac. 34.) Mr. Chief Justice Tindal bases His argument upon the proposition that the wrong of the master in taking the barge out of its proper course was undoubtedly a ground of action. The rule first appears in' the law of marine insurance, and was adopted to meet the spirit of dangerous adventure on the part of sea-rovers which disregarded the safety of both property and life. Such a tort-feasor is held to take all risks, as if they were actually foreseen, and is not al lowed to apportion or qualify his wrong. Mr. Justice Deaderick, in Lamont & Co. v. Nashville & Chattanooga Railroad Company, 9 Heisk. (Tenn.) 58, and Mr. Freeman, in volume 36 of the American State Reports, at page 839, have shown that none of the other cases cited sustains the contention that delay in starting goods to their destination will amount to such negligence as will make the carrier liable for a loss occasioned proximately by the act of God, and it is not necessary to review them here.
The only other support for the New York doctrine is that supplied by the academic method of settling the whole controversy by a definition. It is said to be “agreed” that there can be no loss by act of God without the total exclusion of all human agency. If there be any admixture of human means an injury cannot be the act of God. (Wright, J., in Michaels v. N. Y. Central R. R. Co., 30 N. Y. 571, 86 Am. Dec. 415.) Therefore a carrier who in the course of tardy transportation brings goods in the pathway of a Johnstown flood or a San Francisco earthquake causes their destruction. The event having an admixture of human means is not the act of God., This, of course, is like playing with loaded dice. It is always possible to get the desired result in the conclusion of a syllogism if the proper material be put into the premises.
One of the cases cited by Mr. Justice Wright is that of New Brunswick Steamboat Company v. Tiers et al., 24 N. J. Law, 697, 64 Am. Dec. 394, which reviews others to which he refers. A wharf which the defendants were bound to keep safe was defective on account of a projecting timber. A violent storm produced a very low tide and drove a vessel against the timber, which pierced her side, causing her to fill and sink, to the damage of her cargo. It was held that the defect in the wharf was the proximate cause of the loss. In the syllabus of the case and throughout the opinion it is made plain that negligence on the part of the carrier must be such as' to constitute a proximate cause of the loss in order to render him liable, and that if the act of God be the proximate cause the carrier is ¿xcused. The following extract, shows the court’s view:
“The argument for the defendants in this case is that inasmuch as if there had not been an unusually low tide, produced by a violent storm of wind, the barge would not have struck the timber, therefore the loss must be attributed to the storm. But if that argument was sound it would follow that, if an unseaworthy vessel should founder in a storm, the fact that she might have gone safe if the weather had remained fair would excuse the carrier. This is not pretended to be the law. If the vessel be in fact unfit for her business, a loss arising from a storm is presumed to have been occasioned by the defect of the vessel, because it is impossible to say how far the defect contributed to the loss. Upon the like principle, if the carrier’s dock be imperfect, a loss arising by the influence of a storm acting upon the imperfection, and which would not have happened in the absence of either cause, must be attributed to the imperfection. The loss is not by an act of God alone; it is produced partly by an act for which the carrier is responsible. Had there been no storm, but had the dock itself given way and sunk the vessel, or had a projecting timber before unnoticed or believed not to be dangerous occasioned the injury, since no act that could be called the act of God had intervened it is undeniable that the carriers would be liable. In this case an act of God did intervene, and was instrumental in producing the loss; but it was not the sole or proximate cause of the loss.” (Page 702.)
No one will dispute the soundness of this argument. It has been decided that if a carrier undertake to transport freight in an unseaworthy ship it makes no difference that the storm which foundered it was of unusual severity. Hazard existed when the voyage began, and it is not possible to determine the effect of the delinquency upon the final event. (Bell v. Reed, 4 Binn. [Pa.] 127, 5 Am. Dec. 398.) If baggage be put off in the rain without any protection it makes no difference that the rainfall is unprecedented. It is the carrier’s duty to protect property in its custody from exposure to rain. (Sonneborn v. Southern Railway, 65 S. C. 502, 44 S. E. 77.) In all such cases, and in cases of actual deviation from the usual route, it is proper to say that an act of God must not comhine with human instrumentality, that if a carrier depart from the line of duty he is liable, though an act of God intervene, and that he must be free from fault in order to claim his exemption. But to apply such statements to cases of mere delay in forwarding is to make the carrier liable, in the phrase of Mr. Chief Justice Gibson, for negligence in the abstract and not for the consequences of negligence. (Hart v. Allen and Grant, 2 Watts [Pa.], 114.).
In the decision just cited the same distinguished judge has shown that cases of this character are not within the reason or spirit of the rule holding common carriers liable as insurers, and hence that there is no excuse for not applying to them the doctrine of proximate cause:
“A carrier is answerable for the consequences of negligence, not the abstract existence of it. Where the goods have arrived safe no action lies against him for an intervening but inconsequential act of carelessness, nor can it be set up as a defense against payment of the freight; and for this plain reason: that the risk from it was all his own. Why, then, should it in any other case subject him to a loss which it did not contribute to produce, or give an advantage to one who was not prejudiced by it? It would require much to reconcile to any principle of policy or justice a measure of responsibility which would cast the burthen of the loss on a carrier whose wagon had been snatched away by a whirlwind in crossing a bridge, merely because it had not been furnished with a proper cover or tilt to protect the goods from the weather. Yet the omission to provide such a cover would be gross negligence, but, like that imputed to the carrier in the case before us, such as could have had. no imaginable effect on the event. A carrier is an insurer against all losses without regard to degrees of negligence in the production of them, except such as have been caused by an act of providence or the common enemy; and why is he so? Undoubtedly to subserve the purposes, not of justice in the particular instance, but of policy, and convenience— of policy, by removing from him all temptation to confederate with robbers or thieves, and of convenience, by relieving the owner of the goods from the necessity of proving actual negligenc'e, which, the fact being peculiarly within the knowledge of the carrier or his servants, could seldom be done. Jones, Bail. 108, 109; 2 Kent, 59, 78. Such are the rule and reason of it, and such is the exception. But we should enlarge the rule, or to speak more properly, narrow the exception far beyond the exigencies of policy or convenience, did we hold him an insurer against even the acts of providence as a punishment for an abstract delinquency, where there was no room for the existence of a confederacy or the operation of actual negligence; and to carry a. responsibilty, founded in no principle of natural equity, beyond the requirements of necessity, would be gratuitous injustice.” (Hart v. Allen and Grant, 2 Watts [Pa.], 114, 116.)
Of the recent cases holding the carrier liable, Bibb Broom Corn Co. v. Atchison, T. & S. F. Ry. Co., 94 Minn. 269, 102 N. W. 709, 69 L. R. A. 509, adds nothing to the New York doctrine, unless it be- by such captious statements as that the exemption from liability of the carrier who is guilty of mere delay “is based on too strict an application of the rule of proximate cause” (p. 275), and that the reasons for such exemption “lose their force and persuasive powers when applied to a carrier who violates his contract, and by his unreasonable delay and procrastination is overtaken by an overpowering cause, even though of a nature not reasonably to be anticipated or foreseen.” (Page. 275.)
The case of Shoe Co. v. Railway Co., 130 Iowa, 123, 106 N. W. 498, contains the following remarkable statement as a new contribution to the law:
“Now, while it is true that defendant could not have anticipated this particular flood, and could not have foreseen that its negligent' delay in transportation would subject the goods to such a danger, yet it is now apparent that such delay did subject the goods to the danger, and that but for-the delay they would not have been destroyed; and defendant should have foreseen, as any reasonable person could, foresee, that the,negligent delay would extend the time during which the goods would be liable in the hands of the carrier to be overtaken by some such casualty, and would therefore increase the peril that the goods should be thus lost to the shipper.” (Page 129.)
This principle either makes the carrier responsible upon its hindsight rather than its foresight or makes it bound to regulate its conduct with reference to that which is utterly beyond mortal ken.
The commissioners’ decision in the case of Wabash R. Co. v. Sharpe (Neb.), 107 N. W. 758, contents itself with citing without discussion the two cases in 30 N. Y., a dictum in McClary v. The Sioux City and Pacific R. R. Co., 3 Neb. 44, 19 Am. Rep. 631, and Lowe v. Moss, 12 Ill. 477, which did not involve an act of God at all.
The Alabama case, Ala. Great Southern R. R. Co. v. Quarles & Couturie, 145 Ala. 436, 40 South. 120, sticks in the bark of the carrier’s liability as an insurer, and ignores the justice and policy of disregarding all except the proximate cause.
The recent Missouri cases arising from the flood of 1903 all hold the carrier free from actionable fault. In Grier v. Railroad, 108 Mo. App. 565, 84 S. W. 158, after citing the leading cases in support of his view, Judge Goode says:
“In all those decisions it appeared the carrier had been guilty of some delay in moving the property, but for which it would not have been where the catastrophe occurred and therefore would have escaped injury. But as the catastrophe happened unexpectedly, and was not within the range of reasonable foresight, the negligent delay was not indulged while the carrier realized there was peril to the property and, therefore, did not participate, as a concurrent cause, in bringing about the loss. The doctrine of the cases cited on this point by the appellant is one that pervades the law of negligence ; and by virtue of it a common carrier’s neglect, like any other party’s, must enter as a proximate cause into the happening of an injurious accident, to entail liability.” (Page 570.)
In Commission Co. v. Railroad Co., 113 Mo. App. 544, 88 S. W. 117, Judge Ellison discusses the question upon principle and in the light of the authorities. The following quotations from his opinion are pertinent:
“It might be negligence to delay putting certain goods under shelter in the month of July to protect them from rain or thieves; but if left out, and the unheard-of occurrence (in this climate) of a freeze at that season was to occur and destroy them, could there be any natural connection between the neglect and the loss? . . . If a train should for two hours be negligently delayed in leaving a station, and meantime a storm should arise and lightning strike a car and destroy property, the carrier would not be liable. The result would be beyond natural expectation, not within the thought or foresight of any one, altogether fortuitous and disconnected from the negligent act of delay.
“So, the rule may be stated to be this: the act of God must be the sole cause of the loss or injury; and-whenever the negligence of the carrier mingles with the act of God as a cooperative cause, he is liable, provided the resulting loss is within the probable consequences of the negligent act; otherwise, it will be too remote and disconnected tó be considered the proximate cause.” (Pages 547, 548.)
In Elam v. St. Louis & S. F. R. Co. (Mo. App), 93 S. W. 851, Judge Johnston followed Judge Ellison, and said:
“In the exercise of reasonable care, of which negligence is the antonym, human foresight and prudence cannot foresee and guard against the sudden, unheralded, and overwhelmingly powerful outbursts of natural forces, and, because neither time, place nor de■structive power of such visitations may be anticipated, people cannot be expected to act with reference to them; and, therefore, negligence which by chance places persons or property within their destructive reach should not be deemed a cooperative cause of injury.” (Page 852.)
This court is of the opinion that the negligent delay of a carrier in moving goods entrusted to it for trans portation, not so unreasonable as to amount to a conversion, will not render it liable for the loss of such goods after they have been carried to their destination if they are there destroyed by an act of God before delivery.
The record recites that the facts of this case were all proved by uncontradicted testimony.' There being no questions of credibility to be settled, and no conflicts of evidence to be resolved, the solution of the matter depended entirely upon the rule of law to be applied and the court properly instructed, a verdict for the defendant.
The action was not founded upon sections 5982 and 5993 of the General Statutes of 1901. They merely give statutory damages for delay, and, if applicable to interstate shipments, do not .govern the case made by the petition.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
Plaintiffs institute an action in ejectment in order to obtain possession of an eighty-acre tract of land in Wichita county. A second cause of action in damages for unlawful detention was dismissed and requires no further consideration. The defendant filed an answer and cross petition in which he sought to obtain a decree for the specific performance of an alleged contract to purchase the land. Judgment was for plaintiffs and the defendant appeals.
At the outset we are confronted with the contention of appellees the appeal was not perfected in time and should be dismissed. Although we might be justified in dismissing the appeal we prefer to dispose of the. case on its merits.
Appellees are four adult children of Christina M. Hollingsworth. Appellant, Aaron Sell, is a landowner and real estate broker in Wichita county. Neither appellees nor their mother resided in Wichita county.
As ground for specific performance of the alleged contract appellant relies upon a long course of correspondence, letters and telegrams, to establish his contract for the purchase of the land from Christina M. Hollingsworth and appellees. These communications, thirty-two in number, were identified by the appellant, bound together and by stipulation introduced in evidence as one exhibit.
The communications covered a period beginning December 5, 1945, and ending May 28, 1946. The communications were started by appellant with the mother, an old lady, who did not own the entire fee title, but apparently thought she did. Touching the title it was stipulated:
“It is hereby stipulated by and between the attorneys for the plaintiff and defendant in open court that for more than twenty years prior to the 18th day of November, 1946, the title to this land, being the West half of the Southeast Quarter of Section 20, Township 16, Range 35, in Wichita County, was vested seven-eights in Christina M. Hollingsworth and the remaining one-eighth in the plaintiffs in this action, and that on said 18th day of November, 1946, the said Christina M. Hollingsworth conveyed her seven-eighths interest in this land to the plaintiff Opal B. Rightly. This instrument was recorded, the deed from Mrs. Hollingsworth to Mrs. Rightly was filed on the 29th day of November, 1946, and recorded in the register of deeds office of Wichita County, Kansas, on Book 37 at page 159.”
This action was instituted March 19, 1947, after the negotiations had failed. While the negotiations were pending appellant on his own initiative entered into possession of the land.
Appellant began the negotiations with the mother in the apparent belief she was the fee title owner of the land. The discrepancy in title was discovered only after an abstract of title had been obtained and' examined. When appellant began the negotiations with the mother it appeared he desired only to obtain the agency for the sale of the land. He owned property in Wichita county where the land was located and, as^previously stated, was also a real estate broker. Later it developed that although he notified the mother he had sold the land at the stated price he was, in fact, the alleged purchaser. A down payment of $300 had been made to the mother with the understanding the remainder of the purchase price, $1,700, would be paid when the deal was consummated. When the negotiations later failed the mother tendered a return of the $300 which appellant rejected. In denying specific performance the trial court ordered the return of the down payment to appellant.
At the time appellees, the children, learned of the proposed deal some of them were strongly opposed to the sale of the land. They desired to retain it on the theory there might be a possibility of discovering oil and for the reason the price was entirely too low. At the same time they appeared anxious the mother should not fail to keep her agreement, if any, for the sale of her interest. It therefore appears at one time in the course of the lengthy negotiations appellees may have decided to join the mother in the sale of their own interests. It is, however, doubtful the evidence on that point was of a character that compelled the court to conclude a binding contract had been entered into between the mother, all appellees and the appellant.
In any event if appellees did enter into such an agreement the evidence fails to disclose the terms of that agreement were accepted or acted upon by appellant. He failed to comply therewith. Furthermore there was subsequently an offer to sell the separate interest of the mother at the original price offered by appellant. He did not accept that offer. He made no counter proposal to purchase the separate interest of the mother at an abated price.
It will serve no useful purpose to set forth the thirty-two communications introduced in evidence. They have all been examined. In view of the entire record we think we would not be justified in concluding the evidence was of a character and sufficient to compel the court to decree specific performance. Of course, if the mother made a contract for the sale of an interest in the land she did not have she could nevertheless bind herself personally by an agreement to convey it, if not objectionable as relating to a homestead or otherwise illegal, so as to render herself liable in damages for breach of contract. (Hampe v. Sage, 87 Kan. 536, 541-543, 125 Pac. 53; McAdam v. Leak, 111 Kan. 704, 707 , 208 Pac. 569.) This, however, is not a damage action but one for specific performance.
Insofar as the cross petition is concerned appellant was a plaintiff seeking specific performance of the alleged contract for the purchase of the entire fee title. Appellant leans heavily on the McAdam case, supra. It does not support his position. It was there said:
“The defendant also urges that under the allegations of the petition she had no authority to bind her husband, who owned a half interest in the land and was not a party to the action. This would prevent a decree for specific performance unless the plaintiff were willing to accept a deed conveying the defendant’s interest alone, with an abatement in the price. (Williams v. Wessels, 94 Kan. 71, 145 Pac. 856.)” (p. 707.)
As previously indicated appellant refused to purchase the mother’s interest at the original sale price. The record discloses no offer by appellant to take the mother’s separate interest at an abated price.
We find nothing in the other decisions cited which compels a reversal of the trial court’s judgment. It is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action brought by the payee of a check to recover against a bank which honored the check upon an allegedly unauthorized endorsement. The bank’s demurrer to the plaintiff’s petition was sustained and she appeals.
Preliminary pleadings and motions need not be noticed. In her amended petition, plaintiff alleged that on September 16, 1947, the clerk of the district court of Meade county issued a check drawn on a bank in Meade, payable to the order of Ruth G. Pearcy for $1,362.53, in payment of proceeds in the hands of the clerk in the case of Pearcy v. Williams (case No. 4321); that the check was cashed by the defendant bank without the endorsement of the plaintiff and by someone other than the plaintiff, without her authority; that plaintiff never authorized the defendant bank to cash the check and did not authorize anyone to endorse her name upon the check and to receive the proceeds; and that the defendant bank wrongfully and without authority cashed the check and paid the proceeds to some person other than the plaintiff, who at that time was acting without the authority of the plaintiff and that plaintiff was thereby deprived of the proceeds of $1,362.53, which were rightfully hers. Plaintiff further alleged that she is the same person as the plaintiff in Pearcy v. Williams (case No. 4321) in the district court of Meade county, Kansas, and that she was represented in that action by counsel, who were Cyrus Leland of Meade, Kan., and Fred Hinkle of Wichita, Kan. Plaintiff further alleged that she had made demand upon the defendant bank and that the demand was refused and that the defendant bank was indebted to her in the sum of $1, 862.53 and interest, for which she prayed judgment. Attached to and made part of her petition was a copy of the check and for our purposes it was a check drawn by the clerk of the district court upon the First National Bank of Meade, payable to the order of Ruth G. Pearcy, for $1,362.53. In the lower left corner was a notation “Case No. 4321, For Pmt. as per Court Order Pearcy v. Williams.” The check bore endorsements, viz. “Ruth G. Pearcy By: Fred Hinkle her attorney” “Fred Hinkle”, and an endorsement by the defendant bank.
The bank demurred to the amended petition for the reason that it did not state facts sufficient to constitute a cause of action.
In support of the trial court’s ruling sustaining that demurrer, the bank contends that an attorney at law has implied authority to endorse his client’s name by himself as attorney and cash a check payable to his client, when the check represents proceeds derived from a lawsuit in which the attorney represented the client. In its brief the bank admits inability to find a Kansas case which passes on a like factual situation, and our attention is directed to decisions of this court said to have a bearing on the question, and to decisions from other states.
The bank first directs our attention to Chamberlin Co. v. Bank, 107 Kan. 79, 109 Pac. 742. In that case the plaintiff sent its agent out to contract for and supply materials, using a form of contract providing for payment to him in cash. In an instance he took a check in the name of the company. The agent endorsed the check by signing the company name by himself as agent and cashed it. The company sued the -bank and recovered. This court reversed, holding that the principal could not compel the bank to pay it the amount of the check. A review of the evidence considered in that case «hows a course of conduct warranting a conclusion that, inasmuch as the agent was authorized to collect cash, and the bank’s cashier knew of his making and carrying out contracts, the mere use of the check as a ready means of collecting cash was so incidental and natural that for the bank to have refused payment would have amounted to an imputation against the commercial honesty of the company. There is no particular analogy to be drawn that the case supports the bank’s position.
The bank also contends that lawyers are not ordinary agents and our attention is directed to the oath a lawyer takes on admission to the bar, to the canons of ethics, to statutory grounds for disbarment, and to the fact that lawyers are officers of the court and subject to disciplinary power. We need not dwell upon the high standard of duty required of an attorney for that is not decisive of the instant case. The relation of attorney and client is one of agency and the general rules of law that apply to agency apply to that relation (7 C. J. S. [attorney- and client § 67], p. 850).
The bank also directs attention to our statute respecting attorney’s liens and rights thereunder, but as there is nothing alleged to warrant any discussion, the question will be passed. Neither shall we discuss at length argument predicated on Smith v. Ward, 161 Kan. 453, 169 P. 2d 93, where it was held that where an attorney has recovered a judgment for his clients he has authority, by virtue of his employment, to receive payment and enter satisfaction of such judgment. Reference to that case will show it was a partition action in which an attorney received a check in his own name for moneys due his client; that he had a contract for fees and had withheld the proper amount thereunder; that there was no controversy between attorney and client, and that the whole issue was the power of the court to compel the attorney to refund the entire amount collected by him to the clerk of the court, who was ordered to make a redistribution by making separate checks to the individual persons entitled thereto. Although there is much said in that opinion concerning the relation of attorney and client, the question now before us is not treated.
It may also be observed that in none of the cases mentioned is there any contention made or rule stated that authority of an agent, whether express or implied, is not a subject of proof, or if the facts are not in dispute, then a question of law based on those facts.
In 41 Am. Jur. p. 457, Pleading, § 238, it is said:
“It is a universally recognized rule for which citation of authority is hardly needed that for the purpose of testing the sufficiency in law of the facts stated in a pleading, a demurrer thereto admits or confesses the truth of all the properly pleaded facts averred . . .”
In support Sedan State Bank v. Stephenson, 150 Kan. 210, 92 P. 2d 1, is cited. Under the rule stated the demurrer admits that someone, other than the plaintiff and without her authority, presented the check and received payment therefor from the defendant bank.
In 2 C. J. 427, it is said that if an agent be appointed in terms, either oral or written, the agency is express; if he is not appointed in terms but the employment is implied as a matter of fact from the conduct of the parties and the circumstances of the case, the agency is implied.
From the proven or conceded facts an implication is drawn that agency exists — it is inferred by reason of those facts that the agency extends further. Although the authorities take note of the difference between inferences and presumptions (20 Am. Jur. p. 165, Evidence, § 162) as a matter of fact they are often used interchangeably. And such presumption or inference must give way when in conflict with the facts which have been established. (Id. p. 164, §160).
In effect the bank asks the court to infer from the fact that Hinkle represented plaintiff in the Meade county suit that he was her agent to sign her name to the check which the clerk of the court made, not to him, but to her. It may be conceded that there are many occasions where by reason of emergency in protecting the client’s rights the attorney might be warranted in signing and cashing a check payable to his client’s order, or that he might have a lien on the proceeds which he would have a right to collect and withhold, or that there might be other circumstances warranting an inference he was authorized to endorse and collect the check, but none such are disclosed by the amended petition before us. Nor is there anything pleaded that would warrant any inference the bank, at the time it cashed the check, was aware of any course of dealing between the plaintiff and Mr. Hinkle.
In Sedan State Bank v. Stephenson, supra, the action was upon a judgment. The answer alleged a discharge in bankruptcy. The plaintiff’s demurrer to that answer was overruled and it appealed, raising the question of the sufficiency of the adjudication in bankruptcy. In disposing of the appeal this court said:
“But we have no present need to study the purely legal aspects of this subject. Plaintiff demurred to the answer in which defendants specifically alleged that they had been duly and regularly discharged in bankruptcy from all their provable debts, including the debt and judgment sued on. They also alleged that plaintiff had filed a claim in the bankruptcy court based on plaintiff’s judgment sued on, and that it had been allowed by that court and that ‘defendants [were] discharged therefrom.’
“Plaintiff’s demurrer to this answer conceded the truth of its pertinent allegations. (Phillips on Code Pleading, 2d ed., §§83, 302; 49 C. J. 362, 444, 445, 21 R. C. L. 506.) Counsel for plaintiff says that its demurrer was based on the proposition that the bankruptcy of the partnership did not affect the liability of the appellees individually. That might or might not be correct as an abstract proposition. But to give countenance to that contention here would be to ask this court (or the trial court) to disbelieve the plain allegations of defendants’ answer. Mayhap what defendants pleaded could not be supported by the record. If so, the way to have met their pleadings was' by a reply containing a general denial, or by a motion requiring them to set out in full the order of the bankruptcy court which should show beyond cavil whether or not defendants had been individually discharged from all their provable debts including the one sued on in this action. As the issue was joined, the judgment of the district court was undoubtedly correct and must be affirmed. It is so ordered.” (1. c. 212.)
In the case before us, if the trial court’s ruling be sustained, the plaintiff will not have any opportunity to show that the check payable to her was cashed by someone who had no authority to do so. She would be so precluded for the sole reason that her name was endorsed on the check by an attorney who had represented her in a lawsuit. Every fact would be resolved against her and none would be resolved in her favor.
When attacked by a demurrer she was entitled to have her allegation of no authority to any person to cash a check payable to her order resolved in her favor, and if any situation existed, as covered by the contentions made by the bank, it should have been pleaded as a matter of defense.
The ruling of the trial court sustaining the demurrer is reversed and the cause remanded with instructions to overrule the demurrer. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a suit to enjoin the disorganization of a common-school district. The trial court heard the evidence, found generally for defendants, overruled plaintiff’s motion for a new trial and rendered judgment for defendants. Plaintiff has appealed.
We are first confronted with appellees’ motion to dismiss the appeal upon the ground the notice of appeal was servéd too late, that is, more than two months from the date of judgment or order from which the appeal was taken. (G. S. 1947 Supp. 60-3309.) On this point the record discloses the following: At the trial both parol and documentary evidence was received. The case was continued for briefs and oral argument, after which, and on February 9, 1948, the court, as shown by the journal entry, ruled:
“The Court finds generally for the defendants upon, all issues in this action, and announces in open court its decision that all relief prayed for in plaintiff’s Petition, including the injunction sought therein, should be denied;”
and that defendants should recover judgment for costs. Two days later plaintiffs filed a motion for a new trial upon the grounds: (1) Erroneous rulings of the court during the trial; (2) that the decision and judgment are wholly contrary to the evidence; and (3) that the decision and judgment are wholly contrary both to the law applicable and to the evidence introduced. On September 16, 1948, the motion was heard upon briefs and oral argument, and overruled. On the same day, as shown by the journal entry, the court
“Ordered, Adjudged and Decreed that judgment be and the same is hereby rendered in favor of the defendants and against plaintiff upon all issues in this action; that all relief prayed for in plaintiff’s Petition, including the injunction sought therein, be and the same is hereby denied; and that defendants do have and recover of and from plaintiff their costs incurred in the defense of this action, taxed by the Clerk of this Court at $50.15; . . .”
Appellees in their motion to dismiss the appeal contend final judgment was rendered for defendants on February 9, 1948. We do not so read the record. On that date the court announced a general finding for defendants upon all issues and that the relief prayed for by plaintiff should be denied. Judgment on these findings was not rendered until after the hearing of the motion for a new trial. The notice of appeal was served and filed within two months of that date. Appellees further contend that upon the hearing of the motion for a new trial only legal questions were considered by the court and that there was no consideration by the court of the evidence. This contention really charges the court with not performing a judicial duty. When a motion for a new trial is upon the ground, among others, that the finding or judgment of the court is contrary to the evidence, or is not supported by the evidence, it is the duty of the court to consider that ground of the motion, unless it is specifically waived at the hearing. The record shows no such waiver. Neither does it contain anything tending to show that the court did not consider this ground of the motion as well as other grounds stated therein.
Considering plaintiff’s appeal, the pertinent portions of the record may be stated as follows: The Marion County School Reorganization Committee (hereinafter referred to as Committee), organized and functioning for the reorganization of common-school districts under Chapter 291, Laws 1945 (G. S. 1947 Supp., ch. 72, art. 56), after due notice, held its first formal hearing on February 8, 1946, but no order pertaining to the disorganization of school districts was made at that time. Another hearing was held on February 19, 1946, at which considerable testimony was taken and a formal order made respecting the disorganization or the reorganization of some fifteen common-school districts. In this order the expressed purpose was to make the boundaries of certain common-school districts conterminous with certain rural high-school districts. As respecting Common School District 95, the' order reads:
“(a) disorganizing Common School District 95 and assigning East half of sections 5 and 8; south half southwest quarter of Section 8, north half of northwest quarter of northwest quarter of Section 16, all of Section 17, north half of Section 20, and southeast quarter of Section 18, Township 17, Range 4 east of 6th P. M., to Rural High School District No. 2, Marion County, Kansas and all the remaining west part of said district to Rural High School District No. 1, Marion County, Kansas:”
Another paragraph of the order disorganized Common School District No. 90 and assigned all its territory to Rural High School District No. 1. Another paragraph of the order disorganized Common School District No. 98 and assigned all its territory to Common School District No. 115.
When this order was reported to the office of the state superintendent of public instruction he advised the committee that it was improper to attach the territory of a common-school district to a rural high-school district. Thereupon the Committee, as authorized by the statute (Laws 1945, ch. 291, § 8) for changing final orders of reorganization, published notice of hearing and sent copies thereof to all the school districts affected and held another hearing regarding the modification of the final order dated February 19, 1946. The Committee met on May 16, 1946, at the time set for such hearing, and determined that the order of February 19, 1946 should be changed to the extent of assigning the west part of Common School District No. 95 to Common School District No. 90 and to the further extent of assigning the east portion of Common School District No. 95 to Common School District No. 49. There was also a change made with reference to the territory of common-school districts which had been assigned to another rural high-school district. No changes were made with reference to orders made on February 19 respecting the disorganization or assignment of territory of other common-school districts.
It appears that in typing this order at each of the six places where Common School District No. 95 was intended to be referred to the number stated was 98. In three of those places that was corrected before it was published. The order as partially corrected was officially first published on May 30, 1946, and a second time on June 6, 1946. Directly after the publication the secretary of the Committee noticed the inaccurate No. 98 and called it to the attention of the chairman of the Committee. The chairman of the Committee went to the secrtary’s office, where he, or the secretary in his presence, changed the No. 98 where it appeared in the order to 95. They did this without calling the Committee together, but some members of the Committee were contacted either by telephone or by meeting on the street and approved the change. The order of May 16 as corrected was then officially published two times, the first being on June 13, 1946. It reads:
“School District Reorganization
“The State of Kansas to all interested parties and school patrons of Rural High Schools, Nos. 1, 2, Marion County, Kansas, and Common School Districts in Marion County, Kansas, numbered 90, 95, 93, 49, and 116 in Marion County, Kansas
“You and each of you are hereby notified that The Marion County School Reorganization Committee having theretofore adopted a final reorganization plan affecting said district, which became final as of March 1, 1946, now finds that said plan as adopted needs to be changed for the reason that the taxation is unsatisfactory and the plan as to the above districts as published is not feasible, and therefore again re-organizes the territory involved in such order as to the above districts, after due notice to all interested parties and patrons of said districts, as follows; hereby making
“Final Order of Reorganization ;—
“(a) by assigning from Common School District No. 95, Marion County, Kansas and attaching to Common School District No. 90, Marion County, Kansas instead of Rural High School District No. 1, Marion County, Kansas all of the territory lying west of a line commencing at the center north line of Section 5, Township 17, Range 4 east, through the center of Section 8 to northeast corner of south half of southwest quarter of said Section 8; thence west to the section line; thence south to southeast corner of northeast quarter of Section 18; thence west to center of said section; thence south to center of south line of said section 18; thence east to the southeast comer of said Section thence south along the east line of Section 19' to the south line of Common School District No. 95; and by assigning from said Common School District No. 95 and attaching to Common School District No. 49, all in Marion County, Kansas the territory of said Common School District No. 95 aforesaid, lying east of the above described division line; and disorganizing said Common School District No. 95, Marion County, Kansas;
“(b) by assigning all of Common School District No. 93 territory, except north half of Section 5 and Northwest quarter of Section 4, both in Township 18, Range 4 east and attaching same to- Common School District No. 49, Marion County, Kansas, instead of to Rural High School District No. 2, same county; and by disorganizing said Common School District No. 93, Marion County, Kansas;
“(c) by assigning all of the territory of Common School District No. 116, Marion County, Kansas, except that lying south of Sections 34, and south of the center of Section 35 and 36, all in Township 17, Range 4 east to Common School District No. 49, Marion County, Kansas, instead of to Rural High School District No. 2, Marion County, Kansas; and disorganizing said Common School District No. 116.
“(d) This order shall become effective March 1, 1947, and makes no other changes in the original Final Order, dated February 19, 1946.
“Reference is hereby had to plans and charts on file with the County Superintendent of Education at his office, Marion, Kansas.
“You are further notified that any party, as defined by applicable law who is dissatisfied with this order of the Marion County School Reorganization Committee may apply in writing to this Committee for a rehearing in respect to the matters above determined by filing such application with the secretary of this committee, stating specifically the ground or grounds on which the applicant considers this plan or order to be unlawful or unreasonable, within the statutory time.
“Dated May 16, 1946.
“Marion County School
Reorganization Committee,
By D. M. Ward, Chairman,
P. F. Quiring, Vice-chairman,
Harvey Kruse,
John E. Wheeler,
Herman Regier.
‘Attest: J. H. Franzen, Secretary/
The statute under which the Committee was acting (Laws 1945, ch. 291, § 10) provided that any party dissatisfied with an order of the Committee, within thirty days of the date of the last publication of the order, could apply to the Committee for a rehearing with respect to any matter determined by the Committee. It further provided for a hearing upon such an application and for an appeal from an adverse ruling of the Committee to the district court, and specifically provided:
“No cause of action arising out of any plan or order of the committee shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided.”
And section 11 provided for an application to obtain a review by the district court, and outlined the procedure therefor. There was no application for a rehearing of the order above quoted, published on June 13 and June 20,1946. The result was that the order became final.
On March 14,1947, the Committee gave the following notice:
“Notice of Common School District Elections
“Take Notice:—
“Pursuant to Section 15, of Chapter 291, Session Laws of 1945 the Marion County School Reorganization Committee hereby designates a time and place of meeting, to wit: March 25, 1947, at 2 o’clock p.m., in the schoolhouse of the following Common School District, viz. No. 90, Ramona, Kansas, for the purpose of electing a school board consisting of Director, Clerk and Treasurer.
“This is an interim board to act until the annual meeting of Common School District No. 90, on April 11, 1947. There is a validating act in the legislature at this time.
“Legal voters of Common School District No. 95 lying W% of Sec. 5 and NW% and SW% Sec. 8, and N% and SW% Sec. 18, W/2 and N% S% Sec. 19, all in Twp. 17 — Range 4, and NE% Sec. 13, and E% Sec. 12, and E% E% Sec. 1, all in Twp. 17- — -Range 3 East, are eligible to vote at such election, as are those of No. 90. Dated March 14, 1947.”
The legislature of 1947 enacted a statute, spoken of as the “Curative Act” (Ch. 377, Laws 1947; 1947 Supp. 72-5629), effective March 29, 1947, the pertinent portions of which read:
“That where the county school organization committee of any county, . . . has attached territory of one or more school districts to an established school district, . . . and the order of the county committee . . . became final on or before March 1, 1947, such order . . . attaching territory to an established school district ... is hereby declared to be operative and effective and validated as of March 1, 1947, even though all preliminary steps necessary to' make such order operative and effective were not complied with: ...”
On April 22, 1947, this action was brought in the district court for a decree that the order of the Committee of May 16, 1946, as published June IS and 20, 1946, is void, and enjoining defendants from attempting to put it in force. Since there had been no attempt to have a rehearing before the Committee, or to take the matter into the district court by appeal, or an application for review, as authorized by the statute (Laws 1945, ch. 191, §§ 10 and 11), this action was a collateral attack upon the validity of the order. In fact it is the kind of an action the statute said could not be brought. Obviously, plaintiff cannot succeed in this action unless the order attacked is void, as distinct from being irregular or voidable. This is recognized by counsel for plaintiff. In this court they submit, as questions to be determined: Was there a final order made by the Committee prior to March 1, 1947, dissolving Common School District No. 95, on which the Curative Act (G. S. 1947 Supp. 72-5629) could operate? It will be observed from the record hereinbefore referred to that Common School District No. 95 was disorganized by the Committee on February 19, 1946. The only mistake in that order was the assigning of the territory of Common School District No. 95 to Rural High School Districts Nos. 1 and 2. We pass this, however, since it was not argued in the briefs that this constituted a disorganization of the district.
Common School District No. 95 was disorganized and its territory attached to other common-school districts by the order of the Committee of May 16, unless that order is vitiated by the fact that the secretary, or whoever wrote up the order, made an error by designating the common-school district as No. 98 when it should have been No. 95, and the correction of that error by the chairman of the Committee or by the secretary at his direction.
Counsel for appellant present the question of the authority of one member of the Committee to change the order as first written. They contend that the number of the district was a matter of substance and not of form and that any change in it should have been made by the Committee and not by one member of it only. Authorities are cited to the effect that any board, commission or committee should act as a body. That rule is recognized as being well established.
The only question in the case is whether there was a clerical error which could be corrected by the one who made it, or someone else in authority, without calling the Committee together to act upon it. While clerical errors have occurred in various instruments and in proceedings of courts, commissions or other administrative bodies in a great variety of circumstances, and have been corrected by various methods (see 11 C. J. 839 and authorities and cross-references set out in the annotation), and the term “clerical error” has been defined by the courts as it pertained to the particular situation under consideration, perhaps as good a general definition as any is found in 14 C. J. S. 1202, where it is said:
“Clerical error. An error committed in the performance of clerical work, no matter by whom committed; more specifically, a mistake in copying or writing; a mistake which naturally excludes any idea that its insertion was made in the exercise of any judgment or discretion, or in pursuance of any determination; an error made by a clerk in transcribing, or otherwise, which must be apparent on the face of the record, and capable of being corrected by reference to the record only. . . .”
This definition, insofar as it limits it to the record only, may be more narrow than the courts have used in some instances, but we think it applicable here.
The record before the Committee of February 19 not only used the correct number, “95,” of the Common School District in question, but it divided the district by a line fixed and measured throughout by section, township and range numbers of the lines within Common School District No. 95. The order of the Committee of May 16 used the same description of the line dividing the land, which could be only in Common School District No. 95. We were told in the argument, and it is not controverted, that District No. 98 lies in an entirely different part of the county, and in the order made on February 19 that district was disorganized and all of its territory attached to District No. 115. More than that, the order of the Committee made on May 16 was specifically for the purpose of attaching the territory described therein to common-school districts instead of to rural high-school districts. This again identified the particular area being acted upon. It made “no other changes in the original Final Order, dated February 19, 1946.” What the Committee was doing on May 16 was correcting one error made on February 19, which error was that the territory of Common School District No. 95 was assigned to rural high-school districts instead of to common-school districts. So it seems reasonably clear from the record that the Committee on May 16 was dealing only with the territory of Common School District No. 95 and could not have been dealing with the territory of Common School District No. 98. From this it seems clear that the secretary of the Committee, assuming he wrote up the order of May 16 and made the mistake in the number of the district, could have corrected his mistake without consulting anyone else, and certainly he could do it upon the advice or recommendation of the chairman of the Committee.
Able counsel have discussed the matter from various viewpoints and cited numerous authorities, some of which are not very close in point. No good purpose would be served in extending the discussion more fully. In passing the so-called “Curative Act” the legislature contemplated that there might be many irregularities in the proceedings of the Committee and provided none of them should be taken into account if the final order had been made prior to March 1,1947. This statute is quite sweeping in its terms and application. It has been held valid in State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677, and Rempel v. Kobs, 166 Kan. 38, 199 P. 2d 194.
We think the trial court correctly decided the case and that its decision should be affirmed. It is so ordered.
Thiele, Parker, Arn, JJ., concur in the result. | [
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The opinion of the court was delivered by
Price, J.:
This case involves an intersection collision in the city of Wichita and is an appeal from an order of the lower court sustaining a demurrer to plaintiff’s evidence in an action brought by him to recover for personal injuries and damage to his automobile.
The evidence adduced by plaintiff may be summarized as follows: Plaintiff testified that on January 28, 1948, at about 4:30 p. m., he was driving his Ford car west on Twenty-third St.; that when he approached Jackson St., a north-and-south street, he slowed down to about fifteen miles per hour, looked both to his right and to his left and seeing no other car approaching, started on across Jackson; that there was no other car in the intersection; that both Twenty-third St. and Jackson St. are the usual and ordinary width, both are paved and curbed and there was no stop sign on either street at the intersection; that both streets and the intersection were somewhat icy due to a combination of snow and ice and that when he got part way across the intersection his car was hit on its left side by the defendant’s car which was coming from the south. He further testified that he first saw the defendant’s car when it was about fifteen or twenty feet from him on his left; that as a result of the collision plaintiff’s car was knocked up over the curb and about three feet onto the parking and over a street sign, still headed west; that the front wheels of defendant’s car hit the curb turning it so that the back end was to the north; that immediately after the collision he talked with defendant and the latter said that his (defendant’s) wife, who was riding with defendant, told him farther down the street that he was driving too fast considering the condition of the streets and that he should slow down.
On cross-examination he testified that there was nothing in sight at the intersection; that he could see from fifty to seventy-five feet beyond the intersection to the south; that he didn’t see the defendant’s car until it was right on him and that he didn’t apply his brakes until his car was hit by that of the defendant’s.
One Griffith, who was riding with plaintiff, testified to substantially the same effect; that plaintiff drove into the intersection at about fifteen miles per hour and that as they approached and entered the intersection he looked both ways and saw no other car in the intersection; that he did not see any car to the south until defendant’s car was about twenty-five feet directly south of plaintiff’s and he also testified that immediately after the collision he heard defendant remark that his wife had told him to slow down— that he was driving too fast. On cross-examination this witness expressed the opinion that defendant’s car was traveling about fifty miles per hour; that he did not notice whether plaintiff looked to the south when he approached the intersection; that defendant was driving on the east side of Jackson and that he didn’t know whether plaintiff turned his car or made an effort to avoid the collision.
A member of the Wichita police force, who arrived on the scene a few minutes after the collision, testified as to certain measurements made by him and that there were no stop signs at the intersection. He described the position of the cars after the collision about as did the plaintiff. He examined the brakes on defendant’s car at the time and testified that the brake pedal went clear to the floor without any effort and while at the scene of the collision he arrested the defendant who was subsequently booked at the police station and released on bond. He identified plaintiff’s Exhibit 9 offered in evidence, the same being an accident report, the pertinent portion of which is as follows:
“Describe accident in detail: I was going north on Jackson at about 20 m. p. h. and the other car came from the east. I saw the car coming but could not stop on the ice. My car hit the other car right midway and pushed back my radiator and bent bumper.
“(Farming)
“Signature of Party making report Alfred H. Regier
“Address Whitewater, Kansas, Date Reptd 1-28-48 Hr 5:20 PM”
Plaintiff introduced further evidence showing that on March 4, 1948, the defendant entered his plea of guilty in the police court of the city of Wichita to each of two charges, namely, driving at a speed in disregard of the use or occupancy or condition of the street and operating a vehicle with defective brakes; that he paid a fine of five dollars on each charge, and further that in the police court action defendant was represented by counsel.
In the cross-examination of one of plaintiff’s witnesses an injury report, signed by plaintiff, was introduced which contained the following:
“Describe accident in detail I driving west on Twenty-Third, Jackson I looks north and didn’t see car from south (filed) Jan 28 P. M. 10 Date Reptd 1-28-48 Logan Samms Driver
Hr 5/15 P. M.”
Plaintiff also introduced evidence concerning his personal injuries and damage to his car but since that phase of the case is immaterial on this appeal the same was not abstracted and is passed over.
At the conclusion of plaintiff’s evidence the lower court sustained the defendant’s demurrer on the ground that plaintiff’s evidence clearly showed him to be guilty of contributory negligence as a matter of law so as to bar recovery and it is from that ruling this appeal was taken.
The sole question before us therefore is whether plaintiff’s evidence showed him to be guilty of contributory negligence as a matter of law so as to justify the court’s action in taking the case from the jury.
In support of the lower court’s ruling the defendant argues that plaintiff testified he didn’t see any car to the south although he could see seventy-five feet in that direction and that the natural conclusion to be drawn from such testimony is that he didn’t look in a careful and prudent manner for other traffic — otherwise he would have seen the car of the defendant; that since plaintiff’s evidence discloses that he never applied his brakes or took other means to avoid the collision his conduct falls below that standard to which he was bound to conform for his own protection, and he calls our attention to the statement of plaintiff contained in the accident report, siupra, which in substance stated that plaintiff looked north and didn’t see the car from the south. Defendant also argues that the provisions of G. S. 1947 Supp. 8-550, with reference to yielding of the right of way in an intersection, offer no protection to plaintiff for the reason that from the measurements taken it appeared that plaintiff’s car was only twelve feet into the intersection while that of the defendant was twenty-one feet into it at the point of impact, and concludes by arguing that the only conclusion to be drawn from plaintiff’s evidence is that the very fact of the collision itself proves plaintiff did not keep a proper lookout — otherwise he would have seen defendant’s car approaching from the south!
Plaintiff, on the other hand, contends that his evidence shows the defendant was guilty of negligence on account of his violation of public-safety statutes relating to speed on city streets and at intersections; that he (plaintiff), approaching from the right, had the right of way at the intersection in question; that he was not guilty of contributory negligence in assuming that the defendant and all others would obey public-safety regulations unless and until he had knowledge to the contrary, and further, that in ruling on defend ant’s demurrer the court was bound to regard all testimony favorable to plaintiff as true and to disregard such evidence as was unfavorable.
Counsel for both sides have cited numerous decisions dealing with negligence cases and it is conceded that they correctly state the rule as applied to the particular facts under consideration. Perhaps no two sets of facts in cases of this nature are exactly alike — each depends upon its own particular circumstances. In the case of Cruse v. Dole, 155 Kan. 292, 124 P. 2d 470, we find the following general rule laid down:
“Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm.
“When the facts relating to contributory negligence are such that men of reasonable minds might reach different conclusions, the question is for the trier of the fact, otherwise it is one of law.
“While the general rale is that the burden of establishing the plaintiff’s contributory negligence rests upon the defendant, if the plaintiff’s own evidence shows him guilty of negligence which precludes his recovery, the defendant may take advantage by demurrer.” (Syl. Iff 1, 2, 3.)
and in Bevell v. Bennett, 162 Kan. 345, 176 P. 2d 538, it was said:
“In testing evidence on demurrer courts consider all of the evidence as true, consider the evidence favorable to, and disregard that unfavorable to the party adducing it. They do not weigh any part of the evidence that is contradictory or any differences between portions thereof adduced on direct and cross-examination. When so considered, if there is any evidence which sustains a cause of action or defense, the demurrer must be overruled.” (Syl. If 1.)
Tested by the foregoing rules, did plaintiff’s evidence convict him of contributory negligence as a matter of law? We think not. It is true that there are some portions of the evidence from which an inference that he did not keep a proper lookout might be drawn but on the other hand he testified that he looked in both directions before entering the intersection and saw no car approaching. We believe that plaintiff’s evidence fell short of convicting him of contributory negligence as a matter of law and that it was amply sufficient to justify its submission to the jury under proper instructions of the court.
It therefore follows that the ruling of the lower court is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Harvey, C. J.:
The appeal in this case is from the judgment of the district court which approved and affirmed an order of the probate court appointing an administrator for the estate of Noel Erwin, deceased.
We are advised by counsel that on January 25, 1948, an automobile driven by Leon Richardson, seventeen years of age, and an automobile driven by Noel Erwin, nineteen years of age, collided on one of the county highways of Labette county, with the result that both of the young men were fatally injured.
On April 20, 1948, Clarence C. Richardson, administrator of the estate of Leon Richardson, deceased, filed in the probate court of Labette county his petition for the appointment of an administrator for the estate of Noel Erwin, deceased. In the petition he alleged that Noel Erwin, a resident of Labette county, died January 26, 1948, leaving as his sole heirs at law his father, Orda Erwin, and his mother, Juanita Erwin, and stating their address; that the deceased at the time of his death owned property in Labette county to the extent of at least $500; that the petitioner “has a claim and cause of action against the estate of Noel Erwin, deceased, for damages for the wrongful death of Leon Richardson, deceased, which was caused by the negligence of Noel Erwin, in the manner in which he operated an automobile January 25, 1948, on a public highway in Labette county, Kansas, about four miles south of Altamont, Kan. That the appointment of an administrator of the estate of Noel Erwin, deceased, is necessary for the conservation, collection and administration of the property belonging to Noel Erwin, deceased. That the appointment of an administrator of the estate of Noel Erwin, deceased, is further necessary in order that petitioner may present and exhibit said claim and cause of action and prosecute the same as provided by law.”
It was further alleged that Orda Erwin is the father of Noel Erwin and is a proper and suitable person to whom to grant letters of administration. The petition closed with an appropriate prayer for such appointment.
Orda Erwin filed in the probate court his written objections to the appointment of the administrator in which he alleged the petition for the appointment violates G. S. 1947 Supp. 59-2202 in that (a) it fails to state the interest of the petitioner and his right to apply to the court for the relief sought; and (6) it does not state facts in ordinary and concise language showing that the petitioner is entitled to the relief sought. It further alleged that the petitioner is not an “interested person” within the meaning of G. S. 1947 Supp. 59-2221 and therefore has no authority to force an administration of the estate of Noel Erwin. The prayer was that the petition for the appointment be denied.
After a hearing the probate court sustained the petition and appointed Orda Erwin as administrator of the estate of his son, Noel Erwin, and fixed his bond at $800. From that judgment Orda Erwin appealed to the district court, where there was a trial de novo. After hearing the evidence the court found that the order of the probate court appointing the administrator should be sustained and that Orda Erwin should be appointed as such administrator. The court, therefore, ordered, adjudged and decreed, “that the order of the probate court of Labette county, Kansas, appointing Orda Erwin administrator of the estate of Noel Erwin, deceased, be and the same is hereby approved and affirmed. That petitioner has a claim and an interest in the estate of Noel Erwin, deceaséd, that requires the appointment of an administrator to determine the respective rights of the parties and that Orda Erwin should be and he is hereby appointerd as administrator of the estate of Noel Erwin, deceased, and that upon the filing of his oath and upon the filing of his bond in the amount of $800, Letters of Administration issue,” and remanded the matter to the probate court for further proceedings. From this judgment and order Orda Erwin has appealed and contends the court erred in appointing any administrator and thereby forcing an administration in the estate of Noel Erwin, deceased, and erred in adjudging that Clarence E.' Richardson, administrator and petitioner, had a claim or interest in the estate of Noel Erwin, deceased.
Appellant cites and relies heavily upon G. S. 1947 Supp. 59-2202, which is one of the sections containing general provisions of probate procedure and in part reads:
“Every petition in a probate proceeding shall state: ... (4) the facts, in ordinary' and concise language, showing that the petitioner is entitled to the relief sought; . . .”
Upon this basis the appellant asked; “What did Noel Erwin do?” and other questions going to make up the alleged negligence and the facts pertaining thereto. When tested by this section of the statute we think the allegations of the petition were sufficient. Certainly, it would not have been proper to try out all the facts pertaining to the negligence of Noel Erwin in a petition for the appointment of an administrator of his estate. The specific statute applicable to the contents of a petition for administration is G. S. 1947 Supp. 59-2219. There is no contention that the petition did not conform fully to this section.
Appellant contends that the petitioner was not a “person interested in the estate” mentioned in G. S. 1947 Supp. 59-2221. The point is not well taken. That section does not define who may be a person interested in an estate. The petition filed in probate court clearly showed that the petitioner was one who had a claim against the estate which he desired to file and prosecute. We think that disclosed ample interest in the estate to justify the petitioner in filing the petition.
Appellant criticises the evidence offered by the petitioner in the district court. The petitioner testified that he had a claim against the estate of Noel Erwin, deceased; that it was his intention to prosecute that claim through the courts, and that he was asking for the appointment of an administrator of the estate of Noel Erwin, deceased, in order that he might present the claim and prosecute it. We think that, together with other matters disclosed by the record, furnished ample grounds for the decision of the trial court.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is a habeas corpus proceding by an inmate of our state penitentiary. In his verified petition he alleged that he was being held by respondent under commitment issued from the district court of Marshall county authorizing his imprisonment for a term of not less than ten nor more than twenty-one years on one count and for not less than two and one-half nor more than ten and one-half years on another count, the sentences to run consecutively, and that such sentences are void and without lawful force for the reasons, that he was denied the right to have a jury trial; denied the right to have compulsory process to obtain witnesses in his behalf or to cross-examine the complaining witness; that his counsel made no attempt to obtain witnesses in his favor; that he had had no preliminary examination, and that the court was incomplete when the sentence was imposed because there were no witnesses in court to testify against him, and that he was convicted upon hearsay evidence as told by the county attorney; that counsel appointed to represent him about thirty minutes before he was called upon to plead were not acquainted with him, nor he with them, and that they were not acquainted with the facts in the case at the time of the appointment; that they told him that he had no grounds to fight the case and made no attempt other than to plead him guilty.
The response filed sets up a complete record of the proceedings in the court and includes the affidavit of the county attorney and of the attorneys appointed by the court to represent the accused. In determining the matter we shall consider the allegations of fact in petitioner’s verified petition as his testimony, and also consider as evidence the affidavits filed by respondent, as well as the records of the court proceedings. Briefly stated, the record disclosed that early in the evening of July 19, 1943, a high-school girl, going to her home and when about two blocks from her home, was attacked by a man who jumped from behind a tree or some bushes, grabbed her and pulled her into a vacant lot and attempted to have sexual intercourse with her, but she was able to elude him and get to her home; that later the same evening, about ten o’clock, as another young woman was going to her home from a picture show, a man grabbed her and pulled her into a vacant lot, and by threatening her with a long-bladed knife at her throat, compelled her to submit to his desires to a completed act of sexual intercourse. Later the knife was found near the scene. Defendant was, soon arrested and taken to jail, where each of the women positively identified him as the man who attacked her. On July 20 the county attorney filed a complaint, upon which a warrant was issued, charging the defendent with two offenses, and he was taken before the judge of the county court, sitting as a magistrate. There the warrant was read to him and he was fully advised of his rights in the premises, and he waived a preliminary examination. The magistrate made a finding that the offenses charged had been committed, that the defendant was probably guilty of the offenses, and fixed his bond at the sum of $2,500 for his appearance in district court, which bond he did not give. The next day the defendant told the sheriff that he had been drinking the night of the 19th of July and that he didn’t remember all that took place. A few days later he told the sheriff that he wanted to go before the judge of the court and receive his sentence. An information, proper in form, was duly filed in the district court and on July 26, 1943, he was brought into court for arraignment. The court reporter made a record of all that transpired in the court. This was transcribed and filed among the papers in the case. This record discloses that the court inquired of him if he had an attorney, if he had money to employ one, and if he had counseled any attorney. He gave negative answers to each of the questions. Whereupon the court appointed two capable, reputable lawyers of the bar to represent him and gave them such time as they would need for consultation with him. Both of the attorneys conferred with the defendant in a private room. Defendant told them of his whereabouts that evening and gave them the names of two persons of whom they might make inquiry. One of the attorneys left the conference and made the inquiry and procured no information of value. They explained to him that he had a right to a jury trial and that they would represent him in the trial if he desired one. They talked with him about the two counts in the information and what the sentences would be if he was convicted on a trial, or if he entered a plea of guilty, and told him if sentences were pronounced upon each of the- offenses they might run concurrently or consecutively. The defendant and his attorneys knew that the evidence against him was strong. They talked of endeavoring to get a plea of guilty to one count only and have the other one dismissed, or if not, to get a recommendation from the county attorney that the sentences should run concurrently. His attorneys attempted to carry out those ideas and conferred with the county attorney about them, without success. Defendant and his attorneys decided it was best for him to plead guilty and to take up the matter of the sentences running concurrently with the court at the time of the plea. Later in the day the defendant and his attorneys appeared in court, the county attorney representing the state. Both parties announced they were ready to proceed. The first count of the information was read to defendant and he was asked how he would plead, and he answered, “Guilty.” The second count of the information was then read to him and he was asked how he desired to plead, and he answered, “Guilty.” Whereupon his attorneys pleaded with the court to make the sentences run concurrently. The matter of sentence was postponed until the next day and the parties appeared in court as before. Whereupon the court sentenced defendant under each count separately, the sentences to run consecutively.
The result is that the procedings in the trial court were entirely regular and legal. None of the grounds relied upon by the petitioner for his discharge upon a writ of habeas corpus has any merit.
The writ prayed for is denied.
Arn, J., not participating. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of violating an ordinance of the city of Emporia, which reads as follows:
“Every person, partnership or corporation engaging in the business of selling goods, wares or merchandise known as or advertised to be goods, wares or merchandise bought at fire sales or auction sales, or damaged goods or bankrupt stock, or advertised in any way for the purpose of inducing customers to believe that they will be sold for a price not exceeding the actual cost of production, shall, before entering upon such business, pay an occupation tax of one hundred dollars, for each six months or part thereof.”
The case was tried on an agreed statement of facts, which reads as follows:
“(1) That the said defendant, David Endelman, is temporarily located in the city of Emporia for the purpose of transacting business as a merchant; that his home is in Dayton, Ohio.
“ (2) That on the 24th day of September, 1906, this defendant, David Endelman, offered for sale in the city of Emporia a stock of merchandise which he had pre viously advertised as fire-sale stock and damaged stock, and advertised that said goods would be sold at retail regardless of cost, and that sale would begin on the 26th day of September, 1906, and would end on the 29th day of September, 1906.
“ (3) That prior to offering said goods for sale this defendant, David Endelman, went to the mayor of said city and offered to pay a license tax of five dollars per day for the four days that he wished to transact business in said- city and that said offer was refused, said mayor demanding of the said defendant, Endelman, one hundred dollars for the privilege of selling said goods in accordance with the terms of section 5 of an ordinance of said city entitled .‘An ordinance levying a license tax upon certain occupations therein named carried on in the city of Emporia and prescribing penalties for its violation,’ approved October 7, 1891; that said defendant, Endelman, stated to the mayor that he intended to transact business as a merchant in the city of Emporia for only four days; and the said defendant, Endelman, did intend to remain in the city for the period of only four days; that this defendant did refuse to pay said license tax of one hundred dollars and never has paid the same, but he did, and his employees, to wit, C. H. Moon and F. Becker, defendants herein, did sell said goods without either of them having paid said license tax.
“ (4) That on the 20th day of September, 1906, the said city enacted a certain ordinance, which hereby is made a part of this stipulation, said ordinance being entitled ‘An ordinance levying a license tax upon certain occupations therein named when carried on by persons, partnerships or corporations merely temporarily resident in the city of Emporia and prescribing penalties for its violation.’ Said ordinance is made a, part of this stipulation by reference.
“(5) That said Endelman and C. H. Moon and F. Becker were prosecuted under said ordinance approved in 1891, and referred to in the third statement of fact herein, and under said ordinance only.
“(6) That as a matter of fact said Endelman did sell goods for the period of only four days, and thereupon left the city.
“(7) That the value of said goods carried by the said Endelman was of about the sum of fifteen hundred dollars, and that said defendant’s expenses in getting said goods here ready for sale amounted to about two hundred dollars.
“(8) That Mr. Endelman would testify if on the stand that the net profits of his said business in the city of Emporia amounted to about ten dollars per day.
“(9) That said Endelman went voluntarily to the county clerk of Lyon county, Kansas, and offered and listed his property for taxation.”
Section 1 of the ordinance of 1906 referred to in the fourth paragraph of the agreed statement reads as follows:
“Every person, partnership or corporation who are merely temporarily resident in the city of Emporia, engaging in the business of selling goods, wares or merchandise, known as or advertised to be goods, wares or merchandise bought at fire sales or auction sales or damaged stock or bankrupt stock,- or advertised in any way for the purpose of inducing customers to believe that they will be sold at a price not exceeding their actual cost of production, and where such business is not permanently located in the city of Em-poria, or who are only temporarily located in the city of Emporia, in addition to the occupation tax of one hundred dollars for each six months or part thereof prescribed by section 5 of a certain ordinance of said city entitled ‘An ordinance levying a license tax upon certain occupations therein named carried on in the city of Emporia and prescribing penalties for its violation/ approved October 7, 1891, shall pay an occupation tax of twenty-five dollars per day; twenty-five dollars to be paid before commencing business and twenty-five dollars per day before ten o’clock on each day after the first day that such business shall be continued.”
It is claimed the second ordinance repeals the first. Manifestly this is not true. The first ordinance prescribes an occupation tax of $100 for six months, or any part thereof, upon all persons engaged in the business described. The second ordinance adds $25 per day for those who are transients. By the very terms of the second ordinance a purpose not to supersede the first is expressed. The defendant not having been prosecuted under the second ordinance, the court has no authority to investigate its validity.
It is claimed the ordinance does not fix a tax upon an occupation, but upon a method of advertising. The occupation licensed in this case is not known by a fixed and settled name. Therefore it was necessary to de-describe it by reference to the character of merchandise dealt in. The same difficulty arose with reference to the merchandise itself. Therefore the ordinance identifies it by the way it is known and by the way it is brought to the attention of the public. The tax is laid upon persons conducting the business of selling such goods.
It is further urged that the ordinance discriminates against merchants who advertise their goods as fire-sale, auction-sale, damaged or bankrupt stocks and in favor of merchants selling the same goods without such advertisement. It is well known that there is a distinct business of the character described in the ordinance, just as there is a well-defined occupation of keeping a “pawn-shop” or “second-hand store.” More often than otherwise an essential feature of the business is the advertising of superior goods procured at a bargain to be sold at a bargain when the goods are in fact of a cheap and inferior quality and are to be sold at as much or more than they are worth. There are other characteristics of the business which place it in a class by itself, both as a subject of regulation and as a source of revenue, and since the tax falls equally upon all who engage in it the ordinance is not discriminatqry.
Finally it is said the ordinance is unreasonable, unjust, prohibitive and in restraint of trade. The principles of law governing an inquiry into the reasonableness of ordinances of this kind have been declared so many times that it is not necessary to rehearse them here. Some of them were applied in the case of Lebanon v. Zanditon, ante, p. 273.
The agreed facts showing the net result of the defendant’s venture on this single occasion are not sufficient to prove the ordinance unreasonable. There is no evidence relating to the value of the privileges conferred upon the defendant, and there is no showing as to the necessities of the city of Emporia. The city authorities are presumed to have acted wisely and justly, and this court has nothing before it upon which to declare that they have not done so. (In re Chipchase, Petitioner, 56 Kan. 357, 43 Pac. 264.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J. :
Edward Dore and his wife, Ellen Dore, recovered a judgment in the court of common pleas of Wyandotte county against the city of Kansas City, Kan., for injuries resulting to them by the death of their minor son, Edward Dore. It was charged that the death was occasioned by the city in negligently maintaining a dangerously deep pond, attractive to boys, adjacent to one of the thoroughfares in the city, and that while playing therein Edward Dore was drowned.
The plaintiff in error had one year after the rendition of the final judgment to commence proceedings in this court to reverse, vacate or modify the judgment under section 5042 of the General Statutes of 1^01. On March 15, 1905, chapter 321 of the Laws of 1905 became effective. This chapter amended and repealed section 5042 of the General Statutes of 1901 by limiting the time within which an appeal could be taken to reverse, vacate or modify a money judgment against a municipal corporation to thirty days from the settlement of the case-made or ninety days from the entry of the judgment. The final judgment was rendered December 13, 1904. The case-made was settled February 3, 1905, and filed in this court December 9, 1905.
The defendants in error challenge the jurisdiction of this court to consider the merits of the controversy for the reason .that the case-made was not filed within the time limited by chapter 321 of the Laws of 1905. The right to an appeal is neither a vested nor a .constitutional right. It is purely statutory,, and may be limited by the legislature to any class of cases or in any manner, or may be entirely withdrawn. -The repeal of section 5042 left the plaintiff in error without any right of appeal except that provided in the amendment. This question was before this court in the case of Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114, where it was said:
“A party who has been defeated ip a civil action in. the district court has no vested right to an appeal or to the prosecution of proceedings in error in the supreme court to review the rulings or judgment of the district court before he has filed his appeal or proceedings in the supreme court; and an act of the legislature taking away the privilege of appeal or the permission to prosecute proceedings in error before the appeal or petition in error is filed is valid and constitutional.” (Syllabus.)
This principle is amply sustained by the authorities. (Lake Erie, etc., R. Co. v. Watkins, 157 Ind. 600, 62 N. E. 443, Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422; Cooley’s Const. Lim., 5th ed., *384.)
It is contended by the plaintiff in error that this proceeding is not affected by the repeal of section 5042, because it was a proceeding that'had been commenced and was pending when the repealing act went into effect, .within the meaning of section 7342 of the General Statutes of 1901, which provides:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statutej so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
With this we do not agree. A proceeding in error is not commenced in this court until a petition in error, to which is attached a case-made or a transcript of the record, and a precipe for a summons are filed with the clerk of this court. The preparation of a case-made for this court is no more the commencement of an appeal herein than the preparation of a petition is the commencement of an action in the district court. In Toof v. Cragun, 53 Kan. 139, 35 Pac. 1103, it was said:
“The appellate jurisdiction of this court is subject to the regulation of the legislature, and unless a party brings himself within the requirements of the statute prescribing time and manner of removing a case to this court he is not entitled to a review.” (Syllabus.)
Under the statute in force when the appeal was filed in this court we cannot take jurisdiction and hear this case on its merits. The motion to dismiss is therefore allowed. | [
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The opinion of the court was delivered by
Greene, J.:
James Paxton was the occupant of the ' northeast quarter of section 26, township 30, range 1 east, in Sumner county, Kansas. The right of way of the Atchison, Topeka & Santa Fe Railway Company, which runs in a northeasterly direction over this land, is fenced. The Paxton residence is on the southeast corner of the farm, and across the right of way is a pasture. Between the residence and this pasture a private crossing and gates are maintained by. the railroad company for the accommodation of the occupants of the farm. The fastening to the gate on the west side opening from the right of way into the pasture became and remained for a long time so out of repair that the shaking of the gate by the wind or the rubbing of stock against it would sometimes cause the fastening to come loose and the gate would then open. This condition was known to exist by both Paxton and the railway company, and both knew that it had previously been opened in that manner. On July 26, 1903, Paxton turned a mule into the pasture, fastening the gate with the fastening then upon it. On the following night the gate came open, and this mule wandered upon the railroad track and was killed by a passing train. This action was brought to recover the value of the mule. The verdict and judgment were in favor of the plaintiff, and the defendant seeks to reverse the judgment rendered.
Its first contention is that there was no evidence that the mule was killed in Sumner county, the county in which the action was brought. The petition stated that the mule was killed on the northeast quarter of section 26, township 30, range 1 east, in Sumner county. The plaintiff testified that the farm upon which the mule was killed was a mile and a half north of Belle Plaine. The district courts take judicial notice of the boundaries of the counties within their districts, and the location of incorporated towns and cities within such counties. Knowing these facts, the trial court knew that Belle Plaine was in Sumner county, and also that a point one and one-half miles north of Belle Plaine was also in Sumner county. (K. C. Ft. S. & G. Rld. Co. v. Burge, 40 Kan. 736, 21 Pac. 589; Gunning v. The People, 189 Ill. 165, 59 N. E. 494, 82 Am. St. Rep. 433, and note.)
It is also contended that it was not shown that the company was guilty of any negligence, its contention being that while it was fairly established that the fastening of the gate was defective, and that the railway company’s men had knowledge of such condition and knew that this gate had on other occasions come open, the fastening was not shown to be so defective that it would not hold the gate temporarily, and it required the action of the wind or some other agency to cause it to open. A fence that is only apparently good or that will only temporarily prevent animals from going on the right of way will not excuse a railway company from liability to the owner of animals which pass over or through such fence and upon the right of way and are killed or injured by a passing train. Section 5859 of the General Statutes of 1901 provides:
“Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not.”
The only way for a railway company to avoid this liability is by complying with the provisions of section 5863 of the General Statutes of 1901, which reads:
“This act shall not apply to any railway company or corporation, or the assignee or lessee thereof, whose • road is enclosed with a good and lawful fence to prevent such animal from being on such road.”
In the present case the gate was a part of the railway company’s fence which enclosed its road, and was erected and maintained by it as a part of such fence. If, therefore, by reason of the known defect in it the fastening of this gate would not hold the gate shut, the fence of which it was .a part was not a good and lawful fence and did not serve the purpose of preventing stock from passing upon the right of way and track.
It is urged that the plaintiff cannot recover in this action because he was guilty of contributory negligence in turning his mule into the pasture knowing that the fastening of the gate was defective. It is quite evident that the legislature intended, in the enactment of the statute referred to, to eliminate entirely the element of contributory negligence from actions brought by the owners of stock against railway corporations to recover for loss or injury thereto by engines or cars upon an unfenced right of way. It was said in Hopkins, Warden, v. K. P. Rly. Co., 18 Kan. 462, that “where the road is unfenced at a place where it can' and ought to be fenced, and stock there gets upon the track through no wanton or wilful act of the owners, or persons in charge, and are injured by passing trains, then the law applies,' and obviates the necessity of all inquiry into the mere negligence of the parties concerned, whether owners, persons in charge of the stock, or managers of the railroad-trains.” (Page 464.)
This also answers the contention of defendant that there was error in refusing to submit to the jury its fourteen special interrogatories, as well as its claim of error in giving certain instructions and refusing to give others. These questions were asked for the purpose of eliciting from the jury answers tending to show that the plaintiff knew, when he turned his mule in the pasture, that the fastening on the gate was so defective that it would readily yield to the jarring of the gate by the wind or the rubbing of stock, and that he was therefore guilty of contributory negligence and should not recover. The instructions refused attempted to put into the case the question of plaintiff’s contributory negligence, and the objections to those given are that they omitted the element of contributory negligence. The court did not err in either instance. The mere negligence of the owner in caring for his stock is not a defense in an action to recover from a railway corporation the value of stock killed in the operation of the road where the track is unfenced.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In this case the state, on the relation of the attorney-general, seeks to oust the defendant from the corporate franchise of charging and collecting from passengers on railroad-trains compensation for the use of seats and berths in its cars between stations in Kansas. The cause is submitted upon a demurrer to the defendant’s answer, including an amendment thereto. The principal questions involved are identical with those just decided in the case of The State v. Telegraph Co., ante, p. 609, the two cases being largely briefed together. So far as the matters determined are the same the opinion in the telegraph company case may stand as the opinion in this one.
In a separate brief filed in this case the method of computing the amount of the charter fee to be paid by the defendant is made the subject of special animadversion because the defendant’s capital of $74,000,-000 is largely employed in the manufacture of cars of various kinds in the state of Illinois and in carrying on the sleeping-car business in all the other states of the Union, in Canada, and in Europe, the contention being that the law discriminates in favor of domestic corporations. The argument is even pressedto the point of questioning the good faith of the legislature — as if the court could deal with motive in the investigation of a question of power.
The size of the defendant’s capital and the wide ramification of its operations have no effect upon the state’s power to exclude it from intrastate business. It is simply a foreign corporation. The power to exclude includes the power to impose any conditions however onerous short of exclusion the legislature may choose, and no one can gainsay its action.
There could have been no constitutional objection to its conduct if the state had preferred domestic corporations and had allowed them to exercise corporate franchises upon the payment of charter fees com puted upon the amount of capital employed within the state, while foreign corporations were compelled to pay upon their whole capital, wherever used. But the state did place foreign corporations upon identically the same basis as corporations of its own creation with respect to the payment of charter fees. Both kinds, foreign and domestic, pay the same fixed percentage upon the amount of their authorized capital stock, and the supreme court of the United States has many times declared that such a method of fixing the charges for admission to the state is legal. The property of a Kansas mining company may all be located in Alaska or in South America, as the manufacturing plant of the defendant is located in Illinois and its sleeping-car business is scattered throughout the world. The mining company must pay according to the amount of its capital stock.
The fact that other states may impose like conditions, so that the defendant may be obliged to pay on forty-five times $74,000,000 to obtain permission to do local business in all the states, is irrelevant. The state of Kansas is not obliged to yield its right to. impose conditions upon the local exercise of foreign corporate franchises because other states have the same right. If so, each state in the Union must make the same surrender, and the sovereign powers of a community of states may be circumvented or defied by a creature of one of them which has grown large enough to spread its business over all.
So long as a state confines its- regulations of a corporation engaged in interstate commerce to domestic commerce only it does not encounter the constitutional power of congress over interstate commerce; and if each state is equally circumspect the conduct of the defendant’s domestic business in all the states may be conditioned as provided in the Bush act without affecting interstate commerce in any degree.
The state of Kansas might have adopted a different rule for computing charter fees. It might have made the amount of capital employed in the state or the amount of property located in the state the basis. The defendant might have been satisfied with one of these bases if the rate had been low enough. But the choice of bases and rates lay with the legislature, and its judgment binds. It was levying no tax. , It was fixing a condition precedent, and principles governing the framing of ordinary revenue laws have no application.
The state went further in its adoption of the principles of equality and uniformity. By section 1339 of Dassler’s Statutes of 1905, quoted in the opinion in The State v. Telegraph Co., ante, p. 609, foreign corporations admitted to do business within the state are made subject to the same provisions, judicial control, restrictions and penalties as domestic corporations— excepting only the necessary minor differences covered by the Bush act itself. Provisions of this kind are construed to exempt foreign corporations paying license fees and receiving permission to engage in business within the state from any greater duties, burdens, liabilities or restrictions than those thereafter imposed upon domestic corporations. (American Smelting Co. v. Colorado, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. —.) So that, having the power at the outset to prefer its own corporations by its laws, the legislature renounced that power in favor of foreign corporations which comply with the Bush act.
By the payment of its charter fee of $14,800 the defendant would, under the Bush act and the order of the charter board, receive authority to exercise its franchises within the state on the same terms and conditions" as domestic corporations for twenty years. Whether these terms are oppressive or not the defendant has, no right to call upon this court to decide. To determine the question it would be necessary to make an investigation of what is for the best interest of the people of Kansas, and that subject was committed to the legislature and not to this court.
The amendment to the defendant’s answer states, that it has contracted with the railway companies operating interstate railroads in the state of Kansas to furnish them a sufficient number of Pullman cars to meet the demands of the traveling public for that kind of service. Ownership of the cars remains in the defendant. It furnishes facilities for the accommodation of travelers and furnishes conductors and porters, but the cars themselves are used in making up passenger-trains, and are under the complete disposition and control of the railway companies, the defendant reserving the right to charge and collect from passengers holding proper railway tickets compensation for the accommodation furnished them. It is. said that the railway companies as common carriers, are bound by the laws of Kansas not to grant special privileges or preferences in relation to their service of the public. In supplying the needs and attending to the wants and comforts of the railway companies’' passengers the defendant acts as the agent of such companies, agrees to furnish without discrimination equal facilities to all passengers who apply for them, and agrees not to withhold such privileges from any properly demeanored person provided with the requisite kind of transportation. The amendment also contains the following statement:
“That under and by the terms of their several contracts said Pullman Company cannot renounce or withdraw from the furnishing of such facilities from those desiring to employ and use the same wholly within the state of Kansas; that the above several contracts; between said railroad companies and the Pullman Company were all made long prior to the enactment of the law, the provisions of which form “the basis, of the present action and proceeding; that such contracts are legal, valid and proper, and in harmony and compliance with the laws of the state of Kansas then existing or since enacted with respect to the duties and obligations of said Pullman Company and the several railroad companies to the public.
“And said defendant specially pleads that the relief sought in this action, if granted and the defendant company ousted and excluded from furnishing sleeping-car facilities to the public and all the public, without discrimination and at all times, would be in violation of the constitution of the United States, in that it would impair the obligation of said existing contracts between said Pullman Company and said railroad companies; and said defendant especially invokes the protection of that provision of the federal constitution.”
The amendment to the answer is defective in that its statement of facts does not go far enough to show an exoneration of the defendant from a public-welfare law, even upon the theory of the law for which it contends.
The assertion that the defendant cannot under the terms of its contracts withdraw from furnishing the required facilities to passengers traveling from point to point within the state is not an allegation of fact, but the defendant’s conclusion of law respecting the binding effect of its agreements. It states what the defendant conceives to be the legal principle governing its relations with the railroad companies, and not the facts from which the deduction is made.
The pleading withholds from the court all information respecting the duration of the contracts. Unless they are for a definite period, and are not terminable at the defendant’s will, the legal conclusion stated does not follow. If they are for ninety-nine years, or in perpetuity, the question would be presented if pri-vaté corporations performing services to the public may secure everlasting immunity from police regulation by an agreement between themselves.
The defendant is undertaking to produce new matter which will destroy the case made by the petition. It proposes to show that an otherwise proper exercise of one of the state’s most important powers should be stayed for a special and exceptional reason. Conceding that the police power of the state can be suspended by private agreement, any contract proffered as having that effect must be construed most strongly against the corporation and in favor of the state; and when such a contract is spread upon a pleading nothing can be left to inference or taken by implication.
The court also deems the answer to be insufficient in that it proceeds upon an erroneous theory respecting the law. The obligation of a contract is its engaging quality — the attribute of binding force upon the parties to it, and in this instance neither the Bush law nor a judgment of this court enforcing it can have any impairing effect upon the obligation of the contracts between the defendant and the railroad companies which it has engaged to serve. Every right and every remedy each party had against the other when the contracts were made remains in full force and effect. Not a term or a condition is changed or dispensed with or its efficacy weakened. The railroad companies may still call upon the defendant to furnish cars and equipment and attendants for its Pullman passengers or to respond in damages. ' The defendant may demand that its cars be hauled by the railroad companies, and may vindicate as against such companies every right secured to it by its contracts, including the right to demand and receive from the occupants of its cars compensation for services rendered. The value of the contracts to the defendant may be greatly diminished, but the obligation of the parties to each other is not affected in the slightest degree.
“Nor does every statute which affects the value of a contract impair its obligation. It is one of the contingencies to which parties look now in making a large class of contracts, that they may be affected in many ways by state and national legislation. For such legislation demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to. the other party, there is no restraint in the federal constitution, so long as the obligation of performance remains in full force.” (Curtis v. Whitney, 80 U. S. 68, 70, 20 L. Ed. 513.)
This court had occasion to interpret the Bush act with reference to its effect upon contracts in the case of The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 1041. It was held that the purpose of the law was the regulation of foreign corporations by the state, and that contracts are not invalidated or the binding force of obligations impaired even although created by a foreign corporation after the Bush act took effect and before compliance with its requirements. It was said that the enforcement of the law is a matter for the state alone. Contracts made by an unlicensed corporation are not unlawful, and neither party to a contract with süch a corporation on one side can secure release by pleading failure to obey the statute. Much less can it be said that the law weakens the obligatory quality of contracts made prior to 1898.
The case of Bedford v. Eastern Building and Loan Assn., 181 U. S. 227, 21 Sup. Ct. 597, 45 L. Ed. 834, cited by the defendant, is in harmony with this view. A mortgagor attempted to resist the enforcement of his obligation because the mortgagee had not complied with conditions imposed, after the contract had been made, upon its right to do business in the state. The right of the state to impose the conditions was recognized, and the right of the corporation to retire from business in the state because the conditions were too onerous to be met was recognized, but the statute did not discharge the obligation of the mortgagor to pay his debt. The decision is a precedent for nothing more.
There is a closer analogy between the present case and that of Kehrer v. Stewart, 197 U. S. 60, 70, 25 Sup. Ct. 403, 49 L. Ed. 663. There an agent of a foreign corporation was employed at a salary of twenty-five dollars per week. A law of the state where the service was to be performed imposed upon him a license tax of $200 for conducting the business of his principal. He claimed it violated the obliga tion of his contract, but the court said his contract remained entirely undisturbed.
In the case of Chicago Life Ins. Co. v. Needles, 113 U. S. 574, 5 Sup. Ct. 681, 28 L. Ed. 1084, a statute was passed subsequent to the formation of an insurance corporation and its compliance with the law, imposing new conditions upon the transaction of its business and providing that if its financial affairs should be discovered to be in a certain state it should be wound up and dissolved. It was held the law did not violate the obligation of the company’s contracts with either its creditors or its policy-holders. The opinion reads:
“The contracts of policy-holders and creditors are not annihilated by such a judgment as was rendered below; for, to the extent that the company has any property or assets, their interests can be protected, and are protected by that judgment. The action of the state may or may not have affected the intrinsic value of the company’s policies; that would depend somewhat on the manner in which its affairs have been conducted, upon the amount of profits it has realized from business, and upon its actual condition when this suit was instituted.” (Page 584.)
No element of the defendant’s contracts with railroad companies being changed or abrogated, and no •remedy for enforcing the rights of the parties having been obstructed, epfeebled or withdrawn, the defendant is simply in the situation of having made contracts to supply,- equip and conduct its cars without guarding against the contingency that a charter fee might be exacted of it for the privilege of fulfilling them so far as business domestic to the state of Kansas is concerned.
The laws of Kansas impose no duty upon the defendant to continue to furnish Pullman accommodations to passengers from point to point within the state. It is entirely free to renounce such business, if it so desire, rather than comply with the Bush act. If it has deprived itself of that privilege by contract with the railroad companies transporting its cars the result cannot be attributed to any wrongful action on the part of the state. If the defendant must now either pay its charter fee or respond in damages to the railroad companies its predicament is the result of its own voluntary conduct.
As shown by the authorities cited in The State v. Telegraph Co., ante, p. 609, the forbearance of the state to impose restrictions upon the conduct of the defendant’s business within the state at an earlier' date did not atrophy its power. The state was not obliged to anticipate that the defendant might make contracts in domination of its authority and hasten action to prevent the corporation from emancipating itself. It was required to consult nothing but the best interests of its people, and whenever occasion arose it could draw upon its constitutionally reserved fund of power to the extent necessary to promote their welfare.
The defendant itself was charged with full knowledge of the law and of the fact that the tenure of its franchises was at the sufferance of the state, and no individual or corporation could by making a contract with the defendant secure for it a supremacy over the laws which it could not by itself attain. Every person contracting with the defendant did so charged with the knowledge that the state could and might rightfully change its policy of comity at any time. If it did so the defendant’s ability to perform might be impaired or destroyed, and its obligation to perform might have to be satisfied with damages. The state having violated no contract with the defendant or the parties to which the defendant has engaged itself, and having .preserved in full force the obligation of the contracting parties to each other, neither of them can complain of the enactment of the Bush law. (See Henderson Bridge Co. v. Henderson City, 173 U. S. 592, 619, 19 Sup. Ct. 553, 43 L. Ed. 823.)
The defendant’s case is not improved by pleading that it has undertaken to serve the railway companies’ passenger according to the anti-discrimination law of Kansas. The obligation to do this is no different from the obligation to perform any other act according to a righteous standard'. It will not be impaired when the obligation of other contracts would not be impaired. It will be as binding upon the defendant after a judgment of ouster as before.
It may be observed that the law pleaded was enacted at the legislative session of 1905, six years after the Bush act was passed and many more years after the defendant claims it made its contracts with the railway companies; and it may be surmised that if the state were to make an effort to apply the law to the interstate business of the defendant the claim would be made quite promptly that such business was under the exclusive control of congress. The answer, however, being insufficient for the reasons already stated, these anomalies may be overlooked.
The question whether the defendant is a common carrier is of no importance. The declaration that it is such in the act of congress of June 29, 1906, (34 U. S. Stat. at L. p. 584) fixes its status only so far as it falls under federal control. If by the laws of this state it is a common carrier it is not bound to engage ‘in intrastate business in opposition to the Bush act. Further than this the matter need not be discussed. Neither the statute nor the relief sought in this action has any reference to the defendant’s interstate business.
The demurrer to the answer as amended is sustained, except as to the part denying the operation of dining-cars. By submission of the attorney-general, dining-car service is _ eliminated from the case. The defendant having submitted the cause upon its answer, judgment is rendered in favor of the state for the remainder of the relief prayed for, and for costs. | [
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The opinion of the court was delivered by
Burch, J.:
The suit in the distriejwcourt was brought to obtain a personal judgment on promissory note to the plaintiff signed by E. P. Diehl and Emma Diehl, and to foreclose a real-estate mortgage given by the makers of the note to secure its payment. The Diehls are husband and wife, and the mortgaged land belongs to Mrs. Diehl. Mrs. Diehl answered that she was only a surety for her husband; that the time for the payment of her husband’s obligation had been extended by a contract in writing concluded and indorsed on the note without her knowledge or consent, and that she and her land were released from further liability. After a trial the court found in favor of Mrs. Diehl, discharged her personally, rendered judgment in her favor for costs, but held her land to be bound and ordered a foreclosure of the mortgage. Of the adverse portion of this judgment she complains.
When Mrs. Diehl undertook to become surety for her husband she engaged to protect a certain specific obligation. She advanced two classes of security — her personal liability, enforceable against her assets generally, and the real estate described in the mortgage. The contract which she undertook to secure has been altered without her knowledge or consent. An altogether diiferent one has been substituted, which she has not approved. Why her land should be appropriated for something to which she has never pledged it is not apparent, it being conceded that the other security which she gave is released.
The question involved has already been decided by this court in the case of Hubbard v. Ogden, 22 Kan. 363. The syllabus of that case reads:
“An agreement upon sufficient consideration, made between the creditor and principal debtor, extending, the time fbr the payment of the debt, without the knowledge or consent of the surety, releases the surety; and it makes no difference whether the contract is express or implied.
“Where a wife mortgages her separate real estate to secure the payment of her husband’s debt, and after the debt becomes due the husband pays and the creditor receives interest in advance on the debt for another period of six months, and this is done without the knowledge or consent of the wife, held, that said separate property of the wife is released as security for the payment of said debt.”
The fact that besides her separate property Mrs. Diehl also put up her personal liability as security does not change the rule. Whatever discharges one kind of security certainly discharges the other. The decision in Hubbard v. Ogden is in full accord with the law as declared elsewhere in the United States. The subject is treated fully in Ackley’s edition of Brandt on Suretyship (3d ed., §§ 43-45), where the cases are collated.
In the year 1891 the chancery division of the English supreme court of judicature discussed the proposition presented as follows:
“The plaintiff’s counsel, however, contend that, although Miss Buckenham’s covenant is gone, by reason of time having been given to the principal 'debtor, the security which she gave remains. With all their learn ing and research, the plaintiff’s counsel were not able to produce any authority for this proposition. The reason may be that no one had ever previously thought of raising such a contention. For the defendants two cases were cited. The first was Wheatley v. Bastow, 7 D. M. & G. 261. This is not an express decision on the point. There a brother and sister, entitled in moieties to a reversionary interest in a fund in court, mortgaged it to secure the debt of the brother, the sister joining as surety only. On the facts the court decided that the surety was not discharged. But it seems to have been assumed throughout the case, both by the eminent counsel engaged, and by the court, consisting of Lords Justices Knight Bruce and Turner, that, if the facts had shown a release, the mortgaged property of the surety would have been discharged. The second case is Hodgson v. Hodgson, 2 Keen, 704. There it was held that the release of one cosurety discharged the security given by the other. This is in point. On principle I can find no ground for the proposition that, although the surety’s covenant is gone by alteration of the contract with the principal debtor, yet the security which the surety has given remains bound. A surety pledges his personal credit by note, covenant, or otherwise, and by the same contract pledges also his goods or charges, or mortgages his lands, as security for the same debt. The alteration of the contract without his consent or without the reservation of rights against him affects his position equally in regard to every part of his contract of suretyship. As was said by Lord Justice Cotton, in Holme v. Brunskill, 3 Q. B. D. 505: ‘The cases as to discharge of a surety by an agreement made by the creditor, to give time to the principal debtor, are only an exemplification of the rule stated by Lord Loughborough, in Rees v. Berrington, 2 Ves. 540, “It is the clearest and most evident equity not to carry on any transaction without the knowledge of him (the surety), who must necessarily have a concern in every transaction with the principal debtor. You cannot keep him bound and transact his affairs (for they are as much his as your own) without consulting him.” ’ The true rule, as the Lord Justice went on to show, is that if there is any agreement between the principals with reference to the contract guaranteed the surety ought to be consulted, and that if there is any alteration which is not obviously either unsubstan tial or for the benefit of the surety he is to be the sole judge whether he will remain liable. This reasoning applies with the same force to a security given by the surety as it does to a personal obligation entered into by him.” (Bolton v. Salmon [1891], 2 Ch. 48, 53.)
The plaintiff cites Perry v. Horack, 63 Kan. 88, 64 Pac. 990, 88 Am. St. Rep. 225, and Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991, as qualifying or overturning the doctrine of Hubbard v. Ogden, but they have no such effect. No question of suretyship was involved in either of them. In Perry v. Horack a husband and his wife executed a note and secured it by a mortgage upon their homestead. The husband died and his children inherited one-half of the land, subject to the mortgage. The widow, who was a principal obligor, kept the debt alive by making payments upon it, and it was held the lien of the mortgage continued. In Jackson v. Longwell a husband and wife were joint makers of a note and both joined in a mortgage upon the wife’s land to secure it. The note became barred as to the wife but-the husband made partial payments which tolled the statute as to him. It was held the mortgage remained in force. In Jackson v. Longwell the case of Hubbard v. Ogden was expressly distinguished. The obligation of the joint contract was not modified or destroyed. Only the remedy against the wife was barred. Having pledged her land to secure an indebtedness -which 'her husband could keep alive by acts of partial satisfaction, the lien of the mortgage continued. But this does not argue that land mortgaged to secure one kind of a contract may be appropriated to the satisfaction of another, without the mortgagor’s consent.
The case of Jenness v. Cutler, 12 Kan. 500, also cited by the plaintiff, has no application. In that case the debt and the land were both the husband’s. The wife merely gave her consent that the husband might encumber the homestead and was not a surety at all in the proper sense of the term.
The court made a general finding in favor of Mrs. Diehl, besides finding the material facts specially. The plaintiff argues against the findings, claiming that Mrs. Diehl was not a surety, that the plaintiff had no knowledge of the fact if she were, and that there was no consideration for the contract of extension. The evidence relating to the fact of suretyship was convincing, The evidence of knowledge on the part of the mortgagee of the suretyship relation was conflicting, but ample to sustain the court’s conclusion. The written contract of extension disclosed a consideration. The mortgagor gave up the right to pay the debt at once and stop interest, and bound himself to keep the money and pay interest upon it for eighteen months. The mortgagee gave up her present right to receive, or if not paid to sue for, her money, and bound herself not to demand it for eighteen months. (Lorimer v. Fairchild, 68 Kan. 328, 75 Pac. 124.)
It follows that the judgment of foreclosure was erroneous and that the property affected should be discharged from the lien of the mortgage.
The rights of a second mortgagee were adjusted according to the theory adopted by the trial court, and he files a petition in error on his own account. The first mortgage being out of the way, he should be given a first lien.
The judgment of the district court is reversed and the cause remanded, with direction to enter judgment in consonance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Many errors are assigned on the rulings made in the various stages of the trial, but the first and controlling oné is based on the decision denying the petition for removal to the federal court. There was a remand on the first petition for removal, and under the act of congress the decision on that motion is not reviewable. (25 U. S. Stat. at L. p. 484.) In its first petition the bank, a citizen of Missouri, insisted that it had a separable controversy with the plaintiff, and alleged, as a second ground, prejudice and local influence. The first petition did not raise the issue of fraudulent joinder, but when D. G. Fritzlen answered and disclosed the conspiracy and fraudulent purpose of Weldon and Fritzlen and the theory on which they intended to proceed the second petition was filed on the ground of diversity of citizenship, and it alleged that the suit had been fraudulently instituted and maintained by Weldon, not to adjudicate any controversy with the Fritzlens, but for the fraudulent purpose of preventing the bank from removing the case to the federal court for a trial of the causes of action against the bank set forth in the answer and cross-petition of D. G. Fritzlen.
Was the bank entitled to an order of removal on the second petition, and'at that time? The right of removal as given by the constitution and laws of the United States cannot be defeated by any artifice or device of parties. It is well settled that the joining of nominal parties, sham parties, or of persons fraudulently brought in to prevent removal, will not defeat the right of removal by the real party in interest if the jurisdictional facts exist as to him. In speaking of devices of this character, in Arapahoe County v. Kansas Pacific Railway Co., 4 Dill. (U. S. C. C.) 277, 1 Fed. Cas. p. 502, Mr. Justice Miller said:
“It would be a very dangerous doctrine, one utterly destructive of the rights which a man has to go into the federal courts on account of his citizenship, if the plaintiff in the case, in instituting his suit, can, without any right or reason or just cause,‘and with the express declaration that he asks no relief from them, join persons who have not the requisite citizenship, and thereby destroy the rights of the parties in federal courts.
“We must therefore be astute not to permit devices to become successful which are used for the very purpose of destroying that right.” (Page 283.)
In Dow v. Bradstreet Co., 46 Fed. 824, it was alleged in a petition for removal that a resident defendant had been joined with a non-resident defendant to prevent a removal, and that the resident defendant was a sham party, with no interest whatever in the controversy. On the right to remove the case Mr. .Justice Shiras said:
“The reasoning which sustains the doctrine, which is now too firmly established to be called in question, that in determining the jurisdiction of the circuit court of the United States regard will be had only to the citizenship of the real parties in interest, disregarding wholly all nominal or immaterial parties upon the record, seems to me to be equally applicable to cases wherein it is made to appear that a party having in fact no interest in or actual connection with the subject of litigation has been joined as a party with those actually interested, for the sole purpose of defeating the jurisdiction of the federal court. A fraud' of this nature, if successful, deprives the citizen of a right conferred upon him by the constitution and laws of the United States, and it certainly must be true that it cannot be perpetrated without a remedy existing for its correction. Unless this be so, then it is possible to defeat in every instance the right of removal, when the same depends upon the' citizenship of the adversary parties, by the easy device of joining as a party one who has no interest in the case, but who is a citizen of the same state as the plaintiff.” (Page 827.)
The case of Prince v. Illinois Cent. R. Co., 98 Fed. 1, was an action brought by a brakeman, a citizen of Kentucky, for an injury inflicted by the railway company, a citizen of Illinois. He joined as defendants two employees of the company who were citizens of Kentucky. On a petition for removal it was alleged that these employees were named as defendants in fraud of the jurisdiction of the federal court and solely for the purpose of preventing a removal of the action. Later, upon an issue joined in the federal court on the subject, of fraud, it was shown that neither of them had any connection with the injury or any responsibility for it, and it was remarked:
“The court is, therefore, of opinion that the joinder' of Carroll and Smith under the circumstances is equivalent to a fraud upon the jurisdiction of this court, which it would be discreditable to wink at or fail to' see.” (Page 3.)
It is true, as defendants in error contend, that a plaintiff is entitled to present his theory of the case in his petition and in his own way, and when he elects to bring a joint action a defendant has no right to insist that it shall be several, nor can he convert it into a several action by the answer which he files. Many cases, - including Alabama Southern Ry. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, affirm this doctrine, but that case, as well as those which it follows, proceeds upon the theory that the parties are acting in good faith. In that case the court in its opinion stated that there was nothing in the case to suggest an attempt to commit a fraud upon the jurisdiction of the federal court. The court, however, cautiously pointed out an exception which should be made where there were fraudulent attempts to prevent removals. It was said:
“The fact that by answer the defendant may show that the liability is several cannot change the character of the case made by the plaintiff in his pleading so as to affect the right of removal. It is to be remembered that we are not now dealing with joinders which are shown by the petition for removal, or otherwise, to be attempts to sue in the state courts with a view to defeat federal jurisdiction. In such cases entirely different questions arise, and the federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the federal courts of the. protection of their rights in those tribunals.” (Page 218.)
In the more recent case of Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, (51 L. Ed.,) the question of fraudulent joinder was brought directly before the supreme, court of the United States. There Wecker, a citizen of Missouri, brought an action against a corporation, a citizen of New Jersey, for injuries alleged to have been occasioned through negligence. He.joined with the corporation one Wettengel, a citizen of Missouri. In a petition for removal it was alleged that Wettengel was ' fraudulently joined as a defendant for the purpose of preventing, or attempting to prevent, the defendant from removing the cause to the United States circuit court, and that plaintiff well knew that Wettengel’s relation to the corporation was not such as to make him liable, and that he was not joined in good faith, but to prevent a removal. An issue was formed on the motion to remand, but the circuit court found, on affidavits which were filed, that the joinder of Wettengel was palpably groundless and fictitious, and therefore denied the motion. The supreme court, on review, held that the trial court was right in its conclusions that Wettengel was joined for the purpose of defeating the right of removal, and in doing so it was said:
“While the plaintiff, in good faith, may proceed in the state courts upon a cause of action which he alleges to be joint, it is equally true that the federal courts should not sanction devices intended to prevent a removal to a federal court where one has that right, and should be equally vigilant to protect the right to proceed in the federal court as to permit the state courts, in proper cases, to retain their own jurisdiction.” (Page 185.)
To the claim that there was no proof that Wecker knew of Wettengel’s true relations to the defendant, and consequently that he could not be guilty of fraud in joining him, it was said that “even in cases where the direct issue of fraud is involved, knowledge may be imputed where one wilfully closes his eyes to information within his reach.” (Page 185.)
The following authorities support the doctrine announced above: M’Henry v. New York, P. & O. R. Co., 25 Fed. 65; Collins v. Wellington, 31 Fed. 244; Arrowsmith v. Nashville & D. R. Co., 57 Fed. 165; Warax v. Cincinnati, N. O. & T. P. Ry. Co., 72 Fed. 637; Hukill v. Maysville & B. S. R. Co., 72 Fed. 745; Landers v. Felton, 73 Fed. 311; Durkee v. Illinois Cent. R. Co., 81 Fed. 1; Union Terminal Ry. Co. v. Chicago, B. & Q. R. Co., 119 Fed. 209; Ross v. Erie R. Co., 120 Fed. 703; Kelly v. Chicago & A. Ry. Co., 122 Fed. 286; Boatner v. American Exp. Co., 122 Fed. 714; Crawford v. Illinois Cent. R. Co., 130 Fed. 395; Dishon v. Cincinnati, N. O. & T. P. Ry. Co., 133 Fed. 471; Boatmen’s Bank v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288; Knuth v. Butte Electric Ry. Co., 148 Fed. 73; Yawkey v. Richardson, 9 Mich. 529, 81 Am. Dec. 769; Illinois Cent. R. Co. v. Coley (Ky.), 89 S. W. 234, 28 Ky. Law Rep. 336, 1 L. R. A., n. s., 370; Southern Ry. Co. v. Sittasen (Ind. App.), 74 N. E. 898.
The averments in the petition for removal as to the bad faith and fraudulent purposes of Weldon and Fritzlen, when accepted as true, make out a prima facie showing of an attempt to evade the jurisdiction of the federal court. Especially is this so when these aver-ments are considered in connection with the statements in the pleadings of these parties which were on file when the petition was presented. According to the averments in the petition for removal the suit brought by Weldon was fraudulent in its inception and had been fraudulently maintained. While he set up a note and mortgages against the Fritzlens, it was alleged by the bank that there was no controversy between Weldon and the Fritzlens as to the note or the foreclosure of the mortgages, and that there never had been any controversy with respect to these. Since Weldon had no controversy with the Fritzlens, it follows that he had none with the bank. He is therefore a sham party, who instituted a fictitious suit for the alleged fraudulent purpose of enabling Fritzlen to litigate in the state court his causes of action against the bank set up in his answer and cross-petition, and to prevent the bank from removing such controversy to the federal court. In addition to all this, the pleadings disclose that Weldon’s alleged note from the Fritzlens became due ten days after it was made; that his mortgages were taken upon property already mortgaged for more than $32,000, and that only eleven days after the note became due, and twenty-one days after it was made, Weldon brought his sham suit, making the bank a party defendant. The answer and cross-petition of D. G. Fritzlen and the reply of Weldon were filed on the same day and concurrently alleged that the bank’s note and mortgages were invalid, and, further, that it had no authority to enforce them in court. The bringing of an action by a plaintiff who has no actual controversy with the defendants, and for the purposes stated, operates as a legal fraud upon the federal court as well as upon the party entitled to a removal. The institution of a fictitious action for the purpose of bringing two defendants of diverse citizenship — one being a non-resident — into a state court, to enable the resident defendant to litigate a cause of action against the non-resident defendant in the state court, and to prevent the non-resident defendant from removing the cause to the federal court, is as much a fraud upon the jurisdiction of the federal court and upon the nonresident defendant as is the fraudulent joining of a sham defendant. Under the authorities cited such sham party may be ignored and the right of removal determined between the actual parties to the real controversy.
The averments as to fraud as well as all issues of fact raised by the petition for removal are to be tried in the federal court alone. On a petition for removal the only question for a state court to decide is one of law; that is, whether, admitting the facts alleged in the petition and disclosed by the record to be true, the applicant has a right to a removal. (Railway Co. v. Stone, 70 Kan. 708, 711, 79 Pac. 655; Removal Cases, 100 U. S. 457, 472, 25 L. Ed. 593; Burlington, &c., Railway Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159; Kansas City Railroad v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963.)
•Was the second petition filed in time? It is contended that as it was not filed at or before the time when the bank.was required under the code to answer Weldon’s petition it was filed too late. If the fraudulent conduct of Weldon and Fritzlen occasioned the delay of the bank in setting up their fraud as a ground for removal they should not be allowed to take advantage of the delay and of their own wrong, especially Where the bank asked for removal as soon as their fraud was uncovered.
In Powers v. Chesapeake & O. Ry. Co., 65 Fed. 129, where the facts showed that a joinder and subsequent dismissal were a mere device of the plaintiff to defeat a removal by a non-resident defendant within the statutory time, it was held that plaintiff was estopped to assert the delay'as an objection to- a removal. Judge Taft said:
“It has been several times decided by the supreme court that the time for removing the case, fixed by the statute, is not indispensable to the jurisdiction of the federal court, but that it may be waived by the consent and acquiescence of the parties, and that a party may be estopped by his conduct to allege it as an objection to removal.” (Page 133.)
The supreme court of the United States, in Ayers v. Watson, 113 U. S. 594, 5 Sup. Ct. 641, 28 L. Ed. 1093, had before it the question whether a party might waive a delay or be estopped from objecting that the steps for removal had not been taken within the prescribed time, and it was held that diverse citizenship and some other grounds were jurisdictional and absolutely essential, but that the time of applying for a removal and the proffer of a bond were modal and formal and might be waived either expressly or by implication. In speaking of the time of application for a removal Mr. Justice Bradley said that “it does not belong to the essence of the thing; it is not, in its nature, a jurisdictional mat ter, but a mere rule of limitation” (p. 599); and so the doctrine of estoppel was applied.' The subject was again considered in Northern Pacific Railroad Co. v. Austin, 135 U. S. 315, 10 Sup. Ct. 758, 34 L. Ed. 218, where the court remarked:
“As the time within which a removal must be applied for is not jurisdictional, but modal and formal, (Ayers v. Watson, 113 U. S. 594, 598, 5 Sup. Ct. 641, 28 L. Ed. 1093), it may, though obligatory to a certain extent, be waived. And as, where a removal is effected, the party who obtains it is estopped upon the question of the time, so, if the conduct of the plaintiff in a given case were merely a device to prevent a removal, it might be that the objection as to the time could n&t be raised by him.” (Page 318.)
The question came before the court in the later case of Martin v. Baltimore & Ohio Railroad, 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311, and the court, in commenting on the decision in the Ayers case, noted the fact that the estoppel was applied to the removing party, but decided that it was applicable to either party, and remarked that the decision in that case had never been doubted or qualified. In speaking of Mr. Justice Bradley’s decision it was said that “his whole course of reasoning leads up to the conclusion that the time of removal, not being a jurisdictional and essential fact, is a subject of waiver and of estoppel alike.” (Page 690.) In Connell v. Smiley, 156 U. S. 335, 15 Sup. Ct. 353, 39 L. Ed. 443, Mr. Chief Justice Fuller said :
“Whether the petition for removal was filed in time it is immaterial to consider, as neither Tenney nor Lay, who petitioned for removal, nor Connell, who consented as a party and participated as their attorney, can now raise the objection.” (Page 339.)
In Danvers Savings Bank v. Thompson, 133 Mass. 182, a petition for removal was denied because one of the defendants was a citizen of the same state as the plaintiff. Later it was made to appear that this defendant had released all his interest in the subject-matter of the suit before the decision on the petition for removal had been made. This fact was not known at the time to the non-resident defendant, and although known by the plaintiff he did not disclose the fact. A rehearing of the petition for removal was asked for and obtained. The court said:
“The defendant Thompson filed his petition for removal in due time. At the time it was filed he was entitled, upon the real facts of the case, to invoke the jurisdiction of the federal courts, he and the plaintiff being citizens of different states. The concealment by the plaintiff of a vital fact ought not to prejudice the defendant. It was a fraud upon him and upon the court.
“We are of opinion that, upon the discovery of the real facts, the defendant became entitled to a rehearing upon his petition for removal; and that the former rescript and order should be vacated and set aside.” (Page 184. See, also, Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 99, 18 Sup. Ct. 264, 42 L. Ed. 678.)
If the estoppel were overlooked the objection to removal should nevertheless be overruled. The failure to petition for removal at or before the time for answer does not necessarily preclude a removal. It is enough that it is asked for as early as the record in a case or the acts of the parties show it to be removable. A discovery that an honest mistake as to parties had been made, an increase in the demand for judgment, the dismissal of a defendant, or the amendment or filing of a pleading disclosing that the case is a removable one, will justify an order of removal if upon the disclosure a party promptly files his petition.
In Powers v. Chesapeake & Ohio Railway, 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, where a second petition for removal had been filed, it was said that the provision as to the time for filing a petition for removal could not be literally applied; that to do so would be inconsistent with statute, and utterly defeat all right of removal in many cases. It was said:
“The reasonable construction of the act of congress, and the only one which will prevent the right of re moval, to which the statute declares the party to be entitled, from being defeated by circumstances wholly' beyond his control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right; and to consider the statute as, in intention and effect, permitting and requiring the defendant to file a petition for removal as soon as the action assumes the shape of a removable case in the court in which it was brought.” (Page 100. See, also, Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312.)
When the first petition for removal was filed the fraudulent purpose and conspiracy of ' Weldon and Fritzlen to defeat the jurisdiction of the federal court and to prevent the litigation of the bank’s controversy with Fritzlen in that court were not apparent. The only sources of information were the averments of Weldon’s petition that the note sued oh and to secure which the mortgages were given was payable within ten days and the fact that the suit was instituted on the note and mortgages eleven days after they matured. These facts, taken in connection with others which occurred subsequently, point to the fraudulent purpose; but, standing alone, they were not sufficient to charge the bank with notice of the fraudulent scheme nor to put it upon inquiry. The bank did not know from Weldon’s petition what course the Fritzlens would pursue. It could not know that D. G. Fritzlen would practically admit Weldon’s claim, nor that he would join him in asserting that its note and mortgages were void, nor yet that he would endeavor to litigate with the bank in that suit any claim he had against it. If the bank had ventured to allege a fraudulent conspiracy to evade federal jurisdiction of a controversy between it and Fritzlen — a violent» supposition, since there was then no such controversy — how could it have been proved? Fritzlen might have responded: “I have not questioned your note and mortgages, nor indicated a purpose to contest them with you in the Weldon or any other spit. Why should you impute fraud to me merely because Weldon holds or claims to hold past-due paper against me upon which he has brought suit?” And Weldon most assuredly would not have divulged the fraudulent purpose of his suit. So at the time the bank filed its first petition for removal the record in the case did not show the case to be removable.
But when Weldon’s reply and the answer and cross-petition of D. G. Fritzlen were filed — both of which were filed on the same day and attacked the validity of the bank’s note and mortgages on the same ground— the conspiracy and fraudulent purpose of Weldon and Fritzlen were uncovered, and the record revealed Weldon’s suit to be fictitious and without merit. Within a few days thereafter the bank filed its second petition for removal, upon the ground of diversity of citizenship, charging the fraud as disclosed by the record. As an excuse for not filing its second petition immediately the bank states therein that it did not learn of the filing of these pleadings until June 4, 1904, nine days after they were filed, and further alleged that “the defendant, Boatmen’s Bank, further avers and states that the defendant Fritzlens herein were and have been in default from the time of the institution of this suit until the filing of said separate answer herein, and that by agreement between plaintiff and defendants Fritzlen the said separate answer of D. G. Fritzlen was withheld and not filed until after the remanding of this cause on the first petition filed by this petitioner, so as to prevent it being made to appear while this action was pending on said former petition in the United States court that this suit was maintained for the fraudulent purposes aforesaid, and that the controversies herein were wholly between citizens of different states.” It therefore clearly appears that the bank was diligent and filed its second petition for removal as soon as the record showed the case to be a removable one.
But there is an additional reason why the second petition for removal should have been allowed, which is, that it was filed within the time in which the bank was required to plead to Fritzlen’s answer and cross-petition. Admitting the allegations of the second petition for removal to be true, as we have assumed throughout, Weldon was not a real party in the action and should be eliminate,d therefrom. The only real controversy, then, was between the Fritzlens and the bank. D. G. Fritzlen’s answer and cross-petition, the first pleading filed as between him and the bank, attacked the validity of the note and mortgages held by it and asked to have them adjudged void, and then set up the counter-claims upon which a judgment for money was asked. The bank took the negative side of these propositions. In considering an application for removal the court may inquire into the nature of the controversy and the interests of the various parties, and arrange them on the record according to their interests, without regard to the positions assigned to them by the pleader. (Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Pacific R. R. v. Ketchum, 101 U. S. 289, 298, 25 L. Ed. 932; Evers v. Watson, 156 U. S. 527, 532, 15 Sup. Ct. 430, 39 L. Ed. 520; Dawson v. Columbia Trust Company, 197 U. S. 178, 25 Sup. Ct. 420, 49 L. Ed. 713; Black’s Dill. Rem. of Causes, § 90.)
Within the rule stated the Fritzlens should be treated as plaintiffs and the bank as a defendant. Treating D. G. Fritzlen’s pleading, then, as an initial one, the bank’s second petition for removal, having been filed before it was required, to answer, was in time.
It follows that the ruling denying the second petition for removal and holding the case for trial was erroneous, and for that reason the judgment is reversed. | [
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The opinion of the court was delivered by
Mason, J.:
Evan W. Jones brought ejectment against M. C. Sadler, and, failing to recover, prosecutes error. The defendant was shown to be in possession of the property in controversy under two tax deeds, each covering a part of the tract and each of which was good upon its face and had been of record for more than five years. The plaintiff sought to defeat the deeds by showing various latent irregularities which would have been available if urged before the five years had run. There was no evidence as to the occupancy prior to the bringing of the action. The plaintiff contends that in order to avail himself of the five-year statute of limitation it was incumbent on the defendant to show affirmatively that he had been in possession, or at least that there had been no occupancy adverse to him during that time.
If the land was vacant the effect was the same as though the tax-title holder was in actual possession.
“A tax deed of vacant land, valid upon its face, and duly recorded, invests the tax-title holder with constructive possession of the land; and such constructive possession, when uninterrupted by the actual possession of the adverse claimant, perfects the tax deed at the expiration of the [statutory period] ... as against affirmative assaults upon it for defects in the proceedings upon which it is based.” (Stump v. Burnett, 67 Kan. 589, 73 Pac. 894, syllabus.)
A tax deed which has force enough to draw to the holder a constructive possession of land admitted to be in fact unoccupied has also force enough, in the absence of any evidence whatever on the subject, to raise a presumption of possession by the grantee. The deed is regarded as valid, and if valid the law presumes the holder', as the legal owner of the property, to have enjoyed its possession. The burden of proof was on the plaintiff to show that there had been an adverse occupancy, rather than upon the defendant to "show that there had been none. The situation is not at all similar to that presented where a defendant relies upon a prescriptive right or an adverse occupancy for the period of limitation. Here he claims under a conveyance which appears to be valid; which if valid cuts off all other claims; which requires no actual possession to make it good; and which must be good unless there has been an actual possession against it.
A further objection is made to the deeds that as an action for possession by a tax-title holder is barred in two years the defendant was required to show that he had taken possession within two years from the date of his deed. If this plea' were otherwise good it would fail for the reason already stated. The plaintiff as the moving party could build no right upon this statute without an affirmative showing on his part of an adverse occupancy for the period of limitation.
The case of Jay v. Wilson, 66 Kan. 765, 71 Pac. 1127, is cited as an authority to the contrary. It. was there said of a plaintiff in ejectment who claimed under' a tax deed that he was required to show that he had taken possession of the property prior to the expiration of two years from the date of his deed. No question was involvéd, however, as to the presumption of possession or the burden of proof. There was a conflict of evidence as to which party had had possession, and all that was decided there was that, as the finding of the trial court in favor of the defendant had some evidence in its support it could not be reviewed.
Various objections are made to the deeds for matters appearing therein, but none of them is found to be well taken. 'It is asserted that each conveys several tracts, but this is not true in any sense that affects their validity. The tracts named in each deed are contiguous and are treated as one parcel. Complaint is made of the recital that the property was bid in for taxes, costs and interest due against the property. Whether this expression is accurate or not, it is found in the statutory form and cannot vitiate a deed.
The judgment is affirmed. | [
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Per Curiam:
The state, on the relation of the attorney-general, brought this suit to oust Peter Everhardy from the office of mayor of the city of Leavenworth, upon the ground that, having knowledge that many persons were constantly engaged in keeping and maintaining saloons, tippling-houses and dram-shops within the city where intoxicating liquors were openly and flagrantly sold in violation of the prohibitory liquor law, and that the city, of which he was the chief officer, was receiving, through pretended fines and forfeited bail in simulated prosecutions, the sum of $50 every month from each of the keepers of such places, as license fees for permission to carry -on the illicit business, he failed to notify the county attorney of these violations or to furnish that officer with the names of witnesses by whom such violations could be proved, as his duty and the obligations of the law require him to, do. The non-observance of these requirements of the law was admitted by the defendant; but he contends; that the act imposing these duties upon the mayor,, and making the neglect of them a ground of forfeiture,, for which he may be removed from office by civil ac tion, is obnoxious to the constitution, in that the title is not broad enough to cover the provision for the removal from office by a civil action for the neglect of such official duty.
The title of the act is about as broad and comprehensive as it could well be made. It is, “An act relating to intoxicating liquors, and amendatory of and supplemental to” a number of acts prohibiting the manufacture and sale of intoxicating liquors, the titles of which are given. (Laws 1887, ch. 165; Gen. Stat. 1901, § 2452 et seq.) Under numerous decisions upon the limitation of section 16 of article 2 of the constitution (Gen. Stat. 1901, § 184) it is clear that the act contains no more than one general subject; that its provisions bear a natural relation to each other; and that the one challenged is fairly included within the title of the act. (Woodruff v. Baldwin, 23 Kan. 491; Philpin v. McCarty, Supt., &c., 24 Kan. 393; Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kan. 181; The State v. Bush, 45 Kan. 138, 25 Pac. 614; In re Sanders, Petitioner, 53 Kan. 191, 36 Pac. 348, 23 L. R. A. 603; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; In re Greer, 58 Kan. 268, 48 Pac. 950; The State v. Rose, 74 Kan. 262, 86 Pac. 296, 6 L. R. A., n. s., 843; The State v. Thomas, 74 Kan. 360, 86 Pac. 499.)
All the objections urged against the validity of the statute are answered in the cited cases, and further comment is therefore unnecessary. The act being valid, and the derelictions of duty being admitted, it must be found and adjudged that the defendant has forfeited his office, and hence judgment is rendered against him in accordance with the prayer of the plaintiff’s petition. | [
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Per Curiam:
A statement of the facts of this case will be found in a former decision relating to the same subject-matter. (Hunter v. Kramer, 71 Kan. 468, 80 Pac. 963.)
The decision of legal questions involved in the former hearing still meets our approval, but were it otherwise that decision, so far as applicable to the facts as now presented, must remain the unalterable law of this case. The decision is stare decisis. (Crockett v. Gray, 31 Kan. 346, 2 Pac. 809.)
The only questions to be considered are the objections made to the exclusion of evidence offered by the defendants to explain the contract, and the instructions given and refused bearing on the question whether the contract was or was not ambiguous. Although it appears that counsel upon each side are now found upon the side opposite to their position upon the former presentation of the question, we adhere to the intimation in that decision that the telegrams, interpreted only by substituting the agreed words for the code words and read in connection with the letters confirming the same, make an unambiguous contract for the sale and purchase of four car-loads of bran to be delivered in East St. Louis. In this view of the law the offered evidence was properly rejected and the instructions asked were properly given and refused.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
Pat Sweeney was given a preliminary examination upon a warrant in which he was charged with having committed a felonious assault upon Will iam Payne, with intent to maim and kill him, and was bound over to the district court. The information filed against him charged that Sweeney did intentionally, unlawfully, feloniously, wilfully, purposely, and of deliberate malice aforethought, assault and beat one William Payne with a deadly weapon, with great force and violence, which was likely to produce death, with the intention then and there to maim and kill him. The jury returned a verdict of guilty of an assault with intent to commit manslaughter or other felony, under section 41 of the crimes act (Gen. Stat. 1901, § 2026), as charged in the information.
A motion to quash the information upon the following grounds was denied: (1) That Sweeney had not had a preliminary examination upon the charges in the information; (2) that two or more offenses were charged in the information; and (B) that it contained redundant and irrelevant matter. The charge in the warrant upon which the preliminary examination was held included the offense charged in the information. In this respect the information followed the warrant. The information is unnecessarily prolix, but the motion to quash should not have been allowed for that reason. It charges that the assault and battery began in a building and continued into the street. It does not appear in the information that there was any cessation of hostilities.
It is argued in the appellant’s brief that the prosecuting attorney was guilty of prejudicial misconduct in applying to fhe appellant some opprobrious epithets. Our statute provides that upon a motion to set aside a verdict because of the misconduct of the prevailing party the application must be on written grounds and must be sustained by affidavit. (Gen. Stat. 1901, §§ 4754, 4757; A. T. & S. F. Rld. Co. v. Rowan. 55 Kan. 270, 39 Pac. 1010; Branner v. Nichols, 61 Kan. 356, 59 Pac. 633; Parrish v. Parrish, 67 Kan. 323, 72 Pac. 844; The State v. Brower, post. This question was not thus presented to the trial court, and is not' preserved in the bill of exceptions, as required by statute^
The third and fourth assignments of error may be considered together. The affray took place in a joint run by Payne and Larimer. Sweeney was drunk, and went to this joint with the avowed purpose, as he expressed it, of “cleaning it out.” His first assault was made upon Larimer, who was somewhere in the center of the room when Sweeney entered. After some tussling with Larimer the latter escaped out of a side or back door. Sweeney then turned his attention to Payne, who was behind the bar, and at whom he threw a heavy glass and then proceeded to demolish him with a stool. At some stage in this proceeding Payne discharged a revolver. When the melee was over it was found that one Mike Carman, who had not in any way participated in the disturbance, had been shot and was dead.
While Payne was on the witness-stand,' describing the disturbance in the joint,, he denied having any knowledge at the time of Carman’s presence in the joint. He testified that he fired the shot at Sweeney, and did not know that it had taken effect in Carman’s body until he was told that it had done so, after the fight was over.
On cross-examination the defendant offered to show that Payne, in a conversation with A. J. Felt in the presence of Doctor Troughton, had said that he had shot Carman because he and the Carmans had had trouble, and Carman had threatened to kill him, and that he had shot Carman in self-defense. The refusal of the court to permit this question to be answered, and also the refusal of the court to permit the defendant to prove by other witnesses that Payne had made this statement, constitute the third and fourth assignments of error.
The only apparent reason for asking Payne this question was to lay the foundation for contradicting him, and it is contended that it should have been admitted for this purpose. 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 ? Whether Payne shot Carman maliciously or accidentally, or whether he had said that he had shot him in self-defense, was not material or relevant to any issue in the prosecution of Sweeney for the crime of which he was charged, and could not have been offered for any purpose independent of self-contradiction. These facts being collateral to any issue in the case oh trial, the court very properly refused to allow an issue to be made of them.
It is also contended that the verdict of the jury is so uncertain in respect to the crime of which they found the defendant guilty that a legal sentence cannot be pronounced upon it. The defendant was. charged and tried under section 38 of the crimes act (Gen. Stat. 1901, § 2023), for having wilfully, feloniously, and of deliberate malice aforethought assaulted and beat William Payne with a deadly weapon, with intent to maim and kill him. The punishment provided for this offense is confinement in the penitentiary and hard labor for a term not exceeding ten years. The jury returned a verdict finding the defendant guilty of “an assault with intent to commit manslaughter, or other felony, under section 41, as charged in said information.” The punishment for this, offense is confinement in the penitentiary and hard labor not exceeding five years, or in a county jail not less than six months. The court im posed the maximum penalty under the latter section. The two sections provide for the punishment of the same general class of crimes — felonious assaults. Included in section 38 are assaults made on purpose and of malice aforethought, while section 41 (Gen. Stat. 1901, § 2026) includes only assaults with intent to commit similar crimes, but where the element of malice aforethought is wanting. The jury in their leniency found the defendant guilty of the lesser offense provided for in section 41, and the court imposed the penalty prescribed in that section. .
Some other errors are assigned, but they are not sufficiently important to require special attention, further than to say that no error was committed in respect to them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The residuary clause of this will is assailed upon the ground that it creates a trust which is not a public charity. The case of Troutman v. DeBoissiere, 66 Kan. 1, 71 Pac. 286, is cited as being directly in point and controlling upon this question. The argument of the defendants in error is founded chiefly upon a statement in that opinion which reads: “A public charity is a gift to a public object which the state itself, with public resources, should, or lawfully might, foster.” (Page 11.) This proposition does not appear in the syllabus and is not the question upon which the court divided. It cannot be said, therefore, that the court intended to decide that every public charity must be such as the state may lawfully maintain by public taxation. The real point decided was that in the trust there being considered the beneficiaries were limited to such an extent that the gift could not be regarded as a public charity. The statement quoted was used in the opinion by way of an argument to illustrate the general scope and extent of a trust which may be properly classed as a public charity. In that case the fund provided could only be used for the benefit of the orphans of deceased Odd Fellows of the state of Kansas. This limitation excluded it from the category of public charities.
The line of distinction which determines where a private charity ends and a public one begins is at times difficult to locate, and this difficulty has caused much of the apparent want of harmony which prevails among the decisions upon this subject. In this case, however, there is no uncertainty. The object of the trust provided for by the will of Samuel Dilley is the higher education of young men and women.
Bequests for educational purposes have been regarded by the courts of this country with special favor, and donations made for the founding and maintenance of institutions of learning or for increasing educational facilities have very generally been upheld' as public charities. The numerous and varied educational purposes in support of which trusts have been created and sustained as public charities are partially collected in volume 2 of the fifth edition of Perry on Trusts, section 700, which reads:
“Almost all gifts for educational purposes are held to be charitable; as, gifts for the advancement of learning in every part of the world, so far as circumstances will permit; or for the diffusion (a part in Pennsylvania, the residue in the United States) of useful knowledge and instruction among the institutes, clubs, or meetings of the working classes, or manual laborers by the sweat of their brow; to build or erect a school or free grammar-school, or a school for the sons of gentlemen; for the education of the scholars of poor people in a particular county; or to maintain a schoolmaster; or for the masters and fellows of a college; or for the foundation of a scholarship, fellowship, or lectureship in a college or university; or for the perpetual endowment of two schools; or to establish a college for orphans, although all ministers are forever excluded from its walls; or for the education of young men at Oxford for the Church of England, to be selected; or to maintain a library and reading-room; or for paying premiums for the most important discoveries or useful improvements made public upon light and heat; or for' the civilization of Indians; or to assist literary persons in their pursuits, or to publish an essay on science; or to publish and distribute the works of Joanna Southcote; or to promote the moral, intellectual, and physical instruction and education of a city; or to create a ‘change of sentiment,’ which means to educate; or a fund to increase the salaries of teachers. Money in trust to support a school for the use of poor children cannot be applied to a public school where rich and poor are educated together; but it may be used in purchasing food and clothing and books for poor children, to enable them to attend such school.”
The advantages, direct and indirect, which the highly educated citizen imparts to the general public cannot be estimated. Every advancement made in the scientific, mechanical, moral, literary or other pursuits of life adds to the general sum of human knowledge, comfort and happiness. As higher education increases civilization advances. The elevating and beneficent influences which the general public receives from educational sources make every citizen a beneficiary thereof, and furnish complete justification for placing every educational trust, not strictly private, and having in creased learning for its object, in the category of public charities.
It has been suggested that the rule stated applies to ordinary education such as may be acquired at public institutions of learning, but has no application here for the reason that the education provided for these beneficiaries is to be such as will fit them for the Christian ministry, in which the public, as such, can have no interest. We are unable to see how the future vocation of the student can be material in this inquiry. It is not important to the general public whether highly educated men engage in the law, medicine, mechanics, the ministry, or some other pursuit in which specialized learning is useful. The public is concerned, however, in having the greatest possible number of persons receive an educational training which will prepare them for successful work in whatever field of human endeavor they may desire to enter. Persons educated for the ministry do not always persist in preaching the Gospel. Many instances might be given of men who drifted away from this, their chosen profession, and by the application of their early educational training became public benefactors in other pursuits. There is nothing in the will of Samuel Dilley which amounts to a requirement or even a request that those who receive the education provided by him shall enter or continue in the ministry. If any of them shall feel that his life will be more useful if devoted to other pursuits, no restraint has been imposed to prevent the exercise of a free choice therein.
This bequest may be construed as having been designed either for the promotion of religion or for educational purposes; but, judging from its practical effects, the educational feature seems to be its principal and paramount purpose.
The case of Field v. Drew Theological Seminary, 41 Fed. 371, and this are very similar. The donor in that case provided for the education of young men for the ministry to be selected by the trustees, two at a time, perpetually, one of whom was required to engage in foreign missionary work and the other to become a member of the home conference. The Drew Theological Seminary was charged, with the duty of carrying out the wishes of the testator. In the opinion it was said:
“The bequest under consideration is not to the Drew Theological Seminary, nor was it intended directly for the benefit of that institution. The seminary is to be made use of as one of the instrumentalities for carrying out the far-reaching aim of the testator, namely, the promotion of religion by spreading abroad a knowledge of the truths of Christianity. This bequest may be looked at as having been designed either for the promotion of religion, or for an educational purpose. The training of young men for the Christian ministry includes that education and advancement in learning which form the preliminary preparation and discipline for the sacred office of preaching the Gospel. The ultimate purpose of the testator was to increase the number of those who should thereafter devote their lives to pious works, both at home and abroad. The influence for good to mankind of an educated and faithful Christian ministry cannot be estimated. It is beyond human calculation. And a bequest which is designed to send forth periodically two well-equipped young men, one of whom shall enter the field of religious instruction at home, and the other shall carry the light of the Gospel to them that sit in darkness, is a public charity, conceived in a spirit of the broadest philanthropy, and deserving of unqualified commendation.” (Page 374.)
Whether the testator in this case intended by his donation to promote the interests of religion or to increase the opportunities for higher education, or both, is of little moment; in either case it is a matter in which the general public will be sufficiently benefited to make the bequest a public charity, and it should be upheld and administered as such.
The .judgment of the district court is reversed, with direction to enter judgment in favor of the' plaintiffs in error, and to order the executor of the last will and testament of Samuel Dilley, deceased, to pay to the plaintiffs in error the amount due them under the residuary clause of 'the will, and otherwise carry out the views herein expressed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
Frank P. Plamondon was enjoined from keeping and selling intoxicating liquors in two rooms of a building in Topeka in violation of law, and from using or permitting the rooms to be used as a place for the unlawful sale of intoxicating liquors. Subsequently he was accused of violating the order of injunction by keeping and maintaining the rooms as a place in which intoxicating liquors were unlawfully kept for sale and sold, and where persons were permitted to resort for the purpose of drinking intoxicating liqours, and, notwithstanding the order of injunction, of continuing to sell intoxicating liquors in the place in violation of law. The trial, upon the accusation for contempt resulted in a conviction, and the judgment was a fine of $500, imprisonment in the county jail for six months, and for costs, including an attorney’s fee of $100, to be paid to the attorney prosecuting the case.
On this appeal it is first contended that the proof did not warrant the conviction, because it was not shown that the defendant was without a druggist’s permit to sell liquor in that place. The state contends that it is not required to prove the absence of a permit, and that, even if such proof is ever required, it is not material in this case, as the testimony was abundant that with or without a permit the place was kept and conducted in violation of law, as well as the order of injunction. There was proof that the defendant was not keeping a drug-store, nor selling drugs; that in the back room of the place there was a temporary bar, a beer-pump, and the usual paraphernalia of a saloon; that crowds of men congregated there for the purpose of drinking intoxicating liquors, which were illegally sold and served to customers by white-aproned attendants; and that intoxicating liquors were sold on request, without affidavit, or without any regard to the purpose for which it was purchased or the use which was to be made of it. The fact that a pharmacist was not employed in the place and that liquors were, sold to be drank on the premises without observing the requirements prescribed for druggists, the indiscriminate sale of liquor to all customers, and the fact that a large number of people assembled there and used the place as a drinking resort, show plainly enough that defendant was not conducting a drug-store, but was in fact maintaining a nuisance and carrying on the identical business which the order of the court prohibited. The possession of a permit would have furnished the defendant no excuse for these violations of the law and of the order of injunction, and proof that the defendant was without a permit was therefore not necessary to a conviction.
Objection was made to the admission of testimony of matters showing the connection of the defendant with the joint prior to November 18, 1905, when the order of injunction was made. One witness, who was an officer of the state board of pharmacy, visited the place in September, 1905, and inquired if there was a regular pharmacist in the store. Defendant was present and informed the witness that he was the proprietor; that he was not a pharmacist, and that no drugs were sold there under any consideration. Another witness testified about finding the defendant in charge of the place and exercising acts of ownership there in the preceding January. The testimony of each was introduced and admitted to show the proprietorship of the defendant, and not for the purpose of showing violations of the injunction order. In connection with other testimony, it was competent as tending to show ownership and control of the premises where the illicit business was conducted; and when the other testimony was considered in connection with this it was sufficient to show continued ownership and control from the times mentioned up to the beginning of the contempt proceeding.
The right of the court to give judgment for an attorney’s fee is also questioned. The statute expressly authorizes an award for attorney’s fees in a suit for abating and enjoining a nuisance. (Laws 1903, ch. 338.) A like statute has been held to justify an allowance of an attorney’s fee as a part of the costs in a proceeding for contempt which is incidental to a.suit for an injunction. (The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148.) It is argued that the statute referred to provides only for an award of attorney’s fees in suits for injunctions, but does not cover proceedings for contempt. The proceeding for contempt, although criminal in its nature, is an incident to, and one of the final steps in, the suit for an injunction. It was remarked by Mr. Justice Porter, in the recent case of The State v. Thomas, 74 Kan. 360, 86 Pac. 499, that “the proceeding is a part of the original case and the court properly took judicial notice of the previous order granted in that case.” (Page 369.) The appellant insists that the testimony did not justify the allowance which was made. The proof that was offered furnished a basis for the finding, and when the court applied its own general knowledge of the value of such services under the rule governing the measurement of testimony it cannot be held that the award is unreasonable. (Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670.)
The judgment of the district court is affirmed. | [
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Per Curiam:
All of the claims of error in this case are disposed of in the opinion in The State v. Taylor, ante, p. 417, with which it was submitted.
The judgment is affirmed. | [
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Per Curiam:
The controverted question in this case was whether there was fraud in the execution of the contract for the sale of jewelry upon which plaintiffs relied. If the signature of defendant was procured by the fraud of the plaintiffs the former is not bound, although he failed to read the paper to which he attached his name. (Shook v. Manufacturing Co., ante, p. 301.) There is testimony tending to show that defendant’s signature was obtained by fraud; that he was induced to sign the paper by the fraudulent representations of plaintiffs to the effect that the paper contained the stipulations previously agreed upon, when in fact it did not. The testimony was sufficient to sustain the verdict of the jury, and hence the controversy is finally settled.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Archie Brown brought a suit against Job Gilpin to compel the specific performance of a written contract for the sale of real estate, and failing to recover, the trial court having sustained a demurrer to his evidence, prosecutes error. The case involves the statute of frauds, and turns upon the question whether J. W. Wright, a real-estate agent, who executed the contract in behalf of Gilpin, had authority to do so.
Under the law of this state as it existed before March 21, 1905, an agency to execute a written contract for the sale of lands could be created by parol. (Rottman v. Wasson, 5 Kan. 552.) Then by an amendment of the statute of frauds it was provided that this could only be done in writing. (Laws 1905, ch. 266, § 1.) The plaintiff claims that there was evidence that prior to that date Gilpin had orally given Wright authority to sign for him a contract for the sale of the land in question. On April 1, 1905, Wright did execute in Gilpin’s behalf a contract for the sale of the land to Brown. Brown contends that Wright’s parol authority was based on contract and could not be abrogated or affected by an act of the legislature. Whether or not Wright could avoid the force of the statute upon the theory that it impaired the obligation of an existing contract, Brown certainly cannot do so, for he was not a party to any agreement made before the act was passed.
“Not only must the party attacking the validity of a statute on the ground that it impairs the obligation of 'the contract be able to show that he has been injured by the infraction, but he must be a party to the contract the obligation of which he alleges to be impaired or he will not be heard to complain.” (8 Cyc. 789.)
The serious question to be determined is whether Wright had written authority to execute the contract for Gilpin. If so, it resulted from the following correspondence :
(Wright to Gilpin, February S5, 1905.)
“You told me when you left Kansas that you wanted to sell your land at Windom. What is the least price you will take for the 240 acres of pasture and the Kerm 40 by itself; the northeast quarter of 17 by itself? That is, price it separately; also price it all in a body of 440 acres.- I have an inquiry for something about like this and in case price is right believe I can sell it for cash. Let me hear from you promptly and make your price and terms plain so I can do business without waiting to write you again. In case of sale, can you give possession this spring? Now get a move on and lets do business. I want to make you some money so you can live in sunny California.”
(Gilpin to Wright, March 5, 1905.)
“Yours O. B. .& 0. K. epistle is rec. and contents noted. . . . Now about the 440 acres total, I want $9000, and $5000 for the northeast of seventeen, and $600 for the 40 in nine. This would be without any commish attached on my part. I consider the way it is located and watered it is reasonable and the way land has advanced the last few years and the way the rent has paid me. Now, if you have your man spotted, it would be well enough to go with him yourself and look at all the advantages and disadvantages, then strike your diaden [bargain?] and you can insure running water on all the pasture land the year around. No shortage as long as it can be used; possession at any time. This woujd leave 240 acres to itself and I will not give you price on that until I hear from you again. It is a good money maker and not much expense. The 40 in nine should go with the cultivated quarter, as there is not grass sufficient to do without hiring pasture. Or you can throw in the southwest of seventeen, call it $4000.”
(Wright to Gilpin, March S3, 1905.)
“I have offer to-day of $13 per acre straight through in cash for your three eighties of pasture and the forty acres right east of the pasture, in all 280 acres. Let me know by return mail if this will buy it and give possession on this spring. Party may want the northeast of seventeen later on. • In case this offer will not buy it, let me know your least cash price and include my commission in your price.”
(Gilpin to Wright, April 2, 1905.)
“Allow me to answer yours of last week and excuse the card as I have not time to write more. If convenient should like to retain the forty in nine to go with the northeast of seventeen, as there is but little pasture on that quarter. The 240 together the way it is located and watered is worth $16 an acre with your commission included if not too much; without crowding the pasture it will average me $1 an acre without very little expense. This would be possession this spring or the price of the pasture less next fall.”
(Wright to Gilpin, April 11, 1905.)
“I could not sell your pasture 240 acres for the price $16. an acre. You are too high the way pasture land is selling. I have an offer to-day of $7000 for the 240 acres and the 40 and the northeast quarter of seventeen, in all 440 acres; can get all cash in case you want it. If not let me hear from you right quick as it is getting late and pasture lands are not selling readily. Cattle prices have been so low that some have quit the cattle business entirely. Lots of people are going further west to buy land. $7000 for the above land will make you quite a little bit of money above what you paid for it. Don’t you think you had better sell ?”
(Gilpin to Wright, April 16, 1905.)
“Yours just received. In reply would say there were no specifications except an unconditional surrender after meditating and premeditating I have come to a final conclusion if you can wait until I return in June for your commish or send a note for 60 days or 90 days at 10 per cent, for I have to use what is left here at three times that amount of int. Speculation is running high here since the cold winter. Then make deed and send to be signed. . . . Now John I suppose you are trading with Parker the way the price is. Remember in the last few years I have paid you several $100 in trading and be reasonable with. Send me word if you can wait three months and I will pay your note at the Merchant’s bank. I want the $1000 mortgage paid and $4000 to L. C. Gilpin and $2000 sent here. Send your price if you don’t send a note. Money for short time is 24 per cent., but I'want to pay that amount on lots. . . . What about the crop for this year?”
At this stage of the proceedings the contract in question was executed, reading as follows:
“Know all Men by these Presents : That J. W. Wright, agent, in consideration of the sum of seven thousand dollars, of which sum five hundred have been paid, the receipt whereof is hereby acknowledged, agrees to sell to Archy Brown, of McPherson county, state of Kansas, the following described real estate, situated in McPherson county, state of Kansas, to wit:
“The south half, northeast quarter, and the southeast quarter, section eight (8), the northwest quarter of southwest quarter, section nine (9), and the northeast quarter of section 17, all in township 19, range 5 west.
“The said J. W. Wright, agent, agrees to deliver to said Archy Brown or his assigns a good and sufficient warranty deed for the above-described real estate, provided and upon the condition that the said Archy Brown or his assigns shall pay the further sum of six thousand five hundred dollars, according to the terms and conditions following: Cash on delivery of deed and abstract showing clear title.
“Abstract shall be furnished showing clear title in grantor.
“Any improvements on the farm belonging to tenant are reserved. Possession shall be given according to terms of lease with present tenant.
“Party of second part agrees to pay said J. W. Wright $100 commission within sixty days from this date in case this sale is closed.
“Witness our hands at McPherson, Kan., this 21st day of April, A. D. 1905. J. W. Wright.
Archy Brown.”
On the same day Wright wrote to Gilpin:
“Your letter at hand yesterday morning. I saw my man and to-day have contracted the sale of your land to him at $7000. He will pay $6000 cash and assume the payment of the $1000 mortgage on the southeast % of section 8, which is the same as cash to you. I have prepared the deed as you requested and send it in this letter. Where are your deeds and abstracts? We must have them before a clear title can be made. As to the rents: Of course, Mr. Brown will want the rents from the land this summer and will want the lease turned over to him. He don’t want possession of the land this spring. He would not buy and get nothing from the land this season no sooner than we would. Now as to my commission. I don’t like to make any cut on my regular commission, but I will do so in your case. The regular commission would be $200. I will cut this right in two and make it $100, and send note for you to sign as requested in your letter.”
On April 22 Gilpin mailed a postal card to Wright, reading:
“Wait a few days on our deal until I write you again. I want the children to know about the deal first. Will write again.”
The correspondence was closed by this letter from Gilpin to Wright, written April 25, 1905:
“Your deeds arrived last night; I had given up sign ing same when I sent you the card of which it seems you had not received. When I accepted of the bid I was bad sick at hospital and the way my business was left it seemed as I must do something soon, consequently did n’t wait the sale but sent to city and had a will executed and is there in deposit which suits me much better than the sale. I was taken with stomach trouble and heart failure; hired a hand to do my duty had you mentioned your customers name, I should' at once told-you the deal was off. That man could never buy a foot of land high or low from me. The papers will be destroyed here to save postage in returning. Your description of mortgage is wrong. It is on the 40 and 80 but there is no part of it in the market from now on. I shall no .doubt see you about harvest and satisfy you for your trouble.”
The provision of the contract that an abstract of title should be furnished to the buyer imposed upon the seller a condition clearly not covered by the letters, but as there was testimony that this was in accordance with a local custom, and the case was decided upon a demurrer to the evidence, this consideration may be disregarded. So may the absence from the contract of the name of Wright’s principal, since this could probably be supplied front the other writings. There may be room for doubt as to what disposition of the rent for the current season the contract contemplated, and perhaps with respect to other matters, but Gilpin made no point upon any such ambiguity. The letters show that Gilpin made Wright his agent for some purpose with respect to the sale of the land; that Wright communicated to Gilpin an offer he had received covering all the matters essential to a bargain, and Gilpin indicated that it was satisfactory to him. The terms of such offer were the same, or may be assumed to have been the same, as those of the contract which Wright executed. If Wright had power to bind Gilpin at all in the matter he had authority to execute the very contract which he in fact signed. The case therefore turns squarely upon whether the making of a written agreement for the sale of the land was within the scope of Wright’s employment.
There is much apparent and some real conflict in the decisions in similar cases. It is well settled that one employed to find a buyer of real estate has no implied authority to execute a contract of sale in behalf of his employer. (19 Cyc. 295.) And it is probably beyond dispute that the ordinary transaction by which land is said to be “listed” with an agent — that is, where an owner informs a real-estate broker of his wish to sell property upon stated terms and invokes his professional services in that respect — does not imply any grant of power to execute a contract for its sale.
“His authority is limited to the power of finding a purchaser satisfactory to the principal, in the absence of a stipulation, express or implied, to the contrary.” (19 Cyc. 295.)
“A real-estate broker or agent is one who negotiates the sales of real property. His business, generally speaking, is only to find a purchaser who is willing to buy the land upon the terms fixed by the owner. He has no authority to bind the principal by signing a contract of sale.” (McCullough v. Hitchcock, 71 Conn. 401, 404, 42 Atl. 81.)
So far there is no want of harmony in the adjudications. There is a seeming disagreement, however, upon the question whether authority granted to an agent to sell real estate confers upon him the power to bind his principal by a written contract, as is illustrated by the following extracts from the opinions in the cases named, the first four affirming, the others apparently denying, the proposition:
“The defendant’s counsel went so far as to contend that an agent for sale has not authority to sign a contract unless express authority to sign a contract, as distinguished from authority to sell, is proved. In my opinion, this is not the law.” (Rosenbaum v. Belson, [1900] 2 Ch. 267, 268, 82 L. T. Rep., n. s., 658.)
“Authority from Dodge to Iglehart to sell the land included the necessary and usual means to make a binding contract in the name of the principal. If the authority to sell may be created by parol, from this authority may be implied the power to use the ordinary and usual means of effecting a valid sale; and to make such sale it was necessary to make a writing evidencing the same.” (Johnson v. Dodge, 17 Ill. 433, 441.)
“Although the authority conferred by the defendant by letter upon Messrs. Cochran, Rice & Walsh to ‘sell’ the land was insufficient to empower them to convey, it authorized them, as his agents, to make an executory contract to sell, upon the terms stated therein.” (Jackson v. Badger, 35 Minn. 52, 53, 26 N. W. 908.)
“An agent authorized to sell either real dr personal estate may enter into a contract, within the terms of his authority, which will bind his principal. This is of the very essence of the authority given, viz., an authority to sell. That he can bind his principal by a formal contract is the doctrine of the books from the earliest law on the subject.” (Haydock v. Stow, 40 N. Y. 363, 368.)
“Unless express authority is given to the agent to sell, and for that purpose to enter into a binding contract, the principal reserves his final right to accept or refuse.” (Chadburn v. Moore, 61 L. J. Rep., n. s., [Eng. Ch.,] 674, 676.)
“Giving authority to sell does not,' by force of the terms, or by their general acceptation, give authority to sign the vendor’s name to a contract.' And in case of lands it is not wise to extend this meaning by construction.” (Morris v. Ruddy, 20 N. J. Eq. 236, 238.)
“We are of opinion that the authority given to Atkins to sell the property was not sufficient to authorize him to execute a contract of sale to Duffy, in the name of Hobson,, or to sign the name of the latter to any contract of sale.” (Duffy v. Hobson, 40 Cal. 240, 244, 6 Am. Rep. 617.)
“Authority granted to an agent to sell real estate does not give authority to enter into a contract for a conveyance. When the agent procures a purchaser, ready, willing and able to buy on the terms proposed, his employment is at an end.” (Armstrong v. Oakley, 23 Wash. 122, 124, 62 Pac. 499. See, also, 1 A. & E. Encycl. of L. 1011, note 1; 2 Clark & Skyles, Law of Agency, § 799.)
The real controversy, however, is not whether the actual grant of an authority to sell gives the agent power to execute a contract of sale; it is as to what form of expression will be deemed to establish an agency to sell. Most of the cases that seem to deny that power to contract follows from authority to sell in fact go no further than this: that communications from the owner to a real-estate broker with respect to the sale of lands will be regarded as giving the agent only the authority usually incident to his employment— that is, to find a purchaser — unless a different intention is clearly shown; and that no wider power than that is necessarily indicated by the use of the words “to sell” or “to make a sale” in describing .the purpose for which the agent’s services are engaged, inasmuch as in common parlance “to sell” is often used as meaning to negotiate or arrange for a sale and a sale is said to be made when its terms have been orally agreed upon. The rule is thus stated, after a review of the earlier decisions, in Keim v. Lindley, (N. J. Eq.) 80 Atl. 1063, 1073:
“The mere employment of an ordinary real-estate broker to effect a sale of a parcel of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same. Moreover, such authority is not usually to be inferred from the use by the principal and broker in that connection of the terms ‘for sale’ or ‘to sell’ and the like. Those words in that connection usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms.”
This language is approved on review in Lindley et al. v. Keim et al., 54 N. J. Eq. 418, 34 Atl. 1073, 1075, the court adding:
“He who seeks to establish the authority of an agent to bind his principal to the sale and conveyance of lands by proof of circumstances from which it may be inferred that such authority was granted will not be successful if the circumstances proved merely justify the inference that the principal had placed his lands in the hands of the agent as an ordinary real-estate broker.” (Page 423.)
That the word “"sell” may be interpreted according to the circumstances of the case is recognized in Rosenbaum v. Belson, (1900) 2 Ch. 267, 82 L. T. Rep., n. s., 658, by the use of this language, following that already quoted:
“The authority in the present case is in the terms: ‘Please sell for me my houses, and I agree to pay you a commission on the purchase-price accepted.’ This is an authority to sell. A sale prima facie means a sale elfectual in point of law, including the execution of a contract where the law requires a contract in writing. I do not find anything in the circumstances of this case which induces me to say that the word ‘sell’ here means less than this.” (Page 269.)
The inquiry to be determined in each doubtful case is whether the owner has shown an intention that his agent should merely actúas an ordinary broker or that he should go further and actually effect a binding contract of sale. The great weight of authority is that the latter intention will not be inferred except from the use of unequivocal expressions to that effect, and that the terms “sell” and “sale” are not of that character. It is true that in some of the cases which announce this view the result reached was compelled by the circumstance that the instructions to the agent did not cover all the details necessary to the completion of a bargain, or, if they did, that the contract made did not conform thereto, but the conclusions are supported by reasoning independent of this consideration; and leaving these cases out of account there still remain abundant instances in which communications more nearly approaching positive directions to complete a sale than those here disclosed have been interpreted as creating no power beyond that of finding a purchaser. The following are examples of some of the instructions so interpreted:
In Carstens v. McReavy, 1 Wash. 359, 25 Pac. 471, the trial court found as a fact that the persons who executed the contract “were the agents of defendant [the owner] for the sale of the aforesaid real estate, and were then and there duly authorized and em powered by the defendant, by writing under the defendant’s hand, to make and negotiate a sale of said real estate.” (Page 361.) Although the language to be interpreted was that of the court instead of the parties, it was held on review that the agents had no authority to execute a contract of sale. This case, however, is an extreme one, and approves Coleman v. Garrigues, 18 Barb. (N. Y.) 60 (where the agent was authorized to “close the bargain”), notwithstanding its having been overruled by Haydock v. Stow, 40 N. Y. 363.
In Grant v. Ede, 85 Cal. 418, 24 Pac. 890, 20 Am. St. Rep. 237, the principals wrote: “as you stated you could get $30,000 for the place you occupy, . . . and if you can, we will sell at that price . . . and allow you 2% per cent, on said price.” (Page 419.) It was held that this gave authority only to find a purchaser.
In Donnan v. Adams, 30 Tex. Civ. App. 615, 71 S. W. 580, the findings showed that the owner, Adams, had “requested Walsh [the agent] to sell the land at $3 per acre, and stated that he hoped he (Walsh) could make a sale of it, as he had done considerable business for him (Adams), for which he had received no pay, and he would like for Walsh to make the commission.” (Page 615.) The supreme court affirmed a judgment against the right of the agent to execute a contract of sale.
In Larson v. O’Hara, 98 Minn. 71, 107 N. W. 821, the owner wrote to the agents “stating that she would accept $3800 net cash for the land in question, provided they could sell it by January 1, 1905. On January 25, 1905, evidently in reply to an offer, she again wrote to them that she would accept $3675 for the land and allow them a commission of $80 for making the sale. On January 30, 1905, she wrote again, suggesting or agreeing to some modifications in the terms of payment. On January 31 the brokers telegraphed her: ‘Letter received. Party accepts your offer. All cash. See letter.’” (Page 72.) The court said:
“Upon this evidence we are satisfied that Mrs. O’Hara [the owner] never authorized the brokers to execute a contract for the sale of the land. Their authority was limited to finding a. purchaser who was willing to buy on the terms fixed by the owner.” (Page 73.)
In Brandrup v. Britten, 11 N. Dak. 376, 92 N. W. 453, the agents were given an instrument reading:
“I hereby grant to H. B. Meis and Orcutt the sale of the following-described property for six months at the price and upon the terms below mentioned, with the express understanding that the said H. B. Meis shall use all diligence and make active and strong efforts to sell said property. . . . Price, net to me, $9000, not less than $3000 cash, and assume mortgage now on land.” (Page 376.)
The court said:
“It is not contended that Meis & Orcutt had any further authority to sign the defendant’s name to the contract in question than was given by the listing contract hereinbefore set out. Does this writing confer such authority ? We are clear that it does not. It will be seen upon inspection that it contains no language which, in terms or by fair inference, authorizes the real-estate brokers therein named to execute contracts or conveyances on behalf of their principal. It is patent that it confers upon them no further or greater authority than is commonly given to real-estate brokers with whom land is listed for sale. And it is well settled that the agency of such persons is limited to finding purchasers who are acceptable to vendors, or who are prepared to comply with the conditions of sale proposed by the vendors to their brokers, and, in the absence of express authority, does not extend to signing contracts of sale or conveyances on behalf of their principal.” (Page 378.)
In the present case Gilpin nowhere expressly authorized Wright to sign a contract for him, and it is evident from his letters that it never occurred to him that such a thing was necessary or desirable. He did not even refer in terms to Wright’s selling or making a sale of his property. Wright said in his first letter “I can sell it for cash,” and later “I could not sell your pasture 240 acres for the price, $16 an acre,” but these expressions were'such as would naturally be used by a broker authorized only to negotiate a sale. There is nothing in the correspondence inconsistent with the theory that it was-understood on both sides that Wright was employed to perform such services as are ordinarily rendered by a real-estate agent in behalf of one seeking to sell land. We think the trial court rightly sustained the demurrer.
It is urged that this conclusion is opposed by Rottman v. Wasson, 5 Kan. 552, and by Johnson v. Furnish, 29 Kan. 523. In the former case it was found as a fact that, oral authority had been given an agent “to sell” land, and this was held sufficient to enable him to execute a contract of sale. The only question discussed was whether such power could be conferred otherwise than by writing. The decision is not in any view, however, in conflict with that reached here. In the latter case a contract for the sale of land was upheld although executed by an agent, but the sole question presented was whether the contract which he signed conformed to his instructions. In the brief which assailed it an explicit admission was made that he “had been authorized to make a sale of the land.” On the other hand the view here announced was approved in Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071, although there the contract was also, found to be invalid because not in conformity with the terms fixed by the owner.
The contention is made that even if Wright had no power to execute a written contract the letters between him and Gilpin form a sufficient memorandum of an oral agreement upon which a conveyance can be enforced. It was held in Singleton v. Hill, and others, 91 Wis. 51, 64 N. W. 588, 51 Am. St. Rep. 868, that correspondence between the owner and his agent may constitute such a memorandum of a contract made by the latter as to satisfy the statute of frauds; but there it was admitted that the agent had actual authority to effect a sale. Where the agent’s employment is only to find a purchaser a contract entered into by him in excess of his authority can derive no validity from the fact that its terms are the same as those stated in writing by the principal. Moreover, no issue in this regard was presented by the pleadings. The plaintiff in beginning his suit saw fit to rely wholly upon the formal contract. The trial court rightly held that he could not recover upon that, and he made no effort to enlarge the scope of the inquiry by amending his petition.
The judgment is affirmed. | [
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Per Curiam:
This action was brought by the Atchi-son, Topeka & Santa Fe Railway Company to recover certain taxes, amounting to $282.08, levied upon its property in school district No. 99, in Neosho county, for the year 1904, plaintiff having paid the same under protest, alleging the taxes to be illegal, unauthorized and void. A general demurrer to the petition was sustained, from which ruling plaintiff prosecutes error.
Plaintiff claims that school district No. 99 was not an organized school district and had no existence as such on the first day of March, 1904. In the month of March, 1904, a petition was presented to the county superintendent of Neosho county praying that a new school district be formed out of school districts Nos. 9, 10 and 45, in that county. Thereafter the petition was allowed, the notices served, and other steps required by statute to perfect such a change were taken. The proceedings were not completed until June 23, 1904, when the first school-district meeting was held and the tax here in dispute was . levied.
The single proposition involved is whether the tax is illegal and void by reason of the fact that the school district was not in existence on the first day of March, 1904, when personal property is required by law to be listed for taxation, the contention of plaintiff being that there was none of its property located in that district on March 1. There is no claim that on March T the property taxed was not within the territory which now comprises school district No. 99, or that plaintiff’s property was taxed in any other district or subjected to double taxation. There is, therefore, nothing equitable in plaintiff’s claim. It rests upon a technical construction of the law of taxation, and not upon any prejudice to plaintiff’s rights. The fairness or amount of the tax is not questioned.
In School District v. School District, 45 Kan. 543, 26 Pac. 43, the entire tax was collected by the old district, and the new district brought an action to recover the amount it had levied for its own purposes. It was claimed in defense that the new district was not legally organized when the attempted levy was made. In the opinion it was said: “All we care to know is that it had an actual existence at the time the levy was made.” (Page 545.)
In this case the levy was made within proper time, by a district duly organized, and upon property which on the first day of March was within the territory comprising the school district when the levy was made, and none of the property paid school taxes for that year in any other school district. This, we think, is sufficient to render the tax legal and valid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The defendant in error brought this action in the district court’.of Douglas county to recover from the Southwestern Port Huron Company $700, which he claimed was due him on account of the sale pf a road-roller under a written contract of agency. The ipsu.es were tried by the court without a jury, and judgment was rendered in favor of Wilber for $382 and costs. To reverse, this judgment the company brings the case here. '
The only objection urged to the judgment is that it is not sustained by the evidence; that, on the contrary, the evidence shows that the .agent was guilty of bad faith with the company and should therefore be debarred from recovering anything. The evidence tending to show bad faith is disputed, hence the finding of the court thereon is conclusive against the company. The contract between Wilber and the company, among other things, provided:
“The agent shall earnestly endeavor to sell the machinery and supplies manufactured by the Port Huron Engine & Thrasher Company, of Port Huron, Mich., and its áuxiliary concerns, the same being exclusively handled by the company in preference to any other make or kind.”
It nowhere provided that the agent should sell no other like machinery or should sell the company’s machinery exclusively. The undisputed evidence is that Wilber notified the defendant that he had a prospective purchaser, and the company responded by sending him a catalogue and informing him that their general agent in charge of that territory would call upon him in .a few days and would quote him prices and assist him to land his customer; that the general agent arrived at Wilber’s place of business and Wilber gave him the names of the prospective customers and where they lived; and that the general agent went out to see the customers and a few days thereafter accomplished the sale. After the general agent of the company had been at Wilber’s place of business in Lawrence, and had seen the Huddlesons, the prospective purchasers, but before the sale of the machine was closed, be notified Wilber by letter of the discontinuance of his (Wilber’s) agency.
We think this evidence is sufficient to sustain the judgment of the court, to say nothing of the conflicting evidence, as to which, in the absence of special findings of fact, the court is presumed to have given credence to that portion which accords with the general finding in favor of Wilber.
Under the contract upon which this action is based Wilber occupied the relation to the company of a commercial broker, at least, as to selling road-rollers and machinery that was hot to be delivered to the agent but was to be sold by the company on orders obtained by the agent, if such orders were approved by the company. Wilber’s relation to the company was such that the question whether under the contract he was entitled to a commission on the sale is quite different than would be such a question between a principal, who has delivered-machinery to an agent with power to sell. The latter has the power to make an actual sale and delivery óf the goods to the purchaser. The broker can only procure or find purchasers willing to buy, and it rests with the principal to consummate the sale or not so to do.
“A broker is one who negotiates contracts relative to property, and makes sales of the same, when he has no custody of the property. ... A broker is an intermediate agent negotiating between buyer and seller, and as broker he is not entitled to the possession of the property which is the subject of sale or purchase, nor does he receive or pay the price unless he is authorized so to do.” . (1 Words & Phrases Jud. Def. 882.)
An agent for the sale of real estate is classed as a broker, and it was held in Plant v. Thompson, 42 Kan. 664, 22 Pac. 726, 16 Am. St. Rep. 512, “that it is sufficient to entitle real-estate agents to their commission if a sale is effected through their agency as its procuring cause, although the same may be made by the owners of the property, if by their exertions the purchaser and owners are brought together, and the sale results therefrom.” (Syllabus.) In Gillett v. Corum, 7 Kan. 156, it was said:
“An agent employed to sell real estate, and finding a purchaser, and bringing him arid his principal into communication, and setting on foot negotiations which result in a sale, cannot be deprived of his right to compensation by a dischage prior to the consummation of. the sale.” (Syllabus.)
(An extended collation of the authorities on this subject is made in a note to Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 42 Atl. 667, in 44 L. R. A. 321, and to Lunney v. Healey, 56 Neb. 313, 76 N. W. 558, in 44 L. R. A. 593.)
The general rule is: When a sale is actually consummated, if the broker is so far the contributing or proximate cause thereof that the particular sale would not have been made but for some act or effort of his he is entitled to his commission, although he takes no part in the negotiations thereof. Of course every agent is bound to exercise good faith with his principal, and if, in violation thereof, he should unavailingly attempt to defeat a sale he would not be allowed to reap a benefit from a transaction which he so attempted to defeat. As before remarked, however, the question of bad faith in this case was an issue of fact, tried and determined adversely to the company by the court below upon conflicting evidence, and it is thus entirely removed from our consideration.
The evidence in this case strongly indicates that Wilber by notifying the company that he had prospective purchasers for a road-roller and by informing the general agent of the names and places of residence of such purchasers contributed to the resultant sale, and but for this neither the company nor its general agent could have consummated the sale.
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error objected to the introduction of any evidence under the petition, for the reason that it did not state facts sufficient to constitute a cause of action. The objection was overruled, and this ruling of the court is assigned as error. It is insisted that the petition ought to allege specifically who the Mount Arbor Nursery Company is — whether a corporation, partnership, an unincorporated association, or merely a name under which an individual transacts business — and that the omission so to aver makes the pleading fatally defective. We do not agree with this contention. The Mount Arbor Nursery Company is not a party to the action, and has no interest therein; it is merely the assignor of the contract. Such an averment would have been unnecessary if the nursery company had commenced the action instead of its assignee. (Ryan v. Farmers’ Bank of Mo., 5 Kan. 658; 5 Encyc. Pl. & Pr. 71, and notes 3, 4.) The execution of the contract and its assignment to the defendant in error are fully admitted by the failure to verify the answer. (Code, § 108; Gen. Stat. 1901, § 4542.) The assignment gave the assignee all the rights under the contract possessed by the assignor.
It is urged that this contract was not negotiable, and therefore that the defendant in error acquired no rights thereto. It is not claimed to be negotiable, like bills of exchange, promissory notes and other paper under the law merchant, but only that it can be transferred like other property, mere change of possession being sufficient. (Code, §§ 26, 27; Gen. Stat. 1901, §§ 4454, 4455; Washington v. Hobart, 17 Kan. 275, 277; James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 555, 9 Pac. 281; McCrum v. Corby, 11 Kan. 464, 470; Krapp v. Eldridge, 33 Kan. 106, 108, 5 Pac. 372.)
The nursery company would -not be permitted to deny the name of its own adoption. The defendant in error, who as agent for the company induced the plaintiff in error to execute the contract, cannot dispute the name of his assignor, and the plaintiff in error, after dealing with the company in the name under which it transacts business, and having received and retained the property bargained for, is not in a position to cavil about names when asked to pay for what he has received on account of such transaction.
Other questions are presented which depend, entirely upon the same objections, and need not be considered further.
Complaint is made because the court refused to grant a new trial. The ground relied upon was that of newly discovered evidence. A part of this evidence, as shown by the affidavits, is immaterial, and cumulative; no adequate diligence to procure it for the trial was shown, and in view of the discretion which courts have in matters of this character we cannot say that error was committed in this instance. (Carson, Pirie, Scott & Co. v. C. M. Henderson & Co., 34 Kan. 404, 8 Pac. 727; Baughman v. Renn, 33 Kan. 504, 6 Pac. 890; The State v. Tucker, 72 Kan. 481, 84 Pac. 126; The State v. Nimerick, 74 Kan. 658, 87 Pac. 722.)
The issues presented by the pleadings were all fairly presented to the jury, and decided in favor of the defendant in error, which leaves nothing involved therein for consideration here.
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The opinion of the court was delivered by
Smith, J.:
This case was brought here for the review of a former judgment therein, and after a decision was rendered a rehearing was granted and a second decision was filed. A general statement of the facts will be found by referring to these opinions, reported in 72 Kan. 293, 80 Pac. 1020, and 72 Kan. 306, 82 Pac. 1099, under the same title the case now bears.
On a second trial the jury returned a general verdict in favor of Barnes for $1498.25, and made special findings of fact on questions submitted to them by the court. The defendant’s motion for a new trial was denied, and judgment was rendered for the plaintiff in accordance with the verdict. The special questions and answers are as follow:
“(1) Qnes. Did plaintiff swallow a pin? Ans. Yes.
“(2) Q. If your answer to the last question be ‘Yes,’ state on what date plaintiff swallowed the pin. A. On or about July 23, 1902.
“ (3) Q. If your answer be ‘Yes’ to question No. 1, did plaintiff when he swallowed the pin know that he had done so? A. No.
“ (4) Q. If you say plaintiff swallowed the .pin, did he do so intentionally or accidentally? A. Accidentally.
“(5) Q. If your answer be ‘Yes’ to question No. 1, was the swallowing of the pin the sole and only cause of plaintiff’s disability or Avas it due partly to some preexisting sickness and partly to the pin? A. Solely to the pin.
“(6) Q. State whether plaintiff’s disability was causéd by such sickness, if any, alone, or by swallowing the pin alone, or was it due to both sickness and swallowing the pin in conjunction with one another? A. By swallowing the pin alone.
“(7) Q. On what date did plaintiff begin first to attend to some part or portion of the business pertaining to his occupation? A. Not yet able to attend to business.”
Although not all discussed in the former opinions, many of the questions now presented were necessarily considered by the court at those hearings and were determined adversely to the defendant. The judgment being then reversed and a new trial awarded, this court, as in duty bound, indicated in the opinions the respects in which it considered the court below had erred, that errors might not be repeated, and inferentially at least approved the proceedings in all other respects. The evidence to support the claim of Barnes is almost identical with the evidence before, with some additional expert testimony. It appears to be weakened, if at all, only by the proper limitation of the purpose for which statements made in the notice and claim for indemnity could be considered by the jury.
It seems pretty late, then, to discuss the first assignment of error — that the demurrer to plaintiff’s evidence • should have been sustained and peremptory instruction given to find for defendant. Had this been the situation this court should have returned the case with instructions to render judgment for the defendant. It was not and is not the situation. True, the evidence is not very strong, and inferences must be largely relied on, but it legitimately affords the basis for all inferences necessary to debar the ruling asked. It is also true that the evidence might have been more satisfactory had the plaintiff testified and told what, if anything, he knew of the facts in issue. There is no legal obligation, however, upon a party to a civil action to produce any particular evidence. He may produce as much as he chooses, or none whatever, and take the consequences. The legal rule is ordinarily sufficient to protect the adverse party, and he may properly have the jury instructed that if evidence material to the issues is shown to be particularly within the possession and control of either party to the action, and he has neither produced it nor accounted for the failure so to do, it is to be presumed that such evidence, if produced, would not be to the advantage of such party.
The second contention is that the court erred in giving instruction No. 3. The legal question therein involved was necessarily involved and decided on the former appeal, except it is said the court submitted the question to the jury whether the plaintiff “accidentally and unconsciously swallowed a metal pin” when there was no evidence upon which an answer, either affirmative or negative, could be based. That he emitted the pin from his stomach is some evidence that he swallowed it, and the somewhat speedy recovery from retching and vomiting, which is shown to have persisted prior to the emission of the pin, is some evidence that the pin was the cause thereof. The ignorance of several eminent physicians and surgeons who repeatedly examined Barnes as to the cause of the malady, at a time when it would seem the strongest possible motive would have impelled him to tell them if he knew, indicates that he neither purposely nor consciously swallowed the pin.
It is tacitly admitted that Barnes should not be barred of his claim by reason of his failure to give notice of the accident during the time he is shown to have been mentally incapable of doing so, but it is urged that for more than ten days, even some weeks, after the alleged time of the accident his mind was clear and he should then have given the notice. It is sufficient to say that if the evidence tends to prove anything it is that during all that time neither Barnes nor any one connected with him knew that an accident had-occurred or what was the cause of his malady.
It is plausibly said that in this instruction the court submitted to thé jury for its determination the legal question whether the plaintiff had “made claim for compensation therefor, in accordance with the constitution and by-laws of the defendant.” The instruction, however, contained a recital of the facts which it would be necessary for the jury to find to justify this conclusion, and therefore is not prejudicial in this respect.
Several assignments of error are based upon the overruling of objections to a hypothetical question propounded to several physicians and surgeons for the purpose of eliciting their opinion as to the cause of plaintiff’s physical and mental condition from about the time of the alleged accident to about six or seven months thereafter. The question in the type and on a page the size of one in: our reports would be about a page and five lines in length. It was not entirely accurate in its assumptions, nor were all the facts assumed which the evidence in the case tended to prove. Yet it was a fair résumé of the facts, supported by some evidence which plaintiff’s counsel evidently considered as favorable to his version of the case. . There were omissions of some facts supported by some evidence which would be regarded as unfavorable to plaintiff’s theory of the case. (As the evidence cannot be arrayed for comparison, it is believed this statement will give the reader a better idea of the questions involved than would a full copy of the hypothetical question.)
The objections to the question were: that it was too long; it was not a fair summing up of the evidence ; it .eliminated important facts supportéd by evidence, and included facts not so supported; also, that it was incompetent and' immaterial. There is some contrariety of opinion among the courts of this country as to the essential contents and form of hypothetical questions, but the view taken by the supreme court. of Iowa in Beaver v. Spangler and Blake, 93 Iowa, 576, 61 N. W. 1072, seems to be in accord with the weight of authority. We quote therefrom:
“Next it is insisted that the hypothetical question propounded to the expert witnesses for contestants was unfair, inaccurate, distorted, and untrue in many particulars, and that objections to it should have been sustained. The rule heretofore announced by this court with reference to such questions, in the case of Meeker v. Meeker, 74 Iowa, 357, 37 N. W. 773, 7 Am. St. Rep. 489, is as follows: Tt is a general rule that hypothetical questions put to experts should be based upon facts which the evidence tends to show. . . . It is not required that the questions should be based upon conceded facts, nor is technical accuracy required in framing the questions. If they are entirely without the support of evidence, they should be excluded'. Ordinarily, opposing counsel will not be slow in reexamination of the witness to correct the hypothesis upon which the question is based, if it be incorrect.’ In propounding such a question, counsel may assume the facts in accordance with his theory of them. It is not essential that he state the facts as they exist, but the hypothesis should be based on a state of facts which the evidence tends to prove. Under familiar rules of practice, each side has its theory of what is the true state of facts, and assumes that it has or can prove them to the satisfaction of the jury, and, so assuming, shapes hypothetical questions to experts accordingly. The question propounded to the experts for contestants in this case is a very long one, covering more than twelve pages of the abstract, and it is' impracticable to set it out in this opinion. We have gone over it very carefully, and are fully satisfied that there is nothing in it which the evidence, from contestants’ standpoint, did not at least tend to prove.” (Page 602. See, also, Meeker v. Meeker, 74 Iowa, 352, 357, 37 N. W. 773, 7 Am. St. Rep. 489; Hicks v. Citizens’ R’y Co., 124 Mo. 115, 27 S. W. 542, 25 L. R. A. 508; The Louisville, New Albany & Chicago Railway Company v. Wood, 113 Ind, 544, 14 N. E. 572.)
Some of the assumptions are somewhat exaggerated, but in no material respect; for instance, as to the length of time the retching and vomiting continued. Hypothetical questions, to be sure, must be based upon facts which the evidence tends to show, but the attorney propounding the question is entitled to any reasonable theory in the interpretation of the evidence. There is no hardship or injustice in this, as the opposing counsel may reframe the question upon any such theory as he may entertain and require the opinion of the expert thereon. No perversion of the evidence and no hypothesis not fairly supported thereby in every material respect should, however, be allowed. There is some evidence, direct or circumstantial, to support every hypothesis in this question which seems material to the opinion expressed, and even the slightest deviation, as before said, may be corrected or counteracted on cross-examination. It is believed that the case of Davis v. Insurance Co., 59 Kan. 74, 52 Pac. 67, cited by defendant, is in accord with the views herein expressed, so far as that case is analogous to this.
Again, it is urged that the question should not have been allowed for the reason that the opinion called for is, in effect, a conclusion upon the merits of the case, and thus invades the province of the jury. This objection is untenable. The verdict must, of necessity, be in favor of Barnes for an amount to be determined by the jury or it must be for the defendant. The verdict depended upon a number of facts. (1) Did Barnes meet with such an accident as the indemnity contract contemplated? (2) Was he immediately, wholly and continuously prevented from pursuing his vocation? (3) If Nos. 1 and 2 are affirmatively answered, did his condition result from the accident? (4) Did he within ten days after the accident give notice thereof to the defendant; if not, was he in a condition of mind which under the instructions of the court excused him from so doing while that condition lasted, and, if so, did he give notice within ten days after the excusing condition ceased? (5) How much, if anything, was Barnes entitled to recover? These questions probably might each be subdivided into as many more. The-answer to the hypothetical question tended to afford an answer to question No. 3, above stated. It is evidence of only one fact of many that influenced the verdict; in short, is only related to the verdict as all proper evidence must be.
It is urged that the question was objectionable in that it requested an opinion as to what was the cause of the assumed condition instead of what could have been the cause. The cases of Davis v. Insurance Co., 59 Kan. 74, 52 Pac. 67, and Glasgow v. Railroad, 191 Mo. 347, 89 S. W. 915, are cited in support of this proposition. We see no relevancy to .this question in Davis v. Insurance Co.,, and very little in Glasgow v. Railroad. The rule in the latter case is based upon the fact that the evidence disclosed that the injury may have resulted from other causes — in short, the court held that the very nature of the case was such that no expert could say this or that was the cause, but could only say this or that might or could have been the cause.
The propriety of every question of this character depends upon the evidence or the hypothesis upon which it is based. If an expert were asked his opinion as to the cause of a contused wound, assumed to have been inflicted by a blow, he would be justified in saying it was inflicted with some blunt instrument, and, of a cut, that it was inflicted by a sharp instrument; if asked what particular instrument inflicted either wound he probably would only be able to say that it could have been inflicted with any one of a number of such instruments. The propounder of a hypothetical question is entitled to introduce the best evidence he has available which the evidence or hypothesis permits, and an opinion as to what might or could be may not be of the same evidential value as an opinion as to what was a certain cause. (See The Louisville, New Albany and Chicago Railway Company v. Wood, 113 Ind. 544, 14 N. E. 572.) We think, under the hypothesis embraced in the questions in this case, the plaintiff was entitled to ask of, and to have answered by, the doctors the question, “Assuming all these facts to be true, doctor, I will ask you what in your opinion, as a physician and surgeon, independently of all other causes, produced the condition of the patient?” Of course, each doctor could, in answer, give an unqualified opinion or could qualify the same as his judgment dictated.
The form of such questions and what may be embraced therein are so dependent upon the particular circumstances of each case that control over the same must be left largely to the discretion of the trial judge, and his rulings thereon should be reversed only for an abuse of such discretion. (1 Wig. Ev. § 682, b, d.)
It is somewhat difficult to justify the admission of the evidence of Doctor Stemen that about the last day of February, 1903, he told Barnes that he (Barnes) had swallowed a pin, the purpose evidently being to show that Barnes was ignorant of the fact until so told. Yet there was evidence tending to show that at the time he emitted the pin he was unconscious and continued in bad mental condition until about this date. It was for the jury to say from the evidence when, if at all, he so far recovered his mind as to understand what his condition had been, and what, if any, accident had befallen him; and from the circumstances that only about five days thereafter he gave notice of the claim sued on, coupled with the evidence of such .communication, the jury may have well concluded that theretofore he was ignorant that the basis for his claim existed.
Little need be said in regard to the objection to the testimony of Mrs. Nathaniel Barnes and Miss McCul-lick, who were shown to have abundant means of observation, and who testified to their opinions of Barnes’s mental condition. It is said they testified to conclusions and not to facts. Opinions are necessarily conclusions. There can he no contention but that non-expert witnesses, brought in frequent contact with the person whose mental condition is under investigation, may give their opinions as to his sanity or insanity, either first stating the facts upon which the opinions are based or doing so afterward on cross-examination.
We deem it unnecessary to discuss other questions suggested. There seems to have been a fair trial, peculiar only in that the plaintiff was not placed upon the witness-stand. It was at the plaintiff’s option, however, to go upon the stand or not to do so, unless called thereto by the defendant as a witness. This option the defendant could also have exercised as it chose. Both exercised the option one way, and the defendant cannot complain thereof.
Two juries have pronounced in favor of the plaintiff, and the trial court has twice approved their findings. We find no reversible error in this second trial, and the judgment is.affirmed. | [
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Per Curiam:
This was a suit to enjoin the making of an embankment for use as a highway along the side of plaintiff’s land. The embankment operated to hold back upon plaintiff’s land water which overflowed the banks of the Republican river in periods of high water, and necessarily injured his farm. His testimony showed that this overflow was no more than surface-water, against which an owner affected may protect himself, and, therefore the court rightly sustained a demurrer to his evidence. The case falls fairly within the rule of Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249, and Singleton v. Railway Co., 67 Kan. 284, 72 Pac. 786.
It is also clear that the strip of land upon which the embankment was built must be regarded as a highway, and that the public authorities .had the right to use and improve it.
The contractors who were building the road, and who were made defendants, did not answer or defend, and plaintiff insists that he was at least entitled to judgment against them by default. In a case of this kind judgment cannot be taken by default, nor unless a prima facie case is made against them by proof offered. This was not done.
While the special findings made by the court after sustaining a demurrer to plaintiff’s evidence are superfluous, they are not antagonistic to the ruling on the demurrer, and may be regarded as stating the reasons for upholding the demurrer to the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court from which this proceeding in error arises was one of ejectment. The land in controversy was state school-land. On June 16, 1885, it was sold to Maurice Walton, and a certificate of purchase was duly issued to him. On December 14, 1893, the state attempted to forfeit Walton’s contract. A notice of forfeiture was issued, which the sheriff served and returned. In the year 1903 the land was reappraised and sold to John Hixon, who entered into possession in January, 1904. In April, 1905, Walton quitclaimed his interest in the land to T. J. Burgess. Afterward Burgess made a tender to the county treasurer of the sums delinquent upon the Walton contract and of the taxes in arrears, which tender was refused. In August, 1905, Burgess sued Hixon for possession, and, as the result of a trial, was defeated.
If the plaintiff is entitled to recover it is because the sheriff’s return on the notice of forfeiture fails to show that all the steps were taken which the statute enumerates as essential to a valid service.
The defendant claims that Walton and his assignee, the plaintiff, have acquiesced in the forfeiture proceedings, and' are now estopped to impeach them even although they may be invalid. A general finding for the defendant brings to the support of the judgment all the evidence in the record favorable to his contention.
Walton paid no taxes after his purchase, and paid no instalments of his contract after April, 1889. His rights were, therefore, subject to forfeiture when the state initiated proceedings against him. All the steps prescribed by statute were in fact taken, although the .sheriff’s return did not recite them. The sheriff went all over the land and found it unoccupied. Walton himself could not be found. The notice of forfeiture was posted in a conspicuous place in the county clerk’s office. The record of the sale in the county clerk’s office was stamped “forfeited,” with the date, and the original notice was stamped in the same manner and preserved of record.
Of course Walton knew from the instant of his first default that his rights were subject to forfeiture. He knew that upon his failure to pay it.was the imperative duty of the county clerk to put into operation, and of the sheriff to carry out, forfeiture proceedings. He was bound to anticipate and to expect that the law would be followed, and the record which was in fact made was ample to give him information that the state had undertaken to terminate his rights and that the officials having authority in the matter construed what was done to amount to a restoration of the land to the public domain.
At the date of the forfeiture proceedings the land was within the boundaries of a large ranch owned by Burgess. From that time, until July, 1899, a period of six years, it was used and rented to others by Burgess as if he owned it. The possession of Burgess was not disturbed by any act of ownership on the part of Walton. After 1893, as before, Walton paid no taxes and made no payments on his contract. In July, 1899, the board of county commissioners executed to Burgess a lease of the land, as state school-land, for a period of four and one-half years. Burgess had the use and enjoyment of the premises during that period, and a man named Hinkle, who, according to the defendant’s testimony, was then in charge, paid the stipulated rent. The lease was kept in the office of the county clerk as a part of his records.
On February 28, 1903, the land was sold to Hixon as leased school-land, and certificates of purchase therefor were duly issued to him. Upon the expiration of the Burgess lease Hixon took possession and improved the property by fencing it.
These facts are sufficient to show that Walton, with means of information sufficient to lead him to the facts and to stir him to action, acquiesced in the forfeiture proceedings for nearly ten years, allowed the state to deal with the land as its own, both by leasing it and by selling it, and allowed a purchaser in the regular course of legal proceedings to expend money in acquiring the state’s apparent title and in the improvement of the property.
Hixon testified that he had known the land since he was a boy, had lived in the neighborhood, knew the manner in which it was occupied and used, knew of the lease to Burgess, and in purchasing the land from the state purchased it as leased school-land. There can be no question, therefore, but that Hixon’s conduct was induced by the failure of Walton to complain of the forfeiture and by the show of full dominion which Walton negligently, if not wilfully, permitted the state to make.
Under these circumstances the estoppel against Walton is complete, and there are additional reasons why it should be effective against Burgess. The visible fact was that the land was included within the fences of the Burgess ranch. For six years Burgess apparently excluded Walton from access to it. Then Burgess leased it and occupied it as a tenant of the state for four and one-half years. He had actual knowledge of facts concerning which notice' could only be imputed to Walton through their publicity and their relation to possession. Burgess actually furnished the material with which to biiild up the estoppel against Walton.
Like Walton, Burgess suffered Hixon to buy the land, make a payment upon it, take possession, and spend money in its improvement; and the evidence shows that for a nominal consideration only he took a quitclaim deed from Walton, which recites that Walton is “of Portland, in the county of Multnomah, and state of Oregon.”
Doubtless cases may be found in thé wavering course of the development of the law of equitable estoppel which would allow Burgess to oust Hixon from this land, but there is none which would satisfy the conscience of any court committed to the righteous doctrine that whenever a man with notice or means of knowledge of the facts and of his rights remains silent for a long period of time and abstains from impeaching a proceeding devesting him of rights respecting property, so that another man is induced to believe it ha's been acquiesced in as valid and acting upon such belief is induced to purchase the property and expend money in its improvement, the proceeding becomes unimpeachable in equity, whatever its original character may have been. It would be superfluous to append a list of authorities in support of a principle of such manifest justice, based as it is upon the broad foundation of common honesty, common decency, and fair dealing.
The plaintiff says that “presumably” he was in possession under Walton. The court is under no obligation to presume a fact which, if it exists, is peculiarly within the plaintiff’s knowledge and power to prove. Not having been established by evidence, for all purposes of the case*the fact-does not exist. Besides, from July, 1899, such a presumption would run counter to Burgess’s lease from the state as owner.
The plaintiff argues that proof of conduct on the part of the sheriff in serving the forfeiture notice other than that shown by his return was improper. This would be true if the defense were based upon the claim of a forfeiture valid in fact under the statute, but such is not the case. It is sufficient for the defendant that various steps were taken by the state in an effort in good faith 'to forfeit, which, with the means and opportunity of full knowledge at hand, the plaintiff has accepted as effectual and has induced the defendant to act upon as effectual. Even if it were technically invalid Walton could acquiesce in whatever the officers did as if it were valid, and if he did so and led others to do so he cannot afterward turn against them. Therefore the defendant had the right to show everything the sheriff did, whether noted on the return or not. The evidence that no one was in possession, that Walton could not be found, and that notice was properly posted, established the most important factors of the state’s 'attempt to terminate Walton’s rights. The posted notice was also a means, of information of what had been undertaken, and all the facts enumerated furnished the starting-point for the proof of acquiescence.
From what has been said.it is clear that this case is entirely different from any of the so-called school-land cases recently decided. Here rival claimants of the land are contending with each other, and whatever his strict legal rights once may have been the original purchaser cannot recover if his own conduct has been such that his success would in effect work a fraud upon the subsequent purchaser.
In Spencer v. Smith, 74 Kan. 142, 85 Pac. 578, and in similar cases, the original purchaser desired to put himself in position to litigate with the subsequent purchaser. He sought to compel the county treasurer to accept the arrears on the contract and delinquent taxes. The treasurer answered that his rights had been forfeited. The issue tendered was whether the forfeiture proceeding was valid, and the determination of that •issue depended upon whether or not the sheriff had served the forfeiture notice .according to law. The court held that the treasurer had no right to raise such an issue; but, passing to the merits, it further held that it was bound by the record and could look to nothing outside the sheriff’s return. So far, therefore, as the treasurer was concerned, he was bound to accept the tender.
In this case the defendant admits that the record shows the forfeiture proceeding to have been irregular, but he claims the original purchaser is estopped to assert its irregularity.
In the Spencer-Smith case the treasurer answered further that the original purchaser had lost title to the land in controversy by abandonment. The court held that it did not lie with the treasurer to make such a plea, but if it did the plea was unsound.
In this case it is not held that Walton has lost his title by abandonment. It is held that he has chosen to treat as valid proceedings which otherwise could not have bound him; that he has induced the defendant to. believe and to act upon the belief that he is bound; and that it would be unconscionable to permit him to change his attitude now and overthrow rights which have been built up at the instigation and under influence of his own deceptive conduct.
The act of 1901 (Laws 1901, ch. 350; Gen. Stat. 1901, §§ 6339, 6357) under which the sale to Hixon was made is not open to the constitutional "objection urged against it. The act of 1864 (Laws 1864, ch. 102), submitted to and approved by the people, contained an express provision for amendment by- subsequent legislation.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The principal question involved in this case is wh.ether the allegations of the answer were necessary to a complete determination of the rights of Mrs. Triekett and Rankin in the property. These allegations are: That at the time of the -purchase of the one-half interest therein by Mrs. Triekett the property was jointly owned by Rankin and Joseph P. Triekett, as partners; that the partnership owed Rankin a debt growing out of the partnership business; and that he was entitled to a lien thereon for the amount of such indebtedness. If the rights of Mrs. Trickett and Rankin, respectively, in the property in controversy could be fully determined without reference to these issues, which were definitely made in the pleadings, then Joseph P. Trickett was not a necessary party defendant and the judgment and order of the court were right; otherwise they were wrong.
It seems to us that the bare statement of the proposition compels the answer that the court erred. Mrs. Trickett could not own an unencumbered one-half interest in the property which she claimed and Rankin own the other half, as she admits, and at the same time Rankin have a lien upon the entire property, as he alleges. To determine whether Rankin had such a lien it was necessary to determine whether there had been a dissolution of the partnership before the commencement of the suit and an accounting and settlement by the firm members of their partnership affairs. The issues were fully made, and the evidence thereon was before the court, and by its order it refused to determine what that evidence proved. This was error. Defendant Rankin had pleaded facts which entitled him “to relief concerning the subject-matter of the action” (Gen. Stat. 1901, § 4528), and if the evidence supported his claim he was entitled to the-relief; otherwise he was not. Section 4846 of the General Statutes of 1901 provides four specific causes for which the court may dismiss an action without the request of the plaintiff, and then provides that in all other cases the trial of the action and the decision must be upon the merits. The next section of the statute insures to the defendant the right to have his set-off or counter-claim tried upon its merits, although the plaintiff may have dismissed his action or failed to appear.
Considerable discussion is found in the briefs as to whether, under the bill of sale from Joseph P. Trickett to Rankin and the written contract of copartnership between them, the abstract outfit became partnership property or each partner severally owned an undivided one-half interest therein. If any doubt existed as to the intention of the partners, after reading the letter from Joseph P. Trickett to Eankin, which formed a part of the negotiations and which was improperly excluded from the evidence, together with the contract to sell, the bill of sale and the partnership contract, it is removed by the evidence of Joseph P. Trickett, as well as by the evidence of Eankin. They each testified that the abstract books lacked about ten years of being written up to date; that both partners were to assist in bringing them up to date; and that when this should be done the books would be greatly increased in value.. We find no difficulty in saying that it was partnership property.
The chattel mortgage to Bryan & Son covered the entire outfit, and other property, and was executed prior to the formation of the partnership and the purchase by Eankin, but Eankin had 'no actual knowledge or notice of the mortgage at the time of his purchase, and it was not recorded until a long time thereafter. The lien of Bryan & Son was therefore subject to Ban-kin’s rights in the property.
The judgment is reversed and the case is remanded for further proceedings in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Arn, J.:
This action is almost identical with the case of Topinka v. American Eagle Fire Insurance Co. of New York, ante, p. 181. While there is some slight variance in the facts, the issues of law and the contentions of the parties are the same as in that case.
At the close of plaintiff’s evidence, defendant demurred thereto and offered no testimony in its own behalf. The trial was to a jury, but in this case ho special finding was made. Plaintiff obtained judgment for $340.20 and for attorney fees to be recovered and collected as costs.
The judgment in this case is hereby affirmed upon the authority of Topinka v. American Eagle Fire Insurance Co. of New York (this day decided), ante, p. 181.
Harvey, C. J. not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
The primary question involved in this case is whether an appeal lies to the district court from the judgment of the juvenile court that a child under the age of sixteen years was not dependent and neglected.
Parties to the juvenile court proceedings were Grace B. Murrow, who filed the petition to have the child declared dependent and neglected, Paul M. Powell and Alletta Powell, father and mother of the child, and Richard A. Carpenter, the guardian ad'litem for the child, appointed by the juvenile court for the purpose of the hearing.
The petitioner and father appealed to the district court from the judgment previously mentioned. The latter court sustained motions of the other two parties, the mother and the guardian ad litem, to dismiss the appeal on the ground an appeal did not lie from the judgment.
In view of the narrow limits of the appeal it is unnecessary to state the facts upon which the juvenile court reached its conclusion. However, in view of some contentions of appellants a few facts will be stated.
The child previously had been placed in the care, custody and control of the mother at the conclusion of a divorce action in the district court of Shawnee county. That order of custody has not been changed. Only the order relative to the amount of support for the child has been modified by that district court. It is conceded the father is complying fully with that order. By reason of circumstances pleaded and disclosed by the evidence, which are not involved in the sole issue presented by the instant appeal, the child resided in the home of a friend of the mother in Cherryvale, Kan. That person is being paid for her services. Upon a consideration of all the facts presented the juvenile court concluded the child was not dependent and neglected.
The pertinent portion of the juvenile code statute pertaining to appeals from that court to the district court is found in G. S. 1935, 38-412 and reads:
“An appeal shall be allowed to the district court by any child from the final order of commitment made by the juvenile court, and may be demanded on the part of the child by its parent, guardian, or custodian, or by any relation of such child within the third degree of kinship.” (Our italics.)
Appellants argue the statute permits an appeal on the part of the child by its parent and that the father, therefore, had a right of appeal. The statute does permit an appeal by the father, but from what? From a final order of commitment. There was no final order of commitment of the child in this case. The child previously had been committed to the care, custody and control of the mother by the district court of Shawnee county in the divorce action. The juvenile court did not disturb that custody order in any manner. In fact, it made no order concerning the commitment of the child to any one. It merely concluded the child was not dependent and neglected. No order was, therefore, made from which the statute pertaining to the specific matter now under consideration grants a right of appeal.
An appeal does not lie as a matter of right. The right is statutory. It may be limited to a particular class of cases as the legislature in its wisdom directs or it may be entirely withdrawn. This subject was rather recently considered in Evans v. George, 162 Kan. 614, 178 P. 2d 687, and in City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P. 2d 243. Many of our previous cases were there reviewed. We do not deem it necessary to restate the facts in those various cases. In the Hutchinson case it was held:
“District courts have such jurisdiction in their respective districts as is provided by law. (Constitution, art. 3, § 6.)
“The right to an appeal is neither a vested nor a constitutional right. It is purely statutory, and may be limited by the legislature to any class of cases or in any manner, or may be entirely withdrawn.
“It is the province of the legislature to determine the orders or judgments from which an appeal will lie and to designate the court to which such appeal shall be taken.” (Syl. ¶¶ 1, 2, 3.)
Appellants argue a statute granting the right of appeal should be liberally construed, citing In re Estate of Charles, 158 Kan. 460, 465, 148 P. 2d 765; 2 Am. Jur., Appeal and Error, § 7. The citations do not reach the precise point here involved. In order for these authorities to be applicable they must pertain to an order which the statute makes appealable.
Appellants also argue when the petition was filed the child became a ward of the juvenile court subject to an order of custody after the hearing; the' ruling of the court in effect recommitted the child to its previous custody, the mother; this was a final order of commitment.
The fallacy in the first part of that contention is the juvenile court did not acquire jurisdiction over the subject of custody at all until it determined upon substantial evidence that the child was dependent and neglected, within the definition of section 38-402 of the act. (Trent v. Bellamy, 164 Kan. 438, 190 P. 2d 400; Houser v. Houser, 166 Kan. 45, 47, 199 P. 2d 497.) With this in view the remaining parts of the contention fall. Moreover the order of the juvenile court cannot properly be interpreted to constitute an order of custody.
Appellants also lean on Hollis v. Brownell, 129 Kan. 818, 284 Pac. 388; In re Houser, 166 Kan. 48, 199 P. 2d 499. In the Hollis case the juvenile court, contrary to the instant case, found the child to be dependent and neglected and actually awarded its custody to its grandfather. No issue on the right of appeal was involved in the Houser case and what was there said concerning appeals pertains only to a right of appeal in conformity with statutory procedure.
Appellants further argue an appeal properly should lie from a ruling that a child is not dependent and neglected. There may be merit in the contention but as shown in the cases cited that is a contention which must be addressed to the legislature rather than to the courts.
One other question requires attention. The guardian ad litem seeks an allowance for his expenses and services in this court in connection with the instant appeal. The request is resisted by appellants. The latter rely upon Prest v. Black, 63 Kan. 682, 66 Pac. 1017; Warner v. Warner, 83 Kan. 548, 112 Pac. 97; State, ex rel., v. Sage Stores Co., 158 Kan. 146, 145 P. 2d 830. In the last cited case attorneys’ fees and expenses incurred in a previous ouster action were sought. No guardian ad litem was involved. We reviewed numerous cases and held:
“Attorney’s fees and expenses of litigation, other than ordinary court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific provision therefor.” (Syl.)
With that general ruling in mind we shall proceed to determine whether an allowance for expenses incurred and services rendered by the guardian ad litem in the supreme court may be made where such guardian is appointed by the juvenile court. The Prest and Warner cases, supra, were civil cases decided prior to the 1911 revision of the code of civil procedure. (Laws 1911, ch. 228, § 1, now G. S. 1935, 60-408.) That statute now provides for the appointment of a guardian ad litem under circumstances therein designated and states:
“Such guardian ad litem shall receive such reasonable compensation as the court or judge before whom the, action is pending, or tried, may order, the same to be taxed and collected as costs in the action.”
Following the above amendment attorney’s fees for a guardian ad litem, appointed in the district court, were allowed for services in the supreme court (Emery v. Emery, 104 Kan. 679, 683, 180 Pac. 451) and in Galloway v. Wesley, 146 Kan. 937, 941-947, 73 P. 2d 1073 we made an allowance to such guardians for expenses incurred in the course of their representation, for legal services previously rendered and for services on appeal in this court.
But what about the allowance of expenses and attorney’s fees of a guardian ad litem appointed by the juvenile court? First, it will be well to observe the necessity for such services. G. S. 1947 Supp. 38-405a provides:
“In all proceedings in a hearing in the juvenile court concerning a dependent, neglected or delinquent child, as defined by law, the court shall appoint a guardian ad litem to represent said child.”
In a recent case we held:
“G. S. 1947 Supp. 38-405a requires that a guardian ad litem be appointed to represent a child in all proceedings in a hearing in juvenile court concerning a dependent, neglected or delinquent child.
“Appointment of a guardian ad litem at the time judgment is rendered and not in time to participate in a hearing to determine whether a child is de pendent or neglected does not comply with, the purpose and intent of the statute.
“Failure to appoint a guardian ad litem in accordance with the provisions of G. S. 1947 Supp. 38-405a renders all proceedings and orders made after the hearing not merely voidable but void.” (In re Houser, 166 Kan. 48, syl. ¶¶ 1, 2, 3.)
Another pertinent provision of the juvenile code pertaining to a dependent, neglected or delinquent child, contained in G. S. 1935, 38-405, reads:
“On the return of the summons or other process, or as soon thereafter as may be, the court shall proceed to hear and dispose of the case in a summary manner and enter final judgment therein; and the costs of all proceedings under this act may, in the discretion of the court, be adjudged against the person or persons so summoned, appearing, or arrested, as the case may be, and collected as provided by law in civil cases.” (Our italics.)
Upon appeal from the juvenile court the district court tries the case de novo. It has the same jurisdiction in the premises, but no greater, than the juvenile court had. (Trent v. Bellamy, 164 Kan. 438, 446, 190 P. 2d 400, and cases therein cited.)
The civil code in G. S. 1935, 60-3704, 60-3705 provides for taxing of costs to parties plaintiff or defendant under circumstances not here applicable. G. S. 1935, 60-3706, however, provides:
“In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in. its discretion it may think right and equitable.”
Under the provisions of G. S. 1935, 60-408, previously set forth, the court in civil cases is expressly authorized to fix such reasonable compensation for a guardian ad litem as the court before whom the action is pending, or tried, may order, the same to be taxed and collected as costs in the action. We think from these various statutes it clearly appears courts are authorized to compensate a guardian ad litem appointed by a juvenile court for expenses reasonably incurred and for legal services rendered in the performance of his statutory duty.
Of course, such allowance should be reasonable under the circumstances of each particular case. In the instant case the issue whether there existed a right of appeal to the district court from the particular judgment of the juvenile court is the same whether presented by the mother of the child or by its guardian ad litem. The attorney for the mother and the guardian ad litem have filed a joint brief in this-court. Under all the circumstances we think we would not be justified in making an allowance to the guardian ad litem in excess of $100. It is the order of this court that an allowance be made to the guardian ad litem in the sum of $100 which shall cover his services in this court and his personal expenses incident to his appearance here on appeal. The allowance is taxed against the appellant, the father of the child, as costs in the action. In this connection see Emery v. Emery, supra, p. 683.
The judgment of the district court dismissing the appeal from the juvenile court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This action was begun by the United States of America making a demand in probate court in the estate of a decedent for the payment of two notes alleged to have been given an agency of the United States by decedent, and upon which it was alleged he had made only a small payment. This demand was made by the United States Department of Agriculture, Farmers Home Administration. Amongst other things, it alleged that the Farmers Home Administration, an agency of the United States, became successor in interest to the Emergency Crop and Feed Loans made by the Secretary of Agriculture and Governor of the Farm Credit Administration and the loans made by the Resettlement Administration and the Farm Security Administration. The probate court disallowed the demand. On appeal the issues were submitted to a jury, which returned a verdict against the United States. Judgment was entered accordingly. The United States has appealed.
The notes were given by the decedent to the Governor of the Farm Credit Administration, one for $50 May 15, 1934, and one for $100 May 4, 1935. They bore interest at the rate of five and one-half percent per annum and were each due October 31, 1934, and 1935, respectively. The demand was made May 26, 1948. It was denied by the probate court July 23, 1948. The United States duly appealed to the district court.
When the appeal reached the district court the administrator of decedent’s estate filed an answer in which he admitted the execution of the notes. He denied, however, that no payments had been made other than those credited and alleged the notes had been fully paid.
The field supervisor for the Farmers Home Administration testified that he was familiar with the notes; that they showed only a payment of forty-four cents on the principal and seven cents on the interest on one of them; that payments could have been made to various field representatives of the Emergency Crop and Feed Loan Office, mailed directly to the governor of the Farm and Credit Administration or could have been mailed to Washington; that the notes and files kept by the United States were transferred directly from the Emergency Crop Loan Administration at Denver. He also testified that if decedent had paid he surely would have protested all the dunning letters he had received on an account he did not owe; that he had tried to find decedent during his lifetime but was unsuccessful. The statement of account which showed $258.16 principal and interest was introduced.
The administrator of the estate testified that decedent left an estate of approximately $4,500; that no claims other than the funeral claim and that of the government had been filed; that he knew nothing about the debt due the government and decedent kept no records; that decedent worked for him up to the time of his death at a salary of $35 per week plus a place to live, lights and fuel, and as far as he knew was able to pay his debts; that decedent paid most of his debts by cash and did not keep much of a checking account.
The government witness being recalled testified that the principal indebtedness amounted to $149.31 and the interest to $108.35 and there was an interval from the time decedent left Luray, Kan., about two years, until he was found in Salina, Kan.; that his agency could not locate decedent; that after he was found in Salina the witness wrote at least four collection letters to him.
At the close of the testimony the plaintiff moved for a directed verdict. This motion was denied. The trial court proceeded to instruct the jury. Amongst these instructions were 4, 5 and 7. They were, as follows:
“4. You are further instructed that in an ordinary case a creditor cannot wait more than five years to collect on a written note. If he does, the law protects the debtor and the latter may use the five years statute of limitations as an absolute defense to the plaintiff’s action. You are instructed that the statute of limitations does not run against the federal government, however, the fact that the statute of limitations does not apply against the federal government does not affect the operation against it of a presumption of payment from the lapse of time. The presumption of payment from the lapse of time, however, as to debts due the government, is not conclusive but one which may be rebutted by evidence showing that no payment has actually been paid.
“5. You are instructed that the notes sued upon in this case were executed and matured in 1934 and 1935, 13 or 14 years ago. The lapse after a debt is due over a considerable period of time may raise a legal presumption of payment and even if the period of time is less than the periods required by law to raise the presumption, it may be sufficient evidence of payment to warrant the inference of payment when considered in connection with all the other circumstances of the case. So, if you find from all the evidence presented that it is more likely that these notes have been paid than that they have not, you will find for the defendent administrator.
“7. You are instructed that in connection with the long lapse of time in this case, you may take into consideration all the other facts such as the solvency of the debtor throughout the period, the fact that the debtor had real and personal property not exempt by law which could have been taken in execution, the presence or absence of a demand by the government.”
The plaintiff made an objection to these instructions, which was overruled. The jury returned a verdict in favor of the administrator. The plaintiff moved for judgment notwithstanding the general verdict. This motion was overruled.
The motion for a new trial was on the grounds that the trial court erred in overruling plaintiff’s motion for a directed verdict; in giving instructions 4, 5 and 7; that the verdict and judgment were contrary to the evidence and there was no evidence to support the verdict; and the trial court erred in overruling plaintiff’s judgment notwithstanding the verdict. This motion was overruled.
The United States has appealed. The specifications of error are that the trial court erred in overruling the motion of plaintiff for a directed verdict; in its instructions to the jury; in overruling plaintiff’s motion for judgment notwithstanding the verdict; and in overruling plaintiff’s motion for a new trial.
Plaintiff first argues here that the court erred in overruling its motion for a directed verdict. In this connection it first points out that loans made through the agencies mentioned to farmers were the acts of the United States in its sovereign capacity.
There is no serious contention that such is not the rule. The trouble arises when we apply the rule to the facts in this record. The claim was contested by the defendant administrator on the theory that the lapse of time, together with other circumstances, could be considered on the question of whether the notes had been paid and that since the administrator of the estate denied the allegation that the notes had not been paid, then the question of whether they had been was a proper one to submit to the jury.
The United States points out that only about thirteen or fourteen years had elapsed since the maturity of the notes in question. It argues the rule is there is no presumption of payment when less than twenty years have elapsed. Hence there could be no presumption of payment in this case. On the question of whether the court erred in overruling the motion of the United States for a directed verdict the United States argues that, granted that the lapse of time should be considered along with the other evidence on the question of whether the notes had been paid, there was no other evidence and since the presumption of payment does not run against the government in its sovereign capacity, then there was no question to submit to the jury.
This argument fails to give proper consideration to some circumstances that appear in this record. Besides the lapse of time, there was evidence that decedent was not given to the practice of avoiding his obligations; that he died with an estate considerably more than sufficient to pay these two notes; that the government is usually diligent in collecting obligations due it. There was a further persuasive piece of evidence to the effect that decedent paid a note in full that was made after the last one of these notes. Just why the government accepted the payment and applied it to the pay ment of the new note rather than the old one does not readily appear. The debtor was dead when this claim was filed. His testimony on the question of payment was not available. In addition, there was evidence that the notes had been in possession of some two or three different federal agencies and the records of one of them had been transferred from an office in Wichita to the office •of another agency in Denver. Also the same witness testified that payments could have been made to various field representatives of the Emergency Crop and Feed Loan office, mailed directly to the Governor of the Farm Credit Administration, the Regional Office of the Crop and Feed Loan Section of the Farm Credit Administration and payments could have been mailed to Washington; that it would have been possible to pay either in cash or by check.
Under such circumstances, it will not do to hold there was no other evidence of payment than the lapse of time. The trial court did not err in overruling the motion of the United States for a directed verdict.
The theory upon which instructions Nos. 5 and 7 were given is expressed in the rule found in a note at 1 A. L. R., 792. It is, as follows:
“But while the lapse, after a debt is due, of a eoniderable period of time, less than, twenty years, will not raise the legal presumption of payment, it may be evidence of, payment sufficient to warrant the jury in inferring payment, when considered in connection with other circumstances.”
In support of this rule the text cites:
M’Murray v. M’Murray, 17 N. Y. S. 657. In that case a mortgagor had remained in possession of a bond and mortgage for fifteen years. After his death the mortgagee assigned the deed and the mortgage and the assignee brought'an action to foreclose it. The mortgagor during his lifetime was at all times solvent and able to discharge the mortgage. No effort was ever made to collect it during the fifteen years. The Court of Appeals of New York held that the mortgage must be presumed to have been paid. The court said:
“The great lapse of time that the mortgagor had been in the undisputed lawful possession of this bond and mortgage, and that no effort had ever been made to collect either interest or principal by the mortgagee, afford a very high degree of evidence that, if the mortgage and bond ever had any validity, it had long been satisfied.” (p. 658.)
In Norton v. Aiken, 134 Ga. 21, 67 S. E. 425, the court held:
“The failure of a creditor to enforce collection of a note not under seal, but secured by deed, for more than fifteen years after maturity of the note, may be considered by the jury, in connection with other circumstances, in determining whether payment of the note might be inferred.” (Syl. H 4.)
In Garnier v. Renner et al., 51 Ind. 372, the note upon which suit was brought had been made August 20, 1859, and the action to collect it was commenced October 4, 1872. The maker of the note held it had been paid. The court said:
“Payment, like any other fact, may be proved by circumstantial, as well as direct evidence. In the absence of a statute of limitations, payment was presumed, in the absence of explanatory circumstances, after twenty years. But it might, and still may be inferred, by the jury or court trying the cause, from circumstances, coupled with the lapse of a shorter period. 2 Greenleaf’s Ev., sec. 528; Denniston v. McKeen, 2 McLean 253.
“The circumstance sought to be proved by the defendant, and excluded by the court, was of such a nature as tended strongly to support the theory of the defendant, that the note had been paid. The conduct of Renner on that occasion was wholly inconsistent with the idea that the note was unpaid. He was pressed for money, and if the amount of the note was then due him and his partner from Gamier, it is hardly possible that he would not then have demanded its payment.” (p. 374.)
In Mercantile Bank v. Hawe, 33 Mo. App. Rep. 214, the judgment was exhibited in the estate of a deceased in 1887. The judgment had been recovered in 1876. The defendant showed that the maker of the note had been in the city engaged in extensive business and solvent during all the years that had elapsed. The court said:
“The burden of proof to show payment was wholly upon the 'defendant, and while no legal presumption of payment arises from the mere staleness of a claim, short of the statutory period of limitation, such payment may be inferred by the jury from the lapse of time for a much shorter period coupled with other circumstances.” (p. 217.)
Lee v. Newell, 107 Pa. St. 283, was a suit to collect notes brought more than seven or eight years after they were taken. There is some evidence that the notes had been paid. The maker of the notes was dead. The court held:
“A delay of seven or eight years in bringing suit on a specialty, is slighj evidence of payment, varying according to circumstances; and where it is submitted to a jury to infer payment from circumstances, the weight to be given to delay or promptness in bringing suit, is for them to determine.” (Syl. ff 3.)
The instructions to which objection was made simply submitted the issues in conformity with the foregoing rules. While the statutes of limitation and nonclaim do not run against the United States when suing in its sovereign capacity it is well established that when the United States brings an action for money it is governed by the rules of evidence just as any litigant. (See Chesapeake & Delaware Canal Co. v. United States, 223 Fed. 926.)
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The opinion of the court was delivered by
Smith, J.:
This is an action for a real estate commission. Judgment was for the defendant and plaintiff has appealed.
The plaintiff in his petition alleged that he was a real estate broker and that in April, 1946, the defendant orally listed with him for sale two sections of land with the understanding that the defendant would receive $41,000 net and plaintiff would have as his commission all that the real estate sold for in excess of $41,000; that subsequent to this listing he found a purchaser for one section for $16,000 and for the other section a purchaser for $30,400; that about May 21, 1946, he advised the defendant of the names of these purchasers and the amount they were willing to pay for the two sections, amounting to $46,400; that thereafter on May 22, 1946, the defendant advised plaintiff that his wife refused to sign any conveyance until defendant could find a place to which he and his wife might move and that thereafter on June 10, 1946, defendant advised plaintiff that his land was no longer for sale. The petition prayed for judgment for the difference between $46,400 and $41,000, or $5,400, with interest.
In his answer, defendant first denied that he had listed the real estate at any time with plaintiff. He pleaded further that about the 28th of March, 1946, he at the request of E. W. Harlan, a real estate agent, listed the land with Harlan for a period of thirty days to be sold for $42,000, the defendant to pay a commission of $1,000 if the land was sold within a thirty-day period and shortly thereafter plaintiff came to defendant’s home and represented he was working with Harlan in attempting to find a purchaser for the land and defendant alleged he did not at any time authorize the plaintiff to act as his agent and did not accept his services otherwise than as a representative of Harlan and that when the thirty days had elapsed defendant canceled Harlan’s authority.
In the reply plaintiff alleged that in the month 'of March, 1946, he did represent Harlan in undertaking to find a purchaser for defendant’s lands and that he showed the lands to prospective purchasers and that about the middle of April defendant advised plaintiff that he was taking the listing out of Harlan’s hands and listed the land with plaintiff and that thereafter about the middle of April plaintiff acting independently of Harlan continued his efforts in finding a purchaser and spent his time and money from about the middle of April, 1946, until the 21st of May, 1946, at which time he found a purchaser, as alleged in his petition; that on May 21, 1946, plaintiff found a purchaser for the land and advised the defendant thereof and that he had on May 21, 1946, procured from the purchasers written contracts, a copy of which contracts were attached to the petition; that checks as earnest money were attached to the contracts in favor of defendant and on May 21, 1946, the plaintiff delivered the signed contracts with the checks and defendant examined them and said he would come to Kinsley the next day and complete the transaction; that he did not come to Kinsley but on the contrary advised plaintiff by letter on that day that defendant’s wife refused to sign any papers until he could find a place to live;, that thereafter defendant refused to consummate the sales and on June 10 notified plaintiff that the land was no longer for sale. The case was submitted to a jury, which returned a verdict for the defendant, and answered special questions, as follows:
“1. Did the defendant Colburn list the lands involved in this action with the plaintiff Johnson at a price of Forty-one Thousand Dollars ($41,000.00) net to the defendant Colburn? A. No.
“2. If you answer the above question in the affirmative, give the date of the listing. A. -.
“3. Did the defendant Colburn know, prior to the reading of the contracts on May 21, 1946, that the plaintiff Johnson was claiming to act independently of E. W. Harlan and claiming a commission in an amount equal to the selling price in excess of $41,000.00? A. No.
“4. If you answer the above question in the affirmative, state when he acquired such knowledge. A. -.
“5. What reason, if any, did the defendant Colburn give to-Plaintiff Johnson as to why he, Colburn, would not sign the contracts? A. None.
“6. Were Vernon Oliphant and Lawrence Israel, who signed the written contracts for the purchase of the Colburn lands, ready, willing, and able to purchase said lands in accordance with the terms of said written contracts?
A. Yes.
“7. At the time the plaintiff obtained the signatures of Vernon Oliphant and Lawrence Israel to the purchase contracts was he acting as agent of the defendant Colburn or was he acting as agent of E. W. Harlan? A. E. W. Harlan.”
At the time the verdict was returned the plaintiff requested the court to require the jury to answer question No. 5 more definitely. This request was refused. Subsequently the plaintiff filed a motion to set aside the answer to question No. 5 and to substitute in place of that answer “My wife refuses to sign the papers until we can find a place to live.” And that after such answer was substituted the court set aside the- general verdict and rendered judgment for the plaintiff for $5,400. The plaintiff also filed a motion for a new trial on the statutory grounds. These motions were all overruled and judgment entered for the defendant — hence this appeal.
The specifications of error are that the court erred in overruling plaintiff’s demurrer to the defendant’s evidence and in overruling plaintiff’s motion for a directed verdict for $5,400, and in refusing to set aside special findings of the jury, and in refusing to give judgment for the plaintiff notwithstanding the general verdict, and in giving instruction No. 5 and in refusing to give instruction No. 2 requested by defendant and in denying plaintiff’s motion for a new trial.
The first argument of plaintiff is that the court erred in overruling plaintiff’s demurrer to defendant’s evidence and in overruling his motion for a directed verdict for $5,400. The basis of that argument is that the defendant advised plaintiff by letter that his wife would not sign the contract of sale until they had a place to which they could move. The plaintiff relies on the rule we laid down in Sandefer v. Hines, 69 Kan. 168, 76 Pac. 444, where we held:
“Where a party bases his refusal to consummate a sale of property in accordance with an alleged agreement upon one ground, he cannot, after litigation has begun, change his position and defend such refusal upon another and wholly different ground.” (Syl. If 2.)
He argues that when defendant gave plaintiff as a reason for not signing the contract of sale, the fact that his wife would not sign until they had a place to live, thereafter he could not even plead in answer to a suit for a commission that plaintiff never was his agent and he had not listed his land with him for sale.
It is true that in Sandefer v. Hines, supra, we said:
“The contention of no agency, and therefore no liability, which the defendant now makes, is wholly inconsistent with the position which he took when he refused to complete the sale and when the defendant’s cause of action accrued.” (p. 171.)
However, in that case in the first syllabus we held:
“A broker employed to sell land is entitled to his commission when he is the procuring cause of a sale and has produced a buyer who is ready, willing and able to pay the agreed price and to consummate the sale.” (Syl. ¶[1.)
Plaintiff cites the general rule as stated in 156 A. L. R., 602, as follows:
“As a general rule, where a landowner who has listed property for sale with a real estate broker refuses to accept an offer which is substantially in accordance with the listing, he cannot afterwards defend the broker’s action for compensation on a ground not specified when rejecting the offer.”
Authorities from several jurisdictions are cited in the text in support of the rule, but none of them goes so far as to hold that the fact of no listing may not be pleaded and proved in answer to an action for a commission no matter what the excuse given at the time or the failure to go ahead with the sale.
The same may be said for the other authorities upon which plaintiff relies.
There is no dispute but that defendant had listed his land with a man named Harlan for thirty days to be sold for $41,000, a commission at a rate which would have amounted to about $1,000 to be paid. There is no dispute but that when plaintiff first came to the farm to show it to prospective buyers he was working for Harlan. The dispute in the evidence arose when there was an outright denial by the defendant that he ever listed his property with plaintiff for sale. The plaintiff testified that defendant said Harlan was not doing anything to sell his land and he was going to take the listing out of Mr. Harlan’s hands and going to let plaintiff go ahead and sell if he could sell it and all he had to do was to get $41,000 net and he could have all over that amount the land sold for. That is the conversation upon which plaintiff depends to prove that the land was listed with him for sale. On the ojdier hand, the defendant denied any such conversation and testified that he made no complaint about Mr. Harlan to plaintiff; that at the time plaintiff asked him to list the land with him he told him he would think about it. He denied categorically he had ever listed with him and denied he told him to go ahead and sell it.
Plaintiff had the burden, amongst other things, of proving the land was listed with him for sale by defendant on the terms pleaded. He met that burden, but defendant introduced substantial evidence that he had not listed the land with plaintiff. Under such circumstances the question was one for the jury. The trial court ruled correctly in overruling plaintiff’s demurrer to defendant’s evidence. The jury answered the question “Did the defendant Colburn list the lands involved in this action with the plaintiff Johnson at a price of Forty-one Thousand Dollars ($41,000.00) net to the defendant Colburn? A. No.” There was substantial evidence to warrant such an answer.
Plaintiff does not attack that finding by motion or otherwise. We have demonstrated that the rule contended for by plaintiff does not go to the extent of holding that defendant is estopped from pleading and proving that plaintiff was not his agent when he gave some other reason for not signing the contract of sale. Hence the answer of the jury to question No. 1 might very well dispose of this' appeal.
The second error argued by plaintiff is' that the trial court erred in denying his motion to set aside the jury’s answer to question No. 5. That question and answer was as follows: “What reason, if any, did the defendant Colburn give to plaintiff Johnson as to why he, Colburn, would not sign the contracts? A. None.”
Plaintiff argues that this answer should have been stricken because of a letter defendant wrote plaintiff some days after plaintiff had informed defendant that he had sold the land. This letter dated May 22, 1946, reads as follows:
“Dear Mr. Johnson: My .wife refuses to sign any papers until we can find a place to move to. We will go to Colo, and New Mexico in a couple of days.”
Defendant argues that this letter required a finding by the jury that the excuse given defendant for not signing the contracts was that his wife would not sign. The trial court took the position that the question simply called for a decision by the jury as to the veracity of plaintiff and defendant at the time when the contracts were presented to defendant. Plaintiff testified that defendant said he would come to Kinsley the next day and he and his wife would complete the deal. Defendant testified that he told plaintiff he would not sign that day but would check before he signed any papers. Defendant testified that when these contracts were presented was the first time he knew that plaintiff claimed to be his agent and that plaintiff claimed as commission all the land sold for above $41,000. Defendant admitted he sent plaintiff the letter of May 21. Plaintiff argues under the estoppel theory, to which we have already referred, that had the jury answered this question correctly the trial court would have been compelled to render judgment for him for the full amount for which suit was brought.
This point is not good for the reason already set out herein, that the estoppel theory does not require judgment where the land was not listed for sale with the plaintiff.
The same conclusion may be reached as to the further arguments made by plaintiff.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The appellant was charged in two counts of an information, the first being for the larceny of one sow and four shoats, all over the value of $20, and the second count being for burglary and the larceny of certain articles of personal property, to wit: One mangle-, one kitchen clock, one saddle and bridle, one shotgun, two electric irons, one electric waffle iron, and one radio, all over the value of $20, all of said property being the property of one Bill Bailey.
The jury returned a verdict of not guilty on count one but convicted appellant of burglary and larceny on the second count. Since, in our opinion, this case really turns on one proposition, it will be necessary to set out the state’s evidence in detail.
Bill Bailey (hereinafter referred to as Bill) lived with his wife and four children on the outskirts of Chanute and was engaged in hauling refuse for the city, private individuals and stores. He owned two trucks and both he and his wife did hauling which accounted for the fact that they were away from their home a good many evenings. On Saturday night, October 9, 1948, he and his family had been to a circus in town and arrived home rather late. He had 42 head of hogs on his premises and on Sunday morning, the 10th, he discovered seven head, one sow and six shoats, were missing. He did not report this loss to the authorities at the time.
On Monday evening, the 11th, he and his family were again away from home and the next morning he missed the articles of personal property listed in count two. He testified that the mangle had been kept in a screened-in porch, the shotgun in the children’s room, electric clock and waffle iron in the dining room, and the saddle and bridle in the garage which was about fifty feet from the house. Entrance to the house was through the screened-in back porch, into the kitchen and then to the other rooms. On the night in question the house was not locked but the doors were closed, including the door to the screened-in porch. There was a small three-room tenant house about 150 feet away, and he testified that the lock on it had been broken and the radio taken from this building. The broken lock was introduced in evidence as well as the articles of personal property (except the radio which had not been recovered) and all were identified by Bill as belonging to him.
Mary Bailey, wife of Bill, was called as a witness and identified the various articles. She further stated that the mangle was worth about $150.
The next witness was the undersheriff and he testified he knew Bill; that on about October 15 he and Bill went to the home of one Bunn across the state line in Missouri where Bill identified four shoats as belonging to him; later they went to the farm of one Meek, northwest of Fort Scott, where Bill identified the sow he had owned; that he was present at the police station in Chanute while appellant was being questioned and that appellant admitted he had hauled the sow and four shoats.
The sheriff testified that when the alleged theft was reported to him he concluded that George Bailey (hereinafter referred to as George), a brother of Bill, would be a good suspect; that he set out to look for George and finally found him at appellant’s house in Fort Scott. George was taken back to Chanute and after being questioned by the officers told them where the articles of personal property were. He said that he had hired appellant to haul the property from Chanute to Fort Scott; that he and appellant “had talked it over” and finally decided to come to Chanute and get it. The shotgun was found in George’s room at the home of appellant. The witness further testified that when he finally caught up with appellant the latter denied that either he or his truck had been in Chanute but that he later changed his story and admitted that he and George had driven from Fort Scott to Chanute to get the property; that George had hired him to haul it but that he (appellant) supposed the property belonged to George; that he had sold the four shoats to one Bunn over in Missouri for $55; that he had bought 'the sow from George for $20 and then had taken it out in the country to a relative of his. The witness further testified that throughout all the questioning appellant had stuck by his story; that he at all times supposed the property belonged to George and that he did not know it was stolen.
The chief of police in Fort Scott testified that he knew appellant and that he went with the sheriff to appellant’s house where some of the articles in question were found.
Following the completion of this oral testimony the state offered in evidence two authenticated copies of prior convictions of appellant. The first of these recited appellant’s conviction of robbery in the first degree and of bank robbery in Linn county, Kansas, in 1938, and his subsequent sentence to the state penitentiary. The second was a recital of the conviction of appellant of the offense of robbery in the first degree in 1931 in the state of California and his sentence to the state prison of that state.
Both of these exhibits were strenuously objected to by appellant, but were received in evidence by the court as being competent to show intent and guilty knowledge. In this connection it should be noted that in his opening statement to the jury counsel for the state said that the evidence in the case would show appellant had twice been convicted of similar offenses. ' •
At the conclusion of the state’s evidence appellant’s motion for discharge was overruled, whereupon George and appellant were both called as witnesses for the defense.
George admitted that he had entered his plea of guilty in court the morning of the trial (from the record, presumably for the offenses for which appellant was on trial). He testified that he had been living in appellant’s house in Fort Scott; that he had hired appellant to go with him to Chanute to haul the property in question back to Fort Scott and that he paid him $10 for each.trip; that on the 9th they had gotten the hogs and then came back two nights later and got the other stuff; that appellant had helped him load it on the truck but that he had not told appellant the property did not belong to him.
The appellant testified substantially to the same effect and stoutly denied that he knew the property was being stolen.
As heretofore stated, appellant was acquitted on count one but convicted on count two and was sentenced to the penitentiary for .a term of not less than fifteen years on the larceny charge and for a like term on the charge of burglary in the second degree, the sentences to run concurrently.
On appeal appellant alleges eight specifications of error but in his brief and argument to this court the principal ground relied upon for reversal is that the court erred in admitting the evidence of the two prior convictions.
In the last analysis actually about the only question the jury was called upon to decide was whether the appellant knew that the property was being stolen. There was no dispute as to the physical facts. The property was stolen from Bill. George, his brother, admitted stealing it and appellant admitted being with George at the time the property was taken and so guilty knowledge on the part of appellant was really the only issue for the jury to decide.
It is of course elementary that as a general rule the commission of the offense for which a person is on trial cannot be proved by evidence that he committed another independent offense but. of the same sort, and ordinarily evidence of the commission by defendant of other offenses is not admissible in the state’s case in chief. On the other hand, there are several well-recognized exceptions to the rule, one of them being that evidence of similar offenses is admissible under proper instructions when such offenses are relevant to prove scienter or guilty knowledge or to prove intent. If previous crime or conduct have a natural and logical tendency to establish the crime, or an element of the crime, for which the defendant is on trial, the evidence is admissible and ought to be admitted, as this court has many times held. Moreover, mere remoteness in time affects the weight to be given such evidence, rather than its admissibility. The question is — did the evidence tend to prove guilty knowledge? We shall not extend this opinion with a detailed discussion of the instances where such evidence has been held admissible and those in which it has been excluded but reference is made to the recent case of State v. Owen, 162 Kan. 255, 176 P. 2d 564, where in the majority and dissenting opinions many cases on each side of the question are cited. The court in its instructions told the jury that such evidence was only to be considered on the question of guilty knowledge and intent on the part of appellant and was not to be considered in determining the guilt or innocence of appellant of any of the offenses charged in the information. Under the facts of this case and in the light of the state of the evidence at the time of its introduction we hold that the court did not commit error in this respect.
Appellant complains of alleged misconduct on the part of the county attorney in his argument to the jury with reference to the matter of the broken lock which, according to the testimony, had been on the small three-room tenant house. We have examined this point and in our opinion counsel for the state did not go beyond the limitations of fair argument and furthermore, since the broken lock was in evidence it was a fair subject of argument to the jury.
Complaint is also made of the instruction given to the jury and the refusal of the court to give several instructions requested by appellant. We have examined the instructions given and we think they fairly presented and covered all issues in the case and taken all together included the matter contained in those requested by appellant.
And finally, it is urged that the sentence of the court was illegal and void and was not assessed under any applicable statute.
Appellant was convicted of burglary in the second degree, the penalty for which is confinement for not less than five nor more than ten years (G. S. 1935, 21-523) and of larceny in the commis sion of the burglary, the penalty for which is confinement for a period not exceeding five years (G. S. 1935, 21-524, 21-534). G. S. 1947 Supp. 21-107a, provides that one convicted a third time of felony shall be confined in the penitentiary for a period of not less than fifteen years. That was the sentence given appellant on each of the charges, the sentences to run concurrently, and under the statute was proper.
Various other alleged errors complained of have been examined but are without merit and require no discussion. There was ample, substantial competent evidence upon which the jury was justified in returning a verdict of guilty and there appearing in the record no trial errors of sufficient importance to require a reversal, the judgment of the lower court is affirmed.
Smith, J., dissenting from (a) under paragraph 4 of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Smith, J.:
This action in ejectment was brought in the district court of Pratt county by A. W. Ellis against A. M. Horner and Daisy M. Hutto to recover possession of 160 acres of land in that county. The case was tried by the court, without a jury. Judgment was rendered in favor of the plaintiff, subject to the payment of a tax lien, and the defendants bring the case here for review.
The land in question was patented by the United States to William H. Albright, who, when he was advanced in years and without wife or child, made an agreement with his niece, Emily Irene Knowlton, as she alleged in her suit against his heirs for specific performance of the contract, that if she would go with him to a hospital, where he was going for an operation, and would nurse him and live with and take care of him till he died, he would give her the land in question; that he told her he had already executed and delivered a deed of the land to a man in Pratt county, with instructions to deliver it to her on receipt of information that he was dead. She also alleged that her uncle died without making the transfer, and pleaded fully the execution of the contract on her part. The petition did not disclose whether this contract was oral or in writing, and did not allege that the plaintiff went into possession of the land under the contract or that she made any improvements thereon.
Probably this petition did not state facts sufficient to constitute an equitable cause of action for specific performance of the contract. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591.) .But even if it did not it does not follow that the judgment rendered thereon is void or that it is by reason thereof subject to collateral attack. The petition does contain sufficient matter to challenge the attention of the court to its merits, and therefore the judgment is not void. (See Rowe v. Palmer, 29 Kan. 337; Head v. Daniels, 38 Kan. 1, 15 Pac. 911.)
The service in the Knowlton case was personal upon Mrs. Fowler (one of the heirs) and her husband in Pratt county; and, the other defendants being nonresidents of the state of Kansas, an attempt was made to get service upon them by publication. No one appeared, and judgment was rendered against all the heirs as upon default.
There was no element of trust between Albright and his niece, Knowlton, and under the decision in Close v. Wheaton, 65 Kan. 830, 70 Pac. 891, the court acquired no jurisdiction of the persons of the defend ants, except by personal service. In that case it was said:
“An action to compel the specific performance of an agreement to convey land, if the defendant’s obligation is in contract merely, without any element of trust, is 'an action in personam, and must be brought in the county where the defendant resides, and not of necessity in the county where the land is situated.” (See, also, Gen. Stat. 1901, §§ 4476, 4477.)
This was the law of this state at the time the Knowl-ton suit for specific performance was brought and determined and until the enactment of chapter 384 of the Laws of 1903. Mrs. Fowler, who with her husband was personally served with summons, resided in Pratt county, and she was a sister and heir of W. H. Albright, the patentee. Emily Irene Knowlton’s mother was also a sister of Albright, and died before his decease, so Miss Knowlton was also an heir to the estate. By the judgment she acquired the moiety of title inherited by Mrs. Fowler, and afterward conveyed all her interest in the land to O. H. Bock, who, in turn, conveyed it to A. W. Ellis, the plaintiff.
After she was stripped of any title to the land by the judgment Mrs. Fowler obtained a tax deed to the land and sold and conveyed all her fights therein to A. M. Horner, who afterward brought an action to quiet the title to this and several other tracts of land and made W. H. Albright a party defendant, and attempted to get service upon him by publication. That action was brought and the publication was made, however, some years after the death of W. H. Albright, and, of course, Horner’s title to the land in question was not strengthened thereby. Thereafter Horner and wife conveyed their interest in the land to their daughter, Daisy M. Hutto, whose title rests solely upon the tax deed to Mrs. Fowler. The court held this tax deed voidable and set it aside, awarding Mrs. Hutto a lien for the taxes paid. Of this decision no complaint is made.
The judgment of the .court below, then, rests upon the question whether Ellis, as a tenant in common with the heirs of W. H. Albright, other than Mrs. Fowler and Miss Knowlton, is entitled to recover the possession of the land against a defendant who had no title thereto but was in possession and entitled to a lien thereon for taxes paid. We answer this question in the affirmative. In this state the question in ejectment is, Who has the superior title? (Hollenback v. Ess, 31 Kan. 87, 88, 1 Pac. 275.) A cotenant may recover the whole property against one who has no title. (Newman v. Bank of California, 80 Cal. 368, 22 Pac. 261, 5 L. R. A. 467, 13 Am. St. Rep. 169; Chapman v. Quinn, 56 Cal. 266; Quinn v. Chapman, 111 U. S. 445, 4 Sup. Ct. 508, 28 L. Ed. 476; Duffey v. Rafferty, 15 Kan. 9; Simpson v. Boring, 16 Kan. 248.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the delivery of a deed executed by Ethel Lake, as executrix of the estate of Joseph Hathaway, deceased, and to •set aside the orders of the probate court for the sale and confirmation of the sale of land in pursuance of which the deed was executed.
The proceeding was brought by the three, sons of the deceased, Mark, Orin, and Edward, and in their petition they alleged that their father died owning real estate in Iowa and Kansas, as well as some personal property. They set forth a will by which the real property in Mills county, Iowa, and Chase county, Kansas, together with some personalty, was given to the three sons, and land in Chautauqua county, Kansas, was devised to Ethel Lake, who was the only daughter of the deceased. In it was the provision that, “there, being some encumbrance on the land in both counties last above mentioned, it is my desire that the lands in Chase county be sold and the encumbrance on the Mills county farm be paid, and the remainder of the proceeds of said land be equally divided between Mark, Orin, and Edward.”
It was further alleged that the will was probated in Chautauqua county, where Joseph Hathaway died, and that after filing a certified copy of the will in Chase county, Kansas, the executrix applied to the probate court of that county for permission to sell the Chase county land for the payment of debts, as provided for in the will, and that on December 5, 1904, an order authorizing the sale was made. It was also alleged that before the sale, and on January 23, 1905, Ethel Lake went to Iowa and entered into a contract with her brothers making provisions for the payment of the debts so that a sale of any of the real property devised would be unnecessary, and stipulating that the proceedings • instituted in the probate court of Chase county for the sale of the land should be dismissed, but that in violation of the contract she sold the land to Clarence North, who was made a defendant in this case.
In her answer Ethel Lake alleged that a sale of the land was not only in accordance with the directions in the will but was necessary in order to pay the debts of the estate, and she averred that her assent to- the contract mentioned was obtained by misrepresentation and fraud.
In his answer and cross-petition Clarence North, the purchaser of the land, set forth the proceedings of the probate court ordering the sale, including the notice of sale and appraisement of the property, and averred that he purchased the land for $7500; that the sale was duly confirmed and the deed ordered; that a deed was executed and placed in the custody of T. W. Hafer, who received the deed for him; and that he tendered the full amount of the purchase-price of the land, but, at the instance and request of the plaintiffs, Hafer had not delivered the deed. He further averred that he purchased the land in good faith, without any notice or knowledge of the contract pleaded by the plaintiffs, and that the existence of that writing was not known to him until after the confirmation of the sale. He also alleged the invalidity of the contract signed by the executrix.
A trial resulted in a judgment setting aside the proceedings of the probate court relating to the sale of the land, canceling the deed of the executrix, holding the contract between Ethel Lake' and her brothers to be valid, and quieting the title to the Chase county land in the plaintiffs. The defendants prosecute this proceeding in error.
This suit is a collateral attack on proceedings in, and the decision of, a court of record. The probate court of Chase county has jurisdiction of the estates of deceased persons. Its jurisdiction was duly invoked by the petition of the executrix, about whose appointment there is no question. Notice of the hearing was required to be given by publication, and that notice was brought to the personal attention of the plaintiffs. Based.upon these notices, the hearing was had and the order for the sale of the land was made. Appraisers were appointed, who placed a valuation upon the land, and it was subsequently sold for more than the appraised value. The court then examined the proceedings and confirmed the sale. So far as the records of the probate court disclose the proceedings were regular, but if there had been any irregularity the order of confirmation would have cured it. The validity of the sale as challenged in this suit does not depend upon whether there were irregularities in the proceedings but upon whether the probate court acquired jurisdiction to order and confirm the sale. (Fleming v. Bale, 23 Kan. 88; Bryan v. Bauder, 23 Kan. 95; Thompson v. Burge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369; Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.)
The order of confirmation is a final judgment, and in the absence of an appeal is as conclusive upon the rights of the parties, including the plaintiffs herein, as could be any adjudication by a court of competent jurisdiction. (Watson v. Tromble, 38 Neb. 450, 50 N. W. 331, 29 Am. St. Rep. 492, and note.) The order of confirmation not having been appealed from, it absolutely fixed the rights and liabilities of North as a purchaser. Of course it would not validate a void sale, as where there was no jurisdiction in the court to order it, but unless the order is void it is not open to collateral attack. If there had been fraud, mistake, or other like ground for which a court of equity would avoid a sale made by one person to another, the plaintiffs would have had a reason for asking equitable relief, but so far as the record shows North was an innocent purchaser.
The misconduct of the executrix is the principal ground alleged for overthrowing the sale. The plaintiffs, although they had abundant notice, allowed the sale to be confirmed and the deed to the purchaser to be approved by the court before making any protest or objection. Then they filed the contract of the heirs, a contract of which the purchaser had no previous knowledge, and which was not brought to the attention of the court until the proceedings had been closed and the deed approved. The rights of the purchaser having been determined by a court of competent jurisdiction, the orders of sale and of confirmation, from which no appeals were taken, conclusively established that the sale was necessary for the payment of the debts of the estate and that the land was regularly and legally sold for a fair and adequate consideration. When the sale was confirmed the contract became complete and the equitable title to the land passed to the purchaser. He had already paid $200 of the purchase-price, and when the balance was tendered he became entitled to a deed, and if the executrix had refused to give him one its delivery could have been compelled by an appropriate proceeding. The contract between the heirs, if a valid one was made, did not deprive the court of jurisdiction nor affect a purchaser who had no notice of it. We may assume that the contract was fairly made, that it was binding on the heirs, and that the failure of Mrs. Lake to observe its provisions and discontinue the proceedings was a breach of contract for which she is liable to her brothers, but North had no part in the transaction and his rights are in no way affected by its existence.
It is argued that the court was without power to order a sale because the land was absolutely devised to the plaintiffs. “Under our statutes, the whole property of the decedent, not exempt, both real and personal, is charged with the payment of debts.” (McNutt v. McComb, 61 Kan. 25, 27, 58 Pac. 965.)
As each heir took the share devised subject to the •debts of the testator, we need not inquire whether the clause in the will providing for the sale of this land for the payment of indebtedness was precatory or imperative. It is conceded that there was a large in debtedness, the greater part of which was secured by mortgages on the real estate, and it also appears that the personal property of the estate was insufficient to pay the unsecured debts, so that there were good reasons for the action of the court in ordering a sale of a portion of the real estate. However, the question whether there was necessity for a sale was one for the probate court to decide, and its unreversed decision, whether right or wrong, is absolutely binding upon the parties.
Nothing stated in plaintiffs’ petition or produced as evidence afforded any ground for invalidating the sale made to North or interrupting the delivery of the deed to him. The judgment is therefore reversed, and the cause remanded for further proceedings in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Greene, J.:
Richard L. Wilson and his wife, Laura M. Wilson, brought this action to recover the sum of $630, alleged to be due them from the defendants, the People’s Gas Company, a corporation, and the Atlas Crude Oil Company, a corporation. The plaintiffs signed an bil-and-gas lease in favor of the Citizens Natural Gas and Mining Company upon certain land which was then and since has been their homestead. Several assignments were made of this lease. When this action was commenced and for some time prior thereto the ownership of the gas rights and a small interest in the oil rights was in the Atlas Crude Oil Company. The conditions of the lease which are material in this controversy are:
“In consideration of the premises, the party of the second part agrees to pay as royalty to the party of the first part upon each well of gas or oil from which product is taken having any commercial value the sum of five dollars per month for each month while so taken; royalties to be paid in cash on the first day of each month for the preceding month, payable at the gas company office. In case of the utilization of other products than gas or oil the royalty shall be one-tenth of such products delivered at the surface near mouth of well or shaft.”
It was charged in the petition that the defendants drilled twelve producing oil-wells and two producing gas-wells, and that defendants complied with the terms of the lease by paying to plaintiffs five dollars per month for each well, including May, 1904; that since that time they had refused to pay for the wells for any month; and that there was a balance due plaintiffs when the action was commenced of $630.
The defendants denied liability, and answered that Richard L. Wilson became dissatisfied with the conditions in his lease which bound him to accept five dollars per month for each well and sought the defendants and requested that in lieu of five dollars per month for each oil-well he be allowed a one-tenth royalty. This resulted in a verbal agreement, between the parties to change that condition of the lease which required Wilson to accept the cash payment and in lieu thereof allow him a royalty of one-tenth of the oil. In pursuance of this agreement, and in February, 1904, Richard L. Wilson, the Atlas Crude Oil Company and the People’s Gas Company executed a “division order,” according to which Wilson was to receive one-tenth of the oil, the People’s Gas Company onfe-forti-eth, and the Atlas Crude Oil Company the remainder. This division order was sent to the Prairie Oil & Gas Company, which was purchasing all of the output' of these wells.
It appears that one of. the. methods of transacting business by that company when.it buys oil in bulk from several different owners is to require them to execute a division order, and at the end of each month it sends to each party from whom oil has been received what is called an “election price-list,” stating the quantity of oil received on his account and the price it is willing to pay. If the owner elects to accept the price he signs the election price-list and returns it to the company and the company forwards its check for the amount. This procedure was adopted in this case. Each month after the division order was re ceived by the company, until July, 1904, Wilson signed the election price-list slips and returned them to the company, upon receipt of which it forwarded its check for the amount due him. Thereafter he neglected to sign and return these slips.
The cause was tried by the court without a jury and judgment was rendered against the People’s Gas Company for forty-five dollars, nine months’ rent for one gas-well, and., in favor of the Atlas Crude Oil Company for costs. The plaintiffs bring this proceeding in error.
The first contention is that the court erred in admitting the division order in evidence, because it was not a contract between the plaintiffs and the defendants but a temporary arrangement between one of the plaintiffs and the defendants on one side and the Prairie Oil & Gas Company on the other, terminable at the option of Wilson, and because Mrs. Wilson was not a party to it and had not assented to such a change in the original lease. ■
Whether or not the division order is a contract between plaintiff Richard L. Wilson and the defendants, or between Wilson and the defendants on one side and the Prairie Oil & Gas Company on the other, it was not error for the court to admit it in evidence. The contention of the defendants was that they were not liable to plaintiffs under the clause in the lease relied on by the plaintiffs, because that provision had been changed by the mutual consent of the Wilsons and the defendants, and in lieu of the five dollars per month for each well the Wilsons had agreed to accept a royalty of one-ténth of the oil. The division order was a very material circumstance tending to sustain the contention of the defendants upon; that proposition, and the acceptance by Wilson from the Prairie Oil & Gas Company of his monthly receipts under this division order, together with the oral evidence, placed the question of whether such verbal change had been made in the lease beyond a doubt.
The objection that because the land was the homestead of the plaintiffs the change if made was void, because not assented to by the wife, is not maintainable. The lease was regularly executed by the wife. This modification or change in payment of the rentals from cash to a royalty did not interfere with the wife’s occupancy and enjoyment of the land as a homestead. It was neither a sale nor a conveyance of the homestead or of any interest therein.
It is also contended that the alleged change in the manner of paying the rentals, if made at all, was a verbal agreement between Richard L. Wilson and the defendants; that the land described in the lease was the homestead of Wilson and his wife; that the wife did not give her consent to such change; and that the agreement was therefore void. Changes may be made in the terms and conditions of such a lease which do not either create a new estate or extend or limit an existing interest in the estate created by the lease. As an example, the lease in question' provides that the grantee shall begin operations within one month from the delivery of the lease. This time might be extended by an oral agreement of the parties without extending or limiting the leasehold estate. So with the condition that the lessors should have free gas for their own use. The same is true of the condition that the lessors should have a rental of five dollars per month for each oil- or gas-well from which products were taken of a commercial value. Neither the verbal agreements changing the manner of paying the rental for the oil-and-gas wells nor the division order created any interest or estate in the land.
The last contention is that a subsequent parol agreement by which the obligations of the lessee were changed cannot be proved. The authorities are otherwise. (Crawford v. Bellevue, etc., Gas Co., 183 Pa. St. 227, 38 Atl. 595; Hunter v. Oil & Gas Co., Ltd., Appellant, 204 Pa. St. 385, 54 Atl. 274; Sargent et al. v. Robertson, 17 Ind. App. 411, 46 N. E. 925; Munroe v. Perkins, 26 Mass. 298, 20 Am. Dec. 475; Thornton, The Law Relating to Oil & Gas, § 247.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The board of county commissioners of Cloud county prosecutes this proceeding in error to reverse a judgment rendered against it in favor of the board of county commissioners of Mitchell county for one-half the cost of repairing a bridge on the line between the two counties. The district court made findings of fact and conclusions of law as follow:
“FINDINGS OF FACT.
“(1) The plaintiff, the county of Mitchell, and the defendant, the county of Cloud, are each duly organized counties of the state of Kansas, adjoining each other for a distance of eighteen miles, the west line of Cloud county being the east line of Mitchell county. Each of these counties have less than 20,000 population, the county of Cloud having the larger assessed valuation and paying the larger tax for the years 1902, 1903 and 1904.
“(2) There has been a public highway on the line' between the counties of Cloud and Mitchell which has been constantly in use as such for about twenty years prior to the commencement of this action. Mitchell county laid out and established said road twenty-five feet wide on the west side of, and extending to, the said county line on November 8, 1884, and Cloud county laid out and established twenty-five feet wide on the east side and extending to the line .on July 10, 1885, thus making a fifty-foot road upon the line.
“(3) The Solomon-river crosses this county line, and across this river, where the line crosses, a bridge, costing $5000, was built in 1884, $3000 of which was paid by Logan township in Mitchell county, and $2000 was raised by private subscription. Neither county paid any portion of the cost of construction of the bridge.
“ (4) About the year 1900 the county of Mitchell rebuilt one of the approaches to the bridge, at a cost of about $1000, but Cloud county has never expended any money, either in the building or repairing of the said bridge, nor in any way adopted or recognized it as a county bridge prior to the commencement of this action.
“(5) At the time the bridge in question was built that part of the highway which is in Cloud county had not yet been established and laid out as such, and the bridge was built, evidently with the purpose to have it all in the road as it was then laid out, but upon a careful survey it has been ascertained that about twenty-six inches of the bridge at the south end and about eleven inches at the north end is in Cloud county.
“(6) The bridge in question became very much in need of repair just prior to the January, 1903, meeting of the board, and the county commissioners of Mitchell county made an estimate of the cost of repairing it, and on January 10, 1903, let the contract for the repairing of the bridge to J. F. Wayland & Co., for the sum of $1595, but without advertisement for bids. The bridge at the time was unsafe and dangerous and demanded immediate attention. A few days later, and after the new board for the year was organized, and about January 14, 1903, the chairman of the board of Mitchell county called up the board of commissioners of Cloud county by telephone and asked them to come up and go with them to look at the bridge, and on the following day, January 15, 1903, the members of the board of Cloud county went to Beloit and there joined the members of the board of Mitchell county, who procured rigs and took them to view the bridge.
“(7) After they returned to Beloit an informal talk was had between the members of the two boards, at which all admitted that the bridge was in need of repairs. It is claimed by the members of the board of Mitchell county that the members of the board of Cloud county gave them a promise that if Mitchell county would proceed'with the repairs Cloud county would pay one-half the necessary expense. This the members of the board of Cloud county deny. It is not claimed, however, that any meeting was held or formal action taken as a board by the members of the board of either county with reference to said matters at that time or at any later time by the defendant at a board meeting, nor did the defendant board of commissioners of Cloud county ever appoint a commissioner or other person to superintend the building or repairing of said bridge or do anything preliminary thereto.
“ (8) The work of repairing the bridge was completed by J. F. Wayland & Co. prior to the meeting of the board in April, 1904, and at that meeting the plaintiff board accepted the work under his contract and paid him the amount called for by his contract, $1595, and also an additional sum of about $200 for extra- work and material, but not included in the contract.
“(9) At the informal meeting and talk of the members of the two boards on January 15, 1903, after they had examined the bridge, and while they were at Be-loit, the members of the defendant board were requested to assist in making the repairs which the bridge then needed, and were informed by the members of the plaintiff board that they would be called upon to contribute their share of the expense of making said repairs, but no promise was made by the defendant board or its members so to contribute. At that time the members of the defendant board were advised that $1595 was the amount that would be necessary to make the needed repairs on said bridge.
“(10) After the repairs made by J. F. Wayland & Co. were completed and paid for by the board of county commissioners of Mitchell county, Kansas, and before the commencement of this action, the plaintiff prepared and presented to the defendant a properly verified bill for the sum of $797.50, being one-half of the amount promised J. F. Wayland & Co. by the plaintiff on their contract of January 10,1903, for repairs of said bridge, and the defendant refused to allow or pay the same or any part thereof. The order of the defendant board refusing to allow and pay said bill was made on the 5th day of October, 1904.
“(11) The repairs made by the plaintiff under its contract with J. F. Wayland & Co. were of the reasonable and actual value of $1595, and without them said bridge would have been dangerous and unfit for use. Said bridge is upon a constantly used public highway, near by and between the town, of Simpson and a large floúring-mill; it is a necessary part of the said high-way, without which said road could not be used, and is the only means by which the. Solomon river can be crossed at or near the point where the bridge is located.
“(12) The assessed valuation of the taxable property of Cloud county for the year A. D. 1902, as returned by the assessors, was $3,819,916; a two-mill levy thereon would raise the sum of $7639.83. And such valuation for the year A. D. 1903 was $3,882,088, and a two-mill levy thereon would raise the sum of $7764.18. The value of the taxable property of Cloud county, Kansas, for the year A. D. 1904, as returned by the assessors for that year, was $4,296,244, and a two-mill levy thereon would raise a fund of $8592.48.
“(13) The custom of the defendant has been not to separate the funds, but carry the bridge and general funds together as one general fund, and no part of said fund raised by the tax of 1902 had been appropriated for bridge purposes up to January 15, 1903. Of the funds raised by the defendant by taxation for the year 1903, the total amount which had been appropriated for bridge purposes up to February 15, 1904, the time when the repairs sued for in this action were finished, was $3183. Prior to the April meeting, 1904, at which time the repairs on the bridge were accepted and paid for, the total amount which had been appropriated for bridge purposes was $3486.84. The total amount'paid out by the defendant for the year 1903 for bridge purposes was $14,145.63, and for the same purpose defendant paid out in the year 1904 the sum of $8010.64.”
“CONCLUSIONS OP LAW.
“(1) That sections 563 and 580 of the General Statutes of Kansas for 1901 apply only to cases where the question arises between the county and the road districts and townships, but do not apply to county-line roads.
“(2) That the bridge in question in this-action is a part of the county-line road, and the repairing of said bridge is a part of the expense arising from the improvement of a portion of said road.
“(3) That the plaintiff and defendant are jointly liable for ‘all expense, either in money, material or labor, arising from the improvement of any portion of such road,’ and this is a statutory and not a contract liability, which the defendant cannot escape by refusing to adopt or recognize the bridge in question as one that the county is under obligation to assist in keeping in repair. (Gen. Stat. 1901, § 6051.)
“ (4) That the repairs which were furnished by the plaintiff being necessary, and the defendant having refused to join with the plaintiff in making them, the defendant is liable to the plaintiff for one-half of such necessary repairs so furnished by the plaintiff.
“(5) That the plaintiff is entitled to recover judgment against the defendant for one-half of such repairs so made by the plaintiff, and for the costs of this action.”
Under the common law the obligation to keep bridges in repair rested upon the county, unless it could be shown that the duty had been specially imposed elsewhere. The common law in this respect does not obtain in Kansas, and the foundation of the defendant’s liability must be discovered in some statute. (Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161.)
The defendant argues that the statute relating to bridges (Gen. Stat. 1901, ch. 16, arts. 1, 2) must control, and that, since the methods there pointed out were not pursued, it is under no duty to recognize the work done nor to contribute to its cost. The defendant fails to specify the section of either article of the chapter designated which would oblige it to repair a bridge erected under the circumstances described by the findings of fact. The statute referred to divides the counties of the state into two classes, and prescribes rules for the building and repairing of bridges supposed to be adapted to the peculiar needs of each. In one class, if the estimated cost of building a bridge is $200 or less the commissioners make no appropriation for it; in the other class, if the estimated cost is $100 or less it is built by the township or road district in which it is situated, and so on in reference to many details. The article governing Mitchell county states the procedure for the repair of bridges for the construction of which the county has contributed money (such contribution having’ been made, of course, in pursuance of law), and provides for the building of bridges over watercourses which divide one county from another, but it does not meet the exigencies of this case. The other article, which governs Cloud county, outlines the duties of the county in respect to the repair of bridges which the county has built, provides for the building of bridges over watercourses which divide counties from each other, and provides for building bridges upon roads dividing one county from another, but contains nothing indicating an intention to fasten upon any county of the class legislated for responsibility for the repair of bridges of the nondescript character of the one involved in this suit.
This bridge was not built by ¿ither county; neither county contributed any funds for its erection; the watercourse which it spans does not divide the counties litigant; and it is not upon a road dividing counties of the class described in article 2 (Gen. Stat. 1901, §§ 580-593) so that the special procedure to which such counties are limited cap apply. This being true, the liability of the defendant must be found in some other statute or it does not exist. The district court based its judgment upon chapter 109 of the Laws of 1874, which reads as follows:
“An Act relating to roads.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That where a road is located on a county or civil township line, and by reason of any impediment, either natural or otherwise, any portion of such road suffers a deflection from such line not exceeding forty rods parallel distance, then for the purpose of improvement such road shall be deemed to be wholly on such line.
“Sec, 2. All expenses, either in money, material or labor, arising from the improvement of any portion of such road, shall be borne jointly by the counties or townships contiguous thereto, as the case may be.” (Gen. Stat. 1901, §§ 6050, 6051.)
Section 1 of this act defines county- and township- line roads to include roads suffering deflection not to exceed forty rods on account of natural or other impediments. Section 2 casts the expense of improving such roads — that is, county- and township-line roads, including those which are deflected — upon the' contiguous municipalities. The findings of fact disclose a fifty-foot county-line road, one-half of which lies in each county. Although the original establishment was irregular, in that the two counties acted separately instead of jointly, .the purpose of each at the time is clear, and the defect is shown to have been cured by user and lapse of time; therefore the only remaining question is if the bridge as a subject of improvement is a part of the highway.
The fact that the bridge was built by private subscription and by a township of one of the counties is immaterial, since it was of public utility and has been accepted, adopted and used by the public as a part of the highway over the stream. (The State, ex rel. Roundtree, v. The Board of Commissioners of Gibson Co., 80 Ind. 478, 41 Am. Rep. 821; State v. Campton, 2 N. H. 513, and authorities cited in these opinions.) A statute of Kansas, like statutes of many other states, defines the words “highway” and “road” to include public bridges. (Gen. Stat. 1901, § 7342, subdiv. 5.) In many decisions of this court it has been recognized that a public 'bridge is a part, of the highway. (Uhl v. Township of Douglass, 27 Kan. 80; The State, ex rel., v. Lawrence Bridge Co., 22 Kan. 438; Vickers v. Cloud County, 59 Kan. 86, 89, 52 Pac. 73; Coal Co. v. Sugar Loaf Township, 64 Kan. 163, 165, 67 Pac. 630; City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; City of Rosedale v. Golding, 55 Kan. 167, 40 Pac. 284; Comm’rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161; Valley Township v. Bridge Mfg. Co., 4 Kan. App. 622, 625, 45 Pac. 660.) Generally a public bridge will be regarded as a part of the common highway over a stream unless in the application of some statute a restricted meaning be indicated. (See 4 Words & Phrases Jud. Def. 3294.) Therefore the conclusion of the district court in respect to the scope of the aqt of 1874 is correct.
When the bridge in question became out of repair the duty of restoring it to a proper condition rested equally upon each county. When it became unfit for use and dangerous to the traveling public, so that, as the court found, it demanded immediate attention, it was the duty of both counties to give it such attention. The defendant having refused to cooperate, and having thus thrown the entire burden upon the plaintiff, it is liable to the plaintiff for its proportion of the expense necessarily incurred.
It appears from the findings that the repairs were properly made, that the amount paid for them was reasonable, and that the defendant had money in its bridge fund to pay its share. Therefore the judgment of the district court is affirmed. | [
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Per Curiam:
T. C. Moore sued to recover ten months’ salary as vice-president of the Baxter State Bank at $75 per month. The bank was organized in February, 1905. At a meeting of the directors the following officers were elected for one year: President, J. M. Cooper; vice-presidents, T. J. Morrow and T. C. Moore; cashier, F. S. Greene. The bank was chartered in March, and began business April 19, 1905. At a second meeting of the directors the salaries were fixed as follow: J. M. Cooper $50, F. S. Greene $100 and T. C. Moore $75 per month. Moore was to be the bookkeeper and clerk, and served in that capacity for two months and was paid the salary for that time, when he was removed by the president and discharged. After being discharged he offered at different times to continue the services in the bank, but was not permitted to go behind the counter or participate in the conduct of the bank’s business.
He testified that his salary was fixed as vice-president, and the minutes of the directors’ meeting, at which he acted as clerk, furnish some support to his contention. The bank claims with much reason that his salary was fixed as bookkeeper and clerk, and that it ceased when he was discharged. Five directors and officers of the bank testified that such was the arrangement at the time the salaries were fixed, and dispute the correctness of the minutes.
The fact that no salary was paid to the other vice-president, and that although Moore was elected vice-president in February he never demanded any salary nor was paid anything until he commenced active work as bookkeeper and clerk, were all circumstances tending to corroborate the claims of the bank. The sole question involved was whether he was to be paid as vice-president or as clerk. The jury returned a verdict in his favor for the amount claimed, and the trial court approved it. The jury also made a number of special findings of fact, all of which support the verdict.
It is claimed that the demurrer to the evidence should have been sustained, as there was no allegation in the petition and no proof that Moore was the owner in his 'own right of $500 of the stock of the bank, as provided in chapter 69 of the Laws of 1903, and therefore he could not hold the office of vice-president.
There was no demurrer to the petition, and besides the answer expressly admits that he was elected and held the office as alleged in the petition. The other errors complained of relate to rulings upon evidence, none of which is substantial, or sufficient, if well taken, to warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Jake Wolfley appeals from a conviction upon a charge of stealing six head of cattle. The court concludes after a careful consideration of the briefs and record that no material error is shown. To discuss in detail each assignment made would extend this opinion unduly, and only those thought to be of the most importance will be mentioned specifically.
The complaint that questions were asked which assumed as true certain facts prejudicial to the defendant is unavailing, because the witness had already given evidence supporting such assumption. The objection to the introduction of several diagrams of brands because they were copies of others is not well taken, inasmuch as there was specific testimony that those offered were correct. There was no error in allowing opinions to be given regarding the inferences to be drawn from the appearance of cattle brands, even by witnesses whose experience was not such as to enable them to speak with authority, for they had some special training in the matter — the extent of it went to the weight rather than to the admissibility of their testimony.
Questions were asked of a witness for the prosecution upon cross-examination to which the court sustained objections, and this ruling is assigned as error. The circumstances, however, were unusual.' The witness had been examined at considerable length, cross-examined, reexamined, and excused. He was recalled later by the state and asked five additional questions. The court sustained objections to several questions then asked in cross-examination, for the express reason that they had no relation to the additional testimony given and that the whole case had not been opened up. This was within the sound discretion of the court. No request was made for leave to. cross-examine further upon the evidence first given.
Among the special instructions asked in behalf of the defendant and refused were seventeen bearing upon the burden of proof and the degree of certainty required for a conviction, seventeen upon the effect of circumstantial evidence, and six upon the necessity of each individual juror being convinced of the defendant’s guilt beyond a reasonable doubt before a verdict of guilty could be returned. Most of these instructions, possibly all of them, were correct statements of the law, but no good purpose could have been served by giving all of them to the jury. The charge of the court seems to have included everything on these subjects really necessary to be said. '
The only instruction asked the refusal of which, in view of the instructions that were given, sharply presents a debatable question of law reads as follows:
“I further instruct you that any evidence which may have been offered by the state in regard to any brands upon the cattle is only to be considered by you for the purpose of establishing the identity of the cattle in question, but should not be considered by you as proving or tending to in any manner prove ownership of the cattle.”
Of this question it is said in volume 1 of Wigmore on Evidence, section 150:
“When an animal is found in B’s possession, and the animal bears a brand or other mark, and one of the issues is whether A is the owner of the animal, it is a natural and immediate inference that the animal belongs to the person whose brand it bears, and, if that brand is A’s, then to A. This inference, however, while sufficiently probable in the light of practical experience, is in truth a composite one, made up of two steps: First, the inference, from the presence of A’s usual mark, that A placed this particular mark — a genuine argument under the present principle, from a trace to the source of the trace; and, secondly, the inference from the fact that A placed it there, to the fact of his ownership of the animal. The latter step of inference is the vital one_; it is perhaps not less natural than the former, but it is more serious in its effect. It would seem that the latter step of inference has been rarely conceded by courts, as a matter of common law; though the former step was universally conceded, it was said that the presence of A’s brand was evidence of identity (i. e. of the animal being one of those originally branded by A), but not of ownership. This unduly cautious attitude has been generally corrected by legislation. In most of the stock-raising communities the brand on animals is made evidence of ownership; though in order to encourage registration and thus prevent confusion the rule is applied only to brands duly registered by law.”
We regard it as clear that where an animal is found bearing a certain brand a just inference may be drawn that it belongs to the person who uses such brand, and that therefore in the absence of any statute on the subject the jury may treat the brand as evidence of ownership. Moreover, fewer decided cases deny this proposition and more support it than might be supposed from the text quoted. The case of Peoples v. Devault, 11 Heisk. (Tenn.) 431, is of the former class; among the latter are Stewart v. Hunter, 16 Ore. 62, 16 Pac. 876, 8 Am. St. Rep. 267; People v. Bolanger, 71 Cal. 17, 11 Pac. 799; State v. Cardelli, 19 Nev. 319, 10 Pac. 433; Dreyer v. The State, 11 Tex. App. 631; Hurst v. Territory, 16 Okla. 600, 86 Pac. 280. (See, also, Plummer v. Newdigate, 63 Ky. 1, 87 Am. Dec. 479.)
Referring to what Professor Wigmore characterizes as the best opinion on the subject, it was said for the majority of the court, in Queen v. Forsythe, 4 Ter. L. R. (Eng.) 398:
“We are of opinion that the fact of the prosecutor’s brand being upon the hide was a means of identifying it as his property. The practice of branding has become the recognized mode of marking animals so that the owner may recognize them, and so widely used is it that it has become almost the only means employed for that purpose. Where a person has but a few animals he may be able from frequently seeing them to become well enough acquainted with their appearance to recognize them without, perhaps, being, able to point out the various peculiarities by which he knows them. But when the herd is a large one and no one may have had sufficient opportunities to become acquainted with the many little peculiarities which may distinguish the members of that herd from all other animals, then it becomes necessary that some practically indelible mark should be placed on them, and branding has been found to be the best mark for that purpose. It is in every cattle country a well-recognized mode of identification, and to say that it is not a reasonable means is to say that all cattle dealers are wrong in recognizing it as such. It is, of course, not an infallible mark. It may have been put on by mistake, or by fraud, or the animal, though the property of the owner of the brand at one time, may subsequently have been parted with. But these remarks apply equally to whatever marks may be relied upon as proof of identification.” (Page 402.)
This argument seems especially forceful when contrasted with that advanced in a dissenting opinion in support of the contrary view, in the course of which this language was used:
“Suppose a man lost a coat and a person was found in possession of it, and the owner of the coat swore that he knew the coat was his because a button was sewed on it bearing his initials. When asked if he put the button there himself, he would answer ‘No’; whether he knew the coat otherwise, he would say ‘No.’ I don’t think any judge would contend that this evidence would be sufficient to convict of theft. The evidence no doubt would prove that the button was his, but it would 'not be sufficient to prove property in the coat. It is some proof that the coat bearing that button belongs' to him, but not prima facie proof that the coat belongs to him; I mean not sufficient evidence to obligé the incriminated individual to adduce evidence to contradict that statement or explain it. I hold, therefore, that the brand and ear-marks on an animal are not prima facie evidence of ownership, so as to find a man guilty of theft, unless there is corroborative evidence in support.” (Page 406.)
Where brands have been rejected as evidence of ownership it has usually been because of statutes which forbid their admission for that purpose unless recorded. In these cases it is often said that they are competent only as evidence of identity, apparently meaning that they may be received in the same way as any other flesh-marks — to distinguish the particular animals upon which they are found. (See as to this use of the expression Sapp v. State [Tex. Cr. Rep.], 77 S. W. 456, and State v. Hanna, 35 Ore. 195, 57 Pac. 629.) A statute which merely makes recorded brands prima facie evidence of ownership was held in Hurst v. Territory, 16 Okla. 600, 86 Pac. 280, not to render unrecorded brands incompetent on that issue, the court saying:
“It is a matter of common knowledge thht in many instances, and particularly with persons owning large herds of cattle, the only method- of identification and the only proof of ownership that can be produced or obtained is the brand or marks, and if it should be held, as contended for by plaintiff in error, that this statute makes evidence of ownership by brand incompetent, except where the brand is recorded, then in such cases it would be absolutely impossible to prove ownership.” (Page 604.)
In this state, while there are various statutes recognizing the use of cattle brands, there is none forbidding or regulating their use as evidence of ownership. In the absence of such a statute there was no error in refusing the instruction asked.
In the course of an instruction with regard to the claim of the defendant that he owned the cattle he was chargéd with stealing the court said: “It is a question for the jury to determine from all the facts and circumstances in the case whether or not such defense is probably true.” It is contended that this language was seriously prejudicial to the defendant because it suggested a shifting to him of the burden of proof and invited a verdict based upon a mere probability. Any tendency it may have had in that' direction, however, was .counteracted by the concluding words of the same instruction:
“You are instructed that a defendant is never compelled to prove his innocence of a crime charged against him. It always devolves upon the state to prove his guilt beyond a reasonable doubt, and if after the entire consideration of all the evidence in this case, including any explanation the defendant has offered to the fact of possession of said cattle, and all defenses he has made to the charge against him, there exists a reasonable doubt in your mind of his guilt of the crime charged against him in the information, you must acquit him.”
A final complaint is based upon this statement, incorporated in an instruction defining the term “reasonable doubt”:
“A reasonable doubt means a doubt which has some good reason for it arising out of the evidence or lack of evidence in the case; such a doubt as you are able to find in the evidence or lack of evidence a reason for.”
In The State v. Patton, 66 Kan. 486, 71 Pac. 840, the giving of an instruction that a reasonable doubt was one for which the jury could give reason was held not to require a reversal. The present case is well on the safe side of the debatable ground there considered. Whatever objections there may be to a juror’s being told that in order to regard a doubt as reasonable he must be able to give — that it to state — a reason for it, no harm can result from advising him that no doubt is reasonable unless a reason for it exists, and that is substantially the effect of the instruction under consideration.
The judgment is affirmed.
SYLLABUS BY THE COURT.
1. Criminal Law — -Instructions—Circumstantial Evidence. A conviction upon a criminal charge will not be reversed because of an omission of the trial' court to instruct the jury that the facts relied upon to justify a conviction upon circumstantial evidence must be consistent with each other, where' no separate’ request was made with regard to that proposition, and where the court gave an instruction regarding the effect of circumstantial evidence which was otherwise sufficient.
2. -Presumption of Innocence — Reasonable Doubt — Instruction. An instruction that “the law presumes and you [the jury] must presume him [the defendant] to be innocent of the crime with which he is charged . . . until he is proved guilty beyond a reasonable doubt by competent evidence” sufficiently indicates that the presumption of innocence is an affirmative force, equivalent, to. so much evidence in his behalf, at least where no request is made for a more specific statement of the proposition except in connection with other matters. | [
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The opinion of the court was delivered by
Smith, J.:
Gulliford became, the owner of a mill, and not being himself a miller employed McQuillen to operate it. Not long thereafter the two had a conversation or conversations in regard to selling or trading the mill, in which, according to McQuillen’s testimony, Gulliford agreed to pay him a commission of two per cent, if he could dispose of the mill for $18,000. Gulliford testified that McQuillen asked a commission but he expressly refused to pay it. An exchange was finally effected, with one McClintock, of the mill and $2000 for a drugstore and dwelling properties, in which the mill was accepted at the value of $18,000. McQuillen thereafter demanded of Gulliford $360 as his commission on the deal, which was refused. He then brought suit and recovered judgment for the amount claimed, and Gulli-ford brings the case here.
On the trial, after testifying as a witness in his own behalf as to the verbal contract with Gulliford, Mc-Quillen identified a letter which he claimed to have received from McClintock and which was introduced in evidence over the objection of Gulliford. This is assigned as error. The contents of the letter did not relate to any fact in the case, except that they evidenced the pendency of negotiations between McQuillen and McClintock for the exchange of the mill property. It was competent for this purpose.
The second contention is that the court erred in allowing McClintock to testify to the contents of a letter from .McQuillen to him. A fair showing of the loss of the letter had been made. The contents of this letter were also immaterial, except as tending to prove the continued effort of McQuillen to consummate the trade. The fact of McQuillen’s writing the letter on that subject, and not what he wrote, was all that was pertinent, and, in the discretion of the court, this might have been testified to without the production or attempt to produce the letter. . •
Again, it is urged that the court erred in excluding the offered testimony of Mary Gulliford, the wife of the defendant, to the effect that when she wrote and had McQuillen sign a receipt for his wages as miller she asked him if that was all that was due him and he said it was. There was no evidence that she was her husband’s general agent to settle his accounts with others or that she was directed or authorized to make settlement with McQuillen. Mr. Gulliford paid Mc-Quillen his wages and Mrs. Gulliford wrote the receipt. She generally did hér husband’s writing; and did some other business for him, the nature of which is not disclosed. This is not such a showing of agency as to the subject-matter of the conversation as removes the statutory disqualification of the witness.
We have considered all the other assignments of error and do not find them meritorious. The plaintiff offered evidence tending to impeach the defendant’s reputation for truth and veracity, and thereupon the defendant asked a postponement of the trial to enable him to secure the attendance of witnesses in rebuttal thereof, which request the court granted. The plaintiff immediately withdrew all the impeaching evidence, and the court instructed the jury to disregard such evidence and proceeded with the trial. There is no showing that plaintiff’s attorney made any reference to this evidence in his argument nor was there any reference to it in the instructions complained of. These instructions were general and were such as are usually given in relation to the weight of the evidence and the credibility of witnesses. No request for an instruction in writing on this subject was made.
It is further urged that the court erred in omitting to instruct the jury that the burden was upon the plaintiff to prove that the consideration received for the mill was $18,000. The court did instruct the jury that the burden of proof was upon the plaintiff to sustain his claim, and also stated in detail that he claimed to have disposed of the mill at a consideration of $18,000 and that by agreement he was to have a commission of two per cent, thereon. If the defendant wished any further instruction he should have requested it, which he did not. There seems to be little merit in this contention, as the defendant himself testified that the drug-store was rated in the trade at $15,000, the dwelling at $5000, and that he paid $2000 boot between these properties and the mill.
The issue in-this case was principally one of fact as to whether there was a contract for a commission of two per cent. The evidence was sufficient to sustain a verdict for either party on that issue. There appears to have been a fair trial, and the jury saw fit,to give . credence to the evidence of the plaintiff, wjhich it was within their province to do.-
The judgment is affirmed.
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The opinion of the court was delivered by
MASON, J.:
Robert and Charles Burgess prosecute error from a judgment for $1254 rendered in an action brought against them by Wiley Alcorn and several others. The plaintiffs in their petition alleged that they had bought a stallion of the defendants, receiving a written warranty of its qualities, and executing in payment three promissory notes for $400 each; that one provision of the contract was that under certain conditions this stallion might be returned and another would be supplied in its stead, which should meet the requirements of the warranty; that such an exchange was effected, but the second animal, like the first, proved practically worthless. Damages were asked to the amount of the purchase-price and various expenses incurred.
The action was tried throughout as one for breach of warranty, and the defendants contend that this was error, claiming that the petition committed the plaintiffs definitely to the theory that it was brought for relief on the ground of fraud. The petition did contain allegations, in addition to those above indicated, in virtue of which it stated facts sufficient to constitute a cause of action founded on tort. But as it also set out all the facts requisite for a recovery on the contract, and was not attacked by motion or demurrer, the defendants cannot complain that the references to fraudulent conduct were ignored. (Chase v. Railway Co., 70 Kan. 546, 79 Pac. 153.) “Where all the elements of a contract are alleged, averments characterizing the conduct of the defendant as fraudulent . . . may be rejected as surplusage.” (21 Encyc. Pl. & Pr. 658.)
At the time the petition was filed the three notes referred to had all been transferred to other persons, and the first one had been paid. The second note was paid during the pendency of the action, and the third was still outstanding when the judgment was rendered. The defendants assume, and the assumption is justified by the record, that the amount of recovery was arrived at by taking the aggregate face value of the several notes, and they argue that at all events it was excessive by at least the amount of the third note, since that was never in 'fact paid, and since the plaintiffs according to their own theory were under no legal obligation to pay it. If the notes were negotiable and were transferred so as to cut off inquiry into their consideration the situation was the same as though they had been paid. (Baker v. Brem, 103 N. C. 72, 9 S. E. 629, 4 L. R. A. 370. See, also, note in 27 L. R. A. 519 to Nashville Lumber Co. v. Fourth National Bank, 94 Tenn. 374.) But it was not directly, and perhaps not even inferentially, pleaded or proved that these notes were negotiable. Assuming that they were non-negotiable, however, we think under the circumstances of the present case the defendants had no cause of complaint that the unpaid note was treated as a valid demand against the plaintiffs.
The principle invoked by the defendants was applied in Vogel v. D. M. Osborne & Co., 34 Minn. 454, 26 N. W. 453, and in Smith v. Carlson, 36 Minn. 220, 30 N. W. 761. In the former case an agreement had been made that two notes should be returned by the payee to the maker upon the breach of a certain warranty. The warranty failed, and an action brought to recover damages therefor resulted in a judgment for the plaintiff. On review the supreme court said:
“Now, upon defendant’s refusal to refund the notes to plaintiff upon proper demand his remedy, as sought in this action, is for the damages resulting from the breach of the contract to refund. The consequences of this breach were that the notes were left outstanding against the plaintiff, and he was in danger of being sued upon them. Now, so long as he had a perfect defense to them, no matter whose hands they came to— so long, as he was in fact under no legal liability on account of them — how can he be said to have suffered any substantial damage from the refusal to return them? And if, notwithstanding he is not liable upon the notes, he sees fit of his own motion to pay them, how can that be said to be anything more than his own voluntary and unnecessary act — in effect a pure gift to the holder of the notes, and not in any legal sense the consequence of, or damage resulting from, the refusal to refund them according to agreement? In our opinion, therefore, the evidence does not sustain the verdict, and there must be a new trial.
“We may add that if the notes were negotiable in form, but had not been indorsed before maturity, they would stand upon the same footing, as respects plaintiff’s right of defense, as if non-negotiable; and, on the other hand, if being negotiable they were duly indorsed before maturity, the plaintiff could not set up his defense against a bona fide indorsee; and hence, with or without payment of them, he would be entitled to recover their full amount of defendant, if the other facts material to his recovery were found in his favor.” (Page 457.)
In the other case negotiable notes were given for the assignment of a patent right. The maker claimed that he had been defrauded, offered a reassignment of the letters patent, and demanded the return of the notes. This being refused, he sued for their amount as damages. Afterward one who had purchased a part of the notes sued upon them. The maker in defense pleaded the facts stated, and alleged that the notes had been bought with notice thereof. The plaintiff contended that the bringing of the action for damages precluded the defendant from denying liability upon the notes. In denying this contention the court said:
“In that action no other damages were alleged than the payment of the consideration for the assignment. The action was, in effect, to recover back such consid eration. The right to take that as the measure of damages could exist only on the proposition that Carlson [the maker] had paid it, or might be obliged to pay it. Thus, if he had not paid, but merely given a non-negotiable promise to pay — a promise which could not be enforced if he should make his defense — he could not recover such consideration, but would be left to his defense whenever an attempt to enforce it might be made; and so if, on the trial of this action, Leathers [the payee] should deliver up any of the notes, they could not be included in the amount of the recovery; and so if it appeared with certainty that they could not be enforced. (Vogel v. Osborne, 34 Minn. 454, 26 N. W. 453.) If the legal obligation to pay the notes does not exist, they cannot be taken as the measure of damages; for in that case he is not in law damnified by. having given them. In seeking, in that action, to recover back the consideration, Carlson was justified in assuming the notes to be part of it, because, being negotiable, they might have passed, or, if not yet due, they might pass, into the hands of bona fide holders, so that he would have to pay them. Prima facie they might, in that action, be taken as obligations which he might have to pay. But he could not waive a sure defense to the notes, appearing in that action, in order to recover the amount of them, merely to be recovered from him again in an action on them. It was not a case of election of remedies, but of damages sustained. The fact, then, that he brought that action to recover so much of the consideration as he had actually paid, or was under legal obligation to pay, does not affect his obligation to pay the notes, nor can it be taken as affirming the validity of the notes.” (Page 221.)
In each of these cases the maker of the notes based his claim for damages specifically upon the refusal of the payee to deliver them to him upon demand. Even under such circumstances it is not clear why he should not have the privilege of treating them as valid obligations if he sees'fit to do so. It is difficult to see how the payee has any standing to object unless he accompanies his objection with an offer to return the notes. In Thrashing-machine Co. v. Currey, ante, p. 365, a decree was affirmed which as a means of enforcing the cancelation of notes against their holder gave a personal judg ment against, him for their amount, with a provision authorizing its satisfaction upon their delivery into court within a stated time. And in Evenson v. Keystone Mnfg. Co., 83 Minn. 164, 86 N. W. 8, in an action for breach of warranty, the plaintiff was permitted to recover the amount of a matured note which was still in the hands of the defendant — the payee. But in the present action the plaintiffs never asked for their notes. They did not seek to rescind the purchase of the horse. They were content to let the transaction stand, and to demand compensation in damages for the injury they suffered through the failure of the warranty. Such an attitude estopped them thereafter to deny liability upon the notes. As was said in Davis v. Schmidt, 126 Wis. 461, 106 N. W. 119, of an action brought upon a note under similar, circumstances:
“The record does not disclose that the defendants ever returned or offered to return the stallion, or ever rescinded the contract of purchase, and the action commenced by them for the recovery of damages clearly evinced their intention to stand upon the suit for damages for breach of the contract, and not upon rescission. They could only recover in the action for damages upon the theory that they were liable upon the note, and clearly this was the basis of their damages. Had they recovered in the suit commenced for damages it is very clear they would be liable upon the note. They could not have their damages, which, in effect, were based upon the consideration of the note, and also escape the payment of it. The two remedies would be clearly inconsistent, and the defendants here, having elected their remedy by suing for damages, elected to affirm the sale. . . . Here, upon the facts appearing in the record, the action of the defendants in commencing suit for breach of warranty was consistent with no other theory than an affirmance of the sale, the consideration of which was the $2600 note. Therefore we see no escape from the conclusion that in the commencement of such action with knowledge of the facts, or at least reasonable means of knowledge, the defendants here elected their remedy and are bound by such election.” (Page 464.)
Where the maker of a note to which a defense might be made by reason of a failure of warranty waives the right to repudiate it, no wrong is done the payee by a judgment for its amount unless he is denied the privilege of canceling the note or setting it off against the claim for damages. This is illustrated in Fahey v. Esterley Machine Company, 3 N. Dak. 220, 55 N. W. 580, 44 Am. St. Rep. 554, where it was said:
“The true theory of this action is that the consideration for the one hundred and ten dollar note failed because of a breach of the warranty, followed by the performance by the plaintiff of all the conditions of the warranty, and by a complete rescission, and that it then become the duty of the defendant to return the note. The authorities seem to sustain the doctrine that on demand for a note, under such circumstances, the cause of action arises, and that the maker may recover the full face value thereof, although he has not paid it or been held liable upon it. (Thayer v. Manley, 73 N. Y. 305; Comstock v. Hier, 73 N. Y. 269, 29 Am. Rep. 142; Farnham v. Benedict, 107 N. Y. 159, 13 N. E. 784; Decker v. Matthews, 12 N. Y. 313.) Where the note has been negotiated before maturity for value, as in this case, there would seem to be no doubt as to the soundness of the doctrine; and when the note is still in the hands of the original party, the defendant, but is not due when the action is brought, the rule ought to be and is the same. (Thayer v. Manley, 73 N. Y. 305.) Neither does the fact that the maker might restrain the negotiation of such a note, and compel its surrender in an equitable action, affect his right to maintain an action at law for damages. (Thayer v. Manley, 73 N. Y. 305.) But the judgment ought not to be absolute, if the defendant requests the privilege of restoring the note, and saving plaintiff from all possibility of loss on account thereof.” (Page 226.)
Here the defendants, having lost control of the third note, and having made no suggestion of an ability or desire to restore it, are in no position to complain of its being treated as valid.
The right of the maker of a series of non-negotiable notes to defend against them on the ground that they were obtained by fraud or false warranties may be a very inadequate remedy. It would not protect him against being harrassed by a number of suits by different individuals, perhaps in different courts, in each succeeding one of which he might be required to establish the facts anew. Justice would ordinarily be promoted by permitting him to choose his own forum and settle the entire controversy in a single action against the person at fault, electing to treat the notes as valid, and to indemnify himself by means of a judgment for damages. Whether or not the maker of a non-negotiable note given in payment for goods may always, upon proof of a breach of warranty or of the practice of fraud upon him, regard the note as a subsisting obligation and recover damages upon that theory, we are satisfied that the plaintiffs in this case were entitled to that privilege. The case of Bach et al. v. Levy et al., 101 N. Y. 511, 5 N. E. 345, seems to tend to support this view, although the discussion there is very brief. On the other hand, Walsh v. Cooper, 10 Wash. 513, 39 Pac. 127, has an apparent tendency to the contrary, but the facts are not closely similar to those here presented.
Criticism is made of several instructions given to the jury. One of them — an introductory paragraph— was to the effect that the plaintiffs were entitled to recover if they had proved the facts upon which they relied. In other portions of the charge the court indicated what these facts were and this statement was therefore unobjectionable.
The usual instruction was given that the jury might disregard the entire testimony of any witness whom they believed to have wilfully testified falsely in a material matter. An objection is made that the court should have added: “except in so far as the testimony of such witness is corroborated by other reliable testimony or evidence in the case.” The rule requiring such an instruction to make the exception in favor of corroborated testimony seems to be peculiar to Illinois. (See 11 Encyc. Pl. & Pr. 337, 339, 340.) This court, by inference at least, has frequently approved the form of instruction given. (Shellabarger v. Nafus, 15 Kan. 547, and cases cited in annotated edition.)
Other questions raised in connection with the instructions have either already been considered or are not thought to require special mention. We find no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
Edwin Little brought this action against the St. Louis & San Francisco Railroad Company and the Kansas City, Fort Scott & Memphis Railway Company, jointly, to recover damages for personal injuries sustained by falling from one of their alleged defectively equipped freight-engines, while in the performance of duties imposed upon him as a fireman on such engine. He recovered judgment against the St. Louis & San Francisco Railroad Company, and it brings the case here for review.
The material allegations of the petition are: That, the defendants, the St. Louis & San Francisco Railroad Company and the Kansas City, Fort Scott & Memphis Railway Company, are railroad corporations, and are the owners of and operate a railroad into and through Johnson county, Kansas; that on November 10, 1903, the plaintiff, Edwin Little, was in the employ of the defendant companies, as fireman on engine number 559, hauling a north-bound freight-train; that at Ocheltree, Johnson county, Kansas, on the night of that day, the engine and freight-train were sidetracked to let a south-bound passenger-train go by; that plaintiff was ordered by the engineer to go forward and “blind” the headlight on the engine with his coat, plaintiff having found out several stations south that the “cap” usually provided for that purpose was not upon the engine; that plaintiff went forward on the foot-board running along the engineer’s side of the engine, and stepped upon the “handhold,” a round bar or pipe which, is fastened to brackets to step upon to get up to the headlight, and which, when in proper condition, is pinned or fastened at each end so that it will not turn or slip when stepped upon; that as he stepped upon this handhold, by reason of its not being fastened at the ends,, it turned under his foot and he was dashed to the ground, a distance of eight feet, receiving physical injuries to his damage in the sum of $1900. Plaintiff averred that it was his first trip on this engine and that he had no knowledge of the condition of the handhold, or foot-rest, and that in the performance of his duties he relied upon the foot-rest, or handhold, being in proper condition and fastened, so that it would not turn when stepped upon, and that his injuries were caused without any fault upon his part, but were caused by'the negligence and carelessness of the defendants in not having (1) a cap to cover the headlight, and (2) in not having the foot-rest, or handhold, fastened at the ends so that the same would not turn; and averred that defendants well knew of the conditions, or might have known of the same, in time to- have repaired them before plaintiff was injured.
It appears that when running a freight-train in the night-time on the St. Louis & San Francisco railroad, if it becomes necessary to side-track for a train going in the opposite direction, it is the duty of the fireman on the side-tracked freight-engine to hood the headlight, in order that the engineer on the approaching train may know that the train on the side-track is “in the clear.” For this purpose each engine is provided with a tin cap, or curtain, which may readily be adjusted as a hood, or shade, over the headlight. To perform this duty the fireman must pass out of the cab by a window on his own side and go upon what is called a running-board along the boiler, and then climb upon a hand-rail in order to reach the cap, or curtain. This hand-rail is a round iron pipe one and a half inches thick, held in place by brackets attached to the boiler, in which there are holes through which the hand-rail is placed.
On the trip which was being made when Little received his injuries his train was first side-tracked at Boicourt. He, as fireman, went forward to hood the headlight, and discovered that the engine contained neither a cap nor curtain attachment. He therefore put out the light. For this the engineer reproved him, and instructed him not to put it out again but to put his coat over it. When they arrived at Ochel-tree the train was again side-tracked. Little went out on the fireman’s side, climbed upon the hand-rail and put his coat over the headlight, but the wind was blowing so strong from the opposite direction that he could not keep his coat over the headlight. He got down and went around on the engineer’s side and climbed upon the hand-rail, that he might have a favorable wind to hold his' coat over the light. While in this position and while holding his coat he alleges that the hand-rail turned and that he fell to the ground, receiving the injuries for which he recovered damages.
The plaintiff in error’s first contention is that, since the petition charged the negligent acts which caused his injury to have been the joint acts of the two railway companies, a failure to prove that they were jointly liable was a failure to prove his cause of action as alleged in his petition. This precise question was decided against this contention at this term, in Railroad Co. v. Noland, ante, p. 691.
The second contention is that plaintiff failed to give the notice required by chapter 393 of the Laws of 1903, and therefore no recovery can be had. This chapter reads:
“Every railroad company organized or doing business in this state shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by. any mismanagement of its engineers or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.”
This chapter is an amendment of the statute popularly called the fellow-servant act, which changed the common-law rule and gives an employee a cause of action where none existed at common law. It creates-a liability against railroad companies for injuries to their employees occasioned by the negligence of a fellow servant. The plaintiff did not sue under this statute, but charged a common-law liability, arising out of the neglect or omission of the defendant to furnish him a safe place to work and safe appliances to work with. His claim was that the company had not furnished him an engine properly equipped with the necessary appliances to shade the headlight — such as were generally used for that purpose, the absence of which compelled him, in the performance of his duty, to imperil himself by having to stand on the hand-rail and hold his coat over the headlight.
' It is not shown in the evidence whether the handrail was ever tight, in the sense that it would not turn. It might be perfectly safe as a hand-rail and turn in the loops on the ends of the iron brackets attached to the boiler through which it passed. The negligent conduct of the defendant which gave plain tiff his right of action was in requiring him to perform certain duties in the operation of an engine which was defectively equipped, in the performance of which duties, and by reason of the defective equipments, he sustained an injury. The evidence was sufficient to support the verdict.
The judgment is-affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This was a suit to enjoin the city of Topeka from exercising municipal authority over a strip of land as a public, highway. The trial court made special findings of fact and conclusions of law and rendered judgment thereon for the city. The plaintiff prosecutes this proceeding in error.
Fillmore and Clay streets in the city of Topeka are parallel and run north and south. Third street runs east and west, crossing Fillmore and Clay at right angles. In 1880 the plaintiff became the owner of a tract of land in Topeka township lying between Fillmore and Clay streets and north of Third street. When plaintiff became the owner of this land the tract adjoining it on the south had been platted as an addition to the city of Topeka and was called Nilsson’s addition. The Nilsson plat dedicated attract of land forty feet wide on the north thereof from Fillmore to Clay street to the public as a street, and designated it upon the plat as Third street. This tract became a well-defined and traveled road, and has continued to be so used. The land in controversy is a strip twelve feet and nine inches wide and 160 feet long, parallel with and adjoining Third street between Fillmore and Clay streets, and was a part of the plaintiff’s land. It is now claimed by the city as a part of Third street. This is denied by the plaintiff, and she brought this suit perpetually to enjoin the city from exercising control over it.
The findings upon which the court rendered judgment, briefly stated, are as follow: When the plaintiff became the owner of the land it was enclosed. The fence on the south was exactly on the south line, and was in the center of Third street, extending west from the center of Fillmore to Clay. This fence became out of repair, and in 1884 J. M. Meade, the husband of the plaintiff, instructed workmen to build a new fence on the south line and inside the old fence. Without the knowledge of either the plaintiff or her husband the fence was placed twelve feet and nine inches inside the line, leaving this disputed strip appárently in Third street. Immediately thereafter, however, the plaintiff and her husband became informed that the fence had been moved north of the true line. After the fence had been built there were some posts and wires and scattering trees on the strip, which were removed by J. M. Meade, and he also caused shade and ornamental trees to be planted inside the new fence in line with trees previously set out on the east and west of the Meade land along the north side of Third street, which trees were apparently set out in contemplation of Third street being eighty feet wide. When this fence was built the plaintiff had no intention of dedicating this land to public use. In 1885 the township road overseer, under the direction of the township board, took possession of this strip of ground as the public highway, cut a ditch along and outside the fence and placed the dirt therefrom in the center of the street, and the public has had possession thereof ever since that date, grading and working it from time to time as the public demands required, and it has been traveled by the general public at all times thereafter as a part of the public highway, with, the knowledge of the plaintiff and without objection to such use.
It is earnestly argued that the findings are not supported by the evidence. We have carefully examined the evidence and find that each finding is well supported. On some questions the testimony is conflicting, but there is positive evidence to support each material finding.
It is also contended that a judgment should not have been rendered against the plaintiff in view of the finding that it was not the intention of the plaintiff to dedicate this land to the public when she moved her fence inside of her property line in 1884. In order to con stitute a dedication there must be a clear intent, express or implied, to devote the grounds to the public use, and if the city were relying solely upon a dedication it could not recover in the absence of a positive showing of such intent. The city does not, however, rely solely upon a voluntary or intentional dedication, but in addition relies upon a prescriptive use, or what is termed in the modern law a presumptive grant, which the law will presume upon proof of an adverse, exclusive and uninterrupted possession and enjoyment for such a period of time as would bar an action for the recovery of real estate under the statute. (Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. Law, 605; Clement v. Bettle, 65 N. J. Law, 675, 48 Atl. 567; Pavey v. Vance et al., 56 Ohio St. 162, 46 N. E. 898.)
It is also argued that it is not shown that the possession claimed was not permissive. The character of the possession exercised by the public authorities in the present case makes a prima facie case against the plaintiff on this question. The land was used exclusively by the public, without objection by the owner, and the use was of such a character as to deprive the owner from exercising any right of ownership. It was riot necessary that the public verbally assert a right to the land. Such claim of right may appear from the use itself. Under such circumstances the burden of showing that it was only permissive is upon the owner. (Garrett v. Jackson, 20 Pa. St. 331; O’Daniel v. O’Daniel, 88 Ky. 185, 10 S. W. 638; Pavey v. Vance et al., 56 Ohio St. 162, 46 N. E. 898.)
The right having been acquired by user, the easement cannot be broader than the user. The city therefore acquired no rights to any of the plaintiff’s land outside the line actually worked and traveled, by the public. (1 Ell. Roads & Streets, 2d ed., § 174; District of Columbia v. Robinson, 180 U. S. 92, 21 Sup. Ct. 283, 45 L. Ed. 440.)
It does not appear from the evidence in this case, nor is there any exact finding, that the public actually oc cupied all of. that part of the land lying south of the fence. At least, there appears to be a pasture north of the ditch dug on the north side of the tract occupied by the public and between this ditch and the fence which the public did not use. As to that portion the public did not acquire a title by user.
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The opinion of the court was delivered by
Greene, J.:
Frank N. Masemore commenced this suit to quiet his title to certain lands. There were several defendants. Among others named were “- Whitney, and - Whitney, her husband.” The allegations in the petition referred to these parties as “-Whitney, and-Whitney, her husband,” whose real names the plaintiff was unable to ascertain. An attempt was made to get service of summons by publication. In the affidavit therefor they were described as “-Whitney, and — Whitney, his wife, whose first names are unknown.” In the notice of publication they were referred to as “-Whitney, and-Whitney, his wife, whose first names are unknown.” After this notice had been published the plaintiff, without notice, amended his petition, both in the title and body, by inserting the name “Florence I.” before the ■ name “Whitney” that referred to the wife.
Thereafter, and on June 3, 1902, judgment was rendered against Florence “I.” Whitney and others, by which it was adjudged that the plaintiffs title to the real estate was valid and perfect, and that the defendants had no estate or interest therein. On January 26, 1906, Florence D. Whitney filed a motion to set aside the judgment rendered against her on June 3, 1902, as to one of the quarter-sections of the land described in the petition, claiming that the record showed that no service of summons was ever made personally or by publication upon her, that she had made no appearance in the suit, and that she had had no notice or knowledge of the same until long after the rendition of the judgment. This motion was supported by her affidavit, in which she stated that she was and had been for more than five years last past an unmarried .woman; that she claimed an interest in the quarter-section of land therein described, being one of the quarters described in plaintiff’s petition; and that she had no knowledge or notice of such action or the pendency thereof or the rendition of the judgment until long after the same was entered. It was admitted by the plaintiff that the statements contained in Florence D. Whitney’s affidavit were true. Upon a hearing the motion was denied. The only question for our consideration is whether a judgment rendered against Florence D. Whitney on such a service is void.
The provision of our statute with reference to serv ice of summons by publication provides that the notice published shall contain “the names of the parties.” (Gen. Stat. 1901, § 4508.) If the Christian names of the defendants are unknown to the plaintiff he ought to give such description or identification of them in the notice that the defendants and persons acquainted with them would by reading the notice know who were being sued. The notice “must be given with sufficient accuracy clearly to indicate their identity.”' (17 Encyc. Pl. & Pr. 90.)
The notice given by the plaintiff in this case did not identify Florence D. Whitney. There were no' statements or intimations that would indicate to her' or any other person who read the notice that she was. intended as one of the defendants. Indeed, she might very reasonably have concluded from reading the notice that she was not the Whitney for whom the notice was intended. All effort made to identify her was misleading. The description was “-Whitney, and-Whitney, his wife, whose first names are unknown.” At the time this notice was published Florence D. Whitney was an unmarried woman. In. Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334, it was said:
“Notice, by publication, to John McCorkle and-McCorkle, his wife, of the pendency of an action- to quiet title to real estate, which was instituted after the death of said John McCorkle, is not notice to Maria McCorkle, widow of said John McCorkle; and that being the only attempt to bring her into the action, and service of process not being waived by her,, she not appearing to the action, and, in fact, having' no knowledge of the pendency of the action, and being before, at the time of, and since the institution of the action, a resident of the state but not of the* county where the action was instituted, the court obtained no jurisdiction over her, and the judgment rendered therein was a nullity as to her.” (Syllabus.)
In the case of Fanning v. Krapfl, 61 Iowa, 417, 14 N. W. 727, 16 N. W. 293, a suit to foreclose a mechanic’s lien, where the service was by publication, the' defendant’s name was T. Phelia Boyd Hopkins. In. the publication notice the name was P. T. B. Hopkins. It was held that the transposing of the initials made; the notice of no effect as to her, and gave the court no jurisdiction to render a-decree against her. It was. well said in that case:
“Notice by publication, even where there is no misnomer, does not afford a very strong natural presump tion that the fact of the pendency of the action will be brought to the defendant’s actual knowledge. Notice by this mode is allowable only out of necessity. It must often happen that great injustice is done and great hardship, suffered. We are not disposed to open the door any wider than necessity requires.” (Page 419.)
Service of summons by publication is only a substitute for personal service, and the statute providing for such service should be construed with considerable strictness. It is always doubtful if the defendant will ever by seeing the notice in the paper know of the pendency of the action until after judgment has been rendered. The information that an action is pending is quite often conveyed to the defendant by his acquaintances who have read the notice, when without the information thus conveyed the defendant would not have received any notice. The notice, therefore, should so clearly identify the defendant that his acquaintances who read the notice will know for whom it was intended. It is not probable that a non-r.esident of the state will see the local paper containing the notice, but it is always possible that some of his acquaintances residing in the county where the paper is published will see it, and if the defendant is identified in the notice they are likely to convey the information to him. A notice that does not furnish this information is ineffectual to give the court jurisdiction of the defendant. The notice- published was so defective in describing the plaintiff in error that it did not give the court jurisdiction of her, and the judgment ■entered is void as to her.
It is argued by defendant in error that he followed the provisions of section 4577 of the General Statutes of 1901. That section has application only where personal service is made.
The order denying the motion to vacate the judgment is reversed and the cause remanded, with instructions to allow the motion and set aside the judgment as to Florence'D. Whitney. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff in error made application to the probate judge for a druggist’s permit to sell intoxicating liquors. Upon a hearing the probate judge granted the license. From that judgment J. T. Burton and Thomas B. Godsey appealed to the district court, where the ruling of the probate judge was reversed, and the probate judge was ordered to cancel and revoke the permit, which was done. From the judgment of the district court the plaintiff in error comes to this court.
It is objected that this court has no appellate juris-' diction in such a proceeding. The statute controlling this question is section 2452 of the General Statutes of 1901, which in part provides: .
“If the district court shall find that the probate judge has abused his discretion it shall have power to cause the probate judge to comply with its judgment, otherwise the order of the probate judge shall be by the district court affirmed. No appeal shall be allowed from the order of the district court.”
The word “appeal” was used in this statute in its broad sense, and includes writs of error.
The original act of 1881, which required a druggist wishing to sell intoxicating liquors to obtain a permit from the probate judge, left the matter entirely to the discretion of the probate judge to grant or refuse the permit, and no review of his judgment was given by statute. (Laws 1881, ch. 128, § 2.) In 1885 this act was amended, but no change was made in this respect. (Laws 1885, ch. 149, § 1.) In 1887 the latter act was amended and the section quoted added. (Laws 1887, ch. 165, § 1.) By this section any^party aggrieved by the judgment of the probate judge may prosecute error or appeal to the district court, but with the express limitation that “no appeal shall be allowed from the order of the district court.” This section was intended to preclude this court from reviewing the judgment of the district court.
The proceeding is therefore dismissed. | [
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The opinion of the court was delivered by
Greene, J.:
Dan Kaw-ke-kah was an adult Kickapoo Indian. T. J. Beall recovered a judgment against him before a justice of the peace in Brown county and filed a transcript thereof in the district court. Pearl Kaw-ke-kah. was Dan’s, mother and an allottee of the Indian lands in Brown county. Subsequently to the filing of the transcript of the judgment against Dan in the district court Pearl died, leaving D,an as .her sole heir to whom, under the law,- Pearl’s allotment -descended. After the death of Pearl the land thus inherited was sold and conveyed by Dan to E. T. Letson, under the direction and with the approval of the secretary of the interior. The deed thereto was delivered by the Indian agent to Letson and was recorded. Let-son afterward sold the land to Fred E..Graham.
Subsequently T. J. Beall caused an execution to be issued upon his judgment, which was delivered to his codefehdant, I. N. Smith, sheriff of Brown county, who attempted to enforce it against this land. Fred E. Graham, the owner, instituted an injunction suit against T.' J. Beall and the sheriff to restrain them from advertising or selling the land under the execution. Upon a trial the injunction was made perpetual, and the'defendants prosecute this proceeding to have that judgment reversed.
The defendants contend that Beall’s judgment became a lien upon the land inherited by Dan from his mother, and was a lien thereon when Dan conveyed it to Letson. To decide this question reference must be had to the grant made by the United States to the Kickapoo Indians and the restrictions under which they hold their allotments.
Section 5 of chapter 119 of the act of February 8, 1887 (24 U. S. Stat. at L. p. 388), which is “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States 'and the territories over the Indians, and for other purposes,” provides as follows:
“That upon the approval of the allotments provided for in this act by the secretary of the interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the state or territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or encumbrance whatsoever; provided, that the president of the Untied States may in any case in his discretion extend the period. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such, conveyance or contract shall be absolutely null and void.” (Page 389.)
Section 7 of chapter 888 of the act of May 27, 1902 (32 U. S. Stat. at L. p. 275), provides:
“That the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent, but in case of minor heirs their interests shall be sold only by a guardian duly appointed by the proper court upon the order of such court, made upon petition filed by the guardian, but all such conveyances shall be subject to.the approval of the secretary of the interior, and when so approved shall convey a full title to the purchaser, the same as if a final patent without restriction upon the alienation had been issued to the allottee. All allotted, land so alienated by the heirs of an Indian allottee and all land so patented to a white allottee shall thereupon be subject to taxation under the laws of the state or territory where the same is situate; provided, that the sale herein provided for shall not apply to the homestead during the life of the father, mother or the minority of any child or children.”
It will be observed from a reading of section 5 that the United States holds the lands thus allotted in trust for the sole use and benefit of the Indians for the period of twenty-five years. The allotment was made in 1895, therefore the twenty-five years had not expired when it is claimed the judgment lien attached. The United States still held the land in trust for the Indians. It is sought to avoid the restrictions of this section upon the power of the Indian to alienate his lands by that portion of section 7 above quoted which provides:
“That the adult heirs of any deceased Indian to whom a trust or other patent containing restrictions upon alienation has been or shall be issued for lands allotted to him may sell and convey the lands inherited from such decedent.”
Since there was no time restriction upon Dan to sell the land, it is claimed that upon the death of his mother the judgment lien immediately attached. This conclusion becomes impossible in view of the other provision of the same section which reads (referring to inherited lands) : “All such conveyances shall be subject to the approval of the secretary of the interior, and when so approved shall convey a full title.” The language “all such conveyances” includes sales by adult heirs as well as sales made by the guardians of minor heirs. Whether the lands be held by allotment or inheritance the title remains in the United States in trust for the Indians for twenty-five years, and at least during that period a title by inheritance cannot be devested without the approval of the secretary of the interior. Section 5 absolutely prohibits an allottee from selling his allotment for twenty-five years'. Section 7 permits an adult to sell the land inherited at any time provided he does so with the approval of the secretary of the interior.
It is also contended that the provisions of sections 5 and 7 have no application to transfers of inherited lands by operation of law, such as the enforcement of a judgment lien. The answer to this is that the title was reserved in the United States'in trust to protect the Indian from his own improvidence and the cupidity of others. To permit the land to be sold for his personal liabilities would-defeat the object of this trust and the purpose of the restriction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Kansas City Northwestern Railroad Company is the owner of a line of railroad, including depots, terminal facilities and other property, with respect to which the' Chicago Great Western Railway Company has certain rights under a written agreement providing that the latter company may use such property in common with the owner company for a period of 999 years, paying for such privilege a stated annual sum, to be increased by interest upon any amounts expended for permanent improvements by the owner by joint consent, and that the expense of maintaining the property shall be divided between the two companies in proportion to the úse made of it by each, to be determined by monthly estimates. The contract further provides that “taxes on property jointly use.d shall be included in the cost of maintenance.” The sole controversy in. the present case is whether the trial court erred in holding that the word “taxes” in the sentence quoted is to be construed to include assessments for local improvements made against the property specially benefited thereby.
There is of course a well-understood' difference between general taxes levied for the súpport of thé government and such special charges for betterments. The plaintiff in error forcibly contends that the word “taxes,” álone and unexplained, must be deemed to refer only to the former. That it is often and properly used in that sense cannot be denied. Bút it is also employed with equal propriety, if not with equal frequency, with a broader meaning. The Century Dictionary says:
“In a more general sense the word includes assessments on specific properties benefited by a loeal improvement, for the purpose of paying expenses of that improvement.”
In a note supported by ..pertinent citations, in volume 27 of the American and English Encyclopedia of Law, at page 579, it is said:
“It is now .well settled that special assessments for local improvements are a species of taxes,, being a burden on property for public purposes. The only substantial distinction between a special assessment and a general tax is that géneral .taxes are based on value and .subject, to the constitutional rule qf uniformity, which is not the case with special assessments.”
As either the broad or the restricted meaning is con- . sistent with approved usage, the question of which is intended' in a given case must be determined by the context. Statutory or constitutional provisions’ exempting certain classes of property from taxation are almost universally held not to refer to special assess-' ments for local improvements. But this interpretation is said by Mr. Cooley to be “the most striking illustration of the rule of strict construction of exemptions,” (1 Cooley, Taxation, 3d ed., 362), for,' as the author continues, “these assessments are a légál exercise of the taxing power, and can only be justified on that ground.” (Page 365.)
The most frequent occasion for the intérpretation of the word as used in contracts has arisen in controversies over the provision found in leases that the lessee shall pay the taxes on the demised property.. Cases of this character are collected in volume 18 of the American and English Encyclopaedia of Law, at pages 652 to 653, and in volume 3 of the Supplement to the American and English Encyclopaedia of Law, at pages 1010 find 1011. (See, also, Jones, Land. & Ten. § 415; 2 Wood, Land. & Ten., 2d ed., 957-959; 1 Taylor, Land. & Ten., 8th ed., § 397.) While there are some decisions to the contrary, of which Cassady v. Hammer, 62 Iowa, 359, 17 N. W. 588, is an instance, the weight of authority supports the view that suéh a covenant on the part of th'e tenant binds him to pay only general, and not special; taxes. The reason for this rule, however, is obvious. It is that benefit assessments are made against specific property expressly upon the assumption that it has received a corresponding increment in value, which redounds to the advantage of the owner. It is so unnatural and unfair that an expense of this character should fall upon one who has no interest in the property except a right to occupy it for the time being that he will not be deemed to have assumed it unless in virtue of language that admits of no other construction. This is illustrated by this extract from the opinion in Twycross v. Fitchburg Railroad Company, 76 Mass. 293:
“In the light of these provisions, and without seeking to determine what possible burdens upon the estate may be included under the terms ‘taxes and duties/ we think it quite clear that the expense of constructing the sidewalk was not a tax or duty levied or to be levied upon the premises demised. . . . The expense of paving the sidewalk is not only not within the letter of the contract, but not within the reason and equity of it. It is a permanent improvement of the estate, the benefit of which is to be found in the increased value of the estate and in the increased rent which it would permanently command.” (Page 295.)
The force of this consideration manifestly varies inversely with the duration of the lease. As was said in Harvard College v. Alderman of Boston, 104 Mass. 470:
“In a covenant for the payment of taxes by a lessee, it is to be ascertained by construction what was contemplated by the parties in the use of the terms employed. Those terms are not necessarily to be taken in their strict legal signification. In a lease for years, especially if for a short term, containing a covenant that the tenant shall pay all taxes assessed upon or in respect of the premises during the term, it would hardly be supposed that the parties intended that the lessee should pay an extraordinary assessment laid upon the premises in view of-the permanently increased value of the estate by reason of a public improvement in its vicinity, unless the terms used were such as to admit of no other construction. The contrary presumption is stronger or weaker according to the length of the term of lease.” (Page 483.)
The same thought was thus expressed by Judge Williams in Wilkinson v. Collyer, 13 Q. B. D. (Eng.) 1, where the tenant contracted to pay “all rates, taxes, and assessments payable in respect of the premises during the term”:'
“This is not á question of mere words; it is a question of substance. Seeing that the term was for three years only, and the annual rent of the premises but 387, I cannot think the parties could have contemplated that such a burthen as this should be imposed upon the tenant.” (Page 8.)
In the present case the contract involved uses words appropriate to a lease, and the plaintiff in error applies that term to it. Whether such designation is accurate is wholly immaterial. If the instrument, is a lease at all it is a lease for so long a time that it does not fall within the reason of the rule referred to. Its great duration cannot be said merely to diminish the force of the consideration stated — it does away with it altogether. Á contract which is to endure for 999 years must be deemed to establish a permanent, not a temporary, condition. The argument which applies in the case of an ordinary lease is here reversed. Just as the courts lean away from a construction which imposes an obligation to pay for permanent improvements upon a tenant who can enjoy them only for a fixed period, so they should lean toward a construction that will compel'one who shares their benefits for a practically unlimited time to share also their cost. If special assessments for improvements are not regarded as included within the term “taxes” as used in the contract, it results that all charges of this character accruing within a' millenium are to be borne solely by one of two companies, each of which derives an equal advantage from them. Rather than attribute to one of the contracting parties so improvident an agreement we are constrained to hold that the word “taxes” was used in its broad and general sense and was intended to include special assessments.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
In an action brought before a justice of the peace the plaintiff recovered damages for the value of a quantity of unshucked corn injured and destroyed by trespassing cattle belonging to the defendants. Upon appeal by the defendants to the district court the plaintiff was again successful, the jury returning a verdict in his favor for $24.75. The defendants prosecute this proceeding in error, claiming the case was tried upon a theory not presented by the plaintiff’s pleading and that a counter-claim was wrongfully rejected.
The plaintiff was not required to plead anew in the district court. The bill of particulars brought up from the justice of the peace, alleged, in connection with other facts essential to recovery, that the defendants deliberately and wantonly drove their cattle to graze upon the plaintiff’s standing corn. It also contained a recital of facts sufficient to support a statutory action for damages and a lien under the herd law; and besides these two classes of allegations it stated that the cattle had been herded by the defendants on a tract of land adjoining and in the same enclosure with the plaintiff’s field of standing corn, that the cattle “were permitted to trespass” on the corn-field by direction of the defendants, and that the defendants knew the cattle were trespassing on the field and damaging the corn.
No objection was made to this pleading, and no motion was made to compel the plaintiff to elect some one of the various theories of liability which it presented.
In opening the case to the jury the plaintiff abandoned his statutory cause of action, abandoned the charge of a wilful trespass, and founded his right to damages on the third state of facts referred to. The full statement of the plaintiff’s rights and of the defendants’ wrong-doing was as follows: The plaintiff sold to the defendants a field of corn-stalks; on one side of the field the corn had not been husked; plaintiff was to husk the corn as soon as he could; defendants herded their cattle on the part of the field from which the corn had been removed; before plaintiff could finish husking the defendants withdrew their herder, and the cattle then went upon the portion of the field where corn remained and destroyed it. The case was tried out and the jury were instructed on the theory of a negligent trespass.
Because the herd-law and wilful-trespass features of the hill of particulars are clearly expressed the defendants insist it contains nothing else. If, however, those allegations were eliminated, the pleading would still contain a very weak and somewhat obscure foundation, but still a foundation, upon which to predicate the opening statement and the evidence supporting it. Following the well-understood rule that technical precision is not required in pleadings filed before a justice of the peace, that the most liberal intendment must be conceded to them, that the fine line of distinction between “trespass” and “case” need not be drawn, and that a bill of particulars should be upheld if a cause of action can be discovered in it, although stated in the loosest, most indefinite, disconnected and general manner, it must be allowed that the plaintiff’s pleading contained the cause of action upon which he relied for recovery.
It is true a pleading ought tó be framed upon a single, definite theory. If, however, it should proffer several, the defendant may waive his right and undertake to meet them all. (Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498.) If, before the pleading is assailed, the plaintiff should elect to abide by some one of the various theories which it presents, the defendant has no cause to complain, and the plaintiff then has the right to proceed according to the interpretation which he has adopted. (See Johnston v. Marriage, 74 Kan. 208, 86 Pac. 461.)
If it be conceded that the rules of procedure have been violated in this case the judgment cannot for that reason alone be overturned. The legislature has enjoined upon this court the duty of looking beyond defects and errors in pleadings and proceedings to ascertain if they did- in fact affect the substantial rights of the party complaining of them. Fixed rules are to be observed and enforced, but not merely for the purpose of vindicating them. Harm must result from a wrong decision or it cannot be reversed.
“The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse. party; and- no judgment shall be reversed or affected by reason of such error or defect.” (Code, § 140; Gen. Stat. 1901, § 4574.)
An examination of the record discloses that the controversy finally turned upon the character of the plaintiff’s right and not upon the character of the wrong committed by. the defendants. The meritorious question was whether the plaintiff was to husk his corn as soon as he could, with due diligence, or whether all corn unhusked after February 1 went with the stalks to the defendants. There was no dispute that the cattle got into the corn on February 12, and no substantial dispute as to the circumstances of the invasion. There was practically no conflict in the evidence bearing upon the plaintiff’s diligence and the defendants’ negligence; if the corn belonged to the plaintiff. The real defense was that the plaintiff agreed to abandon all corn which was not removed by February 1. This matter was fully and fairly tried. The defendants appear to have been fully prepared to meet the plaintiff at all points. No continuance was asked. Apparently all the witnesses to the contract and with knowledge of the facts of the controversy were produced and gave their testimony. The defendants did not indicate to the district court, and do not now indicate, that they have anything further to offer on the merits of the case. No trial error is pointed out. The jury found for the plaintiff, both by a general verdict and by answers to special questions, none of which is complained of. If an error were originally committed respecting the pleadings the substantial rights of the defendants have not been impaired. A' prolongation of the controversy to enforce correct rules governing the pleading of trespass before a justice of the peace would be to make litigiousness of more virtue than the doing of substantial justice between the parties.
The special findings of the jury having destroyed all basis for the defendants’ counter-claim, the refusal of the court to investigate the character and amount of it is no longer a matter of consequence. The defendants, however, have the right to add the amount of the counter-claim to the amount of the verdict against them to bring the case within the jurisdiction of this court.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced in the district court of Neosho county to recover damages alleged to have been sustained by the negligence and unskilfulness of the defendant in “shooting” an oil-well. The defendant was in default of an answer, and made application to the court for permission to plead. The court granted leave upon condition that it would plead to the merits. The plaintiff was a foreign corporation, and the defendant desired to file a plea in abatement, on the ground that plaintiff had not complied with the law relating to such organizations and .therefore had no right to maintain the action. The court insisted upon a plea to the merits, and thereupon a general denial was filed, and the case continued to the next term. At the trial the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action. The petition in averring the negligence charged it disjunctively, as consisting in having too much water in the well when the shot was fired or in not placing the shot deep enough in the well. The plaintiff amended its petition instanter by striking out the last clause of this disjunctive statement, and thereupon the defendant insisted upón the right to plead to the amended petition generally, but this was denied by the court and the general denial was refiled.
This action of the court is vigorously assailed as an abuse of discretion. We are unable to agree with this contention. The only absolute right a party has to plead is given by the statute; when that right is exhausted the question becomes one of practice, to be determined in . each case by the court. A person in default is in a sense out of court. In practice, however, he may come in at any time, and will be per mitted to plead under such terms and limitations as the court in its discretion may impose. The action of the court in such a case will be sustained, unless there has been an abuse of discretion. (Tefft v. Firey, 22 Kan. 753; Mo. Pac. Rly. Co. v. Linson, 39 Kan. 416, 18 Pac. 498; Stith v. Fullinwider, 40 Kan. 73, 19 Pac. 314; Merten v. Newforth, 44 Kan. 705, 25 Pac. 204.)
This case presents no facts from which an abuse of discretion may be inferred. When the request to plead was made default had existed for. nearly sixty days, and no excuse whatever was given for defendant’s neglect. Parties may not ignore proceedings pending against them and then insist upon favors which must of necessity work inconvenience or injury to the adverse party.
It is urged that when the plaintiff amended its petition by striking out one clause of -its disjunctive' statement the right to plead generally to the amended petition was no longer a matter of judicial discretion, but existed as a matter of legal right. .We are not aware of such a law in this state. The rule suggested would be unreasonable, if of universal application. The right to plead under such circumstances should to some extent depend upon the nature of the amendment, and is subject to the control of the court. If a material amendment be made to a pleading during the trial, the new matter might be such as would surprise the adverse party and render him unable to proceed without a change in his own pleading and time for preparation. In such a case it might be a gross abuse of discretion to deny a further plea to the amended pleading. But where, as in this case, the amendment does not materially change the attitude •of the parties, no new plea being necessary to meet the averments of the amended pleading, we see no necessity, or occasion for a reopening of the case for dilatory and technical pleas.
In this case the court permitted ample opportunity for the litigation of the merits of the controversy be tween the parties. The statute under which the defendant wished to file its plea in abatement was not enacted for the benefit of litigants, but to provide a means for the enforcement of a policy adopted by the state for the regulation of corporations. Litigants may properly take advantage of this law, and' if done in a timely and proper manner they will be protected therein. (Vickers v. Buck, 70 Kan. 584, 79 Pac. 160.) Where a party, without cause, has been for a long time in default, and the adverse party has prepared and is ready for trial, we cannot say the court is guilty of an abuse of discretion when it permits the delinquent defendant to appear and defend the cause of action upon its merits but declines to allow a plea in abatement to be filed, such as was refused in this case. The amendment of the petition may in a very limited sense be considered material, but, when viéwed with reference to its injurious effect upon the substantial rights of the defendant, it must be regarded as unimportant and trivial.
Complaint is made that the- plaintiff failed in its proof. But the jury returned findings of fact with the general verdict which fully sustain it. We are unable to say that there was no evidence upon which to make the findings, and therefore cannot disturb the judgment on that ground.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Curry'& Lohman, who were operating a thrashing-machine, purchased from A. Hardy a Parsons band-cutter and self-feeder for $245, for which they were to give him two notes payable at different times, one for $125 and the other for $120. The contract of purchase contained a warranty of the machine and stipulations as to the manner of testing it. Among other things it was warranted to be made of good material, and that with good care, proper power and fair usage it would cut bands and feed a thrashing-machine as well or better than any other band-cutter or self-feeder made. v There was a provision that if after a trial of three days it was not equal to the warranty notice should be given by the purchasers to the manufacturing company, at- Newton, Iowa, and also to the agent from whom the machine was purchased, and a reasonable time thereafter was to be given for a competent person to come and remedy the machine, the purchasers to render all necessary and friendly assistance, and if the. machine could not then be made to fill the warranty the purchasers were to return it free of charge to the place where they received it and permit the company to substitute therefor another machine which would fill the warranty. There was also a provision that if the purchasers refused or neglected to render all friendly assistance to the person sent to adjust the machine it should be treated as evidence of the fulfilment of the warranty and of the satisfaction of the purchasers.. -
The- machine was received by Curry & Lohman, who with the assistance of an agent of Hardy undertook to attach it to the thrashing-machine and operate it, but it did not work satisfactorily. ■ An expert from the factory arrived and offered to put the machine in order, but Curry & Lohman would not allow him to do so, nor assist him, unless he would agree that they should be reimbursed for the delay and be paid all the expenses of the trial in the event that the machine could not be made to work properly. They refused to settle for the machine or to pay the freight thereon as the contract provided, and Hardy brought this action against them, setting up the contract, the furnishing of the machine under it by Hardy and the refusal of the defendants to accept or pay for it, and asking judgment for $253.
The defendants answered with a general denial, and, further, that Hardy was not the real party in interest but was only the agent of the Parsons Band-cutter and Self-feeder Company, and that as agent he made oral agreements as to the furnishing and delivery of the machine which were not complied with. . They also set up a claim for damages by reason of the non-compliance with the contract in furnishing an unfit and defective machine, and for the loss of time, the loss of thrashing, and other losses resulting from the delay in not furnishing a machine as the contract required.
On the trial the jury gave a general verdict in favor of the defendants, and at the same time returned the following special findings of fact:
“(1) Ques. Did the defendants try the band-cutter and self-feeder for three days ? Ans. No.
“(2) Q. When plaintiff’s agent, Lee Hardy, and the expert, Ball, went to the defendants’ machine, did the defendants or either of them give the plaintiff and said expert a reasonable time in which to make said band-cutter and self-feeder work? A. No.
“(3) Q: Did the defendants or either of them render the plaintiff’s agent and the expert friendly assistance in trying said machine and getting it to work ? A. No.
“(4) Q. Did the defendants or either of them request and permit the plaintiff or the Parsons Band-cutter and Self-feeder Company to substitute another machine for the one claimed to be defective? A. No.
“(5) Q. When the plaintiff’s agent and the expert, Ball, went to defendants’ thrashing-machine did the defendants or either of them refuse to allow the band-cutter to be attached to said machine and tried unless the plaintiff or the Parsons company would pay all expenses of trying the same? .A. Yes.
“(6) Q. Did the defendants then and there refuse to give said machine a trial or have it attached and refuse to take it? A. No.”
There is a -preliminary objection to the sufficiency of the record on which the case is presented. The case is brought up on a transcript of the record instead of a case-made, and the testimony is preserved in accordance with the provisions of section 1 of chapter 320 of the Laws of Í905. The certificate of the official stenographer does not immediately follow the recital of the evidence, but it does specifically refer to the preceding testimony, and is sufficient, we think, for the purpose of identity as well as authentication of the transcribed testimony.
It is said that the transcript of the record was not filed within ten days of the rendition of the judgment, as the act provides. The limitation referred to applies to a case-made and not to a transcript.
There is nothing substantial in the objection that the instructions and proceedings outside of the testimony are not shown to have been filed in the office of the clerk. They appear to have been in the custody of the clerk and a part of the files of his office. He transcribed them and certifies that they constitute part of the record, and that with the other matters included they make up “a full, true and correct transcript of the record in th§. case, ... as the same remains of file in my office.” From the appearance of the record it is likely that the stenographer transcribed and brought to the clerk, not only the testimony, but copies of the pleadings and all other proceedings in the case, and upon this document the clerk placed the ordinary filing mark. It can be safely said that the proceedings transcribed are a part of the files of the clerk’s office.
On the merits it is clear from the special findings that the verdict and judgment cannot be upheld. The testimony is to the effect that the machine when tried did not work well. Under the contract, the execution of which was. admitted and which was binding alike on both parties, it was then the duty of the defendants to give the manufacturing company and also the person who sold the machine notice of the defect, but the trial court rightly held that the giving of this notice was waived by the plaintiff. It was then incumbent on the defendants to give the expert of the manufacturing company an opportunity to remédy the difficulty — to replace any parts — and to give him all necessary and friendly assistance. If he was unable to make it work or fulfil the warranty the defendants were to return the machine and then request and permit the substitution of'another machine that would fill the warranty. As will be observed, the jury have found that the defendants failed to perform their part of the contract, and the findings are clearly inconsistent with the general verdict. For instance, it has been found that the defendants did not give the machine the three days’ trial, but as the test made appears to have developed defects, and as the expert was sent’to remedy them, this default is no longer material. But it was expressly found that the defendants did not give the expert procured by plaintiff a reasonable time in which to make the machine work, and did not render him the friendly assistance to make it work which the contract required. It was also found that they did not request or permit the substitution of another machine for the one claimed to be defective.
.It is not easy to understand how the verdict was given under the instructions of the trial court. The jury were advised that these conditions of the contract were binding upon the defendants, and that even if the machine'did not work well the failure of the defendants to do the things required of. them would entitle the plaintiff to recover. There was also an instruction that if the expert came within a reasonable time to remedy the machine, and offered to put it in order and to make it work, it was the duty of the defendants to help him, without requiring in advance an agreement to reimburse them for any delay which might result from his efforts to put it in order. There was also an instruction that if the machine did not do the work for which it was purchased, and the defendants did their part, the jury might give the defendants such damages as they sustained by reason' of plaintiff’s failure.. These declarations of the court are accepted as the law of the case; and we think the court should have gone further and given the requested instruction to the effect that it was the duty of the defendants to try the machine “and to render plaintiff’s agents friendly assistance in trying said machine, and if it then failed to work to request and permit the plaintiff to substitute a new machine and try that, and they cannot refuse to pay the contract price of said machine or recover damages for its failure to work unless they have so substantially complied with the contract on their part.”
It is argued that under the pleadings there was no contract between defendants and plaintiff; that the only contract relation was between the defendants and the manufacturing company, and that for that reason the verdict was properly given for defendants. There is some language in the amended petition which furnishes a reason for the contention that Hardy was no more than an agent for the company. However, when all the averments of the pleading, including the terms of the contract, are considered, it is made to appear that Hardy sold the machine to the defendants and that their contract was with him. - The offer to purchase was made expressly to Hardy, and not to the company. It stipulated not only that he should furnish the machine but that the notes given for it should be made payable to his order. When he accepted the offer of defendants it became a binding contract between them. Nowhere in the contract is he described as an agent, nor is there any recital that he made the sale as agent. It is true that Hardy obtained the machine with which he undertook to fill the order from the manufacturing company, but it was shown on the trial that he was primarily liable for the machine and that he had paid the company for it. The allegations of the amended petition as to agency, which it is said were made under the stress óf a ruling of the. court, explain the relation between Hardy and the manufacturing company and his right to sell the machine in that district, and why the purchasers were required to pay the freight on it from the place of manufacture to the place of delivery.
The case might have been tried on the original petition,. however, and in fact it was tried and the jury were instructed substantially as if no amended petition had been filed. We are of the opinion that the contract must be regarded as one between the plaintiff and the defendants, and that the findings of the jury in respect to the ,obligations of the contract are inconsistent with the general verdict. The special findings are not so complete and harmonious as to justify the rendition of judgment thereon.
It follows that the judgment must be reversed and the causé remanded for a new trial. , | [
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The opinion of the court was delivered by
Johnston, C. J.:
W. P. Morris brought this action to recover from L. G. Francis $125 as a commission for finding a purchaser for the Francis farm. The selling price of the farm was fixed by agreement at $4200, but it was stipulated that in any event Francis should receive $4000 net for the farm. Shortly after the employment of Morris he brought the farm to the attention of W. H. Carpenter, who visited Francis and en-' tered into negotiations with him for the purchase of the land. Carpenter made an offer of $8800 for the farm, and plaintiff claims that Francis accepted the offer and agreed to sell the land but afterward refused to complete the transaction and convey the title to the purchaser.
The principal controversy in the case was one of fact —whether Francis accepted the offer of Carpenter and agreed to sell the land to him. To entitle Morris to his commission he must have procured a purchaser ready, willing and able to buy the land at the stipulated price or at a price which the owner was willing to, and did, accept. If Morris brought a prospective purchaser into communication with Francis, and the negotiations between them resulted in a sale of the land at a price less than originally fixed upon, Morris could not be deprived of his commission. (Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Dreisback v. Rollins, 39 Kan. 268, 18 Pac. 187; Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98; Betz v. Land Co., 46 Kan. 45, 26 Pac. 456; Davis v. Lawrence, 52 Kan. 383, 34 Pac. 1051; Sandefur v. Hines, 69 Kan. 168, 76 Pac. 444; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104; Stanton v. Barnes, 72 Kan. 541, 84 Pac. 116.) If, however, the lower price offered by the prospective purchaser was not accepted, and a sale was not consummated, no commission was earned. In such a case the broker has not-performed his agreement to find a purchaser until he produces one who in fact becomes a purchaser. If Francis did not agree to accept the offer of $3800 for the land, and did not actually make a sale to Carpenter, he never became liable to the broker for the commission.
■It is conceded that the offer of Carpenter was less than the price fixed in the contract of employment, and Francis offered testimony to the effect that he never accepted the offer that was made and never effected a sale of the land: This testimony, which the court evidently accepted as true, is a sufficient basis for a gen-éral finding in favor of the defendant.
The remarks of the trial court in connection with the rendition of its judgment,^ even if inconsistent therewith, cannot be treated as special findings; but the language used indicates clearly enough that the court based its decision on findings of fact that the proposed purchaser was unwilling to pay the stipulated price and that there was no agreement to sell to him at a lower price.
The judgment is affirmed. | [
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The opinion of the court, was delivered by
Burch, J.:
The state, on the relation of the attorney-general, brings this action to oust the .deféndant from the. exercise of the corporate franchise of receiving, transmitting and delivering intrastate telegraphic messages for pay. The defendant is a foreign corporation, and the action is predicated upon its refusal to pay the charter fee prescribed by section 6 of chapter 10 of the Laws of 1898, as amended by section 1 of chapter 125 of the Laws of 1901 (Gen. Stat. 1901, § 1264), which payment is made a condition precedent to the granting of authority to do business within this state. The defense is that the law referred to, commonly known as the Bush act, was not intended to apply to the defendant or the portion of its business affected by this suit; but, if such were the intention of the legislature, the statute invades rights secured to the defendant by the constitution of the United States and by paramount laws enacted in pursuance thereof.
The cause is submitted upon a demurrer to the defendant’s answer. From the admissions and affirmative allegations contained in the answer it appears that the defendant is a corporation with a capital stock of $100,000,000, organized and existing under and by virtue of the laws of the state of New York for the purpose of transacting a general telegraph business. It receives and transmits messages and communications by means of the electric telegraph over and upon wires connecting various points within the state of Kansas, and connecting points in the state of Kansas with points in other states of the United States, in the territories of the United States and in foreign countries. It has agents and stations in more than eight hundred cities in Kansas and transacts a large business within the state on behalf of its citizens. It came into the region now embraced within the state’s boundaries while Kansas was yet a territory of the United States, and has prosecuted its business here ever since. It has been the beneficiary of numerous general laws enacted to promote the interests of telegraph companies, and claims an. invitation from the territory of Kansas to enter its domain, occupy its highways with poles and wires, extend lines and locate stations wherever the public interest may demand and serve the people by supplying their need for means of telegraphic communication. In response to this invitation it has-expended large sums of money in the construction of lines, in establishing offices and otherwise in equipping itself for the discharge of its duties as a public-service corporation.
The answer further discloses that in the year 1905. the defendant made application to the state charter board for permission to engage in business in the state, expressly reserving, however, all its rights under the constitution and laws of the United States. The application was in due form, but contained the following recitals in addition to those required by the statute:
“The Western Union Telegraph Company aforesaid respectfully states and shows that on the 7th day of June, 1867, it duly accepted the terms and conditions of the act of congress of July 24, 1866, entitled ‘An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military and other purposes,’ now embodied in chapter 65, Revised Statutes of the United States, sections 5263 et seq., a certified copy of which said acceptance is hereto attached and made a part hereof, and thereby became and now is an instrument of interstate commerce and an agency of the United States for the transmission of public business, and entitled to the rights, benefits and privileges conferred by said act of congress.
“That its said lines of telegraph were constructed and are now maintained and operated over, the public domain of the United States and over and along the military and post-roads of the United States, declared such by acts of congress, and over, under and across the navigable streams and waters of the United States. And the said company ever since its said acceptance of said act of July 24, 1866, has transmitted and is now transmitting telegraphic communications between the several departments of the government of the United States and their officers and agents, with priority over all other business, and at rates annually fixed by the postmaster-general.”
Other conditions of the law were met, except that relating to the payment of the charter fee, and upon consideration of the application the charter board made the following order:
“The board having under consideration the application of the Western Union Telegraph Company, a foreign corporation organized under the laws of the state of New York, for leave to transact the business of a telegraph company in the state of Kansas; and it appearing that said foreign corporation has, in due form of law, filed with the secretary of state a certified copy of its charter, executed by the proper officers of the state of its domicil, and the written consent, irrevocable, of said corporation that actions may be commenced against it in the proper court of any county in this state in which the cause of action may arise, accompanied by the duly certified copy of the resolution of the board of directors of said corporation authorizing the proper officers to execute the same, it is, upon motion, thereupon ordered that said application be granted and that said applicant be authorized and empowered to transact the business of receiving and transmitting messages by telegraph within the state of Kansas and transacting within the said state its business of a telegraph company; provided, that this order shall not take effect and no certificate of such authority shall issue or be delivered to said company until such applicant shall have paid to the state treasurer of Kansas for the benefit of the permanent school fund the sum of $20,100, being the charter fees provided by law necessary to be paid by a foreign corporation with a capital of $100,000,000.
“It is further understood, ordered and provided that nothing herein contained shall apply to nor be' construed as restricting in anywise the transaction by the said applicant of its interstate business nor its business for the federal government; but that this grant of authority and requirement as to payment relate only to the business transacted wholly within the state of Kansas.” •
The charter fee has not been paid and the defendant refuses to pay it. No certificate of authority to do business in the state has been issued to the defendant by the secretary of state, and the defendant has continued to transact its domestic business as it did before the enactment of the Bush law.
The law in question creates a charter board, to which application must be made for permission to organize a domestic corporation and for permission to do business in the state as a foreign corporation. Section 1332 of Dassler’s Statutes of 1905 reads in part as follows:
“Persons seeking to form a private corporation under any of the laws of this state, or any corporation organized under the laws of any other state, territory, or foreign country, and seeking to do business in this state, shall make application to said board, upon blanks supplied by the secretary of state, for permission to organize a corporation, or to engage in business as a foreign corporation in this state. Such application shall set forth— ... If a corporation organized under the laws of another state, territory, or foreign country, and seeking to do business in this state: (1) A certified copy of its charter or articles of incorporation. (2) The place where its principal office or place of business is to be located. (3) The full nature and character of the business in which it proposes to engage. (4) The names and addresses of the officers, trustees or directors and stockholders of the corporation. (5) A detailed statement of the assets and lia bilities of said corporation, and such other information as the board may require in order to determine the solvency of the corporation.” (Laws 1898, ch. 10, § 2.)
Section 1333 requires the application to be accompanied by a fee of twenty-five dollars, and requires a foreign corporation seeking to do business in the state to file its irrevocable written consent that the courts of the state may take jurisdiction over it by the service of process on the secretary of state. The section concludes as follows:
■ “Every foreign corporation now doing business in this state shall, within thirty days from the taking effect of this act, file with the secretary of state its written consent as above specified.” (Laws 1898, ch. 10, § 3.)
Provision is made for meetings of the charter board, the investigation of applications, the granting of authority to organize domestic corporations, and the granting of authority to foreign corporations to do business in this state. Sections 1336- and 1339 read as follow:
“Each corporation which has received authority from the charter board to organize shall, before filing its charter with the secretary of state, as provided by law, pay to the state treasurer of Kansas, for the benefit of the permanent school fund, a charter fee of one-tenth of one per cent, of its authorized capital upon the first one hundred thousand dollars of its capital stock, or any part thereof; and upon the next four hundred thousand dollars, or any part thereof, one-twentieth of one per cent.; and for each million or major part thereof over and above the sum of five hundred thousand dollars, two hundred dollars. ... In addition to the charter fee herein provided, the secretary of state shall collect a fee of two dollars and fifty cents for filing and recording each charter containing not to ex.ceed ten folios, and an additional fee of twenty-five cents for each folio in excess of ten contained in any charter. The fee for filing and recording a charter shall also entitle the corporation to a certified copy of its charter. All the provisions of this act, including the payment of the fees herein provided, shall apply to foreign corporations seeking to do business in this state, except that, in lieu of their charter, they shall file with the secretary of state a certified copy of their charter, executed by the proper officer of the state, territory or foreign country under whose laws they are incorporated.” (Laws 1898, ch. 10, § 6, as amended by Laws 1901, ch. 125, § 1.)
“Any corporation organized under the laws of another state, territory or foreign country and authorized to do business in this state shall be subject to the same provisions, judicial control, restrictions, and penalties, except as herein provided, as corporations organized under the laws of this state.” (Laws 1898, ch. 10, § 9.)
Sections 1358 and 1523 require annual statements of the financial condition of the corporation and of certain other facts to be made to the secretary of state, section 1358 concluding as follows:
“Failure to file such statement by any corporation doing business in this state and not organized under the laws of this state shall work a forfeiture of its right or authority to do business in this state, and the charter board may at any time declare such forfeiture, and shall forthwith publish such declaration in the official' state paper.” (Laws 1898, ch. 10, § 12, as amended by Laws 1901, ch. 125, § 3.)
The defendant insists that this legislation operated prospectively only, and that it was not intended to apply to foreign corporations which at the time the law became operative were enjoying the privilege of doing business within the state. Much is made of the phrase “seeking to do business in this state.” It is pointed out that all the regulations for foreign corporations seeking to do business in the state occur in conjunction with those applying to persons who should seek, after the law went into effect, to form new domestic corporations, and it is claimed the concluding portion of section 1333 conclusively indicates that foreign corporations already in the state could perfect their right to remain merely by filing the consent to suit and service there provided for.
This question already has been decided adversely to the defendant in the case of The State v. Book. Co., 65 Kan. 847, 69 Pac. 563, where it was said:
“Inasmuch as the defendant had been doing business in this state before the enactment of the law, it contends that it was not ‘seeking to do business’ here. It contends that the words ‘seeking to do business’ apply only to corporations which had not theretofore done business, but desired to do it in the future. This is an erroneous view. The statute does not mean thus to discriminate in the requirements of said section 2, and in other like matters, between foreign corporations which had theretofore been doing business here and those which might thereafter apply to do business.” (Page 848.) t ■
The expression “seeking to do business” means seeking to do further business as well as seeking to begin doing business. It was the purpose of the legislature to place all foreign corporations in the same attitude as persons seeking to begin business under the organized form of new domestic corporations, and section 1333 merely imposed a special time limit within which foreign corporations should enter consent to the institution of actions against them by service on the secretary of state.
The Bush law was enacted at a special session of the legislature held in the closing days of December, 1898, and. in the opening days of January, 1899. Those were golden days for the promoter with his prospectus and “gilt-edged” wares. 'The pulsé of the country was fevered with the excitement of the new industrialism. “Bubbles” were so common and so alluring that it was possible for persons to repeat the exploit of the promoter of old who solicited and obtained funds “for an undertaking which shall in due time be revealed.” Within a brief period following the special session of 1898 occurred the so-called “rich men’s panic,” occasioned by the fact that funds needed for the payment of debts were locked up in watered stocks and overvalued securities, and the whole financial world was compelled to make a revaluation of all its business enterprises. Many duties were evaded, great injustice was perpetrated and much fraud was committed through the shameless and notorious abuse of corporate forms of organization and of corporate privileges. The era was distinguished and will long be remembered on account of its corporation orgies.
It is' a well-known fact of Kansas history that the legislature of 1898 was distrustful of corporations as business instrumentalities. Previous to the time of its assembling five individuals, without capital or credit, only three of whom need be residents of the state, could fill out a blank form, acknowledge the statements made before a notary, file the document with the secretary of state, pay a dollar, and thereby acquire the right to exercise all the privileges and powers of a corporation. The state had been an open field for the exploitation of the people, without let or hindrance, by foreign corporations spawned under laws as liberal or more lax than our own. Such 'corporations were within the legislature’s regulating power, and a, series of laws for that purpose, including the Bush law, was enacted. A special tribunal was created to investigate the legal validity and financial sincerity of all attempts on the part of foreign corporations to exercise charter functions here. That tribunal was charged with the duty of ascertaining if the body pretending to be a foreign corporation was such in fact, according to the law of the state of its claimed origin, if it was organized for a purpose legal in this state, and if it was financially trustworthy. The payment of a graduated fee to go to the state school fund was required, not merely as the price of an opportunity, for the law was intended to eliminate and restrain as much as to invite and encourage, not merely as a means'of revenue, for the state school fund was thp least needy of any of the public trusts, but as an evidence of good faith and honest purpose to place the energy and ascertained resources of the corporation behind the business in which it was engaged. Immediate submission to the courts of the state was required; and provision was made for future annual disclosures of the corporate finances, under the penalty of exclusion from the state. The law was a police regulation pure and simple, designed to protect the people from imposition, deception and fraud, and to accomplish its purpose imposed upon every foreign corporation operating in the state at the time of its enactment the necessity of making a request for permission to continue to do business here, so that it might be formally investigated.
The defendant argües further that there is no discrimination in the statute between corporations which, like the' defendant, are engaged in interstate commerce, and those which are not so engaged; that there is no segregation of the intrastate from the interstate business of corporations engaged in interstate commerce; that the law must apply to all corporations alike, because it is expressed in general terms; and hence that no interpretation which the charter board might put upon the law could make it effective against the defendant.
The established canons of interpretation require that the law must be upheld if possible. If it regulates interstate commerce it is void. But if it regulates domestic commerce only it is not open to the imputation that it invades a province subject only to laws made by the congress of the United States. The question is, therefore, What does the phrase “business in this state” mean? May it, when applied to commerce, be the equivalent of “business within this state” ?
This court has declared too often to make a repetition of the statement necessary here that if an act of the legislature be susceptible of two interpretations, one of which would render it obnoxious to some paramount constitutional provision while the other would place it in harmony with the fundamental law, that interpretation must be preferred which will sustain the act rather than the one which will destroy it. The court must, therefore, in the discharge of its duty, take it for granted that the legislature did not intend to fly in the face of the federal constitution and try to exclude foreign corporations engaged in interstate com-mercé from doing interstate business here unless they first procured permission from the charter board. It must be presumed that the legislature intended to act within the scope of its lawful powers. No words of the statute may be construed to relate to subjects within the exclusive jurisdiction of congress. Nothing contained in the act can be viewed as having any relation whatever to the right of the defendant freely to enter the state and here transact all business of an interstate character which it may desire to undertake. And the court must necessarily hold that the words “business in this state” mean, when applied to commerce, domestic business only — business which originates, is carried on, and is completed, within the jurisdiction of this state.
Some cases are cited by the defendant in which it has been held that state legislatures have mistaken the limits of their authority. The chief one is Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649. By an act entitled “An act'to regulate agencies of foreign express companies” the legislature of the state of Kentucky sought to make it unlawful for the agent of any foreign express company to carry on the business of transportation within the '.state without first procuring; a license. No discrimination was made between domestic and interstate business, and it was not disputed that interstate commerce was affected. The court of appeals of Kentucky upheld the act as a valid exercise of the police power, but the supreme court of the United States decided otherwise, and the statute was declared to be invalid as relating to a subject beyond the jurisdiction of the state legislature.
The case of Crutcher v. Kentucky was decided May 25, 1891. The Bush law took effect January 11, 1899. Almost eight years had elapsed since the decision in Crutcher v. Kentucky, and this court declines to impute to the legislature either ignorance of it or a purpose to defy it. It prefers to hold that the legislature intended rather to take advantage of the suggestion made by Mr. Justice Bradley in deciding the case, which, for emphasis, is italicized in the following extract from, the opinion of the court, which he delivered:
“We do not think that the difficulty is at all obviated by the fact that the express company, as incidental to its main business, (which is to carry goods between different states,) does also some local business by carrying goods from one point to another within the state of Kentucky. This is, probably, quite as much for the accommodation of the people of that state as for the advantage of the company. But whether so or not, it does not obviate the objection that the regulations as to license and capital stock are imposed as conditions on the company’s carrying on the business of interstate commerce, which was manifestly the principal object of its organization. These regulations are clearly a burden and a restriction upon that commerce. Whether intended as such or not, they operate as such. But taxes or license fees in good faith imposed exclusively on express business carried on wholly within the state would be open to no such objection.” (Page 59.)
The correct view was taken by the supreme court of Florida in the case of F. R. Osborne v. The State of Florida, 33 Fla. 162, 14 South. 588, 25 L. R. A. 120, 39 Am. St. Rep. 99. A statute of that state provided that no person should engage in or manage enumerated classes of business without first procuring a license. The statute further provided that “all express companies doing business in this state” should pay sums graduated according to the population of the cities in which the business was carried on. Penalties were denounced against “any express company” and “any person” knowingly acting as agent for “any express company” that violated the act. The syllabus of the case reads:
“A state cannot tax or regulate interstate commerce, or make the payment of a tax or the taking out of a license a condition precedent to carrying on interstate commerce. A state statute which does so, either expressly or in effect, is offensive to the commerce clause of the constitution of the United States, and void at least to that extent. The same is true as to foreign commerce.
“A state statute which imposes a tax, in general terms, on the doing of specified kinds of business, or the pursuit of designated occupations, in the state, and requires that a license shall be taken out before any such business or avocation shall be done or engaged in, should not be construed to apply to any business of the kind that may constitute interstate commerce, but only to business that is domestic or state commerce and to persons engaged or intending to engage in such domestic or*state business.
“Although interstate commerce cannot be taxed or regulated by state legislation, and the commerce clause of the federal constitution exempts all such commerce from regulation or taxation by state authority, yet the doing of business that constitutes interstate commerce by a person who is also at the same time engaged in business, of the same kind, that constitutes state or local commerce, cannot be made a bar or exemption of the local or state commerce business from taxation or regulation by state authority. . . . Held, (a) The act does not tax or regulate or apply to interstate commerce, as distinguished from state or local commerce carried on by an express company, but applies only to express business that is local or state commerce. (b) That so long as an express company confines its operations to express 'business that constitutes interstate or foreign commerce it is exempt from the above legislation, but if it engages in business that is state or local, as distinguished from interstate or foreign commerce, it becomes subject to the statute, notwithstanding it may at the same time engage in interstate or foreign commerce.”
In the opinion it was said:
“That the commerce clause of the constitution exempts from the burden of state taxation those who confine themselves to interstate commerce is a truth of which, at this day, knowledge must be imputed to the lawmaking power of the states, and in the absence of language that clearly connects such an intent with that power, it should not be held that there was a purpose to ignore such truth or violate its principles.” (Page 193.)
The supreme court of the United States upheld the statute and affirmed the judgment of the state court, (Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586.)
The legislature of the state of Mississippi passed an act which provides as follows:
“That all railroads carrying passengers in this state (other than street railroads) shall provide equal hut separate accommodations for the white and colored races, by providing two or more passenger-cars for each passenger-train, or by dividing the passenger-cars by a partition so as to secure separate acommo-dations.”
“All railroad companies that shall refuse or neglect, within sixty days after the approval of this act, to comply with the requirements of'section one of this act shall be deemed guilty of a misdemeanor, and shall upon conviction in a court of competent jurisdiction, be fined,” etc. (Laws of Mississippi, 1888, ch. 27, §§ 1, 3.)
Language could scarcely be more inclusive than this, but the supreme court of the state of Mississippi held the act to apply to the carrying of passengers from one point to another within the state, and consequently that it was valid. The syllabus reads:
“This section [section 1], so far as it applies to the carrying of passengers traveling wholly within the state, is not in violation of § 8, art. 1, of the constitution of the United States, which grant's to congress the right to regulate interstate commence; and this, although the railroad also traverses other states and is engaged regularly in carrying interstate passengers.
“Since it is within the power of the legislature to require railroads to provide separate accommodations for white and colored passengers traveling wholly within this state, § 3 of said act of 1888, which makes it a misdemeanor and punishable for any railroad to refuse or neglect to furnish such separate accommodations, is valid and enforceable by the courts of this state.” (L., N. O. & T. Ry. Co. v. The State, 66 Miss. 662, 6 South. 203, 5 L. R. A. 132, 14 Am. St. Rep. 599.)
The judgment of the state court was affirmed by the supreme court of the United States in Louisville &c. Railway Co. v. Mississippi, 133 U, S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784.
By the revenue .law of North Carolina of March 9, 1903, it is provided in schedule B as follows:
“Sec. 26. Defining taxes under this schedule. Taxes in this schedule shall be imposed as license tax for the privilege of carrying on the business or doing the act named, and nothing- in this act contained shall be construed to relieve any person or corporation from the payment of tax as required in the preceding schedule.”
“Sec. 56. Packing-houses. Upon every meat packinghouse doing business in this state, one hundred dollars for each county in which said business is carried on.” (Laws of North Carolina, 1903, p. 247.)
The Armour Packing Company, a corporation organized under the laws of New Jersey, with its principal office and place of business in Kansas, and engaged in interstate commerce, resisted the payment of this tax on the ground that it was not doing a packing-house business in North Carolina and that the tax interfered with interstate commerce. The court said:
“If the business of the defendant was solely that of shipping food products into this state, consigned directly to purchasers on orders previously obtained, it is clear that this v/ould be interstate commerce and a tax laid by the state upon such business would be illegal. But the defendant does a large business within the state, the selling of products already stored here on orders received after these products are thus stored. The tax is laid upon every meat packing-house ‘doing business in this state.’ The evident meaning of the legislature is to tax the agency ‘doing business’ within this state and not to lay any tax upon the interstate commerce of shipping products into the state to be directly or indirectly delivered to purchasers whose orders were obtained before the goods were shipped. . . . The defendant doing business in this state and the license tax being exacted only by virtue of its intrastate business, the first two grounds of objection are overruled.” (Lacy v. Packing Co., 134 N. C. 567, 570, 571, 47 S. E. 53.)
This decision was affirmed by the supreme court of the United States in Armour Packing Co. v. Lacy, 200 U. S. 226, 26 Sup. Ct. 232, 50 L. Ed. 451.
The case of Kehrer v. Stewart, 117 Ga. 969, 44 S. E. 854, arose upon the following state of facts: Nelson Morris & Co., citizens of Illinois, were engaged in the city of Chicago in the business of packing meats for sale and consumption, and also had a place of business in Atlanta, Ga., where they sold their products at wholesale, having in their employ several clerks and helpers, one of whom was Kehrer, who was employed as chief clerk and manager at a salary of twenty-five dollars per week. The firm did not have anywhere within the state of Georgia any packinghouse for slaughtering, dressing, curing, packing or manufacturing the products of any animals for food or commercial use, but took orders which were transmitted and filled at Chicago. The meats were sent to Atlanta and there' distributed in pursuance of such orders. Certain meats were also shipped from Chicago to Atlanta without a previous sale or contract to sell.- These were stored in the Atlanta house of the firm, in the original packages, and were kept for sale, in the ordinary course of trade, as domestic business. They were offered for sale to such customers as might require them, and until sold were stored and preserved and remained the property of the firm. The tax law of Georgia provided that there should be assessed and collected “upon all agents of packing-houses doing business in this state two hundred dollars in each county where said business is carried on.” Kehrer paid the tax under protest and sued to recover it, claiming the law conflicted with the commerce clause of the constitution of the United States. The supreme court of Georgia discriminated between the interstate and the domestic business carried on by Kehrer, and held the law void as to the former but valid as to the latter. This decision governed the disposition of the case in the supreme court of the United States in Kehrer v. Stewart, 197 U. S. 60, 25 Sup. Ct. 403, 49 L. Ed. 663.
The state of Texas brought an action to oust the Waters-Pierce Oil Company from doing business in that state on account of a violation of its antitrust law, the penalty clause of which reads as follows:
“Every foreign corporation violating any of the provisions of this act is hereby denied the right and prohibited from doing any business within this state, and it shall be the duty of the attorney-general to enforce this provision by injunction or other proper proceedings.” (Laws of Texas, 1895, ch. 83, § 4.)
The defendant was engaged in interstate commerce, but transactions of that character were withdrawn from the consideration of the jury and excepted from the judgment. It was claimed, however, that the statute was void as a regulation of interstate commerce. A judgment of ouster having been approved by the Texas supreme court, a writ of error was granted by the supreme court of the United States, which in finally determining the controversy said:
“The claim is, if we understand it, that the statute prohibits all business of foreign corporations, and hence is unconstitutional as including interstate business, and cannot be limited by judicial construction to local business, and the unconstitutional taint thereby removed. To sustain the contention United States v. Reese, 92 U. S. 214, 221, 23 L. Ed. 563; Trade Mark Cases, 100 U. S. 82, 25 L. Ed. 550; United States v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. 656, 32 L. Ed. 766, and some other cases are cited. They do not sustain the contention. The interpretation of certain statutes of the United States was involved, and the court finding the meaning of the statutes plain, decided that it could not be changed by construction, even to save the statutes from unconstitutionality.. This was but an exercise of judicial interpretation.
“The courts of Texas have like power of interpre tation of the statutes of Texas. What they say the statutes of that state mean we must accept them to mean, whether it is declared by limiting the objects of their general language or by separating their provisions into valid and invalid parts.” (Waters-Pierce Oil Company v. Texas, 177 U. S. 28, 42, 20 Sup. Ct. 518, 44 L. Ed. 657.)
In the case of State v. Rocky Mt. Bell Tel. Co., 27 Mont. 394, 71 Pac. 311, the syllabus reads as follows:
“Political code, section 4071, as amended by Act March 6, 1897, providing that every corporation ‘doing business in this state’ as a telephone company must pay a license, in each county where such business is transacted, of seventy-five cents per year on each instrument in use, is not invalid as regards a telephone company doing business within the state, also engaged in interstate traffic, the statute being intended only to apply to instruments used solely in business within the state.”
In the opinion it was said:
“It will be observed that thé language in section 4071 above is: ‘Every person, corporation or association doing business in this state . . . must pay a license . . .’ The allegations of the complaint fairly bring the case within the terms of this statute. It is to be presumed that in enacting section 4071 above, and in using therein the term ‘doing business in this state,’ the legislature did so in view of the constitutional provision conferring upon congress the sole power to regulate interstate commerce, and it will not be implied that it intended to go beyond its lawful powers, in the absence of express statutory terms directly contravening those provisions. In State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 46 L. R. A. 442, 77 Am. St. Rep. 681, it is said: ‘And it may further be observed that the statute does not in terms apply to interstate business, and it will not be implied that the legislature intended to go beyond its lawful powers in enacting it. If, therefore, it be held that the legislature could not forbid one to engage in the business of a commission merchant, as to interstate shipments, without compliance with the provisions of the state statute, such statute should be construed to apply only to local or domestic business.’ ” (Page 401.)
Chapter 487 of the 1908 statutes of Massachusetts imposes an excise tax on every foreign corporation organized for certain purposes which has a usual place of business within the commonwealth. In an action brought in .equity by the attorney-general to enforce this tax it was contended by the defendant, a corporation engaged in interstate commerce, that the statute was void as an interference with interstate commerce. The court said:
“If the statute before us applied to the maintenance of a place of business solely for the purpose of engaging in interstate commerce it would be unconstitutional. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158. Norfolk & Western Railroad v. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. 958, 34 L. Ed. 394. Its language is broad enough to include every corporation which has a usual place of business in the commonwealth, even though it is a common carrier engaged in interstate commerce, and has its place of business here as a necessary means of carrying on this commerce. But it is a rule of law that a statute which would be unconstitutional as applied to a certain class of cases, and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the legislature. As was said by Mr. Justice Devens in Commonwealth v. Gagne, 153 Mass. 205, 206, 207, 26 N. E. 449, 10 L. R. A. 442: ‘Indeed, where two governments, like those of the United States and the commonwealth, exercise their authority within the same territory and over the same citizens, the legislation of that which as to certain subjects is subordinate should be construed with reference to the powers and authority of the superior government, and not be deemed as invading them unless such construction is absolutely demanded.’ ... In accordance with the doctrine referred to in the cases above cited, we are of opinion that the legislature cannot have intended to include in this statute corporations whose usual place of business is estáblished and maintained solely for use in interstate commerce. With this construction of the law, it is plainly constitutional.” (Att’y Gen’l v. Electric Storage Battery Co., 188 Mass. 239, 240, 241, 74 N. E. 467.)
In the case of McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. 134, 43 L. Ed. 382, Mr. Justice Brewer said:
“It is elementary law that every statute is to be read in the light of the constitution. However broad and general its language, it cannot be interpreted as extending beyond those matters which it was within the constitutional power of the legislature to reach. It is the same rule which obtains in the interpretation of any private contract between individuals. That, whatever may be its words, is always to be construed in the light of the statute; of the law then in force; of the circumstances and conditions of the parties. So, although general language was introduced into the statute of 1871, it is not to be read as reaching to matters in respect to which the legislature had no constitutional power, but only as to those matters within its control. And if there were, as it seems there were, certain special taxes and dues which under the existing provisions of the state constitution could not be affected by legislative action, the statute is to be read as though it in terms excluded them from its operation.” (Page 112.)
Many other authorities, state and federal, might be adduced to illustrate both the power and the duty of the court in the interpretation of the statute under consideration. The indubitable legal conclusion is that the legislature did not intend to regulate or burden interstate commerce, but had in mind local business only; and, observing the rules of interpretation which lea'd to this result, it cannot be questioned that the general words of the statute were not intended to apply to the business of the federal government with the defendant, whether such business be confined within the limits of the state or otherwise.
On the other hand, the generally inclusive terms of the Bush act are to be interpreted with reference to the state’s plenary power over its own purely internal commerce and over foreign corporations seeking to engage in such commerce. While the subject of the Bush law is the corporate conduct of domestic business, in- eluding domestic commerce, no distinction is made between corporations seeking to do that kind of business. All alike are included within the terms of the law, and a. foreign corporation which is engaged in interstate commerce must procure a certificate of authority to engage in business purely local, the same as any other.
It will be observed that the charter board in its order carefully respected the rights of the defendant as an instrument of interstate commerce and as an agency of the government of the United States. It required payment of the charter fee solely on account of nongovernmental telegraphic business to be transacted wholly within the state of Kansas. In doing this the board acted upon correct principles, and the defendant has no reason to complain because the scope of the order was accurately defined. The charter board did not, as the defendant frequently asserts, limit the application of the law. The legislature limited the law, and the charter board, respecting the bounds set for its authority, merely limited its order according to law.
The defendant answers further that if the scope, meaning and purpose of the Bush act be as the court has declared it transcends the limits of the power of the state legislature, in that it violates the commerce clause of the constitution of the United States. The right of the state altogether to exclude foreign corporations from the exercise of corporate franchises within its borders, or to admit them upon such conditions as it may see fit to impose, has been vindicated so often that a brief reference to a limited number of the decided cases will suffice. In the case of Paul v. Virginia, 75 U. S. 168, 19 L. Ed. 352, Mr. Justice Field, speaking for the court, said:
“The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created. As said by this court in Bank of Augusta v. Earle, 38 U. S. 519, 10 L. Ed. 274: ‘It must dwell in the place of its creation, and cannot migrate to another sovereignty.' The recogni tion of its existence even by other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states — a comity which is never extended where the existence of the corporation or the exercise of its powers are prejudicial to their interests or repugnant to their policy. Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as a matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with their citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.” (Page 181.)
In the case of Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. Ed. 650, the state of Pennsylvania had exacted a license fee as the condition upon which a corporation organized under the laws of Colorado might have an office within its limits. The court quoted from Paul v. Virginia, 75 U. S. 168, 19 L. Ed. 357, and said:
“Therefore, the recognition of its existence in Pennsylvania, even to the limited extent of allowing it to have an office within its limits for the use of its officers, stockholders, agents and employees, was a matter dependent on the will of the state. It could make the grant of the privilege conditional upon the payment of a license tax, and fix the sum according to the amount of the authorized capital of the corporation. The absolute power of exclusion includes the right to allow a conditional and restricted exercise of its corporate powers within the state.” (Page 186.)
In the case of Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. 403, 36 L. Ed. 164, the opinion reads:
“The granting of the rights and privileges which constitute the franchises of a corporation being a matter resting entirely within the control of the legislature, to be exercised in its good pleasure, it may be accompanied with any such conditions as the legislature may deem most suitable to the public interests and policy. It may impose as a condition of the grant, as well as, also, of its continued exercise, the payment of a specific sum to the state each year, or. a portion of the profits or gross receipts of the corporation, and may prescribe such mode in which the sum shall be ascertained as may be deemed convenient and just. There is no constitutional inhibition against the legislature adopting any mode to arrive at the sum which it will exact as a condition of the creation of the corporation or of its continued existence. There can be, therefore, no possible objection to the validity of the tax prescribed by the statute of New York, so far as it relates to its own corporations. Nor can there be any greater objection to a similar tax upon a foreign corporation doing business by its permission within the state. As to a foreign corporation — and all corporations in states other than the state of its creation are deemed to be foreign corporations — it can claim a right to do business in another ■ state, to any extent, only subject to the conditions imposed by its laws. . . . Having the absolute power of excluding the foreign corporation the state may, of course, impose such conditions upon permitting the corporation to do business within, its limits as it may judge expedient; and it may make the grant or privilege dependent upon the payment of a specific license tax, or a sum proportioned to the amount of its capital. No individual member of the corporation, or the corporation itself, can call in question the validity of any exaction which the state may require for the grant of its privileges.” (Pages 313, 315.)
In the case of Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297, it was said:
“The state of California has the power to exclude' foreign insurance companies altogether from her.territory, whether they were formed for the purpose of doing a fire or .a marine business. She has the power, if she allows any such companies to enter her confines, to determine the conditions on which the entry shall be made. And, as a necessary consequence of her possession of these powers, she has the right to enforce any conditions imposed by her laws as preliminary to the transaction of business within, her confines by a foreign corporation, whether the business is to be carried on through officers or through ordinary agents of the company, and she has also the further right to prohibit a citizen from contracting within her jurisdiction with any foreign company which has not acquired the privilege of engaging in business therein, either in his own behalf or through an agent empowered to that end. The power to exclude embraces the power to regulate, to enact and enforce all legislation in regard to things done within the territory of the state which may be directly or incidentally requisite in order to render the enforcement of the conceded power efficacious to the fullest extent.” (Page 655.)
In the case of Security Mutual Life Insurance Co. v. Prewitt, 202 U. S. 246, 26 Sup. Ct. 619, 50 L. Ed. 1013, the court had under consideration a law which, without requiring a foreign corporation to enter into any agreement not to remove to the federal courts cases commenced against it in the state courts, provided that if a company should remove such a case its license to do business in the state should be revoked. The opinion reads:
“Having the power to prevent a foreign insurance company from doing business at all within the state, we think the state can enact a statute such as is above set forth. ... As a state has power to refuse permission to a foreign insurance company to do business at all within its confines, and as it has power to withdraw that permission when once given, without stating any reason for its action, the fact that it may give what some may think a poor reason or none for a valid act is immaterial.” (Pages 249, 257.)
In all these cases two exceptions to the rule stated were acknowledged. Thus in Horn Silver Mining Co. v. New York, 143 U. S. 305, 12 Sup. Ct. 403, 36 L. Ed. 164, the court said:
“Only two exceptions or qualifications have been attached to it in all the numerous adjudications in which the subject has been considered, since the judgment of this court was announced more than half a century ago in Bank of Augusta v. Earle, 13 Pet. 519, 10 L. Ed. 274. One of these qualifications is that the state cannot exclude from its limits a corporation engaged in interstate or foreign commerce, established by the decision in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 12, 24 L. Ed. 708. The other limitation on the power of the state is where the corporation is in the employ of the general government, an obvious exception, first stated, we think, by the late Mr. Justice Bradley in Stockton v. Baltimore & New York Railroad, 32 Fed. 9, 14. As that learned justice said: ‘If congress should employ a corporation of ship-builders to construct a man-of-war, they would have the right to purchase the necessary timber and iron in any state of the Union.’ And this court, in citing this passage, added, ‘without the permission and against the prohibition of the state.’ ” (Page 314.)
Whenever, therefore, interstate commerce has been directly burdened, restricted or impeded, or government business has been directly affected by legislative attempts to license, regulate or tax foreign corporations, the offending statutes have been declared to be invalid.
In the case of Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, a specific tax upon each message transmitted by telegraph beyond the limits of the state, or which officers of the United States sent in the conduct of public business, was held to be unconstitutional. But the court observed:
“It follows that the judgment, so far as it includes the tax on messages sent out of the state, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of a state, and does not affect other nations or states or the Indian tribes, that is to say, the purely internal commerce of a state, belongs exclusively to the state, is as well settled as that the regulation of commerce which does affect other nations or states or the Indian tribes belongs to congress. Any tax, therefore, which the state may put on messages sent by private parties, and not by the agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the constitution of the United States.” (Page 466.)
The Western Union Telegraph Company established an office in the city of Mobile, Ala., It was required to pay a license tax under a city ordinance which imposed an annual license tax of $225 on all telegraph companies, and the agent of the company was fined for the non-payment of the tax. In an action to recover the fine he pleaded the charter of the company, the nature of its occupation, its acceptance of the act of congress of July 24, 1866, and the fact that his business consisted in transmitting messages to all parts of the United States as well as in Alabama. These facts were held to constitute a good defense to the action, since a general license tax affecting the entire business of a telegraph company, interstate as well as domestic, or internal, is unconstitutional. But the right of the state over its own internal commerce and over matters within its police powers was carefully guarded. The opinion reads:
“The question is squarely presented to us, therefore, whether a state, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company a large part of whose business is the transmission of messages from one state to another and between the United States and foreign countries, and which is invested with the powers and privileges conferred by the act of congress passed July 24, 1866, and other acts incorporated in Title LXV of the Revised Statutes? Can a state prohibit such a company from doing such a business within its jurisdiction, unless it will pay a tax and procure a license for the privilege? If it can, it can exclude such companies, and prohibit the transaction of such business altogether. We are not prepared to say that this can be done. . . . But it is urged that a portion of the telegraph company’s business is internal to the state of Alabama, and therefore taxable by the state. But that fact does not remove the difficulty. The tax affects the whole business without discrimination. There are sufficient modes in which the internal business, if not already taxed in some other way, may be subjected to taxation, without the imposition of a tax which covers the entire operations of the company. . . . Wé may here repeat, what we have so often said before, that this exemption of interstate and foreign commerce from state regulation does not prevent the state from taxing the property of those engaged in such commerce located within the state as the property of other citizens is taxed, nor from regulating matters of local concern which may incidentally affect commerce, such as wharfage, pilotage, and the like. We have recently had before us the question of taxing the property of a telegraph company, in the case of Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530.” (Leloup v. Port of Mobile, 127 U. S. 640, 645, 647, 648, 8 Sup. Ct. 1380, 32 L. Ed. 311.)
The case of Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649, has been referred to (ante, p: 621). The law of Kentucky there brought in question required from the agent of every express company not incorporated by the laws of Kentucky a license from the state auditor before he could carry on any business for his company in the state. Interstate as well as local business was directly affected. The prohibition was against doing any business without a license; therefore the law was declared to be repugnant to the constitution of the United States, but with the reservation in favor of the power of’ the state to license intrastate business which has been noted.
In many other cases it has been decided that a state cannot exact pay from a foreign corporation for the privilege of conducting interstate commerce within its limits, or deny to a foreign corporation the right to engage in interstate commerce within its territory, and such is the settled law. The subject is discussed in the following, among other, decisions: Pensacola Tel. Co. v. West., etc. Tel. Co., 96 U. S. 1, 24 L. Ed. 708; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. 739, 38 L. Ed. 1137; Pickard v. Pullman Southern Car Co., 117 U. S. 34, 6 Sup. Ct. 635, 29 L. Ed. 785; Robbins v. Shelby Taxing District, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694; W. U. Tel. Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1, 32 L. Ed. 368; Stoutenburgh v. Hennick, 129 U. S. 141, 9 Sup. Ct. 256, 32 L. Ed. 637; Fritts v. Palmer, 132 U. S. 282, 10 Sup. Ct. 93, 33 L. Ed. 317; McCall v. California, 136 U. S. 104, 10 Sup. Ct. 881, 34 L. Ed. 392; Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719; Atlantic &c. Tel. Co. v. Philadelphia, 190 U. S. 160, 23 Sup. Ct. 817, 47 L. Ed. 995.
So much being clear, it remains to inquire how far' a state may go in regulating or imposing burdens upon the purely domestic business of corporations engaged in interstate commerce.
The Case of the State Freight Tax, 82 U. S. 232, 21 L. Ed. 146, involved a statute of the state of Pennsylvania which provided for a tax at certain rates upon every ton of freight transported by any railroad or canal in that state. The Reading Railroad Company made returns to the accounting officers of the state in which it exhibited separately the amount of freight received for transportation which was wholly within the state and the amount of freight brought into or carried out of the state. Payment of the entire tax was resisted upon the ground that it was levied under a statute which regulated interstate commerce. The court stated that it recognized fully the power of each state to tax at its discretion its own internal commerce, and the tax upon the freight carried from point to point within the state was not disturbed, although the law, so far as it applied to articles carried through the state or articles taken up in the state and carried out of it or articles taken up without the state and brought into it, was held to be unconstitutional and void.
In the case of Ratterman v. Western Union Tel. Co., 127 U, S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229, a single tax was assessed in gross under the laws of the state of Ohio upon the receipts of the defendant which were 'derived partly from interstate commerce and partly from commerce within the state. The receipts were capable of separation, and the tax was held to be invalid merely in respect to the proportion which was derived from interstate commerce.
In the case of W. U. Telegraph Co. v. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409, the state of Alabama imposed a tax “on the gross amount of the receipts by any and every telegraph company derived from the business done by it in this state.” A company reported to the board of assessors only its gross receipts from business transacted wholly within the state. The board required a further return of gross receipts from messages carried partly within and partly without the state. The company made such further return, and a tax was imposed upon the gross receipts shown by the .two returns. It was held that the tax imposed upon the messages comprised in the second return was unconstitutional, but, inasmuch as the record presented the means by which the receipts arising from internal commerce might be separated from those derived from interstate commerce, the cause was remanded under an order permitting the collection of the legitimate portion of the tax.
These decisions fully established the right of the state to sever for taxing purposes the domestic from the interstate business of a foreign corporation engaged in interstate commerce within its territory, even although the two kinds were carried on indiscriminately at the same time and by the same instrumentalities."
The authority to treat the domestic part of a foreign corporation’s business as segregated from its interstate transactions was next exercised for purposes of regulation which would have been utterly inadmissible if applied to interstate commerce. The case of Louisville &c. Railway Co. v. Mississippi, 133 U. S. 587, 10 Sup. Ct. 348, 33 L. Ed. 784, has been referred to (ante, p. 625). The railway company owned and operated a continuous line of road from Memphis to New Orleans." Under the law of the state of Mississippi, through which it passed, it was obliged to provide separate accommodations for colored passengers taken up and set down within the limits of the state. The court conceded that the regulation might be burdensome and entail extra expense, but said:
“In this case the supreme court of Mississippi held that the statute applied solely to commerce within the state; and that construction being the construction of the statute of the state by its highest court, must be accepted as conclusive here. If it be a matter respecting wholly commerce within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the federal constitution. Counsel for plaintiff in error strenuously insists that it does affect and regulate interstate commerce, but this contention cannot be sustained.” (Page 591.)
States next required foreign corporations engaged in interstate commerce to take out licenses and pay charges for the privilege of doing intrastate business, and the laws fixing such conditions and laying such burdens upon the exercise of corporate power within the states were approved by the supreme court of the United States. In the case of Postal Telegraph Cable Co. v. Charleston, 153 U. S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871, a city ordinance enacted under power conferred by a state statute imposed a license fee of $500 upon a telegraph company which had accepted the provisions of the act of congress of July 24, 1866, and which was engaged in interstate commerce. The license fee was required for business done exclusively within the city and not transacted for the government. It was argued that, while a state can prohibit a foreign corporation from doing business within its territory or can impose conditions upon the exercise of its franchises there, such power does not exist when the corporation is engaged in interstate commerce or is an agent of the United States government. The court held otherwise and sustained the license fee.
The case of Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586, soon followed. The facts sufficiently appear at-page 622, ante. In the course of the opinion Mr. Justice Peckham said:
“The supreme court of Florida has construed the ninth section of this act and has held in express terms that it does not apply to or affect in any manner the business of this company which is interstate in its character; that it applies to and affects only its business which is done within the state, or is, as it is termed, ‘local’ in its character, and it has held that under that statute so long as the express company confines its operations to express business that consists of interstate or foreign commerce it is wholly exempt from the legislation in question. It has added, however, that under the provisions of the statute, if the company engage in business within the state of a local nature as distinguished from an interstate or foreign kind of commerce, it becomes subject to the statute so far only as concerns its local business, notwithstanding it may at the same time engage in interstate or foreign commerce. In other words, this statute as construed by the supreme court of Florida does not exempt the express company from taxation upon its business which is solely within the state, even though at the same time the same company may do a business which is interstate in its character, and that as to the latter kind of business the statute does not apply to or affect it. As thus construed we have no doubt as to the correctness of the decision that the act does not in any manner violate the federal constitution. . . . It has never been held, however, that when the business of the company which is wholly within the state, is but a mere incident to its interstate business, such fact would furnish any obstacle to the valid taxation by the state of the business of the company which is entirely local. So long as the regulation as to the license or taxation does not refer to and is not imposed upon the business of the company which is interstate, there is no interference with that commerce by the state statute. . . . The statute herein differs from the eases where statutes upon this subject have been held void, because in those cases the statutes prohibited the doing of any business in the state whatever unless upon the payment of the fee or tax. It was said as to those cases that as the law made the payment of the fee or the obtaining of the license a condition to the right to do any business whatever, whether interstate or purely local, it was on that account a regulation of interstate commerce, and therefore void. Here, however, under the construction as given by the state court the company suffers no harm from the provisions of the statute. It can conduct its interstate business without paying the slightest heed to the act, because it does not apply to or in any degree affect the company in regard to that portion of its business which it has the right to conduct without regulation from the state.
“The company in this case need take out no license and pay no tax for doing interstate business, and the statute is therefore valid.” (Pages 654, 655.)
The laws of Mississippi imposed a privilege tax “on each sleeping- and palace-car company carrying passengers from one point to another within the state.” The state constitution declared sleeping-car companies to be common carriers. The Pullman Company is an Illinois corporation. Its cars were carried by various railroad companies, and all of them were carried into the state of Mississippi from other states or out of Mississippi to other states. While in transit, however, such cars carried passengers from point to point within the state. In an action to enforce the tax the company pleaded that the receipts from intrastate business did not pay the expenses chargeable against such receipts; that the business within the state was therefore a burden upon the company’s 'interstate traffic, but that the constitutional provision noted compelled it to assume that burden. The plea was held bad on demurrer by the state courts. The supreme court of the United States interpreted the language used by the state supreme court in deciding the case to mean that the state constitution did not oblige the defendant to do local business, and proceeding upon that assumption affirmed the judgment and said:
“If the Pullman Company, whether called a common carrier or not, had the right to choose between what points it would carry, and therefore to give up the carriage of passengers from one point to another within the state, the case is governed by Osborne v. Florida, 164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586. The company cannot complain of being taxed for the privilege of doing a local business which it is free to renounce. Both parties agree that the tax is a privilege tax.” (Pullman Co. v. Adams, 189 U. S. 420, 422, 23 Sup. Ct. 494, 47 L. Ed. 877.)
The case of Allen v. Pullman Company, 191 U. S. 171, 24 Sup. Ct. 39, 48 L. Ed. 134, is similar in all respects to that of Pullman Co. v. Adams, just referred to, the state of Tennessee having passed a statute like that of the state of Mississippi. The decision was rested upon Osborne v. Florida, 164 U. S. 650, and Pullman Co. v. Adams, the court saying:
“Its terms apply strictly to business done in the transportation of passengers taken up at one point in the state -and transported wholly within the state to another point therein. It is not necessary to review the numerous cases in this court in which attempts by the states to control or regulate interstate commerce have been the subject of consideration. ■ While they show a zealous care to preserve the exclusive right of congress to regulate interstate traffic, the corresponding right of the state to tax and control the internal business of the state, although thereby foreign or interstate commerce may be indirectly affected, has been recognized with equal clearness.” (Page 180.)
The case of Kehrer v. Stewart, 197 U. S. 60, 25 Sup. Ct. 403, 49 L. Ed. 663, reinforces the doctrine under consideration. The facts and the conclusion of the court are stated at page 626, ante. In the opinion it was said:
“In carrying on the domestic business, petitioner was indistinguishable from the ordinary butcher, who slaughters cattle and sells their carcasses, and in principle it made no difference that the cattle were slaughtered in Chicago and their carcasses sent to Atlanta for sale and consumption in the ordinary course of trade. Upon arrival there they became a part of the taxable property of the state. It made no difference whence they came and to whom they were ulti mately sold, or whether the domestic and interstate business were carried on in the same or different buildings. . . . The record does not show what proportion of such business is interstate and what proportion is domestic, although it is conceded that most of the business is interstate in its character. If the amount of domestic business were purely nominal, as, for instance, if the consignee of a shipment made in Chicago upon an order filled there refused the goods shipped, and the only way of disposing of them was by sales at Atlanta, this might be held to be strictly incidental to an interstate business, and in reality a part of it, as we held in Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649; but if the agent carried on a definite, though a minor, part of his business in the state by the sales of meat there, he would not escape the payment of the tax, since the greater or less magnitude of the business cuts no figure in the imposition of the tax. There could be no doubt whatever that, if the agent carried on his interstate and domestic business in two distinct establishments, one would be subject and the other would not be subject to the tax, and in our view it makes no difference that the two branches of business are carried on in the same establishment.” (Pages 65, 68.)
The case of Armour Packing Co. v. Lacy, 200 U. S. 226, 26 Sup. Ct. 232, 50 L. Ed. 451, the facts of which have been stated (ante, p. 625), follows Osborne v. Florida, 164 U. S. 650, and Kehrer v. Stewart, 197 U. S. 60.
Finally, it has been decided that a foreign corporation engaged in interstate commerce may be ousted from the franchise of doing local business- if it violates the conditions attached to the permission granted it to do business within the state. In the application of remedies corporate business is not to be treated as an entity, but state and interstate classes are distinguishable and separable.
In the case of Waters-Pierce Oil Company v. Texas, 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657, referred to at page 627, ante, the state made it a condition upon the exercise by a foreign corporation of its corporate franchises within the limits of the state that it should not make certain kinds of contracts believed by the state to be inimical to the prosperity of its people. The penalty for a breach of the condition was exclusion from intrastate business. The company claimed that its unrestricted right to do interstate business drew to it the right to be unregulated concerning its local business, just as the defendant in this case claims the unconditional right to do local business in Kansas. In denying the legal validity of this claim the court went back to the decisions in Bank of Augusta v. Earle, 38 U. S. 519, 10 L. Ed. 274; Paul v. Virginia, 75 U. S. 168, 19 L. Ed. 357, Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. Ct. 737, 31 L. Ed. 650, and Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297, and reasserted the doctrine they had established: that since the states may exclude foreign corporations entirely they may attach whatever terms and conditions they choose to admission. In affirming a judgment of ouster as to intrastate business, which, however, left the defendant free to carry on interstate commerce, the court said:
“The plaintiff in error is a foreign corporation, and what right of contracting has it in the state of Texas ? This is the only inquiry, and it cannot find an answer in the rights of natural persons. It can only find an answer in the rights of corporations and the power of the state over them. What those rights are and what that power is has often been declared by this court.
“A corporation is the creature of the law, and none of its powers are original. They are precisely what the incorporating act has made them, and can only be exerted in the manner which that act authorizes. In other words, the state prescribes the purposes of a cor.poration and the means of executing those purposes. Purposes and means are within the state’s control. This is true as to domestic corporations. It has even a broader application to foreign corporations.” (Page 43.)
The supreme court of the United States is the final arbiter in controversies of this character. To it is committed the very grave and very delicate task of drawing the boundary-line between the legal provinces of different sovereignties over the same people in the same territory. Its utterances in cases analogous to the one under consideration have been copiously quoted, in order that its opinions and the reasons upon which they are based may clearly appear. From those utterances the conclusion must follow that the Bush act is not vulnerable to the attack which has been made upon it, and that a judgment of ouster from doing intrastate business may be'legally imposed upon a foreign corporation which undertakes to defy its terms.
In the cases of Pullman Co. v. Adams, 189 U. S. 420, 23 Sup. Ct. 494, 47 L. Ed. 877, and Allen v. Pullman Company, 191 U. S. 171, 24 Sup. Ct. 39, 48 L. Ed. 134, it was said that a state law purporting to license the domestic business only of a corporation engaged in interstate commerce might under certain circumstances be regarded as a disguised attempt to tax interstate commerce, if the statutes of the same state made it compulsory upon a corporation engaged in interstate commerce to carry on that part of its business which is wholly within the state. The defendant pleads in its answer that it is obliged to receive, transmit and deliver messages passing between stations in Kansas. In its brief the statute is cited compelling the defendant under a penalty to establish and maintain a telegraph station at every county-seat town traversed by its lines, with the usual appointments and facilities for the convenience of the public in sending telegrams. There are other laws regulating the service of the defendant to the people of Kansas, and in view of them the defendant pleads that it cannot withdraw from its domestic business unless all such laws are regarded as repealed.
None of the laws referred to is repealed by the charter-board legislation, and none of them limits the right of the defendant to forego its local business if it so desire.
In addition to the state’s power to license intrastate commerce it has authority under the police power which has been reserved to it to make and enforce local regulations of all the defendant’s business which the public comfort, convenience and welfare render necessary. It may require the diligent transmission and delivery of messages directed to points within the state from points without the state, at least so long as congress is silent upon the subject. (Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105.) Within the reservation that they do not encroach upon the free exercise of powers vested in congress the state may make all necessary regulations respecting the buildings, poles and wires of the defendant within its jurisdiction. (W. U. Telegraph Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187.) It may require the defendant to establish and maintain offices at points which the needs of the public indicate. (Telegraph Co. v. Railroad Commission, 74 Miss. 80, 21 South. 15.) It may oblige the defendant to appoint an authorized agent to represent it at a known place of business within the state. (American Union Telegraph Co. v. Western Union Telegraph Co., 67 Ala. 26, 42 Am. Rep. 90.) And it may in addition to ordinary taxation levy a tax upon the defendant to defray the expense of local police supervision. (Western Union Tel. Co. v. New Hope, 187 U. S. 419, 23 Sup. Ct. 204, 47 L. Ed. 240; Atlantic &c. Tel. Co. v. Philadelphia, 190 U. S. 160, 23 Sup. Ct. 817, 47 L. Ed. 995.) Such regulations are not restrictions upon commerce. They are legitimate exhibitions of the police power, and have a rightful place upon the statute-books, even though they affect incidentally the conduct of interstate business.
The existence of such statutes does not imply that a foreign corporation is obliged to transact local business in opposition to the terms of the state’s license laws, and statutes specially applicable to the conduct of intrastate business proceed upon the assumption that the corporation has qualified itself to do such business. It was not intended that any of the statutes of this state regulating the conduct of the defendant’s business here should supersede the charter-board legislation and grant permission to do intrastate business without a certificate of authority. By omitting to prescribe other remedies the legislature intended to leave the state free to enforce the statute by employing any of those which the common law furnishes (The State v. Book Co., 69 Kan. 1, 8, 76 Pac. 411, 1 L. R. A., n. s., 1041), and every corporation failing to obtain a certificate of authority exposes itself, to an action of quo warranto or injunction to prevent the further local- exercise of corporate privileges and powers. If a certificate of authority has been obtained and the corporation fails to file its annual report the charter board may declare and publish a forfeiture of further right to do business within the state (Dassler’s Stat. 1905, § 1358). The Bush act, therefore, is itself an act of exclusion, and it would be absurd indeed to say that a corporation not wishing to comply with its terms may not voluntarily do that which the state will compel it to do — cease the further conduct of local business. If the defendant chooses to withdraw it is no longer subject to the compulsion of statutory regulations applicable to its. local business only. It is then, for all purposes of the law, beyond the jurisdiction of the state so far as domestic business is concerned.
The nature of the defendant’s business is such that the portion which is confined to the state is at all times distinguishable and separable from that which is interstate in character. The separation of one from the other involves neither effort nor embarrassment. Whenever a message is offered to it for transmission and delivery it shows upon its face whether it is state or interstate, and if it be of the former kind the defendant may simply refuse to receive it. No other obstacle, legal or administrative, to a withdrawal from local business has been suggested, and the court is aware of nothing which would hinder the defendant from adopting such a course to avoid submission to the payment of the charter fee required of it.
The defendant states in its answer that the receipts from interstate and government business alone are not sufficient at many offices to keep them open; if they are closed the defendant’s efficiency as an instrument of interstate commerce and as an agency of the government will be seriously impaired; and if the defendant cannot engage in local business it will be prevented from opening new offices, to the detriment of interstate commerce and the government of the United States. This is a mere attenuation of a claim already considered.
In several of the cases which have been cited the contention was that the local business was not self-sustaining. Hence, it was argued, interstate commerce and government business would be crushed by the burden of the charges necessarily thrown upon them. Here the contention is that interstate commerce and government business will fall if the prop of local business be cut from under them by exacting a license for it. There is no difference in principle between the two positions. The fallacy in each lies in the assumption that corporate business is an entity, each constituent element of which is dependent upon all others, whereas it is divisible into independent portions — intrastate business on the one hand and interstate commerce and government business on the other — as clearly as if they were conducted from different offices and by different instrumentalities.
The defendant forbears to disclose the source from which it derives authority to conduct interstate and departmental business by levying the cost of maintaining facilities for them upon domestic commerce. It has no such legal right. To concede that it has would be to concede to a New York corporation the uncurbed power to regulate the purely private internal commerce of the state in opposition to the will of its legislature — something which the congress, of the United States is impotent to accomplish.
It has been declared in a host of decisions that, in order to, affect interstate commerce and government business in the legal sense of the expression, state regulations must impinge directly upon them. Consequences which are indirect, remote and incidental only are not invalidating.. Those which the defendant is able to prefigure from the operation of the Bush act are of the negligible kind. No restrictions whatever are imposed upon the maintenance of all the offices which may be necessary or convenient for the conduct of that part of the defendant’s business which is under federal control. Having no legal right to enter the state and supply its treasury with funds derived from the conduct of intrastate business, the defendant suffers no injury in the eye of the law if its net income from that source be reduced by the transfer of a portion of it to the state treasury, or if it be cut off altogether. No depredation having been committed upon the defendant, no wrong has been done to any independent enterprise it has undertaken to finance. The state cannot be held responsible because that part of the defendant’s business which is under federal control is unprofitable, nor because the defendant cannot or will not engage in it at a loss.
The defendant next pleads its acceptance of the restrictions and obligations' contained in the act of congress of July 24, 1866, which reads as follows:
“An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes.
“Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled: That any telegraph company now organized, or which may hereafter be organized under the laws of any state in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military- or post-roads of the United States which have been or may hereafter be declared such by act of congress, and over, under, or across the navigable streams or waters of the United States: Provided, that such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military- or post-roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may preempt and use such portion of the unoccupied public lands subject to preemption through which its said lines of telegraph may be located as may be necessary for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles .of each other.
“Sec. 2. And be it further enacted, that telegraphic-communications between the several departments of the government of the United States and their officers and agents shall, in their transmission over the lines of any of said companies, have priority over all other business, and shall be sent at rates to be annually fixed by the postmaster-general.
“Sec. 3. And be it further enacted, that the rights and privileges hereby granted shall not be transferred by any company acting under this act to any other corporation, association, or person: Provided, however, that the United States may at any time after the expiration of five years from the date of the passage of this act, for. postal, military, or other purposes, purchase all the telegraph lines, property, and effects of any or all of said companies at an appraised value, to be ascertained by five competent, disinterested persons, two of whom shall be selected by the postmaster-general of the United States, two by the company interested, and one by the four so previously selected.
“Sec. 4. And be it further enacted, that before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the postmaster-general of the restrictions and obligations required by this act.” (14 U. S. Stat. at L. p. 221.)
The claim of the defendant is that this statute was enacted in the exercise of constitutional authority to establish post-offices and post-roads as well as to regulate commerce among the several states; that its purpose was to secure to the people of each state the means of communicating with each other as well as with the people of other states ; that upon accepting the terms of the act the defendant became a constituent part of the postal system of the United States, an agency of the government in executing its will within the jurisdiction of states in respect to matters of importance both to the government and to the people; and hence, that Kansas has no control over the defendant’s local business within her boundaries.
Although urged with much earnestness and plausibility, the claim is not new. It was first pressed upon the attention of the supreme court of the United States in 1869, by Mr. John P. Usher, in an effort to defeat taxes levied in Douglas, Wyandotte and Jefferson counties in Kansas upon the property of the Union Pacific Railroad Company, Eastern Division. It was said that that company was a part of a railway and telegraph system constructed under the direction and authority of congress for the uses and purposes of the United States in the exercise of its power to provide for the common defense and general welfare of the people of the United States, to regulate commerce among the several states, to establish post-offices and post-roads, ,to raise and support armies, to suppress insurrection and rebellion and to resist invasion; that it had been adopted as an instrument of the government; and that it was entitled to exercise its franchises free from state burdens. (Thomson v. Pacific Railroad, 76 U. S. 579, 19 L. Ed. 792.) The claim was renewed in opposition to a property tax by the Union Pacific Railway Company, which had been incorporated by congress itself for the purpose of constructing a railway and telegraph line to assist in the performance of governmental func tions, and it was said that the company would be crippled in the performance of its governmental duties if it were obliged to support the governments of the various states through which its lines ran by contributing to their revenues. (Railroad Co. v. Peniston, 85 U. S. 5, 21 L. Ed. 787.) It has since been brought forward to resist state property taxes in general (W. U. Tel. Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790; Western Union Tel. Co. v. Gottlieb, 190 U. S. 412, 23 Sup. Ct. 730, 47 L. Ed. 1116) ;to resist taxes upon intrastate business apart from interstate and governmental business (Ratterman v. Western Union Tel. Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; W. U. Telegraph Co. v. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409); to resist taxes upon intrastate private messages (Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067); to resist city license fees (Postal Telegraph Cable Co. v. Charleston, 153 U. S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871); to resist a license tax for the privilege of exercising franchises within a state (Postal Telegraph Cable Co. v. Adams, 155 U. S. 688, 15 Sup. Ct. 360, 39 L. Ed. 311); to resist charges by the proprietor of streets for their use (St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 13 Sup. Ct. 485, 37 L. Ed. 380); to defeat a state law requiring the diligent transmission and delivery of messages sent from other states (Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105); and in support of the right to enter upon private property without the consent of the owner (Western Union Tel. Co. v. Penn. R. R. et al., 195 U. S. 540, 25 Sup. Ct. 133, 49 L. Ed. 312).
The claim has never been recognized further than to prevent a state from excluding telegraph companies from the occupation of post-roads within its limits (Pensacola Tel. Co. v. West, etc., Tel. Co., 96 U. S. 1, 24 L. Ed. 708; W. U. Tel. Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790), and to keep inter state commerce and government business free. (Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Ratterman v. Western Union Tel. Co., 127 U. S. 411, 8 Sup. Ct. 1127, 32 L. Ed. 229; Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311.) The right to require municipal licenses for the transaction of local business to be taken out, the right to require the payment of state-privilege taxes, the right to tax private messages according to the financial needs of the state and the right to regulate the transmission and delivery of private messages are all utterly incompatible with the notion that the defendant is a part of the government’s postal system to the extent proposed.
In Pensacola Tel. Co. v. West., etc., Tel. Co., 96 U. S. 1, 24 L. Ed. 708, the power of congress to pass the act of 1866 was rested in part upon the power to establish post-offices and post-roads, and in Leloup v. Port of Mobile, supra, it was remarked that communication by telegraph is in the nature of postal service. There can be no doubt that the plenary power of congress over the public domain and navigable waters of the United States, and over its military- and post-roads, gives it the right to permit them to be used by telegraph companies to facilitate the transmission of intelligence; but the transactions of a telegraph company which has availed itself of the privileges conferred by the act are postal only so far as messages are carried for the departments of the United States government and its officers and agents. Such a telegraph company is part of the government establishment only in respect to government business. Intercourse between private parties by means of telegraphic communications is simply commerce, although they are carried over routes which are post-roads, as the carriage of express packages for private parties over post-roads is commerce.
“In Pensacola Telegraph Co. v. Western Union Telegraph Co. (96 U. S. 1, 24 L. Ed. 708), this court held that the telegraph was an instrument of commerce, and that telegraph companies were subject to the regulating power of congress in respect to their foreign and interstate business. A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. ' Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits.
“Congress, to facilitate the erection of telegraph lines, has by statute authorized the use of the public domain and the military- and post-roads, and the crossing of the navigable streams and waters of the United States for that purpose. As a return for this privilege those who avail themselves of it are bound to give the United States precedence in the use of their lines for public business at rates to be fixed by the postmaster-general. Thus, as to government business, companies of this class become government agencies.
“The Western Union Telegraph Company having accepted the restrictions and obligations of this provision by congress, occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of messages on public business.” (Telegraph Co. v. Texas, 105 U. S. 460, 464, 26 L. Ed. 1067.)
The same view was fully elaborated in the case of W. U. Telegraph Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187, as follows:
“Although intercourse by telegraphic messages between the states is thus held to-be interstate commerce, it differs in material particulars from that portion of commerce with foreign countries and between the states which consists in the carriage of persons and the transportation and exchange of commodities, upon which we have been so often called to pass. It differs not only in the subjects which it transmits, but in the means of transmission. Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other. . . . But with reference to the new species of commerce, consisting of intercourse by telegraphic messages, this court has only in two cases been called upon to inquire into the power of congress and of the state over the subject. In Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 24 L. Ed. 708, this court had before it the act of congress of July 24, 1866, 14 Stat. 221, ‘to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes,’ and it held that the act was constitutional so far as it declared that the erection of telegraph wires should, as against state interference, be free to all who accepted its terms and conditions, and that a telegraph company of one state accepting them could not be excluded by another state from prosecuting its business within her jurisdiction. In Telegraph Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067, from the opinion in which we have quoted above, it was held that a statute of Texas imposing a tax upon every message transmitted by a telegraph company doing business within its limits, so far as it operated on messages sent out of the state, was a regulation of foreign and interstate commerce, and, therefore, beyond the power of the state.
“In these cases the supreme authority of congress over the subject of commerce by the telegraph with foreign countries or among the states is affirmed, whenever that body chooses to exert its power; and it is also held that the states can impose no impediments to the freedom of that commerce. In conformity with these views the attempted regulation by Indiana of the mode in which messages sent by telegraphic companies doing business within her limits shall be delivered in other states cannot be upheld. It is an impediment to the freedom of that form of interstate commerce, which is as much beyond the power of Indiana to inter pose as the imposition of a tax by the state of Texas upon every message transmitted by a telegraph company within her limits to other states was beyond her power. Whatever authority the state may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the' delivery of messages in other states.” (Pages 356, 358.)
In Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105, involving a state statute regulating the transmission and delivery of messages coming into the state, it v>as said:
“It has been settled by the adjudications of this court that telegraph lines, when extending through different states, are instruments of commerce which are protected by the above clause in the federal constitution, and that the messages passing over such lines from one state to another constitute a portion of commerce itself. . . . Such messages come within the protecting clause of the constitution just quoted, and if the statute in question can be construed as regulating commerce between the states, the statute would be invalid on that account.
“The congress of the United States, by the act of July 24, 1866, c. 230, 14 Stat. 221, legislated upon the subject of telegraph companies. That legislation has become a part of the United States Revised Statutes, §§ 5263 to 5269, both inclusive. The sections referred to do not, however, touch the subject-matter of the delivery of messages as provided for in the state statute. The provision in the section of the Revised Statutes as to the precedence to be given to the messages of officers of the government in relation to their official business are not inconsistent with or in any manner opposed to the provisions of the Georgia act, nor are they upon the same subject within the meaning of the rule which permits state legislation in some instances only until congress shall have spoken.” (Page 654.)
In the case of Postal Telegraph Cable Co. v. Charleston, 153 U. S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871, involving the right to impose a city license for the transaction of local business upon a telegraph company which had constructed its lines upon post-roads, it was said:
“It is further contended that the ruling of the cited cases does not cover the case of a telegraph company which has constructed its lines along the post-roads in the city of Charleston, and elsewhere, and which is exercising its functions under the act of congress as an agency of the government of the United States. It is obvious that the advantages or privileges that are conferred upon the company by the act of July 24, 1866 (Rev. Stat. §§ 5263-5268), are in the'line of authority to construct and maintain its lines as a means or instrument, of interstate commerce.” (Page 700.)
In the case of W. U. Telegraph Co. v. Alabama, 132 U. S. 472, 10 Sup. Ct. 161, 33 L. Ed. 409, it was said:
“That principle is, in regard to telegraph companies which have accepted the provisions of the act of congress of July 24, 1866, sections 5263 to 5268 of the Revised Statutes of the United States, that they shall not be taxed by the authorities of a state for any messages, or receipts arising from messages, from points within the state to points without or from points without the state to points within, but that such taxes may be levied upon all messages carried and delivered exclusively within the state. The foundation of this principle is that messages of the former class are elements of commerce between the states and not subject to legislative control- of the states, while the latter class are elements of internal commerce solely within the limits and jurisdiction of the state, and therefore subject to its taxing power. (Page 473.)
In W. U. Tel. Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961, 31 L. Ed. 790, it was said:
“It never could have been intended by the congress of the United States, in conferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein, to establish the proposition that such a company; owed no obedience to the laws of the state into which it thus entered.” (Page 548.)
And in Western Union Tel. Co. v. Penn. R. R. et al., 195 U. S. 540, 25 Sup. Ct. 133, 49 L. Ed. 312, after a full review of the previous cases involving the act of 1866, it was said: “We decide the act to be an exercise by congress of its power to withdraw from state interference interstate commerce by telegraph.” (Page 571.)
Conceding that the government of the United States may absorb telegraph lines located upon post-roads and fully incorporate them with the postal establishment, it has not yet done so, and the intrastate business of the defendant, aside from messages carried for the government, is domestic commerce and subject to the provisions of the Bush act.
The defense that the defendant came rightfully into the territory of Kansas and has been the beneficiary of certain complaisant acts of the state and territorial legislatures is clearly demurrable. None of those acts has either the form or the effect of a contract exempting the defendant from future legislation made necessary by the needs and changed conditions of the people of Kansas, and rights are not taken from the public or' given to a corporation without the clearest disclosure of a positive intention to do so. The defendant came into .the state as a foreign corporation and has remained here as a foreign corporation. It cáme subject to the right to make all necessary modification's of the laws-then in existence, and subject to the adoption of future constitutional provisions and future general legislation. The fact that it entered without the payment of license fees gave it no vested right to remain unlicensed. Such a derogation from the power of the legislature must be found in express words somewhere in the constitution or a legislative act, or must follow by implication equally decisive with express words, or it cannot be suffered. Among the numerous decisions of the supreme court of the United States which establish and elaborate these rules are the following: Home Ins. Co. v. City Council, 93 U. S. 116, 23 L. Ed. 825; Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. Ed. 148; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1086; Newton v. Commissioners, 100 U. S. 548, 561, 25 L. Ed. 710; Mutual Life Insurance Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569; Louisville and Nash. R’d Co. v. Kentucky, 183 U. S. 503, 516, 22 Sup. Ct. 95, 46 L. Ed. 298.
In the case of Mutual Life Insurance Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569, the opinion reads:
“The act of 1875 stated the terms upon compliance with which a foreign corporation should be permitted to do business within the state of Tennessee. There was, however, no contract that those conditions should never be altered, and when pursuant to the provisions of the act of 1875 this power of attorney was given by the corporation the state did not thereby contract that during all of the period within which the company might do business within that state no alteration or modification should be made regarding the conditions as to the service of process upon the company. When therefore in 1887 the legislature passed another act and therein provided for the service of process, no contract between the state and the corporation was violated thereby, or any of its obligations in anywise impaired, for the reason that no contract had ever existed. Instead of a contract, it was a mere license given by the state to a foreign corporation to do business within its limits upon complying with the rules and regulations provided for by law. That law the state was entirely competent to change at any time by a subsequent statute without being amenable to the charge that such subsequent statute impaired the obligation of a contract between the state and the foreign corporation doing business within its borders under the former act.
“Statutes of this kind reflect and execute the general policy of the state upon matters of public interest, and each subsequent legislature has equal power to legislate upon the same subject. The legislature has power at any time to repeal or modify the act granting such permission, making proper provision when necessary in regard to the rights of property of the company already acquired, and protecting such rights from any illegal interference or injury. Douglas v. Kentucky, 168 U. S. 488, 18 Sup. Ct. 199, 42 L. Ed. 553. The cases showing the right of a state to grant or refuse permission to a foreign corporation of this kind to do business within its limits are collected in Hooper v. California, 155 U. S. 648, 652, 15 Sup. Ct. 207, 39 L. Ed. 297.
“Having the right to impose such terms as it may see fit upon a corporation of this kind as a condition upon which it will permit the corporation to do business within its borders, the state is not thereafter and perpetually confined to those conditions which it made at the time that a foreign corporation may have availed itself of the right given by the state, but it may alter them at its pleasure. In all such cases there can be no contract springing from a compliance with the terms of the act, and no irrepealable law, because they are what is termed ‘governmental subjects,’ and hence within the category which permits the legislature of a state to legislate upon those subjects from time to time as the public interests may seem to it to require.” (Page 620.,)
Another defense made in the answer is that the defendant is a person within the jurisdiction of the state according to the meaning of the first section of the fourteenth amendment to the constitution of the United States, and as such is entitled to the equal protection of the laws, and that the Bush act discriminates between the defendant and corporations — including telegraph companies — organized in Kansas, in that it must pay a charter fee based upon its entire capital, representing all its property, the major part of which is in other states, while Kansas corporations pay only on capital employed within the state.
It may be observed that so far as doing local nongovernmental business is concerned the defendant is hot a person within the jurisdiction of the state until it complies with the law and obtains permission to come into the state. (Blake v. McClung, 172 U. S. 239, 259, 19 Sup. Ct. 165, 43 L. Ed. 432.) Besides this, the state is not prohibited from discriminating between its own and foreign corporations in respect to the privileges it may grant to foreign corporations as conditions upon their entering the state to do business, and any restriction it may impose as a requirement of admission, including charges computed upon capital stock, does not violate the constitutional provision invoked. (Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 189, 8 Sup. Ct. 737, 31 L. Ed. 650; Horn Silver Mining Co. v. New York, 143 U. S. 305, 313, 315, 12 Sup. Ct. 403, 36 L. Ed. 164.) But waiving these considerations the answer distorts the statute. The legislature might have graduated charter fees upon the basis of capital or property employed in the state, but it did not choose to do so. It levied a fixed percentage upon the amount of capital stock stated in the charter,. irrespective of how much or how little the corporation may determine to employ within the state, and this percentage is the same for domestic and foreign corporations. The same rule applies to all, and there is no discrimination. (Kehrer v. Stewart, 197 U. S. 60, 69, 25 Sup. Ct. 403, 49 L. Ed. 663.)
Further answering, the defendant says that it pays all the usual state, county and municipal taxes assessed upon its property; that the charter fee is an additional burden which, being levied upon its entire capital, is, convertibly, levied upon the property in which such capital is invested; and that the imposition of such burden upon property permanently outside the state deprives it of such property without due process of law.
The principle is too elementary to need fortification by the citation of authorities that license fees for. the privilege of entering the state and exerpising corporate franchises there may be exacted in addition to general taxes upon property in the state, and the collection of such fees involves no attempt on the part of the state levying them to extend its taxing power beyond its territorial limits. (Ashley v. Ryan, 153 U. S. 436, 14 Sup. Ct. 865, 38 L. Ed. 773.)
All persons seeking to form corporations and all foreign corporations seeking to do business in the state must get the money somewhere to pay charter fees, but no matter from what property or resources the funds for this purpose are derived the state has laid no tax upon them. It may lawfully fix the terms upon which corporate franchises may be granted or may be exercised within its borders. Persons seeking to form corporations or foreign corporations seeking to be admitted into the state may submit or not as they choose. But if they do accept the state’s terms the use of resources in the voluntary payment of the price of a desired privilege is not deprivation within the meaning of the constitution.
The answer finally states that.if intrastate business be relinquished or be withdrawn from the defendant those offices must close which cannot be supported except by receipts from such business; that the defendant’s poles and wires are not removable without great loss, their chief value consisting in their use as now established; and hence that the defendant will be deprived of property without due process of law.
As before indicated, the defendant erected its poles and wires subject to the reserved right of the state to make all regulations respecting them which the public interest might warrant, including the imposition of license fees for the privilege of maintaining and using them. The power to require licenses to be taken out is a police power, although exercised for the purpose of raising revenue. (Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 373, 2 Sup. Ct. 257, 27 L. Ed. 419; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725.) Under the well-understood rule the fourteenth amendment to the constitution of the United States offers no obstacles to the exercise of such authority, and if the defendant were obliged to close all its offices on account of the enforcement of the Bush law the state would deprive it of none of its property without due process of law.
The demurrer to the defendant’s answer is sustained. The defendant having indicated an intention to rest the case upon the legal sufficiency of its answer, judgment is rendered in favor of the state as prayed for in the petition, and for costs of suit. | [
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Per Curiam:
While F. R. Ogg was attempting to' cross the right of way and tracks of the St. Louis & San Francisco Railroad Company at a' public crossing in Johnson county an engine which was standing about 150 feet north of the crossing emitted steam, which so frightened his horse that it ran away and threw Ogg out of the cart, causing him to sustain serious injuries. In an action against the company judgment was rendered in favor Of Ogg, and the defendant prosecutes error.
The plaintiff introduced some evidence tending to prove every material allegation of his petition; therefore the court committed no error in overruling the defendant’s demurrer to the evidence or in refusing to instruct the jury to return a verdict for the defendant.
The petition charged that it was the steam from the cylinder-cocks low down on the engine that frightened the horse, and the court instructed the jury that they must find that the steam which frightened the plaintiff’s horse escaped from the engine in the manner alleged in the petition or they should find for the defendant. In view of the allegation in the petition and this instruction it was not prejudicial error to refuse to instruct the jury that if they found that the steam which frightened plaintiff’s horse escaped from the top of the engine he could not recover.
The defendant was not prejudiced by the refusal to give the following instruction: “I charge you that if you find from the evidence that the injury to the plaintiff was caused by the engine and employees of the Missouri, Kansas & Texas railroad, you must find for the defendant.” This question was fully covered by instructions given, in which the jury were informed that they must find that the engine that emitted the steam which frightened plaintiff’s horse was the engine of the defendant and was in charge of its servants and employees, and that the steam was permitted to escape by the defendant’s employees, without any necessity therefor, and heedlessly, negligently and uselessly done and permitted to be done by them.
An examination of the other assignments does not disclose anything prejudicial to defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Otto H. Reemsnyder died intestate April 12, 1905, while holding the legal title to a tract of land. His brother, Harvey E. Reemsnyder, brought a suit against Otto’s heirs, claiming such title to have been held for the benefit of both of them and asking that he be decreed to own an undivided half interest in the land and that it be partitioned. A demurrer to the plaintiff’s evidence was sustained, and this proceeding is brought to review that ruling.
The evidence tended to show this situation: The brothers as equal partners had been engaged in the business of farming, using for the purpose a half-section of land which they rented from their father. In 1896 they negotiated for the purchase of an adjoining half-section — the tract now' in controversy— for $920, wholly upon credit. The owner executed a contract giving immediate possession and providing for the execution of a deed upon the completion of ■the payment of the purchase-price. At this time the father was indebted to a bank upon a note for $1400, which Harvey Reemsnyder had signed as surety, and which was further secured by a chattel mortgage. Because of these facts the contract was drawn running to Otto Reemsnyder alone, although it was understood by all concerned that it was made for the benefit ■of both brothers. Within a few months, and before any part of the purchase-price of the land had been paid, the indebtedness to the bank was fully satisfied. The brothers managed the newly acquired land together in connection with their other business, and from time to time made payments upon it out of the proceeds of crops raised thereon. Payment having been completed, a deed was made in 1902, Otto Reem-snyder being named as grantee. No change was made in the handling of the property prior to the death •of Otto Reemsnyder, which occurred April 12, 1905.
As appears from this statement, the evidence was abundant to establish that the plaintiff was entitled to half of the land, and the ruling of the trial court must be reversed unless some one of the following contentions made by the defendants is well founded: (I) The action is one for relief on the ground of fraud, which ripened when the deed was recorded and was barred by the statute of limitation in two years from that time. (2) The action is one to enforce a trust concerning lands not created by writing and therefore void under the statute. (Gen. Stat. 1901, § 7875.) (3) The plaintiff caused the full title to Hie land to be lodged in his brother for the purpose of defrauding his creditor, and theref ore' the law will not aid him in an attempt to enforce his claim to it. (4) The action is one to enforce a demand arising out of a partnership transaction and cannot be maintained until there has been a settlement of the partnership business. These contentions will be considered in the order stated.
(1) No fraud is charged, and the action is not one for relief on the ground of fraud. Otto Reemsnyder’s act in taking the deed to himself did not imply any denial of his brother’s claim. The deed merely followed the contract, which was made in Otto’s name by consent. No cause of action accrued in his lifetime and no statute of limitations has run in favor of his heirs.
(2) The general rule that a trust concerning lands can be created only by writing does not apply where by agreement and without any fraudulent intent the person to whom a conveyance is madé is to hold the lánd or an interest therein in trust for the person who-pays the purchase-price of a part of it. (Rayl v. Rayl, 58 Kan. 585, 50 Pac. 501.) Therefore the rule-has no application here, unless it must be said that a fraudulent intent was shown. Whether that is the-case will be discussed in the next paragraph.
(3) The familiar principle that the law will treat, a fraudulent conveyance as good between the parties, and refuse to give the grantor relief from the consequences of his own wrongful act, reaches the case-where one who purchases and pays for land causes the title to be taken in the name of another for the-purpose of avoiding the payment of a debt for which, he is surety. (Weatherbee v. Cockrell, 44 Kan. 380, 24 Pac. 417.) Herd, however, the evidence does not: conclusively show that there was an intent to defraud, even if it has any tendency in that direction. So' far as the record shows the only debt upon which Harvey Reemsnyder was liable at the timé the contract was. made was that evidenced by his father’s note, which. was abundantly secured, and which in fact was paid in full within' a few months, long before the deed was executed and before payment for the land was completed or even begun. The.plaintiff himself did not testify as to why the contract was made in his brother’s name. His father said that Otto proposed to .take the title until the note was paid — that he and Otto did most of the talking. The agent of the seller who negotiated the salé said that Harvey did n’t want the contract made to both of them because he was mixed up in a note of his father’s and it might not be just the right thing; that Otto then said: “Make it in my name, if you are afraid of this note, and when we pay for it I will deed Harvey his share — his half.” The sanie witness added: “These were the reasons they gave. The reason that Harvey did n’t want in this deal, in case the land should be paid for and they should have some trouble with this note, he would be mixed up with his father on this note.” In response to the question,' “What did' you say was the reason Harvey gave for not wanting his name in the contract ?” he answered: “I did n’t inquire; Í did n’t care; but he had complicated himself some way with his father.” This is the substance of all the testimony bearing on the matter. ' it does not conclusively establish a purpose on the part of the plaintiff to defraud the bank, anc{ is hot fatal to his recovery.
(4) The plaintiff's petition set out two- causes of action. The purpose of the first was to' establish his right to an interest in the land; the purpose of the sécond was to cause it to be partitioned. ’ So far as concerns'his right to maintain an action upón the first count, it is immaterial whether the land was partnership property or belonged to the partners individually as tenants in common. The issue presented was whethér the defendants, as they claimed, were its absolute owners, or whether, as the plaintiff' claimed, they held the title in whole or in part' in trust. Assuming that the evidence showed that the land was an asset of the partnership, the case is not within the rule which prevents certain actions between partners before an accounting is had.
“The real reason for the rule is found in the inherent nature of the partnership relation, and -consists simply in the fact that prior to an accounting and settlement of the partnership aifairs no cause of action exists, between the partners founded solely upon partnership dealings, except an equitable action for an accounting and settlement of the affairs of the partnership.” (15 Encyc. Pl. & Pr. 1015.)
This reason can have no application to the plain-tiif’s first cause of action. His demand to be recognized as a part owner of the property, either individually or as a member of the firm, is in no way dependent upon the state of the partnership accounts, and cannot be aifected by the result of an accounting.
“It is a general rule, often announced, that where the cause of action is distinct from the partnership accounts, and does not involve their consideration or require their examination, an action at law will lie thereon between partners.” (15 Encyc. Pl. & Pr. 1034.)
With respect to the other branch of the case, assuming that a suit for' the partition of partnership real estate will not lie prior to an accounting, it remains to inquire whether upon a demurrer to the evidence it was necessary to consider the land, in controversy as belonging to the firm. There were expressions in the original petition filed by the plaintiff which the defendants claim committed him to that theory of the matter. These expressions, however, were omitted from the amended petition, on which the hearing was had. While they were competent •evidence against the plaintiff they did not absolutely conclude him. Where a complete amended pleading is filed it supersedes that for which it is substituted, which can no longer be looked upon as defining the issues. (1 Encyc. Pl. & Pr. 625, 626.) There was a lack of direct evidence as to the character of the ownership of the land, the plaintiff being disqualified hy his brother’s death from testifying concerning the "transactions had between them. Whether property belongs to a firm or to the members of the firm individually is a question of intention. (22 A. & E. Encycl. of L. 88, 89.) And it is said that the intention that realty shall become partnership property must be distinctly manifested. (22 A. & E. Encycl. of L. 90, note 1. See, also, Robinson Bank v. Miller, 158 Ill. 244, 38 N. E. 1078, 27 L. R. A. 449, 46 Am. St. Rep. 883.) It is to be noted that the Reemsnyders were not engaged in dealing in real estate, and originally they owned no land at all, their operations being conducted by means of that rented from their father. Moreover, there was evidence that payment for the land in controversy was made, not out of the general funds of “the partnership, but from the proceeds of crops .grown on this very tract. In volume 22 of the American and English Encyclopaedia of Law, at page 92, it is said:
“Where several persons are coowners of land, and are partners merely as to the profits made by the use of the land, and not as to the land itself, other land purchased by them out of the profits to be used in like manner will, in the absence of an agreement “to the contrary, belong to them as coowners, and riot .as partners.”
This text, however, rests upon the authority of Steward v. Blakeway, L. R. 4 Ch. (Eng.) *603, which has been doubted. ( See George, Part. § 47.) It is hardly possible to resolve the question here presented upon any general rule. It has necessarily to be determined from inferences to be drawn from all the facts of the case. We think it cannot be said that the evidence, viewed in the aspect most favorable to “the plaintiff, compels the conclusion that the brothers intended that the land they purchased should become a part of the partnership assets.
The judgment is therefore reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal by a railroad company from a judgment rendered against it for damages under the wrongful-death statute on a verdict and special findings returned by a jury.
The pleadings are not in issue. All that needs to be said regarding them is that the petition was sufficient in form and stated a cause of action under the statute while the answer contained a general denial and properly pleaded contributory negligence on the part of the decedent which was denied by a reply.
The facts essential to a proper understanding of the conditions and circumstances prevailing at the time the accident occurred will be stated in narrative form. Those in dispute or of particular significance in deciding the issues will receive more specific attention later in the opinion when occasion requires.
Plaintiff is the administratrix of the estate of the decedent hereinafter named and the guardian of his minor child. The principal defendant is a railroad company. All other defendants were its employees on the dates herein involved.
On the date of his death Julius F. Schulz, a man forty-eight years of age, with a wife and five children, one of whom was a minor, was an employee of the Belleville Ice Company, a partnership, whose business operations were carried on under the direction and control of Clarence E. Harber as part owner and manager.
The office of the ice plant is located directly south of the railroad tracks and premises of the defendant railroad company. Its back or north side fronts on such premises where there is an elevated dock or platform, ten feet in width and 200 feet in length, which runs east and west parallel with a railroad track known as the ice or scale track. The railroad’s passenger and freight stations, its main line track, and several switch tracks, all running east and west, are located to the north of the dock and ice track. About 130 feet west of the icing dock there is a viaduct carrying city traffic over the main line track. Directly beneath the viaduct the ice track connects with the railroad’s main line and other switch tracks.
Under an agreement between the railroad and the ice company the latter ices refrigerator cars containing perishable fruits - and vegetables as needed and required by placing ice in bunkers through openings provided in the top or roof of such cars. Several thousand cars annually are iced at the dock and the number employed in the icing operation depends upon the number of cars to be iced.
On the evening of April 27, 1946, the decedent Schulz, who was working night shift at that time, reported for work at the ice plant at about 8:30 p. m. Prior to his arrival a through fast freight, running between Denver and Chicago, had arrived at Belle-ville. In two switching movements, the railroad company’s switch crew had placed seven refrigerator cars from that train upon the scale track north of the dock where, pursuant to orders received from the railroad, they were being iced by employees of the ice plant. The ice dock was lighted under condition which made it possible for all who looked to see the dock itself and the top of all cars which were being iced in front thereof. The first four of such cars were standing in the light of the dock. The other three were to the east of the dock out of the light. When Schulz reported for duty he was instructed by the manager of the ice plant to check the numbers of the seven refrigerator cars, three of which had already been iced and were located as heretofore noted. In compliance with this order he descended from the ice dock platform, which was several feet higher than the refrigerator cars, to the top of such cars by means of a chute provided by his employer for that purpose and then began to take numbers off the top of the cars. In doing so he started with the west car, at the northwest corner of the dock and worked toward the east. Shortly after he started this checking operation the switch engine with a caboose fastened to the east end thereof backed onto the scale track from the west for the purpose of making a coupling with the seven cars involved in the icing operation. At or about the time he had reached the seventh refrigerator car, the one farthest to the east, a coupling was made with such cars and the switch foreman gave orders for the train to move. However, the brakes on some of the cars were set and the train, consisting of the engine, caboose and the seven cars, which had commenced to move was halted until those brakes could be released. It was then started up again and pulled in a westerly direction past the lighted dock and out past the switch under the viaduct where it was stopped and then backed east on another track and into the train from where the seven refrigerator cars originally came.
About 9:05 p. m. Schulz, who had either been unable to get off the refrigerator cars or had failed to do so at the time they were pulled from the ice dock, and had been carried away on such cars, was discovered at a point 180 feet west of the viaduct with both legs severed from his body. He died of the injuries thus sustained about thirty minutes later.
So much for the uncontroverted factual situation. We now turn to facts about which there is dispute. After a careful examination of the record they will be stated in substance and in accord with our conclusions as to the import of the evidence without any attempt to detail testimony of the witnesses. They relate: (1) To notice given by the railroad company, hereinafter in the interest of brevity referred to as the company, to Schulz’s employer with respect to removing the refrigerator cars from the scene of the icing operation. (2) Information conveyed to or received by Schulz of the company’s intention to move the refrigerator cars, hereinafter called the train, while he was still at work thereon. (3) His failure to get off the train before it started to move. (4) Conduct of the company and its employees both before and after movement of the train had commenced. (5) Schulz’s action after the train had started to move. (6) Operation of the train at or about the point where Schulz’s body was found and where he had received the fatal injuries resulting in his death.
With respect to the factual question herein above designated as 1, it appears that a few moments before the switch engine made its coupling Clarence E. Harber informed a member of the switch crew the icing operation would be through in two or three minutes. This witness, who testified for the plaintiff, stated he did not remember whether he gave the switch crew any directions to start the train, that it had started up and then had been stopped to release the brakes and that if anyone of the company’s employees said anything about again starting movement of the train he did not remember it. Defendants in making their defense supplemented this evidence by testimony that after the train had made the coupling and stopped Mr. Harber advised the switch crew it was OK to take the refrigerator cars away.
As to number 2 plaintiff’s same witness on direct examination testified that after the coupling had been made, while the train was stopped and the air was being released he told Schulz “to come on, that they were hooking into it.” On cross-examination he admitted that prior to that time he had warned Schulz of the fact the engine was backing in to pick up the refrigerator cars and that his intention was to warn him in ample time for him to leave the cars before the engine came in and made the coupling. There is no evidence, in fact it is not even suggested, that Schulz received any warning of any kind from the company’s employees.
On point 3 plaintiff’s own testimony discloses that in response to the last mentioned warning Schulz replied “I want to get this other number.” However, we observe, Harber testified with respect to this same warning “Q. All right, now, did he come then and— A. Well, he started right away then to come down a ways and we started to give him the chute but the train was in motion. Q. Before you could give him the chute the train had started, is that correct? A. Yes; it was already in motion.” Plaintiff’s evidence also discloses, by statements of this witness and other employees of the ice plant, that after the train had started to move and the cars were being pulled past the dock in front of the lights Schulz was seen running over the top of the cars to the west in an apparent attempt to get off at the ice dock and the last time he was seen he was on the third car from the caboose and had started to climb down the side of that car. It is also undisputed that when his body was found there was taken from his person a slip of paper on which the number of the last car to which he had referred in his statement to Harber did not appear.
Factual point 4 has been partially covered by what has been heretofore stated, particularly with respect to the conditions and circumstances under which the train’s movement was started and completed. From the record it is clear that at least four switchmen were participating in the switching operation. Two of them, testifying in behalf of the defendants, definitely stated they could see the ice dock and the top of the refrigerator cars from where they stood at the time the train started its final movement and that although they looked they did not see Schulz on top of the cars as the train passed the dock. One of them, who gave his testimony by deposition, was not interrogated on that point. The other member of the switching crew did not testify. The testimony on this particular subject when considered in its entirety warrants the inference that all four switchmen could have seen a man on top of the refrigerator cars if he had been there under the conditions and circumstances related by the plaintiff’s witnesses. There is no evidence susceptible of a construction that after the train stopped to release the brakes the switch crew made any inquiry whatsoever as to whether workmen were off the train.
Disputed facts with respect to point 5 have also been partially covered and what has been said need not be repeated. In addition it should be stated Harber testified that prior to the night in question he had warned all of his employees, including Schulz, that if they happened to get caught on a car while a train was in movement they should sit down on the car. At another point in his testimony he stated he had warned them to get back from the end of the car or sit down. No witness testified as to Schulz’s conduct and action after the refrigerator cars were pulled away from the lighted dock for the obvious reason that he could no longer be seen by anyone.
The evidence as to point 6 is highly conflicting. Defendants’ witnesses all testified to the effect that from the time the train started to move from the ice dock until the refrigerator cars were placed in the fast freight from whence they came the switching operation was conducted in the ordinary and usual manner. However, it is to be noted that the engineer and foreman of the switch crew each admitted that on the night Schulz was killed the train was operated by straight air, i. e., use of the brake on the engine only, instead of automatic air which would have controlled all of the cars in the train, and while they did not actually admit it inferentially conceded there was more opportunity for rough handling of a train, particularly with reference to the jerking and jamming of cars, when it was operated under those circumstances. On the other hand, three of the plaintiff’s witnesses testified the train was moved out faster than usual that night and at least one of them stated that when it stopped on the west side of the switch under the viaduct it made lots of noise.
Two of the principal points relied on by appellants as grounds for a reversal of the judgment are that the trial court erred in overruling their demurrer to appellee’s evidence and in overruling their motion for judgment notwithstanding the verdict. Except for one contention relating to the motion, to be presently mentioned, the grounds relied on for sustaining both the demurrer and the motion are identical and can be jointly considered.
It is first urged that appellee’s evidence failed to establish the company’s negligence. At the start of its argument on this point appellants fall into error by failing to recognize the duty owed Schulz under the prevailing conditions and circumstances. He was not a mere trespasser or licensee as they suggest but an invitee of the company. (Folsom v. Chicago R. I. & P. Rly. Co., 157 Kan. 328, 139 P. 2d 822; Degitz v. Railway Co., 97 Kan. 654, 660, 156 Pac. 743.) The duty of a railway company to a person in his situation is stated in section 1809 at pages 900 to 902, inclusive, of the second edition of volume.3 of Elliott on Railroads thus:
“Shippers and consignees of freight on railroad premises for the purpose of loading and unloading cars are properly there and are not trespassers, or bare licensees, and the railroad company is bound to use reasonable care to avoid injuring them while so engaged. If such persons while so engaged, and without negligence on their own part other than that inattention to their own safety which an absorption in the duties in which they are engaged naturally produces, are hurt by the negligence of the railway company, they have an action for damages. It is the duty of switch crews with knowledge, or the means of knowledge that' persons are loading or unloading cars, to warn them of an intention to switch cars over a track on which their car is placed. These persons do not assume the risk of injuries from this cause. The persons actually at work must be notified; it is not sufficient to notify their employers. ...”
The rule just stated is quoted with approval and followed in Linker v. Railroad Co., 82 Kan. 580, 584, 109 Pac. 678.
To the same effect is 2 Thompson, Commentaries on the Law of Negligence (2d ed.), § 1841.
In the instant case the uncontroverted testimony is that Schulz was still at work when the switch engine backed in and made its coupling with the refrigerator cars. There is testimony to the effect that he was still there before the train started its final movement, was seen by the ice plant employees, and could or should have been seen by the switching crew while he was running up the string of cars in the light of the dock and had reached the third car from the switch engine at the time the train started its final movement. Irrespective of what the duty of the company was toward him prior to that time it was required at that point to give him time to get off the train before orders were given for it to move. The fact the switchmen say they looked and did not see anyone on top of the cars is of little moment. If Schulz was there at the time they were bound to see what they could and should have seen. Therefore the evidence, to which we have just referred, if believed, was sufficient to establish negligence and, since its existence was a disputed factual issue, the trial court properly held the decision on its weight and effect was for the jury. The same holds true of the evidence, heretofore related, pertaining to the negligent operation of the train at or near the point where Schulz received the injuries resulting in his death.
Lack of time and space precludes reference to the multitude of decisions, most of which have been decided on their respective factual situations dealing with questions pertaining to when there is negligence in the operation of trains under conditions and circumstances somewhat similar to these here involved. For a few which support the conclusion just announced and are illustrative of the legal principles and reasoning responsible for its pronouncement see Central Railway Co. v. Duffey, 116 Ga. 346, 42 S. E. 510; Young v. Atlantic Coast Line R. Co., 165 S. C. 441, 163 S. E. 834; St. Louis & S. F. R. Co. v. Cole, 49 Okla. 1, 149 Pac. 872; Howard v. Lewin Metals Corporation (Mo.), 22 S. W. 2d 84; Neal v. Curtis Co. Mfg. Co., 328 Mo. 389, 41 S. W. 2d 543; Kelly v. Boston & Maine Railroad, 319 Mass. 603, 66 N. E. 2d 807; Ward v. New York Central Railroad, 248 Mass. 115, 142 N. E. 751; Walsh v. Terminal Railroad Ass’n of St. Louis, 355 Mo. 377, 196 S. W. 2d 192.
While the next question urged — whether Schulz was guilty of contributory negligence as a matter of law — is not easy we have decided, that under all the facts and circumstances it must also be determined adversely to appellants’ position. As an invitee he was, of course, required to exercise such care as the dangers of the conditions under which he was working would suggest to a man of ordinary prudence and' caution. However, we have far more difficulty than appellants in concluding he was required to immediately start to leave the train when he was first warned by Harber that the switch engine was backing in to pick up cars. Schulz was an experienced employee, he had not finished his work, and he may have thought he had time to do so before the coupling was made or at least before the train started to pull the cars away. Whether he could have done so under ordinary circumstances is a matter of speculation which we need not decide. Be that as it may, there is evidence to the effect he did not complete his work, that the train moved out faster than usual on the night in question, and that when Harber told him to come on at the time the train crew was releasing the brakes he started right away to come down the top of the cars to the dock and the ice plant employees started to give him the chute in which to ascend thereto but were unable to do so because by that time the train had started and was already in motion. In such a situation, even though it be assumed failure to get off the train was the direct, legal or proximate cause of his fatal'injuries later received, we are convinced the question whether he exercised the degree of care required of him at the time and in the particulars just referred to was a question of fact and not of law.
In connection with the foregoing contention appellants insist, that negligence vel non in failing to get off the cars, Schulz was nevertheless guilty of negligence as a matter of law in standing up on them when the train started to move instead of sitting down as he had been instructed by his employer. On this point they entirely ignore the fact there was no testimony whatsoever as to what his position was at the time he was thrown from the train and sustained his injuries and the legal principle that under such conditions a man is presumed to have done everything possible to insure his own safety. Even so their position cannot be upheld. As we have heretofore indicated the record discloses sufficient evidence to sustain recovery against the appellants based on their own negligence. It also reveals testimony which warrants the conclusion Schulz was confronted with sudden, unexpected danger which well might have influenced his judgment and conduct. The rule in this jurisdiction is well established that in such a situation one who, by the negligent act of another, is placed in a position of danger which requires immediate and rapid action, without time to deliberate as to the better course to pursue, is not held to the strict accountability required of one situated under more favorable circumstances and is not guilty of contributory negligence as a matter of law if he does not exercise the greatest prudence or best judgment or choose the wisest or safest course in attempting to avoid the perils of the situation with which he is suddenly confronted (Edgerton v. O’Neil, 4 Kan. App. 73; Railroad Co. v. Langley, 70 Kan. 453, 78 Pac. 858; Eaton v. Salyer, 135 Kan. 411, 10 P. 2d 873).
For general statements supporting the rule heretofore stated and citations of authority from other jurisdictions in accord therewith see 38 Am. Jur. 874, 876, §194; 45 C. J. 962, 1210, §§ 517, 866.
Appellants assert the trial court erred in giving instruction 13 which deals with the duties and responsibilities of a person when confronted with an emergency. We have examined that instruction and are satisfied it contains a fair statement of the pertinent law applicable when a situation of that character is disclosed by the record. Indeed, when their contentions on this point are analyzed it is obvious they are founded upon the erroneous premise no emergency existed rather than upon a claim principles of law pertinent thereto were incorrectly stated.
Instruction 14, dealing generally with the essential facts appellee was required to establish in order to entitle her to recover, is also assigned as error. The error relied on was founded upon the mistaken but bona fide belief this instruction contained certain material language appearing in copies submitted to counsel but which was actually deleted by the trial court at the time it was submitted to the jury. Since argument of the cause counsel for appellants, with commendable candor, have advised us this claim of error may be disregarded. Hence, we give it no further consideration.
Another assignment of error relied on is that the answers to special questions 7, 9, 13 and 14 are not supported by the evidence. In connection with this claim we pause to point out a fact, not heretofore mentioned, that James McKinstry was the foreman of the company’s switch crew and the man who actually gave the order for the movement of the train. These questions and answers read:
“7. State whether or not you find from the evidence Schulz had sufficient time to get off of said cars and get into a place of safety after he received warning or knew that said string of cars were to be moved. A. No.
“9. Do you find that the defendant, W. E. Roberts, was guilty of negligence, and, if so, then state what such act or acts of negligence were. A. Yes. Slopped too abrupt.
“13. Do you find that any other employee of the defendant railroad company, who was connected with the matter of switching and movement of the cars in question, was guilty of negligence, and, if so, state the name of such employee and of what such act or acts of negligence consisted. A. Yes. James McKinstry giving orders to move train without proper authority.
“14. If you find from the evidence that Julius F. Schulz was guilty of any act or acts of negligence which caused or directly contributed to his injuries and death, then state of what such acts of negligence consisted. A. No. As of Paragraph 13 of court instructions.”
The answer to the claim last mentioned is to be found in what has been heretofore stated and held with respect to appellants’ other contentions. Based on our conclusions with respect thereto we have little difficulty in concluding there was evidence to support each and all of the special findings. On the same basis we have no trouble in reaching the further conclusion the third ground of their motion for judgment non obstante, referred to early in this opinion, to the effect the special findings of the jury entitle them to judgment, was properly overruled.
Finally appellants complain of the refusal of the trial court to give numerous requested instructions. Many of these instructions were predicated upon their fallacious theory, which we pause to note permeates all contentions of error advanced by them on appellate review, the evidence failed to prove negligence on their part but did establish contributory negligence of Schulz as matter of law and were therefore properly refused. Some of them were proper and could have been given in the form requested. As to them, when we turn to the trial court’s instructions, we find their essential legal principles were submitted in substance if not in exact form. That, under our decisions, was a sufficient compliance with their request.
After a careful examination of the record and consideration of all grounds relied on for its reversal we fail to find anything which requires or justifies a reversal of the judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal arises from an action in the nature of one for a declaratory judgment, the purpose being to determine title to real estate.
In the petition the facts necessary for consideration are fully set forth, and for present purposes are as follows:
Dana C. MacVicar, a resident of Shawnee county, died intestate in June, 1947, leaving personal property of the value of about $38,-500 and real property of the value of about $168,500. The probate court of Shawnee county appointed C. A. Magaw as administrator of the MacVicar estate and he duly qualified and acted as such. On August 11, 1948, the administrator filed his petition in the probate court for authority to sell all of the real estate belonging to the estate. Nearing of said petition was duly set and an order for notice by publication was made, and such notice was given. On the day fixed none of the heirs and no other person appeared in opposition, and upon hearing an order was made that the administrator sell the real estate at private sale. In pursuance of that order the administrator contracted to sell one of the six tracts of real estate owned by the estate to the defendant R. E. Emick for the sum of $22,000 of which $500 was presently paid, the balance to be due when an administrator’s deed conveying merchantable title was delivered. Report of this sale was made to the probate court and the sale was confirmed. Thereafter an abstract of title was furnished to Emick who refused performance, contending the order of the probate court for the sale of the real estate was without authority in law. The administrator contended the jurisdiction of the probate court was properly invoked and that the order of sale of real estate made being unappealed from was a binding adjudication and not subject to collateral attack. Attached to the petition were copies of the proceedings in the probate court, which show the following:
The petition of the administrator for authority to sell real estate disclosed that the decedent owned six tracts of real estate located in Topeka, and from the descriptions thereof it was apparent that each tract was distinct, separate and apart from the other five. The application then stated:
“That the proceeds from the sale of the personal property will not be sufficient to pay reasonable funeral expenses, expenses of last illness, wages of .servants during last illness, cost of administration, Federal estate tax and state inheritance tax; that a sale of a part of the above described real estate is ■necessary for the purpose of payment of the above listed expenses, and by such sale, the residue thereof would suffer manifest injury; for the following reasons: Such residue would be assigned to 58 heirs of the above named deceased who survived, none of whom is closer in relationship than first cousin, none of whom resides in Shawnee County, Kansas, but all of whom are, as shown by the files in this case, scattered through various parts of the world; that all of the heirs have expressed a desire that all of the property be sold and that the proceeds, after payment of debts, cost of administration, Federal estate tax and state inheritance tax, be distributed in the manner provided by law.
“If the residue be assigned to the heirs, then in order to effect a sale of fhe property all will have to agree upon a selling price, and in the event they fail to so agree, a sale in a partition suit will be the only manner in which a sale can be effected. In the event all agree upon a selling price, ancillary proceedings in the Probate Court of Shawnee County, Kansas, will be necessary in the estates of all heirs who may die before a sale is consummated; two heirs, Charles R. Watson, 801 Land Title Building, Philadelphia, Pennsylvania, a cousin, and Elizabeth McGill Kent, Portland, Oregon, a cousin, have already died and many of the others are well advanced in years. It will also be necessary that guardianship proceedings be had in the matter of the estates of three of the heirs — Arthur Jones, Sterling Jones and Judith Jones, all of Waukesha, Wisconsin — who are minors. A sale of the whole of the above described real estate by your Administrator, rather than a sale of a part and assignment of the residue to the heirs, will avoid a multiplicity of suits, will reduce the expense in connection with the sale and expedite the time in which proceeds from the sale may be distributed to the heirs; that necessity and the interests of the Estate require the sale of the whole of the above described real estate.” (Emphasis supplied.)
The prayer was for an order authorizing and directing sale of the above real estate at private sale.
The order of the probate court recited that notice of hearing had been duly given as provided by law and the order of the court, and that the court after hearing the evidence and being advised in the premises found the allegations had been proved in particulars substantially as are included in the allegations quoted above, and that the six tracts of real estate should be sold at private sale. In a negative way it is noted that the order contains no provision for any precedence in order of sale, or that only enough real estate be sold to pay the reasonable funeral expenses, expenses of last sickness, costs of administration, taxes and debts chargeable against the decedent’s estate.
It is not necessary that we review the contract between the administrator and Emick for the sale of the real estate, the report of the sale to the probate court by the administrator, nor the confirmation of the sale by the probate court.
The answer admitted the facts pleaded, denied that a merchantable title had been tendered and in effect alleged that the order of sale made by the probate court was void for want of authority.
The parties stipulated that in the pleadings all facts are set forth necessary for a determination of the questions of law involved.
In its journal entry of judgment the district court stated the issue arose out of G. S. 1947 Supp. 59-301, 59-1410, 59-1412 and 59-2303, which it.reviewed in manner similar to that contended for by the appellee as hereafter discussed, and it concluded that under the statutes there was no specific prohibition against the sale of all of the real estate of a decedent if a sale of a part was necessary to pay debts; that the probate court had power and authority to determine the fact as to whether a sale of a part of the real estate would result in manifest injury to the balance as permitted under 59-1412, and that, having the power to determine the fact, it had power to make an order to sell all of the real estate if such an order was within the terms of the petition; that the probate court had the power to make the order of sale under consideration, and those having the right to object to the order as made must do so by appeal ; that the time for appeal had expired and the order had become final and could not be attacked collaterally by the defendant in the proceeding under review; that the title tendered by the administrator was merchantable upon the issues raised by the pleadings and that plaintiff should have judgment against the defendant. In due time the defendant appealed.
We first notice appellee’s argument in support of the trial court’s judgment, which, we note, is consonant with the review made by the trial court in the journal entry of judgment, and which, in general, he presents under two heads: (1) That the probate court had jurisdiction, and (2) that no appeal having been taken, the order of sale made by the probate court was final and conclusive and not subject to collateral attack.
With respect to the second proposition, appellee directs our attention to sections of the probate code dealing with appeals to the district court and certain decisions treating of the necessity of ap peals and the finality of orders unappealed from, but we shall not review any of them, for we think it may be conceded that if the probate court, acting in the field of its jurisdiction, makes an order which it has power and competence to make within the powers conferred upon it, its judgment may be reviewed only on appeal, and may not be collaterally attacked.
The gist of appellee’s argument under the first proposition is that under the probate code, probate courts have original jurisdiction to direct and control the official acts of administrators, to settle their accounts and to order distribution of estates, to determine the heirs, devisees and legatees of decedents and that such courts shall have and exercise such equitable powers as may be necessary and proper to hear and determine any matter properly before such court (59-301 [3], [5], [12]); that it is provided under 59-1410 that an administrator may sell real estate of a decedent whenever the sale is necessary for the payment of reasonable funeral expenses, expenses of last sickness, wages of servants during the last sickness, costs of administration, taxes, debts or legacies charged upon the real estate, and under 59-1412:
“Whenever a sale of some part of the real estate is necessary and by such sale the residue thereof would suffer manifest injury, the sale may be of the whole or such part thereof as necessity and the interests of the estate require.”
Our attention is also directed to 59-2303 and 59-2304 providing the procedure to be followed in selling real estate for the purposes above noted, as well as to Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349; Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386; and certain cases referred to therein treating of the jurisdiction of the probate court and the equitable powers of it.
All of the foregoing leads to appellee’s contention that the probate court had jurisdiction of the subject matter which was the sale of the real estate, that it had jurisdiction over the heirs who were the parties involved and that it was for the probate court to decide what property should be sold, and that having all of the pertinent facts before it, considering the large number of heirs, the possibility of a multiplicity of suits if all the property was not sold by the administrator, as well as other matters (not set forth in his argument) which the court had a right to consider in the exercise of its equity powers, it had the right to decide that necessity and the best interests of the estate, including those interested in it, required the sale of the whole property, and that the heirs, who were the only parties interested, were obviously satisfied with the decision as they did not appeal.
The appellant’s contentions as to why the probate court did not have jurisdiction to make the order of sale need not be separately set forth as they are included and considered in what is later said.
In a preliminary way we note that it is provided in the probate code that where a resident of this state dies intestate, that subject to homestead rights and certain allowances not here applicable and to the payment of reasonable funeral expenses, expenses of last sickness and costs of administration, taxes and debts, his property passes by intestate successsion (59-502) and to those persons and in the shares provided in 59-504 to 59-508, both inclusive. While the administrator has a right of possession until the estate is settled or until delivered by order of court to the heirs (59-1401), under the first section mentioned, the property passes to the heirs, subject only to be taken in a statutory manner for statutory purposes. Insofar as an administrator is concerned the only statute authorizing him to sell real estate is 59-1410 and under it he may sell real estate only for the purposes of paying reasonable funeral expenses, expenses of last sickness, wages of servants during the last sickness, costs of administration, taxes or debts. It will be observed that an administrator may sell real estate only for the purposes to which the statute declares the heir’s interest is subject. Under one condition the administrator may sell more of the heir’s real estate than is necessary to accomplish the above purposes and that is provided under 59-1412, quoted above, and on which appellee places great reliance, and which provides for sale of more than is actually necessary to pay the above charges when by such sale the residue would suffer manifest injury. What construction shall be placed on this statutory power of the probate court? It is observed that under 59-1405 it is provided that (all of) the property of a decedent, except the homestead and allowances to a surviving spouse, shall be liable for the payment of his debts and other lawful demands against his estate, and unless otherwise provided by a will shall be applied in a stated order. Insofar as an intestate estate is concerned, personal property is first appropriated to the statutory purpose and it is especially noted that under 59-1407 personal property may be sold (1) whenever necessary for the payment of debts and other items; (2) when a division thereof cannot be made in kind to those entitled thereto; or (3) when the sale is to the best interest of the estate. No such language as is included in (2) and (3) just noted nor anything equivalent thereto may be found in 59-1410 or 59-1412 or other sections of the code dealing with sale by the administrator of the real estate and it would be unwarranted for this court, under the guise of construing the statutes, to write such conditions into the provision for the sale of real estate. Stated in another way, the probate court may not order the sale of any real estate because division thereof may not be made in kind, nor because sale thereof might be for the best interests of the estate. The situation thus disclosed is that the probate court has jurisdiction to first sell the personal property for the purpose of meeting the allowable statutory charges against the estate and if the proceeds thereof be not sufficient to pay those charges to then sell sufficient real estate and no more for that purpose. It is recognized that the sale of a tract of real estate may produce some excess proceeds and it is provided by 59-14.10 that such portion of the proceeds of sale shall be distributed to the same persons and in the same shares as if it had remained real estate —a matter of importance where devised real estate is being sold, but mentioned here only to point out the statutory provision.
In 59-1412 another situation is recognized. Sale of real estate for the purpose of paying the statutory charges is necesary, but the sale of a single tract will produce more than is necessary. The sale of a portion thereof, however, will produce manifest injury to the portion not sold. In such case sale may be had of the whole tract. It is quite evident the purpose is to prevent injury to the heirs by harm to that part otherwise going to them and not necessary for the payment of the statutory charges. In our opinion, it was not intended by the last mentioned section to authorize an order of sale of the whole of a decedent’s real estate merely because some part of it was subject to sale to raise funds to pay statutory charges. The power of the probate court to make an order of sale of real estate went no further than to sell only what was necessary to pay statutory charges against it, and any order made to sell other and separate tracts not necessary for that purpose was beyond the jurisdiction and power of the court and was. void.
Taking up the order of sale under consideration, as well as the language of the petition on which it was based, it is apparent that the sale of all six tracts of real estate was unnecessary to raise funds to pay the statutory charges, that the sale of some one or more of the tracts was beyond the court’s power, and that the order was therefore viod. It is also apparent the order cannot be otherwise justified for it appears that the sale of any one of the six distinct tracts of real estate could not result in manifest injury to any of the other tracts. It is also apparent that the allegations as to the number of heirs and their difficulties in selling their inheritance present nothing for the consideration of the court under the guise of the exercise of equitable powers. Such equitable powers as the probate court possesses are only to be exercised in hearing and determining any matter properly before the court and in which it has jurisdiction to act. See In re Estate of Hoover, 156 Kan. 31, 131 P. 2d 917. It is not necessary that we discuss the sufficiency of the allegations, treated as facts, to constitute any ground for interposition of any equitable powers.
Our conclusion is that the order of sale under consideration was beyond the power and jurisdiction of the probate court and therefore null and void, and that being so, the defendant could properly raise the question in the district court; that the district court erred in rendering judgment in favor of the plaintiff and its judgment should be reversed and the cause remanded with instructions to enter judgment for the defendant, and it is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages brought against a jeweler by a customer who claimed that a diamond in a ring left by him with the jeweler for remounting was substituted for a diamond of less value. A jury trial resulted in a verdict for plaintiff, upon which judgment was rendered. Defendant has appealed.
In the petition, filed November 7, 1946, plaintiff alleged that he was a resident of Marion county; that defendant was a resident of Wichita engaged in the business of buying, selling and resetting of diamonds in rings and other jewelry, and advertised himself as an expert in such work; that on September 14, 1946, he was the owner of a certain perfect white diamond of the value of $850 which was set in a ring worn by him, and that the stone needed resetting; that he went to defendant at his place of business in Wichita and requested him to have the diamond reset in the ring; that defendant took the ring and diamond, agreeing to reset it and return it to plaintiff; that about four days later defendant returned the ring to plaintiff, but in the ring he either maliciously, fraudulently, or through gross negligence set in the ring in the place of the diamond which was delivered to him by plaintiff a diamond of such inferior quality that it was of the value of not exceeding $100; that plaintiff returned the ring and diamond to defendant and told him it was not his diamond and that apparently it was placed in the ring by mistake; that defendant, without provocation, became insulting, abusive and threatening and ordered plaintiff out of his place of business, and that defendant had either fraudulently or maliciously or by gross negligence converted plaintiff’s diamond to his own use, and either has it in his possession or has sold or otherwise disposed of it; that the diamond set in the ring returned to plaintiff has no value to plaintiff, and the same was tendered into court. The prayer was for judgment against defendant for $850. The petition contained a second cause of action, making the first a part of it, and again alleged the wrongful, unlawful, fraudulent and deceitful acts or gross negligence of defendant, for which he prayed judgment for exemplary damages in the sum of $2,500. On January 13, 1947, defendant filed a motion asking that plaintiff be required to separately state and number his several causes of action in the petition under the title of “First cause of action,” and to separately state and number his several- causes of action in his petition under the title of “Second cause of action.” This motion was denied and on March 22 defendant filed three motions. The first was to require plaintiff to elect upon alleged inconsistent remedies, a motion to strike various portions of the petition, and a motion for an order for plaintiff to make his motion more definite and certain in various particulars. These motions were denied in part for the reason that they were filed too late, after the motion to separately state and number had been argued and overruled. Defendant then demurred to the petition upon the ground that the court had no jurisdiction of the person of defendant or the subject matter of the action; that several causes of action were improperly joined, and that the petition does not state facts sufficient to constitute a cause of action. This demurrer was overruled and defendant filed an answer which consisted of a general denial.
Plaintiff’s testimony need not be summarized further than to say that it fully supported the allegations of his petition. On cross-examination he was asked if he made personal property tax returns for the years 1944 and 1946. That for 1944 was not admitted in evidence, but we are told it was exhibited to the jury. It did not show any return of a diamond for taxation. The 1946 statement showed the return of a diamond of the valuation of $150. This was admitted in evidence over plaintiff’s- objection.
John R. Barrier, called by plaintiff, testified to his qualifications as a jeweler and that he had examined the stone in the ring returned to plaintiff by defendant. He estimated its size as 40 to 50/100 of a karat. He said it was of fair color for an average stone, but had a large imperfection of carbon in the top of it, and he placed its value at around $200.
V. J. Lanman, called by plaintiff, testified he had been in the jewelry business about fourteen years and had a jewelry store at Marion, Kan.; that he had cleaned plaintiff’s diamond; that it was a stone about 55 or 60/100 of a karat; “it was a perfect blue white stone with no defects at all.” In September, 1946, he was cleaning the diamond and observed that it was loose in the setting. He was not equipped to set diamonds and advised plaintiff to take it to the defendant; that shortly after that plaintiff came in with the diamond which had been returned to him by defendant; that “it isn’t the original diamond I saw”; that the retail price of the original diamond was $650 to $750, while the other diamond would retail from $200 to $250.
Defendant called Cleon A. Whitney as a witness, who testified he had been in the jewelry business in Wichita since 1900 and bought and sold diamonds; that he had known defendant for twenty years and his reputation for truthfulness, honesty and integrity in his business was excellent.
Harvey A. Williams, called by defendant, testified he had been in the jewelry business in Wichita since 1933' and that he does a considerable amount of diamond setting; that he had been acquainted with defendant since he had been in business and that defendant’s reputation for truthfulness, honesty and integrity among the jewelers of Wichita is the very finest. He examined the diamond which defendant had returned to plaintiff and testified that it wasn’t a perfect diamond; that there was a fissure or carbon in the surface of the stone; that it was a blue white commercial stone of about 45/100 of a karat, and the fair market value of it in September, 1946, was $250. He further testified that “A perfect blue white diamond weighing 60/100 karat would retail for $420 plus twenty percent tax and two percent tax.”
Ed Reimer, called by defendant, testified he was in the retail manufacturing jewelry business mounting and setting stones; that he had examined the diamond received by plaintiff from defendant: “Its weight is 42/100 karat and its color is blue white. There is a fissure in it. I have known Mr. Berkowitz about six years. His reputation for honesty, truthfulness and integrity is good.”
Defendant testified that he had lived in Wichita and had been in the jewelry business there for forty years and in his present location twenty-three years; that his business consisted of jewelry repairing, manufacturing jewelry and diamond setting; that he averaged setting four or five diamonds a day; that he first met the plaintiff several years ago and had been acquainted with his wife; that in September, 1946, plaintiff came into his store and asked him to tighten a stone in his ring, and he told plaintiff he would have to put a new head on the ring in order to make the stone safe, and that he would send the ring to him within a few days. He testified he examined the stone while plaintiff was there and saw imperfections in it consisting of a black speck with a fissure that a pin point could be put into; that he did not say anything to plaintiff about those imperfections. He contended very strongly that the diamond brought to him by the plaintiff was the same one which he reset and returned to the plaintiff. He testified to the plaintiff’s coming back to his store in a few days and contending that the stone he received was not the one he had left with defendant;'that in fact plaintiff was there on two different occasions, and that finally defendant told him to get out when plaintiff accused him of changing the stone. On cross-examination he testified his two sons were in business with him and for the past five or six years he had carried a stock of about $20,000. He was asked if he had not returned the merchandise stock to the assessor at a valuation of less than $3,000. There was an objection to this, and the witness was uncertain as to how his stock of merchandise had been listed. In rebuttal plaintiff called the deputy assessor, who brought records showing that defendant’s stock had been listed at $2,000 in 1946 and at $2,500 in 1947. The trial court admitted this evidence as tending to impeach or discredit the testimony of the witness.
In this court appellant first contends that his demurrer to plaintiff’s petition should have been sustained. We think the trial court correctly interpreted the petition as an action in tort for the wrongful taking of plaintiff’s ring and converting it to his own use and substituting one of inferior value for it.
Appellant’s principal argument is that the court erred in permitting counsel for plaintiff to cross-examine defendant upon the assessed value of his stock of merchandise. It must be remembered that defendant started that practice by cross-examining the plaintiff upon the assessed value of his diamond; therefore he is not in very good position to complain of plaintiff’s using similar tactics with reference to defendant’s stock of merchandise. The court had admitted the evidence in both instances for the same reason, namely, on the theory that it might tend to impeach or discredit the testimony of the witnesses. We have no occasion here to write at length on the prudence or advisability of such testimony. The instructions are not brought up in the record and no complaint is made of those given, nor is there any contention that the court refused instructions requested by defendant. We assume, therefore, that the trial court in its instructions told the jury the purpose of this type of evidence and the limitations which should be applied in considering it, and that the court did so correctly.
The case was purely a fact case and there is ample evidence to suport the verdict and judgment. We find no error in the record which would justify a reversal. The judgment of the trial court therefore, is affirmed. | [
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The opinion of the court was delivered by
Arn, J.: This is an action to cancel a deed and to quiet title to 200 acres of Decatur county land. Plaintiff is the guardian of the grantor of the purported deed which was executed prior to said grantor’s adjudication as an incompetent person. The defendants are the only heirs of the grantee, B. S. Bowman, now deceased. The district court held it was without jurisdiction, the determination of validity of the deed being a matter for the probate court. Accordingly, the district court dismissed the action, and plaintiff guardian has appealed.
The petition filed on June 26, 1948, alleged in substance that on June 16, 1948, William E. Hoppas was adjudged an incompetent person and Moss J. Hoppas was on said day appointed guardian of his person and estate; that on and prior to August 13, 1938, William E. Hoppas was the owner in fee simple of a certain 200-acre tract of land, and on August 13, 1938, one B. S. Bowman procured from William E. Hoppas, without any consideration therefor, a warranty deed to said 200 acres; that said deed to Bowman was filed of record September 30, 1938, and a copy is attached to the petition; that William E. Hoppas during his lifetime has never been capable of comprehending the nature and value of his property, nor has he at any time been capable of transacting ordinary business; that on August 13, 1938, he was not possessed of sufficient mind to understand, in a reasonable manner, the nature and effect ef a deed or other legal instrument-relating to the ownership, control, or disposition of real estate; that the plaintiff as guardian of William E. Hoppas expressly disaffirms said deed of August 13, 1938, and all other contracts or agreements between William E. Hoppas and B. S. Bowman or the defendants for the reason that William E. Hoppas has always been an incompetent person of unsound mind, and such fact was known to B. S. Bowman at the time of procuring said deed; that Bowman is deceased and his only heirs are the defendants; that since the date of the deed, August 13, 1938, B. S. Bowman and the defendants have collected rents and profits from said 200 acres; that the plaintiff as guardian of William E. Hoppas is now in possession of said real estate and claims ownership of said property as guardian for said William E. Hoppas. The prayer of the petition was that the deed be declared void and the title quieted.
Defendants’ answer, among other things, admits plaintiff’s capacity as guardian for William E. Hoppas, the execution of the deed on August 13, 1938, that B. S. Bowman is now deceased, with the defendants as his only heirs, and that they have received rents from the 200 acres since the conveyance by William E. Hoppas to B. S. Bowman. The answer denies the conveyance was without consideration and alleges it was made for value. Defendants then allege that on September 15, 1933, William E. Hoppas made, executed and delivered to the Dresden State Bank, of which B. S. Bowman was then cashier and acting manager, his promissory note for $2,500 due in three years with interest at seven percent from date, secured by a real estate mortgage on the 200 acres of land; that the mortgage was duly filed of record on September 27, 1933; that William E. Hoppas defaulted in the payment of interest on the note and mortgage, and in the payment of taxes, and on August 13, 1938, executed and delivered the deed to the 200 acres of land to B. S. Bowman, who paid the Dresden State Bank the principal and interest due on said note and paid the back taxes due from 1933 to 1937; that thereupon all evidence of the debt of William E. Hoppas to the Dresden State Bank was extinguished and canceled; that William E. Hoppas continued to occupy and farm the said 200 acres as the tenant of B. S. Bowman, and paid rent therefor to B. S. Bowman until his death on December 31, 1945, and thereafter paid rent to the defendants; that on September 30, 1938, the Dres-' den State Bank gave William E. Hoppas a receipt for the $2,500 in full satisfaction of the mortgage. It is further alleged that William E. Hoppas has retained the $2,500 all this time and that neither he nor any other person acting for him has ever offered restitution. The answer then alleged all the details of the administration of the estate of B. S. Bowman in the probate court of Decatur county, which was concluded with the making of the final settlement on January 18,1947; that plaintiff’s claim was properly one against the estate of B. S. Bowman, but that no claim was made during the process of administration of that estate, and it is now barred; that the district court of Decatur county is now without jurisdiction to determine plaintiff’s claim.
Plaintiff replied by alleging that the mortgage of September 15, 1933, referred to in defendants’ answer, was null and void because of the incompetency of William E. Hoppas, and that such fact was known to the Dresden State Bank and to B. S. Bowman on September 15, 1933, and for a long time prior thereto; that there was no consideration for the mortgage; that if B. S. Bowman obtained the deed as alleged in the answer, it is void as against public policy.
Upon the aforesaid pleadings, the case came on for trial and the parties entered into the following stipulation:
“Thereupon it was stipulated by counsel for both plaintiff and defendants, that for the purpose of argument and determination of the question of jurisdiction, that the allegations of the incompetency of William E. Hoppas contained in plaintiff’s petition and the allegations concerning the knowledge of said incompetency by B. S. Bowman at and before the time of obtaining a deed from said William E. Hoppas, as alleged in plaintiff’s petition, were true. It also being stipulated for the same purpose of argument and determination of the question of jurisdiction, that the allegations of defendants’ answer that B. S. Bowman was dead and that the estate of said B. S. Bowman had been duly probated and closed, were true.”
The district court then, upon the pleadings and the stipulation, determined that it did not have jurisdiction of the subject matter of the controversy and dismissed plaintiff’s action. Plaintiff appeals.
We omit any reference to the several pretrial motions and applications, the court’s rulings thereon, and the motion for new trial, because they are all immaterial to a determination of the law question involved here.
Appellant cites persuasive authority for the general proposition that a deed procured without consideration from an incompetent person by one who knew of his disability, is void. However, the circumstances of the instant case make the question considerably more involved than as just stated. Be that as it may, the question before us is not whether the deed may have been void, but rather it is a question of what is the proper forum to determine its validity.
Here a grantor is challenging the validity of his warranty deed executed and delivered to a grantee since deceased. The grantee had promptly recorded the deed, and for more than seven years prior to his death, had exercised dominion and control over the real estate, and had received rents and profits from it. Upon grantee’s death, his estate and his heirs exercised the same control over it for another two and a half years until grantor sought to challenge the validity of his deed by an action in the district court commenced some seventeen months after the estate of the grantee had been closed. Since the enactment of the probate code (1939), a grantor who challenges the validity of his warranty deed executed and delivered by him under all these circumstances, must institute his proceeding to challenge such deed in the probate court where the estate of the deceased grantee is being administered in the manner and within the time prescribed by the code. Otherwise a judgment of the probate court decreeing the deceased grantee to be the owner of such real estate, and decreeing it to be a part of the assets of the decedent’s estate, must be construed as decisive of the rights of the parties under the instrument of conveyance and to preclude the grantor (even though an incompetent) from thereafter challenging its validity. Should it be suggested that insufficient emphasis has been placed upon the fact of grantor’s incompetency, we call attention to a change made by the legislature of 1939 in the enactment of the new probate code. The words “saving to infants, persons of unsound mind . . .” in the old code (section 22-702, G. S. 1935) were eliminated from the new probate code (section 59-2239, G. S. 1947 Supp.).
Under the circumstances narrated above, all indicia of title was in B. S. Bowman on the date of his death, by the acts of the grantor himself; and, having created that situation, it was necessary that the grantor take some affirmative action to challenge his deed to Bowman either prior to Bowman’s death or in the Bowman estate while it was being administered in the probate court. Upon the death of B. S. Bowman, the probate court was the proper forum to determine the validity of the warranty deed of August 13, 1938, from Hoppas to Bowman. The 200 acre tract was assigned to the devisees by order of the probate court. So that court did, in effect, determine the validity of the deed, and the final settlement made on January 18, 1947, is now conclusive. That judgment was not challenged by this appellant until the instant action was filed in the district court some seventeen months later. The decree of the probate court was final, and the action in the district court was properly dismissed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action brought by the appellant against the appellee for an accounting and to recover an amount claimed to be due him growing out of the sale of his interest in a partnership that existed between the parties prior to its dissolution on July 11, 1942. For convenience they will be referred to as plaintiff and defendant.
The parties had been friends for some time and plaintiff was a contractor and builder while defendant was primarily an office and retail man. Both were without any substantial assets but agreed to go into the lumber business at Great Bend. This arrangement went along for some time and apparently some dissatisfaction arose between them and they decided to discontinue and dissolve the partnership. An inventory of the physical assets of the business was taken under the supervision of the defendant. The accounts receivable were ascertained and determined between the parties to be in the amount of $27,822.07, one-half of which sum belonged to each of the parties. There was no outstanding indebtedness of the partnership but plaintiff was indebted to the firm in the sum of approximately $10,000 and he also had some outstanding obligations consisting of small accounts, some taxes and some wages. With these matters all in mind the parties entered into a written agreement of dissolution under date of July 1,1942, as follows;
“Whereas, the undersigns, J. M. McIntyre and Ross L. Benson, have been doing business in Great Bend, Kansas, as partners under the firm name of B. & M. Lumber Company; and,
“Whereas-, the undersigned parties desire to dissolve partnership and reach a division of the assets of said Lumber Company; and,
“Whereas, there are outstanding accounts in the sum of $27,822.07 due to said partnership, and all of the partnership’s debts, excepting the 1941 and 1942 taxes, are paid. '
“Now, therefore, it is agreed as follows:
“Second. Benson does hereby sell, assign, convey and set over unto McIntyre all of the interest of Benson in and to the stock, ground leases, fixtures, sheds and equipment of all kind of the B. & M. Lumber Company, excepting only the trucks mentioned in the paragraph above, for the sum of $20,128.66, payable as follows:
“A. The sum of $6,217.62, cash.
“B. The balance of the purchase price shall be paid by delivering to Benson one-half of the proceeds of the outstanding accounts as said accounts are collected. It is further agreed that one-half of the 1941 taxes and one-fourth of the 1942 taxes upon the business of the partnership shall be deducted by McIntyre from Benson’s share of the amounts collected from the outstanding accounts.
“Third. It is further agreed that the partnership is hereby dissolved.
“In witness whereof, the parties have hereunto set their hands this 11 day of July, 1942.
“J. C. McIntyre, “Ross L. Benson.”
Later the plaintiff moved to Colorado and defendant conducted the business, during which time he made collections of outstanding accounts and sent remittances to plaintiff from such collections.
The matter ran along and later plaintiff brought suit to recover the sum of $13,911.04 claimed to be due him and for an accounting. For reasons which will appear later the pleadings of the parties are not summarized but it is sufficient to state that the claim of plaintiff is that under the terms of their written agreement above set forth he was entitled to the sum of $20,128.66 plus one-half of the accounts receivable, less certain deductions such as taxes paid by defendant for him and after a certain trade discount agreed upon by the parties was deducted from the amount of accounts receivable, leaving a total sum due plaintiff in the amount of $33,035.63.
Various exhibits in the nature of accounts are set out in the abstract and counter abstract and while we have carefully examined them it is unnecessary to discuss them in detail for at the trial in the lower court it was stipulated and agreed between the parties that defendant had paid to plaintiff or for and on plaintiff’s behalf the sum of $19,381.42.
With this as a starting point, let us examine the facts from» the standpoint of defendant. His contention is that under the terms of the written agreement the sum of $20,128.66 was all that was due plaintiff for the latter’s interest in the business; that the sum of $6,217.62 of said purchase price was payable in cash forthwith and the balance to be paid plaintiff from the proceeds of the outstanding accounts as they were collected. It will be noted that one-half of the total of the outstanding accounts, plus the sum of $6,217.62 equals the amount claimed by defendant to be due plaintiff for the latter’s interest in the business. In this connection it also should be noted that the parties agreed there was a trade discount in the amount of $2,156.54 to be deducted from the total amount of accounts receivable, that taxes had been paid by defendant for plaintiff in the sum of $154.98, and that there was due plaintiff from defendant the sum of $229.19 by way of an adjustment on past wages. It thus would appear that defendant owed plaintiff the sum of $12,832.77 for plaintiff’s one-half of the net amount of accounts receivable, less the item of taxes paid by defendant for plaintiff in the amount of $154.98, plus the item of $229.19 as adjustment on wages, plus the sum of $6,217.62 which was payable at the time in cash, making a total amount due plaintiff of $19,124.60, and defendant prayed judgment in the amount of $256.82, the amount which he had allegedly overpaid plaintiff.
In view of plaintiff’s admission that he has already received from defendant the sum of $19,381.42, which amount equals the total defendant claims plaintiff was entitled to, plus the alleged overpayment of $256.82, it can readily be seen that really the only issue before us is the interpretation of the written agreement entered into between the parties.
The trial court found that the value of one-half interest in the accounts receivable, fixtures, equipment and other property amounted to $20,128.66, which amount the plaintiff agreed to take from defendant in settlement of the purchase price of plaintiff’s half interest in the lumber yard, and further found from the evidence that defendant had overpaid plaintiff in the amount of $256.82, for which sum judgment was rendered in favor of defendant.
We will not extend this opinion with a detailed discussion of the various accounts and exhibits which were introduced in evidence, but they, together with the testimony, have been examined in detail and we are of the opinion that the findings and judgment of the lower court, are amply supported by sufficient competent evidence. As heretofore mentioned, plaintiff’s chief contention is that he was entitled to the sum of $20,128.66 and in addition, thereto one-half of the accounts receivable as they were collected. We cannot agree with such contention. From the very terms of the agreement between the parties it is clear that plaintiff was to receive the total sum of $20,128.66 for his interest in the business and it was to be payable — $6,217.62 in cash, with the balance payable out of the outstanding accounts as they were collected. In this connection also the evidence is clear that throughout all of their dealings the parties considered the business, including the outstanding accounts, to be worth approximately $40,000. In fact, the plaintiff himself testified as follows:
“I summed up what I thought the value of the yard — we had taken in $40,000, or close to it, was supposed to be somewhere near around our profit. I had that estimated. I told Mr. McIntyre I would take $20,000 for my share or I would give him $20,000 for his share, and I would keep the outstanding accounts.”
On January 22, 1945, plaintiff wrote to defendant from Boulder, Colo., concerning the matter of the final windup of their affairs and in this letter stated that he had received around $15,000 and called defendant’s attention to the fact that there was a balance of $5,128.66 still due. Four days later he again wrote to defendant and stated as follows:
“I sold you the yard for $20,128.66 and we both signed the contract to that effect. I don’t expect to release my interest in the yard, till I receive that amount.
“Receiving % the amt. of the accounts as they came in, was one way of paying me, and I excepted it as a means to help you buy the yard.”
Summing up these matters, we think the lower court was correct in finding that the total amount due plaintiff for his interest in the business, including the outstanding accounts, was the sum of $20,-128.66; that after certain deductions and discounts were taken into consideration plaintiff was entitled to receive the sum of $19,124.59, and since plaintiff admitted that he had received $19,381.42, the defendant was therefore entitled to judgment against plaintiff in the amount of $256.82 on account of such overpayment. Plaintiff also complains of the ruling of the lower court that all uncollected accounts receivable should be the property of defendant but such contention is without merit for the simple reason that since plaintiff had received all that was due him he is not in any position to assert ownership to such accounts as were yet outstanding.
The judgment of the lower court was clearly correct and it is hereby affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a proceeding under G. S. 1947 Supp. 24-498, by which the above named appellees, as petitioners, sought to have their lands detached from the appellant drainage district. The district was organized in 1935 under the drainage act of 1905 as amended (G. S. 1935, 24-401 et seq.), and improvements have been made therein. In October, 1947, appellees filed their petitions with the board of county commissioners, which alleged the above facts and in which they asked to have their respective lands detached and removed from the drainage district “because such lands are being harmed and damaged and not benefited by improvements made by such drainage district, and in addition thereto said land is being taxed to pay for such improvements which are causing such harm and damage.” Notice was given, as required by statute, and after a hearing the county commissioners in due time “ordered, adjudged and decreed that the petitions ... to detach land from The Douglas County Kaw Drainage District, should be and are hereby allowed, and the land hereinafter described be and is hereby detached from The Douglas County Kaw Drainage District, effective March 1, 1948, subject, however, to be taxed for the purpose of paying any outstanding bonded indebtedness of said Drainage District and the interest thereon, until such indebtedness has been retired.”
From this order the drainage district appealed to the district court. The petitioners moved to dismiss the appeal on the ground, among others, that the court did not have jurisdiction to hear and determine the appeal. The court denied that motion, and in doing so expressed great doubt of the court’s jurisdiction, but prudently heard the matter cte novo in order that this court, if an appeal should be taken from its ruling, should have the whole matter before it. After hearing the evidence and the argument of counsel the court made the following finding and rendered judgment in harmony therewith:
“The Court finds that all the facts, statements, allegations and averments contained in the petitions are true and correct; that there might be some slight possible benefit come to a part of the land hereinafter described, in the future, but that during the existence of the Drainage District up to the present time, such land has been harmed and not benefited; that the findings, conclusions and judgment of the Board of County Commissioners of Douglas County, Kansas, allowing said petitions are correct and that said lands should be detached from said Drainage District.”
From this judgment the drainage district has appealed and contends: (1) That the statute is invalid for various reasons; (2) that the evidence is insufficient to support the judgment; and (3) that the order of the board of county commissioners is not supported by sufficient findings.
The statute in question (G. S. 1947 Supp. 24-498) reads:
“That where any lands have been included in a drainage district organized under the drainage act of 1905 or acts amendatory thereof or supplemental thereto and such lands have been harmed and not benefited by improvements made by such drainage district, the owners of such lands may file a petition with the board of county commissioners, describing the lands and naming the owners thereof and asking that such lands be detached from the drainage district. Upon the filing of such petition, the board of county commissioners shall fix a time and place for a public hearing on such petition and shall give notice thereof by one publication in the official county paper at least five and not more than ten days before the date fixed for such hearing. At such hearing all persons in favor and opposed to such petition shall be given an opportunity to be heard. At or within ten days after such hearing the board of county commissioners shall enter an order allowing or denying such petition. In the event the board shall allow such petition and order the lands detached from the drainage district, such detachment shall be effective as of the first day of March next following such order: Provided, That if such drainage district has outstanding any bonded indebtedness at the time such detachment of territory becomes effective, the lands so detached shall continue to be taxed for the purpose of paying such bonds and the interest thereon until the same have been retired.”
Clearly it pertains to the drainage act of 1905 and became a part of the general law dealing with that act, which in sections G. S. 1935, 24-401 to 24-405, authorized the board of county commissioners to incorporate and organize a drainage district upon petitions presented to the board; provided for the hearing of those petitions, for the fixing of the time and place for such hearing, and how the hearing should be conducted. The statute in question deals with a matter not in the act of 1905, namely, that of detaching from the district lands which had not been benefited but in fact injured by the improvements made in the benefit district. The procedure for having that done follows substantially the procedure for organizing the district, that is, by petition to the board of county commissioners, a hearing upon the petition, and the fixing of the time and place for the hearing. Appellant’s contentions are that this procedure is invalid because the landowners, who alleged their lands within the district have not been benefited but have been damaged by the improvements made in the district, may sign such a petition; that the time of the hearing and notice to be given therefor are insufficient as a matter of law, and that the authority given to the board of county commissioners did not afford due process and is therefore unconstitutional. These contentions are without substantial merit. There was no contention at the time of the hearing before the board of county commissioners that there was any defect in the petition, or that the petitioners were not authorized to file such petition, or that the time fixed for the hearing or the notice thereof was inadequate to give all parties an opportunity to be heard. There is no contention now that any party who desired to be heard did not have an opportunity to do so. From the record it appears that everyone was satisfied with the procedure at that time.
There is no cross-appeal "and appellant argues we cannot consider the motion to dismiss the appeal in the district court. The point is not well taken. This court must always look to its own jurisdiction even though the question is not raised by either party. (Skoin v. Limerick, 50 Kan. 465, 31 Pac. 1051; Thrall v. Fairbrother, 1 Kan. App. 482, 40 Pac. 815; Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; In re Estate of Pallister, 159 Kan. 7, 9, 152 P. 2d 61; In re Estate of Dix, 161 Kan. 364, 168 P. 2d 537; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535; Pulliam v. Pulliam, 163 Kan. 497, 498, 183 P. 2d 220.)
If the district court had no jurisdiction of the subject matter of the appeal to it this court could not acquire such jurisdiction by an appeal from the ruling of the district court. We cite a few of the many cases upon this point: Auditor of State v. A., T. & S. F. Railroad Co., 6 Kan. 500; Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631; Ball v. Biggam, 43 Kan. 327, 23 Pac. 565; Armour v. Howe, 62 Kan. 587, 64 Pac. 42; Parker v. Railway Co., 70 Kan. 168 (Syl. 4), 78 Pac. 406; Silven v. Osage County, 76 Kan. 687, 92 Pac. 604; McCracken v. Wright, 159 Kan. 615, 157 P. 2d 814; In re Estate of Crump, 161 Kan. 154, 166 P. 2d 684.
In this state an appeal is not a matter of right, but is governed by statute (Const., art. 3, §§ 5, 6). In Norman v. Consolidated Cement Co., 127 Kan. 643, 649, 274 Pac. 233, it was said:
“It has been determined that there is no vested right in an appeal, and appeals which had previously been allowed may be limited by later legislation or entirely withdrawn. (Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539.)”
Other cases to the same effect are Kent v. Comm’rs of Labette Co., 42 Kan. 534, 22 Pac. 610; Coffman v. Hall, 107 Kan. 188, 190 Pac. 761; Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 452, 10 P. 2d 893; Allen v. Glitten, 156 Kan. 550, 134 P. 2d 631. This list is not intended to be complete, but we deem it ample to sustain the rule which we regard as well settled in this state, that an appeal to this court, or to the district court, may be taken only in those cases for which some provision therefor has been made by statute. The statute here in question (G. S. 1947 Supp. 24-498) makes no provision for an appeal from the order of the board of county commissioners to the district court. We conclude, therefore, that the drainage district had no right to appeal to the district court and that the motion to dismiss the appeal should have been sustained.
There is another reason, if one is needed, for the same result. It is the general rule that the creation, enlargement, or diminution of political districts or municipal corporations is a legislative function properly to be determined by a legislative body rather than by the court. By our constitution (Art. 2, § 21) the legislature may confer upon the board of county commissioners such power of local legislation and administration as it shall deem expedient. By the statute in question the legislature did confer upon the board of county commissioners the authority granted by the statute in question. Normally there is no appeal to the courts from the legislative action of the legislative body. This question is discussed at some length in State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372, and cases there cited. See, also, annotation in 69 A. L. R. 266 and 28 C. J. S. 315. The authority given under the statute in question is the same type of authority as is given to the board of county commissioners for the organization of the drainage district under the drainage act of 1905 (G. S. 1935, 24-401 to 24-405). Examining our decisions annotated under those sections it will'be noted that none of them is an appeal from the order of the board of county commissioners creating the district. In any of the cases where the organization was questioned the action was brought by the state on the relation of the county attorney or attorney general. But we need not pursue this point further.
As previously indicated, we find nothing wrong with the judgment of the trial court if it had jurisdiction to try the case. Our conclusion, however, requires that the appeal here be dismissed with directions to the trial court to set aside its judgment and dismiss the appeal from the board of county commissioners. It is so ordered. | [
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Per Curiam:
This was an actiori to recover upon two promissory notes given to plaintiff by the defendants for the purchase of a thrashing-machine engine, separator, and a wagon and certain attachments. The' plaintiff held a mortgage upon this and other property, which it had foreclosed, and, after paying the expensed thereof, credited the proceeds on the purchase-price,* which according to its calculations left a balance due, amounting to $669.17 and interest, which it sought! to recover.
The answer claimed some additional credits, by reason of some small payments and the sale of other mortgaged property, which if allowed would have considerably reduced the amount of the plaintiff’s claim; The defendants by way of a cross-petition charged that when the plaintiff took possession of the engine/ separator and wagon this property was of the value of $650; that plaintiff advertised that a sale of this property would take place at a certain livery barn in the city of Mound City, at a date designated; that the property was sold at that time and place and purchased by the plaintiff for $75; that at the time the property was at Findley, twenty miles distant; that because of the absence of the property from the place of sale persons contemplating purchasing that kind of property were denied an opportunity of examining'it, thus defeating competitive bidding; and that the property was sacrificed to the plaintiff for a merely nominal sum. It was also charged that the property was then of the reasonable value of $650, and asked that this amount be adjudged a counter-claim against the plaintiff’s claim.
A verdict was returned, and judgment rendered, for the defendants. The only errors complained of in this court are that the court should have allowed the plaintiff’s motions for judgment on the pleadings and-for a new trial.
No reason is given why either of these motions should have been allowed, except this quotation from the mortgage: “Advertisement and sale according; to law being hereby waived.” No application is attempted to be made of this clause, and no suggestion is offered as to its importance or bearing upon either of the questions presented, and we are unable to apply it.
The mortgage contained a provision authorizing the mortgagee, upon default, to take possession of the mortgaged property and sell it without advertisement at public or private sale. Such a provision will not, however, protect the mortgagee from answering to the owner of the property for the value thereof, where it is shown that he has not acted in good faith in disposing of mortgaged property. He is a sort of trustee for the mortgagor, and is required to act in good faith and exercise care and diligence in selling the mortgaged property; otherwise he is chargeable with its reasonable value.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Henry S. Wallace petitions the court for the release of his son from imprisonment in the state industrial reformatory. He alleges that on August 9, 1906, Russell Arthur Wallace was adjudged by the district. court of Miami county to be confined in the reformatory when he was in fact less than fifteen years of age; that the judgment was given upon a plea of guilty, without inquiry as to his son’s age; and that his son was carried to the reformatory without the knowledge of the petitioner. It is contended that the court had no jurisdiction to sentence any person under sixteen years of age to the reformatory, and that, the sentence being void, E. E. Marshall, superintendent of the reformatory, has no authority to restrain the young man. In his return to the writ the superintendent sets up the judgment and commitment under which Wallace is held, which, after setting forth that Wallace and another enteréd a plea of guilty upon a charge of burglary and larceny, recites that “whereupon it is made to appear to the court that said defendants are between the ages of sixteen (16) and twenty-five (25) years, and have never heretofore been convicted of any offense punishable by confinement in the state penitentiary, etc.” There was a further recital that the court then proceeded to sentence them to the reformatory until discharged by the board of managers, but not to exceed the term qf five years, the maximum punishment provided by statute for the crime of which they had been convicted.
Upon the hearing the petitioner offered to prove that the young man was under sixteen years of age when the sentence was pronounced, but the state objected, and contended that in habeas corpus the judgment of the district court was conclusive; that the matter of age had been the subject of inquiry in the district court, where it was determined that the de fendants were over sixteen years of age; and that the decision, even if it was erroneous, cannot be reviewed or made the subject of inquiry in this collateral proceeding.
This proceeding is no more than a collateral challenge of a record of the district court. That record discloses that the question of the age of the prisoner was heard and decided by the court. The record imports absolute verity, and cannot be overthrown by parol testimony or impeached from without. If a mistake was made in deciding the question of fact it can only be corrected upon an appeal. The jurisdiction of the court and the legality of the sentence are open to inquiry in habeas corpus, and if it appeared from the face of the record that Wallace was less than sixteen years of age the sentence would be illegal and he would be entitled to a discharge in this proceeding. On the face- of the record the judgment appears to be valid. It has been held that “where a party is held under process issued on any final judgment of a court of competent jurisdiction the inquiry in habeas corpus is limited to the question, Was the judgment void, or has it been stayed, superseded, or otherwise spent its force?” (In re Rolfs, Petitioner, 30 Kan. 758, 759, 1 Pac. 523. See, also, In re Watson, Petitioner, 30 Kan. 753, 1 Pac. 775; In re Macke, Petitioner, 31 Kan. 54, 1 Pac. 785; In re Brown, 62 Kan. 648, 64 Pac. 78; In re Terry, 71 Kan. 362, 80 Pac. 586.)
It is urged that no offender under sixteen years of age can be imprisoned in the state industrial reformatory, and therefore that no court had power to sentence Wallace to this institution. It is true, as counsel contend, that under the act establishing juvenile courts delinquent children under sixteen years of age may never be committed to the state industrial reformatory. (Laws 1905, ch. 190.) This beneficent act is an exercise of the parental power of the state, the purpose being the care, custody and discipline of delinquent children in a manner approximating as nearly as may be proper parental care and control, and it was not intended that they should be treated or punished as criminals. The court is disposed to give the act a liberal construction,' with a view of carrying out its salutary purpose, but an examination of its provisions will show that it does not purport to extend the scope of inquiry, in habeas corpus nor to destroy the conclusive effect of final judgments.
In a final judgment of a court of general jurisdiction it has been decided that young Wallace was more than sixteen years old. The matter of his age was a jurisdictional fact, and it was also a litigated fact.' When Wallace was brought before the court the first question for consideration was whether he was over or under sixteen years of age. The act establishing a juvenile court itself provides for such an inquiry. It declares that if one under sixteen years of age shall have been arrested and taken before a judge of a court it shall be the duty of the judge to transfer the case to the juvenile court. (Laws 1905, ch. 190, § 11.) In another section it is provided that an appeal may be taken from an order made by the juvenile court to the district court, and, further, that “in all cases of felony the judge of the juvenile court may remand the person apprehended to the district or county court for trial.” (Laws 1905,. ch. 190, § 12.) When Wallace was brought before the district court it became necessary for the court to ascertain and decide whether he should be held for trial in that court or transferred to the juvenile court. The adjudication of that litigated fact is just as conclusive as any other involved in the judgment, and cannot be set aside except in a direct proceeding.
The general rule is that when a court passes upon a question of fact which it has a right to determine its erroneous decision of the question is not open to collateral- attack. It has been held that where jurisdiction of a court depends upon a finding of a particular fact the exercise of jurisdiction implies the finding of that fact. (Thornton v. Baker, 15 R. I. 553, 10 Atl. 617, 2 Am. St. Rep. 925.) . No implication need be indulged here, as there was an express finding of the fact upon which jurisdiction rests. Where jurisdiction depends on a fact that is litigated in a suit, and is adjudicated in favor óf a party who avers jurisdiction, then the question of jurisdiction is judicially decided and the judgment record is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding. (Bloom v. Burdick, 1 Hill [N. Y.] 130, 138, 37 Am. Dec. 299.)
In California it was held that where the service of a particular process was necessary to give a court jurisdiction the determination of such court that the process had been served is not open to collateral attack. In the syllabus of the case it was stated that “when jurisdiction depends upon litigated facts an adjudication of the court that the requisite facts exist is conclusive evidence of jurisdiction until vacated or set aside in a direct proceeding, and cannot be contradicted upon a collateral attack.” (Ex parte Sternes, 77 Cal. 156, 19 Pac. 275, 11 Am. St. Rep. 251. See, also, The State v. Page, 60 Kan. 664, 57 Pac. 514; Matter of Charles Mason, 8 Mich. 70; Ex parte Williams, 87 Cal. 78, 24 Pac. 602, 25 Pac. 248; Ex parte Kaufman, 73 Mo. 588; 21 Cyc. 326; 2 Freeman, Judg., 4th ed., § 619.)
If a mistake .was made in the matter of determining the age of Wallace it could have been cured in the first instance by the district court, or upon denial there it could have been corrected on appeal to this court. Counsel say that the petitioner did not learn of the plight- of his son until the time for review had passed, and that if he had been given an opportunity he could have shown beyond question that at the time of the judgment the boy was not fifteen years old. If this can be satisfactorily shown it furnishes sufficient ground for the exercise of executive clemency, but it would not justify the court in reviewing and reversing a final judgment by means of the writ of habeas corpus.
The writ is denied, and the prisoner remanded. | [
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The opinion of the court was delivered by
Porter, J.:
W. T. Eggan brought this action against E. B. Emory to recover damages for the malicious prosecution of a civil action. A judgment was given in plaintiff’s favor for $556, which Emory seeks to reverse.
The facts in brief are that Eggan removed from Garden City to Winfield in 1901 and opened a “racket” store. About four months afterward he sold the store to Doctor Emory for the agreed price of $1440. Emory was without business experience himself and purchased it to be managed by his son. Three weeks after the sale he brought an action in the district court against Eggan for damages, and in his petition alleged that Eggan had falsely and fraudulently misrepresented the invoice value of the stock and that he had been damaged thereby $550. That case-was tried to a jury and a judgment rendered in favor of Eggan, who then brought this action for damages as the result of the charges contained in the former action, alleging that he had paid out attorney’s fees and expenses in defending the action; that his credit had been damaged; and that he had suffered from mental anxiety and loss of time and health by the bringing of the action.
The main defense set up in the answer is that Emory had employed a reputable attorney to whom he had stated fully and completely all the facts and circumstances, omitting nothing, in reference to his dealings with Eggan in connection with the purchase of the stock, and that thereupon his attorney had advised him that he had a cause of action, and upon this advice the action was brought, the attorney preparing all the pleadings.
Numerous errors are assigned, three of which are deemed of sufficient importance to require comment. Plaintiff introduced the depositions of numerous witnesses from Garden City to prove that when he lived there his reputation for honesty and fair dealing was good. The contention of defendant is that in an' action for malicious prosecution such evidence is incompetent for the purpose of proving want of probable cause unless it be shown that such reputation was known to, or should have been known by, the plaintiff in the action claimed to have been brought maliciously. There was no evidence showing or tending to show that Doctor Emory knew or might have been acquainted with Eg-gan’s previous reputation when he brought the action. The authorities sustain this contention. (Newell, Mai. Pros. 466.)
In McIntire v. Levering, 148 Mass. 546, 20 N. E. 191, 2 L. R. A. 517, 12 Am. St. Rep. 594, it was said: “To prove that the attack was originally made without probable cause, we think he should be permitted to show his good reputation known to the defendant when the prosecution was commenced.” (Page 549.) This view of the law is also sustained by the following cases: Woodworth v. Mills, 61 Wis. 44, 20 N. W. 728, 50 Am. Rep. 135; Israel v. Brooks, 23 Ill. 575; Miller v. Brown, 3 Mo. 127, 23 Am. Dec. 693; Blizzard v. Hays, 46 Ind. 166, 15 Am. Rep. 291; Bank of Miller v. Richmon, 64 Neb. 111, 89 N. W. 627.
At the time this evidence was offered it was objected to as incompetent, irrelevant and immaterial. Upon inquiry by the court as to whether there was any special reason the attorney for defendant said: “There is n’t any issue in this case about his integrity.” The objection was overruled and the evidence admitted. The petition contained an averment that plaintiff enjoyed' exactly that kind of reputation previous to the bringing of the action charging him with fraud, and that the action was brought for the purpose of injuring and destroying such reputation. The general denial raised as an issue the very question whether he in fact did possess such a reputation. The testimony was therefore material and competent for one purpose; and it might be said in passing that it appears to have been offered and relied upon for no other purpose.
Conceding the doctrine laid down in the cases referred to, the objection to the evidence was too general. When evidence is offered which'is competent for one purpose and incompetent for another purpose, and ij; 'appears probable that it may be regarded by the jury as competent for the other purpose, the court should be asked to limit the force and effect of the testimony by a proper instruction. In Commercial Travelers v. Barnes, 72 Kan. 293, 308, 80 Pac. 1024, it was held error for the court to refuse such instruction. (See cases there cited.)
Another claim is that it was error to admit evidence of the publication by a local newspaper of an article reciting-the fact that an action had been begun against Eggan charging him with fraud and misrepresentation. This was claimed in the petition as one of the elements of damages, and may be said to be one of the natural consequences resulting from the filing of such an action.
We come now to a proposition involving a question of practice which, so far as we are aware, has not been passed upon by this court, and which seems seriously to affect the merits of the case. The court submitted nine special questions and the jury answered them, including the following:
“ (7) Ques. Did the defendant go to H. C. Hargis, a lawyer at Winfield, Kan., and state the facts fully to him before the said action was brought, and did the said Hargis, knowing all of the facts, advise the defendant herein as the plaintiff therein to bring said action, and was it brought by said Hargis in pursuance of said statement so made by the defendant to him? Ans. Yes.”
Upon the reading of the answers counsel for plaintiff stated that there were three questions embodied in No. 7 and that plaintiff would like specific answers to each, and asked the court to allow the jury to retire and make separate answers. Defendant objected; the court was doubtful; counsel for plaintiff remarked that he had failed to notice the scope of this question until he was arguing it to the jury or he should have moved to divide the question. The court then polled the jury as to the verdict and answers. One of the jurors said that the answer to that question was not his.
“The CourtDo you refuse to let it stand as your answer to that question? — that is all I want to know.
“Juror: I do; it wasn’t the way I understood the question; it did njt strike me that was the way it should have been answered.
“The Court: Here is one juror refuses to stand by his answer.”
The motion of plaintiff to resubmit this question to the jury was renewed, objected to by defendant, and the jury were discharged.
It is contended that defendant was bound to agree that the question should be resubmitted to the jury, or, if not, that it stand as not answered; that the result is the same as though no such question had been submitted in the first place and consequently the general verdict governs. The general verdict by itself is a finding that defendant acted with malice and without probable cause, and amounts to a finding that he did not submit his cause fully to an attorney and act upon legal advice. As observed, this constituted his sole defense.
If the question stood as originally answered, it will be conceded that defendant’s motion for judgment on the finding must have been sustained. We have, then, the peculiar situation of a general verdict finding malice and want of probable cause, and an answer by eleven jurors that facts existed which probably a majority of the courts have said amounts to a finding that there was probable cause, and, according to the holdings of the other courts, at least negatives malice. (See 19 A. & E. Encycl. of L. 686, note 2, and 687, note 1; Dolbe v. Norton, 22 Kan. 101; Railroad Co. v. Brown, 57 Kan. 785, 48 Pac. 31.) It makes no difference here which view is adopted; the finding, if it be a finding, destroys the verdict. Malice counts for nothing where there is probable cause.
“Malice is a fact which can be proved by the circumstances attending the getting up of the prosecution, but if there be probable cause for the prosecution the malice of the prosecutor weighs nothing, though the accused be innocent.” (Israel v. Brooks, 23 Ill. 575, 576.)
The want of probable cause is the main ground of this action. In Railroad Co. v. Smith, 60 Kan. 4, 55 Pac. 272, a judgment was reversed because the evidence was held to show probable cause. Likewise in Bailey v. Dodge, 28 Kan. 72. (See, also, Malone v. Murphy, 2 Kan. 250; Investment Co. v. Burdick, 67 Kan. 329, 72 Pac. 781.)
The burden was upon plaintiff to show affirmatively by circumstances or otherwise that defendant had no ground for the prosecution — no ground sufficiently strong in itself to warrant a reasonably prudent man in commencing the action. There was direct evidence that Doctor Emory stated his case fully and fairly to the attorney and acted upon the attorney’s advice. His evidence was uncontradicted by any witness. There was, therefore, abundant evidence to sustain the finding made by the jury and agreed to by eleven of them. In view of the jealousy with which actions of this kind have always been looked upon by the courts, the evidence in the case, the amount of damages allowed, and all the circumstances, we are inclined to view the proceedings as equivalent to a mistrial and to hold that in justice the case should be retried.
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The opinion of the court was delivered by
Greene, J.:
The appellants were convicted of violating an ordinance of the city of Lebanon, a city of the third class, which provided for the levying and collecting of a license tax from persons doing business within the city. Among other things it provided that no transient merchant should be permitted to sell or offer to.sell at retail any articles of merchandise usually kept for sale by any merchant or manufacturer of the city within the limits of the city without first paying a license tax of ten dollars per day. The penalty imposed for a violation of this ordinance was a fine of not less than five dollars nor more than twenty-five dollars for each offense, and it was provided that each day’s violation should be considered a separate offense.
The appellants introduced evidence tending to prove that the city of Lebanon had a population of about 700; that the annual revenue of the city for the two precedingyears, which was sufficient to pay the expenses of the municipality, did not exceed $1000 per annum; that the resident merchants whose annual sales ranged from $7000 to $16,000, did not derive a net profit exceeding $1250 per annum; and that the appellants carried a stock averaging $5000. Based upon these facts, they contend that a license tax of ten dollars per day would amount to an annual tax of more than $3000 and is therefore unjust and unreasonable.
The authority to impose and collect a license tax on merchants is plainly granted to cities of the third class by section 1127 of the General Statutes of 1901, and the only statutory restriction placed upon the council as'to the amount of such tax is that it shall be just and reasonable. (Gen. Stat. 1901, § 1128.) That this authority is to be used as a means of collecting revenue, as well as regulation, has been placed beyond dispute by the former decisions of this court. (Fretwell v. City of Troy, 18 Kan. 271; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486.) If, therefore, the ordinance does not violate the restriction that it must be just and reasonable it should be upheld. In Fretwell v. City of Troy, supra, in construing a similar ordinance, it was said:
“Regarded as a tax, therefore, it comes within the general proposition concerning taxation, that it knows no limit other than the necessities of the public treasury and the discretion of the taxing power.” (Page 274.)
The expenses of the city for previous years, as shown by the evidence, while an item properly to be considered in determining the question of the reasonableness of the ordinance, is not conclusive. The expenses of municipalities are not fixed by any law, and are regulated only by the wants of its citizens and their ability to provide the means to satisfy them. It was said in City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296: “It must be a flagrant case of excessive and oppressive levy of a license tax before a court will interfere.” (Page 328.) This statement is well sustained by the authorities in this state.
The reasoning of appellants, founded upon the facts in evidence, and following the reasoning of the Illinois courts in the cases of City of Peoria v. Gugenheim, 61 Ill. App. 374, and City of Carrollton v. Bazzette, 159 Ill. 284, 42 N. E. 837, 31 L. R. A. 522 — that an annual license tax at the rate of ten dollars per day upon resident and transient merchants would be prohibitive, is fallacious. The appellants, being transient merchants, were not required to pay an annual license .tax at the rate of ten dollars per day throughout the year, but were only required to pay at that rate for the days they remained in business in the city. Such persons only remain in a town long enough to supply it with the kind of articles they sell, and they then move to another place. The appellants therefore failed to establish facts from which a court can say, within the rule stated in City of Lyons v. Cooper, supra, that the ordinance was unjust or unreasonable.
It is also contended that the court erred in refusing to submit to the jury for their consideration the evidence offered by the appellants tending to show that the ordinance was unjust and unreasonable. We cannot agree with the' appellants in this contention. ’ The facts being undisputed, the question whether an ordinance is void for any reason is a question of law and must be' determined by the court. (1 Dillon’s Mun. Corp. § 327, and cases there cited.)
Two other contentions are urged: (1) That the city has no power to punish by fine and imprisonment a violation of this ordinance; and (2) that all licenses issued by a city of the third class must be issued for a period of one year, and therefore the city had no authority to pass an ordinance levying a daily occupation tax. Both of these questions were involved in Fretwell v. City of Troy, 18 Kan. 271. The first, while not discussed, was necessarily sustained by affirming' the judgment of fine and imprisonment. . This decision was made more than twenty years ago, and has never been questioned. The legislature has been in session many times since and no attempt has been made to change the statute. We must therefore conclude that it was intended to grant such authority. Upon the second proposition the court in that case said:
“Nor does the provision that license taxes ‘shall be at such rate per year as shall be just and reasonable’ prevent a charge of so much per day. The purpose of that section was to prescribe the method of computing the amount of taxes, and that was by the time and not by the amount of business. It did not compel the council to exact a year's license in every case, or prevent them from graduating the amount of the license by the actual time employed in the business licensed.” (Page 276.)
Other objections are urged to the validity of the ordinance, and also to some alleged errors at the trial, but they do not require special attention. The judgment is affirmed.
Johnston, C. J., Burch, Mason, Smith, Graves, JJ., concurring. | [
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"The opinion of the court was delivered by
Smith, J.:
Sections 1016 and 1068 of the General Statutes of 1901 are practically identical as "to the preliminary steps necessary to give the mayor and council of cities of the second class jurisdiction to contract for and cause a street thereof to be curbed and paved, except the former section requires that the resolution passed for that purpose be published in the official paper of the city for four consecutive weeks if it be a weekly paper, and for ten consecutive days if such paper be a daily, while the latter section requires only that the resolution be published for two consecutive weeks if the official paper be a weekly, and five consecutive days if it be a daily. It is not contended that section 1016 has been expressly or by implication repealed, although section 1068 is the later enactment. Both provisions therefore seem to be in full effect. If, as the court found, the recital in the resolution requiring publication to be made for ten days was a clerical mistake, and after one publication the mistake was corrected to five days and the publication was made for five consecutive days thereafter, legal notice was in fact given. No question is raised that the finding was not supported by evidence. The heading, “First published in the Lawrence Daily World May 8, 1904,” was misleading but was no part of the resolution, and was not required by law. The placing of it at the head of the publication seems to have been the unauthorized act of the publisher. The last publication was on May 8, and the protest was filed with the city clerk on May 27, nineteen' days thereafter.- The protesters do not seem to have been misled to their prejudice, as they had still one day in which to file their remonstrance, counting from the last publication as made. We conclude that the publication was legal and sufficiént as a step in acquiring jurisdiction to proceed with the improvement.
■Again, it is urged that the resolution of the city council and. the published notice authorized .only the paving and curbing of the street, while the contract for the work and the assessment of the cost to the lot owners included also the grading of the street. It is true that .ordinance No. 148, which deterihined and assessed to the lot owners the portion of the expense of the improvements to be paid by them, did include grading. It is also true that ordinance No. 149, which determined what share of the expense the city should pay, also included grading. It devolved upon the plaintiffs in error to prove, before they were entitled to an injunction on this ground, that an illegal. charge and assessment was about to be made against their property. That some grading is necessary to level or fill the inequalities in the surface of a dirt road to prepare it for receiving the pavement seems evident; also, that such leveling would be a necessary incident to the paving of a street, even after it had been brought to grade. It seems also to be conceded that the expense of bringing the street to grade devolved upon the city, and that the grading incident to the laying of the.pavement devolved upon the property owners. If so, we think the court was justified in presuming and finding, in the absence of evidence to the contrary, that the cost of grading had been properly apportioned by the mayor and council.
Another objection going to the jurisdiction of the mayor and council to contract for and improve the street in accordance with .the resolution is that, as asserted, a majority of the resident lot owners of real property liable to taxation for the improvement did within twenty days after the last publication of the resolution file with the city clerk their protest in writing against such improvement. A protest was in fact filed within the time prescribed by the statute. Whether such protest was in fact signed by a majority of the owners of real property liable to taxation for the improvement determines the power of the mayor and council to proceed therewith. If a majority of such real-property owners did not sign such protest the power to proceed existed; if a majority did sign the protest the power did not exist. The determination of this question of fact was in the first instance for the mayor and council; on the trial of the case it was for the court.
Section 1068 of the General Statutes of 1901 makes no restriction as to the sex, age or the mental or physical condition, of the owners of the real property affected; but the written protest must be by a majority of all such owners. No provision is made by the statute for any method of determining the number of real-property owners, and the court on the hearing of this suit for injunction properly considered the ownership of each parcel of real property which would be liable for taxation for the improvement and who the owner or owners thereof were as in issue, and proceeded to determine the aggregate number of resident owners of real property and the number of qualified persons who signed , the protest. There were forty signers to the protest as to whom the defendants made no objection, and there were thirty-one resident owners of real property who did not sign as to the counting of whom the plaintiffs did not object. The court found five other protesters qualified to protest, and that there were seventeen resident owners who did not sign the protest, in addition to those agreed upon, making ninety-three real-estate owners, of whom forty-five protested and forty-eight should be counted as favorable. The plaintiffs complain that two others, Eunice Finley and Mrs. Techlá- Fischer, signed the protest and should have been adjudged qualified protesters, and that eleven of the additional names counted as favorable were not qualified to be so counted; that the proper count should have been forty-seven protesters to thirty-eight silent owners to be counted as favprable.
Of the two additional protesters claimed, Fannie Wise was shown to be feeble-minded and mentally unsound. She was, at the time her name was attached to the protest, in a sanitarium at St. Louis. Her son, who signed her name to the protest without her knowledge at the time or since, had attended to her business for several years. There was no proof of agency nor of guardianship, and the name was' properly rejected. The court found that Eunice Finley signed the protest; that some one without her consent and against her wish had drawn a line through her name thereon before the protest was filed; that she jointly with another had a life lease on a lot, subject to certain conditions, one of which was the payment of taxes; that the mayor • and council had no knowledge of how the name came to be obliterated when the protest was acted upon by them. On these findings of fact we think Eunice Finley should have been counted by the court as a protester, and not as favorable, thus leaving the count forty-seven favorable to forty-six protesters. She was an owner of real estate and had expressed .her will in the manner provided by law.
We have examined all the evidence and findings relating to the remaining fifteen real-estaté owners who were counted as favorable and to whom objections were made. We find no error therein. Section 1068 of the General Statutes of 1901 provides that if a majority of the resident owners of real property liable to taxation for such improvement shall not within twenty days after the completed publication file with the city clerk their protest in writing against such improvement, then the mayor and council shall have the power to cause the same to be made. Under this statute the whole number of owners of real estate liable to taxation for the improvement must be determined, else it could not be said what number constitutes a majority thereof. It is urged that minors and insane owners should not be counted, for the reason that they are presumed to be incapable of making their protest in writing. Authorities are cited from other states which seem to support this contention. Our legislature, however, made no such provision; the statute is specific and clear that the written protest of all guclr owners must be filed. While it may be said that a person who by reason of insanity or infancy is totally incapable of any expression of his will should not by reason of his silence, which he is unable to break, be counted favorable to the imposition of taxes upon his ■ property, on the other hand it may be said that the mayor and council are elected for the purpose of representing and do represent such persons, as well as all other residents of the city, and as the percentage of such incapables is usually small our lawmakers intended that when such an improvement commended itself to such city officers as necessary for the best interests of the city such judgment must prevail, unless overruled by a majority of all the resident owners of real estate liable to taxation therefor. The latter view we adopt.
Again, it is urged that where the husband and father died, leaving real estate to his widow and children, or where title to real estate is divided between a life-estate and estates in remainder, the entire estate should be counted as having one vote only. That might be a wise law, as it might be wise to provide that the wishes of the property owners should be determined by the number of lots or front feet owned; as, for instance, the owner of two lots should count for as much as two owners who have only one lot each. Such, however, is not our statute. As we read the statute the resident owner of an undivided one-tenth interest in one lot counts for as much as the absolute owner of ten lots, and the joint owners of an estate in remainder each count one. It provides for a count of noses and not of feet. A part of section 7342 of the General Statutes of 1901 reads:
“The word ‘land,’ and the phrases ‘real estate’ and ‘real property,’ include lands, tenements and heredita-ments, and all rights thereto and interest therein, equitable as well as legal.” (Subdiv. 8.)
We do not deem it necessary, in view of the numerous decisions of this court upon the subject of the titles to bills passed by the legislature, to enter upon any extended discussion of the objections now made to the title and provisions of chapter 366 of the Laws of 1901, from which section 1068 of the General Statutes of 1901, hereinbefore referred to, was compiled. Suffice it to say that the necessity for the special act — whether to be determined, by the legislature or by the courts— is to be determined as of the time of the trial of this case below, and without regard to the constitutional amendment on this subject adopted since the trial. We are called upon only to say whether the trial court did or did not commit reversible error. ■
The constitution makes no division of cities into classes. By statute provision has been made for organizing towns and villages of less than 2000 inhabitants into cities of the third class and for their government; that when a city of the third class attains a population of over 2000 and not to exceed 15,000 it shall be a city of the second class, and different provisions are made for its government and different powers conferred upon it; that when any city attains a population of 15,000 it shall become a city of the first class, and different provisions are made for its government and still greater powers are conferred upon it and its officers. This division into classes is purely arbitrary, but is conceded to be within the legislative power. Why, then, is a subdivision of a class more repugnant to the constitution? If the lawmaking power deems it necessary and expedient to make certain provisions for cities of the second class having between 10,000 and 15,000 in population, why should it be regarded as special legislation any more than a provision which applies to a city of 2100 inhabitants and does not apply to one of' 1500 inhabitants? In Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, this court answered the inquiry adversely to the contention of the plaintiffs in error.
The use of the words “internal improvements” in the title of the act may not be the most fortunate, but we think they are not misleading. “Internal improvements,” applied to a city, a county, a state, and to the nation, respectively, may in each case have a different meaning.
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The opinion of the court was delivered by
Mason, J.:
Joseph Huff appeals from a conviction upon a charge of violating the statute which forbids any one to practice medicine who has not received a certificate of qualification from the state board of medical registration and examination. The determina tion of the case involves the consideration of portions of sections 6675 and 6674 of the General Statutes of 1901, reading as follow:
“From and after the first day of September, 1901, any person who shall practice medicine and surgery or osteopathy in the state of Kansas without having received and had recorded a certificate under the provisions of this act, or any person violating any of the provisions of this act, shall be deemed guilty of a misdemeanor.”
“Any person shall be regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatever nature for the cure or relief of any wounds, fracture, or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘doctor,’ ‘M. D.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine and surgery; but nothing in this act shall be’construed as interfering with any religious beliefs in the treatment of disease, provided that quarantine regulations relating to contagious diseases are not infringed upon. All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as hereinbefore provided, but they shall not administer drugs or medicines of any knd nor perform operations in surgery. This act shall not apply to any commissioned medical officer of the United States army, navy, or marine service, in the discharge of his official duties; nor to any legally qualified dentist, when engaged in the legitimate practice of his profession; nor to any physician or surgeon who is called from another state or territory in consultation with a licensed physician of this state, or to treat a particular case in conjunction with a licensed practitioner of the state, and who does not otherwise practice in the state. Nor shall anything in this act apply to the administration of domestic medicines, nor to prohibit gratuitous services.”
The information contained three counts. The first, after alleging that the defendant had not received a ■certificate authorizing him to practice medicine, and that he was not within any of the exceptions of the statute, charged that he “did . . . unlawfully prescribe and recommend for a fee. drugs and medicines for the cure and relief of bodily infirmity and disease of another person ... to wit, Florence McNutt.” The second and third were substantially the same, except that other names were substituted for that of Mrs. McNutt. A verdict of guilty was returned upon the first and second counts, and sentence was pronounced upon the second only.
The defendant presented .a plea in bar, which showed these facts: Prior to his arrest in the present case he had been prosecuted before a justice of the peace upon a complaint containing two counts, each charging in general terms a violation of the medical practice act. Neither gave the name of the person he was said to have attended. The only difference between them lay in the dates and in the phraseology employed. The first charged that the defendant “on or about the 15th day of April, 1906, . . . did . . . unlawfully and wilfully prescribe and recommend for a fee drugs and medicines for the cure and relief of infirmity and disease of another person”; the second, that he, “on or about the 15th day of May, 1906, and for more than a year next prior thereto, . . . was unlawfully and wilfully engaged in the practice of medicine by then and there prescribing and recommending for a. fee drugs and medicines for the cure and relief of infirmity and disease of other persons.” Otherwise they were substantially alike. At the conclusion of the evidence the county attorney announced that the state' “did not ask for a conviction on the first count, but. would rely for a conviction on the second count.” The case was then argued and submitted. The ensuing-proceedings are thus shown by the docket: “The jury, after being out for a reasonable time, about one and one-half hours, came into court and reported that it was impossible for them to agree. The court, after be ing satisfied that the jury could not agree, discharged them.” Afterward an order of dismissal without prejudice was made. The plea in bar alleged that the complaint was for the same offense as that charged in the information.
The state demurred to the plea, and the court sustained the demurrer. The defendant now complains of this ruling, and makes two contentions: (1) That the discharge of the jury was equivalent to an acquittal and is a bar to the present prosecution, inasmuch as the record does not show, a sufficient investigation and determination by the justice of the question whether such discharge was necessary; (2) that the abandonment of the first count after a jury were impaneled had a like effect and is attended with the same consequence. Neither contention is well founded.
In The State v. Klauer, 70 Kan. 384, 78 Pac. 802, the discharge of a jury was held to be a final disposition of a criminal case because “no judicial investigation or determination was made at the time and no finding of the necessity for a discharge entered of record.” (Syllabus.) There, however, it was affirmatively shown that “the court made no investigation or inquiry at the time the jury were brought into court and discharged as to whether they could probably agree or not, and the court made no judicial investigation or determination of the question at that time, and made no finding thereon at the time the jury were discharged.” (Page 387.) Here the docket recites that before discharging the jury the justice was satisfied that they could not agree. This is a sufficient record of what amounts to. a finding that it was necessary to discharge the jury, and implies that a judicial examination was made of that question. It is not necessary that the record should show the full extent of the inquiry; the evidence received, or the grounds of the decision. Nor is the correctness of the conclusion reached open to collateral attack. There was therefore no error in sustaining the demurrer to the plea in bar, so far as this feature of it is concerned.
Apparently the two counts of the complaint were intended as two methods of charging the same offense. It has been held that in such a case, where a conviction is had upon one count, even a verdict of not guilty on the other will not prevent a subsequent hearing on both counts if a new trial is granted at the request of the defendant. (Lesslie v. The State, 18 Ohio St. 390; Jarvis v. The State, 19 Ohio St. 585.) However that may be, the abandonment of one count under such circumstances, being merely a final election not to rely upon the particular manner therein employed to charge the offense, does not prevent a further prosecution upon the other count in that proceeding, and consequently cannot be a bar to a new action if the second one after a mistrial is properly dismissed without prejudice. If, therefore, the two counts of the complaint related to the same offense, the fact that the first one was abandoned presented no obstacle to the subsequent proceeding by information. If, on the other hand, the two counts did not refer to the same offense, the defendant can now derive no advantage from the fact. The plea in bar did allege that the information was “founded upon the same facts and circumstances as was said first count in said complaint,” but it also alleged in substance, if not in express terms, that the second count of the complaint — the one which was submitted to the jury, and upon which they failed to agree —likewise charged the same offense as the information. No attempt was made to distinguish between the several counts of the information. The plea in bar was not directed- against any particular count, but against the entire prosecution. Its allegations were perfectly consistent with the hypothesis that the two counts of the complaint referred to the same offense — that while the information charged the same offense as the first count, it also charged the same offense as the second count. To have been good on its face the plea should have shown affirmatively not only that the information charged the same offense as the first count of the complaint but also that the two counts were for different offenses, in order that it should have been made to appear that the new action was not a renewal of that in which the jury disagreed. For these reasons the demurrer to the plea in bar was rightly sustained.
There is little room for controversy as to the facts in the case. The defendant took the stand in his own behalf and testified that he was a farmer; that he was not a doctor; that he manufactured from vegetables grown on his own farm what he believed to be a remedy for cancer; that he had used it upon from fifty to seventy-five different patients, one of whom was Mrs. Stewart,- the person named in the second count; that he applied it himself, describing the process thus: “I take a little stick and get a little medicine on it, and put it on the cancer, the diseased part, and that works from fifteen minutes to half an hour until it works the strength out of the medicine, and then I clean that off and apply it again.” The state’s evidence showed, or tended to show, that the defendant had treated Mrs. Stewart under a contract by the terms of which he was to receive fifty dollars down find a like amount when a cure should be effected, and that the first fifty dollars had been paid to him.
It is claimed on behalf of the defendant that the evidence — the scope of which is fairly indicated by the foregoing statement — did not warrant a conviction under the pleading, inasmuch as the application-of the purported remedy was a surgical operation, while the information charged only the practice of medicine, and nowhere even mentioned surgery. To discuss the technical distinctions relied upon to sustain this contention would, be a useless waste of effort. We are concerned only with the interpretation of the Kansas act, which provides that for its purposes any one shall be regarded as practicing medicine and surgery “who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine. . . . for the cure or relief of any . . . infirmity or disease of another person.” (Gen. Stat. 1901, § 6674.) The language quoted is followed in the information, and if the defendant’s acts are within its terms it is immaterial whether they also amounted to the practice of surgery. But it is further argued that “the prescribing and recommending denounced by the act refers to drugs and medicines to be used by the patient himself,” and .that as the defendant in this case applied the remedy he was not within the terms of this part of the statute. Possibly the word “prescribe” may sometimes have the meaning thus attributed to it, although it is not clear why the same person may not prescribe and administer a remedy. But a broader intention is evidenced by the accompanying phrase: “or .. . . recommend for a fee, for like use,” which appears to have been employed to guard against any narrow or technical construction. The jury were abundantly justified in finding that the defendant did not contract for the payment to him of the hundred dollars either as the purchase-price of the material he furnished or as compensation for his service in applying it, but that the charge was essentially one for imparting his peculiar knowledge of its curative powers, and that the transaction therefore amounted to recommending a medicine for a fee within the letter and spirit of the law.
Several assignments of error involve the consideration of the meaning of the provision of the medical act that nothing therein shall apply to “the administration of domestic medicines.” (Gen. Stat. 1901, § 6674.) The trial court instructed the jury that “the term ‘domestic medicines,’ as used in this law, means medicine as practiced by unprofessional persons in their own families or households.” This instruction was manifestly based upon the definition of the phrase “domestic medicine” found in several standard dictionaries. The Century and the Imperial define it as “medicine as practiced by unprofessional persons in their own families”; the Encyclopaedic, as “the practice or use of medicine by unprofessional persons in their own households.”' Objection is taken to the application made of these, definitions upon the somewhat plausible ground that “medicine” is there used abstractly — referring to the science or practice of medicine, while in the statute “medicines” is obviously used concretely, referring to substances, as a synonym for “remedies.” The force of this objection is lessened by having regard to the entire phrase employed in the statute — “the administration of domestic medicines.” Although it can hardly be strictly accurate to say that the bare words, “domestic medicines” mean “medicine as .practiced by unprofessional persons in their own families,” the expression “the administration "of domestic remedies,” taken by itself, might well be thought to mean just that. Of course if the instruction conveyed a correct idea as to the force of the statute it is not material that it was open to verbal criticism.
The Kansas medical act does not follow closely that of any other state, but it bears internal evidence of having been modeled in part upon the Ohio statute of 1900 (Laws of Ohio, 1900, p. 197), where the corresponding language is that the act shall not be construed to prohibit “the domestic administration of family remedies.” (Page 201.) Precisely the same expression is found in the laws of California, Massachusetts, and New Mexico. Those of Indiana and Utah read: “the administration of family remedies”; of Nebraska: “the administration of ordinary household remedies.” In Illinois in a recent revision “the domestic administration of family remedies” was changed to “the administration of domestic or family remedies.” (Laws of Illinois, 1899, p. 275, § 7.) These slightly different but substantially similar phrases seem intended to express the same essential thought. That they were in such general use when: our. statute was enacted suggests a purpose to cover about the same ground by the words “the administration of domestic medicines (Gen. Stat. 1901, § 6674); that is, the domestic administration of medicine — the administration of medicine in one’s own family.
To have recourse again to the lexicographers, it may be noted that Appleton’s Medical Dictionary and Gould’s Illustrated Dictionary of Medicine define “domestic medicine” as “the use of domestic remedies,” but as neither attempts to give the meaning of “domestic remedy” the definition is not illuminating. If, however, “domestic medicine” is the use of medicine in one’s own family, and is also the use'of domestic remedies, it would seem logically to follow that domestic remedies or domestic medicines are those which one uses in his own household. Foster’s Encyclopaedic Medical Dictionary (by Frank P. Foster, who also edited Appleton’s Medical Dictionary) contains, under the'word “domestic”: “Pertaining to the household, to one’s own home; ... of remedies prepared in one’s own house or kept there for use in the absence of a physician.” This certainly has some tendency to sustain the .instruction given. But the matter is not to be determined by mere reference to the dictionaries. Lippincott’s Medical Dictionary says that “domestic medicine” is “medicine as practiced by non-professional nersons.” The acceptance of that definition would make the exception as broad as the act. The- real meaning of the law must be sought by considering it as a whole — in the harmonious construction of its various parts. The greatest difficulty with the view adopted by the trial court seems to be that as the statute permits gratuitous services of all kinds there could be little or no force to a further provision that any one might administer medicine in his own family, inasmuch as it can hardly be thought to have been within the contemplation of the legislature that a charge would ever be made for such administration. This difficulty is so serious that rather than attempt its solution we prefer to inquire whether under any reasonable view of the law the defendant could have been prejudiced by the instruction referred to.
The defendant’s attorneys did not submit to the court any interpretation of the clause in question, and they now maintain in effect that no definition of the word “domestic” was necessary; that it is a primitive word, not capable of being made clearer by other terms; that only confusion could result from an attempt to explain it; that it should have been left to the jury to say what domestic medicines were, and whether the substance applied by the defendant was a domestic medicine. T.o this we cannot agree. There are of course some words (as was said of “fire” in Insurance Office v. Woolenmill Co., 72 Kan. 41, 82 Pac. 513) which are so common and so well understood that they require no definition. But “domestic” is not one of them. It is susceptible of a variety of meanings and shades of meaning, according to the connection in which it is employed. As used in the statute we do not believe that it referred to medicines of home manufacture, or to those manufactured from vegetables grown at home; if it did not have the precise meaning attributed to it by the court it must have had much the same force as in the pharmacy act. No other reasonable construction occurs to us, and none has been suggested. There it is provided that “in rural districts, where there is no registered pharmacist within five miles, it shall be lawful for re-, tail dealers to procure license from the board of pharmacy at,a fee of two dollars and fifty cents annually, to sell the usual domestic remedies and medicines.” (Gen. Stat. 1901, § 6687.) In determining the meaning, of this we are aided by judicial and legislative construction. In Cook v. The People, 125 Ill. 278, 17 N. E. 849, it was said that under a similar statute the jury were warranted in finding from the evidence (the character of which was not shown) that quinine was not one of the usual domestic remedies referred to. In The People v. Fisher, 83 Ill. App. 114, the court approved an instruction reading:
“Although the jury may believe from the evidence that the defendant sold iodine and quinine, yet if they further believe from the evidence that they are domestic remedies, then the defendant is not liable for such sales.” (Page 116.)
The entire discussion of the subject was as follows:
“The sale of ‘domestic remedies’ is exempted from the statutory provisions under which Fisher was being prosecuted. It is objected to this instruction that there is no evidence on which to base it; the only evidence in the record being that iodine is an irritant poison, and that quinine is a drug prepared by manufacturing chemists. The same objection is made to the modification of an instruction offered by the plaintiffs in error. It is also urged that as the supreme court has held inferentially in the case of Cook v. The People, 125 Ill. 278, 17 N. E. 849, that quinine is not a domestic remedy, it was error to submit to the jury, as the instructions did, the determination of whether that drug is a domestic remedy. The logic of that contention is that quinine, as a matter of law, is a drug that can be legally sold only by a registered pharmacist and is not a domestic remedy. All that was said by the supreme court in Cook v. The People, supra, was that the court thought that ‘the jury were fully warranted in finding, from the evidence, that quinine was not one of the usual domestic remedies referred to in said proviso.’ We are clearly of the opinion that in prosecutions under this act the determination of whether the drug sold is a domestic remedy is a question of fact for the jury. Nor do we think the court erred in so instructing, because the only testimony heard upon this point was that of Fleury, who stated that iodine was an irritant poison, not in common use in the household, and that quinine was a drug prepared by manufacturing chemists. Because of his testimony the jury were not required to close their eyes against their own experience in the use of such drugs.
“We cannot agree with counsel for the plaintiffs in error that domestic remedies, within the meaning of the statute, are confined to ‘harmless concoctions of teas and herbs,’ which those unlearned in medical and scientific lore can prepare at home, and do not include drugs requiring scientific knowledge and apparatus to prepare. We think a drug, although prepared by skilled chemists and scientific apparatus, may come into such common use and be so well understood in its effects by people without medical knowledge as to make it a domestic remedy.
“For instance, there are portions of territory lying within what is known as the Mississippi valley where ‘chills and fever’ are of such frequent occurrence (and recurrence) that quinine, in certain seasons of the year, is almost as common an article of household use as the ordinary necessaries of life, and the good housewife, when she doses the children from the family bottle, understands its effect about as well as the licensed pharmacist. It is a matter of common experience that iodine is frequently used in the household as an antidote for wild-ivy poison, ringworm and other skin affections. The mere fact that it is an irritant poison would not bring it out of the pale of ‘domestic remedies’.” (Page 116.)
The New York pharmacy act originally contained a provision permitting “the sale of the usual domestic remedies by retail dealers in the rural districts.” (Laws of New York, 1884, ch. 361, § 11.) ■ Later a definition was added of which the following was the substance and finally the form:
“The term ‘usual domestic remedies,’ here employed, means medicines, a knowledge of the propertiés of which and dose has been acquired from common use and includes only such remedies as may be safely employed without the advice of a physician.” (Laws of New York, 1893, ch. 661, § 187. See, also, Laws of New York, 1887, ch. 676, § 4.)
Still later the proviso was .so changed as to permit the sale by unlicensed persons of only certain enumerated drugs. (Rev. Stat. New York, 1901, p. 2959, § 199.)
It will be observed that the meaning pointed to in these expressions is in a way a modification of that adopted by the trial court. The phrase “domestic medicines,’' referring to those remedies which are in fact used by a non-professional person in his own home, appears to have been diverted from its original and literal import, perhaps in part by the addition of the qualification “usual,” so as to,signify such substances as/are commonly kept by non-professional persons in their own homes for use as remedies in the absence of a physician, being necessarily substances the effect of which' is a matter of general knowledge, so that no special training is required for their safe administration. If this signification be accepted as that intended in the medical law, it is obvious that cases may arise in which it is proper to submit to a jury the question whether a particular remedy, which a defendant may be charged with administering under such circumstances as to make the act unlawful, was a domestic medicine. But no such situation is presented here. There is nothing in the evidence in this case to suggest that the substance applied by the defendant was. one in common use or one the effect of which was generally understood.
But apart from this, other considerations compel the conclusion stated. The statute in' general terms forbids one not having a certificate to practice medicine; it adds that any person shall be regarded as practicing medicine who shall prescribe or recommend for a fee for like use any drug or medicine; that. registered osteopaths may practice their profession but' “shall . . . not administer drugs or medicines of any kind”; and that nothing in the act shall ‘‘apply to the administration of domestic medicines” or “prohibit gratuitous services.” (Gen. Stat. 1901, § 6674.) It would defeat the manifest purpose of the law to hold that under these provisions a defendant charged and proved to have received money for recommending a certain substance as a cure for disease might exculpate himself by showing that the substance he recommended was’ a domestic medicine, ’ in the sense that it was a well-known remedy, the effect of which was a matter of common knowledge. A non-professional person is permitted under the law to administer, domestic medicines, but not to take pay for recommending their use. The theory of the state is that one who proposes to ask and receive compensation for advice as to the use of medicines thereby holds himself out as possessed of special and peculiar information on the subject, and that it is the province of the state to see that he possesses it or in default of proof thereof to prevent his making the unfounded claim a source of revenue. To the charge that an incompetent person has unlawfully taken pay for recommending the use of a particular remedy it is no answer to say that the remedy is one the effect of which is a matter of common knowledge, and which for that reason may be administered by any one without a violation of the law.
Under the defendant’s own statement he was guilty of the offense' charged against him, if for a fee he recommended the use of his medicine as a remedy for cancer, whether it was a “domestic medicine” or not. The jury by their verdict found that he did so, and the evidence abundantly justified the verdict. The instruction referred to therefore could not have .prejudiced him, and'constituted no error of which he can complain.
A final claim of error is based upon the refusal of the court to give a peremptory instruction to the jury at the conclusion of the state’s evidence to return a verdict of not guilty, upon the ground that it had not been shown that the defendant did not come within any of the exceptions of the statute — for instance, that he was not a medical officer of the army or navy. This court has already in effect decided, in accordance with the general rule, that it is incumbent upon the defendant to produce evidence upon such matters, as they lie peculiarly within his knowledge. (The State v. Wilson, 62 Kan. 621, 64 Pac. 23, 52 L. R. A. 679.) Moreover, the defendant in this case testified that he was a farmer, living in the county where he was tried, and it clearly appeared that he was neither’ an officer, a foreign physician, nor a dentist engaged in the practice of his profession. The complaint on this score is without substance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
This action was commenced by H. P. Beets in the district court of Miami county to recover damages sustained by cattle escaping from the stock-pens of the St. Louis & San Francisco Railroad Company at the station of Hillsdale. The plaintiff recovered the sum of $214.24, and the defendant brings the case here for review.
The plaintiff resides about two and a half miles from Hillsdale, and has been engaged for several years in the business of buying and shipping cattle to Kansas City. On June 7, 1904, having forty-six fat cattle ready to ship, he requested the agent at Hillsdale to furnish cars for such shipment, and upon the promise that they would be supplied proceeded with arrangements to load the cattle. The railroad company had stock-pens and the usual arrangements for loading stock at that station. Beets placed his cattle in the stock-pens, and while away with his team after hay to be placed in the cars the fence on one side of the enclosure fell down and the cattle escaped. They were very fat, and had been kept in dry lots, on dry feed. They were at large several hours after their escape, and had access to green feed. This gave them the scours, causing a shrinkage in weight of about forty pounds per head, and otherwise depreciated their value. The stock-pens had been standing several years, and the posts had rotted off at the ground, which weakened the fence so that it was easily pushed over. Beets gathered up the cattle and loaded them, after which, and before the train left the station, live-stock shipping contracts were signed, containing the usual limitations in favor of the carrier and the customary free transportation to the shipper. It is claimed that the provisions of this contract relieve the railroad company from liability. The parts relied upon read:
“That as a condition precedent to a recovery for any damages for delay, loss or injury to live stock covered by this contract the second party will give notice in writing of the claim therefor to some general officer or the nearest station-agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure fully to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims.”
“That no suit or action against the party of the first part-for the recovery of any claim by virtue of this contract shall be sustainable in any court of law or equity, unless such suit or action be commenced within six months next after the cause of action shall accrue, and should any suit or action be commenced against the first party after the expiration of six months the lapse of time shall be constituted conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”
These provisions relate to and cover only such injuries, as occur while the stock is in transit, and do not apply to damages sustained either before transportation begins or after it has ended. (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Cornelius v. Railway Co., 74 Kan. 599, 87 Pac. 751.) The damages in controversy were sustained on account of deficient stock-pens, and are wholly disconnected from the transportation of the stock in the defendant’s cars or over its railroad. The answer of the railway company, so far as it relates to this live-stock shipping contract, may therefore be regarded as immaterial.
The remainder of the defendant’s answer consists of a general denial and an allegation of contributory negligence. The issues made by these defenses were fully presented to, and determined by, the jury, and the verdict cannot be disturbed unless material error occurred during the trial.
Complaint is made that the court erred in its instructions, most of which, however, relate to the shipping contract and the questions raised on account thereof, but in the view we have taken they need not be considered. Complaint is also made of an instruction which reads:
“Where a railroad company provides stock-yards for the purpose of receiving stock to be shipped over its line it is the duty of such company to see that said yards are kept and maintained in a reasonably safe condition, so that the same will retain and hold ordinary cattle under ordinary circumstances; and, if the company provides such yards for a shipper of cattle desiring to ship over its line, and permits him to place his cattle in such yards or corral for the purpose of shipping with the consent of the company, then if said corral or stock-yard is so defective as not to be reasonably safe under ordinary circumstances such company would be liable to such shipper or stock owner for whatever damages, if any, he sustained, or was occasioned to said cattle by reason of the negligence of the defendant company, if any, in allowing, said stock-yards to be in a defective condition, such as not to be reasonably suitable and reasonably safe for the purpose of receiving and retaining such cattle.”
This, we think, fairly states the law applicable to the case. In the case of Cooke v. The K. C., Ft. S. & M. R’y Co., 57 Mo. App. 471, where the facts and legal questions involved were substantially the same as here, an instruction practically the same as the above was approved; and the cases of Mason v. The Missouri Pacific Ry. Co., 25 Mo. App. 473 and McCullough v. The Wabash Western Ry. Co., 34 Mo. App. 23, hold practically the same way. The specific objection here made to this instruction is that no evidence of negligence was produced. We think there is ample evidence of negligence to sustain the verdict. The stock-yards had been in use many years; the posts had rotted off at and near the ground — not a single post only, but one entire side of the yard. This place was kept as a receiving pen for shippers of all kinds of live stock, during all the years since it was built. These facts, unexplained, justify the inference of negligence.
When common carriers of live stock provide pens, chutes and other appliances for loading and unloading stock at their shipping stations, and invite and require shippers to use them, it is the duty of such carriers to keep such pens and loading appliances in a reasonably safe condition. It is not the duty of shippers to discover defects therein and notify the carrier thereof. On the contrary, a shipper has a right to act upon the assumption that his stock will be safe therein. (Potts v. The W., St. L. & P. Ry. Co., 17 Mo. App. 394; Louisville, Cincinnati & Lexington Railroad Co. v. Hedger, 72 Ky. 645, 15 Am. Rep. 740, 13 Am. Law Reg. 145.)
Much of the argument for the plaintiff in error is devoted to a clause in the shipping contract attached to its answer, which reads:
“And the shipper hereby releases and does waive and bar any and all causes of action for any damage whatsoever that has accrued to the shipper, by any written or verbal contract prior to the execution hereof concerning said stock or any of them.”
This clause and argument we decline to consider, for the reason that the question was not presented to the district court. This contract contains more than twenty conditions and clauses in fine print and difficult to read. A copy is attached to the answer as an exhibit, and possibly under our code of pleading this alone would be sufficient to require court- and counsel to take notice of its entire contents; but the pleader went further: he undertook to state specifically wherein the plaintiff had failed to comply with the contract and had thereby forfeited his right to recover. . This would naturally lead the court to assume that these specific averments constituted all that were relied upon. The defendant requested the court to give several special instructions, but none of them referred in any way to this clause. The court gave- lengthy instructions, evi dently intending to cover every question presented, but this matter was entirely overlooked. It seems quite clear from the record that this matter was not .presented to the district court. It is not the province or purpose of this court to review questions not decided by the trial court.
Another instruction given by the court is challenged . by plaintiff in error. It reads:
“If you find for the plaintiff, and that he is entitled to recover in this action, the measure of his damages should be the actual loss occasioned by the injury to the cattle, as shown by the evidence in the case, together with any expenses and outlay, if any is shown, that plaintiff suffered by reason of having to get said cattle back to the stock-yards for shipment; and in estimating the loss and damage, so far as the stock is concerned, you may take into consideration the value of the cattle before escaping from the "stock-yards and their lessened value, if any, shown by the evidence, after escaping from the stock-yards.”
It is contended that this instruction directs the jury to consider the value of the cattlé at Hillsdale in estimating the damages sustained, instead of at Kansas City. We do not think the instruction open to this construction. All the evidence as to value was confined to the market value at Kansas City. There was. nothing in the case to cause the jury to think of value at any other point. All question, however, as to the jury being misled is set at rest by their special finding,, which expressly states the value as “on the market at Kansas City.”
It is further urged that as the jury found the damage to the cattle on the Kansas City market to be $101.20, and .the general verdict was $214.24, it must have been misled by this instruction. But there were two elements of damages presented. First, shrinkage-in weight; second, depreciation in value because buyers would think, from appearances, that the cattle had not. been fattened on dry feed exclusively. The jury gave the shrinkage in pounds, and the general depreciation* as above stated. These two amounts aggregate the sum stated in the general verdict.
This disposes of all the questions presented. We are unable to find any material error, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit to enjoin the' grading of a highway and the building of a culvert across it, which it was alleged would result in throwing water upon plaintiff’s premises to his serious injury. The highway in question is laid over a rolling-prairie country and across a slight depression, at which point it was proposed -to put a culvert. The plaintiff’s farm is situated on one side of the road and the depression extends across his land. On the other side of the road is a slope or watershed of eight or nine acres, from which the rain and melting snows-pass over the road and down the depression on plaintiff’s land. Some time before this controversy arose plaintiff had been a road-overseer, and he then built an embankment in the road across the depression and thus attempted to divert the accumulating water around his farm. The plan was not a success, owing* to a ridge beyond the depression, and it operated to hold the water and injure the road. The township authorities, finding that the road needed repair, were proceeding to grade the road and replace an old culvert with a new and larger one, and in doing so to remove the embankment across the depression, and thus let the surface-water take its natural course across plaintiff’s land. After hearing the testimony the court denied the injunction.
The depression has none of the features of a watercourse, and hence the rules governing watercourses have no application. It appears that the improvement of the road was necessary and that the plan proposed is the one ordinarily used in road-making. As was held in Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252, road-overseers are vested with a broad discretion as to the manner of repairing highways, and, although such discretion cannot be arbitrarily or dishonestly exercised, courts will not interfere with their discretion where there is an absence of fraud or wrongful purpose. An error in judgment with respect to a plan for repairing a highway, adopted in good faith, of itself gives no ground for enjoining the improvement. The road-overseer in this case had a right to grade the road, and in order to take care of the water that might accumulate from the-fall of rain or snow it was necessary and proper to build a culvert. Under the common-law rule the public, as well as a private owner, may protect itself against surface-water. As was said in Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 214, “the ordinary rule concerning surf ace--water is settled and familiar; the lower estate owes no duty to the higher, and the owner of each may use or abandon surface-water as he pleases.” (Page 216.) The public has the right to have the surface-water which comes naturally upon the highway pass off the same by the usual and natural course. (Graham et al. v. Keene, 143 Ill. 425, 32 N. E. 180.) The natural outlet is down.the depression on plaintiff’s land. The improvement proposed will not divert the course nor make a new outlet for the water. It will not increase the flow, nor impose a greater burden upon plaintiff’s land than it bore before the highway was established. Indeed, the plan appears to be the natural method of road-building through an undulating country — making grades in the depressions and putting in culverts so that the surface-water may pass on to the lower lands by the natural outlets.
No sound objection could have been made to the placing of the original grade and culvert in the highway, and no good reason is seen why the township authorities may not put the road in a passable condition by the construction of a new grade and a new culvert. The officers must act with care and reason in the exercise of the right to make the improvement, and cannot collect considerable quantities of water and unnecessarily and unreasonably dump it on the land of a private owner to his injury. There can be no claim of wantonness on the part of the officers in question, nor that they have a purpose to injure the plaintiff. The improvement appears to have been undertaken by a method in general use, and with reasonable care. It does not appear that the change of grade and the placing of the culvert would throw any considerable body of water upon plaintiff’s land. The length of tjie culvert is not shown, and it does not appear that, as planned, it would extend- to plaintiff’s land nor that the water passing through it would be thrown in a body directly upon his land. The watershed is limited; no pools, swamps or mashes are to be drained through the culvert, and except in times of freshets or heavy rains the quantity of water which will flow through it will not be great. From all that appears such water as will pass through the culvert may spread out over plaintiff’s land so that the injury to him will be inconsequential. He should not be permitted to interfere with necessary public improvements unless water is negligently thrown upon his land in such form’and quantity as to constitute a trespass.
In Churchill v. Beethe, 48 Neb. 87, 66 N. W. 992, 35 L. R. A. 442, a landowner undertook to enjoin the building of a culvert across a highway, alleging that it would turn the surface-water out of its usual course and in a body upon his land. In deciding the case the court said that such an act by a private proprietor would not be lawful, but held that a municipality might make a needed improvement to a highway in that way without liability to an adjoining proprietor, upon the theory that the damages allowed when the highway was opened covered the injuries arising from all cuts, fills, ditches and culverts proper construction and maintenance might require. The rule, as stated in the syllabus of the opinion, is:
“An action will not lie to enjoin a county from constructing a culvert across a highway, when such culvert is reasonably necessary to a proper maintenance of the road, damages consequent from such construction being presumed to have been satisfied when the highway was opened.”
In the second edition of Elliott on Roads and Streets, section 465, it is said:
“Where an owner of land dedicates it' to the public for a road or street he impliedly grants the appendant right to make such a use of it as shall suitably fit it for travel; and where land is seized under the power of eminent domain compensation is measured upon the theory that the officers representing the public may so prepare and maintain it that the public may safely and conveniently use it as a passageway.” (See, also, Champion v. The Town of Crandon, 84 Wis. 405, 54 N. W. 775, 19 L. R. A. 856; Highway Commissioners v. Ely, 54 Mich. 178, 19 N. W. 940.)
In the exercise of the discretion vested in the road-overseer as to plans and methods for repairing the highway it was competent for him to remove the embankment built in the highway, but of course the plaintiff is at liberty to protect, himself by building a dam on his own land which will obstruct the flow of the water or turn it in- another direction. (Mo. Pac. Rly. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249.) From the testimony in the case it cannot be said that the decision of the court refusing an injunction is without support.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in quo warranto, brought by the state on the relation of the attorney-general against the city of Leavenworth to oust it from the exercise of assumed and unwarranted corporate powers and privileges. The petition contains two counts, in one of which it is alleged that for two years last past the city has abused its corporate powers by imposing and collecting license taxes upon the business of selling, and keeping for sale, intoxicating liquors to be used as a beverage. It is alleged that during the period named the officers of the city have entered into agreements with certain persons to the effect that such persons might carry on the business of keeping tippling-houses and other places for the illegal sale of intoxicating liquors within the city, upon the consideration that such persons should pay to the city stipulated fines, to be imposed by the police court at stated times in simulated prosecutions under a certain ordinance passed by the city council in aid of the illegal agreements, it being understood that the fines were to be imposed and received as license taxes' for the purpose of carrying on the illegitimate business.
It is further alleged that agreements were made by the city officers with persons keeping places for the sale of intoxicating liquors as a beverage by which such persons should deposit and pay to the city, at stated intervals, stipulated sums in lieu of bail in simulated prosecutions, but which in fact were license taxes for the privilege of carrying on an unlawful business. The persons with whom the illegal agreements mentioned were made, one hundred thirty-four in number, are set forth. It is also alleged that these payments, as fines and forfeited bail, were made upon the agreement that the laws of the state prohibiting the illegal sale of intoxicating liquors should not be enforced against the persons named; that no officer or policeman of the city should institute or permit any prosecution to be instituted against such persons; and that no arrest should be made to enforce such laws.
In the second count it is alleged that the city, through its officers, entered into agreements with persons keeping bawdy-houses and houses of ill fame, by which they were to be allowed a license to maintain such houses within the city on consideration that such keepers would pay to the city fixed sums, as fines, or deposits, in lieu of bail in simulated prosecutions. It is further alleged that when these sums of money were paid the keepers were privileged. to carry on the unlawful business, free from prosecution or interference by the officers, police court or policemen of the city.
There was a general denial filed by the city, but it was finally conceded and stipulated that the city had entered into and carried out the agreements set forth in the petition.
At the hearing the only defense urged by the city was that the state was estopped, or barred, from maintaining quo warranto on the first cause of action because of a judgment obtained by the state in March, 1887, ousting the city from exercising, or attempting to exercise, the power of authorizing, or licensing, the sale of intoxicating liquors. It is conceded that such a judgment was rendered. (The State, ex rel., v. City of Leavenworth, 36 Kan. 314, 13 Pac. 591.) It may also be conceded that the judgment in favor of the state, although rendered more, than twenty years ago, is not barred, nor its force weakened, by the lapse of time. That adjudication, however, does not deprive the state of the remedy of quo warranto as to subsequent acts and later abuses of corporate powers. The state is not estopped from maintaining the proceeding upon causes that have arisen since the rendition of the judgment in 1887. The methods and acts of the officers then in charge of the city government in con trolling the liquor traffic were the subjects of consideration in that case; and it was adjudged that they were unauthorized. Since that time many administrations have intervened, the statutes of the state upon the subject have been modified, and how far the city ordinances under which the officers then operated differ from those now in force does not appear. Nor do we know whether the methods and devices now employed by the officers to license the illegal sale of liquors, and to protect those engaged in it, are the same as those formerly employed. The municipality acts only through its officers, and its functions and powers are exercised by them. This case does not involve the corporate acts of the city officers of 1887, but the issue is whether the acts of the officers of 1907, and of the preceding period of two years, are unauthorized and constitute an abuse of corporate power.
The general .rule is, that a judgment is conclusive between the parties upon all questions directly involved in the issue and necessarily determined by it, but the estoppel of a judgment only applies to the facts as they existed when the judgment was rendered and do not extend to facts which have occurred since that time. (23 Cyc. 1161.) The fact that a party may have obtained a judgment against another does not bar him from subsequently asking for the same kind of relief against the same party, if conditions have changed and new facts and elements are brought in. (Guilford v. Western Union Telegraph Co., 59 Minn. 332, 61 N. W. 324, 50 Am. St. Rep. 407; Beckwith v. Griswold, 29 Barb. [N. Y.] 291; Morrison v. Beckey, 6 Watts [Pa.] 349; Standish v. Parker, 19 Mass. 20, 13 Am. Dec. 393; Meriwether v. Block, 31 Mo. App. 170; Stafford v. Maddox, 87 Ga. 537, 13 S. E. 559; Charles Dewey, Inspector of Finance, v. The St. Albans. Trust Co., 60 Vt. 1, 12 Atl. 224, 6 Am. St. Rep. 84; State v. Moores, 70 Neb. 48, 96 N. W. 1011; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Nesbit v. Riverside Independent District, 144 U. S. 610, 12 Sup. Ct. 746, 36 L. Ed. 562; Pittsburgh, C., C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 107 Fed. 781, 46 C. C. A. 639; 24 A. & E. Encycl, of L. 777.)
It will be noted that the former adjudication, under which the defendant would take cover, was not in its favor. On the other hand it decided that the officers then in control were acting in violation of law in granting licenses and giving protection to those engaged in the illegal sale of intoxicating liquors, and it is now confessed that the present officers are guilty of other violations of a like character. Under the circumstances the city is hardly in a position to insist that some of .the other remedies provided by law should be employed against it. The law specifically authorizes the use of quo warranto to restrain municipalities from usurping power and to hold them within the bounds of lawful authority. (The State, ex rel., v. City of Topeka, 31 Kan. 452; The State, ex rel., v. City of Leavenworth, 36 Kan. 314, 13 Pac. 591; The State, ex rel., v. Regents of the University, 55 Kan. 389, 40 Pac. 656, 29 L. R. A. 378.) The state in the exercise of its high prerogative right to see that the laws are observed and enforced chose the remedy of quo warranto rather than injunction, punishment for contempt, or other civil or criminal proceedings that' might have been employed. It is not to be deprived of a remedy expressly given because another may be available. The offending municipality, which admits that it is usurping a corporate power not conferred, and is doing that which is expressly prohibited by law, is not in a position to select remedies, nor to insist that it should have been punished for contempt of a judgment rendered more than twenty years ago prohibiting unauthorized acts of a similar character. It is contended that the defendant should not be burdened with the costs of another quo warranto proceeding, but this may be easily avoided by refraining from the abuse of corporate power and by yielding obedience to the laws of the state.
Judgment as prayed for will go in favor of the state in both causes of action. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action by James Murphy against the Missouri, Kansas &' Texas Railway Company to enforce an award made in a condemnation proceeding. In August, 1901, the Missouri, Kansas & Northwestern Railroad Company proceeded to condemn a right of way over land which was owned by Murphy and seven other persons, but the award made by the commissioners was unsatisfactory. The owners of the land appealed from the decision, and Murphy, who had a mining lease on the tract, of ten years’ duration, and to whom no award was made for his leasehold interest, took a separate appeal. The appeal of the owners was compromised and settled, but it was agreed that it should not affect the rights of the lessee, Murphy. His appeal was perfected in November, 1901, and while the railroad company took immediate possession of the right of way it did not give a bond for the payment of damages and costs to be ultimately awarded, as the statute provides.
A bond of that general character was subsequently given, but not until after the trial was over and judgment had been rendered. While the appeal was pending, and in May, 1902, the Missouri, Kansas & Northwestern Railroad Company sold and transferred its road, right of way, property and franchises to a connecting Missouri corporation, of the same name, and that company at once sold and transferred the same property, rights and franchises to the Missouri, Kansas & Texas Railway Company. This company has occupied and used the right of way since that time, and was in possession of it when the trial on the appeal was had, in June, 1903. The trial resulted in an award in favor of Murphy of $7000 as damages, and a judgment for costs in the sum of $546.70. The case was brought to the supreme court for review and the judgment of the district court- was there affirmed. (Railroad Co. v. Murphy, 71 Kan. 674, 81 Pac. 478.) The award and judgment were never paid, and the present action was brought against the Missouri, Kansas & Texas Railway to enforce payment.
The petition contained two counts. The "first was in the nature of ejectment, and the second set up the appropriation of the land by the railroad company, the condemnation proceedings, including the award of the commissioners, the appeal of Murphy and the final award by the court, the failure of the company to give a bond binding it to pay damages and costs, the transfer of the railroad and franchises by the condemning company to the defendant company, the occupation of the right of way by the defendant, its failure to pay the award, and, also, that the other companies were mere creatures and instrumentalities of the defendant; and it was then alleged that there were additional damages occasioned by the building of the road, such as the flooding and injuring of the mines, which prevented Murphy from operating them for more than a year. In the prayer for judgment the plaintiff asked for possession of the land; also for damages, and “for such other, further or different relief as-to this honorable court may be deemed equitable.”
The railroad company challenges the sufficiency of the petition, but as the ruling on the demurrer was made more than a year before the proceeding in error was instituted that ruling is not now open for review. (Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591; White v. Railway Co., 74 Kan. 778, 88 Pac. 54.)
An attack was made upon the petition by an objection to the admission of any testimony, but this is not the best method of testing the sufficiency of a pleading. Upon such an objection the court interprets its allegations very liberally, and sustains the pleading if it can reasonably be done. (The State v. School District, 34 Kan. 237, 8 Pac. 208; Robbins v. Barton, 50 Kan. 120, 31 Pac. 686.)
There is a contention that the judgment was rendered on a theory not presented by the pleadings, and that Murphy, by his petition and prayer for relief, asked for the recovery for the real property and then recovered on an award for damages for the occupancy of the same property. The first count, as we have seen, did ask for an eviction from the land, and the court in the early stages of the litigation appears to have proceeded on the theory that the action was ejectment, and awarded the second or new trial upon application. Before the final trial was begun, however, the railroad company attacked the petition on the ground of inconsistency, and the court then required Murphy to elect upon which count of his petition he would rely. He elected to try the case upon the second count, which operated to eliminate the ejectment- count, and questions raised on that branch of the case are no longer of any importance.
Under the rule of interpretation previously referred to the second count justified a recovery of the damages awarded. It set forth the proceedings resulting in the award for damages, the purchase of the railroad, and the possession of the right of way by the defendant. These averments, in connection with the prayer for general relief, warranted the judgment that was given. It is true that the prayer of the petition which asked for a recovery of the property was not amended after Murphy elected to try the case upon the second count alone. This oversight is easily understood, and under the circumstances could not have misled the company. Besides, in the opening statement of the case, counsel for Murphy expressly stated that he was claiming the award made in the condemnation proceeding and would introduce no-other evidence of damages than the proceedings and judgment in that case. Notwithstanding there was some surplusage in the second count, and the fact that there was a clause in the prayer asking possession of the condemned land, the right to recover the award was the question in fact tried and determined. As was held in Hardy v. LaDow, 72 Kan. 174, 83 Pac. 401:
“The demand of the plaintiff in his petition does not necessarily limit the court in the judgment which it may render. It is the case made by the pleadings and the facts proved, and not the prayer of the pleader, which measures the relief that the court may award.” (Syllabus.)
The fact that a mistake was made in the prayer for specific relief did not prevent the granting of such relief as the allegations of the petition and the circumstances of the case justified. There was a prayer for general relief, and under that the judgment actually rendered was authorized.
Since the action may be regarded as one upon the award made in the condemnation proceeding, can there be a recovery against the defendant? It purchased the right of way, the subject of litigation, during the pen-dency of the proceeding. It took possession of the right of way and.declared its intention permanently to occupy and use it, and, of necessity, is bound by the judgment subsequently rendered. The defendant elected to adopt the appropriation of a right of way made by its predecessor, and Murphy elected to submit to the appropriation and to claim the damages awarded. ■Having adopted the fruits of the litigation in this manner the railway company i§ bound by the judgment fixing the value of the land áppropriated and the amount of damages sustained.
In Indiana a new railroad corporation succeeded to the property, rights and franchises of its predecessor, and elected to adopt an appropriation of land made by the old company by entering upon and occupying th e same for the purposes of its railroad, and it was held that the new company was bound to make compensation to the owner; and, also, that where in appropriation proceedings the value of the land had been determined by a court of competent jurisdiction the new company was concluded by such judgment upon the question of value. (The Lake Erie and Western Railway Company v. Griffin et al., 107 Ind. 464, 8 N. E. 451.) In Gilman v. The Sheboygan & Fond du Lac Railroad Company, 40 Wis. 653, a judgment was taken against a railroad for the appropriation of land for a right of way, and was not paid. A mortgage upon the road was foreclosed and the purchasers sold the same to a new company, which continued to operate the road and use the land appropriated, and it was held that, the new company having elected to adopt and ratify the original taking and to use the land for the purposes of its road, the owner was entitled to the damages awarded, or to an injunction against the operation of the road over the land in the event of the non-payment of the judg'ment against the old company. (See, also, Western Pennsylvania Railroad Co. v. Johnston, 59 Pa. St. 290; Railroad Co. v. Harvey, 107 Pa. St. 319; Drury v. Midland Railroad, 127 Mass. 571; Ball, etc. v. Maysville & B. S. R. R. Co., etc., 102 Ky. 486, 43 S. W. 731, 80 Am. St. Rep. 362; Organ v. Memphis and Little Rock Railroad Company, 51 Ark. 235, 11 S. W. 96; Provolt v. The Chicago, Rock Island & Pacific Railroad Company, 69 Mo. 633; Mills, Eminent Domain, 2d ed., § 144; 2 Lewis, Eminent Domain, 2d ed., § 621; Randolph, The Law of Eminent Domain, § 296.)
This view of the law can hardly be said to have been a matter of contest in the trial court, as counsel for the railway company stated at the opening of the trial that the company took the railroad encumbered by the award to be made upon the appeal. He did not claim that the company was not liable for the award, but rather that Murphy could not recover the award in an action of ejectment. As the relief sought by Murphy was the recovery of the damages awarded, and not ejectment, it follows that this objection of the company was groundless. The possession by the railroad company during the appeal was provisional. The condemning company,, as well as the purchasing company, took possession of the right of way at the risk of the final award that might be made by the jury on the appeal. By continuing the occupation of the right of way without paying the award the railroad company became a trespasser, and the owner would have been justified in bringing an action of ejectment, or injunction,.but he waived his right to retake the land and only insisted on the milder remedy of asking the damages awarded.
It is true, as the railway company contends, that an award of damages in a condemnation proceeding is ordinarily not conclusive upon the company. If the award is deemed excessive the company may decline to take the land and adopt another route.- For that reason a judgment in 'personam is not taken in the first instance.' Here, however, the railway company exercised its option to hold the land and continue the use of the right of way after the damages had been fixed. 'It has built its railroad upon, and declares that it has made a permanent appropriation of, the right of way. Having exercised its option and appropriated the land its liability for the award becomes absolute, at the option of the owner to claim the award. The adjudication upon the appeal was as-binding upon the defendant as it could have been upon its predecessor if no sale or transfer of the railroad had been made.
Now the company contends, first, that the statute gives no authority to the owner to sue upon the award made in a condemnation proceeding; and, second, that such owner is limited to a recovery on the bond given to secure the payment of the award. The fact that the statute does not specifically provide a form of action for the enforcement of an award does not mean that it is not enforceable,, where a railroad company appropriates and uses the right of way. It indicates rather that any and all appropriate common-law remedies may be employed by the owner. Of course, there are remedies of ejectment, trespass, and permanent injunction against’the occupancy and use; but when these are waived, as in the present case, the remedy frequently used is the recovery of the award, with the alternative that, if the judgment is not paid within a specified time, the further occupancy of the land may be enjoined. There are many authorities holding that where damages have been ascertained and an award has been made in a legally constituted tribunal, and no specific provision is made for the enforcement of the award, the common law supplies the necessary remedy and an action in the nature of debt may be maintained. {Bigelow v. The Cambridge and Concord Turnpike Corporation, 7 Mass. *202; Jeffrey v. The Blue-Hill Turnpike Corporation, 10 Mass. *368; Corwith v. Village of Hyde Park, 14 Ill. App. 635; Blanchard v. The Maysville, Washington, Paris and Lexington Turnpike Co., 1 Dana [Ky.] *86; O. & N. W. R. R. v. Menk, 4 Neb. 21; Ganson v. The City of Buffalo, 1 N. Y. 454; Sage et al. v. City of Brooklyn, 89 N. Y. 189; 2 Lewis, Eminent Domain, 2d ed., § 609, and cited cases.)
The contention that Murphy was confined to an action upon the bond given by the railroad company in pursuance of the statute to secure damages to be awarded is not sound. The bond was not in fact given at the time and in the manner prescribed by the statute, and if it had been Murphy would not have been compelled to rely solely on an action upon it. The statutory provision is that when an appeal from an award is taken and the condemning company desires to take possession of the land and proceed at once to construct its railroad it may do so by paying or depositing the amount awarded and giving a bond with sufficient securities that it will pay the damages and costs that may be adjudged on the appeal. (Gen. Stat. 1901, § 1364.) The bond provided for is no more than a security for the payment of the damages to be ultimately awarded. To avoid delay in the building of a public highway the company is permitted to take possession of the land while the proceeding is still pending, and before the damages are finally determined, by giving the owner such indemnity as will protect him in case a larger award is made on appeal. Nothing in the statute nor in the nature Of the proceeding indicates a purpose to require the owner to rely alone on this security. In Fisher v. Warwick Railroad Co., 12 R. I. 287, the court had under consideration the question whether owners should exhaust the security given for the payment of damages to be 'finally awarded in a condemnation proceeding before they could maintain an action against the company on the award, and it was held that the bond was no more than what it purported to be — a provision for security for the payment of the award to be finally made, and that it did not bar or suspend the other remedies provided by law.
The right to damages and the extent of the recovery to which Murphy was entitled were settled by the judgment upon the appeal. That judgment is final as to the company which purchased the railroad during the pendency of the proceeding. Some of the questions discussed are therefore not open to inquiry and others of them do not appear to require special consideration.
The judgment of the district court is therefore affirmed. | [
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Per Curiam:
This was an action by D. J. Parks to recover the contract price of wheat sold and delivered by him to the Hutchinson Mill Company. The defense was by way of a counter-claim for damages, the mill company contending that it had bought several hundred bushels of wheat from the plaintiff at a certain price; that the price of the wheat had advanced; that plaintiff had delivered only a portion of the wheat, and had refused to deliver the balance; and that the defendant had been damaged by reason of the plaintiff’s breach of contract more than it owed him for the wheat delivered.
The plaintiff denied having sold more wheat than the amount delivered. Upon this question the evidence was conflicting. The cause was tried by a jury, and they found for the plaintiff and judgment was rendered on the verdict.
There are no questions of law argued and no assignments of error in the brief. The only contention of counsel for defendant is that the jury did not follow certain instructions. The instructions referred to stated at' some length the facts as claimed by the defendant, and the jury were told that if they found the facts to be as contended for by the defendant their verdict should be for it. Since their verdict was against the defendant we conclude that they did not find the facts to be as claimed by the defendant, and as there was conflicting evidence there was no error in this.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
Margaret Magee entered into a written contract with Mortimer A. Benton to sell and convey to him the east half of the southwest quarter and ten rods off the south side of the northwest quarter of section 6, township 32, range 8 west, for $800. This suit was brought by Benton for specific performance.
' The petition alleged the making of the contract; that Margaret Magee put plaintiff in possession of the land; that he fully performed all conditions on his part; and that defendant had deeded to him the east half of the southwest quarter of section 6, township 32, range 8 west, but had refused to give him a deed to the ten rods off the south side oí the northwest quarter of the section.
The defendant answered that when she entered into the contract she was the owner of the west half of the northwest quarter of the section, and that the east half of the southwest quarter and the east half of the northwest quarter of the section belonged to her insane son; that she was not the guardian of his property; that subsequently she refused to carry out the contract, and so informed plaintiff; that after her refusal she agreed, in consideration of $800, to be paid to her as guardian, to have herself appointed guardian of the estate of her insane son and obtain an order from the probate court to sell his lands, and to execute to plaintiff a guardian’s deed to the east half of the southwest quarter of the section; also a small tract of the southwest corner of the east half of the northwest quarter of the section; and for ten dollars per acre deed to him of her own land two acres along the south side of the west half of the northwest quarter of the section; that she was appointed such guardian, and obtained the order of the probate court to sell her insane son’s land; that she executed and delivered to plaintiff a guardian’s deed to the east half of the southwest quarter of the section, and also executed and tendered a guardian’s deed to the small tract in the southwest corner of the east half of the northwest quarter of the section, and also her individual deed to two acres off the south side of the west half of the northwest quarter of the section; and that plaintiff accepted the first, but refused the last two deeds.
The plaintiff denied the making of the new contract. Upon the issues thus joined a trial was had by the court, which resulted in a judgment for the defendant, and the plaintiff prosecutes this proceeding in error.
The contention of the plaintiff is that the judgment of the trial court is not supported by the evidence. Whether or not the parties entered into a new oral contract differing from the one reduced to writing was de cided by the trial court, upon conflicting evidence, according to the contentions of the defendant. In determining the question reserved for us we are concluded by the findings of the trial court upon that question. The plaintiff, anticipating this position, contends that the oral agreement alleged to have been made is void for want of consideration, and should not have been given any consideration in determining the disputed questions.
It is a well-recognized rule that a subsequent oral agreement to accept part performance of a written contract in satisfaction of full performance or a parol agreement to accept less than full payment for a present existing written obligation, without other consideration, is void for want of consideration. The trial court having found for the defendant upon the theory of the new- agreement, we must give all the provisions, terms and conditions of that agreement as alleged by the .defendant full force in determining whether a consideration exists. When this is done it plainly appears that it was not without consideration.
In the written contract Margaret Magee bound herself personally to convey the land described. She was the owner of only five acres of the ninety. She was not the guardian of her insane son, who owned the other eighty-five acres, consequently specific performance could not have been enforced as to the land belonging to the insane son. Benton agreed to pay $800 for the five acres belonging to Margaret Magee and the eighty-five acres belonging to her son. By the terms of the -oral agreement Magee agreed to have herself appointed guardian of the estate of her son, and agreed that she would secure an order authorizing her to sell his lands; that she would then, as guardian, sell to the plaintiff ;about eighty-óne acres of the land described in the original agreement belonging to her son for .$800, the price he had agreed in the original contract to pay for thé eighty-five acres belonging to her son and the five acres belonging to herself. And she also agreed to convey to him two acres of her own land instead of five acres, as provided in the original' contract, for which he agreed to pay ten dollars per acre. According to the new contract the plaintiff was to pay more money and get less land than was agreed upon in the original contract. These different terms and conditions furnish a consideration for the new contract.
Covered" by the- general finding of the court is the finding that Magee had fully complied with her verbal agreement.' She had executed and delivered a good guardian’s deed to the east half of the southwest quarter of the section, which had been accepted by Benton. She had also executed and tendered to him a good guardian’s deed to the tract in the southwest corner of the east half of the northwest quarter of the section, and had executed and tendered to' him a warranty deed to two acres off the south end of the west half of the northwest quarter of the section, which last two deeds he declined to accept.
The judgment is affirmed. | [
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Per Curiam:
Considering the evidence in its aspect most favorable for the plaintiff the demurrer to the evidence was properly overruled. Applied to the facts of this case instructions 14 and 15 were erroneous and prejudicial to the plaintiff, and the new trial was properly granted on account of them.
The facts specially found do not warrant a judgment in favor of the defendant, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order of the district court overruling the demurrer of an heir, the widow of a decedent’s estate, to a petition of the administrator for final settlement and distribution and the overruling of the same demurrer to two portions of separate answers of an heir, the decedent’s daughter, to two separate petitions filed by the widow setting forth her alleged claims to and interest in the decedent’s estate. The petitions and answers were all filed in the probate court. The demurrer was filed by the widow in the district court.
We shall refer to the appellant as the widow and to appellee as the daughter. Although the administrator is also shown as an appellee the parties concede he is not really a necessary, party to this appeal. In order, however, .that the procedure pursued may be clear we shall, in substance, set forth the administrator’s petition for final settlement and distribution.
The above mentioned petition of the administrator, in substance, alleged the widow was entitled to no portion of the estate and the .daughter was entitled to all assets of the estate, except the necessary expenses and costs of administration, by virtue of a marriage agreement entered into by the deceased husband and the widow which the administrator denominated as a postnuptial agreement. The widow was the daughter’s stepmother. The probate court records show that about five months after the first publication of the administrator’s notice to creditors the administrator’s attorney filed in the probate court a certified instrument purporting to be a marriage agreement executed by the decedent and the widow on July 21, 1942, and recorded by the register of deeds of Montgomery county on July 23, 1942. The daughter filed no claim asserting rights thereunder within the statutory period for filing claims. In her petition for administration the daughter alleged she and the widow were decedent’s sole heirs at law. The widow promptly answered claiming the rights of heirship as a widow and one-half of decedent’s estate.
We come now to later pleadings filed in the probate court to a portion of which the widow demurred in the district court and to the order from which she has appealed to this court. These pleadings were all filed after the administrator’s report for final settlement but before judgment of final settlement and distribution. The pleadings were all filed after the nine months’ period of the non-claim statute.
In the first of these petitions the widow sought a widow’s allowance in the sum of $750 and one-half of the estate. She alleged a marriage agreement under date of July 21, 1942 (the agreement was not set out), had been orally revoked during the marriage on the ground it was considered unfair to her.
In the second and later petition the widow sought an order allowing her the proceeds of the sale of described city real estate which she alleged had been her and decedent’s homestead. This property had been sold on a contract of installment payments during decedent’s lifetime.
The answers of the daughter to those petitions of the widow asserted the marriage agreement as the basis of her claim that she was entitled to the entire estate. This was the first time the marriage contract was set up in a pleading as the basis of the daughter’s claim to the estate. The daughter alleged that agreement was a bar to the widow’s rights of inheritance, to a widow’s allowance and to homestead rights. The widow’s demurrer, filed in the district court, challenged those portions of the daughter’s answers and the petition of the administrator for final settlement which were based on the marriage contract. By the demurrer it appears the widow attempted to obtain a ruling on the legal question whether ' the marriage contract barred her from obtaining a widow’s allow anee, a homestead interest or one-half of the estate. Another ground of the demurrer was that the marriage contract pleaded by the daughter, as the basis of her claim, constituted a claim or demand against the estate and that it was not filed within the period of the nonclaim statute.
Portions of the daughter’s first answer other than those above mentioned denied the marriage contract had been abrogated.
Portions of the daughter’s second answer, other than those challenged by demurrer, alleged the property which the widow claimed as a homestead, if it ever was the homestead, had been abandoned as a homestead several years before decedent’s death and that other property owned by the widow individually had been their home for many years.
We therefore find factual issues joined by the widow’s petitions and the answers of the daughter relative to whether the marriage agreement continued to be operative and also whether the real estate in question constituted a homestead. Neither of those factual issues had been determined by the district court. If the marriage contract were in fact abrogated during the marriage the widow’s rights could not be 'affected by the previous contract and no rights accrued to the daughter by reason of such canceled contract. So long as the pleadings clearly presented such factual issues the demurrer was properly overruled. This is true irrespective of whether the ruling was based on the theory we have stated or whether it was based on the court’s interpretation that the contract barred all rights of the widow. The ruling must be affirmed if it was correct on any theory. From what has been stated it must not be inferred we are now determining the legal effect of the marriage contract.
This brings us to the widow’s contention the marriage contract was pleaded by the daughter for the purpose of establishing she was not merely entitled to a child’s share of the estate by inheritance, but that she was the owner of the entire estate by virtue of the contract, less the expense and costs of administration; if the contract entitled her to receive some particular portion of the estate, or all of the estate as the daughter contends, then such a contract constitutes a claim or demand against the estate and against the interests of the other heir, the widow, which the daughter was required to file in the probate court within the statutory period and in the manner provided by law; that was not done and the administrator could not waive the requirement.
The widow cites sections of the 1947 Supp. requiring, and cases holding that every application in the probate court must now be by petition (59-2201); demands are exhibited by filing a petition in the probate court (59-2237) and unless so exhibited within nine months after the date of the first published notice to creditors the claim or demand is barred (59-2239); In re Estate of Dotson, 154 Kan. 562, 568, 119 P. 2d 518; In re Estate of Whittelsey, 156 Kan. 157, 160, 131 P. 2d 911. The daughter does not contend she complied with any of such statutory requirements. If she prevails it must be on another theory to be stated later.
The decedent died intestate. The heirs at law were the widow and the daughter. If there were no contract, and there was no will, the widow would be entitled to the rights of an heir and widow under the law. The daughter as the other heir would be entitled to a child’s share under the law of intestate succession.
The question, therefore, is whether, assuming the marriage contract entitles the daughter to the entire estate, as she contends, it constitutes a claim or demand against the estate. The widow concedes the daughter would not be required to file a claim if she were claiming only an heir’s, a child’s, share by inheritance. That is true. (In re Estate of Grindrod, 158 Kan. 345, 361, 148 P. 2d 278; Houdashelt v. Sweet, 163 Kan. 97, 101, 180 P. 2d 604.) The widow, however, contends the daughter is not claiming merely an heir’s, a child’s, share by inheritance, but on the contrary is asserting additional rights in and to the estate not based upon inheritance at all but upon a specific contract made by her father and stepmother for the daughter’s benefit. The widow’s contentions may be summarized by stating: The daughter is seeking the enforcement of a contract which the daughter claims entitles her to a larger share of the estate than a child’s share by inheritance; the assertion of such rights in and to the assets of the estate is a claim or demand which will take from the estate the amount another heir, the widow, would take by inheritance and under the law as a widow; the allowance of the daughter’s claim will, therefore, leave nothing in the estate to be distributed to the other heir, the widow. In support of the widow’s contention that such a contract constitutes a claim or demand she cites the following cases based on contractual rights to all or portions of an estate: Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Dixon v. Fluker, 155 Kan. 399, 125 P. 2d 364; Yeager v. Yeager, 155 Kan. 734, 129 P. 2d 242; Swisher v. Bouse, 155 Kan. 797, 130 P. 2d 565; Burns v. Drake, 157 Kan. 367, 139 P. 2d 386. Those cases and others are cited in Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450, also relied on by the widow. It is true that concerning those cases and others we said in the Gantz case:
“In none of the above cases was the claim or demand against the estate for money. In each case it was specifically a claim or demand to all or a portion of the decedent’s estate and was based upon the theory that claimant was entitled to be decreed the owner thereof.” (p. 394.)
The widow also relies on cases holding the probate court has exclusive original jurisdiction to determine the title, legal or equitable, to real estate where necessary to settlement and distribution of decedent’s estate and that unless such claim is filed within the period of the nonclaim statute it is barred. (Gantz v. Bondurant, supra; In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501; In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515; In re Estate of Pratt, 164 Kan. 512, 517, 190 P. 2d 872, in which Houdashelt v. Sweet, supra, and other cases are cited.)
The widow directs attention to Burns v. Drake, supra, in which the petitioner claimed a particular portion of the decedent’s estate, real property, by virtue of a contract with the decedent and in which we said:
“If one who contests a will must now start in the probate court and appeal is barred after nine months, why should not one who claims a right, either legal or equitable, to estate property as against those claiming by inheritance be required to assert his claim within a nine-months period? We think that was the legislative intent and see no hardship in the requirement.” (p. 371.)
To the same effect the widow sites Gantz v. Bondurant, supra, p. 394.
In the Hill case, supra, the husband and widow had executed an antenuptial contract giving the widow a homestead in certain property for life together with its furnishings. A subsequent will executed by the husband with the widow’s consent gave her the same homestead and furniture for life. The homestead and furnishings were later sold by them jointly. It was held the clause of the will which gave her that specific property was adeemed by reason of having been sold and not being a part of his estate at the testator’s death. The district court, however, concluded as a matter of law, that the antenuptial contract was binding and that the widow should receive an amount out of the assets of the estate equivalent to the home and furnishings. The antenuptial contract had not been filed by the widow within the period of the nonclaim statute. We reversed the trial court on the grounds the court could not make a new will for the parties and thereby give the widow an amount out of the estate in lieu of the homestead and by concluding further that the antenuptial contract constituted a claim or demand which, not having been filed within the statutory period, could not be asserted; that the administrator could not waive the necessity of proving the antenuptial contract as a claim within the statutory period.
The widow emphasizes the fact that in the Hill case the parties made no contention the antenuptial contract constituted a claim or demand which had to be filed within the period of the nonclaim statute and that notwithstanding the absence of such a contention this court said:
“Although not mentioned in the briefs, there is a matter implicit in the judgment of the district court which we think should be mentioned and decided. As has been stated, the district court’s judgment was grounded solely on the binding force of the antenuptial contract. If that judgment is carried out Delta Moss Hill will receive an amount out of the assets of the estate which was not bequeathed to her, and thus the amount to be received by the residuary legatees will be reduced. Under our decisions, whatever rights Delta Moss Hill had under the antenuptial contract, as interpreted by the district court, constituted a demand against the estate of J. E. Hill. (See, e. g., In re Estate of Grindrod, 158 Kan. 345, syl. ¶ 5, 148 P. 2d 278; Gantz v. Bondurant, 159 Kan. 389, 155 P. 2d 450; and In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501.) Under the provisions of G. S. 1945, 59-2239, it was necessary, if Delta Moss Hill had a demand against the estate of J. E. Hill, that she make claim thereon within the time provided by that statute. Delta Moss Hill did not file any claim in the time fixed. Under such circumstance, the executor was without power to waive the statute of limitations or nonclaim (Allen v. Turner, 152 Kan. 590, syl. ¶ 2, 106 P. 2d 715; In re Estate of Badger, 156 Kan. 734, syl. ¶ 1, 137 P. 2d 198) and if, in an attempt to prove such a claim, is developed it was barred, it was the duty of the court to disallow it. (Hammond v. Estate of Hammond, 150 Kan. 113, 91 P. 2d 19.) It follows that Delta Moss Hill, not having filed her claim in the probate court, may not recover from her husband’s estate on account of their antenuptial contract.” (p. 392.)
The widow asserts the fundamental principle in the instant case is the same as in the cases she has cited. She states that in the instant case the marriage contract, if interpreted and allowed as the daughter contends, will enable the daughter to appropriate to herself a larger amount out of the assets of the estate than she would inherit as an heir at law and that the amount to be received by the other heir, the widow, would not only be reduced thereby but entirely wiped out.
On the other hand the daughter contends: G. S. 1947 Supp. 59-2236 shows that claims and demands apply only to creditors of an estate; an heir, when a decedent dies intestate, is not required to make a claim or demand for his inheritable share; the widow in the Hill case was an outsider trying to get something out of the decedent’s estate while in the instant case the daughter is claiming as an heir; G. S. 1947 Supp. 59-2247, which provides for notice of final settlement, permits heirs to assert their claims against an estate, or to any part thereof, at any time up to and including the hearing for final settlement and distribution.
G. S. 1947 Supp. 59-2247 provides:
“The petition of an executor or an administrator for a final settlement and accounting, and a determination of the persons entitled to the estate of a decedent, shall, in addition to other requirements, contain: (1) A statement of the account; (2) the names, residences, and addresses of the heirs, devisees, and legatees; (3) a description of the real estate and the interest of the decedent therein at the time of his death; and (4) the nature and character of the respective claims of the heirs, devisees, and legatees of the decedent. Notice of the hearing thereof shall be given pursuant to section 185 [59-22091.”
G. S.. 1947 Supp. 59-2209 referred to in the previous section pertains to the nature of the notice for a hearing which must be given where a statute expressly refers to such notice section. G. S. 1947 Supp. 59-2210 sets forth the substance of a notice of hearing wherever notice of a hearing is required.
Although this court does not agree with all of the daughter’s above contentions it is of the opinion the allowance of the marriage contract, assuming it entitles the daughter to the entire estate and deprives the widow of all rights therein, takes nothing out of the estate which would otherwise be left for distribution to the other heir, the widow; it determines only which of the heirs will receive the assets of the estate and does not constitute a claim or demand against the estate; it may be asserted by the other heir, the daughter, at the hearing for final settlement and distribution as a defense to a prior pleading of the widow in which she claims as an heir and widow.
The motion of the daughter to dismiss the appeal in the instant case has been examined and found to be without substantial merit. The order of the district court overruling the widow’s demurrer is affirmed.
Harvey, C. J., concurs in the affirmance of the judgment of the trial court. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from a judgment rendered in an action brought for a declaratory judgment. The facts of the case are as follows;
A. E. Frazier, the owner of the fee simple title to 1,760 acres of real estate in Gray county, Kansas, died in December, 1938. In 1934 he and his wife, Elva, executed a joint last will and testament and following his death it was admitted to probate by th& probate court of Gray county. Administration was completed in January, 1940, and the estate regularly closed. The will devised all real estate to the widow, Elva, for life, with contingent remainders to their eight children, with substitutional contingent remainders in favor of the issue per stirpes of any of their said children who should be deceased at the date of death of Elva. He was survived by his widow, Elva, and eight adult children, all of the latter being married and having minor children of their own. One of these adult children subsequently died, leaving a widow and two children surviving.
From this point on the factual background is best disclosed by summarizing the allegations of the petition for a declaratory judgment filed on the 10th day of November, 1948, by Mid-Continent Petroleum Corporation, a corporation, hereinafter referred to as Mid-Continent, and in which action Elva A. Frazier, being the same person as Elva above mentioned and hereinafter referred to as Mrs. Frazier, and The First National Bank of Cimarron, Kan., a corporation, were defendants.
Following formal allegations as to incorporation and residence the petition recited that prior to April 13, 1948, Mid-Continent had carried on various oral negotiations with the defendant, Mrs. Frazier, toward the end of securing an oil and gas lease covering the full fee simple title in and to certain described real estate in Gray county, Kansas; that Mrs. Frazier represented she owned and/or was the agent for all owners of interests in said property and that she would secure execution of and deliver to Mid-Continent an oil and gas lease covering the fee simple title to the land and would furnish abstracts of title covering the same showing merchantable title in and to the property and that Mid-Continent had agreed to pay Mrs. Frazier the sum of $1,760 provided said title was acceptable as merchantable.
That thereafter and on or about June 1, 1948, Mrs. Frazier delivered to Mid-Continent an oil and gas lease dated April 13,1948, covering the 1,760 acres of real estate involved, signed and acknowledged by her and the adult children of the parties and their spouses, the terms of said lease not being presently material for our discus sion; that thereafter Mrs. Frazier furnished abstracts of title covering said real estate certified to dates subsequent to April 13, 1948; that upon examination thereof by the attorneys for Mid-Continent it was determined by Mid-Continent that there were numerous defects in the title and particularly that the ownership of Mrs. Frazier and the other parties executing the lease was subject to various outstanding and contingent interests, the extent and ownership of which could not be determined' until the death of Mrs. Frazier, she being the life tenant in said property under the will.
That thereupon Mid-Continent and Mrs. Frazier entered into a written agreement under date of August 18, 1948, which provided that the lease was to be placed in escrow with the defendant, The First National Bank of Cimarron, pending further proceedings; that Mrs. Frazier would cause to be instituted and concluded in a court or courts of proper jurisdiction any and all legal actions as might be necessary for the purpose of procuring and establishing a merchantable and marketable oil and gas lease covering the real estate; that she was to use her best efforts and reasonable diligence in all matters pertaining to the same, to furnish abstracts of title certified to a date subsequent to the completion of all such legal actions or proceedings as might be necessary to establish such merchantable title as aforesaid and to permit Mid-Continent a reasonable time thereafter in which to examine and approve or reject such title. Mid-Continent agreed to deposit with the escrow agent bank the sum of $1,760 to be delivered to Mrs. Frazier or returned to Mid-Continent subject to future proceedings and agreed to reimburse Mrs. Frazier one-half of all legal or other expenses incurred by her in her reasonable efforts to furnish such merchantable title.
The petition then recited that on the next day, August 19, 1948, Mrs. Frazier as plaintiff instituted in the district court of Gray county a certain action, No. 5169, in which all of the living children and grandchildren, together with their spouses, were named as Group One defendants and certain other miscellaneous corporations and parties as might be claiming an interest in the real estate described were named as Group Two defendants. The prayer of the petition was for a judgment of the court construing the will with respect to the nature, extent and contingency of the interests of all parties to said suit, to quiet title against those defendants named in Group Two and to appoint a trustee to represent the known and unknown, born and unborn persons who may upon the death of Mrs. Frazier constitute the owners of the remaindermen’s interests and all other interests in and to the real estate described in the petition, with full power and authority to make, execute and deliver an oil and gas lease upon said real estate either separately or by joining with the plaintiff or other owners of interests therein.
That on October 21, 1948, the court entered judgment in accordance with the allegations and prayer of the petition in that it construed the last will and testament (such construction not being here important for our purposes), quieted the title to said real estate as against Group Two defendants and appointed and designated one Lilliebelle Egbert, a daughter of A. E. Frazier, deceased, and Mrs. Frazier, as trustee for and on behalf of all of the outstanding or contingent interest-holders in the real estate in question with full power and authority to make, execute and deliver on behalf of said interest-holders an oil and gas lease covering said real estate or to join as aforesaid in the execution and delivery of the lease.
That on the same date the judgment was rendered, October 21, 1948, Lilliebelle Egbert duly qualified as such trustee and on behalf of all other interest-holders executed the oil and gas lease in question and shortly thereafter delivered to Mid-Continent abstracts of title certified to date, which included copy of the court proceedings in case No. 5169, and advised the defendant bank as escrow agent that title to the lease was merchantable and marketable and requested payment from the escrow agent of the sum of $1,760 which had been deposited by Mid-Continent. That upon the abstracts of title being examined by counsel for Mid-Continent, it was determined that title to the oil and gas lease was not yet merchantabe in that it was not executed by all living interest-holders, namely, the minors, or by a duly authorized representative in their behalf, the contention being made that the judgment of the court in case No. 5169, insofar as it purported to authorize the trustee to execute a binding lease covering the interests of the minor living children, was without authority of law, beyond the jurisdiction of the court, void and of no effect.
The petition then alleged that an actual controversy existed between the parties, and the prayer was that the court render a declaratory judgment as follows:
. . Whether or not the oil and gas lease executed, by the Trustee appointed in case No. 5169 covers and is binding upon all interests owned by the minor defendants in said action.”
The defendants, Mrs. Frazier and the escrow agent bank, filed their entries of appearance and the answer of the former admitted that an actual controversy existed between Mid-Continent and her but denied the correctness of its contentions and prayed that the court render a declaratory judgment.
The case came on to the court for hearing on November 22,1948, and the court found that the actual controversy existing between the parties was whether or not the judgment and decree in case No. 5169 entered on October 21, 1948, appointing Lilliebelle Egbert as trustee, was valid and binding on the minor defendants in the action and whether or not the oil and gas lease executed by the trustee was merchantable and binding upon all of the interests owned by the minor defendants.
The court upheld its former judgment rendered in case No. 5169 and ruled that the lease executed by the trustee was merchantable and marketable and covered all interests in and to the property described therein, and authorized and directed the escrow agent to deliver the lease to Mid-Continent and to pay over to Mrs. Frazier the amount deposited by Mid-Continent with the agent.
Mid-Continent’s motion for a new trial being overruled, it appealed to this court.
From all of the foregoing facts it is clear to us that Mid-Continent wanted this oil and gas lease on the real estate in question and that all of the interest-holders wanted to give it to Mid-Continent but that all parties were in doubt as to just how to handle the matter. In fact, this appears to be the only reason behind the filing of case No. 5169 — so as to get a ruling by the court on the legal question involved. In that case the court held that a trustee appointed by it had such authority. No appeal was ever taken from that judgment. Mid-Continent still was not sure of its ground and filed this action for a declaratory judgment. Stripped of all excess phraseology and technicalities the contentions of the parties really are as follows: Mid-Continent, in its brief and argument to this court, argues that the probate court has the exclusive and original jurisdiction to authorize the giving of an oil and gas lease covering property in which minors have an interest, while 'the other side contends that the lease can be executed for and on behalf of the minors by the trustee appointed by the district court. In other words, Mid-Continent thinks that the decision of the court in case No. 5169 is bad and the other parties seek to uphold it.
If we considered it necessary to decide the question, we would have considerable difficulty in holding that an “actual controversy” within the meaning of our numerous decisions (See Garden City News v. Hurst, 129 Kan. 365, 282 Pac. 720; City of Cherryvale v. Wilson, 153 Kan. 505, 510, 112 P. 2d 111) exists between the parties to this action. But assuming for the purposes of this case that one does exist — still, we are confronted by another proposition.
The briefs of both parties are taken up with this one question-should the leasing of the minor’s interests be handled by a trustee appointed for that purpose by the district court or should it be accomplished through guardianship proceedings in the probate court? That is all there is to this lawsuit.
In other words, what the parties actually are attempting here is to test the validity and correctness of the judgment rendered by the same court in case No. 5169 from which no appeal was ever taken. We do not consider the bringing of an action for a declaratory judgment to be a substitute for appeal. (See 1 C. J. S., Actions, 1027, §18, d. [8].)
The proper way to test the correctness of that judgment would have been to appeal from it rather than to attempt such test by a proceeding which in reality constitutes a collateral attack. Generally, it is well established by our decisions that a judgment cannot be attacked in a collateral proceeding unless it is made to appear that the judgment is void. (Brotton v. Luther, 141 Kan. 489, 41 P. 2d 1017; Federal Savings & Loan Ins. Corp. v. Hatton, 156 Kan. 673, 135 P. 2d 559, and cases cited therein.) True, Mid-Continent refers to the judgment in the former case as being “void” in that the district court had no jurisdiction to render it — -but as we have already shown what the parties actually seek is for this court to pass on the correctness of that judgment. We cannot do so in the case before us.
And we think there is still a further reason why the instant action cannot be maintained. This suit was brought by Mid-Continent, the proposed lessee, against Mrs. Frazier and the escrow agent bank as defendants, but the action itself seeks to determine rights of persons not even parties to the suit.
From what has been said it therefore follows that the judgment of the lower court is reversed, with directions to dismiss the action. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to enjoin defendant from violation of an alleged contract with plaintiff. Judgment was for the plaintiff. Defendant appeals.
The petition alleged that plaintiff was a nephew of defendant and both resided on what will be called in this opinion “Stony Point Farm” in Allen county; that defendant acquired the farm in December, 1946, and he and his wife made it their home until the wife’s death on November 21, 1947; that prior to the death of defendant’s wife plaintiff was not a resident of Allen county but he and his wife resided at Pampa, Tex., wher.e he had been operating an oil well service since July, 1946; that after the funeral service for defendant’s wife, defendant asked plaintiff and his wife to accompany him to Stony Point Farm; that while there defendant proposed to the plaintiff:
“That if plaintiff would give up his home and business at Pampa, Texas, and the plaintiff and his wife come to live with the defendant at Stony Point Farm and provide him with the comforts and conveniences of a home at Stony Point Farm and care for him and operate said farm for him, he (the defendant) would protect plaintiff from any loss in the operation of his business at Pampa, Texas, until it could be sold and he (the defendant) would stock said farm, furnish the necessary capital and any additional necessary labor to operate and develop said farm and home and at his (the defendant’s) death said farm and the farming equipment and stock thereon would be plaintiff’s property in payment for such services rendered him by plaintiff and his wife.”
The petition further alleged that plaintiff verbally accepted such offer; that plaintiff then returned to Pampa; placed his business in the hands of others; his wife gave up a $50 a week secretarial position and they moved their household goods and furnishings to Stony Point Farm to make their home with defendant so defendant could begin the performance of his contract; that plaintiff and his wife returned to Stony Point Farm about the 11th of December, 1947, and made their home there and continued so to do in the performance of plaintiff’s agreement with defendant until suit was filed; that plaintiff and his wife were 34 years old and were in good health and fully able to perform and continue the performance of the agreement with defendant; that defendant had farm machinery of the approximate value of $10,000; that he owned various residential properties at Guthrie, Okla.; farms with producing oil wells and about 4,200 acres of wheat land in Wyoming and personal property and by reason of all of these resources defendant was able to complete stocking the farm and furnishing the necessary capital for its development and operation; that defendant expressed his satisfaction with plaintiff’s acceptance of his offer; that he purchased groceries and other provisions for the home; incurred the expenses of redecorating the rooms in the home to be occupied by plaintiff and his wife; plaintiff with his wife established themselves in the home with defendant; plaintiff’s wife cooked the meals; kept the house; did the washing and ironing and other household tasks; looked after defendant and made him comfortable; helped him when he was not feeling well and needed attention; that the parties were congenial and the home life pleasant and agreeable; that defendant already had considerable farm machinery on the farm and pur chased additional machinery and equipment; that the crops were planted in the spring when the action was filed and a man hired to help with the farm work; that when defendant was not present to make purchase of food, groceries and pay other expenses necessarily incurred in operating the farm and home, plaintiff paid for the same and defendant reimbursed him for the first part of these expenditures; that plaintiff, with the help of his wife, had performed every part of the agreement the defendant would permit him to do and that they had given defendant their love, affection and companionship and plaintiff stood ready, willing and able to continue in the performance of the contract for the remainder of defendant’s life, and that for reasons unknown to plaintiff and his wife and which defendant refused to divulge the defendant did at the time of filing the action and-had in recent weeks refused to further pay any of the expense of operation of the farm and home, forbid plaintiff to work in the field or otherwise operate the farm, refused to converse with the plaintiff and had not stocked the farm with livestock; that defendant now demanded that plaintiff and his wife leave the farm; said he was going to sell it; that on account of having relinquished their home at Pampa, Tex., plaintiff and his wife had no other home than that which defendant induced them to make with him at Stony Point Farm; that plaintiff and his wife had no other business or source of income than through plaintiff’s continuing the performance of his agreement with the defendant, which plaintiff was willing, ready, able and desired to continue to do; that plaintiff had no adequate remedy at law and unless defendant was enjoined from breaching his contract plaintiff would suffer irreparable loss which could not be compensated in damages; that plaintiff believed defendant would force plaintiff and his wife to leave the farm and thus make it impossible for him to continue in the performance of his agreement with the defendant and that defendant intended to sell the farm and the farm implements and equipment thereon and make it impossible for plaintiff to continue in the performance of his agreement unless he was enjoined from doing so.
The prayer of the petition was that defendant be enjoined from the violation of his contract and for all proper, equitable relief.
The defendant first demurred to the petition on the ground it did not state facts sufficient to constitute a cause of action. This demurrer was overruled.
For an answer, defendant denied generally all the allegations of the petition except that he admitted he was 78 years of age and that plaintiff was his nephew; that he was the owner of the land in question; that the plaintiff was then occupying part of the house located on the farm but denied plaintiff had any right to such occupancy.
The defendant specifically denied that he made the contract set out in the petition and alleged that if it had been made it was void by reason of the statute of frauds, that is, chapter 33, G. S. 1935.
The answer further alleged that if the contract was made that plaintiff had an adequate remedy at law and if it was breached plaintiff could be compensated in damages.
The reply was a general denial.
The trial court found that the contract was made, as follows:
“That plaintiff give up his home and business at Pampa, Texas, and that plaintiff and his wife live with the defendant at Stony Point Farm, provide defendant with the comforts and conveniences of a home at Stony Point Farm, and care "for defendant and operate said farm for defendant, and that, defendant protect plaintiff from any loss in the operation of his business at Pampa, Texas, until it could be sold, and that defendant stock said farm, furnish the necessary capital and any additional necessary labor to operate and develop said farm and home and that at defendant’s death said farm and farming equipment and stock thereon be plaintiff’s property in payment of such services rendered him by the plaintiff and his wife.”
This agreement was madé about November 24, 1947, and by its terms on its final and complete performance on the part of plaintiff, he would be entitled to receive the farm and personal property at the death of the defendant.
The findings then described the farm and found judgment should be rendered in favor of the plaintiff and against the defendant and enjoined the defendant from selling, disposing of, encumbering, mortgaging, alienating, assigning, bequeathing, devising or willing Stony Point Farm, or any part thereof, together with all personal property on the land, and defendant was enjoined from dispossessing or putting the plaintiff and his wife off the property. The closing words of the judgment were as follows:
“The defendant may farm said lands himself or with the help of the plaintiff, or defendant may rent out the tenant house and farming land under farm lease from year to year during defendant’s life time, but defendant is enjoined, restrained and prohibited from dispossessing and putting plaintiff and his wife off of said property and from preventing or hindering plaintiff from holding himself in readiness there to continue the performance of his agreement with the defendant.”
The defendant filed a motion for a new trial for the reason that the verdict was not sustained by sufficient evidence, was contrary to law and on account of error of law occurring at the trial and excepted to at the time by him.
This motion was overruled and defendant has appealed.
It should be noted here that at the close of plaintiff’s evidence the defendant demurred to it and that demurrer was overruled.
The defendant appealed from the order overruling his demurrer to the petition of the plaintiff, from the order overruling his demurrer to the evidence and motion for judgment and from the orders wherein the court rendered judgment in favor of the plaintiff and against the defendant and from the order overruling defendant’s motion for a new trial.
The argument of defendant is first that the contract pleaded was unenforceable because of the statute of frauds; that it was not in its terms sufficiently definite or certain to be enforceable; that the contract and evidence used to prove it lacked mutuality of remedies and could not be enforced in equity; that the petition and evidence showed that any claim the plaintiff might have could be compensated in damages and that the judgment of the district court was not consistent with the law and facts, was not equitable and not in conformity with the rules and law of equity.
At the outset, it may be said there was clearly sufficient evidence to prove that the contract pleaded was made. The plaintiff and his wife both testified to it and if the court believed them that waá substantial evidence. The argument of defendant really is that the contract was not such a contract as equity will enforce. On the other hand, plaintiff appellee makes the point in his brief’that he is not asking for the specific performance of a contract; that he. is only asking that the defendant be enjoined from making it impossible for the contract to be performed.
We shall first consider defendant’s argument that the contract pleaded is not enforceable because of the statute of frauds. That statute is G. S. 1935, 33-106, and provides, in part, as follows:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, or hereditaments, or in any interest in or concerning them; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
Defendant argues the contract pleaded is clearly one to convey or devise land in exchange for personal services under the statute of frauds and unenforceable. (See 27 C. J. 226; Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591; Roberts v. Roberts, 130 Kan. 85, 285 Pac. 584.)
One feature of the contract alleged was that plaintiff would give up his home and business at Pampa and come to live with defendant at Stony Point Farm. The petition alleged full performance with that much of the contract: In fact, the petition alleged full performance of the entire contract up to the time the defendant endeavored to make it impossible for plaintiff to perform further. Under such circumstances we have held an oral contract to convey real estate in return for personal services was not invalid on account of the statute of frauds. See Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Dent v. Morton, 143 Kan. 97, 79 P. 2d 875; and Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485, where the rule is stated, as follows:
“The statute of frauds is not enforced against one who in reliance upon an oral contract has so far acted upon it that he cannot be restored to his original situation, and cannot be adequately compensated in damages.” (p. 489.)
Should it be argued by defendant that this contract violated the statute of frauds because performance could take longer than a year, the answer is, it was one which would admit of performance within a year — hence was not within the statute. (See Heery v. Reed, 80 Kan. 380, 102 Pac. 846.) Unless an oral contract discloses it cannot be performed within the space of one year we cannot say it violates the provisions of the statute of frauds. (See A. T. & S. F. Rld. Co. v. English, 38 Kan. 110, 16 Pac. 82; Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394; and Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164.) Here the contract could have been performed within one year had defendant died within that time.
At the outset of his brief defendant takes the position that the granting of the injunction prayed for by the plaintiff was in fact the issuance of a negative order of specific performance. From that premise he argues that the rules governing the granting of the relief of specific performance should govern. This argument requires an examination of the record. In the first place, the petition alleged a contract whereby plaintiff was to give up his place of business and way of life and move onto and help operate a farm, a new activity for him and his wife. They were to stay on the farm and make a home for defendant the rest of his life. In return defendant was to pay the expense of running the farm, equip it with stock and implements and at his death the farm was to go to plaintiff. Both parties proceeded to perform. Obviously for plaintiff to perform he and his wife must be on the place. After about six months defendant decided to breach the contract by ordering plaintiff off the farm, which would have made it impossible for plaintiff to carry out his contract. The petition alleged that defendant intended to sell the farm. The prayer was that defendant be enjoined from the violation of his contract.
The trial court found the contract was made; that on its complete performance plaintiff would be entitled to the farm and enjoined defendant from preventing plaintiff holding himself in readiness to continue to perform. It is true the court adjudged that plaintiff would be entitled to the farm on the complete performance of the contract. Nothing was adjudged, however, nor could anything be adjudged toward final enforcement. That can only come at the death of defendant and after plaintiff has performed during all that time. Should defendant be permitted to dispossess plaintiff and thus make it impossible for him to carry out his agreement it would do him irreparable damage. The rule is laid down in 32 C. J. 42, section 21, as follows:
“An injunction may be obtained to prevent an irreparable injury, even though no such injury has yet occurred. If such injury is threatened and impending to property rights, an injunction will be granted. It is not necessary to wait for the actual occurrence of an injury which it is shown may be reasonably expected. The remedy by interlocutory injunction being preventive in its nature, it is not necessary that a wrong should have been actually committed before a court of equity will interfere, since, if this was required, it would in most cases defeat the very purpose for which the relief is sought, by allowing the commission of the act which complainant seeks to restrain.”
See, also, 21 C. J. 130, section 106, where the rule is stated, as follows:
“b. Preventive Relief, Quia Timet. A class of cases requiring special mention, where the jurisdiction depends chiefly or altogether upon the necessity for relief obtainable only in equity, is that of bills whose object it is to prevent anticipated mischiefs which would not after their occurrence be adequately redressed. Such bills are known by the generic term of ‘bills quia timet.’ While equity will not interfere for the purpose of declaring rights to prevent a possible controversy which has not yet arisen, or where no actual danger to plaintiff’s rights is shown, it will interfere to prevent a multi-, plicity of suits, or an irreparable injury to a freehold, or to remove a cloud upon title, or to protect the subject matter of a controversy where there is actual danger that it may be so dealt with as to prejudice plaintiff’s rights. Instances of this preventive jurisdiction are found in the protection afforded to those holding remainders and other rights in futuro against loss or injury at the hands of one in possession.”
We recognized this principle in Holland v. Holland, 89 Kan. 730, 132 Pac. 989, where we held:
“A son who has supported his father for a number of years under an agreement that he is to become at once the owner of a tract of land, and that the legal title is to be vested in him at his father’s death, by will or otherwise, and who in reliance thereon has improved the property and performed service the value of which cannot readily be estimated, is entitled to an injunction against the execution by his father of a deed to some one else.” (Syl. If 1.)
See, also, Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485. Had the defendant died on his trip to Wyoming before any trouble had arisen, the plaintiff would have been entitled to bring an action for specific performance. (See Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571.)
All he asked here, however, was that defendant be enjoined from preventing plaintiff from carrying out his agreement so that at the proper time, if he has in the meantime performed, he can bring his action for specific performance. The injunction asked for and granted was a preventive injunction. (See 22 Cyc. 741.) See, also, Restatement of the Law, Contracts, Paragraph 373, Illustration 3, page 685, where we find:
“In return for a promise of personal service, A contracts to transfer land to B on completion of the service. After part performance by B, A repudiates the contract. B is able and willing to complete the service as agreed. It may be proper for the court to issue an injunction against conveyance of the land to any third party, and an affirmative order that A shall convey it to B, upon completion of the service. If such a decree will tend to cause the continuance of undesirable personal relations, this fact will be considered in relation to the degree of inadequacy of other remedies available to B, including both damages for the breach and restitution of the value of the service rendered and improvements made.”
See, also, White v. White, 124 Kan. 449, 260 Pac. 651, where we said:
“. . . there is an abundance of authorities enforcing such provisions when made by contract, either written or oral, after the death of the owner of the property, and preserving and protecting such interest prior to his death. The facts and circumstances in the case of Dillon v. Gray, 87 Kan. 129, 123 Pac. 878, are very similar to those in this case, and the court enforced the contract even against the claims of a second wife. See, also, Nelson v. Schoonover, 89 Kan. 888, 131 Pac. 147; Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; Taylor v. Taylor, 79 Kan. 161, 99 Pac. 814; Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743. The courts will protect such rights by injunction or otherwise in the lifetime of the owner, if there is a danger of the property being disposed of or conveyed.
“ ‘A son who has supported his father for a number of years under an agreement that he is to become at once the owner of a tract of land, and that the legal title is to be vested in him at -his father’s death, by will or otherwise, and who in reliance thereon has improved the property and performed service the value of which cannot readily be estimated, is entitled to an injunction against the execution by his father of a deed to some one else.’ (Holland v. Holland, 89 Kan. 730, syl. if 1, 132 Pac. 989.)” (p. 453.)
See, also, Heery v. Reed, supra; also, Guzorek v. Williams, 300 Mich. 633, 2 N. W. 2d 796.
Defendant next argues that his demurrer to plaintiff’s evidence and his motion for judgment should have been sustained because the evidence showed there was no mutuality of remedies. He recognizes the rule that where there has been full performance and there is no remedy at law, specific performancé of contracts to devise property will be enforced. He argues that here the contract has not been fully performed. He states that this is the first time specific performance of a contract to devise property has been sought before the services have been performed. In the first place, this is not an action for specific performance. It is, as has been pointed out, an action to enjoin one party to a contract from preventing the other party from performing. The language used in White v. Massee, 202 Iowa 1304, is in point here. There the court said:
“Defendants’ main contention is that plaintiff’s agreement is one for continuing personal services, not specifically enforcible against her, and therefore not mutual, and also, until completely performed by plaintiff, not subject to specific performance; that the suit for injunction is, in effect, for negative specific performance, and therefore cannot be maintained. The plaintiff is not now entitled to specific performance, nor does she claim that she is, either positively or negatively. Her suit is for an injunction restraining the defendants from interfering with or preventing her from performing her contract. Though she is not, at this stage of the case, entitled to specific performance, either positively or negatively, she is entitled to maintain a suit on the principle of quia timet, to preserve her rights in the contract and property, and to protect her in performance, to the end that she may ultimately be in a position to claim and secure the benefits of the contract. (Chantland v. Sherman, 148 Iowa 352, and cases cited; Newman v. French, 138 Iowa 482; Campbell v. Dunkelberger, 172 Iowa 385.)” (p. 1307.)
See, also 28 Am. Jur., Injunctions, sec. 79.
Plaintiff had partially performed his contract as to living on the farm and making a home' for defendant. He had fully performed as far as giving up his home and business at Pampa, Tex., and moving to Allen county.
Defendant next points out the rule that equity will not decree specific performance of an oral contract to convey land where the promisee can be adequately compensated in damages for the breach. That is a well-established rule. We must reassert here that this is not an action to force the conveyance of lands. We will, however, examine the defendant’s argument. Whether the promisee can be adequately compensated in damages depends upon the facts of each case. Here, besides the finding already quoted, there was a general finding on all the issues in favor of plaintiff. These findings were not attacked in any way by the defendant. Such a finding carried with it a finding on all the issues necessary to uphold the judgment-in favor of plaintiff. Defendant argues that when he saw fit to advise plaintiff of his intention to breach the contract plaintiff was bound to accept the renunciation of the contract by defendant and sue for damages. This is not the rule. In Heery v. Reed, supra, we said, in considering an analogous question:
“The discharge operated, it is true, as a breach of the contract, and when it occurred Maggie had the option to treat the contract as broken and sue for damages. On the other hand, Devenney could not force his renunciation of the contract upon Maggie. She was at liberty to treat the renunciation as inoperative and to hold herself in readiness to do that which the contract required of her and await the death of the Devenneys for complete performance and full payment.” (p. 385.)
There is substantial evidence here that what plaintiff contracted to do was of a peculiar, intimate, confidential nature. The defendant was a wealthy, somewhat elderly man who stood in need of loving, considerate care, such as could not readily be measured in money. The contract mentions “make a home,” “provide comforts and conveniences of a home.” This is something far more than hiring a farm hand or even a general overseer. Besides this, the plaintiff and his wife gave up their home and business in Pampa and came up to the Allen county farm. This was more than just a business step. Neither plaintiff nor his wife were trained in farm life. The move really was a change in a way of life as well as a business venture. Defendant makes quite a point of the fact that plaintiff did not have much of a home in Pampa and not much of a business. The record hardly bears out such an assertion. It appears he was a graduate petroleum engineer and operating a prosperous well-servicing business. His home no matter how humble was still his home. He and his wife left all this, as well his wife left her secretarial position, for a venture that at the best was certain to make them somewhat subservient to defendant’s ideas. We conclude there was substantial evidence that plaintiff could not be compensated in money.
Defendant next argues that the contract proven was so indefinite and uncertain that equity will not enforce it. No doubt it is the rule that in order for a contract to be specifically enforced it must be definite and certain in its terms and “he and his wife” — “this is to be yours when I am through with it” are general terms. Oral contracts are not generally entered into with the nice use of words with which written contracts are drawn. Usually they are, as this contract was entered into, the result of several conversations, some of them casual. Such contracts must be considered and examined together with all the surrounding facts and circumstances. It will not do to lift the contract pleaded and proven out of the context. The words “live with defendant” — “provide defendant with the comforts and conveniences of a home” — “care for defendant”'— “when I am through with it it is yours” all are rather indefinite, but when we examine them with all the surrounding facts and circumstances and in the light of all we know about the relationship of the parties, we have no trouble in knowing what was intended. In Schuler v. Rehberg, supra, we said:
“The words ‘care for,’ ‘when needed’ and ‘when requested,’ used in the contract are quite indefinite, but when we consider the prior relation of the parties it is quite clear they understood the terms of the contract and the obligations imposed by the language used. Their subsequent conduct and relations confirm this view.” (p. 182.)
See, also, Bless v. Blizzard, supra; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; and Berry v. Davenport, 106 Kan. 393, 188 Pac. 223.
Defendant next argues that the judgment of the trial court is so inequitable, unreasonable and unjust as to'be incapable of enforcement. In support of this argument defendant points out that the effect of the judgment is to cause plaintiff and his wife to live in the same house with defendant as long as defendant lives. The contract defendant has been enjoined from violating was freely and knowingly entered into by both plaintiff and defendant. Defendant for no good reason saw fit to breach it. We have concluded the trial court was correct in holding that it would not be equitable to permit him to do so.
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order of the district court overruling a motion filed by the administrator of a decedent’s estate, in his official capacity and as an heir, to dismiss an appeal of other heirs from the judgment of the probate court. The appeal was from the judgment of the probate court allowing expenses of administration including attorney’s fees.
An order sustaining a motion to dismiss an action is a final and appealable order. An order overruling a motion to dismiss an action is not a final order and prior to final judgment is not appeal-able. (Pulliam v. Pulliam, 163 Kan. 497, 499, 188 P. 2d 220; Runnels v. Montgomery Ward & Co., 165 Kan. 571, 573, 195 P. 2d 571; Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652.) Likewise an order of the district court overruling a motion to dismiss an appeal from the probate court is nonappealable. (In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278.)
It follows this court has acquired no jurisdiction by virtue of the attempted appeal and the appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Arn, J.:
This is a damage action for personal injuries sustained by plaintiff when he was struck by a guy wire while he was riding on top of a schoolhouse being moved through the city of Pratt, Kan., on July 1, 1946. Plaintiff was employed by the municipal power and light department of the city of Pratt as a lineman. Defendant is a house mover having been engaged in such business in and around Pratt for several years.
The jury verdict was for defendant without special findings. When plaintiff’s motion for a new trial was overruled, he appealed, claiming error as follows: That the verdict was contrary to and not supported by the evidence; that the trial court did not approve the verdict, and that a new trial should have been granted plaintiff.
The facts may be summarized thus: Defendant was engaged in moving a schoolhouse to a location in the city of Pratt for the Pentecostal Church. The building, mounted on beams and wheels, was drawn along the highways and streets by a truck driven by the defendant himself, who was seated in the cab of the truck. Moving this object through the city required the services of three crews of men; (a) the defendant house mover’s crew; (6) the city power and light department’s crew; and (c) the telephone company crew. These three crews were working together on this occasion and had done so upon many previous occasions. Section 17-1917, G. S. 1935, requires the owners of the overhead wires to safely clear them for such buildings in the process of being moved, and authorizes the making of appropriate charges therefor to be paid by those interested in the house-moving project. Apparently each crew was composed of at least three men. Plaintiff was one of the three members of the city crew. The crews used an established code of signals. A signalman preceded the truck on foot, and upon approaching a wire he would relay the signals of the men on the roof of the building to the defendant truck driver. According to custom the signalman remained at his station until the wire or other obstruction was cleared. Men on the roof could not see the truck driver nor could he see them. Any of the men were capable of acting as signalmen. On the occasion of plaintiff’s injury, the signalman was also a member of the city power and light department crew, and he had been acting as signalman from a point sixteen miles north of Pratt to the scene of the accident in Pratt. He preceded the building riding in a city truck and when wires were encountered he dismounted and walked ahead to give signals. During this sixteen miles several wires, both electric and telephone, had been passed. Just prior to the accident the truck and conveyance stopped for the Rock Island tracks in the city of Pratt. One of defendant’s employees was sent to the nearby railroad depot to obtain clearance for the railroad crossing while defendant remained in the truck cab. Just before the railroad stop a telephone wire had been encountered and that wire was across the top of the building during the stop for the railroad crossing. But while defendant waited for his employee to return from the railroad depot with the crossing clearance, the signalman mounted the back of the city truck and proceeded south to the set of wires next to be encountered. Defendant’s employee returned from the depot and reported that no trains were coming. Thereupon defendant, apparently unaware that a telephone wire had been left resting on top of the building and that the signalman had left the scene, proceeded to drive across the railroad tracks. At that time four m'en were on the building roof — one of them the plaintiff, one an employee of defendant, and two employees of the telephone company. Before the schoolhouse was moved a bell tower or cupola on its roof had been removed and the frame base of this cupola remained astride the ridge of the roof and projecting out on each side so that the outer edges of this base had an elevation above the roof on each side of about fourteen inches. When the signalman gave the last stop signal and the last stop was made before the railroad crossing, this cable was stretched across the roof approximately six or eight feet south of or in front of the cupola base. The four men on. the roof were seated upon and about the cupola base. Without any signal and perhaps suddenly (some dispute as to the suddenness) the truck and building were put in forward motion by defendant truck driver and the cable across the roof moved toward the rear of the building catching plaintiff between the cable and the cupola base causing severe injuries. There was some testimony that a telephone company employee upon the roof had time to pick up the wire before the truck started to move, and that he was guiding the three-eighths- to one-half-inch cable along the roof, but he couldn’t walk as fast as it was going and it got away from him. Another witness said the telephone company employee had hold of the wire or cable and it got away, and the next thing plaintiff was pinned there between the cable and the cupola base.
From these facts plaintiff contends that as a matter of law it was negligence for defendant to start the building forward without a signal to the men on the roof. But even though there is merit to that argument, it can be of little comfort or assistance to plaintiff if he himself was negligent. So first, let us examine some of the evidence which appellee contends constitutes contributory negligence on the part of the plaintiff.
Plaintiff testified:
“Q. Well, how did you expect Mr. Lear was going to know when and when not to move if the signalman was gone? A. They are not supposed to move except when they get a signal.
“Q. You saw the signalman leave didn’t you? A. Yes, sir. . . .
“Q. And you say this wire, this cable, was stretched fairly tight across the comb there? A. It was pretty tight.
“Q. And you knew that if that truck did move for any reason that that cable would come on back? A. Why sure it would come back if the house would go ahead.
“Q. You knew that if the truck did move the cable would come on back, stretched as tight as it was, with considerable force? A. According to how fast the truck moved.
“Q. But it would come back with considerable force, didn’t you know that? A. Well, if we hit it, it would have considerable force, yes.
“Q. There was room on there to have sat behind that cupola, wasn’t there? A. Yes.”
Redirect examination.
“Q. Now, you stated in cross examination that you saw the signalman drive — get in the back of a truck and drive off with the driver? A. Yes, sir.
“Q. Did you make any effort to move at that time? A. No, sir.”
And a defendant witness (Ramsey) testified:
“Q. Where were you at the time this accident occurred? A. I was on the roof. . . . Me and Bill West [plaintiff] was setting on the cupola on the front shooting the bull. We was setting there shooting the bull. Bill Coltrane was up to the front end when this happened. That other boy was back of me and Bill West was setting there on the cupola of the house. The house stopped and I don't how long me and him was shooting the bull, we were setting there talking. The first thing I know the house started up, the house started rolling and me and Bill wasn’t paying no attention about the cable. We wasn’t supposed to be setting there where we was. First thing I know it had us that quick. . . .
Q. Could this wire have hit you if you had been sitting on the back of the cupola? A. No, it wouldn’t have hit us if we had been back of the cupola. I wasn’t paying no attention about the cable.”
The testimony above referred to, appellant contends, is not sufficient to support any allegations of contributory negligence, and therefore the question of contributory negligence could not be resolved in favor of' defendant by the jury’s general verdict.
Since defendant was the one who put the vehicle in motion without a signal, there was perhaps sufficient evidence by which the jury could have found him negligent. There was also sufficient evidence from which to find negligence on plaintiff’s part, and we must assume from the general verdict that the jury did so find. We are not concerned with weighing the negligence or measuring the degree of negligence as between the two parties. We cannot say as a matter of law that the defendant was guilty of gross and wanton negligence. Neither can we say that plaintiff was not negligent as a matter of law, when there was some evidence to justify the jury’s belief that he was. Therefore, if plaintiff was himself negligent, and such negligence contributed to his injury, he cannot recover regardless of defendant’s negligence. The jury was so instructed. So, we have here a fact case with conflicting and disputed evidence where reasonable minds might reach different conclusions, both as to contributory negligence of the plaintiff and as to defendant’s negligence. There being sufficient evidence t5 support it, the general verdict of the jury resolved these and all other issues in favor of the defendant. (Schuette v. Ross, 164 Kan. 432, 190 P. 2d 198, and.many other cases.)
Appellant also contends that the trial court overruled plaintiff’s motion for a new trial and rendered judgment for defendant without approving the jury verdict. It is a very natural and common thing during a jury’s deliberations for trial judges, like anyone else who may have witnessed the trial, to guess or speculate upon what a jury’s verdict will be — and when the verdict is rendered contrary to what the trial judge thought it would be, it does not necessarily require a disapproval by the trial court. Here the trial court may have surmised what the jury verdict might ultimately be, and that he was surprised when a different verdict was returned is indicated by his remarks to counsel at the time of argument on the motion for new trial:.
“I will have to confess that I was somewhat surprised at your verdict in this case, but as I see it we submitted the question of contributory negligence to the jury and I think the jury must have found that the plaintiff was guilty of contributory negligence. I don’t think there was any question about the defendant’s negligence, in fact I think I practically instructed the jury that he was negligent, but however slight the plaintiff’s negligence was, if it contributed to his injury and damage, of course he would be barred.
“Well, the jury evidently took somewhat seriously Mr. Ramsey’s testimony. I think you could probably find in his testimony some contributory negligence on the part of the plaintiff, and for me now to say there wasn’t sufficient evidence of contributory negligence to uphold the verdict, would seem to me like to be taking from the jury their right to determine that question. I don’t think this Court ought to say there was no evidence of contributory negligence in this case. I think the Court could say that there is no doubt but what the defendant was negligent, but for the Court to submit to the jury the question of contributory negligence and then now to say that there was no contributory negligence shown seems to me like it would be at least contradictory, and I wouldn’t want to say there was no contributory negligence shown in this case, even though my own opinion is it was rather slight. The jury passed on it. I’ll let the verdict stand. Motion for New Trial overruled.”
But surprised or not, the trial court did thereupon approve the verdict as indicated by the last paragraph of the journal entry of judgment, which provides:
“And now, on this 9th day of April, 1948, the above cause comes on for hearing on plaintiff’s motion for new trial. The court, having listened to argument of counsel and being fully advised in the premises, finds that said verdict should be approved and that plaintiff’s motion for new trial should be overruled.” (Emphasis supplied.)
We fail to find any merit in appellant’s contention that the foregoing statement by the trial judge, particularly in view of the final order of judgment actually made by him, amounted to a failure on the part of the trial court to approve this jury verdict. On the contrary the trial court did, in so many words, state that the verdict should be approved.
In the cases' cited by appellant in support of his contention in this respect, such affirmative approval of the verdict was not given by any order of the trial court, and therefore those cases do not support 'his argument here. For example, in Butler v. Milner, 101 Kan. 264, 166 Pac. 478, no positive statement was made by the trial court that the jury’s verdict was approved, and there this court said:
“If on the other hand, the trial judge intended to give his approval to the verdict, we are bound by the result regardless of any opinion we might have as to the right or wrong of the judgment, because there is no ground for any suggestion that to deny a new trial would have been an abuse of discretion if the court approved the verdict. Indeed no suggestion of that kind is made.
“For the reasons stated we think the judgment should be reversed and the cause remanded with directions that a new trial be granted, unless the trial court shall make a finding that it approves the verdict. In case the verdict is thus approved, the judgment will be affirmed.” (1. c. 268.)
If the trial judge in the Butler case had intended to give his approval to the verdict but inadvertently omitted to say so in the record, he could have corrected that omission and have complied with the mandate of this court by merely putting into the journal entry of judgment, nunc pro tunc, his statement that the verdict should be approved. As has been already pointed out, the journal entry of judgment in the instant case, duly signed by the trial judge, already contains his finding that said verdict should be approved. No clearer statement can be asked of the trial court.
The motion for a new trial was made upon several grounds other than that the verdict was contrary to the evidence, but from an examination of the entire record, we find no error which would require a new trial. This was a fact case for determination by a jury. The evidence has been examined, and certainly it may be said that it was sufficient to sustain the verdict of the jury. Having ascertained this fact, this court on appeal has no function to perform with respect to the evidence.
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The opinion of the court was delivered by
Parker, J.:
In this action plaintiffs seek a mandatory injunction to compel defendants to remove a dike or levee constructed on their own property, running in a southeasterly direction on the north side of a natural watercourse, and to fill up a ditch made in connection therewith.
Defendants defend with an answer asserting the dike, levee and the ditch are lawful, and in addition request a mandatory injunction against George Horn, one of the plaintiffs and an upper landowner, directing him to fill up an excavation made in the bank of such natural watercourse and requiring him to remove dirt placed in the bed thereof.
Neither plaintiffs nor defendants were entirely satisfied with the ¡judgment, presently to be detailed, and originally appeals were taken by all parties from portions deemed to be adverse to their respective interests which included factual issues and alleged trial errors none of which are longer in controversy because in their briefs, and on argument of the cause, counsel for all parties concede and rely on the findings of fact made by the trial court and now assert the sole issues involved depend upon whether, under such findings, the trial court’s general judgment and conclusions of law filed in connection therewith are erroneous.
On the date of the institution of the action there was attached to the petition a map or plat, used during the trial and found by the court to be fairly accurate, showing the land involved, its ownership and the dike in question, to which the trial court referred in its findings and on which it made certain pencil lines and notations. Without this plat, in condition as indicated, a proper understanding of the findings or the involved factual situation would be extremely difficult. For that reason it is attached to this opinion as Appendix “A.” In passing, it should perhaps be stated, the defendants offered and the court received in evidence a photographic map which, while it supplements the plat to which we have referred, is not nearly as complete or informative and hence will not be set forth in this opinion.
Since the parties agree the findings of fact are so complete and tell the story of the lawsuit so well that a further factual statement is neither necessary nor practical, such findings, even though they are lengthy, together with the conclusions of law on which the judgment was rendered, will be set forth in their entirety. They read:
“1. It is agreed by all parties that the respective parties to this action own the various tracts of land as set forth in the pleadings herein, and the court so finds.
“2. Prior to the commencement of this action the sixty acres described as the SE % of NW% and of NE% of SW14 in Section 35 was owned by George Bushnell and Effie Bushnell, and is referred to herein as the Bushell property. It was also referred to in some of the testimony as the Poole property.
“3. Since the beginning of this action the Bushnell property has been purchased by plaintiff George Horn. The plaintiff George Horn had full knowledge of the acts of Bushnell pleaded by defendants.
“4. That the map or plat set out in plaintiffs’ petition between pages 3 and 4 thereof is a fairly accurate map of the land involved and of the dyke erected by the defendants. The pencil line and notations thereon have been made by the court.
“5. That for many years a natural watercourse ran through parts of Sections 35 and 36, Township 4 South, Range 19, in which sections the land involved in this action are located. Said watercourse is now, and for many years has been, known as Meyer Creek. Said creek commences several miles to the southwest of Section 35 and enters the west side of said section somewhere near the middle of said section. It enters the Bushnell property at a point on the west line of the N% of NE% of SW%, then flowed north and northeasterly to a point approximately one-half of the distance to the north line of the SE% of NW% of said section measured from the south line of said SE1^ of NW%. From thence it flowed east to a point about one hundred yards from the east line of said SE'% of NW14 and from thence south to a point about 250 feet north of the center line of said section, at which point there was a natural dam or tongue of land which will be hereinafter further referred to. This is the point where Bushnell made an excavation in 1944. Prior to the making of such excavation said Meyer Creek flowed south and westerly to a point approximately 150 yards north of the south line of said Bushnell property and then made a bend to the east to a point about 150 feet north of the southeast comer of said Bushnell tract, where it left the Bushnell property and continued in an easterly and southeasterly direction across the corner of defendants’ property and continued through the respective tracts belonging to the plaintiffs, then making a bend to the northeast and emptying into the Solomon River. The court has drawn the course of said Meyer Creek in pencil on the map set out in plaintiffs’ petition and has marked same in pencil ‘Meyer Creek’. This is the course followed by said Meyer Creek prior to 1937 or 1938 when the course of said creek was altered somewhat by the acts of George Bushnell, and is approximately the course of said creek as shown by the photographic map introduced by defendants as an exhibit. Said creek never flowed at right angles and flowed in the general directions herein set out in the manner usually followed by creeks or natural watercourses, that is, generally along curved lines and with minor variations. That the flow of said creek was very slight at the point where it entered the Gingles property from the west and was farmed across at that point. The watercourse became more clearly defined on the Gingles property due to additional drainage from the south entering it on said property and was a watercourse of more definite banks when it left the Gingles property crossing the road and entering on the Green property.
“6. That in 1937 or 1938 George Bushnell caused said Meyer Creek to be filled in where it crossed his property. The plaintiff Charles A. Green assisted in his work but in so doing was acting for the said George Bushnell and his wife. At the time said work was commenced said creek was from three to eight feet deep, being deeper in some places than others, and from four to six feet in width and with fairly well-defined banks where it ran across the Bushnell tract. A grader and tractor were used in doing this work by parties hired by the Bushnells. The work done by Green was done with a plow. The banks were plowed into the center of said creek and said creek bed was widened out, leaving a depression twenty or thirty feet wide with no well-defined banks. Said land has been farmed across since said time and crops are now growing in what was formerly the bottom of said creek bed. Said creek bed gradually filled up by accretion and lack of use, and such condition existed prior to 1944 and exists at this time.
“7. In 1944 the said George Bushnell made an excavation in the east bank of Meyer Creek at a point mentioned in Finding No. 5 hereof. The court finds that the tongue of land or fill in which said George Bushnell made said excavation in 1944 was a natural tongue or fill, although previous man-made excavations and fills may have been made at the point where Bushnell made said excavation in 1944. There was some conflict in the evidence in regard to the nature of this tongue or fill, and same was referred to in the evidence, frequently, as a dam.
“8. That there is not and has not been a natural watercourse over and cross [across] the land of the defendants; that in times of high water surface water drained across defendants’ land in a northeasterly direction; that the part coming onto defendants’ land in the N]é of NW14 of SE14 of said Section 35 was what the natural watercourse known as Meyer Creek could not carry; that the part draining on defendants’ land in the NE14 of said Section 35 was in part the overflow from the watercourse known as Meyer Creek and in part the natural drainage from part of the NWlá of said Section 35. There was a conflict in the evidence as to the number of acres in said NW% water from which naturally drained'onto defendants’ land and not into Meyer Creek, the testimony varying from 100 acres to 20 acres. The court is making no finding as to this acreage.
“9. The filling in of Meyer Creek on the Bushnell land by Bushnells did not of itself increase the flow of surface water onto the land of the defendants. There is no steady flow of water in Meyer Creek through Sections 35 and 36, nor has there been for many years. Said creek did not flow steadily prior to 1937 for a number of years. At one time there may have been a steady flow of water in said creek. From 1937 to the present time said creek has flowed immediately after a rain and in wet seasons more or less continuously, although the flow after twenty-four hours after a rain is reduced to a fairly small flow, described by some witnesses as a trickle or afterflow. Prior to 1944 this trickle or afterflow followed the regular course of Meyer Creek onto the lands of the plaintiffs. By the excavation made by Bushnell in 1944 a considerable portion of this trickle or afterflow was diverted onto the lands of defendants. Additional surface or flood water was also diverted onto defendants by said excavation.
“10. In the spring of 1946 defendants commenced a mandamus action in the District Court of Phillips County, Kansas, for an order compelling Bushnells to remove the dirt they placed in Meyer Creek and to fill up said excavation. The court held that this form of action did not apply for the granting of relief sought by the defendants herein, plaintiffs in that action, and the action was not tried on its merits and was dismissed without prejudice by the court in June, 1947.
“11. In the fall of 1947 defendants constructed the dyke or levee complained of by plaintiffs. It is constructed approximately in the manner alleged by plaintiffs in their petition, except that it does not run to the south side of defendants’ property, a gap of about fifty feet exists between the south end of the levee and the south side of defendants’ property. The entire length of this levee is about 1,800 feet. It varies in heighth from one foot on the north to more than five feet in some places. From about where said dyke turns and runs in an easterly direction, after having run in a southeasterly direction, it follows the north and east side of Meyer Creek. From this point in a northwesterly direction along the south and west side of said dyke, the defendants have excavated a ditch which enters Meyer Creek at said point where said dyke turns and runs in an easterly direction. This ditch is from two to four feet deep and from eight to twelve feet in width. It conducts drainage into Meyer Creek which ordinarily would reach it in a more roundabout course and is in the general course of natural drainage. Defendants have also widened Meyer Creek from the point where this ditch enters it to a point near the place where it leaves defendants’ land on the south and have cleaned it out if they have not actually made it deeper. Said creek bed may not be deeper, except as loose material has been cleaned from the bottom thereof.
“12. The defendants purchased the tract of land owned by them in Section 35 with full knowledge of the drainage conditions existing in said Section and in Section 36. The dam or dyke erected by defendants has caused the natural flow of surface water which otherwise would flow over the land of defendants to be obstructed and discharged upon the lands of plaintiffs other than the tract of land known as the Bushnell tract. Said discharge of surface water upon the lands of plaintiffs has caused damage to their lands, and will naturally result in greater damage to their said lands in times of more excessive rains and during wet seasons. The seasons since the contruction of said dam have not been very wet seasons. The gap in said levee between the south end thereof and the south side of defendants’ property is not adequate to take care of the accumulation of surface water caused by said dyke. The extra, water discharged upon the land by reason of the excavation in the tongue of land or fill, which excavation was made by George Bushnell, caused damage to defendants’ land prior to the construction of the dyke by defendants. If said dyke erected by defendants is permitted to remain in its present condition, it would flood the lands of plaintiffs more severely than the testimony shows them to have been flooded in the past and would endanger the buildings and improvements located on the Gingles land and on the Green land.
“13. No upper land owner nearer the source of Meyer Creek than the land of the defendants in Section 35 has constructed a levee along the banks of said Meyer Creek or along any other drainage area or depression draining onto the land of defendants located in said Section 35, and no permission has been granted by the Chief Engineer of the Division of Water Resources of Kansas authorizing them, the defendants, to construct any dyke or obstruction to repel flood waters or any waters or to maintain any dyke or levee.
“14. The court personally inspected the land in question in the company of attorneys for both plaintiff and defendants.
“15. The lands of the plaintiffs and defendants in said Sections 35 and 36 are used exclusively for agricultural purposes.
“16. The findings of fact requested by the parties are both refused except as contained herein.”
“Conclusions op Law
“1. The plaintiffs do not have unclean hands and have committed no wrongful acts in connection with the subject-matter in this action. The plaintiff Horn is not chargeable with the wrongful acts of Bushnell so as to make him coming to court with unclean hands, but as owner of the Bushnell sixty may be required to remedy wrongful conditions created by Bushnell, and further, having come into court to ask equity, may be required to do equity.
“2. The cause of action of the defendants against Bushnell and their successors in title is not barred by the Statute of Limitations for the previous action brought by Seegers against Bushnell. The maintenance of the excavation originally made by George Bushnell in the tongue of land or fill on his place constitutes a continuing nuisance, and a mandatory injunction should issue against the present owner of the Bushnell tract, the plaintiff George Horn, to cause him to fill in such excavation and to bring said tongue of land up to a level with the heighth thereof north and south of said excavation and of the part that has washed out following said original excavation and to maintain it at such heighth.
“3. The defendants should not Joe required to fill in any excavation made by them, but they should be enjoined from making any additional excavations south and west of the place where they constructed the dyke complained of in this action.
“4. The construction of the dyke by defendants along the bank of Meyer Creek was and is lawful. The construction of the rest of the dyke is unlawful, and a mandatory injunction should issue to compel them to remove all said dyke except the part along the bank of Meyer Creek. This would.be all said dyke north and west of the point where said dyke turns and runs in a westerly direction and would constitute about the north and west 1200 feet of said dyke. The land should be reduced to its former level where this portion of the dyke now exists, and a mandatory injunction should issue against the defendants to compel said dyke to be so removed and its maintenance should be enjoined in the future. The maintenance of the east and southeasterly approximately 600 feet of this dyke along the bank of Meyer Creek should not be enjoined, but it should not be extended or raised beyond its present dimensions. The plaintiffs have no adequate remedy at law.
“5. The costs should be taxed to defendants.”
Subsequent to making the foregoing conclusions of law, as a result of action which is not here of consequences, amendments were made therein by the trial court as follows:
“It is further by the court ordered and decreed that the conclusions of law filed by the court in this action should be modified or altered in the following respects:
“By striking the last two lines of Conclusion No. 3, after the word ‘making,’ and inserting or adding in 'lieu thereof, the following: ‘said excavations any deeper or deepening bed of Meyer Creek, but may clean weeds and debris out of same if done without further excavation.’
“By adding the following at the end of Conclusion No. 4:
“ ‘The removal of base of said dike from every low place in former contour of land should not be required if base of dike brought substantially to its former level. Court retains jurisdiction to determine compliance if any disagreement among parties.’ ”
Summarizing, based on the foregoing findings of fact and conclusions of law, the trial court directed the defendants to remove the northwest two-thirds of their dike and the plaintiff, George Horn, to fill in the excavation made by Bushnell in the east bank of Meyer Creek in 1944. It refused to require the latter to remove dirt placed in the bed of such creek or to compel the defendants to fill up the drainage ditch constructed, and leading into that stream, upon their own land.
The first point relied on by defendants for reversal of the judgment is that the levee or dike constructed by them was lawful as a means of controlling fioodwaters from the involved watercourse as distinguished from surface waters. At the outset they err in founding their argument upon the proposition, frequently stated, that in this jurisdiction there is no limitation bn their right to control flood-waters. That, we are constrained to state, has never been the law of this state. As long ago as 1897 in the case of Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, in discussing the rights of property owners to repel floodwaters, we said:
“The plaintiffs in error had a right to confine the waters of the creek to the channel, and, to accomplish that, were entitled to build cribs or barriers along the south bank of the creek in order to protect their property from the overflow and waste. This must be done, however, in such a way as not to interfere with the rights of others. They cannot build and maintain structures which will change the channel of the stream, or project the water against and upon the property of another in such a way as will result in substantial injury to either an owner upon the opposite side of the stream, or those above or below.” (p. 36.).
See, also, Thompson v. McDougal, 103 Kan. 373, 175 Pac. 157, where, with direct application to the same question, the following statement appears:.
“. . . When those cases were decided, the law of this state permitted a lower landowner to repel surface waters; and while it forbade, as it still does, any landowner to dike against the natural flow of flood waters to the detriment of others, it did permit a landowner, with due regard to the rights of others, to build dikes and barriers to protect his property from overflow and waste. . . .” (p. 375.)
In a later case Clements v. Phoenix Utility Co., 119 Kan. 190, 237 Pac. 1062, we held:
“The owner of property on the bank of a watercourse has the right to build levees or other barriers to. confine the water to the channel of the stream, but he cannot build and maintain a structure which will change the channel or project the water against or upon the property of another, either on the same side of the stream with him or the opposite side, in such a way as will result in substantial injury to such property, without liability therefor (following Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631).” (Syl. ¶[ 2.)
For more recent decisions wherein the case just cited is followed and the rule therein announced adhered to see Gentry v. Weaver, 130 Kan. 691, 288 Pac. 745; Foster v. Kansas Gas & Elec. Co., 146 Kan. 284, 69 P. 2d 729; Niccum v. Atchison, T. & S. F. Rly. Co., 147 Kan. 645, 648, 78 P. 2d 1; Jensen v. Buffalo Drainage Dist., 148 Kan. 712, 718, 84 P. 2d 961.
It must be remembered that in the instant cause the trial court found in substance (see Findings Nos. 8 and 12) that in times of high water surface water drained across defendants land in a northeasterly direction, that the part coming onto the N % of NW % of SE % of section 35 was what the natural watercourse known as Meyer creek could not carry and that the part draining on the NE % of such section was in part the overflow of such watercourse and in part the natural drainage from portions of NW % of the same section. Also that it found the dam or dike erected by the defendants caused the natural flow of surface water which otherwise would flow over their land to be obstructed and discharged upon lands of plaintiffs other than the tract known as the Bushnell tract with the result the discharge of such waters caused damage to all such lands and will result in greater damage thereto in times of excessive rains and during wet seasons. It must likewise be kept in mind that it merely enjoined the defendants from maintaining and directed them to remove approximately 1,200 feet of such dike, being the portion thereof running away from and to the north and west of Meyer creek, without disturbing portions thereof constructed along the bank of that stream, and had the practical effect of repelling all water, surface or overflow, emanating from the Bushnell land, which would have otherwise drained across their lands in the general course of natural drainage.
It is our view, under the conditions and circumstances heretofore related, that each and all of the decisions above cited sustain and uphold that portion of the judgment of the trial court to which we have just referred. However, we point out that Gentry v. Weaver, supra, is especially applicable and decisive. It, like the case at bar, was an action for a mandatory injunction and involved conditions and circumstances similar if not almost identical. Both plaintiff and defendant in that case had erected dikes parallel to a shallow intermittent stream which drained several sections of land. The defendant, over whose land the overflow from the stream normally flowed in the general course of natural drainage, not only constructed a portion of his dike parallel to the stream but, somewhat like the defendants in the instant case, extended the upper end thereof directly away from the stream and at right angles thereto for a distance, of several hundred feet. The trial court’s judgment directed a partial tearing down of that portion of the dike which was stopping the natural course of drainage and throwing the overflow from the creek back upon the plaintiff’s land. In affirming such judgment we stated it was eminently fair and correct and held:
“The limited record subject to appellate review examined and held that no error inhered in the judgment requiring the defendant to lower the dike he had constructed on his land across the natural course of drainage and which was retarding the flow of water from plaintiff’s land.” (Syl. If 2.)
In the opinion we said:
“It would seem that the first of these questions is effectively answered by the findings of fact. The swale or depression across which defendant constructed his dike is slightly lower than plaintiff’s alfalfa field to the west. When more water comes down Lost creek than it can carry, part of it flows over the alfalfa field through the depression, which is its natural outlet, across defendant's land. That natural outlet has been obstructed by defendant’s dike. . . . The only levee constructed by plaintiff was a short one along the right bank of the stream at and near the point where it enters the land of defendant. This short levee was lawfully constructed by plaintiff (R. S. 24-105, 24-106) as was also that part of defendant’s levee on the left bank of the creek opposite thereto. Defendant concedes that the statute accorded plaintiff that right, but argues that ‘likewise under the same section the defendants had a right to build their dike in order to repel flood waters.’ Quite true, but not across the natural course of drainage, and to the detriment of plaintiff as the upper landowner. . . .” (pp. 695, 696.)
Aside from general principles of law which uphold the aforesaid portion of the trial court’s judgment another sound reason for sustaining it is to be found in the statute. G. S. 1935, 24-105, reads:
“A landowner or proprietor shall not construct or maintain a dam or levee for the purpose of obstructing or collecting and discharging with increased force and volume the flow of surface water to the damage of the adjacent owner or proprietor; but nothing herein shall be construed as preventing an owner of land from constructing a dike or levee along the bank of a natural watercourse to repel flood waters from such natural watercourse: Provided, That the provisions of this act shall apply only to lands used for agricultural purposes and highways lying wholly outside the limits of any incorporated city: Provided further, That where such surface water is the overflow of a watercourse on the premises of an adjacent upper landowner and such upper landowner has not constructed or maintained a levee along the bank of such watercourse to prevent overflow, any landowner may make application to the chief engineer of the division of water resources stating in such application that an upper landowner,'whose name and address is given in the petition, has not constructed a levee on his land to prevent the overflow from the stream, and requesting permission to build a levee on his own land to repel such flood water. . . .” (Emphasis supplied.)
Under the findings the portion of defendants’ dike against which the trial court’s mandatory injunction was issued repelled all overflow water originating from a watercourse on the premises of an adjacent upper landowner who had not constructed or maintained a levee along its banks to. prevent overflow. In that situation the emphasized language of the statute just quoted required defendants to make application to and obtain permission from the chief engineer of the division of water resources of this state before they could construct a lawful dike or levee. This they did not do (see Finding 13). The result is their action in attempting to maintain such dike, notwithstanding consequences to riparian owners as heretofore noted, was subject to injunctive relief.
Much stress is placed by defendants in their brief upon their claim overflow from a watercourse is floodwater as distinguished from surface water. Their reason for doing so, in view of their fallacious theory with respect to their unrestricted right to control floodwaters, is obvious. Since the unsoundness of that theory has been demonstrated there is little need for giving' much space to decisions distinguishing between the types of water here involved for regardless of how they might be classified defendants could not maintain the upper portion of their dike. We make reference here to such claim because of a contention advanced in connection therewith to the effect that the section of the statute just quoted has application to surface water only. We do not agree. Conceding, as defendants insist, that the overflow of a watercourse has frequently been held to be floodwater under our decisions we have no hesitancy in holding that since 1931 (Laws 1931, ch. 184), when the underlined proviso was added by legislative amendment to what is now G. S. 1935j 24-105, heretofore quoted, there is little distinction to be drawn between the two types of water and that of a certainty by the express terms of such proviso overflow from a watercourse is to be regarded as surface water within the meaning of the latter term as used therein.
In reaching the foregoing conclusion we have not overlooked two decisions heavily relied on by defendants. Thompson v. McDougal, supra, which states, as they point out, that the rights and limitations of rights of landowners in dealing with floodwaters were not changed, nor attempted to be changed, by chapter 175 of the Laws of 1911, now in substance the quoted but unemphasized portions of G. S. 1935, 24-105, was decided long prior to the 1931 amendment. Even so, it is to be noted that at page 377 of its opinion we call attention to the .fact that if the plaintiff had come into court in an equitable mood herself the defendants would not have been permitted in the maintenance of a levee to retard the flow of water over plaintiff’s land and decided the case on the basis that where parties are in equal wrong equity declines relief. Jensen v. Buffalo Drainage Dist., supra, so far as right to deal with floodwaters are concerned, merely quotes from the Thompson case and indicates that what was there said was a correct statement under the law then in force and effect. However, the opinion recognizes the 1911 statute was changed by the amendment to which we have heretofore referred. It is also to be noted our affirmance of the judgment denying an injunction restraining the maintenance of the dike involved in such case was based upon the premise it had been constructed under and in conformity with existing drainage laws of the state (G. S. 1935, ch. 24, art. 4) after procuring approval for its construction from the officer (chief engineer of the division of water resources of the state) vested with the power to give it. We find nothing in either decision warranting a conclusion the trial court erred in enjoining defendants from maintaining the northwest 1,200 feet of the dam constructed by them.
Defendants suggestion, that even though their dike be unlawful, this court in the exercise of equitable powers should disregard the trial court’s judgment and work out some plan whereby they be permitted to maintain it, has little merit. Defendants never obtained permission to construct or maintain the portion of the dam affected by the mandatory injunction from the official designated by legislative fiat as the one having the power to give it. In such a situation we cannot, even in the exercise of equity, usurp the power conferred upon that official and make lawful that which is unlawful.
The last contention advanced by defendants requiring attention is that the trial court erred in not requiring the plaintiff, George Horn, to clean out that portion of Meyer creek which had been filled in by him and used for farming purposes. The short and simple answer to this claim is that the trial court inspected the premises' and found that such action did not increase the flow of water onto defendants’ land. We cannot disturb that finding.
We now come to questions raised by plaintiffs on their cross-appeal the first of which is that the trial court should have required defendants to remove all of the dike instead of the northwest two-thirds thereof. Resort to the findings will reveal the portion of the dike unaffected by the judgment was constructed along and practically parallel with the banks of the natural watercourse. The statute provides, and we have held, that under such conditions and circumstances the defendants’ action as to this portion of the dike was proper and lawful.
See Jensen v. Buffalo Drainage Dist., supra, which holds:
“An owner of real property on the bank of a natural watercourse has a right to build a dike or levee to repel floodwaters from such natural watercourse, as provided and limited by G. S. 1935, 24-105.” (Syl. ¶ 2.)
Refusal of the trial court to require defendants to remove the open ditch constructed on their own land along the side of the dike, which as the trial court found (Finding No. 11), conducted drainage into Meyer creek that .ordinarily would reach such stream in the general course of natural drainage, is next assigned as error. This claim cannot be upheld. The statute (G. S. 1935, 24-106) expressly authorizes action of that character.
Lastly plaintiffs insist the trial court erred in directing George Horn to fill in the excavation made by Bushnell in 1944, in the east bank of Meyer creek at the point mentioned in Finding No. 5. In substance the trial court found this excavation increased the normal flow of water on defendants’ land and was a continuing nuisance. Plaintiffs are precluded from going behind those findings and they suffice to sustain the trial court’s judgment on the point in question.
After a careful and extended examination of the record and consideration of all arguments advanced by the respective parties we have been unable to discern any error in the trial court’s judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
A motion to dismiss is founded upon the failure to serve the adverse parties with notice of an order of extension of time in which to serve the case-made, in compliance with section 3 of chapter 320, Laws of 1905. That section authorizes the court or judge before whom a case has been tried to order an extension of time, and provides that the order shall be filed with the clerk of the court and that the party applying for the extension shall immediately, upon securing and filing the order, give notice in writing of such extension to the adverse parties by serving a copy of such order.
The contention is made that the failure to give this notice destroys the force and eifect of the order, and that the consequence of such' omission is the same as though the order had never been made. This would be true if the giving of the-notice were made jurisdictional — that is, if the statute required notice to be given the adverse parties before the court or judge should have the power to make the order. Although the words used are mandatory in form, the provision is merely directory. Authority is granted to make the order; there is a direction that notice shall be immediately given to the adverse party, but no provision that if the direction is not complied with the order shall be set aside or annulled, or in any manner affected. The requirement that notice shall be given is a condition subsequent. If it were a condition precedent to the power to make the order it would be jurisdictional.
The failure to comply with a provision merely directory is attended with no consequences, while serious results would follow the neglect to comply with one which is mandatory. This is a fundamental difference generally recognized by the authorities. (Sutherland, Stat. Constr. § 446.) There is nothing in the act to suggest a purpose in the legislature to make the giv ing of the notice a condition precedent to the validity of the order of extension.
“Provisions are directory where they relate to some immaterial matter not of the essence of the thing to be done; where a compliance is matter of convenience rather than substance; where the departure from the statute will 'cause no injury to any person -affected by it.” (Sutherland, Stat. Constr. § 455.)
No valid reason can be suggested which would require the construction contended for. The adverse party suffers no loss or prejudice by a failure to know immediately that the order has been made. His rights are protected to the same extent as though he had the notice earlier.
Plaintiff brought suit for a partition of real estate, consisting of a house and lot in Washington, Kan. The petition set out a copy of the last will of plaintiff’s wife, Mary Goodnough, who died in May, 1901, and alleged a final settlement of her estate. By the terms of the will all of her property, after payment of the debts and some small bequests, was to be divided equally between plaintiff and defendant.
The answer denied that a final settlement of the estate had been made, and alleged that plaintiff had received more than his share of the property and asked for an accounting. It claimed that the real estate belonged absolutely to defendant, and asked that her title thereto be quieted. It was also alleged that plaintiff was indebted to his wife at the time of her death; that certain payments were made to him by the executor of the estate; and that he had taken from the person and clothing of his wife immediately after her death certain securities and cash, for which he had never accounted.
There was a trial by the court, and findings of fact and conclusions of law were made. Among the findings of fact the court made the following:
“The court further finds that immediately after the death of the said testator, Mary Goodnough, the plain tiff went to her and took from her clothes or some part of her person, either the money and certificates of deposit, or a key to the bureau drawer in which said money and certificates were kept, and thereby procured possession of $250 in money and $300 in certificates of deposit; that the plaintiff by this means procured $550 of the assets belonging to the said estate, and that he drew the money upon said certificates of deposit.”
The court also found the actual value of all property belonging to the estate of Mary Goodnough, and that plaintiff had received his share of the estate in cash and personal property, including the money taken by him after her death.
As conclusions of law the court held that any claims against plaintiff for debts owing from him to his wife at the time of her death were barred by the statute of limitations, but that the statute had not run in his favor against the $550 taken after her death. Defendant was decreed to be the absolute owner of the real estate, and her title thereto was quieted as against plaintiff.
There is a claim of error in admitting over plaintiff’s objection the testimony of the husband of defendant in reference to an alleged contract of settlement between the parties. When the testimony was offered the court overruled the objection for the time being, but in the first conclusion of law the court sustains the objection and expressly refuses to consider the testimony of the husband. Without such finding the presumption would have been that the testimony was not considered by the court. (Olathe v. Cosgrove, 71 Kan. 885, 81 Pac. 1131.) The express ruling out of the evidence and refusal to consider it avoid the necessity for indulging the presumption, and eliminates every suggestion of error.
It is seriously contended that the court erred in treating the action as one to quiet title to real estate and not as a suit in partition. Because the court failed to appoint commissioners to divide the property it is argued that the statutory provision in relation to partition suits was not followed. No authorities are cited, probably for the reason that none can be found. The answer was in the nature of a cross-bill asking affirmative relief. Plaintiff might have asked an accounting and for partition, and at the same time for the quieting of the title to the real estate. (15 Encyc. Pl. & Pr. 805.) The defendant might avail herself of the same privilege. In Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096, the power of the court in partition proceedings to make all orders and findings necessary to protect the interests and rights of all the parties is quite fully discussed. (See, also, Sarbach v. Newell, 28 Kan. 642; Phipps v. Phipps, 47 Kan. 328, 27 Pac. 972.)
There was, of course, no occasion for the appointment of commissioners to divide the real estate. Plaintiff was found not to have any interest in it, and it was decreed to belong absolutely to defendant. Plaintiff took his share of the estate, subject to all existing equities in favor of the estate and against himself. (Head v. Spier, 66 Kan. 386, 71 Pac. 833.) He had received money which equity and conscience required should be charged against him as so much advanced him from the estate. The statute of limitations cannot prevent the estate’s being credited with payments made to him. The settlement of estates is often deferred beyond three years. It would hardly be contended that when such an estate came to be settled finally an heir could be heard to insist that any payments made to him more than three years before should not be taken into account in determining his distributive share.
The findings of the court are fully supported by the evidence, and the conclusions of law necessarily follow.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action against the defendant insurance company for the amount claimed to be due plaintiff as beneficiary under a life insurance policy on the life of her husband with a double indemnity benefit rider attached. Payment was made on the face amount of the policy but it is alleged she did not know at the time of the payment and the giving of the receipt and release that the death of her husband had resulted from an accident, but being so informed later, brings this action to recover under the double indemnity provision.
The policy in question was taken out by the insured in 1932 in the face amount of $2,000 and the double indemnity rider provided for the payment of an additional $2,000 in the event death of the insured should occur as the result, and directly and independently of all other causes, of bodily injury effected through external, violent and accidental means, provided such death occur within ninety days after sustaining such injury and that on the date of death no premium be past due and unpaid.
The policy had been kept in force and the insured, Mark A. Mc-Millin, died on February 28, 1946. Proof of death was duly made and on March 15, 1946, the company paid to plaintiff beneficiary • the face amount of the policy in the sum of $2,000 and on the same date she gave the company her receipt and release which will hereinafter be referred to.
In her petition filed in this action she alleges the purchase of the insurance by her husband in 1932, makes reference to the double indemnity feature of the same and then alleges that on February 5, 1946, the insured suffered, directly and independently of all other causes, internal bodily injuries effected directly and through external, violent and accidental means, in that an aneurysm was caused in the aorta of deceased by trauma when he fell into a meter box while working on a water meter; that he overexerted himself in extricating bis body out of such meter box; that as a result of said accident and accidental injury he died on February 28, 1946; that such death was within ninety days after sustaining said bodily injury and that as of the date of injury and as of the date of death no premium on said double indemnity contract was past due; that the sum of $2,000 had been paid on the life insurance portion proper of the policy but that nothing had been paid on the double indemnity feature of the same and that there was due to her from defendant company the sum of $2,000 together with interest on said double indemnity contract. A copy of the double indemnity contract was attached to plaintiff’s petition as an exhibit.
The answer of the defendant admits that it issued the policy in question, together with the double indemnity contract; admits the death of the insured on February 28, 1946, but specifically denies that his death was due in any part to any accidental cause whatsoever. Further answering, the defendant states that subsequent to the death of her husband plaintiff submitted a claim to defendant for payment of the sum of $2,000, that being the face amount of the policy in the event of death from natural causes; that plaintiff caused proof to be made to defendant that the death of the insured was due wholly and entirely to natural causes, and that she should now be estopped to deny the truth and accuracy of such claim. For further answer, defendant states that it made a complete settlement with plaintiff of all her rights under the policy, including all rights to double indemnity payment and that defendant was released and discharged by plaintiff from any and all liability and specifically by a receipt and release which was executed and delivered by plaintiff to the company on March 15, 1946. That all of the provisions of the policy with reference to double indemnity were an inseparable part of said policy and that all liability had been completely discharged and settled. A copy of the receipt and release was attached to the answer as an exhibit and is as follows:
“claimant’s receipt and release
“Received of The Farmers & Bankers Life Insurance Company, Wichita, Kansas, the sum of Two Thousand Two Hundred Two and 71/100 Dollars in full settlement of all claims of whatsoever nature under policy of Insurance No. 74627, issued 7-7-1932 to Mark A. McMillin of Salina, Kansas, by said Company, in consideration of which said Policy is hereby surrendered to said Company and said Company is hereby released from further liability thereunder.
“Signed at Salina, Kansas, this 15th day of March, 1946.
(seal) Anna P. McMillin, Beneficiary
“Face of Policy.................................................. $2,000.i)0
Less Bal. 14th Ann. Prem......................................... 19.12
1,980.88
Coupons & Int................................................... 202.71
2,183.59
Left on Deposit....................... 2,000.00
Our check .................................................... $183.59
Witnessed By
Richard J. Surface.”
Plaintiff filed her reply, and a motion to require her to make the sixth paragraph thereof more definite and certain as to when and in what manner plaintiff became aware of the alleged true facts concerning her husband’s purported accidental death and as to when and in what manner plaintiff notified defendant company of the alleged true facts concerning the purported accidental death*of the insured was sustained.
Plaintiff’s second amended reply admits the execution of the receipt and release above set forth but specifically denies that she submitted proof of loss to defendant company explicitly specifying that the death of her husband was due wholly and entirely to natural causes and she further specifically denies that a settlement had ever been had upon the double indemnity contract.
Since this case reaches us on appeal from the order of the lower court sustaining the defendant’s demurrer to the second amended reply, the following pertinent portions of the same are set out in full:
“4. Plaintiff alleges that if her accepting payment in settlement for death due to natural causes was actually contracted for between plaintiff and defendant, and if such settlement and contract was intended as a full and complete settlement if death was due to other than natural cause, then each contract and settlement was based upon a mutual mistake of fact. Plaintiff further alleges that she concealed no facts concerning the accidental cause of the death of Mark A. McMillin from defendant; that all facts which were available to plaintiff causing the death of Mark A. McMillin were equally available to and ascertainable by defendant that the facts proving that death was accidental as alleged in plaintiff’s Petition existed on March 8 and on March 15, 1946, but were unknown to this plaintiff until thereafter; that the fact of accidental death as alleged in plaintiff’s petition instead of natural death was a mutual mistake of fact both by plaintiff and defendant.
“5. Plaintiff further alleges that at no time, or by any act, either written or oral, has she explicitly cancelled, and released defendant of liability under the supplemental contract attached to her Petition as Exhibit ‘A.’
“6. After plaintiff executed her release, which is Exhibit ‘A’ attached to defendant’s Answer, she became aware of facts which prove that Mark A. Mc-Millin suffered death due to accident as alleged in plaintiff’s Petition, in the latter part of March, 1946; that she became aware of such facts when she began to clean house and care for the clothing of her deceased husband. It was then she observed more in detail that the coveralls worn by her deceased husband when he returned to his home in mid-morning on February 5, 1946, were severely torn and very muddy. She then remembered the remarks made by her husband at the home on said February 5, 1946, a few minutes after her husband suffered the accident from which he died, as alleged in her Petition. Prior to said latter part of March, plaintiff was upset, disturbed, and grief-striclcen because of the serious illness of her husband, and gave no thought to plans for recovering money because of the same. All of her time was consumed in caring for her bed-fast and seriously ill husband. At no time, from the date of said accident until the day before the death of plaintiff’s husband, was she apprehensive of his death, but on the contrary, she at all times expected his complete recovery; that in the latter part of March, she learned that:
“(1) Deceased, Mark A. McMillin, over exerted himself extremely in propelling and extricating his body out of the meter box into which he fell on said February 5, 1946, at 619 West Prescott in Salina, Kansas.
“(2) Such exertion so experienced by deceased, Mark A. McMillin, accidentally caused an aneurysm in the aorta of deceased, from which aneurysm he died;
“(3) Said aneurysm in the aorta of deceased, Mark A. McMillin, was caused accidentally by said exertion, and was not the result of natural causes or disease.
“that none of said facts were known to plaintiff or defendant on March 15, 1946, when plaintiff signed her release to defendant; that on March 15, 1946, plaintiff and defendant were under the mistaken belief that said aneurysm in the aorta of said deceased was the result of natural causes or was caused by disease; that on March 15, 1946, plaintiff and defendant did not know that in truth and in fact said aneuiysm in the aorta of deceased, Mark A. McMillin, was caused by accident due to exertion on February 5, 1946, as alleged in plaintiff’s petition!
“7. The plaintiff notified the defendant of the true facts of accidental death of Mark A. McMillin, and that Mark A. McMillin’s death was caused by accident as alleged in plaintiff’s Petition and as alleged in this said Second Amended Reply by letter from plaintiff’s attorney, which letter is dated April 12, 1946, and is acknowledged by defendant by its letter dated April 15, 1946. . . .”
The demurrer is as follows:
“Comes now the defendant and demurs to the Second Amended Reply of the Plaintiff for the reason that it fails to state any grounds for relief from the admitted allegations of the Defendant’s Answer, and for the reason that the Plaintiff’s Petition and Reply together fail to state a cause of action against the Defendant.”
This demurrer was sustained and plaintiff appeals from that ruling, and while five specifications of error are set out there is really only one question involved and that is whether or not plaintiff’s petition and second amended reply state a cause of action against the defendant.
It will be seen that plaintiff bases her right to recover on the premise that the execution of the release was the result of a mutual mistake of fact, that is, mistake on both her part and that of the defendant company as to the true cause of death of the insured. Fraud is not pleaded and unless she can show such mutual mistake she cannot avoid the effect of the release.
“A mere mistake of fact on the part of one of the parties to a release, in the absence of a showing of fraud, duress, undue influence, or mental incapacity, is not sufficient ground for the avoidance of a release.” (53 C. J. 1211, Release, § 29.)
See, also, Werth v. Minnesota Mutual Life Ins. Co., 142 Kan. 255, 47 P. 2d 76, where the factual situation was quite similar to the case at bar, in which it was held that the burden was upon the plaintiff to prove that the giving and acceptance of the receipt was a mutual mistake and that proof of mistake on the part of plaintiff alone is insufficient to meet the test.
The general rule with reference to mutuality of mistake as applied to cases of this nature is that to justify the rescission of a release such mutual mistake must be as to a past or present fact material to the contract and not a mere mistake in prophecy, opinion or in belief relative to an uncertain event such as probable developments from, and permanency of, a known injury. It is not every mistake that will lay the foundation for the rescission of an agreement. That foundation can be laid only by mistake as to a past or present fact material to such agreement. (Tucker v. Atchison, T. & S. F. Rly. Co., 120 Kan. 244, 243 Pac. 269; Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121; 45 Am. Jur. 685, Release, § 20.)
Plaintiff concedes the correctness and application of the foregoing general rules but contends that her second amended reply sufficiently alleges the fact of the mutual mistake of the parties on March 15, 1946, when the release was executed in that it was not until later that she learned the trae facts in connection with his death. Her argument is that as far as the defendant company is concerned, it was either mistaken as to the cause of death or was guilty of fraud in withholding and concealing facts from the plaintiff, but as heretofore stated, fraud is not pleaded.
In support of the lower court’s ruling defendant argues that plaintiff has insufficiently alleged mutual mistake of fact in that what was alleged was neither mutual nor a mistake of fact, and that she was possessed of no new facts after signing the release even though she might have arrived at a different conclusion based on those same facts which were either known by her or were available to her prior to the time she signed it.
Let us examine the allegations of plaintiff’s second amended reply with reference to the mistake on her part as to the facts, present or past, as of March 15, 1946, the date of the release. In substance she alleges that subsequent to that date she became aware of facts which proved that the death of her husband was due to accidental means; that she became aware of these facts when she began to clean house and to care for the clothing of her deceased husband; that it was then that she observed more in detail the clothing which he had worn when he returned to his home the morning of the alleged accident and that she then remembered the remarks made by him on that date. It will be noted that these are really not new facts which were not in her possession at the time she executed the release. Her pleading states that she “observed more in detail” something which she had already observed to some extent and that she “then remembered” certain remarks made by her husband on February 5, 1946, apparently pertaining to an “accident.” (Emphasis supplied.) Even giving such allegations the most favorable inference, we do not think they show that plaintiff was in possession of any more facts during the latter part of March, 1946, than those which she already knew when she executed the release. Her allegation in this respect really amounts to no more than that she merely had a change of opinion resulting in different conclusions based upon the same facts which were in her possession at all times. It is quite apparent that her pleading merely alleges a different conclusion on her part rather than allegations of facts which were unknown to her previously.
The great majority of the cases dealing with mistake are those where a claimant executes a release for a personal injury not known at the time to be serious. In the instant case it would appear that plaintiff’s husband told her about his alleged accident on the same date on which it occurred. When she executed the release on March 15 she was not uninformed as to the seriousness of that “accident” because in fact her husband had died on February 28, some two weeks prior to the execution of the release! We thus have a case where the release is executed after the ultimate effect of the alleged “injuries” had become known for he had already passed away. Consequently this is not an instance where there are unexpected results arising out of an alleged injury not known at the time to be serious, but instead presents a case of known results from facts known at the time. From the allegations of her pleading it perhaps is a fair assumption that plaintiff changed her opinion concerning her husband’s death as a result of receiving technical medical information. If such is the case, then it would appear to be the same information that was available to her when he died on February 28 and when she executed the release on March 15. If she were entertaining any doubt concerning the facts of his death she could have delayed settlement with the company until a later date but she chose to accept the face amount of the policy on the theory that her husband died from natural causes.
In view of our holding that the allegations of the second amended reply are insufficient to allege a mistake of fact, even on the part of plaintiff, as of the date of giving the release, it becomes unnecessary to discuss the question as to their sufficiency with respect to mistake on the part of defendant company.
We have no difficulty in agreeing with the lower court that the allegations of the second amended reply do not sufficiently plead a mutual mistake of fact, and therefore its judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when plaintiff stepped into a hole in a sidewalk alleged to have been dug therein by agents of defendant, and left unguarded. Defendant’s demurrer to plaintiff’s petition was overruled and it has appealed.
The petition alleged that defendant was engaged in building a conduit beneath the level of a sidewalk and removed the sidewalk and dirt so that a hole existed for the width of the sidewalk, about two feet wide and five feet deep. The petition then contained an allegation, as follows:
“V
“That between twelve and one o’clock p. m., February 9, 1948 plaintiff was walking on the sidewalk on the north side of West 8th Street, Coffeyville, Kansas, in an easterly direction; that the hole or cavity above mentioned had been abandoned by defendant’s agents or servants and left in an unprotected, open and exposed condition without barricades or warning signs of any type or description; that plaintiff, not knowing of the existence of said hole and not seeing any barricades, warning sign, dirt pile or anything else to apprise or warn her of said hole, but instead seeing two vertical sticks about two feet apart looked up to see what the sticks were holding up, became blinded by the sun and fell in the hole above described.”
The petition then set out the injuries plaintiff claimed to have suffered. The defendant was charged to have been negligent in failing to maintain barricades and failing to maintain warning signs. Judgment was asked in the amount of $3,000.
To this petition defendant filed a motion that plaintiff be ordered to make her petition more definite and certain in some seven particulars. The court sustained this motion in part by ordering her to state how far west of the hole she was when she first observed the two vertical sticks described in the petition and how far west of the hole she was when she looked up to see what the two vertical sticks were holding up.
Plaintiff complied with this order by alleging that she was approximately one foot west of the alleged hole when she first observed the two vertical sticks and approximately one foot or ten inches west of it when she looked up to see what the two vertical sticks were holding up.
To this petition defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled and defendant has appealed.
Defendant first argues that the petition does not state facts which constitute any negligence on its part. In this connection it cites the rule from 25 Am. Jur. 594 that the right of the public to free and unobstructed use of the highway is subject to the exception in the case of obstructions and holes of a temporary nature incidental to a lawful use of the highway. No one disputes the correctness of that rule. We all know it is necessary at times to dig up sidewalks and streets, to lay pipes or conduits or sometimes to repair the streets or sidewalks. This right to repair, however, must always yield to the duty of the party who is obstructing the street or sidewalk to erect suitable barracks or warning signs for the safety of travelers on the street or sidewalk. The omission to do this is the negligence with which plaintiff charges defendant.
The petition alleged there were two vertical sticks on each side of the hole. We cannot say that as a matter of law these two vertical sticks were sufficient warning signs or barracks to relieve defendant of liability for injuries to one who did not see this hole and stepped into it. The petition stated actionable negligence on the part of the defendant.
Defendant next argues that the petition was demurrable because it disclosed on its face that plaintiff was guilty of contributory negligence as a matter of law. Defendant in this connection argues that since its motion to require the plaintiff to make her petition more definite and certain was overruled, the petition must be strictly construed against the plaintiff. There is no doubt that this is the rule where the pleader successfully resists a motion to make definite and certain, which should have been sustained. Such is not the case here. The court sustained the motion in part and the plaintiff complied with the order. The other particulars in which defendant asked the petition be made more definite and certain concerned either a matter of evidence or were immaterial to the plaintiff’s cause of action. A petition which fairly apprises defendant what plaintiff’s claim is is not properly subject to a motion to make definite and certain and where such motion is properly resisted and overruled the rule of strict construction does not apply. (See Henderson v. National Mutual Gas Co., 164 Kan. 109, 187 P. 2d 508; Republic County v. Guaranty Co., 96 Kan. 255, 150 Pac. 590; and McCroskey v. Manufacturing Co., 112 Kan. 434, 211 Pac. 133.)
Defendant next argues that because of the size of the hole and the condition of the weather, the hole was so obvious that it could have been observed with the most casual glance; that the petition did allege there were two vertical sticks extending above the sidewalk which served as a warning to plaintiff when she raised her eyes to observe them; that there were no obstacles or traffic which prevented her from observing the hole as she walked eastward and as plaintiff approached the hole she was not observing it and as she approached the hole she was not observing her general course but was walking with her eyes down. Defendant argues that the foregoing facts establish that plaintiff was not using her senses so as to avoid dangers which ordinary prudence would disclose.
We cannot place quite as strong an implication against plaintiff on the facts pleaded as would warrant the above statement. The defendant in some particulars draws an inference against plaintiff from pleaded facts which the facts pleaded do not justify.
On considering a demurrer to the petition in Haggard v. Lowden, 156 Kan. 522, 134 P. 2d 676, we said:
“Defendants’ demurrer to this petition having been sustained, the plaintiff appeals. In considering the questions presented we adhere to the rule that as against a demurrer, well-pleaded facts are assumed to be true, and the question is whether these facts, with all reasonable inferences to be drawn therefrom, constitute a cause of action.” (p. 525.)
The defendant is entitled not only to the benefit of the facts pleaded but to all reasonable inferences that may be derived therefrom. (See Jackson v. National Bank of Topeka, 146 Kan. 424, 71 P. 2d 1057.)
Plaintiff was bound to exercise ordinary, reasonable care under all the surrounding facts and circumstances. She was entitled to presume, however, that the sidewalk would not have a hole in it. Where reasonable men might differ as to whether 'certain conduct was that of an ordinary, reasonable person, then the question is for the jury. (See Keir v. Trager, 134 Kan. 505, 7 P. 2d 49; Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103; and Hill v. Southern Kansas State Lines Co., 143 Kan. 44, 53 P. 2d 923.)
Here the petition alleged that plaintiff observed the two vertical sticks when she was a foot or ten inches away from the hole. That would mean that she was actually in the act of stepping into the hole when she saw the sticks. She had no opportunity to avoid the injury from then on.
We hold that the demurrer to the petition was properly overruled.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
This is an appeal from an order of the district court of Leavenworth county refusing to grant the petitioner, Truman W. Powell, a writ of habeas corpus. There is no dispute as to the facts. On April 18, 1934, petitioner was sentenced in the state of Illinois for the crime of burglary, and in May or Jtme, 1936, received a parole from the Illinois penitentiary by the Illinois Division of Correction, which parole permitted him to leave that state. The parole which was signed by petitioner was received in evidence. In June, 1937, petitioner was arrested by federal authorities in Tennessee, and upon pleading guilty to several counts was sentenced by the United States district court for the district of Tennessee. The latter part of that sentence was served at the federal penitentiary in Leavenworth, Kan., from which institution he received a conditional parole on December 20, 1948. The record indicates that during this conditional parole on the federal conviction and until November 9, 1952, petitioner would be in the technical custody of the federal authorities. On July 22, 1937, petitioner’s parole from the Illinois penitentiary was revoked by the Illinois authorities because his federal violation in Tennessee constituted a violation of the conditions of his parole. An order for his arrest was issued by the warden of the Illinois penitentiary and a detainer lodged with the federal penitentiary officials. Upon demand from the governor of Illinois, the governor of Kansas issued a “governor’s warrant” for petitioner on December 18,1948, directed to the sheriff of any county in Kansas and commanding such sheriff to apprehend this petitioner and deliver him into the custody of the duly commissioned agent of the state of Illinois. The record further indicates that as petitioner was about to be released from the federal penitentiary at Leavenworth, a deputy sheriff of Leavenworth county appeared at the federal penitentiary and the petitioner was then and there turned over to the Leavenworth county sheriff in whose custody he still remains awaiting the outcome of this appeal. This transfer of custody took place within the federal penitentiary. The following day, December 21,1948, the Kansas governor’s warrant arrived by mail in the office of the record clerk of the federal penitentiary at Leavenworth. Upon being advised by the record clerk that the governor’s warrant had arrived, the sheriff sent a deputy to pick it up and, according to petitioner’s evidence, it was kept in the sheriff’s files without being read to or servfed upon petitioner. Also on December 20, 1948, a writ of habeas corpus was issued by the district court commanding the sheriff to bring the petitioner before the court on December 23, 1948. On December 22, the sheriff made his return stating that he was holding petitioner in custody “by virtue of a governor’s warrant.” On December 23, 1948, after a full hearing, the court found that petitioner was lawfully restrained in the custody of respondent; that the application for a writ of habeas corpus should be denied; and that petitioner should be remanded to respondent’s custody for delivery to the agent of the state of Illinois. From this order and judgment of the district court petitioner has appealed.
The appellant petitioner contends that he is wrongfully held in custody by the sheriff of Leavenworth county for the following reasons:
(1) The arrest by the sheriff of Leavenworth county on December 20 was illegal because it was without a warrant, the extradition warrant from the governor of Kansas not having been received by the sheriff until the next day, and it not having been served upon or read to the petitioner.
(2) The Kansas governor’s warrant is illegal in that under Illinois law the petitioner was not a parole violator, and his parole could not have been revoked unless he had first returned to Illinois.
(3) That he has not fled from Illinois, and is not a fugitive from justice.
(4) He is in the constructive custody of the attorney general of the United States, and that both Kansas and Illinois are thereby divested of jurisdiction to extradite him from Kansas to Illinois.
(5) That petitioner’s parole from the Illinois penitentiary amounted to a commutation of sentence from that institution.
Appellant’s first contention presents a question which was before this court in Yaws v. Warden of New Mexico Penitentiary, 166 Kan. 685, 203 P. 2d 742, in which we held:
“The extradition of fugitives from justice is covered by G. S. 1947 Supp. 62-727 to 62-767. These sections comprise what is known as the uniform extradition act. It has been adopted by most, if not all, of the states. It provides that the demand from the governor of the demanding state, upon the governor of the state where the fugitive has been found, must be in writing. It does not, however, provide that there shall be any hearing at which the fugitive shall be present or of which he shall have notice. It provides that the governor may call upon the attorney general to investigate a demand, but nowhere does it provide that he must investigate it or have it investigated. There is a provision that the governor may investigate the guilt or innocence of the fugitive but only when such is necessary in identifying the person held. There is a provision for the arrest of any person without a warrant upon reasonable information that the person stands charged with a felony. In such cases he must be taken immediately before a magistrate and may be admitted to bail pending the hearing. None of these provisions apply to petitioner. The demand on the governor by the governor of New Mexico was made in writing. Extradition proceedings are no part of the trial. They are somewhat analogous to the original warrant in an ordinary prosecution. The warrant is issued on a sworn complaint but no one would contend that a defendant must be present when a warrant is issued.” (p. 688.) (Emphasis supplied.)
Section 62-740, G. S. 1947 Supp., of the Uniform Extradition Act provides:
“The arrest of a person may be lawfully made also by any peace officer or private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant.”
The order received by the Leavenworth county sheriff from the warden of the Illinois state penitentiary and the detainer filed with the federal penitentiary authorities were sufficient reasonable information (as required in section 62-740) upon which to arrest and detain appellant petitioner. True, the foregoing section of the statute requires that accused be taken before a magistrate for the issuance of a fugitive warrant, but a governor’s warrant had already been issued two days before and was in the hands of the Leavenworth county sheriff on the day following petition’s arrest. Within twenty-four hours after petitioner’s arrest the respondent was holding petitioner in custody under the Kansas governor’s warrant— and that sufficiently met the requirements of section 62-740, supra.
The arrest of the petitioner and his being held in custody by virtue of the governor’s warrant was in accord with the provisions of the Uniform Extradition Act (G. S. 1947 Supp., ch. 62, art. 7) adopted in this state.
. Appellant next contends that he was not a parole violator because his parole could not be revoked under the Illinois law unless he first returned to that state, and therefore the Kansas governor’s warrant was illegally issued. The Illinois parole which was received in evidence had attached to it the “rules of parole” and the parole was said to be granted in accordance with those rules. We do not deem them of sufficient importance to quote here, but suffice it to say that petitioner admits by his testimony that he violated certain of these rules including Rule No. 6, which provided:
“The prisoner must respect and obey the laws, and conduct himself in all respects as a good citizen.”
Rule No. 7 provided:
“A violation of any of the above rules forfeits the parole contract on the part of the party paroled and renders him liable to be returned at once to the institution for such action as the Parole Board deems advisable.”
It may also be noted that chapter 38, section 808 of the Illinois Revised Statutes (1919), pleaded by petitioner in his reply, requires the paroled prisoner to “in all respects) keep faithfully his parole agreement until discharged.” There is an apparent lack of merit in appellant’s contention that he was not a parole violator; however, we may well have omitted to labor the point because it is not within the province of this court to inquire into that question of fact. The presumption is that the governor’s warrant was properly issued and was valid, and there is nothing in the record to indicate the contrary.
Section 62-746, G. S. 1947 Supp. (of the Uniform Extradition Act), provides:
“The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.”
Also note the following statements from Corpus Juris Secundum:
“In the absence of proof to the contrary, it will be presumed that the governor acted in conformity with law in the issuance of his warrant, and that he performed his duty as to the determination of the jurisdictional facts; and the warrant or the recitals therein are prima facie evidence of such facts. The warrant is ordinarily not conclusive proof that the requirements of the statute were complied with before its issuance.” (35 C. J. S. 345-346, § 16d.)
“Although the power and duty of determining whether a sufficient showing has been made to warrant the extradition of the person demanded rest in the first instance on the governor of the asylum state . . . his determination is not conclusive but is subject to review on habeas corpus. On the other hand, the usual presumption of regularity which attends official action renders the governor’s determination prima facie correct, and casts the burden of proof on accused to show the contrary. The scope of inquiry in a summary proceeding in habeas corpus to prevent extradition is necessarily narrow, and as a general rule it is necessary and proper to pass only on the legality of the requisition and rendition. The only inquiry to be made is whether the statutory prerequisites have been complied with. When the extradition papers are in proper form it has been held that there are but two questions open to inquiry: (1) Is petitioner a fugitive from justice? (2) Is he the identical person described in the governor’s warrant? On an application for a writ of habeas corpus by one extradited as a fugitive from justice, the court is controlled by the law and may not grant relief in the exercise of a sound legal discretion.” (39 C. J. S. 548-550, § 39a [1].)
In Person v. Morrow, 108 F. 2d 838, the United States Circuit Court of Appeals (10th Circuit) stated the rule:
“In habeas corpus proceeding involving extradition, doubtful questions respecting validity of indictment were to be left to courts of demanding state.
“Ordinarily, the questions open to review in a summary proceeding in habeas corpus to prevent extradition are whether petitioner stands substantially charged with a crime in the state from which he fled, whether petitioner is a fugitive from the justice of such state, and whether warrant of extradition is regular on its face.” (Syl. ¶¶ 2, 6.)
The petitioner was a parole violator and apparently under Illinois law it was proper for that state to revoke his parole. Be that as it may, there is nothing in the record before us to indicate that the Kansas governor’s warrant was improperly issued, and the questions concerning petitioner’s Illinois parole, or any violation thereof, will be left to the Illinois courts.
For his third point, appellant insists that he has not fled from Illinois and is not a fugitive from that state. Here again, the governor’s warrant is prima facie evidence that petitioner is a fugitive and the burden is upon the petitioner to overcome the prima facie case made by the warrant. He has not done so. In fact, the record shows he was paroled in Illinois in 1936, and that this parole was revoked in July, 1937. As to a parole violator being a fugitive, we find the rule stated in 35 C. J. S. 327-328, as follows:
“An indicted or convicted prisoner who escapes may be extradited as a fugitive from justice; and the same is true as to a paroled prisoner who violates his parole or whose parole has been revoked. This rule applies notwithstanding the paroled prisoner’s entry into the asylum state, prior to the violation or revocation of his parole, was with the consent or knowledge of the authorities of the demanding state, and irrespective of whether his departure from the demanding state or his entry into the asylum state was voluntary or involuntary.”
We adhere to this rule. (Ohrazada v. Turner, 164 Kan. 581, 585, 190 P. 2d 413.)
Appellant also argues that being on parole from the federal court until 1952, he is in the constructive custody of .the attorney general of the United States and both Kansas and Illinois are divested of jurisdiction over him. It is true that the attorney general of the United States and the federal courts may refrain from relinquishing a federal prisoner or parolee to state authorities for prosecution within the state. However, the conditional release by federal authorities does not in itself preclude action by a state during the term of probation or parole. It is a discretionary matter with the attorney general of the United States as to whether a federal prisoner will be “delivered up” or a state be permitted to prosecute or incarcerate him. The federal pirisoner or parolee cannot himself take advantage of his status by way of defense to a prosecution by the state. The matter of .his custody is one of comity between the two jurisdictions, and he has no voice in it. There is no question in the instant case but that petitioner was “delivered” or “turned over” to the Leavenworth county sheriff by the federal officials, for the transfer of custody was made “within the walls” of the federal penitentiary.
In Ohrazada v. Turner, supra, in a somewhat analogous situation, we said in the syllabus (¶ 3):
“Where sentences imposed by state and federal courts are both in full force and effect and authorized officials of the respective governments, pursuant to recognized doctrine of comity, grant priority of custody to each other for sentence serving purposes the prisoner has no voice in the matter.”
In Ponzi v. Fessenden, 258 U. S. 254, 260, 66 L. Ed. 607, 42 S. Ct. 309, it was held by the United States supreme court:
“One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. In re Andrews, 236 Fed. 300; United States v. Marrin, 227 Fed. 314. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it.
“One accused of crime, of course, cannot be in two places at the same time. He is entitled to be present at every stage of the trial of himself in each jurisdiction with full opportunity for defense. Frank v. Mangum, 237 U. S. 309, 341; Lewis v. United States, 146 U. S. 370. If that is accorded him, he cannot complain. The fact that he may have committed two crimes gives him no immunity from prosecution of either.
“The chief rule which preserves our two systems of courts from actual conflicts of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose.” (p. 260.)
See, also, In re Andrews, 236 Fed. 300.
We approved the rule stated in the last cited case in Perry v. Gwartney, 162 Kan. 607, 611, 178 P. 2d 185, where we said:
“The Guernsey case [63 F. 2d 163] seems to turn upon the fact that no request had been made to the federal court for release of its jurisdiction and control over Guernsey so that he could be tried by the state court.- The court also pointed out that it was not clear as to whether the federal court would be compelled to release or whether it was discretionaiy. Regardless of the holding in the Guernsey case we prefer the rule announced in In re Andrews, 236 Fed. 300, where it was held that the question of which court should have the custody of a defendant was one of comity between the two governments and not a personal right of'the prisoner and could not be raised by him.” (p. 612.)
Finally, appellant cites In re Jones, 154 Kan. 589, 121 P. 2d 219, in which petitioner was released upon a writ of habeas corpus by the district court of Leavenworth county and respondent appealed to this court. The district court in that case had made extended findings of fact which indicated that petitioner was neither a parole violator nor a fugitive from justice. None of the findings were challenged by respondent. The Louisiana authorities had voluntarily released petitioner from the Louisiana state penitentiary without any application for clemency upon his part, and turned him over to federal authorities who prosecuted him with the result that he was ultimately incarcerated in the-federal penitentiary at Leav enworth, Kan. The district court released petitioner Jones and upon appeal by respondent, we said:
"That the facts contained in the finding are true is now admitted. What is the effect of the admitted facts? It is that in refusing to return to the state of Louisiana appellee violated no condition attached to his release from the custody of officials of the state of Louisiana. The executive order of release was in the nature of a commutation of sentence.” (p. 594.)
The instant case presents an entirely different situation. The trial court here made no findings which would justify petitioner’s release. Petitioner had admittedly violated the terms and conditions of his parole, and he is a fugitive from justice. Petitioner’s parole from the Illinois state penitentiary was granted upon condition that he be a law-abiding citizen, and petitioner signed the parole agreeing to these conditions. He went to Tennessee and violated his parole which was subsequently revoked. It cannot be said, as appellant would have us say here, that petitioner Powell’s conditional parole from the state penitentiary of Illinois amounted to a “commutation of sentence.”
The judgment of the district court denying a writ of habeas corpus is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Various objections are raised to the validity of the first lease, based upon the fact that a portion of the premises was a homestead when the lease was executed. When the suit was filed and these objections were first set up, and when plaintiff procured his lease, the youngest child had become of age and the homestead character of the premises no longer existed-While the homestead right was in existence no one entitled thereto complained or objected. After it was terminated a third party, never interested therein, seeks to have an executed contract set aside because, as he now claims, it was void at its inception.
It. appears that the husband of Elizabeth Phillips died seventeen years before the first lease was executed. We are aware of no law which prohibits the sale, lease or other alienation of premises occupied by a widow and the children as a homestead. As was held in Gatton v. Tolley, 22 Kan. 678, such sale or alienation is always subject to the right of the heirs to continue to occupy the premises as a homestead until the widow marries, the youngest child becomes of age or the homestead is abandoned. The interest of any heir may be sold, subject always to the rights of those occupying the premises as a homestead. (Dayton v. Donart, 22 Kan. 256; Mitchell v. Mitchell, 69 Kan. 441, 77 Pac. 98.) The widow herself may sell her interest, and, of course, may lease the same interest. The case of Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, holding a lease given on lands owned by tenants in common and occupied as a homestead to be valid and binding upon the interest conveyed, settles the law adversely to plaintiff. The lease conveyed the interest of the lessor, Elizabeth Phillips. It binds her interest in the common property. This is precisely the effect which the judgment of the trial court gives to it.
It is insisted that the first lease was void because it authorized the commission of waste, which the widow herself could not commit nor authorize another to do. The argument is that, as it was impossible to take oil or gas from under one portion of the premises without taking it from under some portion belonging to the heirs, no valid lease could be given without all the heirs joining therein. But if the widow could not give a valid lease permitting others to take oil or gas from the lands, it must follow that she could not herself lawfully drill thereon for oil or gas or take them from under any of the lands. This would be placing a construction on the homestead laws which was never intended, and one which would lead to absurd consequences.
The original lessees in the lease executed by Mrs. Phillips were the Pennsylvania Oil Company, a partnership composed of two persons. We do not regard as serious the contention that the lease is void because this partnership was not a corporation. The petition alleges that the People’s Gas Company is now the owner and holder of the pretended gas lease.
Another contention is that the People’s Gas Company has no legal capacity to sue. This is based upon an extremely technical and narrow view of the statute which declares the purpose for which corporations may be formed. The language of the twenty-third clause-of section 1249 of the General Statutes of 1901 is: “The manufacture and supply of gas, or the supply of light or heat to the public by any other means.” The words “by any other means” are certainly broad enough to include natural gas, although when the act was passed the use of natural gas may not have been within the contemplation of the legislature. Plaintiff brings this suit against the People’s Gas Company and alleges it to be a corporation duly organized and existing under and by virtue of the laws of Kansas. It will not do for him to sue the company as a corporation and in the same suit deny that it is such, if it is within his power to question the corporate capacity of defendant in a collateral proceeding, which it is not necessary to decide.
At the time Compton took his lease Mrs. Phillips was using gas for domestic purposes, which had been furnished her for more than three years under the terms of the lease. She had never served any notice on the gas company that she desired a forfeiture of the lease, but had continued to use gas furnished thereunder. In view of these facts, which are admitted, it hardly seems necessary to present other reasons why plaintiff, who claims under her, is estopped from now setting up that the lease constitutes a mere license, revocable at her pleasure, and that the mere execution of the second lease constituted a revocation.
In the case of Monfort v. Lanyon, 67 Kan. 310, 72 Pac. 784, the lease provided that if no gas-well should be drilled on the lands the lease should become void, unless the lessee paid forty dollars per year, and it was held that the payment of the money continued the lease in force. Here, instead of the payment of a sum of money the lesseé preserved all the rights granted under the lease by piping and furnishing gas for domestic purposes. Besides supplying gas for these purposes, the court found that the company drilled a paying well on the premises at an expense of $1250. Although the drilling was done after the execution of the second lease, the machinery was placed upon the ground before the second lease was made, and the agent of Mrs. Phillips selected the location of the well. These and other facts mentioned likewise prevent plaintiff from overturning the first lease on the ground that it is void for want of mutuality. After a lessee has operated under a lease for four years, and expended money in carrying out its terms, and the lessor during that time has accepted the consideration and benefits, a third party who takes a subsequent lease with notice of the former and of the facts cannot be permitted to defeat of set aside the former lease upon such grounds.
Numerous suggestions are made in plaintiff’s brief in regard to the character of oil-and-gas leases generally, the necessity that there should be mutuality, and whether they are mere options revocable at pleasure. None of these questions, in our view of this case, is involved. The lease of plaintiff contains this provision:
“It is agreed by the parties to this contract that this' lease is taken by second party with full knowledge as shown by the records of Montgomery county, Kansas. The party of the second part agrees to pay all expenses that may arise by the granting of this lease.”
He contracted with knowledge of the first lease, its terms and conditions, and bought a lawsuit. Most of the facts are admitted by stipulation. The court made but two findings in addition'to the agreed facts; Plaintiff made no request for other findings or to set aside those made. They are based upon the evidence, and, of course, cannot be ignored or set aside here. The judgment of the court is supported by the facts and the law, and is just and equitable. It is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The basis of this proceeding is the denial of a motion asking that a judgment rendered against one corporation be modified by entering it against another corporation. The history of the litigation, briefly stated, is that on August 20, 1894, Olive J. Chapman obtained a judgment against the Western Irrigation and Land Company in the sum of $418.18, as damages for failing to supply water for irrigation purposes. This judgment was reversed by the court of appeals on May 16, 1899, and remanded for a new trial. (Irrigation Co. v. Chapman, 8 Kan. App. 778, 59 Pac. 1098.)
The cause was again tried on January 25, 1900, and a judgment rendered in favor of the plaintiff for $543.94. Several executions were issued on the judgment against the Western Irrigation and Land Company, which were returned unsatisfied, and later proceedings were brought by the plaintiff against .the stockholders of that company to enforce their individual liabilities for the debts of the company, but on the plaintiff’s own motion these proceedings were dismissed on January 26, 1904. On the same day the plaintiff filed another motion, in which she alleged that the Western Irrigation and Land Company owned certain real estate in Lakin, Kan., and she asked that it be subjected to the payment of her judgment and to that end the company be enjoined from transferring the property, and, further, that a receiver be appointed to preserve it and protect the rents therefrom. On April 2, 1904, a temporary order of injunction was allowed and the sheriff was appointed as receiver to take charge of the property. Qn that day the Western Irrigation Company intervened and represented that it owned the real estate sought to be taken as the property of the Western Irrigation and Land Company. In reply to the interplea the plaintiff alleged that no such corporation existed as the Western Irrigation Company; that there was once such a corporation but that it had forfeited its rights; that the Western Irrigation and Land Company was its successor, and was then the owner of the property of the first company, and, further, that the two companies were composed of the same persons and parties.. On December 22, 1904, the receiver was discharged.
On June 30, 1905, a hearing was had upon the issues joined upon the interplea of the Western Irrigation Company, involving the ownership of the real estate, but before it was concluded the plaintiff asked and obtained a postponement and permission to amend her application in .the case. Following this, and on April 5, 19‘05, she filed what is designated as an amended application to enforce her judgment. In this she substantially alleged that the judgment in the case was taken against the Western Irrigation and Land Company through ignorance and misapprehension of plaintiff, occasioned by the Western Irrigation Company and its stockholders; that the officers and stockholders of the Western Irrigation Company organized the Western Irrigation and Land Company and procured that company to be held out as a subsisting corporation, but that its shares of stock were held by the Western Irrigation Company, through one O. S. Kelly, at the time that plaintiff’s damages accrued. She therefore asked that the judgment formerly rendered against the Western Irrigation and Land Company be entered against the Western Irrigation Company and that execution be issued against the property of the latter company. A demurrer to this plea was filed, which the court sustained, and of this order the plaintiff complains.
The court rightly refused to substitute one defendant for another in the judgment in this summary way. For convenience the corporation against whom the judgment was rendered will be designated as the land company and the corporation sought to be substituted as the irrigation company.
As will be observed, it was not a case of misnomer, or defective designation, but a proposed substitution of defendants more than five years after the judgment had been rendered. It was not a correction of a clerical error, nor to make -the judgment conform to one actually rendered, but under the name of an amendment the court was asked to introduce the name of a new defendant into the judgment in lieu of the one against whom the judgment was actually rendered. It is well settled that mistakes in the description or names of parties may be corrected even after judgment, so as to carry’ out the actual decision that was made (S. K. Rly. Co. v. Brown, 44 Kan. 681, 24 Pac. 1100), but a new decision or a substantial change in the judgment cannot be made after the term expires under the guise of an amendment. (23 Cyc. 868.) It is within the power and discretion of the court substantially to modify a judgment, providing it is done at the term at which the judgment was rendered and the parties are still before the court; but when the term ends the judgment actually rendered must stand until it is vacated or set aside in the manner prescribed by law. (The State, ex rel., v. Sowders, 42 Kan. 312, 22 Pac. 425; Johnson v. Jones, 58 Kan. 745, 51 Pac. 224.)
Here there was no confusion of names nor inad-' vertence in rendering the judgment against the land company. The organization of both corporations was set forth in the plaintiff’s pleadings and they were recognized throughout the litigation as separate entities. In her petition she alleged the existence of the irrigation company and stated that the land company became its successor in a certain enterprise, and set up a cause of action against the latter company. The irrigation company was not made a party to the ac tion, no cause of action was alleged against it, nor was there ever any purpose of rendering a judgment against that company. The judgment pronounced was within the pleadings of the case and just such a judgment as the court was asked to render. Plaintiff is asking to have the judgment corrected so as to make it show what she thinks should have been done but which in fact was not done, and this in a summary way, five years after the expiration of the term- at which the judgment was rendered.
She contends that the land company is a creature of the irrigation company and that the latter is masquerading in the name of the former. It is also alleged that the irrigation company is the real party in interest; that all of the stock of the land company is held by a representative of the irrigation company and that the land company is not a legal corporation. 'She is hardly in a position to make this contention, for it was alleged by her and adjudicated in the judgment that the land company was a duly organized and existing corporation. In her pleadings she set forth the organization of the land company and the issuance of the stock by the corporation, as well as corporate acts done and the exercise of corporate functions. It is possible for one corporation to own the stock of another, but even if the land company, which was chartered and assumed to exercise powers and privileges, was not legally organized, the legality of its existence cannot be determined in this proceeding. The general rule is that the existence of a de facto corporation can be questioned only by the state in a direct proceeding, brought for that purpose. Nor does the fact stated, if it be one, that both companies had common officers and stockholders, necessarily indicate that they constitute a single corporation, or could not legally contract with each other. (St. L. W. & W. Rly. Co. v. Ritz, 30 Kan. 30, 1 Pac. 27; A. T. & S. F. Rld. Co. v. Davis, 34 Kan. 209, 8 Pac. 530; Bank v. Prescott, 60 Kan. 490, 57 Pac. 121.)
In general terms the plaintiff alleged that the irrigation company was fraudulently wearing the cloak of the land company, but if fraud is to be made the basis of relief, and a liability established against a new defendant, it should be fully pleaded and issues directly tendered in a proper action. It cannot be summarily accomplished on a motion to amend a judgment rendered against another party. By her pleadings and acts plaintiff has treated the corporations as separate entities, and she is not in a s good position now to say that they are not, nor to insist that the land company, which was adjudged on her own allegation to be an existing corporation, is not one.
The judgment of the district court is affirmed.
Greene, Burch, Smith, Porter, Graves, JJ., concurring.
Mason, J., not sitting. | [
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The opinion of the court was'delivered by
Porter, J.:
The action in the district court was for the recovery of damages for the alleged breach of a contract for the sale of a thrashing-machine. Defendant had judgment for costs, and plaintiff brings error.
The Northwest Thrasher Company has its main office at Stillwater, Minn., and maintains a branch office at Kansas City. On May 18, 1904, its solicitor called, upon defendant at Cedar Junction, in Johnson county, and after some negotiations an order was given in writing by which defendant proposed to purchase from plaintiff certain machinery, part of the price to be paid in notes and a considerable amount of it in the exchange of old machinery. The order was signed by defendant and mailed .on the same day to plaintiff at its main office. On June 3 a letter of acceptance was mailed at Stillwater, directed to defendant at his post-office, and. the machinery was shipped June 12. De fendant refused to'receive or pay for the machinery, and this action was brought to recover $434.30 upon a clause in the written order which provided that in consideration of the expense incurred by the company in “soliciting, investigating and taking” the order the purchaser agreed to pay all freight charges and ten per cent, of the contract price of the machinery, if he declined to receive it.
The defense relied upon was that defendant had countermanded the order before it was accepted. Upon the trial the court permitted defendant to testify that before the order was signed the agent said to him: “I will let you know in ten days whether the company accepts ... or not.” He also testified that at the end of ten days, not having heard anything from the company or the agent, he went to the branch office of plaintiff at Kansas City and notified the person in charge of the business there that the order was countermanded and not to fill it. The order contained a provision as follows:
“This order is subject to the acceptance and approval of the Northwest Thrasher Company at its home office at Stillwater, Minn., and the purchaser hereby waives notice of thé acceptance or rejection thereof by the company.” .
There was also a provision that its terms and conditions should not be varied without a special written agreement, signed by the company.
The principal errors complained of are with reference to instructions and the admission of evidence which it is said varied the terms of the written contract. Every contention of the plaintiff is based upon the assumption that this writing was a contract, binding upon defendant from the moment it was delivered to the agent, provided only that it was afterward accepted by plaintiff. The clause just quoted provided for a waiver of notice of acceptance, but in the meantime, before the offer was accepted and before it rose to the dignity of a contract, it was countermanded, so .that none of the provisions bound either party. At least, there was evidence tending to show a counter-. mand, and the general verdict established it as a fact.
It follows that if there was no contract there was no error in admitting evidence that the agent agreed to let defendant know what the company did, for he had the right to countermand at any time before acceptance, for any reason or no reason. Moreover, there being no contract, there was no basis for plaintiff’s' claim.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error is treasurer of Ford county. In a suit brought by defendant in error the district court granted an injunction restraining the treasurer from proceeding to sell certain scbool-lands. The correctness of the judgment granting the injunction is the only question for review.
The facts are stipulated, from which it appears that the land is a quarter-section of school-land which in Januáry, 1900, was leased for a period of five years, under the provisions of section 6341 of the General Statutes of 1901. The lease by its terms expired January 1, 1905. In December, 1903, while it was still in force, a petition signed by more than ten householders was presented .to the county superintendent asking that the land be exposed for sale as leased school-land, under a separate provision of section 6341, above referred to. The petition in regular course came before the board of county commissioners, and, on January 9, 1904, was by that board approved, and the notice of the petition provided for in section 6341 was published for three weeks. On January 3, 1905, appraisers were appointed, who in due. time made their report. Plaintiff in error, county treasurer, then advertised the land for sale, but before the day of the sale, which was May 19, _ 1905, this suit was brought by Benedict, who claimed to have made settlement upon the land.
A point is made by plaintiff in error that Benedict entered upon the land at a time when it was not open to settlement. According to his declaratory statement, filed within ten days after settlement, he took possession of the land on December 31, 1904, while the lease did not expire by its terms until the next day. The lessee was not in possession, had not paid any of the annual rent for about two years, and although no steps had been taken to forfeit the lease under the provisions of the statute there was what amounted to a practical abandonment of the premises by him. At all events, whether Benedict was a trespasser or not, the state is not in position to take advantage of the fact so long as the lessee made no objection. The state had parted with its right to the possession until the lease expired, which was on the following day.
The rights which Benedict claimed when the suit was brought did not rest wholly upon what he did December 31, but upon his continued occupancy, .and the placing of valuable improvements upon the land, coupled with the intention to make thereon his home. He was not a trespasser when his declaratory statement was made nor when the suit was begun. The principle that “he who seeks equity must do equity” has no application to the facts.
The. principal contention, however, of plaintiff in . error is that the land was not open to settlement at all after the machinery of the law had been set in motion for the purpose of selling it as leased land. It is urged that after the state has incurred the expense of having the land appraised and the sale advertised the beginning of the proceedings to sell it as leased land removes it from settlement and prevents'a settler from obtaining the right to purchase.
The cases of Schwab v. Wilson, 72 Kan. 617, 84 Pac. 123, and Bushey v. Hardin, 74 Kan. 285, 86 Pac. 146, are decisive, and settle this contention adversely to plaintiff in error. In Schwab v. Wilson it was held that the statute providing for the sale of school-land as leased land only applies to a case where the sale is to take place while the lease is in existence. The statute provides that the sale shall be made “subject to existing leases.” (Gen. Stat. 1901, § 6341.) In Bushey v. Hardin, which was a case similar to this, the lease expired January 3, 1905. The lessee abandoned his lease in December, 1904, and made a settlement upon the land, or attempted to do so. The same day a petition was ’ presented praying for the sale of the land as leased land. The first publication of the notice of .the petition was made January 12, 1905. The law expressly provides that the sale of leased land shall not take place until one year‘after the publication. It was held that “it is irregular and improper to inaugurate proceedings to sell school-land subject to an existing lease when the sale must occur after the lease has expired.” (Syllabus.) This leaves nothing further to be said.
The judgment is affirmed. | [
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Subsets and Splits