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The opinion of the court was delivered by
Price, J.:
This is an action whereby plaintiff landowner seeks to quiet his title as to an outstanding mineral interest held by defendant. The appeal is by defendant from an order overruling its demurrer to the amended petition.
In view of our disposition of the case, only a brief summary of the factual background as alleged in the amended petition and exhibits attached thereto, is required.
In July, 1929, Flag Oil Company and Flag Oil Corporation of Delaware each owned all of the stock of the other excepting qualifying shares, and one Blake was the secretary and agent for both. Blake, in order to promote a pooling plan whereby landowners could participate therein, was the moving factor in the formation and organization of a mineral pooling corporation referred to as Royalty Company. He was to perform certain duties in connection with the plan which included the procurement of mineral deeds. In April, 1930, plaintiff conveyed a one-half interest in the minerals under his land to Royalty Company and Flag Oil Company in the respective proportions of three-fourths and one-fourth to each. In other words, Flag was conveyed a one-eighth interest, and that is the mineral deed now in question. As consideration for these conveyances, which were duly recorded, plaintiff received one share of stock in Royalty Company, thereby becoming eligible to participate in profits derived from minerals under the land of other landowners who conveyed their mineral interests in like manner. As a result of its solicitations and operations, Royalty Company acquired mineral deeds on 486-/2 quarter sections of land as against 1250 shares of stock issued. Royalty Company was dissolved in a court proceeding by action of its stockholders in 1947, and in the course of its dissolution plaintiff received a conveyance back to him of the mineral interest which he previously had deeded to Royalty Company. The outstanding one-eighth mineral interest, which plaintiff had deeded to Flag Oil Company, passed by assignment to defendant Flag Oil Corporation of Delaware, in whose hands it still remains.
The amended petition further alleges that the dissolution and receivership of Royalty Company was due to the failure of Blake and the Flag organizations to comply fully with the terms of the original agreement with respect to the operation and management of Royalty Company, and that because of such default defendant Flag Oil Corporation received the one-eighth mineral interest in question without any consideration of any kind or character to plaintiff, and the prayer is that the cloud thus cast by defendant’s claim be removed from plaintiff’s title, and that his title be quieted against defendant and all persons claiming by, through, or under such claim.
As heretofore stated, defendant has appealed from an order overruling its demurrer to the amended petition.
In its effort to overthrow the trial court’s ruling defendant advances several arguments. It is contended that the facts alleged do not show failure or lack of consideration for the mineral deed; that mere want or failure of consideration, in the absence of fraud, is insufficient to obtain cancellation; that any right of action, if it did exist, for any breach by Blake of the obligations in the 1929 contract was in Royalty Company and not in plaintiff as one of its stockholders, and that any cause of action, either in Royalty Company or in plaintiff as an individual, has long since been barred by applicable statutes of limitation.
The gist of plaintiff’s argument in support of the trial corut’s ruling is that failure of consideration for the deed is alleged; that it is therefore void and a nullity, and that no statute of limitation would bar an action to remove the cloud thus cast upon plaintiff’s title.
Despite allegations in the amended petition as to “no consideration or benefit” passing to plaintiff, and which amount merely to naked conclusions of the pleader and are not admitted by the demurrer (Preston v. Shields, 159 Kan. 575, 156 P. 2d 543), from other allegations it is clear that as consideration for the execution of the mineral deeds plaintiff received one share of stock in Royalty Company. He does not rely on fraud, and his contention really amounts to a claim that because of the subsequent failure of Blake and the Flag organizations to comply fully with Blake’s agreement with Royalty Company to perform certain duties and obligations, Royalty Company did not obtain as many valid mineral deeds as shares of stock issued, resulting in the eventual receivership and dissolution of Royalty Company. For some of the history and background of the entire matter see Fox v. Kansas Farmers’ Union Royalty Co., 157 Kan. 297, 139 P. 2d 815, with particular reference to what was said at pages 305 and 306 of the opinion. We do not agree with plaintiffs contention that the allegations of the amended petition show that the mineral deed in question was without consideration and therefore void.
What has been said really disposes of this appeal, but we mention briefly the matter of applicable statutes of limitation.
Defendant is the owner of the one-eighth interest mineral deed to plaintiff’s land. Plaintiff desires to remove the cloud cast by that deed and to quiet his title. Even though the deed, which was given in 1930, were subject to cancellation because of the claimed defaults, plaintiff was and is required to cancel and set it aside in order to quiet his title. (Terrill v. Hoyt, 149 Kan. 51, 87 P. 2d 238; Johnson v. Allen, 178 Kan. 348, 285 P. 2d 764.) This action was not commenced until 1954. Assuming, solely for the sake of argument, that a cause of action ever existed in plaintiff as an individual, it has long since been barred, whether based on breach of a written contract (G. S. 1949, 60-306, First) or for the recovery of real property (G. S. 1949, 60-304, Fourth).
Much more on the subject might be said but we consider it unnecessary to do so in view of the conclusion reached. The order of the trial court overruling defendant’s demurrer to the amended petition was erroneous and is reversed.
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The opinion of the court was delivered by
Parker, J.:
James Patrick, a resident of Stevens County, died intestate on March 1, 1933. So far as the record discloses he left two children (Lucille Mulholland and Harold Patrick) as his only heirs at law and was the owner of a ninety-four-acre tract of real estate in Stevens County. On April 23, 1933, pursuant to action by the probate court of that county, C. E. Prine was appointed and qualified as administrator of his estate. On April 14, 1937, the administrator commenced proceedings to sell the land for purposes of paying debts and cost of administration. Pursuant to such proceedings the land was sold and.the property conveyed to Lucille Mulholland by an administrator’s deed. This instrument, acknowledged by the probate judge of Stevens County, was executed on June 1, 1940, and filed for record in the office of the Register of Deeds on January 4, 1941. Thereafter, and by order of the probate court dated May 31, 1941, the estate was closed and the administrator discharged.
On February 10, 1954, more than thirteen years after the execution and recordation of the administrator’s deed and more than twelve years after the date of final settlement of the estate, Harold Patrick filed a motion in the probate court for an order vacating and setting aside the sale proceedings on the ground such proceedings were void. Thereafter, and following a hearing at which Lucille Mulholland was present and participated, the probate court sustained this motion and executed an order wherein it vacated all such proceedings.
Subsequently, on appeal from this ruling, the district court proceeded to try the case de novo and found the motion to vacate the sale proceedings should be denied. Thereupon it rendered its judgment which, omitting formal averments in the journal entry of no consequence to the issues, reads:
‘T. That at all times material hereto subsequent to April 23, 1933, C. E. Prine was the legally appointed, qualified, and acting administrator of said estate, and that the Probate Court of Stevens County, Kansas, had jurisdiction to probate said estate;
“2. That on May 3, 1937 at 10 o’clock a. m. of said day, the Probate Court acquired jurisdiction to make an order of sale to said real estate involved herein, which jurisdiction was acquired by virtue of the petition for an order of sale, the order setting the same for hearing and specifying publication notice, and the proof of publication.
“3. That all records of the Probate Court that would in any way show transactions in connection with said estate, including appearance and fee dockets, recorded journals and orders, and the files of said estate, were introduced into evidence. None of said records show any notations that would indicate that an order of sale was filed.
“4. That an Order, dated and filed March 23, 1939, based upon a petition of the same date and without notice, was signed by the Probate Judge and provides: ‘It is therefore by the court ordered, adjudged and decreed . . . that the orders affecting the sale of real estate be maintained in force and that the administrator be directed to sell the same in accordance with the original order herein made . . .’
“5. That on May 8, 1940, a petition for the administrator was filed ask ing, among other things, that the Court fix a date for hearing on this petition; that at said time appraisers be appointed to determine the value of the real estate herein described and tentatively sold, and approve the sale subject to said appraisement. The Probate Court set said hearing for June 1, 1940, at 10 o’clock a. m. of said day. Proof of publication was filed on June 1, 1940, showing notice of hearing on said petition.
“6. That on June 1, 1940, the Probate Court made an order appointing appraisers and on said date the appraisers signed the oath and made and filed an appraisement showing the ‘equity of estate valued at $50.00’, subject to incumbrances of record. On June 1, 1940, the administrator filed a report of sale showing said land was sold to Lucille Mulholland for $50.00, the same being the appraised value of the equity owned and held by said estate. On June 1, 1940, an Administrator’s Deed to said land was issued by the administrator to Lucille Mulholland and was acknowledged by the Probate Judge, although not formally approved by said Probate Judge. Said deed was recorded on January 4, 1941;
“7. On December 26, 1951, A. E. Kramer, Attorney of record for the administrator, filed a motion for nunc pro tunc order confirming the sale of said real estate. On the same date (December 26, 1951) the Probate Court entered an order of confirmation of the sale of said real estate as of June 1, 1940, which order was made without notice;
“8. That the only instruments on file that mention the kind of sale (public or private) and the terms thereof, are:
“ ‘a. The petition, filed April 14, 1937, for an order of sale which asks that the real estate be sold at public or private sale and upon such terms as the Court may order or the law prescribe, and,
“ “b. The administrator’s deed which recites that the Court by its order of sale dated May 3, 1937, specified that the real estate be sold “by said administrator at private . . ., for cash in hand.” ’
“9. That the order dated March 23, 1939, and signed by the Probate Court was an order of the court, and not a self-serving declaration by the administrator in the way of a petition or other pleading. This order recognizes that an order of sale had been previously made. However, said order does not specify the kind of sale, whether public or private or for cash.
“10. That the order of June 1, 1940, made by the probate judge appoints appraisers, which is a prerequisite to a private sale only, and was based upon a petition filed May 8, 1940, of the administrator, which asks that appraisers be appointed to determine the value of the real estate herein described and tentatively sold, which would lead to the conclusion that the Court recognized the same as a sale for cash in hand.
“11. It is my opinion that the numerous other errors and omissions were cured by the administrator’s deed having been on file for more than five years.
“It Is Therefore by the Court Considered, Ordered and Decreed that the motion of Harold Patrick to vacate proceedings for the sale of real estate should be and is hereby denied.”
Following rendition of the foregoing judgment and the overruling of his motions for judgment on the trial court’s findings of fact and for a new trial Harold Patrick perfected the instant appeal.
Boiled down and stripped of all excess verbiage the gist of all contentions raised by appellant on this appeal is based upon the premise that the administrator’s deed in question is void because the evidence in the district court failed to establish an order of sale in probate court to support it. In the face of the heretofore quoted findings of the trial court, and other evidence before it not therein specifically mentioned, we are inclined to the view appellant’s position with respect to tibe force and effect to be given the evidence is not warranted by the record. See, e. g., Findings Nos. 2, 4, 5, 6 and 9, heretofore quoted. Even so, for reasons to be presently noted, it is neither necessary nor required that we here consider, discuss or determine the many interesting questions raised by appellant with respect to that subject.
Pointing out that the administrator’s deed had been on record in the office of the Register of Deeds for more than thirteen years preceding the date of the commencement of the action and that such instrument was regular and in due form, containing recitals showing that the administrator had obeyed the rules and directions of the law in every respect in making the sale which led to its execution, appellee directs our attention, as she did in pleadings filed by her in the district court, to provisions of our statute of limitations G. S. 1935, 60-304, now G. S. 1949, 60-304, which read:
“Actions for the recovery of real property, or for the determination of any adverse claim or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter:
"Second. An action for the recovery of real property sold by executors, administrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale.”
and contends that such statute has run in favor of the administrator’s deed and bars an action where — as here — the essence thereof is to set aside an administrator’s sale of real estate and recover the property so sold and conveyed.
We think the question thus raised by appellee must be answered in the affirmative on the basis of our early' decision of Young v. Walker, 26 Kan. 242, where, with respect to a somewhat similar situation and in determining the force and effect to be given an earlier statute of like import, we said and held:
“We shall assume for the purposes of the case, that, except for the statute of limitations, the administrator’s deed would be void. We shall assume for the purposes of the case, that the irregularities in the proceedings of the probate court, and of the administrator, are sufficient to render the administrator’s deed void in any action or proceeding that might have been commenced before the statute of limitations had completely run, and this whether the deed was attacked directly or collaterally; and with such assumptions, we shall proceed to a discussion of the question, whether the statute of limitations has in fact so run as to make the deed valid. Of course the statute of limitations must have some use. It was not enacted for the purpose of curing administrators’ deeds which were already good. It was really enacted for the purpose of curing administrators’ deeds which would otherwise be void;
“. . . If everything was regular, there would be no need of any statute of limitations. If the administrator’s deed was valid without such statute, then there would be no need of the statute. Therefore it is evident that the statute was enacted for the purpose of curing administrators’ deeds which would otherwise be void. . . .” (pp. 249, 250, 251.)
Also by a more recent decision, O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555, which is now regarded as our leading case on the point, where, in reiterating verbatim what has just been quoted and after discussing at great length the reasons behind the pronouncement of the rule therein announced, we reached the same conclusion and held:
“Section 16 of the code of civil procedure (Gen. Stat. 1901, §4444), requiring actions brought by the heirs of a deceased person for the recovery of real property descending to them but sold by an administrator of the estate of the decedent upon an order of court directing such sale to be commenced within five years after the date of the recording of the deed made in pursuance of the sale, applies to sales which are void for want of notice to the heirs of the proceedings upon which the deed is based.” (Syl. ¶ 1.)
And in concluding portions of the opinion said:
“Although length of years may not give jurisdiction or, in a certain sense, make good that which is void (Foreman v. Carter, 9 Kan. 674, 678), an act of the legislature may, out of consideration for the public welfare, oblige interested persons to assert their rights within a limited time or forever hold their peace . . .” (p. 479.)
For later decisions of like import, wherein the foregoing decisions and the rules therein announced are considered, discussed, approved and applied, see James v. Logan, 82 Kan. 285, 108 Pac. 81; Erskin v. Dykes, 158 Kan. 788, 150 P. 2d 322; Schlemeyer v. Mellencamp, 159 Kan. 544, 551, 156 P. 2d 879; Bradley v. Hall, 165 Kan. 358, 362, 194 P. 2d 943.
In an attempt to forestall our conclusion his action was barred by the statute of limitations appellant directs our attention to the fact, stipulated as the result of a pretrial conference, that neither he nor the appellee had been residents of or lived in the State of Kansas subsequent to June 1940, and contends, referring to G. S. 1935, 60-309, now G. S. 1949, 60-309, that that fact tolled the running of the statute of limitations (G. S. 1949, 60-304, Second). Under our decisions (See Travis v. Glick, 150 Kan. 132, 142, 91 P. 2d 41; Herthel v. Barth, 148 Kan. 308, 313, 81 P. 2d 19; Bell v. Hernandez, 139 Kan. 216, 223, 30 P. 2d 1101; Hogaboom v. Flower, 67 Kan. 41, 42, 72 Pac. 547) the short and simple answer to this contention is that this was an action to affect the res which might have been instituted at any time within five years after appellant’s alleged cause of action accrued in the county where the land was situated and service could have been obtained by publication; hence nonresidence and absence of either of the parties from the state had no effect on the running of the statute.
Finally it should be stated we have not overlooked but rejected another contention advanced by appellant, to the effect the statute of limitations does not apply to an administrator’s deed which is not based on an order or judgment of a court directing such sale, simply and solely because it has no application under the existing facts and circumstances. The trial court found (see its Finding No. 2), and we think properly so, that by virtue of the petition for authority to sell, the order setting that application for hearing and specifying publication notice and the proof of publication, the probate court acquired jurisdiction on May 3, 1937, to order the sale of the real estate in question. Assuming arguendo no order of sale was made on that date the uncontroverted record (See trial court’s Finding No. 4) is that thereafter, and on March 23, 1939, the probate court without notice made an order wherein it recognized that a prior order of sale had been made and directed the administrator to sell the real estate in accord with its terms. Good or bad, void or valid, that action on the part of the probate court resulted in “an order or judgment of a court” within the meaning of those terms as used in the heretofore quoted statute of limitations.
We find nothing in other arguments advanced by appellant, either with respect to the case in chief or the trial court’s action in overruling his motion for a new trial, warranting a change in the views heretofore expressed. It follows the judgment must be affirmed and it is so ordered. | [
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The opinion of the court was delivered by
Pbice, J.:
Defendant was convicted of violating the worthless-check law (G. S. 1949, 21-554), and has appealed.
Notwithstanding a most inadequate record presented, we have examined such as there is before us and are of the opinion there is no merit to the appeal.
One of defendant’s contentions appears to be that his rights were prejudiced by the trial court’s denial of his motion for a continuance. The record shows that defendant was represented in the court below by two court-appointed attorneys, and that his complaint with respect to a denial of a continuance is entirely lacking in merit. It has been held many times that the matter of a continuance in a criminal prosecution is largely within the discretion of the trial court, and that its ruling thereon will not be disturbed unless it appears that such discretion has been abused to the prejudice of substantial rights of a defendant. (State v. Smith, 173 Kan. 807, 812, 252 P. 2d 917; State v. McManaman, 175 Kan. 33, 36, 258 P. 2d 997.)
Another complaint concerns rulings on evidence and the sufficiency of the state’s evidence to support the conviction. We consider it unnecessary to detail the evidence with respect to the circumstances under which the check in question in the amount of $125 was given. Defendant’s real complaint appears to be based on the fact the jury failed to believe his version of the matter, but from a careful examination of such record as there is before us it is clear that the evidence introduced was sufficient to support the conviction.
And finally, complaint is made concerning the sentence imposed. G. S. 1949, 21-555, provides that one convicted of the offense here, charged may be sentenced to imprisonment in the penitentiary for a period of not less than one year nor more than five years. Defendant had previously been convicted of the same offense in the same court, and because of such prior conviction the court, undei the provisions of the habitual criminal law (G. S. 1949, 21-107a), sentenced defendant to confinement in the penitentiary for a period of not less than two years nor more than ten years, as it had the right to do under the mentioned statute.
We find no error in the record, and the judgment of the trial court is in all respects affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Mary Callahan was separately tried on an information charging her and one Ray R. Tipton with murder in the first degree in that they willfully, deliberately, premeditatedly and maliciously shot and killed John Joseph Callahan on January 2, 1955. The jury returned a verdict finding her guilty and that her punishment should be by life imprisonment. She filed a motion for a new trial alleging, among other grounds, that the trial 'court had admitted illegal and incompetent evidence over her objection and prejudicial to her rights. The trial court heard this motion and denied it and thereafter approved and accepted the verdict of the jury and sentenced her for life to the state industrial farm for women. In due time the defendant perfected her appeal to this court where she specifies as error the rulings on the various questions presented by her motion for a new trial. In view of our conclusion later stated, we shall confine our consideration to the contention that illegal and incompetent evidence was offered by the state and received by the trial court over her objection and to her prejudice.
In order that the complaint may be more readily understood, it is first noted that the state offered evidence tending to prove that about 6 o’clock a. m. of January 2, 1955, John Joseph Callahan had been shot three times with a .22 rifle and that his wife, the defendant, had said she was awakened by some noise and the movements of her husband with whom she was in bed; that she telephoned for help from a neighbor who responded and at that time John Joseph Callahan had fallen from the bed and was dead on the bedroom floor. A great deal of evidence about calling of a physician and of law enforcement officers and their testimony need not be detailed. Thereafter the state produced as a witness, Ray R. Tipton, also charged with the crime. He testified on direct examination at great length as to details and that he was twenty-six years of age and had known Mary Callahan since he was about fourteen years of age and she was eighteen, to his seeing her over the years, to his being in or away from Kansas City, to sexual intimacies with her while she was married to Callahan, to her complaints against her husband, to a discussion of other murders or attempted murders of one spouse by the other, to her asking him to get her a gun; that she said she was going to shoot her husband, and that he procured a .22 rifle, took it to the Callahan residence and left it leaning against the front of an automobile standing in the driveway of the Callahan residence about 12:30 a. m., and returned there and got it about 6:15 a. m. on January 2, 1955, and thereafter disposed of it. Cross-examination will not be noted, nor will testimony of other witnesses who heard Mrs. Callahan threaten harm to her husband, other than as follows.
After the testimony above referred to had been received, the state as a part of its case in chief, called Mrs. Walter Callahan as a witness. She testified she was a sister-in-law of the defendant and had known her since in February, 1947, and that she knew defendant and her husband were separated in the summer of 1949 and reunited that fall, and she then had a conversation with the defendant in which defendant said she had been living in an apartment and when asked by the witness what she had done for money, defendant had replied an old boy friend had come back to town and he had given her some money. The witness said Mary Callahan mentioned no name and witness did not know who he was. Defendant moved that this testimony be stricken as prejudicial; there was no foundation to prove any issue in the case, the incident had happened eight years before and was remote. The state answered that the testimony tended to corroborate Tipton. The court overruled the motion. The witness was then asked if she had had any conversations with defendant concerning her pregnancies, and if so, when. Defendant objected stating.she was charged with murder, not with adultery (abortion) and that the matter was remote and did not tend to prove or disprove any issue in the case. The state in answer said it had the burden to show that . . the defendant has the tendency, the inclination, and her vent of nature to take life, and that’s what we intend to show.” The trial court directed the state to proceed, and the witness stated she had such a conversation in 1948 over the telephone, that defendant said she was in quite a bit of pain and had just lost a baby; that it was twins; that she had had it done; that witness asked who did it and defendant refused to say as it would get others in trouble; that witness told defendant it was murder to kill little babies that had no chance to live. Defendant’s objection to the narration was met by a ruling the witness could testify to the conversation, the witness responded it was the conversation and she was directed to proceed, and she then stated what she had told the defendant, that it was murder to kill those babies; that they were both Catholics and knew that if a child wasn’t baptized it wouldn’t go to Heaven, and defendant had said some girl at her house had baptized the babies and they had disposed of them. It is to be noted that a great deal of this testimony was what the witness told the defendant, and not what the defendant said.
Defendant contends that the testimony of Mrs. Walter Callahan was inadmissible and highly prejudicial and prevented her from having a fair trial.
Before discussing that contention, we note the contention of the state that defendant’s objections were not sufficient; that the objection against the testimony as to abortions was lodged only against a preliminary or foundation question and the only other objection made was against the witness giving a narration or sermon for which the trial court promptly admonished the witness, and our attention is directed to rules that an objection must be specific, is not good as to a ground not specified; if not made until answer has been given, it is necessary to move the answer be stricken, and that ordinarily an objection to the admission of evidence is insufficient unless the evidence is obviously inadmissible for any purpose or under any circumstances, citing 23 C. J. S. pp. 482, 487, 494 and 502. We shall not elaborate on those rules. If it be said that defendant’s objection to the matter of pregnancies was only to a preliminary question, we take note of the state’s response that the state intended to show defendant’s tendency, inclination and “her vent of nature” to take human fife, and on that basis was permitted to proceed. If the evidence did show that, it would be admissible, otherwise it would not. And it may be noted, the state’s argument to the contrary, that when objection was made to the “narration and sermon” the witness answered it was the conversation, continued further and the trial court then said “No, just the conversation.” and the witness continued. Taking all that occurred into consideration, we think the question of the admissibility of the evidence complained of is properly before us for determination.
The general proposition of the admissibility of evidence of crimes or acts other than the one for which defendant is being tried has received attention in many of our decisions. Limits of space preclude reference to many of them, but those hereafter mentioned are consistent with those not mentioned.
In The State v. Reed, 53 Kan. 767, 37 Pac. 174, it was said:
“As a general rule, testimony tending to show the commission of another offense than the one charged is not admissible; but where such offense is intimately connected with the one charged, important proof to establish the latter cannot be excluded because it may fend to prove that the defendant is guilty of another offense.” (1. c. 774.)
In The State v. Hays, 113 Kan. 588, 215 Pac. 1109, it was said:
“The general rule is that the evidence, in a prosecution for a particular crime, which in any manner shows or tends to show that the accused had committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. (The State v. Kirby, 62 Kan. 436, 63 Pac. 752.) There are well known exceptions to this general rule, as well established and supported by as good reason, as the rule itself, and one is that evidence of other crimes similar to that charged is relevant and admissible when it shows, or tends to show, a particular criminal intent which is necessary to constitute the crime charged. Any fact which proves, or tends to prove, the particular intent is competent and cannot be excluded because it incidentally proves an independent crime. (The State v. Lowe, 6 Kan. App. 110; The State v. Reed, 53 Kan. 767, 37 Pac. 174.) But for evidence of another offense to be competent for the purpose of showing tire intent of the accused in the matter of the offense charged, the similar offense must be so related in kind to the one in question as to illustrate the question of intent. (16 C. J. 590.)” (1. c. 591.)
In State v. Frizzell, 132 Kan. 261, 295 Pac. 658, it was said:
“The rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence should come under one of the well-recognized exceptions to the general rule, among which are indentity of person or crime, similarity of system or plan, and to rebut a special defense.” (Syl. ¶ 1.)
It has also been held that if proof of another crime tends to prove guilt of the crime being tried or that the two are so linked together that one cannot be shown without proving the other, regardless of the nature of the two, the general rule of exclusion does not apply. See, e. g., State v. Baker, 125 Kan. 173, 263 Pac. 1059; State v. O’Neal, 150 Kan. 76, 91 P. 2d 12; and cases cited.
And we have many decisions holding that as exceptions to the general rule of nonadmissibility, evidence of other acts and offenses may be received where the purpose is to show identity, intent, method, plan, system, malice, motive, inclination, or tendencies, as the case may be. See West’s Kan. Dig., Criminal Law, §§ 369 to 374; Hatcher’s Kan. Dig. [Rev. Ed.], Criminal Law, §§ 267, 268, 269. And the matter of proof of other crimes is treated extensively in Wharton’s Criminal Evidence, 12th Ed., Vol. I, §§ 232 to 248.
In the instant case the parties are generally in agreement as to the rules above set forth — where they disagree is as to their application. As no particular point is made thereon, we shall not comment on the fact the evidence under scrutiny was offered and received in the state’s case in chief, and not to rebut any showing made by the defendant.
We shall devote little attention to the evidence that some one furnished defendant with money while she was living apart from her husband in 1949. We find it difficult to ascertain where it corroborated any of the state’s previous testimony, which seems to have been the theory on which it was received, or if it be considered as an exception to the general rule of inadmissibility, wherein it was so. Were that the only complaint, perhaps it might be said the admission was not prejudicially erroneous, a matter we need not determine in view of our conclusion as to the testimony as to pregnancies and abortion.
With respect to the testimony last mentioned it is noted not that defendant personally committed any act on her own person to produce an abortion, but only that she submitted to an operation to produce that result, and whether she was guilty of any crime in so doing may be debatable. Rut in any event it is clear that such an act did not even remotely tend to show method, plan or system in connection with a homicide. Further, we think it may not be said that an abortion and a murder are similar offenses, or that one submitting to an operation to produce an abortion shows she bore any malice toward her husband or any inclination, tendency or intent to murder him. In our opinion the evidence under scrutiny was wrongfully received in evidence. The next question then is whether its admission was prejudicially erroneous, or put another way, did defendant have a fair trial?
In view of the nature of the charge we have examined not only the abstract and counter abstract, but also the transcript of the evidence, and it appears there was evidence which would warrant the verdict but that is not the prime test of a fair trial (State v. Winchester, 166 Kan. 512, 203 P. 2d 229). It is to be noted that though much of the evidence was highly persuasive, the evidence that defendant fired the shots which killed her husband was circumstantial. We cannot say that the jury was not influenced by the testimony under scrutiny, and unless we can, we are in no position to say its reception in evidence was not prejudicial. We conclude that it was, and that defendant did not have a fair trial.
In view of our conclusion, defendant’s other specifications of error need not be discussed.
The judgment of the trial court is reversed and set aside and the cause is remanded for a new trial.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Smith, C. J.;
This was an action to recover the purchase price of a gas converter burner. Judgment was for the plaintiff sustaining its .motion for judgment on the pleadings. Defendants have appealed.
The petition alleged plaintiff was a corporation engaged in the business of selling and installing furnaces and furnace burners; gave the address of defendants and alleged plaintiff through its agent Summers entered into a conditional sales contract with defendants, by which it was to sell and install a burner in defendants’ premises; and defendants agreed to pay plaintiff $385 therefor; that plaintiff delivered and installed the burner as agreed and defendants refused to pay for it although plaintiff had demanded payment; that it was exercising its option by declaring the entire sum payable and immediately due. Judgment was prayed for $385, with interest.
A copy of the conditional sales contract was attached to the petition (omitting the portion of this contract not important to us now). It provided that the burner should remain personal property whether attached to the realty or not and the title should remain in the seller until the buyer made final payment, whereupon title should vest in the buyer; that if the buyer should default in any payment or fail to comply with any condition of the contract, seller might at its option declare the entire balance due and payable and sue to recover, thereby vesting title in the buyer, or take possession of the property and hold it as its property and retain all payments made as rental. The contract further provided that it was subject to acceptance by the general office of seller and if any of the counter parts of the contract should differ the counter part designated “General Office Copy” should be conclusive evidence of the agreement. The contract contained the following:
“This contract contains the entire agreement between the parties. Verbal understandings and agreements with representatives shall not BIND THE SELLER UNLESS SET FORTH HEREIN. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THOSE HEREIN STATED.”
To this petition the defendants answered, first with a general denial, then admitting the signature on the note and contract, but alleging they were both secured by fraud. The answer then alleged the agent of plaintiff inspected defendants’ furnace and burner and advised defendants, defendants’ burner was defective and would permit carbon monoxide gas to escape into the house and defendants and their children would be asphyxiated if the burner was not removed immediately; that the above statements were false and were known by the agent to be false when made and were made for the purpose of frightening defendants into buying a burner from plaintiff; that the agent held himself out as advising defendants, who knew nothing about furnaces or burners, and defendants relied on the statements made by the agent when the note and contract were signed; that after the burner was installed defendants learned about the fraudulent statements and immediately notified the plaintiff to remove it and take it back, but plaintiff had refused to accept it; and that there was no consideration for the note and contract.
The reply was a general denial. Plaintiff’s motion for judgment on the pleadings was sustained and judgment was entered for $385. Defendants’ motion for a new trial was overruled.
The specifications of error are that the trial court erred in rendering judgment against defendants; in sustaining plaintiffs motion for judgment; and in overruling defendants’ motion for a new trial.
Defendants concede that the motion for judgment should have been sustained if the answer did not state a defense. The allegations in the answer, upon which they rely, are that the agent of plaintiff told them the burner already in their house was defective and it would permit monoxide gas to escape into their house and their children would be asphyxiated unless it was removed immediately; and that the statements were false and known by the agent to be false when made and were for the purpose of frightening defendants and inducing them to buy a burner from plaintiff; that the agent held himself out as advising defendants and that defendants relied upon such statements when the note and contract were signed.
The contract was only to become effective on acceptance by the home office of plaintiff. In such a case the rule is as stated in Colt Co. v. Odom, 136 Miss. 651, 101 So. 853. There the court said:
“. . . Ordinarily, where an agent has authority to execute a complete contract for its principal, and does so, it may be avoided if the agent made fraudulent representations to induce the signature or execution of the contract. But where the contract shows on its face that it is not to be executed by the agent for the company, but is to be sent to the company to be approved by some officer or manager of the company and the purchaser represents in his contract that no representations have been made to him other than that contained in the contract, the company has a right to rely upon such stipulations by the purchaser.
“Every person has a constitutional right to limit the powers of his or its agents, and if it reserves a right to pass upon the contract as sent to it, and the purchaser represents in such contract that no outside representabons have been made, and the contract contains all the agreements of the parties, such purchaser will not thereafter be permitted to show statements made by the agent to him not embraced in the contract, where such person is able to read and write, and to note the terms of the contract in writing before he signs it, and his failure to read it will not exonerate him from the consequences resulting from such failure to read. He cannot represent to the company that no representations have been made by the agent to procure the execution of the contract, and thereafter repudiate it on the ground that the agent misled him. . . .”
See, also, Berry v. McKay, 194 So. 299; also Trujillo v. Wichita Co., 91 Colo. 307, 14 P. 2d 1009; also Colt Co. v. Kocher, 123 Kan. 286, 255 Pac. 48. In the latter opinion we said:
. . It may be noted that die contract recited that the instrument covered all the agreements between the purchaser and the company, and that no agent or representative of the company had made any statements, representations or agreements, verbal or written, modifying or adding to the terms and conditions set forth.
“The agents were acting- upon liriiited powers. They were no more than mere solicitors. The defendants admitted they did not read the contract; that they made no attempt to do so. There was neither allegation nor proof that the signature of the defendants to the contract was procured by fraud. It was the duty of defendants to learn and know the contents of the written agreement before executing it. Failure to read or to obtain a reading of it was gross negligence on their part. It is presumed that the contract contains the whole and only terms agreed upon between the parties.”
It seems clear the agent in this action had no authority to bind plaintiff by any statement as to the condition of defendants’ burner. Therefore, proof of what was alleged in the answer would not have constituted a defense to the cause of action stated in the petition.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action on a promissory note and to foreclose a real-estate mortgage given as security therefor. Both instruments were adjudged to be void and of no effect. Judgment was entered for defendants and plaintiff has appealed.
At the outset it should be stated that the rights of defendant The Railroad Building and Loan Association were fully adjudicated in the court below. Such defendant is not a party to this appeal and wherever used in this opinion the word defendants applies only to Frank and Ibbie Kohlasch, husband and wife.
Briefly stated, the situation was this:
Defendants moved from their home in Salina to Manhattan for business reasons and rented a house at the edge of town. Plaintiff, a resident of Manhattan, owned a house in town which was being rented to other parties. He listed this house for sale with a local real-estate agent who, in turn, contacted defendants in an attempt to sell the house to them. On May 29, 1950, defendants entered into a written contract to purchase the house from plaintiff for the sum of $8,000, and as a down payment executed a 90-day promissory note to plaintiff for $1,000, secured by a mortgage on their Salina property from which they recently had moved. The entire transaction was to be completed and full payment of the purchase price was to be made on or before July 1, 1950. Through an arrangement which was apparently agreeable to all parties, defendants moved into the property in question and paid a monthly rental to plaintiff. The deal for the purchase of the property was never consummated and about six months later defendants moved back to Salina. Plaintiff went back into possession of the Manhattan property and is still the owner thereof. No action has ever been brought on the contract of purchase.
This action on the promissory note and mortgage was filed in February, 1953, and the petition contains the usual allegations with reference to the execution of such instruments.
The answer admits the execution of the note and mortgage sued on, but alleges failure of consideration and that they were procured through false and fraudulent representations of plaintiff, as hereinafter mentioned.
The reply denies such allegations of the answer.
Following a trial of the issues the court made conclusions of fact and of law. Included among the facts so found are the following:
Plaintiff was not present at the time defendants executed the contract of purchase and the note and mortgage, his interests being taken care of by the real-estate agent. All three instruments were deposited with an escrow agent. The agreement with reference to the furnishing of an abstract of title apparently was not carried out. At the time the note and mortgage were signed defendants were told by the real-estate agent that they were only for his, the agent’s, office records, that they would not be obligated thereon, that if they did not find it convenient to carry out the contract of purchase at the end of six months they would not be obligated on the note and mortgage, and that they believed and relied upon such representations by the agent. The court also found that defendants were persons of mediocre and limited understanding, and noted that plaintiff offered no rebuttal evidence and no denial by his agent concerning the testimony of defendants as to the alleged oral misrepresentations although he had ample opportunity to do so.
As a conclusion of law the court held the note and mortgage to have been procured by plaintiff’s agent, both as to their exe cutíon and delivery, through false and fraudulent material representations made by such agent with intent to deceive and defraud defendants, and adjudged such instruments to be void and of no effect.
Judgment was entered in accord with the court’s findings and conclusions, and, plaintiff’s motion for a new trial being overruled, he has appealed.
One specification of error is that the court erred in permitting defendants to amend their answer after all of the evidence was introduced. From the journal entry of judgmént it appears that after all evidence had been introduced, and following plaintiff’s opening argument, defendants orally moved for permission to amend instanter, by interlineation, allegations of their answer so as to conform to the proof and evidence. This motion was allowed, whereupon defendants amended the answer so as to allege that the wrongdoings in question were committed by the real-estate agent acting as plaintiff’s agent. From the record there is no doubt but that the alleged misrepresentations were made by the agent rather than by plaintiff himself, and, under the statute, G. S. 1949, 60-759, relating to power of the court to allow amendment of pleadings, before and after judgment, such amendment was properly permitted.
Another specification of error, although not directly argued in the brief, relates to alleged error in the' admission of evidence. We assume reference is made to defendants’ parol evidence which, it is inferentially claimed, contradicted and varied the terms of the instruments sued on. We do not understand this evidence was offered or admitted for that purpose. In Rice v. Rice, 101 Kan. 20, 165 Pac. 799, it was held that in a foreclosure suit between the immediate parties to the note and mortgage parol evidence is always admissible to show a failure of consideration, and that the rule which prohibits the introduction of parol evidence to vary a written instrument has no application where the legal existence or binding force of the instrument is in question. To the same effect is Farmers State Bank v. Montgomery, 129 Kan. 203, 282 Pac. 741, where it was held that as between the immediate parties no recovery can be had upon a promissory note given without consideration and for a special purpose; and which was not intended to become a binding obligation. See also Greenleaf State Bank v. Monteith, 173 Kan. 799, 252 P. 2d 621; Malir v. Maixner, 174 Kan. 26, 254 P. 2d 282; Emery v. Graber, 176 Kan. 17, 268 P. 2d 950, and Bankers Life Ins. Co. v. Litsey, 176 Kan. 79, 268 P. 2d 934, as having a bearing on the general subject matter.
Other specifications of error are that the court’s findings are not supported by evidence; that the conclusions of law are unsupported, and that the court erred in failing to render judgment in favor of plaintiff on the undisputed evidence and in overruling plaintiff’s motion for a new trial.
In view of the issues before the trial court this was essentially a fact case. The trial court saw and heard the witnesses, something which is denied to this court on appellate review. The evidence introduced will not be detailed, but an examination of the record clearly shows sufficient evidence, if believed by the trial court, to support the findings. It is equally clear the trial court gave credence to defendants’ version of the matter and under the circumstances this court is not at liberty to disturb the findings made. We are not permitted to retry the facts. No error being made to appear, the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action originally commenced by plain: tiffs on March 10, 1954, to recover damages from Hearne Motor Freight Lines, Inc., hereafter referred to as Hearne, for failure to deliver goods being transported by it as a common carrier. On some date not disclosed by the abstract, Santa Fe Trail Transportation Company was made a party defendant, but at the trial, judgment was rendered in its favor, no party complains and it will not be noticed further. .At the trial, judgment was rendered in favor of plaintiffs against Hearne and Hearne appeals.
On November 16, 1954, plaintiff filed an amended petition alleging that Hearne operated as a motor carrier within Stevens county; that on August 20, 1951, Texas-Oklahoma Motor Freight Company received certain property in the regular course of business consigned to plaintiffs by Windpower Manufacturing Company of Newton, Iowa, of the value of $790.64 and subsequent to that date Hearne purchased the Texas-Oklahoma Motor Freight Company and assumed all of its liabilities; that on August 19, 1951, plaintiffs received notice from a bank in Hugoton that the bank had received a sight draft and bill of lading from the above manufacturing company for two cultivators in the amount of $790.64 and plaintiffs paid the draft and received the bill of lading; that on August 25, 1951, plaintiffs received a copy of a letter from Knaus Truck Lines to Des Moines Transportation Company, advising that the shipment was not complete as to number of pieces called for by the bill of lading; that plaintiffs contacted Hearne and were informed the balance of the shipment had not been delivered to it, and on October 9, 1951, plaintiffs filed a loss and damage claim in the amount of $789.64 (the discrepancy between this amount and the amount sought and received is not explained or complained of); that on October 23, 1951, Hearne’s agent informed plaintiffs he had their shipment, that some parts were missing but Hearne had to offer delivery, but if delivery were accepted, Hearne would do nothing further toward completing the shipment after receiving the bill of lading; that plaintiffs were not aware of the nature and extent of the loss and Hearne was unable to clarify; that the shipment was never in sight and presence of plaintiffs, was never physically tendered to them and was never delivered to them; that the shipment was of no value if parts were missing therefrom, and that defendant failed and neglected to deliver the property to plaintiffs within a reasonable time. Attached to the amended petition were copies of the bill of lading, the sight draft, of the claim filed and of some correspondence. These show the original bill of lading called for two cultivators in 38 packages, bundles or bales and that the shipment was short two packages. Plaintiffs prayed for judgment for the sum of $790.64 and interest.
Hearne’s answer alleged the Texas-Oklahoma Motor Freight Lines received the shipment consigned to plaintiffs from the Santa Fe Trail Transportation Company on August 20, 1951, and the shipment was 26 pieces short, and that subsequently twenty-four more pieces were received but the remaining two cartons were never received by Texas-Oklahoma Motor Freight Lines; that the latter company tendered to plaintiffs all goods received by it from Santa Fe Trail Transportation Company but plaintiffs refused to pay the freight or deliver the bill of lading properly endorsed because of the shortage of the two cartons; that plaintiffs’ refusal was wrongful and Texas-Oklahoma Motor Freight Lines returned the shipment to its depot in Liberal. Hearne also alleged that plaintiffs left the goods in the depot for longer than a reasonable time; that the goods were damaged by fire on February 2,1953; that plaintiffs did not exercise diligence in removal of the goods and Hearne was liable only as a warehouseman; that the fire was not caused by its negligence and it was still willing to deliver the remaining goods in their present condition.
Plaintiffs’ reply denied all new matter in the answer.
Trial was had by the court and on September 3, 1955, the trial court found generally for the plaintiffs and against Hearne and rendered a judgment for $790.64 and interest from September 3, 1955, at six percent and for attorney fees in the sum of $200.00. On September 26, 1955, Hearne perfected its appeal from the above judgment and from all other mesne and final orders adverse to it made by the trial court.
Appellant specifies error in six particulars which, briefly stated, are that the trial court erred: (1) In overruling its demurrer to plaintiffs’ evidence; (2) in giving judgment when the only question was whether appellees had a right to refuse tender of the goods because there was a shortage; (3) in not giving judgment to appellant as the uncontroverted evidence showed it was not the appellant’s fault which caused appellees’ loss; (4) in rendering judgment for the reason appellant, as a warehouseman, was liable only for its gross negligence, and there was no such evidence; (5) in holding appellant was negligent in not more promptly adjusting the claim, and that appellant, as a warehouseman, had a duty to settle the claim; and (6) in allowing attorney fees as the court placed liability upon appellant as a warehouseman and G. S. 1949, 66-305, provides only for attorney fees against carriers.
Appellees’ motion that the appeal be dismissed for reasons later mentioned was denied by this court on March 30, 1956, with permission to renew on the hearing of the appeal and appellees have presented the matter in their brief. They first contend that as appellant did not appeal within two months from the ruling on its demurrer to plaintiffs’ evidence, the time has expired and it may not now be heard, citing Hilliard v. Southern Kansas Stage Lines Co., 146 Kan. 288, 70 P. 2d 28, which was decided in December of 1937. The ruling on the demurrer in that case was made on March 10, 1936. In 1937 the code of civil procedure was amended to provide that when a party appeals after a final judgment the fact that some ruling of which he complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling (G. S. 1949, 60-3314a) and the last section was further amended in 1951 to provide that when an appeal has been timely perfected the fact that some ruling of which the appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling (G. S. 1955 Supp., 60-3314a). Without further comment, we are of opinion that under Holmes v. Kalbach, 173 Kan. 736, 252 P. 2d 603, the appellant is entitled to present for review the ruling on its demurrer to appellees’ evidence. See also Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 266 P. 2d 327.
Appellees also urge that as appellant filed no motion for a new trial, it is not entitled to be heard on those of its specifications which deal with trial errors, and our attention is directed, inter alia, to State, ex rel., v. Miller, 176 Kan. 175, 268 P. 2d 964, where it was said:
“We have decided many times that in the absence of a motion for new trial, mere trial errors are not open for appellate review. These include rulings of the trial court on the admission, exclusion, or sufficiency of evidence, and our reports are laden with decisions supporting this rule. (Union Nat’l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638; Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; Billups v. American Surety Co., 173 Kan. 646, 652, 251 P. 2d 237, and other decisions may be found in West’s Kansas Digest, Appeal and Error, § 281; I Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, §§ 366, 372.) It is well settled that in the absence of a motion for new trial, the questions which this court can consider are only those which arise upon the pleadings and upon the facts found, and where no motion for a new trial is filed, review on appeal is limited to the question whether the judgment is supported by the pleadings and findings of fact, and inquiry will not be made as to whether the evidence supports the findings of fact. (Jelinek v. Jelinek, 161 Kan. 362, 168 P. 2d 547.)”
The rules stated will be observed hereafter.
In connection with its contention the trial court erred in overruling its demurrer to appellees’ evidence, appellant recognizes the rule that in such a case we do not weigh evidence nor compare contradictory testimony, but accept all evidence as true, and that we consider only the portions of the evidence and all reasonable inferences therefrom favorable to the party adducing the evidence, citing Brennan v. Kaw Construction Co., 176 Kan. 465, 467, 271 P. 2d 253.
In a summary way the plaintiffs’ evidence disclosed that they had ordered two rotary hoes or cultivators from Windpower Manufacturing Company of Newton, Iowa, in July, 1951; that such machines are broken down into sections for shipping; that they had notice the goods were shipped when notified by the Hugoton bank in August, 1951, the bank had a sight draft with bill of lading attached; that they paid the draft and received the bill of lading; the bill of lading showed the shipment of thirty-eight pieces of frames, bundles and cartons; that the goods had not been delivered on October 9, 1951, when plaintiffs delivered to the defendant company their presentation of loss and claim for damages in the total amount of $789.64; that about October 23, 1951, defendant’s driver told Max Brewer he had a shipment and when asked the driver said he had some cultivators; that some pieces were missing, and when Brewer asked him what he should do, the driver recommended he refuse the shipment because if the transportation company had the original bill of lading it was almost impossible to get them to do anything about the loss. Other testimony showed that with parts missing the remainder of the merchandise was worthless; Brewer testified the machines were ordered for the fall business but were worthless unless complete and that he did not know the exact parts missing until about one year after the claim for damages was filed. After the demurrer of defendant had been interposed and overruled, plaintiffs called as a witness the general claim agent of the defendant who testified as to defendant succeeding Texas-Oklahoma Motor Freight Lines and identified a number of letters, copies of a part of which had been sent plaintiffs, written between August 21, 1951, and June 1, 1953, and dealing generally with defendant’s efforts to get the Newton, Iowa, company and various intermediary carriers to settle with plaintiffs. The last letter was one written by the defendant to Max Brewer under date of June 24, 1953, which referred to the entire chain of letters and telephone conversations, stated that due to the fact the loss was on a carrier other than defendant it could not pay until the responsible carrier had issued its check; that the shipper or the consignee could not abandon a shipment due to loss unless the loss rendered the merchandise worthless and that the loss of bolts did not render the shipment worthless; that it was liable only for the missing parts; that it held the shipment only as a warehouseman, and that taking all things into consideration, it believed plaintiffs should accept the shipment and permit it to issue plaintiffs a check for $35 to cover the missing parts.
Notwithstanding its recognition of the rule above noted, appellant directs attention to evidence it deems favorable thereto, and argues that the failure to deliver all of the pieces, bales, bundles and cartons called for by the bill of lading did not render the remaining parts worthless and on that basis argues that the plaintiffs’ refusal to accept the parts of the shipment, which it says it offered to deliver, was wrongful as a matter of law, and therefore no cause of action was proved. We cannot agree.
At the trial no request was made that the trial court make conclusions of fact and it did not do so. Instead it found generally for the plaintiffs and against the defendant, which included a finding that the shipment, with parts thereof missing, rendered the shipment worthless. Appellant does not contend that in such circumstance it was not liable. It does contend that the evidence does not justify such a conclusion and directs our attention to portions of the evidence tending to show that appellees had no right to reject the shipment even though parts thereof were missing and it directs our attention to authorities as to reciprocal duties between shipper, consignee and carrier. Appellant, however, filed no motion for a new trial. If the trial court erred in its conclusions as to what the evidence disclosed, a motion for a new trial should have been filed and presented in order that the trial court be given an opportunity to correct its error, if one was made. Under the circumstances here, the contention made is not subject to review.
With tire exception of attorney fees, later mentioned, the remainder of appellant’s contentions deal with its liability as a warehouseman after, as it contends, the appellees’ wrongful refusal to accept the shipment. In making its argument, appellant asserts and reasserts the trial court held it was liable as a warehouseman, and as such it was bound only to exercise ordinary care in preserving the merchandise and that there was no evidence it did not exercise such care. We have carefully examined the record as abstracted and we find no ground whatever to support the statement the court had held the appellant was liable as a warehouseman, or that it had any duty as a warehouseman to settle the claim and complete delivery. It is true appellant urged its liability was only that of a warehouseman, but the trial court’s finding must now be construed as a finding that the failure of appellant to deliver the whole and entire shipment to appellees made tihe portion which appellant says it tendered to appellees, worthless to them. If that be true, appellant could not by the device of calling itself a warehouseman, alter its liability. Appellant’s contention that its liability was only that of a warehouseman and the evidence failed to show liability in that circumstance, cannot be sustained.
Appellant’s final agrument that the trial court erred in allowing attorney fees is that there was no showing of its negligence as a carrier; that the trial court had found that when acting as a warehouseman it was negligent, and that attorney fees are allowable only against carriers, under G. S. 1949, 66-305. What has been said heretofore must suffice to show the premise for the contention is not sound. No complaint is made as to the amount of the allowance of attorney fee. Under the circumstances heretofore mentioned in this opinion, we hold the allowance made was proper under the last cited statute.
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The opinion of the court was delivered by
Robb, J.:
This appeal is dismissed in accordance with the opinion and views expressed in City of McPherson v. Smrha, No. 39,873, this day decided. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for the wrongful death of a five- year-old boy. The demurrers of all defendants to plaintiffs’ amended petition were sustained. Plaintiffs have appealed.
The amended petition alleged that plaintiffs are the parents and heirs at law of Lonny Eugene Galleher, and that Lonny Eugene died of drowning on the 19th day of October, 1953, through the negligence of the defendants; that defendant city is a city of the first class and that defendants Mary Darlington Cooper Evans, Rebekah Blackwood Cooper Rounds, Ralph Rounds and Donald Jerome Wilson Cooper, hereinafter referred to collectively as Cooper, owned a plot of real estate within the city of Wichita upon which existed an abandoned sand pit, the location of which was set forth by legal description; that on the 13th day of October, 1953, defendant city entered into a written agreement with Cooper concerning the use and control of the property upon which the abandoned sand pit was located, a copy of which was made a part thereof.
In a summary way the agreement provided that defendant city desired to use certain portions, and to acquire certain other portions of the property owned by Cooper; that the east side of the tract of land, described in the petition and in the contract, paralleled the right or west bank of the Arkansas River, extending north and south from Central Avenue to Ninth Street and varied in distance from east to west; that Cooper agreed to immediately deed to defendant city for street purposes and to stabilize and protect the right bank of the river, a strip of land parallel thereto and 200 feet in width between Central Avenue and Ninth Street, the title of which was to revert to Cooper if and when abandoned; that Cooper was to immediately dedicate to the public for street purposes certain footage and to grant to defendant city the right to dump trash and miscellaneous debris in the sand pit under certain conditions and limitations, one of which was defendant city would be in charge of all dumping operations; that Cooper and private citizens of the city could use the dump under the general supervision of defendant city; that defendant city would erect as soon as practicable a fence around the pit and endeavor to keep out all trespassers; that defendant city was not required to fill the pit but at all times was to operate the dump in such a manner as not to constitute a public nuisance. For present purposes, the contract need not be further summarized.
The amended petition further alleged that said sand pit or pond was an artificial man-made excavation having been created by and under the direction of Cooper for profit by leasing said real property to Builders Sand Company to pump and remove sand therefrom for commercial building and construction purposes; that said pumping operations were carried on for at least five years prior to October 13, 1953, with the knowledge of defendant city; that some months prior to October 13, 1953, the Builders Sand Company suspended pumping sand from said premises and with the knowledge of both defendants cut through the right established bank of the Arkansas River and moved its sand pump equipment from said excavation into the Arkansas River, abandoning said excavation, and the cut in the right bank of the river was not repaired; that as a result thereof the current of the river -flowed through the opening into the excavation causing it to be filled with water and caused the impounded water to have treacherous water currents, which endangered the lives of any persons entering said water, that the particular portion of the excavation where Lonny Eugene met his death was a part of the premises parallel to the bank of the river which was acquired by defendant city on the 13th day of October, 1953, to stabilize and protect the bank of the river and for street and boulevard purposes.
The amended petition further alleged that for a long period of time prior to October 19, 1953, the abandoned artificial excavation was surrounded with steep, shifting sandbanks, with here and there a sand beach, which were particularly attractive and alluring to children to play on; that the water in the sand pit was clear, deep and cool, with hidden uneven bottom and hidden water currents beneath the surface, which were dangerous to the life of any person entering the water, and particularly Lonny Eugene; that the water abounded with fish and was attractive and inviting to children as a place to fish and swim and because the surface of the water was placid it did not disclose its depth or its treacherous currents; that the abandoned excavation was situated within a densely populated section of defendant city made up of small dwellings and small tracts of land; that the children in the vicinity were afforded few adequate places to play, as a result of which tire neighborhood children used the abandoned excavation, its sandbanks, beaches and water as a place to play, fish and swim; that a considerable time prior to October 19, 1953, persons unknown to plaintiffs erected a wooden diving board on the bank of said excavation beside a deep hole at the north and west portion thereof and that both defendants knew of the existence of said diving board; that the existing dangers alleged and the use of the premises by trespassing children, and especially Lonny Eugene, could and should have been prevented by the defendants in the exercise of due caution by fencing or patroling said premises, by erecting warning signs as to the depth, dangerous undercurrents and shifting sandbanks and uneven bottom of said pit and by removing the diving board; that the failure to protect young children, and particularly Lonny Eugene, was the direct and proximate cause of his death.
The amended petition further alleged that the condition of said property, and the children playing in and about said property, had existed for at least four years prior to October, 1953, and that defendants had knowledge of such condition; that written notice was given to defendant city of the dangerous condition on April 30, 1949, and again on July 21, 1951; that in the four years prior to October, 1953, members of the city commission, officers, agents and employees of defendant city had from time to time actually viewed said premises, and approximately a week prior to the death of Lonny Eugene defendant city had voted to order that said pit be filled in, but no actual work had been performed by said defendant citv or by Cooper to carry out said order or prohibit children from frequenting the premises, and that Cooper had notice and knowledge of the dangerous condition of said premises because the written notices to defendant city were made an issue at public hearings before its city governing body and were widely publicized in two metropolitan newspapers published and distributed throughout the city of Wichita and to the homes of Cooper.
The amended petition further alleged that defendants failed and neglected to take any action to abate the dangerous condition existing on the premises or to fence or guard the same or to take other measures to keep children from going upon said premises; that defendant city had knowledge that Cooper had refused to take action to make said premises safe or in lieu thereof, to guard and protect the premises from the use of children; that it had failed and refused to take legal action pursuant to G. S. 1949, 13-1417 to abate or prevent the nuisance existing on said premises or order Cooper to make the premises safe for children to play upon or in lieu thereof, to prohibit children from using the same as a place to play, swim and fish; that after the execution of the contract of October 13, 1953, defendant city took no action to immediately erect a fence around said pond or pit, or to post a guard to keep out trespassing children who it knew frequented said premises; that the conditions and situations on said premises were dangerous to the life and health of all children who habitually frequented said premises, and particularly to Lonny Eugene, and constituted an attractive nuisance known to both defendants.
The amended petition further alleged that on the afternoon of October 19, 1953, Lonny Eugene and his three-year-old brother went to visit a four-year-old cousin whose home was only a short distance from the premises upon which the sand pit was located; that the three boys proceeded to the property of defendants to play at fishing with a piece of rope; that they played around the banks and water’s edge of the pond and while playing at a point on the northeast bank of said pond “Lonny Eugene, in an effort to retrieve the rope with which the boys had been playing, from the water, waded into what appeared to be shallow water along the edge of the bank and in doing so stepped off into water over his head, and because of his tender years was unable to swim or in any other manner extricate himself from the deep water and drowned.” That, because of his youthful age and lack of experience Lonny Eugene did not know or could not be expected to know or observe the hidden and latent dangers of the uneven depth of the water and undercurrent of water and all other dangers existing; that the inviting calmness of the surface water constituted an unseen and unobservable danger to Lonny Eugene, which directly contributed to his death.
The amended petition further alleged damages to the parents for the loss of their son, and the making of a claim to the city and its disallowance; that the action was brought by plaintiffs as next of kin to decedent, and that no personal representative had been appointed for Lonny Eugene.
To this amended petition defendant city and Cooper demurred on the grounds that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained — hence this appeal.
Defendant city first contends its demurrer was correctly sustained because it did not create or maintain the dangerous place alleged to exist, and that it was not liable for the negligence of its officials in failing to enjoin or abate such nuisance.
The record is clear that defendant city did not create or maintain the dangerous place alleged to exist. It is also clear the officials of defendant city did not institute proceedings under G. S. 1949, 13-1417 to enjoin or abate the nuisance which was alleged to exist, notwithstanding repeated visits to the premises, by city officials, members of the fire and police department, repeated notices it received, and a public hearing before the city commission concerning such notices, which hearing was publicized in metropolitan newspapers distributed throughout the city.
In examining this contention we refer to G. S. 1949,13-1417, which reads:
“Any city may bring an action to enjoin and abate or prevent any nuisance that exists or is about to be created within the city or within three miles of its corporate limits.” (Emphasis supplied.)
At the outset, we note the statute is authoritative and not mandatory in character. The authority to act is not alone the legal equivalent of a command to act. (Perry v. City of Wichita, 174 Kan. 264, 270, 255 P. 2d 667.) The dangerous condition which was alleged to exist was not created by defendant city; the fault, as alleged in the amended petition, consisted in the failure to take affirmative action under G. S. 1949, 13-1417, to abate a nuisance then existing. Where a municipality does not create the condition resulting in a nuisance, its failure to exercise its power to abate the nuisance does not render it liable for injuries sustained therefrom. This rule is supported by the following authorities: Everly v. City of Gas, 95 Kan. 305, 147 Pac. 1134; Kretchmar v. City of Atchison, 133 Kan. 198, 299 Pac. 621; and, Rhodes v. City of Kansas City, 167 Kan. 719, 722, 723, 208 P. 2d 275. The distinction between nuisance to which governmental immunity does not attach and negligence as to which it is available, turns upon whether the condition was one created by the municipality itself or was one otherwise created or occurring which the municipality has failed to use the requisite care in remedying. (Rhodes v. City of Kansas City, supra; 38 Am. Jur. § 651, Municipal Corporations, p. 360; and, 75 A.L.R. 1196, 1204.)
Defendant city’s second contention may be summarily stated: that the attractive nuisance doctrine is based upon dangers created by the act of the owner or proprietor, and since the city did not own or have control of the premises upon which the dangerous place was alleged to exist, it was not liable for the death of Lonny Eugene.
The record is not clear with respect to the city’s control of the premises upon which the sand pit was located. The amended petition alleges that the premises upon which the sand pit existed “was a part of the premises parallel to the established right bank of the Rig Arkansas River, which strip of land was acquired by the city of Wichita on the 13th day of October, 1953, for the purpose of stabilizing and protecting the right bank of the Arkansas River and for street and boulevard purposes.” (Emphasis supplied.) Rearing in mind that Lonny Eugene’s death occurred on the 19th day of October, 1953, we examine the contract alleged to have been entered into by defendant city and Cooper on the 13th day of October, 1953. It provides that, “Cooper agrees to immediately deed to the city for street purposes and for the purpose of stabilizing and protecting the right bank of the Arkansas River, a strip of land parallel to the established right bank of said river and two hundred (200) feet in width . . .” (Emphasis supplied.) The allegations of the amended petition that the city acquired the premises upon which the sand pit was located cannot contradict the recital in the contract that a deed was to be executed when it is not alleged that Cooper executed a deed to defendant city to carry out the purposes of the contract.
In State, ex rel., v. Hedrick, 178 Kan. 135, 139, 283 P. 2d 437, the court said:
“. . . While a pleading is usually to be liberally construed in favor of the pleader, the whole of it must be considered and where the pleader attaches to his pleading a written instrument on which his allegation rests, he cannot plead at variance with the terms of that instrument or not justified by it.”
See, also, Wood v. Stewart, 158 Kan. 729, 150 P. 2d 331; Zane v. International Hod Carriers B. & C. L. Union, 155 Kan. 87, 122 P. 2d 715; Sharp v. McColm, 79 Kan. 772, 101 Pac. 659; and, Croasdale v. Butell, 177 Kan. 487, 280 P. 2d 593.
Giving the allegations of the amended petition their most liberal construction in favor of plaintiffs, we conclude that, so far as the record discloses, Cooper owned the premises upon which the sand pit existed on the date of Lonny Eugene’s death. This being true, can defendant city be held liable under the attractive nuisance doctrine? We think not.
In Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185, two boys were drowned in a pool in a creek immediately below a culvert which the city had constructed in a street and across the creek, and it was claimed that the opening in the culvert for the passage of water was too small; that in times of heavy rain the water in the creek was held back by the culvert and forced through the opening in such a way as to make a pool in the creek below the culvert; that the place was attractive to boys who frequently went to the pool to wade and swim and that as it was unfenced and unguarded, the city, under the attractive nuisance doctrine, was responsible for the drowning of the boys and liable for the loss sustained by their parents. The land where the pool was formed was the property of a private owner and over which the city had no control. We held that the city was not liable for the loss sustained by the parents in the drowning of their sons since the city had neither ownership, nor control over the premises upon which the dangerous place existed.
Giving all the allegations of the amended petition their most favorable and liberal construction in favor of plaintiffs, we conclude defendant city’s demurrer to the amended petition was correctly sustained.
Since we have concluded that the demurrer of defendant city was properly sustained, let us examine to see whether a different rule should prevail as to the demurrer of Cooper.
The parties concede this is what is known as an attractive nuisance case. The attractive nuisance doctrine was first recognized by this court many years ago and it has been reapplied numerous times. It has become a part of our jurisprudence. The statement of the doctrine by Chief Justice Johnston summarizes the basis of its application in our various decisions when he said in Tavis v. Kansas City, supra:
“. . . The rule of the attractive nuisance cases has been recognized and frequently applied in this state (Osborn v. Railway Co., 86 Kan. 440, 121 Pac. 364, and cases cited), but it is based on the negligence of the proprietor who fails to protect young children attracted to his premises by some dangerous thing or place artificially created there and where he should have anticipated that the children would be lured into the danger. . . .”
A few of our cases in which the purport of this rule was applied are: K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 686; C. K. & W. Rld. Co. v. Bockoven, 53 Kan. 279, 36 Pac. 322; Kinchlow v. Elevator Co., 57 Kan. 374, 46 Pac. 703; Price v. Water Co., 58 Kan. 551, 50 Pac. 450; Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4; Electric-light Co. v. Healy, 65 Kan. 798, 70 Pac. 884; Kansas City, Fort Scott & Memphis Rld. Co., v. Matson, 68 Kan. 815, 75 Pac. 503; Kansas City v. Siese, 71 Kan. 283, 80 Pac 626; Osborn v. Railway Co., 86 Kan. 440, 121 Pac. 364; Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551; id. 95 Kan. 513, 148 Pac. 746; and, Smith v. Evans, 178 Kan. 259, 284 P. 2d 1065.
In Tavis v. Kansas City, supra, p. 553, Chief Justice Johnston quoted with approval from Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, the following:
“ ‘The owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different.’ ”
This statement was approved and again quoted in Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018.
In Kinchlow v. Elevator Co., supra, it was held:
“Where an owner of premises has reason to apprehend danger from the peculiar situation and condition of certain of their appurtenances and their openness to accident, the question whether he has exercised due care or not, as well as that of the contributory negligence of a person injured thereon, becomes one for the jury, to be determined upon all the facts and circumstances of the case."
In Price v. Water Co., supra, p. 556, the court said:
“. . . They are, in brief, that, where a person maintains upon his premises anything dangerous to life or limb and of a nature to invite the intrusion of children, he owes them a duty of precaution against harm, and is hable to them for injury from that thing, even though their own act, if not negligent, puts in operation its hurtful agency. One may not bait his premises with some dangerous instrument or quality, alluring to the incautious or vagrant, and then deny responsibility for the consequences of following the natural instincts of curiosity or amusement aroused thereby, without taking reasonable precautions to guard against the accidents hable to ensue. Rights can only be enjoyed subject to those hmitations which regard for the weaknesses and deficiencies of others dictate to be humane and just. This rule has been applied, not only in the ‘turntable cases,’ but to others in which dangerous situations have been negligently maintained, and especially to cases of death or injury by falling into unguarded pools or vats of water.” (Emphasis supplied. )
We have held that a swimming pool in a public park of a city, although attractive to children, was not a nuisance, producing public annoyance, inconvenience, discomfort or hurt, since it formed one of the public attractions in the park and did not belong in the same class with places regarded as an attractive nuisance (Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493; Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78); that a pond in a city park which was substantially a reproduction of a natural pond, although attractive to children, did not come within the rule of attractive nuisance since the maintenance of the park was a governmental function, and the pond in the park added to its beauty and accessory to all (Harper v. City of Topeka, supra); that an artificial channel and tunnel designed to correct the evil tendencies of a natural stream in a city was not within the doctrine of attractive nuisance (Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53); that an unguarded pool in a natural watercourse to which boys resorted to wade and swim could not be regarded as an attractive nuisance (the Tavis case, supra); and, that an open and unguarded canal fifty feet in width carrying a stream of water about seven feet deep through a populous city for commercial purposes was not an attractive nuisance, since it was in the nature of a natural watercourse although obviously dangerous and attractive to children, and there was no greater necessity to build a fence or cover the canal than to fence or cover a natural stream (Somerfield v. Power Co., 93 Kan. 762, 145 Pac. 893).
We do not think that because Builders Sand Company with the permission of Cooper cut through the right established bank of the river thereby causing the abandoned sand pit to fill with water and be subject to the currents of the river brings the dangerous place alleged to exist under the rule announced in Harper v. City of Topeka, supra; Gorman v. City of Rosedale, supra; the Tavis case, supra, or Somerfield v. Power Company, supra, since Cooper created the unnatural condition.
With these rules in mind we examine the allegations of the amended petition to ascertain whether Cooper s demurrer was correctly sustained, conceding that not every unguarded pond might come within them. In doing this, however, we keep in mind the general rule that as against a demurrer, the plaintiff is entitled not only to all the benefits of facts pleaded but to all reasonable inferences that may be derived therefrom (Rowell v. City of Wichita, 162 Kan. 294, 300, 176 P. 2d 590); that allegations well pleaded must be accepted as true (Hodges v. Phoenix Mutual Life Ins. Co., 171 Kan. 364, 233 P. 2d 501).
For five years prior to Lonny Eugene’s death, Cooper caused the sand pit to be created and enlarged. Apparently when all the sand on the premises had become exhausted, Cooper permitted the sand company to cut through the right bank of the river for the purpose of moving its equipment from the premises, thereby causing the sand pit to fill with water and to be subjected to the currents of the river. In the process of taking sand from the premises, steep, shifting sandbanks as well as sand beaches were formed, which were attractive to children to play upon. The water which filled the sand pit was clear, deep and cool, and had hidden currents beneath its surface, which abounded with fish and was attractive and inviting as a place to fish and swim. Its attractiveness to children cannot be questioned.
Cooper’s premises were located in the city of Wichita and within a densely populated section of the city. Surrounding it were many small dwellings on small tracts of land. The children of these homes had few adequate places to play, and as a result they used the sand pit area, its sandbanks, beaches and water as their playground. While there was a wooden diving board at the northwest edge of the bank of the sand pit, it was not incidental in Lonny Eugene’s drowning, which occurred near the northeast portion of the pond.
That Cooper knew young children were attracted to these premises and should have anticipated they would be lured into danger cannot be questioned. Notices were served upon the city’s governing body protesting the condition of Cooper’s premises. As a result of these notices, the premises were visited from time to time by city officials, members of the police and fire departments for the purpose of viewing them. The condition of Cooper’s premises was made a matter of public issue; a public hearing concerning it was publicized in two metropolitan newspapers having general circulation throughout the city and to the Cooper homes. This, and other facts alleged, leaves little doubt that Cooper was aware of the condition of these premises and the use made of them by children in the neighborhood. Assuming that Cooper could not with comparative ease prevent danger occurring to children without destroying or impairing the usefulness of the sand pit during the time it was in operation, certainly, after the sand company moved its equipment from the sand pit and ceased its operation there was nothing to prevent Cooper, in the exercise of ordinary care to protect children who came upon the premises, from fencing the area, posting notices of danger or taking other measures to render the premises safe. Their nature made them easily guarded.
While, as pointed out in Smith v. Evans, supra, emphasis was placed upon the presence of the diving board at the abandoned sand pit we conclude here, under the allegations of the amended petition, it was the abandoned sand pit and its entire surroundings; its smooth beaches, sandbanks, the placid water, which, all combined, formed the dangerous whole and made it an attractive nuisance under the rule set forth in the Tavis case, supra.
At the oral argument of this case it was stated by appellants, and not denied by appellees, that this is the same premises about which litigation occurred in the case of Smith v. Evans, supra, to recover damages for the death of plaintiff’s son by drowning, which occurred June 13, 1953; some four months previous to Lonny Eugene’s death.
Counsel for Cooper cite authorities from other jurisdictions holding there was no liability. We have examined them. We do not think they apply in determining whether the amended petition states a cause of action under the rule set forth in the Tavis case, supra. The allegations must be taken as true and the plaintiffs are entitled to a liberal construction and the indulgence of reasonable inferences. We think the amended petition states a cause of action against Cooper, and the trial court erred when it sustained the demurrer.
The judgment of the trial court is affirmed in sustaining defendant city’s demurrer; the case is reversed with directions to the trial court to overrule the Cooper demurrer. It is so ordered.
Price, J., dissents from (2) of 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.:
These were proceedings to probate wills. The probate court admitted them to probate. One, opposed in each case, appealed to the district court. The district court dismissed the appeals. The contestant has appealed.
Laura and Floyd Teetzel were husband and wife. He made his will on March 5, 1953. She made hers on March 3, 1953. He died on March 24, 1953. She died on March 11, 1953. The petition asking that his will be admitted to probate stated that he was survived by Lois Fay Cornelssen, his daughter, and Earl W. Teetzel, his son, both adults; that the probable value of his estate was in the aggregate $32,000; that the petitioner, Lois, was named executrix. His will gave three lots in St. John to Earl and all the rest to Lois. It was offered for probate and admitted on March 28. Lois also offered her mother’s will. The petition stated that the heirs of the mother were Floyd and Lois and Earl and that the probable value of the estate was $25,500; that Floyd had been named executor in the will, but was dead at the time the will was offered for probate and that Lois was a suitable and proper person to whom letters of administration should be issued. The will gave all of Laura’s property to Floyd, her husband. It was offered for probate and admitted the same day, March 28, 1953. On September 30, 1953, Earl appealed from the order admitting these wills to probate. On May 21, 1954, Lois filed a motion to dismiss his appeal and a plea in abatement in each case.
In this motion she alleged the relationship of the parties and that Laura and Floyd had purchased Lots 4 and 5 in Block 22 of the City of St. John and owned such property until their deaths. It alleged Laura had made her will on March 3, 1953, and it had been filed for probate and admitted; and that Earl had entered his appearance in person at that hearing. She then alleged that Floyd had made his will, the terms of it and that it had been admitted to probate; that prior to the deaths of Laura and Floyd, Earl had neither claimed nor owned an interest in any of the described real estate; that during the lifetime of Laura and Floyd they had leased the real estate to one Fuqua for $35 a month and that he was a tenant in possession when the motion was filed; that after the deaths of Floyd and Laura, Lois instructed Fuqua to pay the rent to a bank in her account and on April 27, 1953, and on May 5, 1953, she gave Earl checks for $10, being a part of the rent for April; that on May 11, 1953, she told Earl that under the will of his father the real estate went to him and she was turning it over to him and suggested that he make arrangements with Fuqua to oc cupy part of this dwelling; that thereafter Earl attempted to make arrangements with Fuqua but was unsuccessful; that on May 11, 1953, she told Earl she had already paid him $20 and gave him a check for $15, being the balance of the April rent, and that Earl should thereafter take charge of the real estate and collect the rent himself and that she had suggested to Earl that he allow the rent to be paid to the bank and have it credited to his account; that thereafter she directed the bank to so credit the rent and that Earl had been receiving all the rents, including the rent for the month of April, and was still receiving it when she filed the motion; that on July 18, 1953, she had a talk with Earl about paint the mother was said to have bought to paint the house, and she informed Earl that she could not find any record of any purchase of paint; that on October 1, 1953, Earl made and delivered a mortgage on the real estate in question for $126.35, which mortgage was duly recorded.
On October 19, 1954, Earl tendered into the district court of Stafford county the sum of $455, which consisted of $420 that he had withdrawn from his checking account at the bank, and a balance of $35, which Lois had paid him as rent on the real estate in question. He asked the district court to hold that sum until the appeal from the order of the probate court admitting the wills to probate had been tried and asked the court to impound any further rent money.
On October 19, 1954, the court announced its decision and judgment in which it found as follows:
“The court further finds that a mere acceptance under the terms of a will does not invalidate the right of an individual to contest the will, providing that at the time of filing such contest, the contestant tenders into court the amount that he or she has received under such will, or exercises no right to the property conveyed to him by such will, and that if such appellant had done so, he would have a good cause of action on appeal, but the court finds that the tender into court as of this date, October 19, 1954, more than a year after such appeal was filed, is too late, and that the appeal in both the above entitled causes of action should be dismissed at costs of the appellant.”
On October 21,1954, Earl filed a motion to set aside the judgment of October 19, 1954, dismissing the appeal, and asked for leave to submit additional testimony. At the same time he filed an affidavit in which he alleged that he returned to St. John while his parents were sick and was not permitted to talk with them during their last illness; that he was advised orally of the contents of their wills and a few months after the funeral appellant gave him a check for $10 and a little later another check for $10; that he could not read and did not understand what was going on; that since 1941 he understood the property in question belonged to him as a gift from his grandfather; that he had been in jail a short time prior to August, 1954, and had mortgaged the property to secure money to pay his fine; that after his attorneys had learned he had been receiving the rents and mortgaged the property, they advised him not to take any more money and to raise the money with which to tender back the money that had been paid him.
On January 3,1955, the trial court announced it had read and considered the affidavit and the tender had been made too late and the judgment originally entered was affirmed.
On March 2, 1955, Earl submitted his notice of appeal to this court in which he stated he had appealed from the judgment rendered on the 19th day of October, 1954, and affirmed on the 3rd day of January, 1955, wherein it was adjudged that the appeal was not good because the tender had been made too late.
After the case reached this court, counsel for Earl filed a motion for an order substituting James W. Jordan as the newly appointed guardian of Earl for the purpose of conducting these appeals and advised that he had been appointed guardian because Earl was incapable of managing his person and estate. At the same time the guardian filed in this court a petition to vacate and set aside the judgment in the lower court because Earl had been declared incompetent and incapable of managing his person and estate during his entire lifetime and that the judgment of the district court of Stafford county was rendered against him while he was incompetent and while he was not represented by a guardian ad litem, or a legal guardian, and as a result the judgment was void.
On August 23, 1955, the probate court of Stafford county did find Earl was and had been during his entire lifetime an incompetent person and incapable of managing his person and estate and that it was necessary that a guardian be appointed of his person and estate. James W. Jordan was appointed.
The guardian first argues that his motion to vacate the judgment of the district court filed directly in this court after the appeal had been taken should be sustained. We are unable to follow him in this argument. He makes the point first that since the appeal had reached this court, this was .the only one by which such a motion could be heard.
Actually the motion seeks to invoke our original jurisdiction. The matter of the incompetency of Earl never was presented to the trial court. Cases in which our original jurisdiction may be invoked are strictly provided for in our constitution. (See Art. 3, Sec. 3.) This is neither quo warranto, mandamus or habeas corpus. It is doubtful whether even a statute could confer on us jurisdiction to entertain such a motion. There is no such statute here.
Resides all the above, this judgment could not be set aside in such a proceedings unless it were void. It was not void on account of the incompetency of Earl. (See Sterling v. Goulden, 136 Kan. 18, 12 P. 2d 812; also Cooper v. Greenleaf, 84 Kan. 499, 114 Pac. 1086.) No other reason why it should be held void is called to our attention.
Such an argument also violates the rule that we will not consider any matter that was not presented to the trial court. We cannot consider such a motion.
This conclusion takes us to a consideration of the question whether the trial court erred in sustaining Lois Fay’s motion to dismiss the appeal in that court. All parties concede, one may not accept the benefits of a will and at the same time attack the will and seek to set it aside. (See Weichold v. Day, 118 Kan. 598, 236 Pac. 649.) Equally well settled and conceded here is the rule that under such circumstances one who has taken under a will may return or offer to return these benefits and then attack it. (See Weichold v. Day, supra; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962.)
The trial court here recognized both these rules but held that the tender under the circumstances came too late to be availing to Earl. Such is our sole question. The appeals in which he sought to prevent probation of the wills were filed by Earl on October 1, 1953. The tenders were filed October 19,1954. In the meantime for more than a year Earl had been collecting rent from the house and lot bequeathed him by his father’s will and had exercised other acts of ownership. It appears that counsel for Earl did not know about his having accepted these benefits until his sister had filed her motion to dismiss the appeal in each case and immediately on hearing of it had him make the tender. The fact that his counsel did not know about it, however, does not lessen the effect such taking had on his rights to contest the will.
After the trial court had sustained the motion to dismiss Earl filed a motion to set aside that judgment. With that motion he furnished an affidavit of what he could prove should his appeal from the order admitting the will be heard. The trial court examined this affidavit which purported to explain why Earl accepted the rental from the property and in effect held such was not sufficient to enable him to attack the will under all the circumstances. We are unable to find any error in such holding.
The judgment of the trial court in each case is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by plaintiff Nellie Mae Worrell to cancel a deed executed by her to defendants Thomas C. and Grace S. West, covering certain real property, on the ground defendants failed to perform conditions subsequent which constituted the consideration for the deed. From an order of the trial court sustaining defendants’ demurrer to plaintiff’s evidence, she appeals.
Appellant Nellie Mae Worrell will hereinafter be referred to as plaintiff, and appellees Thomas C. and Grace S. West, as defendants.
The petition, as amended, alleged the ownership of plaintiff in certain described real property in Wichita; that she was fifty-six years of age, had little business experience and was unfamiliar with real estate transactions. Defendants were husband and wife, and about September 18, 1953, they conspired together for the purpose of defrauding plaintiff of her title to and possession of the described real property and, in connection with such conspiracy, defendants entered into a scheme or device to defraud the plaintiff by making an oral promise to her that if she would deed her property to them, they would assume all mortgage payments on the property and provide plaintiff a home for the remainder of her life, without further obligation on her part. Plaintiff, relying on this promise, on September 21, 1953, executed and delivered to defendants a warranty deed to her property. Defendants at the time of making such oral promise had no intention of providing plaintiff a home for the remainder of her life, and immediately after the execution of the deed and in furtherance of the scheme, defendants became abusive to plaintiff, cut off the heat and electricity in her room, locked her out of the house, placed her in fear of her life, and made it so unbearable that plaintiff was compelled to move from the property. No consideration was paid for the real property except the promise as indicated and, due to the misrepresentation and fraud on the part of the defendants, the plaintiff was deprived of her title and possession of the property. Plaintiff asks by way of relief that the deed be declared null and void and set aside, and that defendants be ejected from the premises and be forever barred from claiming any right to the same.
The testimony in support of plaintiff’s petition may be narrated in part as follows: Plaintiff was fifty-six years of age and the owner of the property in question, worth from $10,000 to $12,000 at the date of the execution of the deed, subject to two mortgages on which there was a total balance due of approximately $1,000. Plaintiff became acquainted with defendant Grace S. West while they were employed as maids in a Wichita hotel. They visited back and forth from time to time thereafter. In July, 1953 defendants came to the cafe where plaintiff was working as a waitress, told her that they had lost their residence and had to move that evening and wanted to store their furniture in plaintiff’s garage. She consented, and the furniture was stored in her garage while defendants went to Colorado to look for work. Being unsuccessful in obtaining work, they returned to Wichita and with their three children moved into plaintiff’s home, plaintiff retaining a room and paying all utility bills. The food bills were shared by all parties. They lived in this manner about two months. During this period, the defendants talked with plaintiff and the mortgagee, Mrs. Lela T. Van Dusen, about deeding plaintiff’s property to defendants and, in these discussions, defendants agreed that if plaintiff would give them a deed, defendants would give her a home for the rest of her life, take care of all her obligations, and pay her life insurance.
Henry J. Brown testified that he had a conversation with defendant Grace West, and she said Mrs. Worrell was sick and had lots of bills to pay and she (plaintiff) wanted to give defendants a deed to the property and they would give her a home the rest of her life, take care of all her obligations and pay her life insurance. He then talked to plaintiff and she advised him she was confident the defendants would carry out their agreement. He further asked defendant Grace West the following question:
. . . Who is going to take care of Mrs. Worrell if you should happen to die?’ She says, ‘Mr. West, my husband. He thinks just as much of Aunt Nellie as I do. He would do just as much for her as I would . . . Now Aunt Nellie is going to have a room back here of her own. . . .’”
The evidence disclosed that defendants made arrangements with an attorney to prepare a deed conveying plaintiff’s property to them, and took the plaintiff to the attorney’s office for the purpose of executing the deed. The attorney was not advised of any agreement between the parties. He prepared the deed on September 18, 1953, wherein the plaintiff conveyed the property in question to the defendants. The deed was executed by the plaintiff and delivered. The attorney testified that no consideration passed from the defendants to the plaintiff at the time the deed was signed, and that defendants paid him for his services with an insufficient fund check which was later made good. From the time the deed was executed, plaintiff remained in her home for approximately one month. During this period defendants, without plaintiff’s consent, moved her furniture out of the house into the garage, moved their own furniture in, turned off the electricity and gas and removed plaintiff’s heating stove so that she could neither light nor heat her room, put a new lock on the front door of the house and refused to give her a key, locked the door between her room and the kitchen, and prohibited her from using the telephone, although she was paying for it. The plaintiff was placed in fear of her life and the situation became so intolerable that she was forced to move from her home on October 19. In the latter part of October, a conference was held between plaintiff’s attorney and the defendants, wherein a demand was made for the return of the property to plaintiff, which demand was refused and this action followed.
At the conclusion of plaintiff’s evidence, defendants demurred on the ground it failed to establish facts sufficient to sustain a cause of action as pleaded in plaintiff’s petition. From an order of the trial court sustaining this demurrer, plaintiff appeals, and asserts that the court erred in sustaining the demurrer to her evidence.
At the outset it may be stated that we are called upon to review the sufficiency of plaintiff’s evidence as against defendants’ demurrer, and not to weigh the evidence for the purpose of rendering a decision on the merits of the action, and this same duty was incumbent upon the trial court. The rule is so well established in this and other jurisdictions that it should not be necessary to reiterate that in testing the sufficiency of evidence as against a de murrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with, all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and give the evidence of plaintiff a liberal construction resolving all doubt against defendants and, if so considered, there is any evidence which supports or tends to support plaintiff’s case on any theory, the demurrer should be overruled. A few of our more recent cases adhering to this rule are: In re Estate of Dieter, 172 Kan. 359, 239 P. 2d 954; Staab v. Staab, 160 Kan. 417, 163 P. 2d 418; Palmer v. The Land & Power Co., 172 Kan. 231, 239 P. 2d 960; McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724; Blankenship v. Fraker, 173 Kan. 438, 439, 249 P. 2d 683; Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538; Huggins v. Kansas Power and Light Co., 164 Kan. 27, 187 P. 2d 491; Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239; Samms v. Regier, 167 Kan. 556, 207 P. 2d 414; Hukle v. Kimble, 169 Kan. 438, 441, 219 P. 2d 434; Schneider v. Stewart, 170 Kan. 158, 163, 223 P. 2d 698; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923. Other cases holding to the same effect may be found in 5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 151, and West’s Kansas Digest, Trial, § 156 (2) and (3).
In considering and deciding a demurrer to plaintiff’s evidence in a case tried to the court, the same rule obtains as in cases tried by a jury. (Farnsworth v. Clarke, 62 Kan. 264, 62 Pac. 655; Windus v. Bodecker, 132 Kan. 857, 297 Pac. 702.) Considering plaintiff’s evidence in its most favorable aspects in accordance with the rules enumerated, we are of the opinion that there was ample evidence to support plaintiff’s cause of action as set forth in her petition, and the court erred in sustaining the demurrer.
In this and other jurisdictions, a grantor who conveys land in consideration of an agreement by the grantee to support, maintain, and care for the grantor during his lifetime, may, upon the neglect or refusal of the grantee to comply with the contract, have a decree setting aside the deed and reinvesting him with the title to the real estate. The intervention of equity in such cases is sanctioned on the theory that the neglect or refusal of the grantee to comply with his contract raises a presumption that he did not intend to comply with it in the first instance, and that the contract was fraudulent in its inception, wherefore a court of equity will not permit him to enjoy the conveyance so obtained. Rescission of such a conveyance has been granted upon the theory that the conveyance is one upon a condition subsequent, which is broken by the failure to provide support. (9 Am. Jur. 376, §31; see, also, 9 C. J. 1185, and 12 C. J. S. 987.)
We have held, in contracts of the character of the one under consideration, that nonperformance by the grantee of his covenant to furnish support and maintenance to the grantor constitutes sufficient ground for the rescission and cancellation of the conveyance. The subject was discussed and the authorities were well analyzed by this court in Chapman v. Warmbrodt, 175 Kan. 125, 259 P. 2d 158, and are applicable here.
It follows that the judgment of the trial court 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
Parker, J.:
This was an action, commenced within one year from the date of the accident, to recover damages for personal injuries and property damage sustained by the plaintiff in a collision between two motor vehicles on a public highway. The appeal is from an order sustaining plaintiff's motion to strike portions of the defendants’ answer.
The amended petition is not in controversy and need only be detailed for the purpose of defining the issues. To that end it may be said it charges the proximate cause of all damages sustained and claimed by plaintiff was due to divers acts of negligence on the part of defendant Zeckser, the defendant Miller’s truck driver, in driving into plaintiff’s truck and house trailer, while overtaking and attempting to pass those vehicles on a public highway, at a time when the Miller truck was operating under state license as a contract carrier and covered by insurance with the defendant Employers Mutual Casualty Company.
In a general way it can be stated that the first five paragraphs of the answer of defendants, Zeckser, Miller and Employers Mutual Casualty Company, consist of immaterial admissions and a general denial, specific denials that the negligence of Zeckser was the proximate cause of the collision and that plaintiff was the owner or had an interest in the truck he was driving at the time of the accident, allegations that if plaintiff sustained any injuries as the result of the collision the proximate cause thereof was due solely to his own negligence, and averments that if plaintiff was the owner or had an interest in the truck he was driving at the time of the accident he had sustained no damage thereby and had been fully compensated therefor by the Liberty Mutual Insurance Company, or others; and that the sixth and final paragraph of such pleading reads:
“Defendants, and each of them, further allege that the plaintiff herein was, on the 19th day of May, 1954, an employee of Pittsburgh-Des Moines Steel Company, and was on said date carrying on the business or work of said company and that as a result of said collision and injuries, if any, received by the plaintiff, plaintiff has been and is entitled to the benefits of the Kansas Workmen’s Compensation Act, and has been furnished medical and hospital expenses by the said Pittsburgh-Des Moines Steel Company, his employer, or the Liberty Mutual Insurance Company, the compensation carrier for said company. That said medical expenses, as alleged in paragraph 6 of the Third Amended Petition, have been furnished to the plaintiff by said Pittsburgh-Des Moines Steel Company and/or the Liberty Mutual Insurance Company, its compensation carrier, and said further medical expense will be furnished to the plaintiff by said companies in accordance with G. S. 1949, 44-510. That by reason of said payments of medical or furnishing medical to the plaintiff and by reason of the injuries as alleged in said paragraph 6 of the third amended petition, the said Pittsburgh-Des Moines Steel Company and/or Liberty Mutual Insurance Company are subrogated to said payments including payments of compensation to the plaintiff and including payments for injuries, if any, which the plaintiff sustained, by reason of 1949 G. S. 44-504. That under the provisions of said statute, the Pittsburgh-Des Moines Steel Company and the Liberty Mutual Insurance Company have a hen on any claim for injuries or medical expense as alleged in said third amended petition. Defendants and each of them further allege that on the 30th day of December, 1954, said Liberty Mutual Insurance Company did make written demand on the defendants, and each of them, claiming said right of subrogation against any amount which the plaintiff herein might recover for medical, doctor, hospital expenses, personal injuries and pain and suffering. That by reason of said demand of the Liberty Mutual Insurance Company, the defendants, and each of them, are not liable to the plaintiff for any injuries, medical expense, past and future, and pain and suffering, as alleged in said third amended petition.”
Following the filing of the foregoing answer plaintiff moved to strike paragraph six, heretofore quoted, from that pleading on grounds the allegations contained therein were irrelevant and immaterial, stated no defense to plaintiff’s cause of action and were pleaded solely for prejudicial purposes. When this motion was sustained defendants perfected the instant appeal.
Stated in highly summarized form the essence of all contentions advanced by appellants in support of their position the trial court erred in sustaining the motion to strike paragraph 6 of their answer is that, under and by virtue of the provisions of G. S. 1949, 44-504, where an employee and his employer are within the provisions of the workmen’s compensation act and the employee, injured by the negligence of a third person, brings an action to recover damages for injuries sustained as the result of such negligence, the allegations set forth in such paragraph of the answer constitute a defense in the action brought by the employee against the negligent third person and his insurance carrier.
Pertinent portions of the statute, G. S. 1949, 44-504, relied on by appellants to sustain their position read:
“When the injury . . . for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman . . . shall have the right to take compensation under the act and pursue his . . . remedy by proper action in a court of competent jurisdiction against such other person. In the event of recovery from such other person by the injured workman, ... by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a hen therefor against such recovery and the employer may intervene in any action to protect and enforce such hen. Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, . . . Failure on the part of the injured workman, ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman . . . may have against any other party for such injury . . . and such employer may enforce same in his own name or in the name of the workman, dependents or personal representatives for their benefit as their interest may appear by proper action in any court of competent jurisdiction.”
We think the sole issue thus raised on appellate review is controlled, and therefore decided, by our recent decision of Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219, where it is said:
“A workman under the compensation act, who during his employment sustained accidental injury alleged to have been caused by the negligence of a party other than his employer may recover compensation from his employer and bring a common-law action against the other party for his injuries. In such action the employer or his insurance carrier is not a proper party, and the compensation proceeding has no place in the pleadings or evidence in a common-law action.” (Syl. f 2)
And in the opinion said:
“Under this statute Davison (the employee) had a right to claim compensation from Ebasco (the employer) and its insurer and to maintain his action against Eby (the negligent third party) for'damages. The action against Eby was brought within a year, hence there could be no assignment of Davison’s claim in tort against Eby. Since Davison recovered on his claim against Ebasco and its insurer for compensation, Ebasco was entitled to subrogation for the amount his insurer paid for him, and that claim of subrogation was made in a notice given by the insurer to Eby.
“Since Davison had authority under the statute above mentioned to receive compensation from Ebasco, and at the same time maintain an action in tort against one not his employer, the fact that he did claim and received compensation under the compensation act from Ebasco is of no concern to Eby in this action. The trial court correctly ruled in striking his alternative motion and also in striking the portions of the answer which pertained to plaintiff’s recovery of compensation from Ebasco . . .” (p. 261.)
Assuming arguendo, as appellants contend, the facts in Davison v. Eby Construction Co., supra, are of such nature as to distinguish it from the case at bar does not lead to or warrant a conclusion the trial court erred in sustaining the involved motion to strike. The issue here raised by appellants was long ago laid to rest and determined by this court in the early case of Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, where the provisions of the statute then in force and effect were substantially the same as they are now. There, in dealing with similar facts and circumstances, we held:
“In such a situation the fact that the employee has proceeded to obtain compensation from his employer, by settlement or otherwise, is no defense to the action for damages, nor can that fact be shown by the defendant upon the trial of such action.” (Syl. ¶[ 4.)
And in the opinion, with specific reference to whether facts and circumstances of the kind here involved could be pleaded as a defense to a like action, said:
“. . . But the question still remains, Why should that concern the defendant in this case any more than the amount of property plaintiff inherited from her husband at the time of his death, or the amount of life, health or accident insurance he left her? If defendant’s negligence was the cause of the death of plaintiff’s husband, defendant is liable to plaintiff in damages. That is the issue for trial in this case, and the court does not have before it other property rights of the plaintiff. After a judgment is obtained by plaintiff against defendant in this case — if one be obtained — and defendant is ready to pay the judgment, then it will be proper for defendant to inquire if Hamilton or his insurer is entitled to the money, but until that time defendant has no concern with the contract of employment between plaintiff’s husband and his employer, nor with the contract pleaded.’’ (p. 259.) (Emphasis supplied.)
For numerous other decisions sustaining the views expressed in Moeser v. Shunk, supra, as well as Davison v. Eby Construction Co., supra, see Riddle v. Higley Motor Co., 122 Kan. 458, 252 Pac. 231; Jolley v. United Power & Light Corp., 131 Kan. 102, 105, 289 Pac. 962; Early v. Burt, 134 Kan. 445, 453, 455, 7 P. 2d 95; Acock v. Kansas City Power & Light Co., 135 Kan. 389, 394, 10 P. 2d 877; Cooke v. Bunten, 135 Kan. 558, 11 P. 2d 1016; Long v. American Employers Ins. Co., 148 Kan. 520, 525, 83 P. 2d 674; Pattrick v. Riggs, 148 Kan. 741, 84 P. 2d 840.
See, also, the recent case of Clifford v. Eacrett, 163 Kan. 471, 183 P. 2d 861, where it is said:
“The fact a workman has received compensation from his employer for the same injury constitutes no defense, or partial defense, to a negligent third party in an action.against him by the workman for damages . . .” (p. 477.)
Appellants cite no cases from this jurisdiction where it has been held that allegations such as are contained in paragraph 6 of their answer constitute a defense to an action where an employee, having the exclusive right to do so under the statute, brings an action against a negligent third party within one year from the date on which he sustained injuries as the result of such negligence; and when considered we find nothing in other arguments made by them sufficient to warrant conclusions contrary to those announced in the foregoing decisions. Therefore we hold that the trial court committed no error in sustaining the involved motion to strike.
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The opinion of the court was delivered by
Parker, J.:
This, the second appeal from rulings on the pleadings, is an action to recover damages for wrongful death resulting from a collision between a motor fuel transport truck and a train at a railroad crossing. Defendants appeal from an order sustaining a motion to strike certain portions of their separate answers.
A review of the allegations of the amended petition is neither necessary nor required. It suffices to say such allegations, along with a factual statement sufficient to permit a proper understanding of what the case is about, are set forth at length in the opinion of Johnson v. Killion, 178 Kan. 154, 283 P. 2d 433, which, by reference, is made a part of this opinion.
On a date, not disclosed by the record which we therefore assume was after our decision on the first appeal, defendants filed separate answers, identical in all respects except for certain allegations in the answer of defendant Employers Mutual Casualty Company, not here involved, respecting insurance coverage.
Summarizing, and without reference to allegations last above mentioned, it may be stated these answers deny generally the allegations of the petition, except formal allegations of residence and agency and the fact the accident had happened at the time and place in question; charge that the crossing in question was a dangerous crossing because of the speed of the trains crossing it and the peculiarities of its construction; and then, in addition to asserting that the collision was the result of an unavoidable accident, contain the following allegations, to be found in the fifth paragraph of defendant Killion’s answer and in the seventh paragraph of the defendant Employers Mutual Casualty Company’s answer, which read:
“Defendant expressly denies that his driver was guilty of the negligence set forth in plaintiff’s amended petition or of any negligence which was a proximate cause of the collision. That the said Walter E. Keith was guilty of the following acts of negligence which are binding on the plaintiff herein:
“a. In operating the engine of his train at a high and dangerous rate of speed, to-wit: approximately ninety to one hundred miles per hour.
“b. In operating his engine at such a speed when he knew or in the exercise of reasonable care should have known that it could not be stopped within his range of vision of the railroad crossing.
“c. In failing to observe defendant’s vehicle attempting to cross the track.
“d. In failing to slow his train when he had the time and opportunity to do so and thereby avoid the collision.
“e. In operating his train at a speed in excess of sixty miles per hour as provided by the Interstate Commerce Commission regulations.
“f. In operating his train at a high and dangerous rate of speed across an intersection which he knew or should have known was not adequately protected by gates or electric warning devices.
“g. In failing to sound his whistle at a sufficient distance from the crossing so as to constitute a warning to vehicles attempting to cross the tracks.
“That any one or more of the above acts of negligence were a proximate cause of the death of Walter E. Keith and bar the recovery of the plaintiff herein.”
After the defendants had answered in manner and form, as above described, plaintiff attacked both answers by a motion to strike all of subparagraph (b) and the portion of subparagraph (f), heretofore quoted and underlined for purposes of emphasis, from such answers on grounds that the allegations of (&) were immaterial and redundant, constituted no defense to the action and if allowed to remain in such answer would be prejudicial; and that the challenged allegations of (/) were immaterial and redundant, were conclusions of the defendants and alleged no violation of duty imposed upon plaintiff’s decedent. In passing we pause to point out that such motion attacks other paragraphs of the petition to which no reference has been made because of concessions made by the parties that we are not here concerned with ruling on matters therein involved.
In ruling on the foregoing motion the trial court sustained the heretofore mentioned portions thereof and then, according to the journal entry, struck all of subparagraphs (b) and (†) from the answers. Thereupon defendants gave notice of appeal which resulted in again bringing the cause to this court on the pleadings, where they now seek a review of the rulings respecting such sub-paragraphs of the answers.
We are met at the outset with appellee’s contention the ruling of the trial court striking the subparagraphs in question from the answers is not an appealable order and find considerable merit in the arguments advanced in support thereof. Even so, since one of the grounds of attack made against subparagraph (b) is that its allegations constitute no defense to appellee’s cause of action, and we have decisions holding a motion to strike allegations of an answer, challenging the sufficiency thereof to state a defense, is tantamount to a demurrer and an appeal lies from a ruling sustaining the motion (See Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302), we have decided the involved ruling should be disposed of on its merits.
If when viewed in the light of allegations which precede it, the allegations of subparagraph (b) are not to be considered as repetitious and redundant the essence of appellants’ position, notwithstanding specious arguments to the contrary, with respect to the allegations of such subparagraph is and of necessity must be that, regardless of the speed involved, an engineer who is operating a railway train at such a rate of speed it cannot be stopped within his range of vision of a railroad crossing is guilty of negligence. That, as will appear from a review of our decisions which we are not here disposed to labor or discuss, has never been the law of this state. See, e. g., In re Estate of Modlin, 172 Kan. 428, 433, 241 P. 2d 692; Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 194 P. 2d 491; Bazzell v. Atchison, T. & S. F. Rly. Co., 134 Kan. 272, 5 P. 2d 804; Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801; Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Railway Co. v. Schriver, 80 Kan. 540, 103 Pac. 994; Railway Co. v. Durand, 65 Kan. 380, 69 Pac. 356, and A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 38 Pac. 257. Therefore we hold that under the existing facts and circumstances the trial court did not err in sustaining appellee’s motion to strike subparagraph (b), heretofore quoted, from each of the answers in question.
Mindful that in preceding paragraphs of the answers appellants had alleged that under the existing conditions and circumstances appellee’s decedent was guilty of negligence, which was the proximate cause of the collision, in operating the engine of his train at a high and dangerous rate of speed, approximating ninety to one hundred miles per hour; and that all facts alleged in subparagraph (b) of such answers, as heretofore quoted, could be shown under those general allegations, we have little difficulty in concluding that the allegations of subparagraph (/) of the answers were not only redundant and irrelevant but must be considered as repetitious. In that situation the statute itself (G. S. 1949, 60-741) warranted the trial court’s action in striking subparagraph (/) from the answers and it cannot be successfully argued that action was erroneous.
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The opinion of the court was delivered by
Thiele, J.:
Odist Gray was tried on an information charging murder in the first degree. The jury returned a verdict finding him guilty of murder in the second degree. His motion for a new trial was overruled and in due time he perfected his appeal to this court.
The information against the defendant was filed on February 15, 1955, and charged an offense occurring on December 6, 1954. On March 11,1955, the state filed its motion to endorse the name of one witness and on March 15, 1955, filed another motion to endorse the names of two other witnesses, before die trial, which commenced on March 16, 1955, the state presented these motions and the defendant objected to the belated endorsement. The trial court overruled the objections and permitted the names to be endorsed. The defendant then moved for a continuance, which was denied and the trial proceeded.
For present purposes it may be said that the state’s evidence, which included dying declarations of the deceased, tended to show that the defendant had shot his wife with a .38 revolver. Defendant’s testimony tended to prove that he was 49 years of age and weighed 150 pounds and that his wife was 53 years of age and weighed about 200 pounds; that he came home about 6 P. M. on December 6, 1954, and, ignoring intervening events, was sitting in the living room and saw his wife who was in the dining room, approaching him with a .38 pistol in her right hand; that he rushed over to her to take the gun and in the struggle for it the gun was discharged, and that later she told her father, who was an aged man, sitting in the living room, that she had been shot. We need not here detail later events as tire result of which police were called, and the wife taken to the hospital, where she died, and the defendant was taken to the county jail. During the course of his testimony, the defendant testified that on previous occasions his wife had threatened to kill him and on one occasion had shot at him with a .25 revolver, and that on occasions they had quarreled about her friends. Ry way of rebuttal the state called a witness who was asked if she knew the reputation of the deceased as a peaceful, law-abiding citizen of the community and answered that she did but on objection of the defendant that deceased’s reputation was not an issue no answer was given. A conference between court and counsel was had out of the presence of the jury, and thereafter the trial was resumed, the objection sustained and the witness was then asked as to her acquaintance with the deceased and as to whether the deceased was a quarrelsome and troublesome person, and over objection of the defendant that she was giving a personal opinion, was permitted to answer in the negative. The state also called the minister of a named church who testified he had known the deceased for eight or nine years and that she was a member of his church. He was then asked “From your acquaintance with the deceased, Rlanche Gray, would you say that she was a quarrelsome or troublesome person?” and over objection of the defendant that the evidence was incompetent, irrelevant and immaterial and not proper rebuttal, was permitted to give an answer in the negative. At least five other witnesses were asked like questions and over objection were permitted to give answers in the negative.
At the conclusion of the evidence the trial court instructed the jury at length, the defendant objecting to instruction 35, pertaining to evidence as to the character of the deceased.
As has been stated the jury returned a verdict of murder in the second degree. The defendant’s motion for a new trial, which sufficiently set forth the matters later discussed, was denied and the defendant was sentenced to confinement in the state penitentiary for a term of twenty-five years. An appeal was promptly perfected to this court.
The specifications of error cover alleged error: 1. In permitting the state’s witnesses, on rebuttal, to express their personal opinions as to whether the deceased was quarrelsome and troublesome, when her reputation had not been attacked and had not been put in issue and when her dying declarations, positively naming accused as her assailant, were properly a part of the state’s evidence; 2. In admitting evidence which was incompetent, hearsay and prejudicial to the defendant; 3. In giving instruction No. 35 to the jury; 4. In permitting the endorsement of names of additional witnesses on the information and permitting those witnesses to testify; 5. In overruling defendant’s motion for a new trial; and 6. In rendering judgment against and pronouncing sentence on the defendant. As far as is necessary these specifications will be discussed in the order stated.
A considerable portion of appellant’s brief dealing with his first and second contentions is predicated on an assumption that in his testimony he had not attacked the character of his deceased wife as to her being quarrelsome, turbulent and troublesome, and that the state, in rebuttal, could not show she did not possess such traits in the way it did. We do not find it necessary to make an extended discussion of all the facets of the problem as to showing the character of the deceased. The rule is that on a trial for murder, the defendant, after laying a proper foundation by evidence tending to show that in committing the offense he acted in self-defense, may introduce evidence of the turbulent and quarrelsome character of the deceased, a rule recognized or followed in this state. See The State v. Burton, 63 Kan. 602, 66 Pac. 633; The State v. Spangler, 64 Kan. 661, 68 Pac. 39; The State v. Allen, 107 Kan. 407, 191 Pac. 476; and the cases cited therein. See also 40 C. J. S. 1138, et seq., and 26 Am. Jur. 389, et seq.
In 40 C. J. S. 1226, it is said the general rule is that evidence of the character of the deceased must be confined to his general reputation in the community within a reasonable time of the alleged crime and evidence of particular acts of violence or lawlessness is inadmissible unless directly connected with the crime charged, and that the state may introduce competent evidence in rebuttal. Certainly the appellant here cannot complain of his own testimony. Included in it was an attack on the character of the deceased as being quarrelsome and turbulent. That evidence was subject to rebuttal by the state, and the decisive question is whether the rebuttal evidence was proper and competent and should have been received.
As has been pointed out above the state in rebuttal did not seek to show the character of the deceased as to being quarrelsome and turbulent by evidence of her general reputation but it asked for and the court permitted the witnesses to give their personal opinions as to those traits.
The appellant contends that the trial court erred in admitting the evidence just mentioned and that it was highly prejudicial to him. In its brief, the state dwells at length on its right to rebut the defendant’s evidence as to the character or reputation of the deceased as being quarrelsome, turbulent and troublesome and cites many authorities some of which are mentioned herein. In view of what has been said above, we need not further notice its right to introduce rebutting evidence. The state, however, does not treat the type of evidence proper in rebuttal and cites no authority that the personal opinions of witnesses are admissible.
Certain observations are here deemed proper. One is that the question as to whether opinion evidence is properly admitted is not limited to homicide cases and our discussion need not be so confined nor is it limited to whether the evidence is offered in defense or in rebuttal. The other is that we need draw no technical distinctions between evidence of character and of reputation, the terms being used much of the time as meaning one and the same thing. As was said in The State v. Tawney, 78 Kan. 855, 99 Pac. 268: “The distinction between character and reputation is not easily understood by the common run of witnesses, and the terms are not infrequently used without discrimination. . . . In at least two decisions of this court the expression ‘character for truth and veracity has been used synonymously with reputation for truth and veracity.” (citing cases)
An exhaustive review will not be made of our many decisions and of other authorities wherein the question for decision has been discussed. Those hereafter mentioned are deemed sufficient.
In The State v. Johnson, 40 Kan. 266, 19 Pac. 749, the prosecution was for burglary and larceny. Among the complaints considered was that witnesses for the defendant had stated the general reputation of another witness was bad but an objection was sus tained to an inquiry as to whether from that general reputation the witness would give him full faith and credit upon his oath in a court of justice. After stating the question was competent and should have been allowed, this court said:
“The witness must not testify to particular facts, nor to personal knowlege of the individual sought to be impeached, but should confine himself to the general reputation; and if he knows that to be bad, the inquiry should then be permitted whether from that reputation he would believe the person whose reputation is assailed, under oath. While the propriety of this practice has been questioned, (1 Greenl. Ev., §461,) the authorities are well-nigh unanimous in holding the question to be proper.” (citing many authorities)
In Spain v. Rakestraw, 79 Kan. 758, 101 Pac. 466, the action was for damages for assault and battery and the question of proof of character or reputation was involved. Although it was held, under the facts, that there was no error, this court said:
“There was a time when the personal knowledge and opinion of a witness concerning the character of one with whom he was acquainted were regarded as proper evidence, but in Reg. v. James Rowton, 10 Cox Cr. Cas. [Eng.] 25, this practice was disapproved in England. In this country the weight of authority in such cases is that the question should be restricted to general reputation concerning the particular quality involved in the issue, and this is the practice approved in The State v. Johnson, 40 Kan. 266, 19 Pac. 749. A history of the judicial consideration of this subject is given in volume 2 of Wigmore on Evidence, sections 1605 to 1625, inclusive, and in volume 3 of the same work, sections 1980 to 1986, inclusive. (See, also, Stephen’s Hist. Crim. Law of Eng., pp. 449, 450.) The object sought by such testimony, whatever the form of the question, is to prove character (The State v. Spangler, 64 Kan. 661, 68 Pac. 39), but the proper method is, it seems, to arrive at this by showing the general reputation of the person rather than the personal knowledge of the witness.”
In The State v. Kirby, 62 Kan. 436, 63 Pac. 752, this court considered an appeal from a conviction for murder. The defendant contended that tire lulling arose from the seduction of defendant’s daughter by the deceased. Witnesses were called to testify as to the character of the daughter for chastity and virtue. In discussing the form of questions asked, it was said:
“When character is in issue, the law limits the inquiry to general character, and not to specific acts; not the estimate of a few, nor the opinion of a part of the community; but it can be shown only by common report, general reputation and opinion generally entertained of the party in the community where he lives.”
In The State v. Frederickson, 81 Kan. 854, 106 Pac. 1061, the defendant had appealed from a conviction of manslaughter. At the trial he had contended he shot the deceased in self-defense. Limits of space preclude extensive reference to the evidence of the state in rebuttal as to specific acts of the defendant to offset his evidence as to his having a good reputation as a careful, conscientious and faithful officer and as a peaceful, quiet and law-abiding citizen, and the comment of the court in deciding that such evidence was improper and prejudicial, reference being made to the opinion therefor. The conclusions of the court are well reflected in the syllabus reading:
“When the defendant in a criminal action undertakes to establish good character as an element of his defense to the charge he is limited in his proof to testimony regarding his general reputation for possessing the traits involved, in the community where he resides, and the state, in rebuttal, is limited to the same kind of testimony. Neither party may resort to specific instances of conduct demonstrative of character, nor to the private judgment or opinion of individuals, nor to any fact other than that of general reputation.
"In this case it is held that certain evidence in rebuttal, admitted in opposition to the rule stated, was prejudicial to the defendant to such an extent that he is entitled to a new trial.”
The question of the state’s evidence to rebut that of the defendant as to his having a good reputation for a particular trait was again before this court in State v. Whiting, 173 Kan. 711, 252 P. 2d 884. In denying the defendant’s contention that the evidence introduced was improper, this court made reference to The State v. Frederickson, supra, holding that the state was limited to testimony regarding the defendant’s general reputation for possession of the traits involved, and that we found no fault with that rule, but that it had not been violated.
Informative annotations on the admissibility of evidence as to the other’s character and reputation for turbulence on the question of self-defense by one charged with assault or homicide may be found in 64 A. L. R. 1029, and on the right of the prosecution, in a homicide case, to introduce evidence in rebuttal to show good, quiet and peaceable character of deceased, may be found in 34 A. L. R. 2d 451. See also 40 C. J. S. 1138, et seq., and 26 Am. Jur. 396.
In our opinion the trial court erred in permitting the state’s witnesses to testify, giving their personal opinions, that the deceased was not a quarrelsome and troublesome person.
The next question then is, was that wrongful admission of the evidence prejudicially erroneous. Without detailing the evidence offered by the state, it may be said that the only person present at the time, other than tire defendant and the deceased, was deceased’s father, who was an aged man who gave a vague, contradictory and inconclusive account of what happened. The state’s principal proof consisted of dying declarations of the deceased to some three or four persons and those declarations were that her husband shot her. It does not appear that deceased told any witness of any of the details of the shooting nor how it occurred nor any of the circumstances leading up to or connected with the shooting. In view of the defense that the shooting occurred when the defendant attempted to wrest the gun from the deceased, it is apparent that the evidence complained of that deceased was not quarrelsome and troublesome must have been considered by the jury in determining the truth of the defense, and that it was prejudicial, and we conclude it was.
In view of our conclusions just stated, the action must be retried. For that reason, it is unnecessary that we discuss appellant’s other specifications of error.
The judgment of the trial court is reversed and set aside and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves a ruling of the trial court fixing the period of redemption on confirmation of a sale on foreclosure of a mechanic’s lien, the appeal being by the purchasers at such sale. The question presented arises out of the following:
Plaintiff filed its petition making appropriate allegations and seeking foreclosure of its mechanic’s lien for materials furnished in the construction of a grain elevator and appurtenances upon a leasehold estate owned by the defendant, Rice. The defendants designated as B. C. Christopher & Co. answered, making certain admissions and denials, and alleging its interest in the elevator and appurtenances by reason of notes executed to it by the defendant Rice and secured by chattel mortgages on the elevator and appurtenances. Rice made no defense. Apparently at the trial there was not a great deal of controversy. The trial court rendered judgment in favor of plaintiff and against Rice for $406.65, and that the judgment was a first lien on the described leasehold and appurtenances, and that defendant B. C. Christopher & Co. have judgment against defendant Rice for $2,221.22, and that judgment was a second lien on the above-described property, and that B. C. Christopher was • entitled to another judgment for $117.44, which was a third lien. It was further ordered that if the judgments were not paid within five days the following described property: “One ironclad grain elevator, together with all appliances, equipment and appurtenances thereunto appertaining and being located upon the leased premises in Elm-dale,” etc., be advertised and sold as provided by law for the satisfaction of said liens, the proceeds to be applied as specified in the judgment. Thereafter an order of sale was issued, containing recitals as to the judgment and directing sale of the property as above described, etc. Notice was duly published and the sale was held. The sheriff’s return showed he received the order of sale on March 11, 1940, and on March 13, 1940, caused notice to be published in a certain newspaper that he would offer the property for sale on April 15,1940, at 9 a. m. of that day, and that he caused said notice to be published in successive issues of the newspaper between the first publication and the day “I sold said personal property as herein stated,” (italics ours) and that at the time and place stated be sold “said personal property,” using the description first above quoted, to H. P. Trusler and Otto Behymer for $2,875. On the day after the sale, April 16, 1940, Rice filed a motion asking the court to fix the period of redemption at eighteen months. On April 23, 1940, plaintiffs filed a motion the sale be confirmed. On May 31, 1940, Trusler and Behymer filed their objections to the granting of any period of redemption, the reasons asserted, briefly stated, being that the property sold by the sheriff was located on lands owned by the Atchison, Topeka & Santa Fe Rly. Co., and that company had on May 15, 1940, served notice on Rice terminating the lease thirty days thereafter, and that Rice, having no interest or estate in the real estate, it was purchasers’ contention that the property involved was personal property and not subject to redemption ; that the property was of such nature it would be damaged and would deteriorate unless continuously used, occupied and cared for; that for a period of six months or more the property had been unused and uncared for and considerable damage had been done by water which was permitted to stand in the elevator, and applicants were entitled to possession for the purpose of caring for and maintaining it to protect their investment in the property; and a further reference was made as to the leasehold and the terms of the lease.
On the hearing of the motions and objections, the trial court concluded that defendant Rice was entitled to an eighteen months’ period of redemption. It may here be observed that a new term of the district court in Chase county commenced on the first Tuesday in June.
On July 21, 1940, the purchasers filed a motion asking for an order terminating the right of redemption granted Rice by the order of May 31, 1940, for the reason that the lease to Rice had been terminated and he no longer had any interest, right of possession or lease in and to the lands on which the property sold was situated, and reiterating the claim the property was personal property. In denying this motion, the trial court, among other reasons, stated the order of May 31, 1940, had become final and it was without power, at a later term, to disturb the order.
In due time the purchasers perfected an appeal from the trial court’s rulings of May 31, 1940, and July 20, 1940.
Appellants in their brief present only the question whether the property described in the pleadings and subsequent proceedings and sold at the sheriff’s sale was real or personal property. In that connection, they direct our attention to two sections of the lease from the railway company to the defendant Rice, under which Rice occupied the real estate on which the grain elevator and appurtenances were constructed. One of these sections provided the lease could be terminated by either party upon thirty days’ notice to the other, specifying the date termination should take place, following which all rights under the lease should cease. The other section provided that upon expiration or termination, the lessee should deliver up possession and should remove all improvements placed by him on the premises and if he failed for thirty days after expiration or termination, the lessor company might, at its election, either remove the improvements from; the premises at the account and sale cost of the lessee, or take and hold the improvements as its sole property. From this it is argued that the parties to the lease treated the improvements placed on the leased premises as personal property. In support of their contention, appellants direct our attention to Docking v. Frazell, 38 Kan. 420, 17 Pac. 160. Taken alone, the syllabus seems to support appellants’ contention. In that case, Pierce leased a certain lot, the lease permitting him to make improvements which he wras to remove at the end of the term. Later Pierce assigned his lease to Piquerez, who thereafter executed chattel mortgages on the improvements. Thereafter Piquerez became indebted to Christian, and later left the state. Christian brought suit on his note and caused an attachment to issue which was levied upon the improvements and lease and interest in the lot as the property of Piquerez. Judgment was ultimately rendered and the property sold as real estate. The purchaser at the sale sought to obtain possession from the tenant of Piquerez by an action in forcible entry and detainer. The trial court determined the improvements were personal property. This court said because of the fact the improvements were used as a hotel and residence, the presumption would be it was real estate, but that it was evident the owner of the land and those who owned the building on it treated it as personal property, and that one of the tests whether a building is a fixture is, — did or did not the party placing the building on the land intend to make it a permanent accession to the freehold — but that there was no question the owners of the land and those who held under the lease regarded the building at all times as personal property. If the factual situation in the action now before us were at all the same, we should unhesitatingly declare the trial court had erred in concluding that real estate, and not personal property, had been sold, and in allowing any period of redemption. It may be conceded that as between the lessor railway company and the lessee Rice, any improvements placed on the leasehold were to be treated as personal property. The action here is not between them. Here Rice, as owner of the leasehold, entered into a contract with plaintiff for the erection of improvements thereon. To protect itself, plaintiff filed its mechan ic’s lien, and ultimately brought this action to foreclose it. Our statute, G. S. 1935, 60-1401, provides that any person who shall, under contract with the owner of any piece of land, furnish materials for the erection of improvements on the land shall have a lien upon the whole of said piece of land for the amount due him, and later provisions of the statute provide for preservation of the lien, its foreclosure and for sale of the land. Under our rules for statutory construction, it is provided that the word “land” and the phrases “real estate” and “real property” include lands, tenements and heredita-ments and all rights therein and interest thereto, equitable as well as legal (G. S. 1935, 77-201, Eighth). And it has been held in this state that a leasehold interest is sufficient to support a mechanic’s lien. In Hathaway v. Davis & Rankin, 32 Kan. 693, 5 Pac. 29, it was held:
“A mechanic’s lien, or lien for materials and labor, may attach to a leasehold estate.
“A leasehold estate may include buildings, fixtures and machinery, placed upon the real estate by the tenant.
“Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises.” (Syl.)
(See Miller v. Bankers Mortgage Co., 130 Kan. 543, 287 Pac. 618, holding to the same effect, and also 40 C. J. 63 and 18 R. C. L. 886.) And the following cases recognize the rule: Lumber Co. v. Osborn, 40 Kan. 168, 19 Pac. 656; Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019; Lumber Co. v. Fretz, 51 Kan. 134, 32 Pac. 908; Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178; Pond v. Harrison, 96 Kan. 542, 152 Pac. 655; Bond v. Westine, 128 Kan. 370, 278 Pac. 12. It is clear that plaintiff was entitled to a mechanic’s lien for the materials furnished by him in the erection of the elevator on the leasehold estate, and that being so, he had the right to foreclose his lien and have the property sold if his account for materials was not sooner paid. The action proceeded to a judgment of foreclosure. No appeal was then or thereafter taken either by the defendant Rice as owner of the leasehold or by any other party to the action claiming any right in the leasehold or the improvements on it. In accordance with the judgment, an order of sale issued, a sale was had upon notice and in the manner required for the sale of real estate, and upon the sheriff’s return being made, plaintiff moved for confirmation of the sale. There were no objections to confirmation; the sole question was whether the judgment debtor, Rice, was entitled to a period of redemption. The matter is settled by our statutes. Under G. S. 1935, 60-1408, pertaining to mechanic's liens, it is provided that where judgments are rendered to enforce a lien, the real estate or other property shall be ordered to be sold as in other cases of sales of real estate, and under G. S. 1935, 60-3439, it is provided the defendant owner of any real property sold under order of sale may redeem within eighteen months of the day of sale, unless the court shall find that the lands and tenements have been abandoned or are not occupied in good faith, when the period of redemption is six months. The gist of appellants’ complaint is that the property sold was personal property and not real property. The character of the property did not change when the sale was held, and the statement of the sheriff in his return that he sold “personal property” did not alter its true character. It was real estate at all times, and appellants’ contention cannot be sustained. If, by a very liberal interpretation, it be said appellants sought to have the court fix the period of redemption at six months, it may be said there was no evidence adduced warranting any finding of abandonment or that the defendant owner was not occupying the same in good faith. There was evidence the railway company had given notice of cancellation of Rice’s lease, but when the sale was confirmed and the period of redemption fixed, the term had not expired. When the second motion was filed, the term of court had expired. But even on the hearing of that motion, there was no showing that defendant Rice was not in full possession of the property.
Appellants were purchasers at a judicial sale and bought only what the court had ordered sold. There are no equities in their favor; they bought with notice, and acquired only the interest of the judgment debtor at the time the order-of sale issued. (See Union Pac. Rld. Co. v. Huse, 127 Kan. 601, 274 Pac. 240.)
Error has not been made to appear and the ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to foreclose a real-estate mortgage on a 320-acre tract of pasture land in Sheridan county. Plaintiff prevailed and the mortgagor appeals.
The appeal is from an order sustaining plaintiff’s general demurrer to defendant’s amended answer and from the judgment of foreclosure. Plaintiff’s petition was in regular form and it is not contended it did not state a cause of action. The trial docket also indicates the demurrer to defendant’s evidence was sustained. The journal entry, notice of appeal and specifications of error indicate the demurrer to the answer was sustained as finally amended, and that the appeal is from that ruling and from the judgment.
The allegations of the answer which defendant claims constitute a defense were in substance as follows: The defendant, Shafer, and his wife, mortgagors, were represented in the transactions hereinafter to be related by the defendant, Howard C. Reed, and that Howard C. Reed was their duly constituted agent in those transactions. (The wife of the defendant, Shafer, died after the action was tried and her former husband is the only appellant.) The defendant, Howard C. Reed, and the plaintiff are brother and sister, and the defendant, Anna E. Reed, is their mother. While the mortgage was in default Howard C. Reed attempted to buy a one-half section of land from appellant. That deal was negotiated, but promptly rescinded. A few days later Reed resumed the negotiations and obtained a quitclaim deed from the mortgagors covering the two 80-acre tracts of the total 320 acres which were mortgaged. In consideration of that conveyance he paid the mortgagors $500 in cash and executed back to them a mineral deed on the same land to the extent of a 5/160th interest. The grantees of the mineral deed, the Shafers, were by the mineral conveyance given the right to redeem by the payment of any mortgage or liens on the land. As a part of the same transaction the Reeds also executed and delivered to the mortgagors a surface lease on the two eighties for a term of seven years. The value of the mineral rights acquired by the mortgagors was $50, and the value of the surface lease was $40 per year, or $280. As a part of the same transaction, and about fifteen days later, the mortgagors conveyed to the plaintiff, W. L. Setchell, by quitclaim deed, a quarter section of the same 320-acre tract of land, in consideration of $500 in cash and a mineral deed from the plaintiff back to the mortgagors of a 15/160th interest in the mineral rights. Plaintiff also as a part of the same transaction executed and delivered to the mortgagors a surface lease on that quarter section of land for a term of seven years. That mineral deed also contained a provision which permitted the grantees thereof, the Shafers, to redeem by paying any mortgage or any lien on the land. In connection with these negotiations and transactions Howard C. Reed had orally advised the defendant mortgagors “I am taking care of the mortgage, and you need not worry about it, it will never bother you.” That oral statement was made by Reed with the intention of having the mortgage released or to merge any title Reed was acquiring from the mortgagors. The defendant mortgagors relied upon such representations and the plaintiff, and the Reeds are es-topped to claim or assert that the mineral conveyances and surface leases are subject to the mortgage lien. The value of the mineral interest conveyed by plaintiff is $50. The value of the surface lease is $40 per yéar or $280.
The district court held the mortgage constituted a first, prior and paramount lien on the entire 320 acres of land. It ordered the mortgage foreclosed and gave appellant eighteen months within which to redeem.
Appellant does not stress his alleged rights under the mineral deeds which expressly provided for his right to redeem by paying the mortgage. He does contend the answer constituted a defense, at least insofar as the surface leases were concerned, and that those leases should not have been held to be subject to the mortgage. He also urges that in view of the contract with Howard C. Reed he was relieved from liability on the note. The district court did not render a personal judgment against him but rendered a judgment in rem only.
It is, of course, elementary that an oral agreement entered into prior to or contemporaneously with a written agreement is merged in the latter. (Underwood v. Sharp, 120 Kan. 250, 242 Pac. 1021; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 705, 108 P. 2d 492.) Neither the quitclaim deeds which appellant and his wife executed to the Reeds and to the plaintiff, nor the mineral deeds and surface leases which the Reeds and the plaintiff executed and delivered to appellant, contain any provision for the cancellation and release of the mortgage. As heretofore indicated, the mineral deeds in fact recognize the continued existence of the mortgage. The quitclaim deed to appellee, the mineral deed and surface lease to appellant, all constituted parts of one and the same transaction, and the instruments must be construed together. (17 C. J. S. Contracts, § 298; Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594.)
Appellant, however, insists that the terms of the oral contract upon which he relies have been fully performed. The statement is too broad. It is true the written instruments were executed and delivered, but the answer does not disclose the oral part of the alleged contract upon which appellant relies was ever performed. Appellant is now, in effect, attempting to compel the performance of that part of the alleged oral contract.
We need not, however, rest the decision upon the foregoing considerations. A careful analysis of the allegations contained in the answer discloses they do not constitute a defense to the mortgage lien. That action was predicated upon the mortgage, the validity of which is not in dispute. The answer does not contain a square-toed allegation or any other averments clearly indicating that the deeds in question and the surface leases were executed and delivered in consideration of an agreement to cancel and release the mortgage debt. We might also say that appellant’s own testimony disclosed the oral agreement was only to the effect that the mortgage would be taken care of by Howard C. Reed if oil was produced from a well then being drilled in the neighborhood. Oil was not produced therefrom. The journal entry of judgment, in addition to reciting that the demurrer was sustained to defendant’s amended answer, might also have disclosed the fact that the trial court had previously sustained plaintiff’s demurrer to defendant’s evidence. That the trial court had sustained the demurrer to the evidence is revealed by the trial docket and is not disputed now. Manifestly, we cannot reverse the ruling on the demurrer or the judgment upon any error urged here.
The answer contained some reference to the merger of the mortgage and the fee title. The contention of merger is not briefed on appeal. On the subject of merger of titles, see Bank v. Bank, 103 Kan. 865, 176 Pac. 658, and Heston v. Finley, 118 Kan. 717, 236 Pac. 841.
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The opinion of the court was delivered by
Hoch, J.:
This was an action to require specific performance of a contract to purchase an oil royalty interest. Plaintiffs prevailed, and defendant appeals.
The contract covered two separated tracts. Payment was made as to one tract but refused on the second upon the ground of unreasonable delay in furnishing a good title thereto. Appellees contended that the contract was indivisible, and that under the facts as hereinafter stated appellant was estopped from refusing payment on account of the delay.
The contract reads as follows:
“This agreement made and entered into this 8th day of March, 1938, by and between Dale Inslee and Lulu Inslee, party of the first part, and Tom Palmer, party of the second part.
“And whereas, partjr of the first part agrees to sell and party of the second part agrees to buy the following described royalty acres as follows: The south one-half of the southeast quarter of sec. 17 and the northwest quarter of the southeast sec. 17 and the northeast quarter of the northeast quarter of sec. 20, and the southeast quarter of the northeast quarter and the north one-half of the southeast quarter of sec. 19, all in twp. 31, range 10.
“Subject to the approval of title by party of the second part attorneys an undivided one-half interest in 280 acres totaling 140 royalty acres for the sum of 81,750 to be deposited with the Sharon Valley State Bank, Sharon, Kan., and Ralph Owen as escrow agent, that he be instructed to deliver to party of the first part on acceptance of approval of title by party of the second part and deliver the party of the first part all moneys deposited in the above mentioned bank and held in escrow under this agreement. Party of the first part has 30 days from this date to perfect any requirements on these titles or a reasonable time thereafter.
“Signed by parties of the first and second part and accepted by Ralph Owen as escrow agent.”
In compliance with the contract, the Inslees promptly delivered the abstracts of title to Owen, the escrow agent, at the bank in Sharon, and Palmer deposited with him the $1,750. It will be noted that the contract covered the sale of one-half the royalty on a total of 280 acres, or, as it is referred to, “140 royalty acres.” On account of diversity of ownership, which need not here be described, two separate deeds were executed and placed in escrow, one affecting the 160-acre tract and the other the 120 acres. About the middle of March the abstracts were delivered, at the bank, to Ben J. Bonner, Jr., of the law firm of Bonner, Bonner, & Bonner, for examination. Upon his report to Palmer that the title to the 160 acres was satisfactory, Palmer directed the bank to pay $1,000 to the Inslees, which was done the latter part of March. Title to the 120-acre tract having been found defective, a quiet-title action was begun in May, 1938; but final judgment was not taken until April, 1939. After judgment, demand was made for the balance of $750 and upon refusal this action was brought. The defendant Palmer, in his answer, alleged that at the time the contract was executed there was considerable oil leasing and drilling activity in the vicinity of plaintiffs’ land, and that the value of the royalty interest was of a highly speculative and fluctuating character, all of which was known by the plaintiffs; that plaintiffs did not furnish a good and merchantable title within thirty days or within “a reasonable time thereafter”; that he did not authorize the quiet-title action and did not employ any attorneys to participate for him in such action; that long prior to completion of the action he advised the plaintiffs that the contract had been terminated on account of the delay in furnishing good title; that within about ninety days after the execution of the contract, oil activities in the vicinity ceased and that the royalty interest had become valueless. In their reply, plaintiffs denied generally the allegations of the answer, and alleged that the attorneys foi defendant Palmer, who had made the quiet-title requirement, approved a draft of the petition, the affidavit for service by publication and the publication notice, and the journal entry of judgment finally entered in the action to quiet the title.
The trial court made specific findings of fact and conclusions of law which need not be narrated in full. In addition to a narrative recital of unquestioned facts, the court found that Palmer was an officer of the Palmer Oil Corporation, that sometime prior to the execution of the instant contract, the Palmer Oil Corporation had taken oil and gas leases upon the lands in question, and that about March 1, 1938, the company had commenced a test well for oil and gas near the Inslee land, which well was completed as a dry hole about May 10, 1938; that Palmer individually acquired oil and gas interests for speculation; that the Bonner law firm were examining attorneys for the company; that Palmer relied upon their opinion as to the title and that on March 23 or 24, 1938, he accompanied Ben Bonner to the Inslee home where the title opinions were delivered to them and the bringing of a quiet-title action was discussed, and that on March 26, 1938, the Bonner firm rendered a supplementary opinion to Charles R. Inslee recommending that such an action be brought; that the plaintiffs at first negotiated with the Bonner firm to bring the action, but later employed attorneys selected by plaintiffs’ grantor (presumably because of the warranty clause in the deed to the Inslees); that although the action, begun on May 17, 1938, was actively prosecuted, judgment was not rendered until April 17, 1939; that “the Inslees were at all times proceeding diligently and in good faith to perfect said title at the earliest possible date, and the Bonner firm was at all times kept advised of the progress of said proceedings, and pleadings and journal entries were submitted to them for approval before filing;” that in June, 1938, Palmer called the escrow agent by phone and asked him to apply the remaining $750 on certain indebtedness owing by him, as he could not then accept the conveyance, but that the bank advised him that the Inslees were quieting title and expecting the contract to be carried out, and that he could not so dispose of the money without their consent. The court further found that there was no persuasive evidence that the Inslees were ever directly advised of such conversation; that Palmer, being fully aware that a quiet-title action would be necessary, encouraged the Inslees to bring such action and to continue its prosecution without any direct notice on his part that he was rescinding the contract, conditionally, in whole or in part, until long after the quiet-title action had been completed; that Palmer never offered to place plaintiffs in status quo or to reconvey the interest in the 160-acre tract. The court found,- as conclusions of law, that the contract was entire and indivisible, and that by receipt and acceptance of one of the mineral deeds, after full knowledge of the condition of the title of all the land, Palmer was bound thereby; that by his acts and conduct, and that of those entrusted with his affairs, he was estopped from rescinding the contract because of delay in furnishing good title. Plaintiffs were given judgment for $750 with interest.
Before proceeding to the instant issues it may be well to make clear that we are not here presented with a controversy as to whether the contract related to a one-half interest in the “royalty” that might accrue under the leases on the land, or to a one-half interest in the minerals in place. The petition alleged that the contract called for the sale of certain “royalty interests” and appellees have so treated it in their brief and argument. Appellant, on the other hand, refers to it as “the mineral or royalty interest,” leaving it un certain as to which he really considered it. The conveyances themselves are not shown in the record and apparently were not before the trial court. In any event, it makes no difference in determining the issues here whether the parties contemplated conveyance by mineral deed of an individual one-half interest in the minerals in place, or the sale of an undivided one-half of the royalty that might accrue from production under the leases on the land. The contract uses the term “royalty acres.” While the use of the term to designate a royalty interest has been criticized, and perhaps justly so, it is frequently used to describe an undivided interest in royalty accruing from production computed on an acre basis (see Glassmire, Oil and Gas Leases and Royalties, 1935 Ed., sec. 83, p. 264). We shall, therefore, refer to the contract — for narrative purposes only — as one for the sale of a royalty interest. No terms herein used, however, are intended to indicate any determination as to the exact nature of the interests to be conveyed under the contract, as that question is not at issue.
The first question is whether the contract by its terms was separable or divisible, and if not, whether the plaintiffs made it so by their acceptance of the payment of $1,000 for the royalty interest on the 160-acre tract. We have no hesitancy whatever in saying that the contract, by its terms, was entire and indivisible. The fact that the land described in the contract is situated in different sections is immaterial. The agreement was to sell one-half the royalty accruing on the combined acres described. The payment was to be a lump sum of $1,750. Had the Inslees, subsequent to the execution of the agreement, advised Palmer that they had decided to sell an interest on only one or two of the parcels described in the contract, unquestionably Palmer would have been entitled to regard the whole contract rescinded. He had contracted for “140 royalty acres” and could not have been compelled to accept less. (See 3 Williston on Contracts, Rev. ed., § 861 et seq.; 13 C. J. 563.)
It is equally clear that the agreement was not made divisible by the acceptance of the $1,000. Such acceptance is in no way inconsistent with the terms of the contract and there is nothing in the record to indicate that it constituted or was construed by the parties as a modification of the terms.
The only remaining important question is whether the record supports the findings of the trial court that by his acts and conduct, and the acts and conduct of those entrusted with handling *his affairs, the appellant is estopped to assert that the appellees failed to per- feet the title to the 120-acre tract within a reasonable time. We think the findings and conclusions are amply supported, and it is unnecessary to recite in detail the evidence pertinent to the question. There was evidence that appellant relied upon the report of attorney Bonner — who, he says, was in the employ of the Palmer Oil Corporation — that he knew that the quiet-title action was necessary, that appellees instituted the action in compliance with the title requirement by Bonner, that the Bonner firm was kept in touch with the proceedings from the start, and approved papers in the case, including approval of the final journal entry, and that the man whom appellant had designated as grantee to receive the conveyance was present in court and participated in a compromise adjustment in connection with the quiet-title action; that it was two or three months after the well — which was being drilled near the land in question when the contract was executed — came in a dry hole that appellant asked the escrow agent to take out the balance remaining in the escrow fund.
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The opinion of the court was delivered by
Smith, J.:
This was an action on a promissory note. Judgment was for the plaintiff. Defendant appeals. '
The petition alleged that on or about May 26, 1933, defendant executed a promissory note payable to plaintiff in the amount of $1,000 due six months thereafter; that the note was past due and had not been paid. Judgment was asked for the amount of the note, with interest.
The answer of defendant admitted the execution of the note but denied that it was for a valuable consideration and that there was due plaintiff from the defendant any sum at all. The answer then alleged that the note was entirely without consideration, and set out the following circumstances under which the note was executed: Father .Verdan died and his will was admitted to probate in Crawford county; that the defendant was made executrix of the will; that she employed the plaintiff to assist her as attorney for the executrix; that Father Yerdan had been the owner of certain bonds of the Terrill Bond and Mortgage Company of the value of $21,000; that he had exchanged these bonds for stock in the company, that plaintiff had appraised the stock as worthless and as attorney for the defendant as executrix of the estate procured the return of these bonds which were worthless in exchange for the stock; that on May 26, 1933, she paid plaintiff $200 and executed the note sued on; that she did not realize that what was being done was for her as executrix of the will and not individuallly; that whatever she owed the plaintiff was as executrix, not as an individual; that when the estate was closed plaintiff was allowed $250 for his services to the estate; that this $250 was more than adequate for all the services of plaintiff in handling the personal estate of Father Verdan.
For further defense, the answer alleged that defendant was seventy-three years old; had had no business experience; that plaintiff was a bright young lawyer and married to a niece of defendant and defendant reposed great confidence in plaintiff; that Father Verdan made defendant the principal beneficiary under his will; that the inventory of the estate prepared by plaintiff showed it to consist of real estate of the value of $7,550 and personal property of the value of $282.45; that Father Verdan held certain stocks of the Terrill Bond and Mortgage Company, which he had received for certain bonds in such company, of the face value of $21,000; that these stocks were worthless; that on the advice of plaintiff the defendant permitted plaintiff to procure the return of these bonds; that plaintiff did this by writing letters and without bringing any action; that these bonds were worthless and plaintiff knew, or should have known, they were of little value; that by reason of the relationship existing between plaintiff and defendant and defendant’s lack of understanding of what was a reasonable charge for such work, she paid plaintiff $200 cash and gave him the note for $1,000 sued on in this action. An allegation was made as to a partition suit which had been brought by plaintiff for the benefit of defendant, but this allegation was stricken out on the motion of plaintiff. Later defendant amended her answer to allege that she was induced by a mutual friend to hire the plaintiff; that the only reason she employed plaintiff was because he had married her niece, by which plaintiff became a part of defendant’s family; that she was unable to state when she discovered the bonds were worthless other than to state that she had trusted the matter to plaintiff, and that she did not know that the bonds were worthless at the time of the execution of the note sued on; that defendant was unable to state when plaintiff discovered that the bonds were of little value.
For reply, the plaintiff alleged that defendant had at all times admitted to the plaintiff that the note sued on in this action was a valid obligation; that she had promised at various times to pay it' and that while plaintiff denied that there was any fraud in the inception of the note, if there had been fraud the defendant by her conduct and her promise to pay the note made after she had discovered the fraud had thereby waived it.
There are some facts about which there is very little dispute. The defendant in this action had been the housekeeper for Father Yerdan, a priest in Crawford county, for about fifty years. He had extensive dealings with a corporation known as the Terrill Bond and Mortgage Company, an Illinois corporation. Up to a short time before he died he had owned $21,000 of the bonds of this company. The interest on these bonds had been paid regularly semiannually, and defendant had also owned some bonds of the same company. A year or two before he died they had exchanged these bonds for stock in a new company of the same name, a proposed corporation. Defendant and Father Verdan had also traded some real estate owned by them in Illinois for stock. Just a few months before he died he and this defendant both made up their minds that they would rather have bonds than stock. Nothing was done about it, however, until after the death of Father Yerdan. There is no dispute but that after the death of Father Verdan defendant as executrix of the estate of Father Verdan — of which she was the chief beneficiary — did employ plaintiff, who had married her niece, to be her lawyer and also to bring about the exchange of the stock held by her. The dispute in the case centers about the question of whether the employment as attorney for the executrix was a transaction separate from her employment of him personally, and whether he knew the bonds were of doubtful value at the time the note was signed. This will be discussed later in this opinion.
All parties admit that plaintiff secured the exchange of bonds for the stock and brought the bonds to defendant in person and delivered them to her. At that time the matter of compensation was brought up and plaintiff told defendant that he would charge five percent of the gross amount of the $22,000 worth of bonds, which would be $1,200. After some talk she gave him $200 and the note for $1,000, which is in controversy here.
The trial court made extensive findings of fact about as they have been detailed here. The court then found that the plaintiff never did hold out that he was a financial expert, but from time to time gave defendant advice with reference to the exchange of stock for bonds. The court also found that the plaintiff at all times treated and considered the recovery of the bonds as a transaction separate from the affairs of the estate, and that the plaintiff, did not know of the value of the bonds when he recovered them for defendant, or when the note sued on was given; that the probate court of Craw ford county allowed Comer $250 as attorney’s fees for his services in the handling of the estate, and that sum was paid him by the defendant and was the only attorney’s fee allowed by the court, and that at the time of the allowance of this fee the probate judge had no knowledge of the $200 paid the plaintiff at the time the note was given. The court also found plaintiff was acting in good faith throughout the entire transaction. The court made the following conclusions of law:
“1. At the time the note in question was given, the parties entered into a valid contract for the payment of services theretofore rendered and completed.
“2. That the defendant was personally liable to compensate the plaintiff for the services so rendered.
“3. The defendant has failed to show facts sufficient to constitute want of consideration, failure or partial failure of consideration, or any other defense or defenses in this action.
“4. That the plaintiff should recover judgment against the defendant in the amount of SI,000 with interest thereon at the rate of six percent per annum from the 26th day of November, 1933, on the note sued on herein.”
Judgment was entered in accordance with the above findings.
The defendant filed a motion for judgment on the findings and to set aside and add to certain findings.
Counsel for defendant filed a motion in which he set out certain statements which he alleged were made by the trial court while the court had the case under consideration. Based on the statements in this motion, one of the arguments for a new trial was that the court was influenced by and rendered judgment by reason of matters other than those pertaining to facts involved in the case. This motion was overruled.
The first argument of defendant is that the court erred in giving plaintiff judgment on the findings of fact. The theory of this argument is that there was no consideration for the note because plaintiff had been paid $800 already for his services and if defendant should be compelled to pay this note that would make an unconscionable fee. In the first place, the above is hardly a correct statement. The plaintiff did receive $800 from defendant, but $350 of that amount was for a partition suit he brought for defendant, reference to which was stricken from this case. The probate court allowed him $250 for his services and $200 was part of the fee fixed by the parties when the note here sued on was given. The fee charged was based on five percent of the face value of the bonds recovered. There was evidence from which the trial court was justified in finding that neither plaintiff nor defendant knew that the bonds were not worth face value at that time. The parties had a discussion about what was done and the negotiations were carried on in the presence of a brother of defendant. All parties stated the opinion at that time that the contract pursuant to which the note was given was a fair one. If the bonds had turned out to be worth their face value there would have been no complaint about the note.
Defendant next argues that the bonds were recovered by plaintiff as attorney for the executor of the estate and that when the probate court found that his services were worth $250 that finding should have fixed the value of his services, and plaintiff was not entitled to any more. The trouble about that argument is that the court found the plaintiff treated the matter of the recovery of the bonds as a separate transaction from the affairs of the estate. There was evidence from which the trial court would have been justified in finding that both parties regarded the transaction with reference to the bonds as a separate transaction. Furthermore, the trial court found that the probate judge did not know about the work done by plaintiff with reference to the bonds at the time he fixed the fee of $250.
Defendant next argues that her motion for a new trial should have been sustained because the trial court gave judgment on facts extraneous to the record. Counsel does no more than mention this in the brief, but we presume that he refers to an affidavit he made as to statements made by the trial judge while the case was under advisement. We have examined this affidavit and the statement made by the trial judge with reference to it. It would add nothing to this opinion to set out those statements here. Suffice it to say that we see nothing in them to indicate that the court considered any fact that was not in the record. '
Defendant argues next that the trial court erred in refusing to make the following findings:
“The bonds of The Terrill Bond and Mortgage Company were of no value at the time of the death of F. M. Verdan and have been of no value since that time.
“That the plaintiff investigated the financial condition of The Terrill Bond and Mortgage Company before he filed the inventory in the estate of F. M. Verdan and should have discovered that said bonds were of no value.
“That the cash compensation the plaintiff has received was adequate for the services performed.”
The argument is that the evidence compelled these findings. This argument is not good. There were circumstances which might have justified such findings. There were also circumstances which might have justified a finding the other way. It was the duty of the trial court to weigh these circumstances and to draw reasonable inferences from them. This court cannot consider these surrounding facts and circumstances and hold that the trial court should have reached a different conclusion. (See Derby Oil Co. v. Bell, 134 Kan. 489, 7 P. 2d 39.)
Defendant next argues that the trial court erred in making the following finding:
“That the plaintiff was acting in good faith throughout the entire transaction.”
There were circumstances upon which the trial court could have made a finding either way on that question, but we cannot say the evidence compelled that such a finding be not made.
After all is said and done, the real complaint in this case seems to be that the defendant thought the bonds were worth their face value when she signed this note. Had they been worth that there would probably never have been any lawsuit here. It turned out that they were not worth their face value, but the record does not disclose that plaintiff knew any more about the value of the bonds when the note was given than the defendant knew. There is hardly a law point in the case.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
HoCH, J.:
This proceeding was brought under the provisions of the Kansas workmen’s compensation act. The claimant was a railroad employee. The railway company, respondent, appeals from a judgment of the district court confirming an award made by the Kansas workmen’s compensation commissioner.
The principal contention urged by the appellants is that at the time of the accident the injured employee was engaged in interstate commerce within the purview of the federal employers’ liability act, and that being within the provisions of the federal act the Kansas workmen’s compensation commissioner had no jurisdiction in the matter. The appellants also contend that the award was arbitrary, excessive and unsupported by the evidence.
John 0. Krouse had been employed by the Chicago, Rock Island and Pacific Railway Company for several years as an “engine herder.” His duties were to look after switch engines in service, to keep the fire going, the steam pressure up, the tanks and boilers supplied with water, the engines oiled and cleaned — in short, to keep them in stand-by condition ready to be taken over by the operating crew. On the morning of April 17, 1938, he was performing his duties in connection with engine number 301 in the terminal yards of the company in Armourdale, Wyandotte county, Kansas, the engine having been placed on the track near a water crane for that purpose while awaiting the operating crew to take over. He had put water in the tank of the engine and had climbed down to the cab. Fie then started to come down the steps of the locomotive when he slipped, fell to the ground and fractured the heel bone of his left foot. The injury required medical and hospital attention; the foot was placed in a cast and it was not until August or September that he was released for light work by the company physician. There was testimony that even then he was not able to continue his work, being unable to stand on the injured foot for very long on account of the soreness and pain.
Claim for compensation was filed with the Kansas workmen’s compensation commissioner on February 25,1939. The parties stipulated that the relation of employer and employee existed; that the respondent is a self-insurer; that the claimant met with an accidental injury in the course of his employment; that medical service' was furnished to the claimant by respondent, but that no compensation had been paid. It was also stipulated that the questions at issue were the weekly wage of the claimant; the number of working days per week; whether the respondent had notice of the injury; whether claim for compensation was made as required by law; whether the parties are governed by the act; the extent of the claimant’s injury and disability and the amount, if any, to which he may be entitled.
Hearing was held before the compensation commissioner on March 21, 1939. At the conclusion of the evidence the respondent moved to dismiss the proceedings on the ground that the claimant and respondent were engaged in interstate commerce at the time of the accident, and that therefore claimant’s remedy, if any, was under the federal employers’ liability act.
The compensation commissioner made an award in favor of the claimant, based upon a finding that he had suffered “a disability which is permanent and total,” entitling him to four hundred fifteen weeks’ compensation at the rate of $14.45 a week. The respondent was also directed to “tender to, and if accepted, furnish to claimant such additional medical treatments by a competent orthopedic surgeon as will aid in curing and relieving claimant from the effects of his injury, respondent’s liability for all medical and hospital services rendered not to exceed five hundred dollars.”
In addition to narration of facts and reference to portions of the testimony, the compensation commissioner in his decision discussed at some length the question of whether claimant was engaged in interstate commerce at the time of the accident, saying in part:
“At the time John 0. Krouse was injured the engine was standing on the siding or track near the roundhouse of respondent company in Kansas City, Kansas. At that particular time it was not engaged in switching cars. No crew had charge of the engine. In fact, the only person on the engine at the time was the claimant herein, and certainly the engine could hardly of itself be engaged in the business of switching cars in either interstate or intrastate traffic. The engine was at the time of the accident standing perfectly still and could not in the ordinary course of events move except by the aid of some human agency, and this workman, while refueling or filling the water tank on the engine, slipped and fell. It is the judgment of the commissioner that the engine at this time was not engaged in either interstate or intrastate commerce — in fact, that the engine itself was doing nothing, but awaiting action upon the part of some human agency before it could become a moving factor.”
Notice of appeal to the district court was filed by respondent on May 13,1939, and on June 22, 1940, the district court entered judgment approving and adopting the award and all findings of fact and conclusions made by the compensation commissioner. From which judgment the instant appeal was taken.
Several preliminary propositions need to be stated before'proceeding to the main issue. The first one is that it is not necessary that a railroad employee’s work shall be exclusively related to or connected with interstate commerce to bring him within the federal act. If a substantial part of his work is in interstate commerce, within the meaning of the federal act, he is held to be under that act even though part of the traffic affected by his labors is intrastate in character. (Erie R. R. Co. v. Winfield, 244 U. S. 170, 37 Sup. Ct. 546, 61 L. Ed. 1057.) However, the question of whether he is under the federal act depends upon the nature of his work at the time the accident occurs and not upon the nature of the work which he generally or usually performs. (Erie Railroad Company v. Welch, 242 U. S. 303, 37 Sup. Ct. 116, 61 L. Ed. 319; Ill. Cent. R. R. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051; Middleton v. Southern Pac. Co., 61 F. 2d 929.)
Another proposition, well established, is that a railroad employee whose work at the time of an accident brings him within the provisions of the federal employers’ liability act is not then subject to state workmen’s compensation laws. In Natney v. Railway Co., 102 Kan. 293, 169 Pac. 1150, this court, following the rule laid down by the United States supreme court in New York Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, held that liabilities of interstate carriers to make compensation for personal injuries to employees engaged in interstate commerce are regulated both inclusively and exclusively by the federal employers’ liability act and that no field remains for state legislation on this subject “even in respect of injuries occurring without fault, as to which the federal act provides no remedy.” (See, also, G. S. 1935, 44-506.)
It follows that if the appellee at the time of the accident was performing work connected with the operation of an instrumentality of interstate commerce or so closely related thereto as to be an essential part of it, he was subject to the federal act and not to the Kansas workmen’s compensation act.
Engine number 301 was a switch engine of the class used for doing the heaviest work and was employed in the Armourdale yard where many trains are made up for movement both east, northwest and southwest. On April 16, the day before the accident, it went into service at three o’clock in the afternoon and continued in active service until seven o’clock a. m. April 17. During that sixteen-hour period it was exclusively employed in making up trains for movement to points beyond Kansas in Missouri, Iowa, and other states. At seven o’clock in the morning it was taken into the roundhouse for inspection, in accordance with the regular procedure for inspection, fueling, watering and sanding. It is not contended that any repairs were required upon it; it was in the roundhouse for the required inspection and servicing about an hour and a half. About eight-thirty a. m. it was brought out and placed on what is called an outbound engine track which is located near the roundhouse and where engines are placed in charge of engine herders awaiting the engine crews that are to take them over. At about twelve-thirty p. m. engine number 301 was taken over by the crew and the remainder of the day was employed in making up trains carrying freight into Colorado, Texas, and other states, as well as freight for delivery within Kansas.
At this point there is a disagreement between the appellants and appellee as to whether at the time appellee was performing his duties engine number 301 had been specifically assigned to the work actually performed later during the day. After careful examination of the record we think that appellants’ contention that the engine had beén specifically assigned is clearly supported by the testimony and that there is no substantial testimony to the contrary. The appellee calls attention to answers made by Reeves, trainmaster, who had supervision of train movements and locomotive power in the Ar-mourdale yard as follows: “Q. At the time that engine was placed on the track at that point next to the roundhouse office, was there a definite assignment of that engine to a particular job? A. Yes. That engine was brought out there and assigned to that change when we made it at noon. Q. At 12:30? A. Between 12:30 and 1:00. At this time we turned it in at 12:30 and- got it out at 1 o’clock.” It is argued that this testimony shows that engine number 301 was not actually assigned to any particular work until 12:30 or 1 o’clock — several hours after the accident. That interpretation is plainly negatived by the remainder of Reeves’ testimony. It is clear that he meant that the “change” and not the assignment was made at noon. The preceding question was: “At the time that engine was placed on the track at that point next to the roundhouse office was there a definite assignment of that engine to a particular job?” To which the witness answered: “Yes.” Moreover, further questions and answers by Reeves during the same examination were as follows:
“Q. At the time that engine was brought out from the roundhouse prior to 8:30 a. m., April 17, after having been inspected and sanded and fueled for Mr. Krouse to perform his duties in keeping up the steam, watering and so forth, was that engine at that time definitely assigned to particular work? A. To that particular job; yes, sir. And the engine was out there waiting for this west train yard engine crew.
“Q. The engine was waiting for the crew to take over? A. It was serviced and all ready for us to come over and get it, and assigned to that particular job.
“Q. Under particular orders by whom ? A. Byrne.
“Q. Did I understand you right to say they don’t, without orders from you, ordinarily take an engine that has that assignment [eastbound trains] and have it make up westbound trains? A. No, I don’t think you understand what I said. This engine from the assigned period of 3 p. m. on the 16th to 7 a. m. on the 17th, a 16-hour period, was assigned to make up eastbound and northbound trains. Then he turned in to the roundhouse — .
“Q. Just before he turned in to the roundhouse: Did you at that time know what it was to do the following period? A. Yes. If there was no defects that would take the engine out of service, I knew right what the engine was going to do.
“Q. And had you already instructed the crews as to what they were to do with that engine? A. Yes, sir.”
The appellee also stresses Reeves’ testimony to the effect that if anything radically wrong had been discovered with engine number 301 while it was awaiting the crew another engine would have been substituted, and contends that this indicates that no definite assignment had been made. We cannot agree with that-conclusion. The fact that the engine would be replaced by another if anything radically wrong with it developed while Krouse was in charge in no way alters the fact that its assignment to a definite task had been made and that it was in a stand-by condition awaiting the crew. Nothing wrong developed and the appellee testified that just before the accident he had done the last thing necessary for the engine to continue its work. In due course the crew took over the engine for the work to which it had been assigned. The work actually then performed was largely interstate in character.
The provisions of the federal employers’ liability act, hereinafter called the federal act, pertinent to our inquiry, reads as follows:
“Every common earner by railroad while engaging in commerce between any of the several states or territories . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. ...” (45 U. S. C. A., § 51.)
It is well to make clear that the issue here is not whether ap-pellee’s employment, at the time of the injury, might be regarded as a part of “interstate commerce,” broadly considered. If that were the question the answer could hardly be considered difficult. Certainly many activities, far less obviously a part of “interstate commerce,” have been declared subject to federal regulation under the steadily expanding interpretations of the commerce clause of the federal constitution. But we are not here inquiring as to how far congress might have gone in placing various employments by interstate carriers under an employers’ liability law, but are only concerned as to how far in fact it did go in that direction in this particular enactment; more specifically, whether it went far enough to bring appellee’s employment at the time of the accident within the federal act. By judicial interpretations it has been well established that the act does not include all carrier activities.
Perhaps the leading early case defining the scope of the federal act is Shanks v. Del. Lack. & West. R. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, wherein the supreme court said:
“Having in mind the nature and usual course of the business to which the act relates and the evident purpose of Congress in adopting the act, we think it speaks of interstate commerce, not in a technical legal sense, but in a practical one better suited to the occasion . . . and that the true test of employment in such commerce in the sense intended is, Was the employee, at the time of the injury, engaged in interstate transportation,' or in work so closely related to it as to be practically a part of it?” (Italics ours.) (p. 558.)
It will be noted that in stating the test to be applied the court used the words “interstate transportation” rather than the words “interstate commerce.” The test so stated in the Shanks case was repeated soon afterwards in Chi. Burlington & Q. R. R. Co. v. Har rington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941. The significance of the use of the word “transportation” instead of the word “commerce” has been recognized in more than one subsequent decision. In Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74, 78, 52 Sup. Ct. 59, 76 L. Ed. 173, the United States supreme court said, in referring to the Shanks case, supra:
“It will be observed that the word used in defining the test is ‘transportation,’ not the word ‘commerce.’ The two words were not regarded as interchangeable, but as conveying different meanings. Commerce covers the whole field of which transportation is only a part; and the word of narrower signification was chosen understanding^ and deliberately as the appropriate term.”
In Chicago & E. I. R. Co. v. Commission, 284 U. S. 296, 52 Sup. Ct. 151, 76 L. Ed. 304, the cases of Erie R. Co. v. Collins, 253 U. S. 77, 40 Sup. Ct. 450, 64 L. Ed. 790, and Erie R. Co. v. Szary, 253 U. S. 86, 40 Sup. Ct. 454, 64 L. Ed. 794, were specifically overruled with the comment that in those cases the rule of the Shanks and Harrington cases, supra, had not been followed — the words “interstate commerce” having been inadvertently substituted in those two cases for the words “interstate transportation.”
It may be noted at this point that as to federal statutes the interpretation placed upon them by federal courts, and particularly by the United States supreme court, is controlling upon state courts. (Schaefer v. Lowden, 147 Kan. 520, 78 P. 2d 48, and cases there cited.)
The cases dealing with the instant question are well-nigh numberless. They deal with all sorts of situations. Appellants and appellee have discussed a large number of them in well-prepared and helpful briefs. All the cases cited, and many others have been here examined. It is obviously impossible to harmonize all the decisions, but we find little inconsistency in the later decisions and it seems evident where the very great weight of authority rests. Two general propositions clearly emerge. The first proposition is that the application of the rule stated in the Shanks case, supra, has tended to place in a class outside the act those activities or labors which are not directly and intimately connected with movement of traffic, with transportation per se, and to place in a class within the act those labors which are so connected. With employments falling in the first class we are not now concerned. The employment which most obviously falls within the second class is employment in the operation of trains, the movement of cars and engines. Many other kinds of employment such as the work of train dispatchers, operation of signal devices, etc., are also readily classified in the second class.
The second proposition, which contributes to the harmonizing of the decisions, is that employment in connection with a car, or an engine, or other instrumentality directly concerned in movement, in transportation, or closely related thereto, is held to be within the federal act if the car or engine is either actually operating interstate or handling interstate business, or is only temporarily removed therefrom for routine inspection or “running repairs” or servicing, but is held to be outside the act if the car or engine has been taken out of active service for substantial repairs or for other purpose.
It would unduly prolong this opinion to discuss all the cases cited in the briefs. We consider first some of the cases upon which the appellee mainly relies.
In Chicago & E. I. R. Co. v. Commission, supra, the employee was oiling a motor used in supplying power for hoisting coal into a chute, the coal to be used as needed by engines engaged principally but not entirely in moving interstate freight. Applying the test of the Shanks and Harrington cases, supra, the court held that the employee’s work was not closely enough related to actual transportation to bring it within the federal act.
In N. Y., N. H. & H. R. Co. v. Bezue, 284 U. S. 415, 52 Sup. Ct. 205, 76 L. Ed. 370, decided January 25, 1932, the supreme court held outside the act an employee who was helping make repairs on a locomotive, and the basis for the decision was that the locomotive was in the shop for its monthly boiler wash and for various repairs taking twelve days to perform. Many of the engine parts had been removed and the injury took place while the employee was helping to remove the main driving wheels from a lathe and move them into place for reinstallation. The court stated that the question of whether respondent was within the act must be decided not by reference to the kind of plant in which he was working “but by determining whether the locomotive in question was, at the time of the accident, in use in interstate transportation or had been taken out of it. The length of the period during which the locomotive was withdrawn from service and the extent of the repairs bring the case within the principle announced in Industrial Accident Comm. v. Davis, supra, and Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, stamp the engine as no longer an instrumentality of or intimately connected with interstate activity, and distinguish such cases as New York Cent. R Co. v. Marcone, 281 U. S. 345, where the injured employee was oiling a locomotive which had shortly before entered the roundhouse after completing an interstate run.” In the Marcone case, referred to above, the employee was held to be within the act although the active service of the engine had been temporarily interrupted for servicing in the roundhouse.
For a like reason — that the engine or car had been withdrawn from active service in order to undergo substantial repairs — the employment was held outside the act in Minneapolis & St. L. R. Co. v. Winters, supra; Toussaint v. Railway Co., 340 Mo. 578, 104 S. W. (2d) 263; Hines v. Industrial Acc. Com., 184 Cal. 1, 192 Pac. 859; Davis v. Baltimore & O. R. Co., 10 F. 2d 140. The distinction between cars and engines undergoing an “interruption of actual use” for ordinary or “running” repairs and held to be under the federal act, and a “withdrawal from service” for general or “shop” repairs and held not under the act, is clearly stated in Industrial Accident Co. v. Davis, supra, with numerous supporting cases cited. In the one case there is merely an interruption of service, while in the other there is a completed service, a withdrawal from service.
Other cases cited by appellee are readily distinguishable from the case at bar under the rule emphasized in Chicago & E. I. R. Co. v. Commission, supra — employment not closely connected with actual transportation. In Raymond v. Chi., Mil. & St. P. Ry. Co., 243 U. S. 43, 37 Sup. Ct. 268, 61 L. Ed. 583, the workman was helping bore a tunnel to be used by the railroad; in Louisville & N. R. Co. v. Brittain, 93 F. 2d 159, a repairman was injured while hauling timber to repair a station; in Pennsylvania R. Co. v. Manning, 62 F. 2d 293, a workman was inspecting a motor used to supply power to a crane which loaded and unloaded cars; in Chicago & N. W. R. Co. v. Bolle, supra, the laborer was employed to fire a stationary engine to generate steam to heat a depot and other buildings, and the court said that “his duty ended when he had produced a supply of steam” and that “what'he produced was not used or intended to be used, directly or indirectly, in the transportation of anything.” (Italics ours.)
The Kansas cases cited by appellee are quite in line with the federal cases, supra. In Defenbaugh v. Railroad Co., 102 Kan. 569, 171 Pac. 647, the car upon which the workman was making repairs had been inspected after an interstate trip, found out of order, and “was entirely out of commercial service and was not used for any commercial purpose” and therefore, not within the federal act, citing the Winters case, supra. In Begley v. Missouri P. R. Co., 128 Kan., 790, 280 Pac. 902, the workman was injured while lifting a discarded rail which had been left on the side of an embankment near a switch track. Citing Pedersen v. Del. Lack. & West. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, which laid down substantially the same test as that of the Shanks case, supra, it was held that the employment was not so closely related to interstate commerce as to bring it within the federal act. The court commented: “It was a matter of indifference so far as that [interstate] commerce is concerned whether the rail was taken to the junk pile or left where it lay.” In Cruse v. Chicago, R. I. & P. Rly. Co., 133 Kan. 340, 299 Pac. 624, the workman was unloading a car of material which had been consigned to and delivered to the railway company. The injury occurred four days after the car arrived and while being moved to another part of the yard where it was to be unloaded and used. Clearly this car had lost its' interstate character and the court held the injury not covered by the federal act.
Practically all of the above cases indicate a line of distinction which supports appellants’ contention.
From the cases cited by appellants involving more or less comparable situations and employment, we summarize briefly a few of the federal cases only to indicate the various employments which have been held within the act:
Workman had been greasing engines in a roundhouse for inspection, the last engine upon which he worked being used in pulling interstate trains and had not been withdrawn from service. His body was discovered underneath the tender of an engine being backed from the roundhouse. (New York Cent. R. Co. v. Marcone, 281 U. S. 345.)
Engine fireman killed while crossing tracks to an eating house after servicing his engine preparatory to an intrastate run, the train to contain some interstate cars. (Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591.)
Brakeman on a train moving intrastate but containing interstate as well as intrastate cars. Injured while helping uncouple intrastate cars. (N. Y. Central R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298.)
Repairman making minor repairs while engine standing on “fire track,” for such purposes, for four or five hours awaiting return interstate trip. (Baltimore & O. R. Co. v. Darr, 204 Fed. 751.)
Employee working on a locomotive used in hauling cars mainly interstate. Injury while locomotive in roundhouse for over twenty-four hours for “cleaning the firebox, boiler wash, and light running repairs.” (Voelker v. Delaware, L. & W. R. Co., 31 Fed. Supp. 387.)
(See, also, Akins v. Railway Co., 109 Kan. 474, 199 Pac. 464, employee repairing the pilot on an engine in a roundhouse between interstate trips [Certiorari to United States supreme court denied]; McMahen v. Mo. Pac. Rd. Co., 186 Ark. 399, 53 S. W. 2d 998; Southern Pac. Co. v. Industrial Acc. Com., 179 Cal. 59, 175 Pac. 453; Baltimore & O. R. Co. v. Kast, 299 Fed. 419, 421; Staley v. I. C. R. R. Co., 268 Ill. 356, 109 N. E. 342, 343.)
The question of whether appellee’s employment at the time of the accident, as clearly shown by the facts, brought it within the federal act is a question of law. (Begley v. Missouri P. R. Co., supra, and cases therein cited.)
We conclude that under the rules and precedents established by the federal courts appellee’s employment at the time of the accident clearly classifies the case within the federal act. The locomotive he had been servicing was a switch engine of a heavy type used in doing the heaviest work required in the yards. For the sixteen-hour period prior to the accident it had been exclusively engaged in making up trains for interstate movement. It had been taken to the roundhouse for routine inspection and servicing, which required something less than an hour and a half. Its fires were kept burning. It was found in order and no repairs required. Prior to the accident it had been brought from the roundhouse, placed on the track usually used for live switch engines awaiting operating crews and for receiving the required attention from engine herders. It was in a stand-by condition, live and ready to continue its active service. It had been assigned to further work that day in making up trains containing cars for both intrastate and interstate movement. Following the accident it was taken over by the crew and performed that day the work to which it had been assigned. Obviously, an engine in such service falls within the class herein-before discussed, of instrumentalities of transportation, as distinguished from other facilities only related to interstate commerce generally. The work which appellee performed was essential to its continuing service. The fact that it was motionless at the time of the accident' — -a fact upon which the compensation commissioner seemed to lay some stress — certainly does not alter its character as an active instrumentality of transportation. Every locomotive is motionless every time it stops — “awaiting action upon the part of some human agency before it could become a moving factor” to use the language of the compensation commissioner. To hold that such routine interruptions to actual movement operate to exclude employment, during the brief period of inactivity, from protection of the federal act would not only introduce intolerable uncertainty but result in gross injustice to employees in countless cases of accident.
The conclusion already stated makes it unnecessary to consider appellants' other assignments of error.
There remains for brief comment appellee's contention that by filing a report of the accident with the Kansas workmen’s compensation commissioner, and by furnishing medical and hospital attention to the employee, appellants are estopped from denying the commissioner’s jurisdiction. The argument is not persuasive. Employers — even those who have elected not to come under the state act — are required by law to report accidents and claims of accidents occurring in their business. (G. S. 1935, 44-557.) Of course a mere compliance with the statutory requirement of reporting accidents cannot be regarded as an admission by the carrier that the compensation commissioner has jurisdiction to make a compensation award. Indeed, it may well be doubted whether any employer could make such a waiver in cases where state jurisdiction has been ousted by operation of law through federal preemption of the field. It is equally apparent that under the facts of this case, the furnishing of medical aid constituted no waiver of the plea to the jurisdiction. Cases holding that the furnishing of such aid is equivalent to payment of compensation are not in point in determining the question of jurisdiction itself where, from the very beginning of the proceeding, the employer denied the jurisdiction of the compensation commissioner.
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The opinion of the court was delivered by
Hoch, J.:
Appellee was the beneficiary under a life insurance policy which had been reinstated after having lapsed for nonpayment of a premium. Upon the death of the insured the company refused payment on the ground of material misrepresentation by the insured in his application for reinstatement. Action to enforce payment -was brought, the plaintiff prevailed, and the defendant company appeals.
The question here is whether there was substantial, competent evidence to support the finding of the trial court that the insured acted in good faith in the representations made in his application for reinstatement.
On March 3, 1936, appellant issued to Ira C. Darling of Ft.. Scott, Kan., a life insurance policy in the sum of $1,000, Florence E. Darling, mother of the insured, being named as beneficiary. The initial and the second quarterly premiums were paid, but the premium due on September 3 was not paid and the policy lapsed at the expiration of the grace period of thirty-one days on October 4, 1936. On November 17, 1936, Darling signed an application for reinstatement which reads as follows:
“I hereby certify that I am to the best of my knowledge and belief in good health and free from injury and have had no illness or injury since the premium became due (September 3, 1936), except as follows: None.
“I hereby agree that if the above numbered policy is reinstated by the company, such reinstatement shall be based upon the¡‘ good faith of this statement, which is personally signed by me, and that the reinstatement, if granted, shall not take effect until all premiums in arrears, with interest, have been duly paid during my continued good health.”
The trial court found that the health certificate was a blank form signed by Darling at his home in the presence of an agent of the company, and that it was filled out by the agent, in his own handwriting, after Darling had signed it. The premium due on September 3, 1936, was paid when the certificate was signed, was transmitted by the agent to the home office of the company, and on November 18 official receipt was given and the policy reinstated. The premium due on December 3 was paid on the last day of grace, Darling then being confined in the hospital. The insured died on March 11, 1937. Upon refusal to pay the policy the company tendered to the administrator the two premium payments of November 17, 1936, and January 3, 1937, without interest added. Interest was also tendered (when the answer was filed in this action) in November, 1937.
Appellant contends that upon the facts disclosed subsequent to the death of the insured about four months after the reinstatement, the statements made by the insured in the application for reinstatement that he was in good health and had no illness subsequent to September 3, 1936, were not only untrue but could not have been made in good faith. At the time of the reinstatement on November 17, Darling had been off work since November 11. On November 24 he was taken acutely ill with heart trouble, went to the hospital, where he remained for some time, and then returned to his home.
In its finding of fact number four the trial court stated the situation connected with Darling’s lay-off from work on November 11 as follows:
“On November 11, 1936, at around 1 o’clock p.m. of said day the said Ira C. Darling -while at his work at the Frisco Railway shops in Fort Scott, Kan., complained of being ill but refused the proffer of medical attention or an ambulance at said time, stating that he would be all right in a^short while and asked to be relieved from his work and the said Ira C. Darling at said time walked across the railroad tracks in the Frisco yards while cars and trains were passing back and forth a distance of perhaps a quarter of a mile to his home. The appearance of Ira C. Darling on arriving at his home was that of having the appearance of having a bad cold in that he was sneezing. On November 11 or 12, 1936, and in the evening, Ira C. Darling in company with his mother, Florence E. Darling, the plaintiff herein, went to Dr. R. L. Gench, a physician in Fort Scott, Kan., connected with and employed by the Newman and Young Clinic in said city, who were the Frisco company doctors, and at said time the said Dr. R. L. Gench took the blood pressure of Ira C. Darling but what that blood pressure may have been is not disclosed by the evidence. No stethoscope was applied and the .evidence is silent as to any further examination made by Dr. Gench, save and except the taking of the blood pressure. At that time, Dr. R. L. Gench advised Ira C. Darling to lay off for awhile until his cold got better. The said Ira C. Darling did not see any physician from and after said call upon Dr. R. L. Gench until after November 17, 1936. From November 11, 1936, up to and including November's' 17, 1936, the apparent physical appearance of Ira C. Darling was substantial^ the same as it had been for several years immediately preceding that -fimep and the said Ira C. Darling was not confined to his bed or to his horn® was up every day, took his meals regularly and his appetite was g^pdjQh^, the said Ira C. Darling, would go to the grocery store for groceries^r^.sórnéig two or three days after November 11, 1936, walked the quarter of p, C^jil^ír his home down to and across the railroad tracks in the Frisco, J<8Frisco shops to confer with his foreman, Mr. W. A. Hutton, a,] foot the quarter of a mile to his home.” réti^-ia recur O. vti £** «i 're. Yi S. ®
We find the above statement amply supported by the evidence.
In support of its contention that the answers in the application for reinstatement were not given in good faith, the appellant relies principally upon statements appearing in an application made by Darling on February 11, 1937, for benefits under a health and accident policy which he carried, and also upon a marginal notation which appears upon Darling’s application for hospital treatment.
The health policy was in the Mutual Benefit Health and Accident Association, which is an affiliate of the appellant company. When the application for benefits under the policy was made on February 11,1937, Darling had been seriously ill for several months. A questionnaire containing twenty-seven questions was filled out. One question was: “When did you first notice you were beginning to get sick?” The answer, “November 12, 1936.” Another question was: “What was the nature of your illness or disease?” The answer, “Dizziness and short breath.” The answer to another question was that he had been treated by a doctor "every day including from November 12 to January 5.” These answers, apparently made in February, 1937, do not accord with the facts otherwise established. Darling quit work on November 11 rather than on November 12 and the record negatives the statement that he had been treated by a doctor “every day including from November 12 to January 5.” No proof was offered that the answers were in Darling’s handwrit-"d it may be noted that although the questionnaire form recites affidavit is necessary before payment can be considered” L executed.
’ 'we answers are inconsistent with the conten-examined in the light of the other evi-',iging. On the back of the same illness” by the attending • Q. “When were you 136.” Q. “What j.. “November 24, A.” Assuming that dth insurance ques- > attack on November illness back to the day i he had purposely mis-he signed the certificate jolicy on November 17 he would not in February, 1937, deliberately create evidence to impeach his good faith in the matter.
There is no evidence that Darling had been advised by anybody prior to November 24 that he had heart trouble. Appellant’s agent who filled out the application for reinstatement and discussed Darling’s health policy in the affiliated company — for which he was also agent — on November 17, testified as follows concerning Darling’s appearance on that day: Q. “There wasn’t anything about the appearance of Ira Darling when you saw him that made you think he was ill?” A. “Not necessarily, Ira never did look very healthy.” Q. “He didn’t look healthy?” A. “He looked healthy enough.” Q. “Did he look healthy enough?” A. “I reinstated him.” Q. “There wasn’t any difference in the physical appearance of Ira Darling as you saw him on November 17, 1936, from what it had been when you had seen him through the years?” A. “Well, not necessarily, no.” Q. “You thought he had just come home from work?” A. “That’s right.” Q. “Mr. Pease, as a matter of fact didn’t you figure he was in good health when you saw him all in his clothes?” A. “Well, that would be a supposition.” Q. “You don’t remember that you thought he had good health?” A. “He sure did, because I wouldn’t reinstate, or I don’t reinstate policies without going to some length.” Q. “Did you ask him if he had been to any doctor?” A. “No.” Q. “Did you ask him when was the last time he was off work?” A. “I don’t think so.” Appellee, Darling’s mother, and with whom he lived, testified that he didn’t complain when he came home on November 11 about any shortness of breath or difficulty in breathing, that the doctor told him to rest a few days until his cold was better and that was all that was said to him about his condition. Other similar testimony as to Darling’s condition up to November 17, favorable to appellee, need not be recited.
The notation on the margin of the application for hospital treatment by the Frisco Employee’s Hospital Association, hereinbefore referred to, reads as follows: “11-12-36, organic heart disease, auricular fibrillations. 2 Rx.” Doctor Gench) was not a witness but another witness testified that this notation was in Doctor Gench’s handwriting. However, there was no testimony as to when the notation was made, nor any evidence that Darling knew about it. Moreover, as heretofore noted, Doctor Gench’s own affidavit stated that the heart disease symptom first appeared on November 24, a week after the application for reinstatement.
From an examination of the whole record it is reasonable to conclude that at the time the insured signed the application for reinstatement he had not been advised and had no reason to believe that he was suffering from any serious ailment. If he believed that he merely had a cold or other such indisposition which would require only a temporary lay-off, it cannot be held that bad faith is established by his failure to report it as an illness. All the more is this true in view of the fact that the agent of the company discussed with him personally the matter of his health policy, then in effect, at the time the reinstatement application was made, and that neither the company nor its agent, before reinstating the policy, submitted any specific questions such as an inquiry as to whether he had consulted a doctor subsequent to the lapsing of the policy. Furthermore, the agent personally called at the hospital about January 3, 1937, and collected a premium on the policy, and no question was raised as to the good faith of the insured until after his death.
The burden was upon the appellant company to show that the statements made in the health certificate on November 17, 1936, were not in good faith, but were fraudulently made. (Jackson v. National Life and Acc. Ins. Co., 150 Kan. 86, 90 P. 2d 1097; Day v. Nat. Res. Life Ins. Co., 144 Kan. 619, 62 P. 2d 925; Priest v. Life Ins. Co., 116 Kan. 421, 227 Pac. 538; Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622.)
We conclude that the trial court’s finding that no intent to defraud the company was established and that the preponderance of the evidence indicated good faith in the signing of the health certificate on November 17,1936, is well supported by the record.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action for personal injuries. Judgment was for plaintiff. Defendants appeal.
A decision on the main point raised by defendants requires a discussion of what happened at a former trial. The petition alleged that plaintiff was injured while riding in a merry-go-round operated by defendants; that this device was of a type where the passengers sit in seats constructed to resemble airplanes attached to steel poles, the other ends of which were attached to the top of another pole, and when the force was applied the whole device whirled and the centrifugal force caused the seats to rise a distance off the ground of from eight to ten feet and the occupants were supposed to get the impression of riding an airplane. The petition further alleged that while plaintiff was riding this device, and while the box in which he was seated was a considerable distance off the ground, by some means unknown to him the front end of the plane in which he was riding was caused to become loosened, the front end of the box fell, the foot of the plaintiff was caught and he was dragged on the ground during several revolutions while the machine was being brought to a stop; that his foot finally came loose and he fell to the ground and then parts of the machine bumped and hit him. The petition alleged that the plaintiff sustained severe injuries. The petition also alleged that on the occasion in question the machine was in charge of a young man, who, after the machine had been started in motion, left the seat of control and went to a ticket office, a distance of twenty or thirty feet.
The defendants first demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. Defendants then filed their answer in which they alleged a general denial and that the proximate cause of the injuries of plaintiff was his negligence in that he knew, or should have known, that patrons riding the device should remain seated,’ and notwithstanding this, as the seat in which he was riding rose in the air he, in disregard of his own safety, stood up in his seat, and when he was told to sit down by the operator of the machine remained standing and threw his body from side to side, causing the airplane to sway, and the plaintiff lost his balance and fell from the airplane.
The reply was a general denial.
At the first trial there was evidence on many disputed points. Among these was the question of whether the hook by which the airplane was fastened to the rod was a safe device. The jury returned a verdict for the defendants. Just before the jury was discharged counsel was given permission to ask one of the jurors some questions and brought out that one of the jurors had taken some wire and cardboard and pliers into the jury room after the noon recess and had constructed a model of the machine in question to demonstrate that the hooks about which witnesses had testified were actually safe. Counsel for plaintiff then moved that the verdict be not received and the jury be discharged. After considerable further questioning of the jury and argument on the part of counsel the trial court decided to receive the verdict and to discharge the jury. During this discussion counsel for defendants brought out by questioning counsel for plaintiff that his attention had been called by plaintiff's wife to the fact that one of the jurors was taking something into the jury room after the noon recess.
A motion for new trial was filed on the ground of misconduct of a juror. The entire transcript of the proceedings at the time the verdict was returned was introduced at this hearing. In fact, there does not seem to have been much dispute about what happened. The trial court granted the plaintiff a new trial. The case came on for trial the second time and resulted in a verdict and judgment for plaintiff. Motions of the defendants for a new trial were overruled, hence this appeal. This appeal was taken before the time allowed for appealing from the order allowing the new trial had elapsed.
The first point argued by defendants is that in the first trial the court erred in sustaining the motion of the plaintiff for a new trial. In this connection defendant points out that the attention of counsel for plaintiff was called to the fact that the juror was taking something with him to the jury room when the jury returned to consideration of the case about four hours and a half before the verdict was reached. It is argued that when counsel saw this and did not bring it to the attention of the trial court that the misconduct was waived and plaintiff could not urge that as grounds for a new trial. In the first place, defendants are not in position to raise the question of whether the court was correct in sustaining this motion for a new trial. When they went ahead and tried the case pursuant to the order allowing the new trial they acquiesced in the order allowing the new trial and cannot be heard to complain about the correctness of it. In Harmon v. Jones, 146 Kan. 205, 69 P. 2d 690, this court quoted the rule from 4 C. J. S. 396, as follows:
“A party who voluntarily acquiesces in, ratifies, or recognizes the validity of, a judgment, order, or decree against him, or otherwise takes a position which is inconsistent with the right to appeal therefrom, thereby impliedly waives, or is estopped to assert, his right to have such judgment, order, or decree reviewed by an appellate court; and this rule has been held to apply where the acquiescence or ratification was either partial or in toto.” (p. 207.)
This case is analogous to Robertson v. Christenson, 90 Kan. 555, 135 Pac. 567. In that case the issues had been made up and a trial had resulted in a verdict in favor of the defendant. On motion of plaintiff a new trial was granted. The defendant then filed an amended and supplemental answer in which he alleged much new matter. On motion of the plaintiff this amended and supplemental answer was stricken from the files. The defendant appealed from this order. This court considered whether the defendant had a right to file the amended answer, but because it appeared that a second amended and supplemental answer had been filed and was on file when the appeal was being heard it was held that the appeal should be dismissed. This court said:
“It appears, however, that after this ruling a second supplemental and amended answer was filed by appellant, in which he alleged most of the facts set up in the stricken answer. That pleading stands unchallenged on the files and supersedes the one stricken out. By filing the last amended and supplemental answer any error in the ruling upon the first is deemed to be waived.” (p. 556.)
See, also, Miles v. Hamilton, 106 Kan. 804, 189 Pac. 926.
Furthermore, if we should hold that the defendant had not ac quiesced in the order allowing the new trial we see nothing sufficient in this record to take this case out of the rule announced in Claggett v. Phillips Petroleum Co., 146 Kan. 846, 73 P. 2d 1015. There this court said:
“The trial court considered all these matters and expressed itself as not being satisfied with the result of the trial. Under such circumstances this court will not review the action of the trial court in allowing a new trial . . .” (p. 847.)
We have examined the authorities cited and relied on by defendants to the effect that where a party learns about misconduct of a juror during a trial and does not bring it to the attention of the trial court until after the verdict is returned he cannot afterwards make that misconduct the grounds for a new trial. We hold that these cases are not in point here. What counsel learned was that the juror had a package. There was nothing about this in and of itself to constitute misconduct. Counsel was not bound to assume that the juror intended to make a model of the device in question in the jury room. What actually transpired in the jury room was clearly prejudicial to the plaintiff and constituted misconduct. The trial court considering all these elements and the surrounding facts and circumstances could not approve the verdict. It therefore became its duty to order a new trial. (See Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862, also Posey v. Johnson, 145 Kan. 742, 67 P. 2d 598.)
The next point argued by defendants is that their demurrer to the petition should have been sustained. The basis of this argument is that the petition does not state any specific acts of negligence on the part of defendants, and shows on its face that the causes of the injury were not such as were soley and exclusively within the knowledge of the defendants. This is hardly a correct statement of what the petition shows on its face. In the very nature of things one who operates an amusement device such as we have here possesses knowledge of the manner in which it is operated and the plan of its construction, which is not available to every person who pays for a ride on it. The petition stated a cause of action. (See Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 249 Pac. 599; also Clarke v. Cardinal Stage Lines, 139 Kan. 280, 31 P. 2d 1.)
The next point argued by defendants is that the court erred in giving an instruction with reference to the last clear chance. Ap parently the reason for the court giving this instruction was that even if it had been found that plaintiff was negligent there was testimony to the effect that the young man who was operating the machine had left his post of operation and was not there to stop the machine when plaintiff appeared to be in a place of danger. Under such circumstances we cannot see where the giving of this instruction was prejudicial to the rights of the defendants.
The next point argued by defendants is that the verdict was given under the influence of passion and prejudice. The basis for this argument is that the verdict was for $1,000, and damages in that amount were not established by the evidence. There was evidence of loss of time in the amount of $400, and of pain and suffering, and while no hospital or doctor bill was testified to, the absence of such proof is not sufficient to justify holding that a verdict was given as a result of passion and prejudice.
Defendants next argue that the verdict was in whole or in part contrary to the evidence. There was evidence that plaintiff was riding in the seat; that part of it became unhooked, caught his foot and dragged him around the circuit of the machine. This does not seem to have been disputed. Evidently the jury saw fit not to believe the testimony of the defendants as to the plaintiff’s contributory negligence.
Defendants next argue that the court erred in refusing to strike out certain testimony and to give certain instructions with reference to this testimony. On behalf of the defendants a young man named Mueller testified. On his cross-examination counsel for plaintiff asked him about his nationality and when he came to this country, and brought out that he had been here a number of years and had not been naturalized. No objection was made at the time, but just as counsel finished that line of questioning counsel for the defendants moved to strike out the testimony because it was incompetent, irrelevant and immaterial and was prejudicial to defendants. Plaintiff took the position that the questions were asked to affect the credibility of the witness. After some colloquy the trial court denied the motion to strike out the testimony and offered to instruct the jury that such questions were asked for the sole purpose of enabling the jury to judge the credibility of the witness. There was an objection by the defendants to such an instruction and none was given. A trial court has wide discretion in allowing questions to be asked of a witness on cross-examination that go to affect his credibility. We hold that the questions were proper for that purpose and there was no abuse of discretion on the part of the trial court.
Defendants also complain that the trial court erred in refusing to discharge the jury when counsel in his closing argument for the plaintiff referred to the fact that the witness Mueller was an unnatu-ralized German. This reference, however, was cured by an instruction given by the trial court.
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The opinion of the court was delivered by
Smith, ¡T.:
This is an action for specific performance of a contract to convey real estate made between two parties for the benefit of a third party. Judgment was for the plaintiff. Defendants appeal.
After alleging the formal matters, the petition alleged that plaintiff was the foster daughter of William H. Sims and Ida Sims, husband and wife, and had resided with them until her marriage; that on or about June 11,1932, William and Ida Sims entered into an oral contract by which it was agreed to devise to the survivor all of the estate left by the one first called in death, the survivor to have the use and enjoy it during his lifetime, with the right to consume any money or proceeds of any personal property left in his or her hands so long as the survivor lived, and after the death of the survivor the estate left by either William or Ida Sims which had not been used by the survivor was to go in fee simple to Alice West, the plaintiff; that it was agreed that Alice should sell the residence in which William and Ida then lived and use as much of the proceeds as might be necessary to pay any debts, expenses or liabilities. It was further agreed that the parties would immediately make a joint will to carry out the terms of the agreement; that about the 11th day of June, 1932, William and Ida did make such a will, the terms of the will being set out in the petition; that at the time of making the will William and Ida were owners of both real and personal property; that Ida died on June 17, 1932, the owner of real and personal property, and Ida and William left no natural child or children of a predeceased child; that prior to the date of the death of Ida, William had executed and delivered to her a warranty deed conveying, to her the real estate upon which she and William resided as their home; that after her death William obtained possession of this deed and destroyed it; that the title to the property therefore remained in the name of William; that at the time of the death of Ida on June 17-, 1932, the joint will, which has been referred to, was in effect and had not been changed on revoked during the lifetime of Ida; that after the death of Ida, William wrongfully failed to probate the will and destroyed it and took possession of the joint will and obtained possession of all the real and personal property owned by Ida at the time of her death; that plaintiff had no knowledge of the execution of the will until the death of William, who died September 19, 1939; that the estate of William was probated in Reno county, and one Sims was appointed administrator and some twenty-five people named defendants claimed to be the heirs at law of William; that William and Ida by the execution of this joint will contracted and agreed with each other to dispose of their estates in accordance with its terms and provisions; that it constituted a contract between Ida and William, by the terms of which plaintiff was the owner and entitled to dispose of all the real and personal property owned by William at the time of his death; that William was the owner of certain personal property now in possession of the administrator and also the owner of a quarter section of land in Stafford county; that the plaintiff was entitled to have the terms of the joint will enforced against the estate of William in accordance with its provisions.
The prayer was that plaintiff be adjudged the owner of all the real estate and personal property owned by William at the time of his death, in accordance with the terms and provisions of the joint will, and that the terms of the joint will be enforced against the estate of William as a contract and that the heirs at law be barred from any right or interest in any of the real estate and personal property owned by William at the time of his death.
In the answer, defendants admitted the death of Ida on June 17, 1932, and William on September 19, 1939; that William died owning real estate and personal property and that the named defendants were heirs of William. The answer further alleged that the action was not based on a contract in writing, had to do with the title to land and that there was no agreement in writing signed by the party to be charged therewith; that the claim set out amounted to a trust concerning land which was not in writing nor signed .by the party creating it nor by his attorney; that plaintiff did not claim to have given any consideration or performed any act or duty as to the alleged agreement, and that the action was an attempt to enforce an alleged verbal mutual promise to make a gift and to enforce it would be against equity and good conscience.
The reply was a general denial.
The court did not make specific findings of fact but wrote a memorandum opinion, in which statements are found amounting to findings of fact. There was no dispute but that plaintiff was taken into the home of William and Ida when she was a little girl. The court found that on June 11, 1932, William and Ida were sick in adjoining rooms; that they sent a neighbor to get a lawyer to make a will for them; that the lawyer came to see them and did write a will providing that the property of each would go to the survivor and in case of his or her death the property of the survivor be given to the plaintiff; that prior' to the making of this will William had executed a deed conveying the residence in which the couple lived to Alice; that there was no evidence of an actual delivery of this deed but that William had stated several times that the residence was the property of Alice; that Mr. Sims owned other real estate and personal property at the time of the making of the will and at the time of his death; that Ida died on June 17, 1932, shortly after executing the will; that William did not probate the will and later destroyed both the will and the deed. The court concluded as a matter of law that when the two parties executed their wills by the same instrument there was a presumption that there had been some previous understanding or agreement between them; that the action was for specific performance of the contract to make a will for the benefit of a third party, was properly brought in the district court and was not unenforceable on account of the statute of frauds, and that the judg ment should be rendered in favor of the plaintiff. Hence this appeal.
Defendants argue first that the trial court erred in permitting the introduction of evidence over the objection of defendants. That the basis of this action is an attempt to probate a will in the district court and such an action can only be brought in the probate court. The answer to that argument is that the action was not to enforce a will, but to enforce a contract, of which the will was persuasive evidence. In St. Denis v. Johnson, 143 Kan. 955, 57 P. 2d 70, this court considered a joint will, and said:
“The will of 1919 did not just happen to be as it was. It was a duplicate of a will made in 1909, which was lost. The conduct of husband and wife indicates they had a settled purpose that disposition of their property at death should be governed by will of a definite kind; and reassertion of the terms of the earlier will confirmed the evidence afforded by the instrument, that it was the product of contract. The finding of the district court ignored the two joint wills and what they indicated.” (p. 961.)
(See, also, Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421.) The doctrine that equity will enforce a contract to leave property by will when it has been clearly and certainly proved and there has been performance on the part of the promisee is well recognized. (See Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, also Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665, and cases cited.) This case is one to which the doctrine announced in those cases clearly applies.
Defendants next argue that the right of action pleaded is barred by the statute of limitations. In this connection defendants point out that the agreement which the action seeks to enforce was alleged to have been made on June 11,1932, and was repudiated by William in the fall of that year. Defendants argue that where the promisor repudiates the existence of a contract such as we have here the cause of action for rescission or damages accrues at once and the statute begins to run. If the statute started to run in this case in the fall of 1932, the cause of action was barred before this action was commenced. This argument is not good for the reason that the question of the statute of limitations was riot pleaded in the answer. (See Beachy v. Jones, 108 Kan. 236, 195 Pac. 184.) As far as the record discloses it was not presented to the trial court at any time. (See Schmitz v. Schmitz, 125 Kan. 115, 263 Pac. 1045.) And it was not mentioned in the specifications of error. (See Pyramids v. Drake, 66 Kan. 538, 72 Pac. 239.)
Defendants next argue that the agreement upon which the action is based contravened the statute of frauds. This argument is not good because the action is to enforce an oral contract to devise real estate and the contract was fully performed on the part of Mrs. Sims, one of the parties. It is well established that such contracts which have been performed do not contravene the statute of frauds. (See Stahl v. Stevenson, 102 Kan. 447, 171 Pac. 1164, and Braden v. Neal, 132 Kan. 387, 295 Pac. 678.)
The next argument of defendant is that the procedure followed in this case violates the statute of wills. This argument is not good for the reason, as we have already demonstrated, this is not an action on a will, but to enforce a contract of which the will is persuasive evidence.
The next argumeút of defendants is that there was no competent evidence upon which the decision of the trial court could be based. There is no dispute in this record but that the will was drawn about as alleged in the petition. There was direct undisputed testimony to that effect and while some years had passed since the will was written two disinterested witnesses testified as to its provisions. The contract pleaded was one to make a will with certain provisions. There was proof that such a will was made. What better proof could there be of the contract? There was ample proof that Ida Sims had considerable property of her own at the time the contract was made and the will written. She gave up her right to bequeath half of this property to some one other than her husband and to receive one-half of his property outright rather than a life estate in all of it. Certainly there was sufficient consideration to support the contract. The contract was made between Ida Sims and William Sims for the benefit of plaintiff. It is well established that such a contract may be enforced by the party for whose benefit it was made even though he was not a party to it. (See Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, and Goeken v. Bank, 104 Kan. 370, 179 Pac. 321.)
The judgment of the trial court is affirmed.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a farm laborer to recover damages from his employer for personal injuries sustained while he and defendant were operating a cultivator, more particularly designated as a disk tiller, drawn by a tractor. The jury returned a verdict for plaintiff, and defendant appeals.
The first complaint is, defendant’s general demurrer to plaintiff’s evidence should have been sustained. The evidence of plaintiff was in substance as follows: The disk tiller was new to plaintiff (the record refers to it both as a “one-way” and as a “disk tiller”). He had never used it until the day preceding the accident and on a trial thereof. He had not been warned by defendant concerning dangers incident to its use. The tiller was drawn by a tractor. It was fastened to the tractor by a hitch. The hitch appears to have been fastened to the tiller near the right end. (When we refer to the right or left side or end of the tiller we are viewing the tiller from the rear.) The tiller followed the tractor at an angle of approximately 40 or 45 degrees. The disks were fastened underneath the framework of the tiller. The frame extended to a point in front of the disks and was V-shaped. The tiller operated on three wheels, one on the right and two on the left. There was a lever near the seat of the tractor by which the depth of cultivation could be regulated on the right side of the tiller. There was a crank at the left end of the tiller by which the depth of cultivation could be regulated for the left portion of the tiller. Prongs extended to the left of the tiller upon which a seat could be fastened, in order that a person might be seated there and operate that crank. The instant tiller contained no seat at that point. A trip' lever was located inside of and to the right of a rubber-tired wheel, which wheel carried most of the weight of the left end of the tiller. That lever was inside of and to the front of the crank formerly described. The larger and tired wheel formerly described extended ahead of the left end of the tiller. The distance between that wheel of the tiller and the left wheel of the tractor was approximately ten feet. The trip lever contained a loop to which a rope or wire might be fastened. The trip lever could then be operated from the seat of the tractor by pulling the rope or wire. The trip lever was designed to lower all disks or to raise all disks entirely above the ground in one operation. On the day preceding the accident plaintiff called defendant’s attention to the fact no rope was fastened to the trip lever and was advised to use it in that condition and that defendant would attach a rope later. No rope or wire was attached to the trip lever at the time of the accident. On the day of the accident plaintiff was operating the disk tiller on a rough field and had gotten stuck in a wet place. He raised the disks on the left and right sides of the tiller by means of the lever and crank sufficiently to get out of the soft place. He then raised the trip lever to lift the disks entirely out of the ground. Defendant reached this particular field a short time later and"advised plaintiff he would take the tractor. Defendant made a circle around the field and returned to the place where plaintiff had been stuck. Plaintiff was on the platform of the tractor. As they approached the soft place defendant directed plaintiff to get onto the one-way (disk tiller), where he could work the trip lever in case defendant got stuck. Plaintiff stepped onto the hitch from the platform of the tractor and crawled over the framework of the disk tiller on his hands and knees to a place where he could reach the trip lever. Defendant did not stop the tractor. Plaintiff reached the trip lever and was exerting pressure thereon. The ground was rough and they were going at a high rate of speed. The speed was four miles per hour. Plaintiff’s right foot slipped down into the framework and in front of the disks. He “holloed” to defendant as loudly as he could. He threw his leg out in front as far as he could-but the third time some trash caught his foot and took it under the disk. He was unable to fix the distance the tiller traveled after his foot slipped but it was approximately thirty seconds before defendant stopped the tractor. Plaintiff glanced up and observed defendant was fumbling with everything but couldn’t hit the right thing to stop the tractor. Defendant finally caught hold of the throttle lever instead of the clutch lever. The throttle would not stop the tractor instantly. It caused the tractor to die down.
On cross-examination plaintiff in substance testified: Defendant did not stop the tractor after directing him to get onto the tiller. Defendant told him to get onto the tiller from the platform of the tractor. He did so. The machine kept moving. He climbed over the tiller because defendant told him to do so. It might have been a little, quicker to have gotten off the tractor and to have walked on the ground between the tractor and tiller, but it would have been more dangerous. The trip lever was supposed to have a rope attached to it. Defendant told him “Step back on the one-way and release — trip the lever. Step back on the one-way from the platform.”
In support of defendant’s contention that his demurrer to plaintiff’s evidence should have been sustained he stresses portions of plaintiff’s evidence, which, if standing alone, might be construed as contradictory to portions of the evidence we have narrated and which might be construed as unfavorable to plaintiff. Comparison or other consideration of such evidence is not permitted in testing the ruling on a demurrer. (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903; Harris v. Wyandotte County Comm’rs, 151 Kan. 946, 948, 101 P. 2d 898.)
Defendant insists plaintiff could not have observed his conduct while endeavoring to stop the tractor. Plaintiff’s testimony was that he did at one moment observe that conduct. That testimony, and what plaintiff stated he saw, was entitled to full credence in a ruling on the demurrer. It was solely the province of the jury to determine what weight it would accord such testimony. (Hill v. Southern Kansas Stage Lines Co., supra.)
Defendant stoutly contends plaintiff did not employ the safe way to operate the trip lever. Plaintiff’s evidence was to the effect that the ground was rough and that while it might have been quicker to walk through the open space of ten feet between the tractor and the tiller, it would have been more dangerous to do so while the machine was moving. That was positive evidence and the question of its weight was also distinctly for the determination of the jury. The tractor and tiller were moving over rough ground. Exactly how rough it was we do not know. Plaintiff regarded the speed as a high speed under the circumstances. He apparently concluded that it was more dangerous to step onto the rough ground from the moving tractor and directly in front of the oncoming disks. He may have believed that if he stumbled on the rough ground and fell in front of the disks he would have been subjected to far greater injuries than those which he sustained. We cannot well say as a matter of law that plaintiff’s choice of route, under these circumstances, constituted contributory negligence. It must be remembered, also, plaintiff testified he was pursuing the exact course which defendant directed him to pursue. In Railroad Co. v. Morris, 76 Kan. 836, 93 Pac. 153, it was held:
“Where a master orders a servant into a situation of danger, and in obeying the command the servant is injured, he will not be charged with contributory negligence, or with an assumption of the risk, unless the danger was so glaring that no prudent man would have encountered it, even under such orders, provided he acts with reasonable prudence in executing such orders.” (Syl. ¶ 2.)
See, also, Young v. Railway Co., 82 Kan. 332, 336, 108 Pac. 99; Whetzell v. Railway Co., 105 Kan. 289, 182 Pac. 409; Spear v. City of Wichita, 113 Kan. 686, 216 Pac. 305; Palmer v. Midland Valley Rld. Co., 118 Kan. 507, 510, 235 Pac. 853; 18 R. C. L. 655, § 149.
Whether plaintiff acted with reasonable prudence in the execution of defendant’s orders was also a question for the jury. (See cases last cited.) There was nothing in plaintiff’s evidence which indicated he was not cautious in the manner in which he executed the orders of his employer.
Defendant further contends plaintiff's evidence failed to disclose defendant had a last clear chance to avoid the accident after plaintiff’s foot slipped through the framework of the tiller. The argument is based upon the theory plaintiff’s evidence did not establish the distance within which the tiller might have been stopped. Plaintiff’s evidence was that the tractor did not stop for thirty seconds after his foot slipped. If that was not sufficient evidence upon which to invoke the doctrine of last clear chance in view of the fact the tractor was traveling four miles per hour then defendant supplied the deficiency, and the error in the ruling on the demurrer, if error existed, was cured. (Hayes v. Reid, 145 Kan. 51, 64 P. 2d 19.) Defendant testified he applied the brakes immediately and the machine stopped within one foot or eighteen inches. After the defendant so testified he cannot complain that plaintiff did not prove the machine could be stopped immediately or within one foot or eighteen inches. Plaintiff, however, testified it was not stopped for thirty seconds. It was solely the province of the jury to settle that disputed fact.
Defendant’s testimony, however, disclosed additional facts. It disclosed that the peril existed prior to the time plaintiff slipped and that defendant did nothing to prevent the accident from happening. Defendant testified in substance: He watched plaintiff jump onto the one-way. He sure did know plaintiff was in a position of peril when he was on top of the framework and before he slipped through. Defendant did not stop the machine at that time and did not order plaintiff to get off and step onto the ground.
Obviously, under all these circumstances defendant cannot successfully assert negligence on his part was not established. Under these circumstances we cannot say as a matter of law the doctrine of last clear chance should not have been submitted to the jury.
It is also urged the trial court improperly instructed the jury on the doctrine of last clear chance. Plaintiff insists no objection was made to any instruction when given and that no additional or more adequate instruction was requested. The record discloses no objection to any instruction when given or a request for clearer or more definite instructions. Under such circumstances reversible error does not exist. (Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 724, 85 P. 2d 28.) The judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
AlleN, J.:
This was an action in partition. Albert A. Ward died testate December 2, 1936, owning in fee simple seven quarter sections of land and certain city property.
The testator devised to his wife, Margaret Elizabeth Ward, plaintiff herein, a life estate in all of his real estate. Subject to the life estate in his widow, the testator devised the property to his son, Homer Orville Ward, for life, and upon his death to the grandchildren of the testator equally. At the time of the death of the testator his son, Homer Orville Ward, was the father of four minor children.
The widow declined to accept the provisions of the will and elected to take under the law.
The petition alleged that the plaintiff, Margaret Elizabeth Ward, is the owner of an undivided one-half of the lands described in fee simple; that the defendant, Homer Orville Ward, is the owner of a life estate in an undivided one-half of the land; that the four grandchildren named as defendants, and the unknown and unborn grandchildren of the testator are the owners of an undivided one-half interest in all of the described land, subject only to the life estate of Homer Orville Ward, and that plaintiff is entitled'to partition.
The four living grandchildren individually and as representatives of the entire class of grandchildren of the testator were made parties defendant.
Upon application of the plaintiff the court appointed a guardian ad litem for the minor defendants and also appointed a trustee for the unknown and unborn grandchildren of the testator. The guardian ad litem for the minor defendants filed a demurrer to the petition on the ground that the court had no jurisdiction of the subject-matter and no authority to render a judgment in partition. The trustee for the unknown and unborn grandchildren filed a demurrer to the petition on the ground the court had no jurisdiction of the unknown and unborn defendants, had no jurisdiction of the subject matter, and had no authority to render a judgment in partition as against the unknown and unborn grandchildren of the testator. The appeal is from the judgment of the court overruling the demurrers.
It is contended the court does not have jurisdiction to decree partition for the reason the plaintiff, owner of an undivided one-half interest in fee, and the grandchildren are not co-tenants, and that any judgment or decree entered in the cause would not be binding on the unknown and unborn grandchildren. Appellants rely upon Bartram v. Kemp, 113 Kan. 246, 214 Pac. 96; Johnson v. Brown, 74 Kan. 346, 86 Pac. 503; Ryan v. Cullen, 89 Kan. 879, 133 Pac. 430; Shafer v. Covey, 90 Kan. 588, 135 Pac. 676.
As stated, the widow renounced the benefits attempted to be conferred on her under the will, and elected to take under the law. “When a widow elects to take in opposition to her husband’s will she receives the share of his estate that she would have taken had he died intestate, which is one-half in value after the payment of debts.” (Ashelford v. Chapman, 81 Kan. 312, syl. ¶ 4, 105 Pac. 534.)
The widow, having elected to take against the will, was entitled to an undivided one-half interest in fee simple in the lands in question.
As the election of the widow has disturbed the original plan of the testator, what disposition is to be made of the other undivided one-half interest in the property? In the early case of Allen v. Hannum, 15 Kan. 625, it was stated: “. . . The other half of the estate, we think, should be distributed in accordance with the will, or as near in accordance therewith as may be possible under the circumstances of the case.”
Will the succeeding interests be accelerated? Obviously, the answer will be found in the nature of the postponed interests and the intention of the creator of the 'interests as expressed in the instrument. Thus where the remainders were subject to a condition precedent it was held that the failure of the life estate would not advance such interests. (Miller v. Miller, 91 Kan. 1, 136 Pac. 953.) But in that case it was stated:
“If a testator devise an estate for life to his widow, with remainder over in fee, and the widow elect to take under the law and not under the will, the remainder is ordinarily accelerated to take effect as if the widow had died. The rule is equitable in character and proceeds upon the assumption that the gift over of the .fee was the principal thing in the testator’s mind, that the life estate was a mere charge on that gift, and that he desired the gift in fee to take effect whenever the life estate for any cause was out of the way. . . .” (p. 6.)
That vested interests will be accelerated upon the failure of a prior interest has often been recognized by this court. (See Allen v. Hannum, supra; Sherman v. Critzer, 135 Kan. 579, 11 P. 2d 993.)
In Restatement of Property, § 231, Comment a, it is stated:
“Whenever an attempted prior interest is renounced, some disturbance of the desired plan of disposition is inevitable. The extent of this disturbance normally is kept at a minimum by accelerating the succeeding interests. This occurs in accordance with what is normally to be inferred as the intent of the conveyor, namely, that as each of the successive interests sought to be created by him ends or becomes impossible, the next in order in the limitation should move up. . . .”
The life estate devised to the widow having failed in its inception, the life estate in the son was accelerated and became a possessory estate. It also follows that the remainder to the grandchildren will become an estate in possession upon the death of the son who holds the preceding life estate. The grandchildren named as remainder-men are the children of the life tenant, Homer Orville Ward. At the time of the death of the testator, four children had been born. The remainder was vested in these four children subject to open and let in other children born to the life tenant. (Faris v. Nickel, 152 Kan. 652, 653, 107 P. 2d 721.)
It is contended that the unknown and unborn remaindermen will not be bound by a judgment in partition. In our recent case, Lewis v. McConchie, 151 Kan. 778, 100 P. 2d 752, it was held as stated in the syllabus:
“A court of equity has jurisdiction and inherent power, based upon considerations of necessity and expediency, to appoint a trustee for unknown or unborn contingent devisees or interest holders under a will, and to construe the will and determine their possible rights; and where that is done, and the interests of such unknown or unborn devisees or interest holders is considered and found to be no greater than that of living parties to the action, who are properly represented; and where the final judgment of the court is that such living parties have no share or interest in the property, contingent or otherwise, a judgment against such unknown or unborn contingent devisees or interest holders is binding upon them, presently and forever, to the same extent as though they were living adult parties to the action.” (¶13.)
See, also, Pedroja v. Pedroja, 152 Kan. 82, 102 P. 2d 1012.
In the case before us, the four living remaindermen are represented by a guardian ad litem — the unknown and unborn children who may come into the group are represented by a trustee appointed by the court. As the rights of all the remaindermen are fully protected they will be finally concluded by any judgment rendered.
It is next asserted that the court is without jurisdiction to order partition against the remaindermen. In Johnson v. Brown, 74 Kan. 346, 86 Pac. 503, it was held that a person who holds in fee simple the undivided one-half interest in real estate can maintain a suit to compel partition as against his cotenants who have only a life interest in the other undivided half. As the remainderman was not joined, the court stated: “It is certain that until he is made a party, any division of the fee title will not bind him or his heirs.” In Kolterman v. Atkinson, 151 Kan. 623, 100 P. 2d 729, the plaintiff owned an undivided one-sixth interest in fee simple, and also was the owner of a life estate pur autre vie in five-sixths — -the remainder subject to the life estate was owned by the defendants. A judgment for the plaintiff decreeing partition was sustained.
Our statute G. S. 1935, 60-2102, provides:
“If the number of shares or interests is known, but the owners thereof are unknown, or if there are, or are supposed to be, any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.”
The statute directs that in a partition proceeding, any interests which are unknown or contingent must be set forth in the petition. A reasonable construction of this section would seem to be that the holders of such unknown and contingent interests are liable to partition, if the proceedings are otherwise consistent with equitable principles.
In Simes, Future Interests, § 658, it is stated:
. . Suppose A owns an undivided half in fee simple and B has a life estate in the other undivided half, with remainder to C in fee simple. If A brings the action for partition, it would seem that his right to have his entire interest partitioned cannot be effectuated without making the partition with respect to C’s remainder. It would be a hardship to compel A to bring a second action after B’s death merely because the other undivided interest involves a remainder. On the other hand, if B, the co-owner for life, should bring the action and A should resist it, no great injustice would be done in giving effect to the partition only for the term of B’s life. That would accomplish all B desires in giving him a several enjoyment of the land, and, if A does not wish his interest partitioned, it would seem that he should not be compelled to submit to it for a longer period than is consistent with B’s right to an enjoyment of his life estate in severalty. It appears that, under the English common-law writ, no partition was possible in either of the cases suggested beyond the life of the life tenant. A cotenant in fee simple holding with a cotenant for life with remainder over would therefore be compelled to bring two actions to secure the partition of his entire interest. As to partition in equity in the absence of statute, it is uncertain whether there ever was any liability to partition on the part of reversioners and remaindermen. It would seem, however, that, even in the absence of statute, there should be such a liability on the part of all owners of future interests when an action is brought by a possessory cotenant in fee simple.”
At the time of the death of Albert A. Ward, our statute G. S. 1935, 22-108, was in force. It reads:
“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apai-t by the executors or administrators as her property, in fee simple, upon the death of the husband, if she survives him. . . .”
When the estate was closed the new probate code was in effect, and the foregoing section was superseded by G. S. 1939, Supp. 59-505. We think it clear that both sections contemplate that the share of the surviving spouse is to be held in severalty.
Plaintiff asks that her undivided one-half interest be set apart to her — that partition in kind be made. We think the petition stated a cause of action, and order of the court in overruling the demurrers is sustained.
Where the object of a partition is the sale of the land and a division of the proceeds other considerations will arise. That question is not now before us.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Habvey, J.:
This was an action on a promissory note and to foreclose a real-estate mortgage given to secure it. The trial court rendered judgment for plaintiffs, and defendants have appealed.
The record may be summarized as follows: On February 14,1934, Owen Ogle executed a note for |4,500 payable to Lew Dawson, due in five years, with interest at five percent, payable annually, and secured the same by a mortgage upon certain land in Osage county. On September 27, 1934, Lew Dawson died intestate and left as his heirs at law his sister, Charlotte J. Price, and his brother, Charles Dawson. He had another brother, Harry A. Dawson, but he moved away from the neighborhood years ago and his brother and sister did not know whether he was living, and if not, whether he left heirs. Lew Dawson had an account of several hundred dollars in a bank. On their executing an instrument satisfactory to the bank, Charlotte J. Price and Charles Dawson were permitted to draw the money from the bank, with which they paid the funeral expenses of Lew Dawson, and divided the remainder'between them. When the first interest was due on the $4,500 note in February, 1935, Ogle paid it to Charles Dawson, who kept out of it money he said Lew owed him and divided the remainder with his sister, Mrs. Price. When the interest was due the next year it was paid to Charles Dawson. When his sister asked for her part of it a few months later he said he had spent it, and she concluded to let the matter go until the note itself became due. A few months before the note was due Mrs. Price learned Charles Dawson was claiming’to be the owner of the note and mortgage and that it was in the possession of Albert M. Casten, who claimed to be holding it as a pledge for.money advanced to Charles Dawson. On October 21, 1938, Alex Hotchkiss was appointed administrator of the estate of Lew Dawson, and on June 8, 1939, this action was filed. The plaintiffs were Alex Hotchkiss, as administrator of the estate of Lew Dawson, and Charlotte J. Price. The defendants were Owen Ogle and wife, Charles Dawson, Albert M. Casten and Harry A. Dawson, if living, but if dead, then his unknown heirs, etc.
The petition contained the usual allegations, including most of the facts above stated; alleged that the action was prosecuted for the benefit of the heirs of Lew Dawson, for which reason Charlotte J. Price was joined as plaintiff; that plaintiffs did not know whether Harry A. Dawson was living or dead, or if dead, the names or whereabouts of his heirs, etc.; that Charles Dawson was made a defendant because he denied plaintiffs’ right to the note or mortgage; that these instruments were then in possession of Charles Dawson and Albert M. Casten, and they were asked to set up any right or title they had to them; alleged the note was past due and the mortgage in default, and asked for judgment on the note against Owen Ogle and for the foreclosure of the mortgage.
The answer of Charles Dawson in effect demurred to the petition on the ground that there was a misjoinder of plaintiffs, a mis-joinder of causes of action, and that the facts alleged did not state a cause of action in favor of either of the plaintiffs. It pleaded a settlement between Mrs. Price and Charles Dawson of the estate of their brother, and that she was estopped from claiming an interest in the note by reason thereof, and alleged that subsequent to the execution and delivery of the note and mortgage to Lew Dawson he delivered them to Albert M. Casten and orally directed that upon his death they be delivered to- Charles Dawson, intending by such delivery to make a gift of the note and mortgage to Charles Dawson; that about October 1, 1934, Casten did deliver the instruments to Charles Dawson, who since has been the exclusive owner of them, and that Mrs. Price had full knowledge of his claim of ownership and acquiesced therein. There was a plea of the statute of limitations and a prayer that plaintiffs take nothing by reason of their petition, and that they be barred from any interest in the note and mortgage.
The answer of Owen Ogle was that Charles Dawson was the owner of the note; that plaintiffs have no interest therein, and that the allegations of the petition were insufficient to state a cause of action in favor of either of them. The answer of Albert M. Casten pleaded the statute of limitations, alleged Charles Dawson was the owner of the note and mortgage, alleged the administrator was not the real party in interest, that the allegations were insufficient to state a cause of action in favor of Charlotte J. Price, that neither of the plaintiffs has any right to foreclose the mortgage, and alleged that he had possession of the note and iportgage under an agreement with its owner, Charles Dawson, who had pledged it with him to secure moneys advanced. Plaintiffs’ reply denied the new matter in these answers.
While the action was pending it was learned that Harry A. Dawson had died, leaving two sons, Lawrence Dawson and J. W. Dawson, and two grandchildren, Jack Dawson and Peggy Dawson, minors, children of a son, Barney A. Dawson. These parties lived at Elma, Wash., where Mollie A. Carroll had been duly appointed as the guardian of the estate of the minors. These heirs of Harry A. Dawson answered as defendants denying the claims of Charles Dawson and Albert M. Casten, and by cross petition collectively claimed a one-third interest in the note and mortgage, and asked that the mortgage be foreclosed.
No answer denied the execution of the note and mortgage, nor denied that the note was due and unpaid and the mortgage in default. The appointment of the administrator and the relationship of the parties to Lew Dawson, as alleged by plaintiffs, were stipulated. Plaintiffs introduced evidence of the death of Harry A. Dawson and of who constituted his heirs, and rested. The demurrer of defendants to plaintiffs’ evidence was overruled. The court rendered judgment against Owen Ogle and wife on the pleadings and held the burden of proof to be on Charles Dawson and Albert M. Casten respecting the claim of Charles Dawson to the ownership of the mortgage and Casten’s claim to be holding them as security for money he had advanced to Charles Dawson.
Defendants called as a witness the plaintiff, Charlotte J. Price. She testified that after the death of her brother Lew, and it was learned he had some money in the bank, at the request of the bank and in order to draw the money, she and her brother Charles signed a written statement to the effect that the estate of their brother, Lew Dawson, had not been administered upon, that they were the only heirs at law, and they would hold the bank harmless if the money were paid to them; that she drew the money, paid the funeral expenses, and there was left $157.90, which was divided with her brother Charles; that her brother Harry had gone west many years ago and she had lost track of him and his family, except that some one several years ago had sent her a newspaper clipping giving an account of his death, which she sent to her brother Charles, but that she knew nothing about what children, if any, he had left; that her brother Lew had left a little personal property — two horses and farm implements, all old — which she and her brother Charles divided; that while they were doing this nothing was said about this note and mortgage; that she went to the office of Mr. Casten and inquired if her brother had left a will. “Pie [Casten] stated there was no will, but some other papers of Lew’s, if anything happened to him to give them to Charley and it was no gift.” He did not show her the papers at that time, but did so on a later visit. In the fall of 1934 she learned at the courthouse of the mortgage, when it was dated and when it would be due; that in the spring or early summer of 1935 she went to see her brother Charles and asked him if he had collected the interest from Ogle. He said he had, $225. She told him she would like her part of it. He said Lew owed him some money and there was only $25 to divide. He gave her a check for $15, being half of the interest to be divided, and $2.50 for a plow that had been sold; that, in the spring or summer of 1936 she went to see her brother Charles again and asked him if he had collected the interest. He said he had. She asked him what he had done with the money. He said he had used it to pay his debts. She told him she could use her part of it, and he told her that he would have some wheat to thresh later on and he could pay her then. It appears he did not pay when he threshed and she did not see him again. She testified that she thought the thing to do was to let it go until the note was due, and settle it all together; that in the summer of 1938 she learned, through rumor, that Charles was claiming the entire note; that she then consulted an attorney, with the result that an administrator wras appointed and this action was brought.
Charles Dawson testified that his sister, Mrs. Price, and he talked about the money in the bank and signed the statement which, permitted them to withdraw the money, pay funeral expenses and divide the remainder, also about the division of the small amount of personal property. In these respects there is no conflict in the testimony. He testified that in the spring of 1935 Mrs. Price came to him and inquired about the interest, and he told her he had collected it but that he claimed it as his own. He told his sister that Lew owed him all but $25 of the interest. He said he gave.her a check for $15, which included $2.50 for a plow, but testified he claimed the interest as his; that he only paid it to keep her from bothering him; that in 1936, when she talked to him about it, he claimed the interest as his own, and denied that he refused to pay it when he threshed.
Albert M. Casten testified that he drew the note and mortgage, and that Lew Dawson had left them with him. Over the objection of plaintiffs he was not permitted to testify what Lew Dawson told him to do with the note and mortgage in the event of his death, but in his affidavit in support of a motion for a new trial he said, if permitted, he would have testified that Lew Dawson told him to 'deliver the note and mortgage to Charles Dawson in the event of his death. So the evidence sought to be admitted by defendants eventually got before the court.
The note had not been endorsed, nor the mortgage assigned, and there was no written communication from Lew Dawson. On this evidence the court held there was no proof of a valid gift of the note and mortgage by Lew Dawson to his brother Charles.
The court offered to hear evidence in support of the claim of the defendant Casten of any indebtedness of Charles Dawson to him which would be a charge upon Charles Dawson’s interest in the note and mortgage. At this point the defendant Casten withdrew his claim and offered no evidence in support of it. Judgment was entered for plaintiffs.
Appellants argue that since there were no claims against the estate except those paid soon after the death of Lew Dawson, and since the time for filing claims had passed, that there was no justification for the appointment of an administrator, citing Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22; Hampson v. Stanfield, 152 Kan. 333, 103 P. 2d 910. While the rule contended for was properly applied in the cases cited it is not a universal one. (Nickel v. Vogel, 76 Kan. 625, 633, 92 Pac. 1105; Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 117 Pac. 1028; Glathart v. Madden, 122 Kan. 563, 568, 253 Pac. 426; Richards v. Tiernan, supra, p. 119.) Under our statute as it existed at the time of the death of Lew Dawson, there are many circumstances under which it is proper to have an administrator appointed, even though the purpose of his appointment and of any action he might bring would be for the benefit of heirs. (See cases supra.) The appointment may be made to provide an appropriate party for an action (23 C. J. 1003), or on account of succession taxes (Glathart v. Madden, supra). Here both these reasons existed. But this is not an appeal from, or in any way a direct attack upon, the order appointing the administrator. His due appointment was stipulated.
It is argued, also, that there was a misjoinder of parties plaintiff. The petition frankly alleged the action was brought for the benefit of heirs, that one of them had joined as plaintiff, and she made no claim to the entire estate, but only to her distributive share as an heir. Such procedure is authorized (G. S. 1935, 60-403, 60-410, 60-412). There was no conflict in the relative purposes of the plaintiffs. The joinder of plaintiffs here did not prevent defendants from making their defense, nor otherwise operate to their prejudice. (Sentney v. Commercial Nat’l Bank, 128 Kan. 107, 275 Pac. 1081; Phoenix Mutual Life Ins. Co. v. Nevitt, 147 Kan. 772, 78 P. 2d 913.)
Appellants also argue that several causes of action were improperly joined, the one being to try title to the note and mortgage and the other being to recover on the note and to foreclose the mortgage. There is no confusion on that point of which defendants can complain. It is conceded the note was past due and unpaid and the conditions of the mortgage had been broken; in fact, the only controverted issue in the case was raised by the answer of the defendant Charles Dawson.
His answer attempted to raise two questions: First, that there had been a family settlement by which he was to have this note and mortgage. It is clear the evidence on his behalf did not support that claim. Second, that he was the sole owner of the note and mortgage by reason of a gift of them to him by his brother, Lew Dawson. On that point, also, the evidence on defendant’s behalf totally failed.
Defendants in the court below, as appellants here, argue this last question as though the burden of proof was on plaintiffs to negative such a gift. Obviously this is not true. Charles Dawson had alleged these defenses; he had the burden of proving them, and they are of a character which required clear and convincing evidence. Nothing approaching that was offered. Even the testimony of Casten, finally embodied in an affidavit in support of the motion for a new trial, to the effect that Lew Dawson had said that if anything happened to him to deliver the papers to his brother Charles, without stating for what purpose they were to be delivered, was insufficient to establish a valid gift. It is equally consistent with the view that he wanted his brother Charles to look after the collection of the note and mortgage and make proper disposition of the proceeds.
We find nothing wrong with the judgment of the court. It is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover on a promissory note dated February 5, 1929, payable on demand. Credits for payments made on April 17, and on September 11, 1929, were endorsed on the note.
The action was begun on January 23, 1940, and to save it from the bar of the statute of limitations plaintiff alleged that on May 15, 1935, and also on June 4, 1935, defendant wrote and signed certain letters to the president of the plaintiff company in which he acknowledged the indebtedness evidenced by the note as an existing obligation.
The letters were attached to plaintiff’s petitions as exhibits, in the first of which defendant referred to the note for about $950, and said:
“Exhibit ‘B’
Wichita, Kan., 5-15-35
“I want to see it paid but I have nothing to pay on it and from now on I don’t even have a job.
“Now here is the proposition. If you will give me a job and a contract for 4 years and will pay me ¡8110, one hundred and ten dollars, per month and give me credit for $25 per month in addition on the note making a total of $135 per month I will work the 4 years that way. It will be about $1,200 paid on the note that way.
“If, at any time I can pay off the note with reasonable interest and do so the contract becomes void or if I am layed off at any time the contract will become void and the balance of the note will be canceled at no extra cost to me. ...
“If this will interest you I will do the best I can to make myself worth the $135 per month to you. I will be in Wichita late Sat. evening and again the last of next week.
“If not you can file this letter in the waste-basket.”
In the second letter defendant wrote:
“Exhibit ‘C’
Wichita, Kan., 6-4-35.
“I rec’d your letter and am sorry you have no place for me but since you don’t there is not much I can do about it.
“Your collector said you going to sue me . . . If I can ever get the money I will pay it though it is outlawed ... I want to- do what is right so if you want to hold that note until we can pay it it will be all right with us. If you do sue us and get judgment against us it really wouldn’t do very much good but if you want to let it ride along I’ll pay it if I ever get the money . . . I’m not trying to get out paying you but I haven’t got a thing to pay with and don’t know when I’ll ever be able to get it. If I had the money I’d be glad to come pay you. Mr. Rule, you do whatever you think best as far as a newi note is concerned the old one is just as good as a new one. I wouldn’t care to sign a new one at this time.”
Defendant’s answer contained a general and specific denial and invoked the statute of limitations. '
Plaintiff replied with a general denial, and filed a motion for judgment on the issues of law arising on the face of the pleadings. The legal questions were briefed and argued by counsel and the trial court gave judgment for defendant.
Plaintiff appeals, assigning error on the trial court’s ruling that the recitals in exhibits B and C “were not sufficient in law to revive the note sued upon and start anew the statute of limitations.”
As the note sued on was payable on demand, it was due as soon as made (5 U. L. A. § 7, pp. 79-81; 8 Am. Jur. 26; 10 C. J. S. 742-743). The last payment on the note was made on September 11, 1929; therefore an action on the note would be barred in five years from that date, to wit, on September 11, 1934. (G. S. 1935, 60-306.)
Appellant contends, however, that the statements in defendant’s letters of May 15, 1935, and June 4, 1935 (Exhibits B and C), were a sufficient written acknowledgment of the note as an existing liability to toll the statute of limitations. The statute reads:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” (G. S. 1935, 60-312.)
In our many decisions involving this statute this court has consistently held that to interrupt the running of the statute of limitations against an existing liability, debt or demand, or to revive such a liability already barred by the statute, there must be a distinct and unequivocal acknowledgment of the obligation as a present existing liability. (Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479; Harbaugh v. Herr, 131 Kan. 235, 236, 289 Pac. 957; Wichita Sanitarium v. Bierschbach, 136 Kan. 84, 12 P. 2d 806; Hottell v. Kemp, 139 Kan. 239, 31 P. 2d 64; Updegrove v. Cooper, 147 Kan. 752, 78 P. 2d 843; Franklin Life Ins. Co. v. Day, 150 Kan. 913, 96 P. 2d 630.)
Tested by this rule, a critical scrutiny of the text of defendant’s letters does not reveal a distinct and unequivocal acknowledgment of the “outlawed” note as a present existing liability. Defendant’s purpose in writing the first letter was to dicker with the president of the plaintiff company for a job, and as an inducement to get employment at $110 per month defendant suggested that his salary be nominally fixed at $135 per month and that $25 thereof be applied on his outlawed note. Defendant’s proposition was conditioned on its acceptance. Other conditions were that his proposed contract of employment was to last for four years, but that if he should be laid off before that time expired, the suggested arrangement to liquidate the note was to become void and the note canceled.
It is not a fair interpretation of any document, letter, contract, or what not, to excise from its context a single sentence, statement or paragraph, and give it controlling significance while ignoring the other recitals of the instrument. Read in its entirety, no reasonable construction of defendant’s letter of May, 1935, would justify a ruling that defendant’s proposal was tantamount to a distinct and unequivocal acknowledgment of a present existing liability.
Neither do the recitals of the second letter meet the test of the statute as expounded and applied in our many decisions. The most explicit sentence in this letter was “If I can ever get the money I will pay it though it is outlawed.” Certainly defendant’s words “though it is outlawed” cannot be said to acknowledge the note as a present existing liability. “As far as a new note is concerned the old one is just as good as a new one.” “Just as good,” but no better than the outlawed note, according to defendant’s viewpoint. “I wouldn’t care to sign a new one,” he wrote. Why not? Obviously because defendant was warjr of doing the very act which would revivify the obligation from which the generosity of the statute of limitations had emancipated him.
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The opinion of the court was delivered by
DawsoN, C. J.:
This was an action on four promissory notes. From a verdict and judgment in favor of plaintiff the defendants appeal.
In 1929 S. G. Klaurens, of Menlo, desired to become the local dealer for farm implements manufactured by the plaintiff company. A certain amount of capital or financial responsibility was requisite before plaintiff would make a contract with him as its local dealer. Klaurens alone could not meet such requirement. He was the son-in-law of the defendants, Robb and wife, and they and Klaurens entered into two contracts with the plaintiff, both dated November 8, 1929. One of these was designated a general contract, and the other a “Tractor Contract.” These contracts were signed thus:
S. G. Klaurens Mtr. Co. (Dealer)
W. H. Robb
S. G. Klaurens
Grace F. Robb
By the terms of these contracts, the dealer agreed to give promissory notes to the plaintiff for the wholesale price of farm implements supplied by plaintiff, and to deliver as collateral thereto the notes of the retail purchasers thereof. It was pursuant to these contracts that the four notes sued on were executed thus “S. G. Klaurens Motor Company, S. G. Klaurens,” and delivered to the plaintiff.
Certain payments were credited to these notes and thereafter there were defaults, following which this action in four counts was begun.
In its petition plaintiff alleged that the defendants S. G. Klaurens, W. H. Robb and Grace F. Robb were copartners doing business under the name and style of “S. G. Klaurens Motor Company.” The terms of those contracts were quite lengthy and only meager excerpts therefrom are shown in the record, but paragraph “thirtieth” contains the following:
“No agreements, conditions, stipulations other than those mentioned in this contract, shall be of any force or effect unless approved in writing by an officer of the plow company.”
Defendants Robb and wife filed a verified answer in which they denied the existence of the alleged partnership. They admitted that they had signed the contracts of November 8, 1929, but that they were induced so to do by a representative of the plaintiff, who stated—
“That these defendants would assume no liability, or ever have 'anything to pay and that the names were merely for the purpose of making the contract look better. That defendants did not read said contract, relying on the truth of the statements so made to them by the said representative of plaintiff . . . and that these defendants . . . did sign said contract in full reliance upon the truth of said statements, and would not have signed said contract, except for the belief in the said statements.”
Plaintiffs joined issues on the material allegations of the answer. Various preliminary questions of law presented by the pleadings were raised and disposed of, and the cause was tried before a jury.
Defendant Klaurens testified that his codefendants, Robb and wife, had no interest in the S. G. Klaurens Motor Company, but that they did sign the contracts, following which he did obtain merchandise from plaintiff, and the four notes sued on were given therefor.
W. H. Robb testified that he never notified the plaintiff that he was not a partner of Klaurens, but that he knew plaintiff would extend credit to the Klaurens Motor Company and that this was why the contracts were signed.
A witness for plaintiff testified that he made the negotiations for the plaintiff which resulted in the execution of the contracts of November 8, 1929, and that—
“He [Robb] said he wanted to know, to have the same privilege of knowing what was going on with the company as the dealer and for that reason signed the contract so he would have that same opportunity to get information from the company as Mr. Klaurens. . . . He said he would rather sign it as a partner for that privilege, instead of a guarantor, and go all the way.”
The jury returned a verdict in favor of plaintiff for the full amount prayed for, but also found specially that when they signed the contracts of November 8, 1929, they had no intention of becoming partners of their son-iñ-law, S. G. Klaurens, in the farm implement business; that they contributed no money or capital to that business; that they rendered no service and did no work as partners of Klaurens; that they had neither shared the profits or losses of the business; and that they had done nothing (except to sign the contracts of November 8, 1929) to give plaintiff grounds to believe they were partners of S. G. Klaurens.
Judgment was entered accordingly and defendant Robb and wife appeal.
The first error urged relates to the admission of testimony given by plaintiff’s credit manager to the effect that credit would not have been extended to Klaurens without the signatures of the Robbs. It is not easy to discover a valid objection to that testimony. The objection that it was self-serving is not good. Defendants had pleaded that they had signed the contracts in reliance on a statement by some agent of the company that they would assume no liability or ever have anything to pay, and that their names on the contract were merely to make it “look better.” The thirtieth paragraph of the contract specifically recited that the approval of an officer of the company would be required to make it effective, and the manager’s testimony-, if not essential to the proof of plaintiff’s cause of action, was certainly not incompetent. In Bowers v. Railway Co., 82 Kan. 95, 107 Pac. 777, it was said:
“Where the motive, intent or belief of a person is a material fact to be ascertained, and he is a competent witness to prove such condition, he may testify to it directly in connection with his testimony detailing the circumstances and situation in which he was acting at the time.” (Syl. ¶ 1.)
See, also, Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199, and citations.
It is next urged that defendants were entitled to a directed verdict. We think not. While the contracts should be construed strictly against the plaintiff as the draftsman thereof, yet they must be construed as a whole, not by stressing some isolated provision thereof; and construing them in their entirety, a directed verdict for defendants was properly denied.
Error is also assigned on the court’s instruction which, in part, read thus:
“No. 1. . . . The burden is upon the plaintiff to prove the allegations of its petition by a preponderance of the evidence. However, you are instructed that the plaintiff need not prove that the defendants were actually partners, as under the law a person is bound to know the contents of any written instrument which he signs and he is bound by the terms and provi sions thereof; so here, the defendants Robb are bound by the terms and provisions of the contracts they signed; and, if you find and believe that the plaintiff extended credit to the S. G. Klaurens Motor Company, as evidenced by the four notes sued on herein, in good faith relying upon the signatures of the Robbs to said contracts, then you should find for the plaintiff and against the defendants.”
At the inception of this action plaintiff pleaded the existence of a partnership between Klaurens and the Robbs. When that allegation of partnership was denied under oath, the plaintiff had to fall back on the rule of law which holds that a person whose course of conduct leads another to believe he is a partner, and the party misled extends credit in reliance thereon, such person is liable as if he were a a partner in fact. (Goetz v. Howland, 139 Kan. 1, 30 P. 2d 101.) In Sneider v. Big Horn Milling Co., 28 Wyo. 40, 200 Pac. 1011, this rule was thus stated;
“If one holds himself out as a partner in a firm then existing or commencing and obtains extension of credit toi the partnership on the strength thereof, he is estopped to claim, as against liability for goods furnished, that he was not a partner.” (Syl. U 5.)
See, also, Barnett Bank v. Chiatovich, 48 Nev. 319, 232 Pac. 206; Gwinnup v. Walton Trust Co., 69 Okla. 319, 172 Pac. 936.
Defendants next complain of the instruction (No. 1) which stated that they might be bound to the liability of partners although they were not such in fact. The instruction as given was pertinent to the pleadings and the evidence, and correctly applied the familiar rule of law as laid down in Minneapolis-Moline Power Imp. Co. v. Beck, 139 Kan. 245, 249, 30 P. 2d 1085. It was there said:
“It is settled law everywhere that one who puts his name to a written agreement cannot escape the binding force of his signature on the mere excuse that he assumed the blank spaces would be filled out according to his intention, nor on the excuse that he did not read its contents. (Roach v. Karr, 18 Kan. 529; Custer v. Oliver, 93 Kan. 760, 145 Pac. 554; 13 C. J. 308, 277, 370; 2 C. J. 1232-1244; 6 R. C. L. 624, 625; Restatement Contracts, §442.)” (p. 249.)
It is next argued that defendants were entitled to judgment on the jury’s special findings. This is merely another approach to the main question we have been considering. The specific findings merely said that Robb and wife were not partners of their son-in-law; but those findings did not and could not relieve them of the obligation of their written contracts of 1929. Fault is found with a remark made by the trial court to the effect that the pleadings would be considered “as amended to conform with the evidence.” This practice is quite common. (Custer v. Royse, 104 Kan. 339, 343, 179 Pac. 353; Lyons v. Petroleum Co., 114 Kan. 136, syl. ¶ 2, 215 Pac. 278; Illinois Life Ins. Co. v. Young, 118 Kan. 308, 322, 235 Pac. 104.) Moreover, we think the pleadings with the contracts attached as exhibits were quite sufficient to present the main issue for adjudication without amendment.
It is finally argued that the liability of defendants, if any, should have been considered as one upon an open account, and if so considered it would have been barred by the statute of limitations. But the inception of appellants’ liability lay in their signatures to their written contracts of 1929. Predicated on those contracts plaintiff sold the merchandise to the S. G. Klaurens Motor Company on credit, and took its notes as evidence of the amounts due therefor. The resourcefulness of counsel who have sought to extricate appellants from the binding force of their contracts, as shown in this record, is remarkable. It is unavailing, however, because such contracts and their incidents and consequences are unavoidable. Were the law otherwise the execution of written contracts would be a sheer futility.
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The opinion of the court was delivered by
Hoch, J.:
This was an action to set aside a conveyance alleged to have been made in fraud of the plaintiff as a creditor of the grantors, A demurrer to the petition by the grantors and the grantee was overruled, and from that order the grantee appeals. The principal question is whether recovery was barred by the statute of limitations or by laches of the plaintiff.
On February 28,1925, Arthur H. DeRoo and Mina L. DeRoo, his wife, executed their promissory note to Arthur Causemaker, the appellee, for $5,000, due one year from date. All parties were residents of Illinois. Interest was paid annually and regularly from February 28, 1926, to and including February 28, 1936, without renewal of the note. On January 15,1937, an interest payment of $30 was credited on the note. On the next regular interest-paying date, February 28, 1937, there was default in payment of interest and thereafter no payment on principal or interest was made.
Mina L. DeRoo had been the owner of a section of land in Pawnee county, Kansas. Appellee brought an action on the note in that county February 9, 1939, service of summons was had by publication, the interest of Mina L. DeRoo and her husband, Arthur H. DeRoo, in the land was attached, and on April 10, 1939, a judgment in rem for $5,825 and interest was obtained against the DeRoos and the land ordered sold. Sale was not effected for reasons presently to be stated. It appears that soon after the last regular interest payment, and on March 23,1936, the DeRoos executed a quitclaim deed to the Pawnee county land to their son Arthur Francis DeRoo, the stated consideration being “one dollar and other good and valuable considerations.” This deed was recorded in Pawnee county on April 10,1936.
On May 2,1939, appellee filed the instant action'in Pawnee county to set aside the quitclaim deed on the ground that it was given in fraud of his interests as a creditor of the grantors. All three of the DeRoos were made defendants. The petition alleged, in addition to facts hereinbefore narrated, that at the time the plaintiff made the loan to the DeRoos in 1925, “he relied on the ownership and property rights of Mina L. DeRoo in said property”; that the quitclaim deed conveyed only the legal title to the son and the equitable title remained in Mina L. DeRoo; that the son, Arthur Francis DeRoo, had never claimed or exercised ownership or control of the land and there was no intention that he should do so; that he had not collected or received any rentals or other income from the land; that at the time the quitclaim deed was executed on March 23, 1936, the grantors “were in a precarious financial condition, and were practically, if not totally insolvent”; that by reason of the said conveyance they “did not retain sufficient property to pay their obligations and indebtedness, and particularly the indebtedness they each owed the plaintiff”; that the conveyance was made “without consideration, with the intent to hinder, delay and defraud the creditors of the defendant grantor, and in particular, the plaintiff”; that the plaintiff did not learn about this quitclaim deed until in March, 1938; that from time to time after default in payment of interest, demands for payment of the note were made and assurances given that payment would be made, and that these promises were the principal cause of the delay in bringing action to collect the debt; that the grantors possessed no other property out of which plaintiff’s demand could be satisfied in this state or in Illinois; that the grantee, by reason of his relationship as son of the grantors, knew that his parents “were failing or had failed financially” and that he knowingly participated in the scheme to defraud their creditors and particularly the plaintiff; that aside from the land attached in the first action, the plaintiff had no “adequate remedy at law to enforce the collection and payment of his claim against said defendants”; and that as long as the1 legal title to the land stood in the name of the son, no sale of the land could bo effected under the judgment theretofore rendered. The prayer was that the deed be declared void and the land ordered sold under the previous order of sale, free from any claim of the son as grantee.
On such facts, was the plaintiff entitled to have the deed set aside? Appellant contends that since the action to reduce the debt to judgment was not begun until more than two years after the deed was recorded, a cause of action to set aside the deed on account of fraud was barred by G. S. 1935, 60-306, which provides:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued . . . Third. Within two years: ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
A few general rules, here pertinent, may be briefly stated.
The recording of conveyances which are regular on their face, although given for the purpose of defrauding creditors, ordinarily constitutes constructive notice of their execution and contents, but not of the fraudulent purpose of the transfer. (Underwood v. Fosha, 96 Kan. 549, 551, 152 Pac. 638; Kline v. Cowan, 84 Kan. 772, 776, 115 Pac. 587; Donaldson v. Jacobitz, 67 Kan. 244, 246, 72 Pac. 846.) However, if the circumstances are such that the very making of the transfer and the terms of the instrument are of the essence of the cause of action for fraud, or are otherwise of such a character as to put a person of ordinary prudence upon inquiry.as to the presence of fraud, the recording of the instrument also imparts notice of the fraudulent intent. (Kittel v. Smith, 136 Kan. 522, 524, 16 P. 2d 538; Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077; Donaldson v. Jacobitz, supra; Black v. Black, 64 Kan. 689, 706, 68 Pac. 662.) On the other hand, where no obligation to examine the public records exists, or where a party participating in the fraud has led the defrauded party to forego an examination of the records, the recording of the instrument may not constitute constructive notice even as to its execution and contents, or the party guilty of the fraud may not assert such constructive notice. (Hutto v. Knowlton, 82 Kan. 445, 449, 108 Pac. 825.)
Another general rule to which this court has repeatedly given approval — at least as to resident debtors — is that a cause of action .to set aside a conveyance alleged to have been made in fraud of creditors does not accrue until the debt has been reduced to judgment, execution issued thereon — unless the debtor is insolvent — and returned unsatisfied because of no property found. (First National Bank v. Smith, 143 Kan. 369, 372, 55 P. 2d 420; National Bank v. Walters, 129 Kan. 49, 50, 281 Pac. 868; Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; Bank v. Chatten, 59 Kan. 303, 52 Pac. 893.) While this general rule has had wide acceptance, there is considerable conflict of authority concerning it, and particularly as to the requirement that execution must be issued and returned unsatisfied before the creditor is entitled to institute action to set aside a conveyance made in fraud of creditors. (See 1 Glenn, Fraudulent Conveyances and Preferences, rev. ed., chapters VI, VII[A], and VII[B].) The reasoning upon which the rule is obviously based is that the mere alienation of property by a debtor does not necessarily indicate that he seeks thereby to defraud his creditors, or that his obligations will not be met when due; and that until the creditor has reduced his debt to judgment and shown that the judgment is not collectible except out of the property whose transfer he attacks, he is in no position to allege fraud and to ask that the conveyance be set aside. As ordinarily stated, the rule seems to declare that a judgment, execution thereon and return unsatisfied, are a condition precedent to a creditor’s right to proceed in an action to set aside the conveyance. We cannot say that so rigid a construction of the rule has been followed in this state. In the case of Benson v. Altenburg, 124 Kan. 296, 259 Pac. 791, this court, although expressly recognizing the rule that a creditor must exhaust all process to secure a lien upon the debtor’s property before filing an action in the nature of a creditor’s bill to set aside a fraudulent conveyance, refused to set aside a judgment obtained by a creditor in such an action, although no execution had been issued on his prior judgment against the debtor. The judgment setting aside the conveyance was upheld for the reason that it had been shown in the trial of the case that issuance of execution on the judgment would have been fruitless, and would have served no useful purpose.
On the heels of the general rule just discussed, there inevitably follows another rule. It is that a creditor cannot indefinitely postpone accrual of his cause of action to set aside a conveyance fraudulently made, by undue delay in bringing action to reduce his debt to judgment, if he has had notice of the fraud or by reasonable diligence would have discovered it, or by dilatory prosecution of such action to finality after it has been commenced. (First National Bank v. Smith, supra; National Bank v. Walters, supra; Young v. Buck, 97 Kan. 39, 195, 154 Pac. 213, 1010; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846.)
G. S. 1935, 60-306, third, does not require that an action be begun within two years after the fraudulent conveyance was made, or within two years after notice, actual or constructive, of the fraud. Action must be begun within two years “after the cause of action shall have accrued.” (Italics ours.) Although a conveyance may have been made and recorded, and the creditor is charged with notice of its fraudulent intent, he is in no position to proceed in an action to reduce the debt to judgment unless the debt is in default. In Young v. Buck, supra, p. 197, it was said:
“It is often said that a cause of action for relief on the ground of fraud accrues when the fraud is discovered, or when in the exercise of reasonable diligence it should have been discovered. Such a statement is substantially, but not absolutely, accurate. It is sufficiently exact to answer the purpose of the cases in which it has been employed. The statute, however, does not say that an action for relief on the ground of fraud is barred in two years from the time the fraud is discovered. It says that it is barred in two years from the time it shall have accrued. It does not say that all actions for relief on the ground of fraud shall be deemed to accrue upon the discovery of the fraud, but that no such action shall be deemed to accrue until the fraud is discovered. Its exact language is: ‘the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.’ Under these provisions the action accrues when the fraud is discovered, provided it is already complete in every other respect. But an action by a creditor to set aside a fraudulent conveyance of his debtor does not accrue in any event until his claim is reduced to a judgment. If when the judgment is obtained the fraud has been discovered, actually or constructively, his cause of action then accrues. If not, it accrues at such later time as the fraud is discovered. It cannot accrue until he has a right to bring his action, and until that time the statute of limitations cannot begin to run.”
(See, also, Hardware Co. v. Semke, 105 Kan. 628, 631, 185 Pac. 732.)
Much confusion of thought in connection with some of the cases will be avoided if it be remembered that there are generally two actions involved — the first one being the action to reduce the debt to judgment, and the second one being the action to set aside the conveyance made in fraud of creditors. This distinction will, we think, resolve much, at least, of the conflict which counsel find between the cases. As heretofore noted, this court has said that the cause of action accrues in the second action when the debt has been reduced to judgment and execution thereon has been returned unsatisfied. The creditor cannot, however, unduly delay reducing the debt to judgment, and in Donaldson v. Jacobitz, supra, it was said in the syllabus that this delay “could in no event exceed two years without resulting in a complete bar to the action.” We think it is clear, from an examination of the opinion in that case, that the two years referred to would not necessarily begin when the fraud was discovered, but when — -in addition to such discovery — there was also right of action upon the debt. The court held, in effect, that a delay of more than two years — the limit provided by statute for actions founded on fraud — after the fraud had been discovered and the debt was due before starting action to reduce the debt to judgment would be an unreasonable delay.
In National Bank v. Walters, 129 Kan. 49, 281 Pac. 868, upon which appellee places much reliance, the petition in the nature of a creditor’s bill to set aside the conveyance was not filed, it is true, until more than two years after discovery of the fraud, and yet the plaintiff was permitted to recover. But in that case the action to reduce the debt to judgment was first brought within about fifteen months after the note matured and subsequent delays were expressly held not to involve laches on the part of the creditor. For the reasons clearly stated in Young v. Buck, 97 Kan. 39, 154 Pac. 213, the statute would not start to run until the cause of action accrued, and the cause of action would not accrue at least until judgment on the debt had been obtained. Having in mind the distinction between action on the debt and action to set aside the conveyance, we discern no conflict, in the light of the particular facts, between the Smith case, 143 Kan., supra, and the Walters case, 129 Kan., supra, which counsel for appellant seems to think exists. The two cases were well distinguished in the opinion in the former case.
In the light of the rules of law hereinbefore stated, let us examine the facts of the instant case. In 1925 the appellee loaned the De-Roos $5,000 and took their unsecured note for that amount. The note became due on February 28,1926. When the due date arrived he could have demanded payment, or required renewal of the note, or continued to carry the debt without renewal and without security, lie chose the latter course. While interest was paid regularly to February 28, 1936, there was no time during that ten-year period when payment of the principal could not have been demanded. On April 10, 1936, the deed was recorded. Under the facts as alleged, appellee must be charged with constructive notice, as of that date, of its execution and of its contents. The deed showed on its face that the grantee was the'son of the grantors and that the considera-, tion was nominal. The note was then more than ten years past due. Appellee alleges that he had' extended credit in particular reliance upon the ownership by the borrowers of this very land. He alleges that in April, 1936, when the deed was given and recorded, the debtors “were practically, if not totally insolvent.” Being charged with knowledge of the quitclaim deed and of its contents, he must be charged with knowledge that his debtors had attempted to convey away, without substantial consideration, the very property upon which he had relied as a creditor. Under such circumstances, what should appellee have done? Clearly, if he desired to attack the deed as being in fraud of his interests, he was obliged to proceed, without unreasonable delay, to qualify himself for bringing such an action by reducing the debt to judgment. He did not do so. He waited until February 8, 1939, about two years and ten months, before starting any sort of action to collect the debt. Under all the decisions above cited, this was too late.
It may be noted in passing that when he did start action it was not in Illinois, where both he, the grantors and the grantee lived. He sought a judgment in rem in Kansas in order to attach this particular property. It might be argued that such a proceeding does not comply with the essential reasons upon which the rule is based that before he is qualified to set aside a conveyance, the creditor must show a personal judgment with execution thereon returned unsatisfied. But whatever might be said for the argument, appellant would have to overcome the authority of Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634, wherein the facts were much like those of the instant case, and wherein the creditor had obtained only a judgment in rem, as against a nonresident debtor, but was permitted to maintain the action to set aside the conveyance. Moreover, there is much authority to support the view taken in the Lomax case that non-residence or absence of the debtor obviates the necessity of a prior judgment at law — at least where such nonresidence or absence renders it impossible or impracticable to obtain such a judgment. (See 38 A. L. R. 269.) Moreover, it was alleged in the instant petition that the debtors had no property in Illinois out of which the demand could be satisfied. The case being here upon demurrer to the petition, the allegation must be taken as true. Accordingly, a judgment and issuance of execution thereon would have been fruitless, and under the authority of Benson v. Altenburg, 124 Kan. 296, 259 Pac. 791, the appellee would not be required to pursue a course which would be futile.
It follows from the conclusions hereinbefore stated that the action to set aside the deed was barred and that .the" demurrer should have been sustained. The judgment must be reversed. It is so ordered! | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action against Andy Graff to compel specific performance by him of a contract for the purchase of real estate.
The petition filed September 19,1939, alleged that plaintiffs Glenn Ayers and Grace Ayers McClintock were the owners in fee tail of the real estate hereafter described and entitled to convey the fee simple title thereto, and that the other plaintiffs were agents of the owners; that on February 27, 1939, the defendant entered into a written contract with plaintiffs whereby he agreed to purchase the real estate for $4,000, paying $500 as part of the purchase price as provided in the contract, a copy of which was attached to the petition: that plaintiffs were ready and willing to perform when de fendant paid the remainder of the purchase price and they had tendered a deed which defendant refused to accept; that defendant, through his attorneys, had rendered an opinion on the abstract of title, directing attention to a suit .wherein Glenn Ayers and Grace Ayers McClintock had been found to own the land in estate tail; that on May 1, 1926, in an action in the district court of Mitchell county wherein Glenn Ayers and Grace Ayers McClintock were plaintiffs and Ord Clingman, administrator of the estate of Aaron Clingman, deceased, was defendant, being an action to construe the will of Aaron Clingman, the court rendered judgment that the will conveyed an estate tail to the devisees, Glenn Ayers and Grace Ayers McClintock, which may be converted into a fee title by proper conveyance, and that no appeal had been taken from that judgment. Plaintiffs prayed for performance of the contract by the defendant. The contract provided that plaintiff would convey by warranty deed in fee simple, clear of all incumbrances, and Graff would buy the property for $4,000, $500 being placed in escrow in the Traders State Bank of Glen Elder and as soon as Graff approved the title he was to pay the balance of $3,500.
So far as need be noticed, the answer of Graff, filed September 28, 1939, alleged that the purported judgment and decree of the district court of Mitchell county was ineffectual to create an estate tail in Glenn Ayers and Grace Ayers McClintock and was not such a judgment as would bar the issue of them or other possible remaindermen, for the reason Ord Cyrus Clingman, as an individual, was the sole and only defendant; that Glenn Ayers and Grace Ayers McClintock had no right or interest in the real estate except such as was devised to them under the second paragraph of the will of Aaron Clingman, deceased, which read as follows:
“2d. I give, bequeath and devise to my beloved grandchildren Glenn Ayers and Grace Ayers McClintock, to have and to enjoy the use thereof during their natural lifetime, without impeachment of waste, condition or limitation of any kind, share and share alike, the tract of land lying and situate in Mitchell county, Kansas, and more particularly described as the southeast quarter (S. E. %) of section three (3) in township six (6) south of range ten (10) west of the 6th p. m. and containing one hundred sixty (160) acres, to be used by them during their natural life, all except herein provided: and upon the death of either or both of said grandchildren, or upon my own death in case I survive either, to the living issue of such deceased grandchild, if any, the undivided share of such deceased parent, to be divided share and share alike, by such living issue, if any, and if no living issue, then such share to go to the surviving grandchild above named.”
It was further alleged that at the time of his death Aaron Cling-man was a widower, and that he was survived by a son, Ord Cyrus Clingman, two daughters, Emma Susan Shearer and Mattie Sutton, and two grandchildren above named; that the abstract of title did not disclose whether Glenn Ayers or Grace Ayers McClintock had any issue, but that defendant had been informed that both now have issue living and that some of such issue were minors at the time of the commencement of the action to construe the will; that a conveyance from Glenn Ayers and Grace Ayers McClintock would not invest their grantee with a fee simple title; that the abstract of title never disclosed a merchantable title, and that the deeds tendered by plaintiffs were defective and insufficient to constitute a fulfillment of the contract. Defendant prayed for judgment in his favor. Attached to the answer were copies of attorneys’ written opinions on the title which need not be reviewed. The plaintiff filed no reply to such new matter as was included in the answer.
On November 21, 1939, an affidavit of Mattie Sutton was filed which shows that Aaron Clingman died February 15, 1923; that the action to construe his will was filed May 1, 1926; that Grace Ayers McClintock had nine living children, three of them having been born prior to the death of Aaron Clingman, and that Glenn Ayers had a child born after the death of Aaron Clingman. On July 24, 1940, defendant Graff filed his motion for judgment upon the pleadings in the action and the records in the cause. This motion was denied, Graff gave notice in open court of his intention to appeal and the court thereupon announced consideration of the interplea of the Traders State Bank would be deferred. The appeal was duly perfected. Thereafter the parties entered into a stipulation requesting this court to decide certain questions, all of them being mentioned in briefs submitted. Some of them obviously were not considered by the trial court and will not be discussed by us. We shall limit our discussion to matters pertaining only to the correctness of the trial court’s ruling on the motion for judgment.
The basic question presented is whether the defendant was warranted in his refusal to accept the title to the lands involved. We approve and adhere to the rule announced in Eisenhour v. Cities Service Oil Co., 149 Kan. 853, 89 P. 2d 912, where it was held:
“A title need not be bad in fact in order to be nonmerchantable or unmarketable. It is sufficient to render it so if an ordinarily prudent man with knowledge of the facts and aware of the legal questions involved would not accept it in the ordinary course of business.” (Syl. ¶ 3.)
To determine the condition of the title presently involved requires consideration of two matters. Is the judgment in the suit of Glenn Ayers and Grace Ayers McClintock against Ord Cyrus Clingman and brought to construe the second paragraph of the will of Aaron Cling-man res judicata and not subject to collateral attack by Andy Graff, and if that question be answered in the negative, was the nature of the estate devised to Glenn Ayers and Grace Ayers McClintock under the will such that an ordinarily prudent man would not accept a warranty deed from them as a conveyance of the fee simple estate?
It is clear that in the action to construe paragraph 2 of the will, the sole defendant was Ord Cyrus Clingman. There is some controversy whether he was sued in his representative capacity as an executor, or in his individual capacity as an heir, but we do not think it necessary to discuss that phase of the matter. It is also clear that at the time that action was filed, Grace Ayers McClintock had three living children issue of her body, and that they were not made defendants. It is equally clear-that if the paragraph of the will was ambiguous as to the estate created, and the petition in the action to construe the will alleged it was, and Glenn Ayers and Grace Ayers McClintock did not have a fee tail estate devised to them, then the living issue of either surviving woud be remaindermen. The purpose of the suit by the plaintiffs was to have the estate devised to them declared to be an estate tail and was adverse to the issue. We need not consider whether the party defendant was all that was necessary had no issue been living when the action was filed, for that situation did not obtain. It is well settled that in a suit to construe a will, all persons who are interested in the subject matter and whose interests will necessarily be affected by the construction of the will and the decree rendered are not only proper, but necessary and indispensable parties. (See 69 C. J. 882; Pomeroy’s Equity Jurisprudence, 4th ed., § 114; Page on Wills, 2d ed., § 1405; Underhill on Wills, § 457, p. 610; Bartlett’s Kansas Probate Law and Practice, § 439, p. 440; Note, 120 A. L. R. 876.) The children should have been parties to the above action if their rights under the will were to be adjudicated. In this case it is not proper to say they are in privity with their parents and are bound. Such rights as they may have come by reason of their being devisees under the will of Aaron Clingman, and not by reason of their being heirs of their respective parents. (50 C. J. 407, 34 C. J. 1010 et seq., 15 R. C. L. 1015; Fitzgerald v. Fitzgerald, 97 Kan. 408, 411, 155 Pac. 791; Allen v. Birch, 129 Kan. 351, 355, 282 Pac. 737.) The interests of the parents and the children are adverse to each other. Under the circumstances, they were strangers to the suit and such rights as they had were not adjudicated. Neither may it be said the present defendant is in privity with Glenn Ayers or Grace Ayers McClintock. He is resisting taking title from them.
Although we are asked to decide the exact nature of the estate granted under the above paragraph of the will of Aaron Clingman, that may not be done for two reasons. There is no indication in the pleadings or record that that issue was raised in the trial court, or if it was, it could not have been determined, because none of the issue whose rights would have been adjudicated were before that court as parties to the action. We examine into the matter only far enough to determine whether or not the defendant in the instant case was justified in his refusal to accept the title. It will be observed that the first portion of the paragraph of the will devises to Glenn Ayers and Grace Ayers McClintock only a life estate. If it be .assumed the latter portion enlarged that estate to a fee tail estate, it was because of the provision:
“To the living issue of such deceased grandchild, if any, . . . and if no living issue, then such share to go to the surviving grandchild above named.”
Although as indicated, the question is not properly before us for a decision binding upon the issue, it may be said that under Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904; Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433; Coleman v. Shoemaker, 147 Kan. 689, 78 P. 2d 905, there is grave doubt that an indefinite failure of issue was provided or that an estate tail resulted. (See, also, Bartlett’s Kansas Probate Law and Practice, § 419 [4], p. 407.) No action has been brought against the proper parties for a legal adjudication of the nature of the estate granted. As disclosed by the record, there was sufficient doubt based on reasonable grounds which would impel a reasonably prudent man, familiar with the facts, to reject the title in the ordinary course of business; That being disclosed by the record, the trial court erred in not sustaining appellant’s motion for judgment.
The judgment of the trial court is reversed and the cause remanded with instructions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Hooh, J.:
This is a workmen’s compensation case. Claimant, an injured workman, secured a default judgment in the district court against the employer, but was denied relief from the defendant insurance company. From the latter adverse judgment he appeals.
The questions presented are whether the trial court’s findings, as to the material facts, are supported by the evidence, and whether, if so supported, the court erred in its conclusion of law that the claimant had no right of recovery as against the insurance company. More specifically, the main law question is whether an employee can recover compensation from an insurance company, for serious injury received prior to the application or issuance of an antedated compensation insurance policy, but within the term therein fixed, the fact of such injury having been fraudulently concealed by the employers when the application was made.
This case has been here before on another question. At the initial hearing before the commissioner, counsel for the insurance company made a statement which by admission became a stipulation as to certain facts, and outlined the company’s contention that on account of fraudulent representations and concealment, there was no coverage. Counsel and commissioner believing that the commissioner was without jurisdiction to consider the company’s equitable defense, no testimony was introduced by the company. The commissioner made an award from which thfe company appealed to the district court. Pending the hearing of this appeal in the district court, the insurance company instituted an independent action in equity seeking reformation or cancellation of the policy and an injunction against enforcement of the policy. Claimant, the employers, and the compensation commissioner were made defendants in the equity action, and pending the outcome of that action, the compensation proceedings were stayed in the district court. In Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456, this court considered an appeal from an order of the district court sustaining a demurrer to the petition in the equity action and held, in an opinion filed January 27,1940, that the jurisdiction of the compensation commissioner is complete, with a procedure that is exclusive for determining liability under the workmen’s compensation act, and that incidental thereto is the power to hear and determine equitable defenses. Accordingly, the order sustaining the demurrer was affirmed on the ground that the district court had no jurisdiction to entertain the separate action in equity until the remedies provided by the compensation act were exhausted. The appeal from the award by the commissioner thereupon proceeded in the district court.
The trial court made rather extended and detailed findings of fact and conclusions of law. It will suffice to summarize the findings of fact pertinent to the issue presented. The court found:
That J. P. and B. P. Hollis were drilling an oil well in Greenwood county in October, 1937;
That Ott Hollis, their father, was personally interested with his sons in the oil drilling business, employed help, paid bills, paid this claimant for his work on the well, gave directions to the workers, and was in fact a partner;
That in November, after the accident in October, Ott Hollis wrote to the claimant advising him he was sending him some money and would have something for him to do as soon as he could drive a truck, and that “then we will take care of the hospital bill and Doctor”;
That in the forenoon of October 22, 1937, claimant received a severe injury while working on the well for Hollis brothers, B. P. Hollis being present at the time;
That in September, 1937, Mr. Corrigan, a solicitor for the Wheeler-Kelly-Hagney Company of Wichita wrote Hollis a letter asking about their compensation insurance, but received no reply at the time;
That in the afternoon of October 22, about four hours after the accident, Ott Hollis called upon Corrigan at his office in Wichita, “and representing the partnership, made application for compensation insurance with the Employers’ Liability Insurance Corporation”;
That, the application was received by Corrigan, together with a check for about 1112 in payment of the premium, and Hollis requested that the check be held until he could get back to Eureka and send a draft for it;
That a policy was thereupon issued, dated October 22, and the term fixed to begin at 12:01 a. m. of the same day — this provision of the policy being printed thereon in harmony with what appeared to be the customary practice of the company in'making such policies run from 12:01 a. m. of the date of issue;
That it does not appear from the record as to what date the policy was actually issued;
That when Hollis made the application he advised the agent that “they had carried compensation for about a five-year period; that they had only had two minor accidents prior to that period of time, and that they had never had any insurance canceled”;
That the statements so made to the agent were false for the reason that they had had compensation insurance previously which had been canceled and that they had had losses;
That Hollis did not disclose to the company the fact that the employee, Matlock, had beeen injured about four hours previous to the making of the application;
That the company, having discovered later upon investigation that the employee had been injured as above stated, that Hollis brothers had had compensation insurance previously which had been canceled, that they had had losses, that they were not financially reliable, returned the check and canceled the policy as of the date of issue;
That “representations made by Hollis as above were untrue and were fraudulently made for the purpose of securing said insurance, and such representations and the withholding of information of fact that an injury had already occurred to one of their employees, claimant herein, worked a fraud upon the insurance company”;
That prior to the instant application “these people had carried other liability insurance,” that Joe Matlock, father of the claimant, testified: “Well, of course John Hollis, I was pretty well acquainted with Bart, I was talking to him on Wednesday, I believe, I was in Wichita when it happened, on Wednesday after it happened I was talking to Bart down at the well, and he said the boy is insured, he can chaw a thousand dollars and his doctor bill, but we would just rather pay him $16 a week and his doctor bill and not cash in on his insurance, that was what Bart told me”;
That “from the foregoing it is found that Hollis brothers at the time they made application for the insurance knew that the policy, if issued, would run from 12:01 a.m. of that date.”
Following were the court’s conclusions of law:
“1. The contract of insurance having been secured from the company through fraud perpetrated upon it by said Hollis brothers, created no protection to them or right of recovery by them, thereunder.
“2. Hollis brothers, having no rights under said policy as against the insurance company by reason of their fraud, could not create for the claimant, Ernest Matlock, a right of recovery as against the company, which right of recovery he did not have at the time of the injury. (Italics ours.)
“3. Claimant, Matlock, is not entitled to any relief as against the insurance company.
“4. The award of the compensation commissioner as against J. P. Hollis and B. P. Hollis, doing business as Hollis brothers, should be affirmed, and as against Employers’ Liability Assurance Corporation, Limited, should be set aside and annulled.”
As to the findings of fact, appellant denies that there was evidence to support the finding that Ott Hollis, who secured issuance of the policy, was a partner in Hollis brothers; that there were any material misrepresentations about previous insurance which had been canceled; that there were false statements concerning previous losses; that there was fraudulent concealment of the fact of the employee’s injury; that the employers had knowledge that the policy would be effective from 12:01 a. m. on the day of the injury.
We consider it unnecessary to discuss at any length the question of whether the father, Ott Hollis, was actually a partner as found by the court. There was certainly plenty of testimony tending to show partnership, but whether or not he was a partner in Hollis brothers, he applied for the insurance in their name, answered the company’s inquiries, and paid the premium. They accepted the policy which was issued in their name, thus ratifying the acts of Ott Hollis in so securing it, and it is this policy upon which claimant relies. There was ample evidence to support the court’s finding that Ott Hollis acted for Hollis brothers.
It is equally unnecessary to discuss at any length the court’s findings that the employers misrepresented to the company that they had had no previous insurance which had been canceled and that they had had only two minor injuries and no losses. When the claim was first filed and came on for hearing before the compensation commissioner, counsel for appellee, when he appeared to give notice of the insurance company’s contention that there was no coverage, made a statement of facts including reference to these misrepresentations as to prior losses and cancellation of insurance, and following such statement, counsel for the claimant said: “I don’t question that statement at all, and see no possibility of refuting any part of it, and I am willing that that be a stipulation of the facts.”
In view of the primary and controlling importance of the question of concealment by the employers of the existence of the injury theretofore suffered by their employee, we shall devote no further discussion to the fraudulent misrepresentations as to prior losses and cancellation of insurance, except to say that clearly they were of a character which would at least make the policy voidable and unenforceable as between the insured and the insurance carrier.
Before proceeding to the main question of law, we take note of appellant’s contention that there was no evidence that any misrepresentations or solicitations by the appellant were responsible for antedating the policy for about fourteen hours in order to fix a term that would include the time, three hours prior to the application, when the appellant was injured. The court found that the insured knew that if the policy were issued, its term, according to the provision printed thereon, would begin several hours prior to the injury, and that it was the custom of the company to fix the term of its policies to begin at 12:01 a. m. of the date of issue. The court found that Hollis brothers had previously carried liability insurance. The court also called attention, in its findings of facts, to testimony to the effect that on the Wednesday after appellant’s injury Bart Hollis — one of the brothers — stated to claimant’s father that the appellant was insured, the inference being that he must have known, therefore, that the term of the policy antedated the accident. Appellant urges that the “Wednesday” testified to was five days after the accident, and that there is nothing to indicate to what “insurance” Bart Hollis was referring. As we view it, it makes little difference whether the employer specifically induced the company to antedate the policy. As the trial court pointed out, that provision was a part of the printed form of the policy; and, in any event, the employers accepted the policy with that provision in it, the term so fixed being covered by the premium which was paid.
Appellant urges further that the trial court did not specifically find that Ott Hollis knew and concealed the fact of the accident. The argument is unconvincing. The court found specifically that Ott Hollis “did not disclose to the company” the fact of the employee’s injury, that he withheld “information of fact that an injury had already occurred to one of their employees,” and that by doing so he “worked a fraud upon the insurance company.” Obviously, Hollis could not be guilty of having “worked a fraud upon the insurance company” by not disclosing or by withholding information, if he did not have such information.
In approaching the instant issue, we bear in mind certain principles or considerations which should be noted. First-, concerning the workmen’s compensation act (G. S. 1935, 44-501 to 44-565). The act is founded broadly upon considerations of public policy. Its purpose is to provide protection to workmen within the limits established by the act, and particularly in hazardous employments. It follows that the necessity of effectuating the public policy which animates the act must always weigh heavily in determining doubtful issues arising under it. To this end this court is committed in many decisions, unnecessary to review, to a liberal interpretation of the act in favor of the employee. Appellant’s statement, however, that employers “are required to insure and keep insured their liability under the act” is not quite accurate. Employers — within the limits of the act — are made liable to employees for compensation for personal injuries by accident in the course of their employment. (G. S. 1935, 44-501.) In order to fortify this liability, such employers are required either to insure the payment of compensation fixed by the act in an approved insurance company, or “by showing to the commission that said employer carries his own risk and is what is known as a self-insurer and by furnishing proof to the commission of his or its financial ability to pay such compensation for himself or it” (G. S. 1935, 44-532). While the act provides penalties to employers and insurance companies for violation of certain provisions, it cannot be said that the state is a guarantor of the protection which the act contemplates. If an employer has not taken out compensation insurance and if he proves not to be financially responsible — whether or not he has made the showing to qualify as a self-insurer — -the law provides no civil recourse to the employee other than his right of action against the employer. In other words, the employee may assume that such protection as the compensation act calls for has been provided by the employer, but if he enters the employment without assuring himself that insurance is carried, or that the employer is financially responsible as a self-insurer, the law itself provides no further method of securing compensation in case of injury.
Further, as to the act: Under its terms the obligation of the insurance carrier is direct to the employee, who, as well as the employer, may enforce, in appropriate action, any rights granted under the act (G. S. 1935, 44-559). The instant policy, in explicit terms, embodies the statutory requirement of direct obligation to the injured employee. We shall presently consider the applicability, if any, of this direct contractual liability to the employee under the facts in this case.
Appellant’s principal contentions may be summarized as follows: The purpose of the workmen’s compensation act is to afford pro-iection to employees in furtherance of a broad and sound public policy; the appellant had a right to assume that such protection had been provided by his employer; the appellee was under no obligation to issue a policy to the employer; but having voluntarily assumed the risk, it must fulfill the terms' of the policy unless the policy is regularly canceled after proper notice; the insurer voluntarily antedated the policy to 12:01 a. m, of the day when the application was made, and accepted a premium to cover a term beginning at that time; it is entirely lawful to antedate insurance policies and liability is thereby assumed for all injuries during the term, including those occurring prior to the application or issuance of the policy; even though the policy may be unenforceable by the employer and may be subject to cancellation by the insurer on account of the employer’s fraud or misrepresentation, the employee may recover from the insurer in the absence of fraud on his own part.
While the propriety of permitting the antedating of insurance policies may be debatable, the legality of the practice is well established, provided, of course, that good faith on both sides is present. Parties to the contract have a right to agree on the beginning as well as the ending of the term covered by the policy. We have found no authority, however, either textbook writer or decided case, where the validity of such a contract is not dependent upon an uncertain and unknown loss. There must be mutuality of risk. There must be no knowledge by either party, undisclosed to the other, at the time the contract is made which destroys the uncertainty of loss as far as he is concerned. This proposition will presently receive further attention.
It is not questioned that insurance policies, being contracts, are subject to the same essential requirements as pertain to contracts generally — meeting of the minds, mutuality, consideration, etc. In insurance contracts “a risk or contingency insured against” is an indispensable factor. Without it the very basis of an insurance contract is absent. (32 C. J. 1095.) This contingency, or uncertain event, is in the nature of a condition precedent. “A breach of condition precedent renders the policy void at its inception, so that it never attaches” (3 Cooley’s Briefs on Insurance, 2d ed., 1918).
The distinction between a fraudulent concealment of a loss already suffered, in order to secure insurance coverage of such loss, and fraudulent representations as to other matters which might or might not have led the insurance carrier to refuse the risk, is apparent. If A applies for fire insurance upon a building and fraudulently represents that he has had no fire losses, the policy may be voidable and subject to cancellation by the insurer upon discovery that the insured had had losses under circumstances making the new risk undesirable. But if he applies for insurance knowing that the building has already been destroyed by fire, conceals the fact of the prior loss and secures a policy antedated to cover the time of the loss, the policy is void and no liability ever attaches. It is void because there is no uncertain event, no contingency or risk mutual in character which is the basic factor in insurance contracts. The principle is akin to the rule that “if no insurable interest exists, the contract is void” (29 Am. Jur. 289.) There are many cases where antedated fire insurance policies have been upheld where the property insured had been destroyed prior to the application, but the loss was unknown to the insured. The uncertainty was equally present in the minds of both parties. The premium was paid and the liability assumed for the agreed purpose of covering the uncertainty. This class of policy has been especially common in marine insurance providing protection “lost or not lost” of vessels which have previously sailed. But concealment of a known loss obviously destroys the very basis upon which such antedated policy rests. To put it another way: While insurance contracts are not technically wagering contracts, an applicant for insurance stakes his premium payment on the chance that there will be a loss. By the same token, the insurance carrier takes a chance — the heavy odds being represented by the face of the policy as against the premium — that there will be no loss. But if the applicant knows his house has already burned down, he is taking no chance, and the policy is not merely voidable, but is void. The implied condition, requisite to the contract, is absent.
The principle just stated is applicable to fire, life, compensation, or any other sort of insurance. If the employer conceals the fact of an injury to an employee which would be covered by an antedated policy which he accepts, he is taking no chance — the contingency, the risk is not mutual. He is seeking indemnity under a contract predicated on an uncertain event, when as to him the event has ceased to be uncertain. We have found no authority which would make such a contract merely voidable. It is void ab initio.
The principles just stated are not only supported by the authorities cited by appellee, and by others found in our own research— hereinafter cited- — but the. distinctions emphasized are likewise recognized in the cases cited by appellant. In his original brief the appellant relied mainly upon Matter of Aioss v. Sardo, 223 App. Div. 201; 227 N. Y. S. 708, which he stated was the only case squarely on the point which he had found. But that case involved no injury received prior to the application, no concealment of a loss which had already taken place. There was an untrue representation that “no similar insurance has been canceled by any insurance carrier during the past year.” Such a fraudulent representation is clearly of the class which may make a policy voidable. Had the company not been misled as to cancellation of prior insurance, it might not have assumed the risk; but there was none the less a risk of future loss to be assumed. There was a contingency mutually existing. The case only holds that until cancellation, there was a direct obligation to the employee which he might enforce.
In his reply brief appellant relies upon Points v. Wills, 44 N. Mex. 31, 97 P. 2d 374, which comes nearer to the case at bar than the Aioss case. But it has a fundamental difference. The applicant had filled out and mailed the application, together with a check for the premium before the injury occurred. There was an existing contingency, an uncertain event, a mutual risk at the time the application was made and the applicant parted with his money.
The cases cited by appellant involving the standard or “union” form of mortgage clauses frequently contained in fire and other property insurance policies are entirely in harmony with the principles and distinctions hereinbefore stated. They hold that there is a direct liability to the mortgagee regardless of 'fraudulent representations by the insured which would make the policy voidable. But we find no mortgage clause case in which the mortgagee was permitted to recover under a policy void at its inception on account of fraudulent concealment of basic facts essential to the very making of a contract.
In Continental Casualty Co. v. Lanzisero, 119 N. J. Eq. 166, 181 Atl. 170, it is true, as pointed out by appellant, the compulsory automobile policy did not provide for direct liability to third persons and therefore, to that extent is not in point here. But appellant himself calls attention to a statement in the opinion which does have significance, wherein it was said: “but Lanzisero was not then insured. He held no policy when the loss or damage occurred to which the injured persons could look for indemnity” (italics ours). That is precisely the situation here. When the injury occurred no policy had been issued and none even applied for to which he could look for relief.
In Commercial Insurance Co. v. Hallock, 27 N. J. L. 645, 72 Am. Dec. 379, recovery was permitted for a prior property loss under an antedated fire insurance policy, but in that case “there is no allegation of fraud or concealment.” It was stated that the company would be bound “if there is no fraud or concealment by the party insured” of the prior loss.
In Continental Cas. Co. v. Ind. Com., 61 Utah 16, 210 Pac. 127, cited by appellant, the application had been filled out, check for the premium enclosed in good faith with the application prior to the accident, and mailed before the applicant learned of the accident. Recovery was permitted, the court saying: “if the policy was obtained by fraud or if a mistake was made in fixing the date when the same should become effective, the Industrial Commission is not the tribunal to grant the plaintiff relief” (italics ours).
In Wales v. New York Bowery Fire Ins. Co., 37 Minn. 106, 33 N. W. 322, it was said that where the claimant under the policy knew the property had been destroyed but concealed that fact from the insurer, “the policy is void.”
In Porter’s Laws of Insurance, 6th ed., 7, “A policy . . . can equally not attach after the risk is determined one way or other, except in those special insurances when both parties, being equally ignorant of the position of the thing insured, contract to insure it lost or not lost.” (Italics ours.)
In 5 Williston on Contracts (Rev. ed.) 4154-4155: “Fraud may induce a person to assent to do something which he would not otherwise have done, or it may induce him to believe that the act which he does is something other than it actually is. In the first case the act of the defrauded person is operative though voidable; in the second case the act of the defrauded person is void.” (Italics ours.)
In Union Central Life Ins. Co. v. Zehr, 143 Kan. 910, 57 P. 2d 51, the bylaws of a fire insurance company provided that their policy would be void if the property was encumbered when the policy was issued. The mortgagee was permitted to recover in spite of the fact that there was a second'mortgage. But there was no fraud or concealment by the insured and the recovery was permitted because it was “through fault of the agent of the company the application for the policy failed to disclose” the encumbrance (italics ours). Es-toppel was there applicable. Moreover, there was property to be insured, there wras still a risk, a basis for contract.
It would unduly prolong this opinion to discuss individual cases further. In further support of the principles and distinctions here stated, see: Nippolt v. Firemen’s Ins. Co., 57 Minn. 275, 59 N. W. 191; Matter of Nick Orto, 245 App. Div. 782, 281 N. Y. S. 16, 271 N. Y. 551; Security Fire Ins. Co. of New York v. The Kentucky Marine & Fire Ins. Co., 7 Bush [Ky.] 81, 3 Am. Rep. 301; Mead v. Phenix Insurance Co., 158 Mass. 124, 32 N. E. 945; 1 Cooley’s Briefs on insurance, 114-115; Kerr on Fraud and Mistake, 5th ed., 101 et seq.; 14 R. C. L., 878, § 52; 32 C. J. 1109, § 202.
It is obvious that the principle of estoppel, which has been suggested, cannot here be invoked to bind the insurance company. It voluntarily antedated the policy and accepted the risk of possible injuries, unknown to either party, which might have occurred within the antedated period. But it would be preposterous to assume that it voluntarily took on liability for a serious injury known to the employers, and the appellee is not charged with any act or conduct which misled the employers.
It has been suggested that if the instant injury had not occurred, and exactly one year later at eleven o’clock in the forenoon of October 22, 1938, an injury had happened, the company would probably then be contending that the term of a year began at 12:01 a. m. on October 22,1937, and that therefore, the coverage had terminated. And why not? As hereinbefore noted, the legality of antedating policies to cover possible losses, unknown to have occurred when the policy is issued, is generally recognized. (See Matter of Nick Orto, supra; Commercial Insurance Co. v. Hallock, supra; Points v. Wills, supra; Security Fire Ins. Co. v. The Kentucky Marine & Fire Ins. Co., supra. If there had been no concealment of prior loss or other fraudulent representation, the policy would have been valid and would normally expire at 12:01 a. m. October 22, 1938.
The serious character of appellant’s injury, as claimed by appellant and conceded by appellee, brought an award of $1,586.80, including compensation and medical expense. A final judgment for that amount now stands as against the employers. Having knowledge of such a serious injury, they sought to cover it by paying a premium of $112. Nor can it be said that the benefits go solely to the employee, and therefore, the employers had no financial interest in the policy’s' protection. They are liable to the employee under the judgment, and it is for this liability that the policy, if valid, would indemnify them.
The conclusion is inescapable that the concealment of the injury went to the very heart of the contract, made it void at its inception, and no one can predicate any rights upon it. Under such facts, “public policy” as well as elementary principles of law, support the finding of the trial court that “Hollis brothers, having no rights under said policy as against the insurance company by reason of their fraud, could not create for the claimant, Ernest Matlock, a right of recovery as against the company, which right oj recovery he did not have at the time oj ihe injury.” (Italics ours.) And it must be equally clear that the fact that under the contract, if valid, or perhaps if voidable only and uncanceled at the time of injury, the employee would have a direct right of action against the insurance company, cannot prevail to give a right of action under a contract void at its inception. The argument urged by appellee that refusal to validate the policy takes from the employee no rights, no relief, to which he was entitled when the accident occurred is wholly in harmony with what has already been said. It is in fact implicit in the legal principles we have discussed. He is not deprived of any rights, actual, apparent or potential, then existing. Had the policy been merely voidable through fraudulent representations not affecting the very existence of a risk, a different question would be presented.
The conclusion already stated makes it unnecessary to consider other contentions discussed in the excellent briefs presented by both parties.
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The opinion of the court was delivered by
Smith, J.:
This was an action on a life insurance policy. Judgment was for the defendant. Plaintiff appeals.
After the formal allegations, the amended petition alleged that plaintiff was the widow of John Jarnevic and that he died about January 28, 1933. The petition then set out the names of the children of plaintiff and insured, and stated they were made parties on motion of defendant Woodmen of the World so that the rights of all parties might be determined; that in 1931 or 1932 insured purchased a policy from the Woodmen of the World for $2,000 and in that policy named one Louise Lister as beneficiary and designated her as his niece; that Louise Lister was no relation at all to insured and could not under the law be a beneficiary in this policy; that plaintiff had done all things requested of her but that defendant had refused to pay her the $2,000 due, and sometime in 1933 paid the amount of the policy to Louise Lister; that plaintiff and the children named were the rightful heirs of deceased; that the $2,000 was owing to her and to the children as the heirs of the estate of insured; that a copy of the policy was attached to the petition. Judgment was prayed against the defendant Woodmen of the World for $2,000 and the costs and that the children named be required to appear in court and set up their claim.
The Woodmen of the World admitted the residence of insured and that plaintiff was his widow; that insured died January 28, 1933. The answer further alleged that the Woodmen of the World was a fraternal insurance organization; that it issued a certificate of membership, subject to laws then in force or subsequently enacted and subject to such rules and regulations of defendant as might from time to time be adopted. The other allegations of the petition were denied.
For a further answer to plaintiff’s petition the defendant Woodmen of the World alleged that the certificate was issued to insured pursuant to a written application, a copy of which was attached to the answer; that in the application he stated he was born on the 10th day of June, 1877, whereas in fact he was born in the year 1875, and in the application he named Louise Lister as beneficiary and stated that she was related to him by blood as niece. The answer also set out the following statement in the application:
“I hereby certify, agree and warrant that all the statements, representations and answers in this application, consisting of two pages as aforesaid, are full, complete and true, whether written by my own hand or not, shall be warranties, and I agree that any untrue statements or answers made by me in this application, or to the examining physician, or any concealment of facts in this application .or to the examining physician, intentional or otherwise, or my being suspended or expelled from or voluntarily severing my connection with the association or any failure on my part to comply with the laws of the association, now in force or hereafter adopted, shall make my beneficiary certificate void, and all rights of any person or persons thereafter shall be forfeited.”
The answer also stated that John Jarnevic warranted all the answers recorded in the application were true; that the Woodmen of the World relied upon this application. The answer further alleged that insured died about January 28, 1933; that Louise Lister made proof of death and claim for benefits; that then the Woodmen of the World learned that insured was of a greater age than given in the application and was entitled to receive only that proportion of the benefit named that the amount of monthly assessments paid by insured would purchase at his true age; that by reason of this discrepancy the amount of $1,749.34 was paid to Louise Lister on August 17, 1933, in full release of all claims; that by reason of this payment to Louise Lister neither the plaintiff nor the children of plaintiff and insured are entitled to any sum.
For a third defense the Woodmen of the World alleged that insured warranted the statements in his answer to be true; that if Louise Lister was not related to insured then insured had practiced a fraud upon the defendant and by reason thereof the certificate of membership became null and void and insurer was not liable to pay any sum either to Louise Lister or to any other person. It was further alleged that had insured known that no relationship existed between insured and Louise Lister it would not have paid any sum on account of the certificate, and alleged that in event it should be determined that Louise Lister was not related to insured then it should be held that insurer was not liable in any sum whatsoever on account of the certificate. A copy of the constitution and bylaws of the-society at the time of the death of insured was attached to the answer. One of the provisions of these bylaws was as follows:
“. . . If any of the statements or declarations in the application for membership be found in any respect untrue, the certificate shall be null and void and of no effect, and all moneys which shall have been paid and all rights and benefits which have accrued on account of the certificate shall be absolutely forfeited without notice or service.”
It was further alleged that these bylaws were binding on insured as beneficiary and all persons asserting any claim under the certificate ; that by the laws of insurer the designation of beneficiary was limited to persons as follows:
“Wife, children and adopted children, parents, brothers and sisters, and other blood relations, father-in-law, mother-in-law, daughter-in-law, son-in-law, sister-in-law, brother-in-law, step-father, step-mother, step-children, step-sister, stepbrother, or persons dependent upon the member, and such other beneficiaries as may be permitted by the laws of the state in which the camp is located of which the applicant originally becomes a member. Provided, that on the request of the applicant or of any member at any time, the beneficiary certificate may provide that if the beneficiary should predecease the member, then, and in that event, some other person specifically designated within the classes above mentioned shall be named as the alternate beneficiary. The member may designate this Association as his beneficiary for the use and benefit of any home, hospital or sanatorium operated by the association if he has no wife or children, or if he is the occupant of any home, hospital or sanatorium operated by this association.”
The petition then alleged that should it be found that Louise Lister was not a person that might be named as beneficiary then the certificate should be ordered canceled.
The prayer of the answer was that plaintiff and the children of plaintiff and insured take nothing by the action and that if it be found that Louise Lister was not a lawful beneficiary then the certificate of membership be canceled.
For reply the plaintiff alleged that the facts alleged in the answer did not constitute a defense to her cause of action and further pleaded that the insurer waived all defense pleaded by its payment to Louise Lister of the amount due under the certificate and further alleged that the bylaws, which had been set out in the answer, were unreasonable and contrary to the public policy of the state and were therefore void.
When the case was called for trial in the district court there was a colloquy between counsel and court as to the defense upon which the defendant Woodmen of the World relied. Finally the statement was made by the court and counsel that defendant insurer was not relying upon any claim of payment but merely upon the defense with reference to misrepresentation made by insured. At that time counsel for insurer asked that the statement in the last amended answer just before the prayer where the insurer asked that the certificate of membership should be canceled, be stricken from the answer, and that the request in the prayer that if it be found that Louise Lister was not a lawful beneficiary then the certificate of membership be canceled, should be stricken from the prayer.
The court also made the statement just before the taking of evidence started that “As I see it there is only one question of fact in this case and that is whether or not this relationship did or did not exist.” This statement appears to have been assented to by counsel. At the conclusion of all testimony the court made the following statement:
“The Court: I was going to say this. As I understand the agreement between counsel in this case, certain specific questions are going to be submitted to the jury. After the jury has answered these questions, then the court can pass on the questions of law pertinent to this case. That is the agreement, as I understand.
“Counsel for defendant: Yes.
“The Court: In other words, no instructions are going to be given to the jury. The regular form of instructions will not be submitted, only questions for the jury to answer, that is agreeable to both counsel, I understand?
“Counsel for defendant: That is our understanding. We have prepared questions.”
The jury made the following answer:
“1. Was Louise Lister a blood relation to John Jarnevic, the insured, in the benefit certificate sued on in this action? A. No.”
It will be noted that this case is peculiar in that while the parties were entitled to a jury the case was not submitted to the jury on the instructions of the court, but only specific questions were asked the jury, and the questions were limited to a determination of one issue.
After the jury made the finding set out above, the defendant Woodmen of the World moved the court to set aside the answer for the reason that it was contrary to the evidence and was returned under the influence of passion and prejudice and also filed a motion in which it asked for judgment.' The plaintiff also asked for judgment. The court in a memorandum opinion made the following statement:
“It is the opinion of the court that, despite the finding of the jury, judgment must be rendered in favor of the defendant, Sovereign Camp of the Woodmen of the World, for the reason that in this case only the defendant, Sovereign Camp of the Woodmen of the World, had the right to question the qualifications of the designated beneficiary to claim the insurance.”
Judgment- was rendered in accordance with the above statement. Hence this appeal.
The trial court did not pass on the motion of the Woodmen of the World to set aside the answers to the special questions. As far as this record discloses, the answer of the jury to the special questions still stands.
The plaintiff argues first that the defendant society waived the defense of fraud by denying liability on other grounds, and was es-topped from maintaining it as a defense by payment to the named beneficiary with knowledge of facts sufficient to put it upon inquiry as to the claimed relationship between the beneficiary and the insured; second, that even if the society had not waived the defense of fraud and was not estopped from asserting it there was no proof that insured had made any representations that Louise Lister was his niece; third, when there are eligible beneficiaries surviving the proceeds of the policy may not be forfeited or diverted to some person who is not eligible, but the widow has the right to those proceeds, and may challenge payment to an ineligible person.
Since plaintiff alleged that Louise Lister was not a blood relative of insured, and assumed the burden of proving that fact to a jury, and since the jury found that she was not a blood relative, and the plaintiff did not ask to have this finding set aside, for the purposes of this opinion that fact may be considered settled.
Before proceeding further, however, we shall deal with the argument of plaintiff that there was no proof on the point that insured had made a representation that Louise was his blood relative. The argument of plaintiff on this point is that what insured did was not a statement, answer or representation, but only a direction for payment with a description of the beneficiary.
The situation in this case has already been set out here. The application provided that all statements made in it should be warranties and that any untrue statements or answers should make the certificate void. A provision to the same effect is in the constitution and bylaws of the society. The general rule in such cases is set out in 4 Couch on Insurance, 3109, as follows:
"And, as a general rule, where a statement of relationship between insured and the beneficiary is, by agreement of insured and insurer, to be taken as a warranty, or where it is so interpreted by the courts, an erroneous statement of such relationship vitiates the policy, and the named beneficiary cannot recover. Again, where, both by statute and the constitution and laws of a fraternal beneficiary association, the benefits are limited to a certain class and the certificate is issued subject thereto, a false warranty as to relationship of a beneficiary not within the limited class voids the certificate. And the policy is held avoided and the right of recovery defeated where it is stipulated in a contract of membership in a benefit society that the applicant’s statements shall be warranties, and payment of any benefit be conditioned by their truth, and a statement was made by the applicant that the beneficiary was his wife, when at the time he was merely living with her as such, or had been divorced from her.”
The language of the application made the statements of the insured warranties if it is possible to do so. It will not do to say that the designation of a beneficiary was not a statement of the insured. It was information that was necessary for the society to have before the certificate could be issued. Since there were restrictions on the classes of persons who could be made beneficiaries by this society it was important that the society know what the relationship between an insured and a beneficiary was. It is not reasonable to assume that the society desired to make a practice of issuing certificates to people and to name people as beneficiaries in them who could not be legally made beneficiaries under either the laws of the society or the statutes of the state.
In Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598, this court considered this question. In that case the insured had designated a woman as beneficiary and had stated that she was his wife. After his death his real wife and the woman designated as his wife contended for the proceeds of the policy. This court held that neither one of them could recover on account of the fraud of insured in designating the woman as his wife and naming her beneficiary when she was not his wife. The question we are considering here was raised, and this court said:
“The plaintiff contends that the representation was a designation onty, a contention with which we cannot agree. The language of the application above set out is so clear as to need no interpretation and the statement by the applicant ‘that any misstatement or concealment of any fact shall cause a forfeiture of my membership and insurance in said order, and shall cause, as to myself and my beneficiary or beneficiaries, a forfeiture of all rights to indemnity, and to recovery of anything whatsoever on account of any certificate of insurance which may be issued to me,’ was and is binding upon both claimants. It has been repeatedly held that where the contract makes the answers warranties, that its validity depends upon the truthfulness of the answers.” (p. 30.)
See, also, Hoover v. Royal Neighbors, 65, Kan. 616, 70 Pac. 595, and other authorities cited therein. While the defendant society did not ask that this court hold the certificate to be void .as to the named beneficiary as well as this plaintiff, such is the practical result from the fraud practiced by the insured. The certificate did not obligate the society to pay anyone in case of the death of the insured.
Plaintiff next argues that defendant society waived the defense of fraud when it elected to deny liability to plaintiff on other grounds and was estopped from relying on the defense of fraud by payment to Louise Lister. As the case was finally submitted to the jury the only defense upon which reliance was placed was that of fraud. The other questions were out of the case. As we have seen, the policy was void from the beginning on account of the fraud in naming the beneficiary. The payment to the named beneficiary, even though the policy was void, did not prejudice the right of plaintiff. There is no evidence at all that plaintiff was led to any course of action in reliance upon the payment to the named beneficiary. The rule is well stated in 67 C. J. 303, as follows:
"Although courts have spoken of a waiver where there is no voluntary relinquishment of a right, where the other party has been led to a course of action in reliance upon some act of the party claimed to have made the waiver, such waiver rests upon the principle of estoppel. Thus, it has been stated that there can be no waiver where there was no intention to waive, unless one party has so acted as to mislead the other and is estopped thereby.” (p. 303.)
Here plaintiff was in as advantageous a position to claim under the policy after the payment to the beneficiary as she was before.
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from a declaratory judgment in an action to determine whether plaintiffs must pay the sales tax and the compensating use tax on the materials they purchase to equip their airplane manufacturing facilities so as to enable them to build airplanes for the federal government.
The action involves no dispute of fact. The pleadings only raise questions of law concerning the legal status of the property sought to be taxed, and that depends on the terms of an elaborate contract between the plaintiffs and the United States.
The plaintiffs allege that each of them is engaged for profit in the manufacture and sale of airplanes and their component parts in Wichita, that each of them has entered into an agreement with the United States to construct an additional unit to their present plant facilities according to the terms of an elaborate “facility contract” of 31 pages which may be summarized thus:
Plaintiff’s present plant facilities are to be enlarged according to plans and specifications prescribed by the government; such facilities are to be devoted exclusively to the manufacture of airplanes for the government as a part of its emergency program for national defense. Each company agrees to construct and equip a factory according to government specifications, and to build airplanes for the government therein. - The government agrees to pay the entire cost of such construction and equipment in 60 monthly payments on plaintiff’s statements of such costs when approved by a government auditor. The title to the projected factory and its equipment is to vest in the company until the 60 monthly payments of cost are made, whereupon the title is to be transferred to the government, subject to an option in favor of each company to buy out the government’s interest on specified terms.
The contract provides that the company shall not permit liens or mortgages to attach to the factory or its equipment, that it will deliver it to the government at the end of five years in good repair, that obsolete articles can only be sold with the government’s consent, that the company will carry insurance on the property payable to the government in the event of loss, and that the government may require the company to apply the proceeds of such insurance to the replacement or repair of the damaged property.
It is also agreed that the entire plant facilities thus financed by the government shall be devoted exclusively to the manufacture of airplanes and airplane parts for the use of the government and cannot be used for any private purpose.
The plaintiff companies allege that in view of the terms of their contracts under which these emergency plant facilities are constructed and installed the Kansas sales tax and the Kansas compensating use tax should not be exacted; and that if plaintiffs should pay these taxes they run the risk of having the items represented by such payments rejected and disapproved by the government’s auditors, to the irreparable loss and damage of the plaintiffs. Hence plaintiffs’ prayer for a declaratory judgment in the premises.
This action involves the exaction of the sales tax on the personal property purchased within the state to equip these enlarged airplane plant establishments and the exaction of the compensating use tax on the personal property purchased outside the state for use in these enlarged facilities. Some of the latter run into large figures; for example, a pneumatic compressor costs $10,000, a hydro-electric press $53,000, turret lathes $26,000, testing machine $7,000, etc.
In their petition plaintiffs tender this issue of law:
“That the plaintiffs, and each of them, are ready, able and willing to pay all taxes lawfully assessed against or collectible from them, but that said plaintiffs, and each of them, contend that under the emergency facility contracts executed under the national defense act they are in fact, (a) constructing and operating a federal government factory; (b) that they are arms, agencies or instrumentalities of the United States government: (c) that to collect such tax is an undue burden on federal governmental functions, and (d) said tax and the collection thereof is expressly exempted under the provisions of G. S. 1939 Supp., 79-3606 . . .”
In their answer defendants joined issues on the legal questions presented.
The district court gave judgment for the plaintiffs, holding that the sales and use taxes should not be exacted.
Defendants bring the case here for review, citing many more or less analogous cases for our instruction, and counsel for the appel- lees do likewise. We have examined these cases and we may refer to some of them below, but first let us note the pertinent statutes. G. S. 1939 Supp., 79-3603, among other matters provides for a two percent sales tax on all tangible personal property sold at retail within this state. The next section of the same statute declares that this tax is to be paid by the purchaser and collected by the retailer.
G. S. 1939 Supp., 79-3703, provides that a similar tax of two percent shall be collected for the privilege of using within this state any tangible personal property based on its purchase price, except where a sales tax has been collected thereon pursuant to 79-3603 or otherwise. The manifest purpose of this section is to reach property bought outside this state as if it had been purchased within the state.
The statutes just cited make certain exemptions, and the relevancy and scope of these will bring us to the crux of this appeal. The exemptions from the sales tax, so far as we shall need to consider them, are these:
“(c) Any sale which under the constitution and statutes of the United States or of this state which may not be made the subject of taxation by this state; (d) all sales of tangible personal property or service used in or for the performance of a contract for public works . . .” (G. S. 1939 Supp., 79-3606.)
The exemptions from the use tax, so far as here pertinent, apply to—
“(e) . . . Any article of tangible personal property brought into or used within the state of Kansas if such article of tangible personal property would not have been subject to tax under the provisions of the retailer’s sales tax act of this state if purchased within this state.” (G. S. 1939 Supp., 79-3704.)
It is well settled that what are familiarly designated as federal agencies or federal instrumentalities and their property are not subject to any form of state taxation except where the' congress of the United States permits that to be done. (Capitol B. & L. Ass’n v. Commission of Labor & Industry, 148 Kan. 446, 447, 83 P. 2d 106.) Another exemption would be where the state law itself has so declared. It can hardly be said that the statutory exceptions quoted above make an express exception from taxation as to the matters of present concern. The statutory provisions imposing our local sales tax and use tax would seem to cover them, unless the contract between the government and the plaintiffs (which is quite properly a vital part of the pleadings) makes it clear that the property the state seeks to subject to these taxes is government property or property of a government instrumentality. The early case of McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579, held that the state of Maryland could not tax the currency issues of the Bank of the United States because that bank was an instrumentality employed by the government to execute its constitutional powers. In the recent case of Clallam County v. United States, 263 U. S. 341, 68 L. Ed. 328, the samq rule of law was applied. ' In that case a corporation had been chartered by the state of Washington at the instance of the federal government. Its corporate purpose was to provide aircraft materials for the prosecution of the war with Germany in 1917-1919. The federal government subscribed for all the stock (except for directors’ qualifying shares) and conveyed to the corporation lands and other property which constituted all the corporation’s assets. It was held that the corporation was an instrumentality of the government and in consequence its property was exempt from state taxation.
In Panhandle Oil Co. v. Knox, 277 U. S. 218, 72 L. Ed. 857, the action arose over the imposition of an excise tax of three and four cents per gallon on all gasoline retailed in the state of Mississippi. The Panhandle Oil Company declined to pay the tax on its sales of gasoline to the United States for the use of its Coast Guard and Veterans’ Hospital. The state court held that the tax was properly imposed and gave judgment against the oil company. (State, ex rel., v. Panhandle Oil Co., 147 Miss. 663, 112 So. 584.) But the United States supreme court, by a ñve-to-four decision, held that as applied to sales of gasoline to the United States government the tax was void, citing McCulloch v. Maryland, Clallam County v. United States and other familiar cases.
Doubtless the rule which exempts from state taxation all agencies, instrumentalities, property and concerns of the federal government is as potent today as heretofore, but in our time there is an increasing tendency to scrutinize the factual situation in which such exemption is claimed, and instances are not wanting where long-settled precedents which had magnified rather than minimized the basis for such exemption have been repudiated in recent years by our court of last resort. (Graves v. N. Y. ex rel. O’Keefe, 306, U. S. 466, 83 L. Ed. 927, 120 A. L. R. 1466, and cases cited therein, some of which are expressly and others impliedly overruled.) Indeed the supreme court has declared that no hard and fast rule can be stated to gauge all the cases where the exercise of the state’s power to tax would trench upon the government’s immunity and those cases where the federal government’s interest or concern is so remote that a claim of immunity in its behalf would be too tenuous and remote to support it. Thus, in Metcalf & Eddy v. Mitchell, 269 U. S. 514, 70 L. Ed. 384, it was said:
“It is apparent that not every person who uses his property or derives a profit, in his dealings with the government, may clothe himself with immunity from taxation on the theory that either he or his property is an instrumentality of government within the meaning of the rule. (Citations.) . . .
“As cases arise, lying between the two extremes, it becomes necessary to draw the line which separates those activities having some relation to government, which are nevertheless subject to taxation, from those which are immune. Experience has shown that there is no formula by which that line may be plotted with precision in advance. But recourse may be had to the reason upon which the rule rests, and which must be the guiding principle to control its operation.” (pp. 522, 523.)
The case of Baltimore Shipbuilding Co. v. Baltimore, 195 U. S. 375, 49 L. Ed. 242, was measurably analogous to the case at bar. There the federal government had conveyed to the plaintiff in error a tract of government land for a dry dock and shipbuilding yard upon condition that the grantee would create facilities thereat so that the government’s ships could be repaired therein without docking charges. The grant also provided for a reverter for condition broken. The company claimed that the property so acquired and held by it was a federal agency, actually'used by the federal government, and hence not subject to state taxation. The supreme court rejected this contention and sustained the state’s right to tax the property, saying:
“We are of opinion that the land is not exempt as an agency of the United States. ... It seems to us extravagant to say that an independent private corporation for gain, created by a state, is exempt from state taxation, either in its corporate person, or its property, because it is employed by the United States, even if the work for which it is employed is important and takes much of its time.” (p. 382.)
In Trinityfarm Co. v. Grosjean, 291 U. S. 466, 78 L. Ed. 918, the suit was to enjoin the supervisor of public accounts of Louisiana from exacting a state excise tax on gasoline which was used by the plaintiff company in constructing levees along the Mississippi river under contract with the United States. It was contended that the contracts of construction were federal means or instrumentalities and that the tax was a direct burden thereon which the state of Louisiana was without power to impose. In affirming the lower court’s judgment denying the injunction, part of the supreme court’s opinion is instructive. In part it reads:
“The power granted by the commerce clause is undoubtedly broad enough to include construction and maintenance of levees in aid of navigation of the Mississippi river, and to authorize the performance of the work directly by government officers and employees or pursuant to contracts such as those awarded to appellant. The latter method was chosen and the validity of the challenged tax is to be tested on that basis. It is not laid upon the choice of means, the making of the contracts, the contracts themselves, or any transaction to which the federal government is a party or in which it is immediately or directly concerned. Nor is the exaction laid or dependent upon the amounts, gross or net, received by the contractors. . . . Unquestionably, as appellant here concedes, Louisiana is free to tax the machinery, storage tanks, tools, etc., that are used for the performance of the contracts. These things are as closely connected with the work as is the gasoline in respect of which is laid the excise in question. There is no room for any distinction between the plant so employed and the gasoline used to generate power. If the payment of state taxes imposed on the property and operations of appellant affects the federal government at all, it at most gives rise to a burden which is consequential and remote and not to one that is necessary, immediate or direct. (Citations.) Appellant’s claim of immunity is without foundation.” (pp. 471, 472.)
In the recent case of Standard Oil Co. v. Lee, (Florida, 1940) 199 So. 325, the action was to enjoin the state comptroller of Florida from exacting the state tax on gasoline sold by plaintiff to various contractors for use in constructing a naval air station for the federal government. The work was being constructed on a cost-plus basis, and the legal question was whether or not sales of gasoline to contractors for use in that large federal project weye subject to the state tax. It was argued that such sales in effect were made to the United States because its contracts with the contractors bound it to pay the net cost of all materials and labor and to reimburse them for all out-of-pocket expenditures in the construction of the naval air station. Counsel for the state cited Trinityfarm Co. v. Grosjean, supra, and Graves v. N. Y. ex rel. O’Keefe, supra, to which the court gave its approval, saying in part:
“The test of validity of the tax in these cases is not whether it is laid directly on the United States or one of its governmental agencies, but whether or not in the way laid, it directly retards, impedes, or burdens the United States in the exercise of its constitutional powers. It cannot be questioned that the tax here falls ultimately on the federal government. The contractors are agencies of the latter, executing a contract for profit; they do not perform any governmental function. The burden on the federal government is consequential and remote. It increases the cost to the government, but when accomplished in this manner, the federal cases appear to sanction the contract.
. . We reached the conclusion that the case at bar is ruled by the cases relied on by appellees. In its contract with appellees the federal government agreed to pay the tax and it is not here protested, so the judgment is affirmed.” (p. 326.)
Another case worthy of perusal on the question at bar is James v. Dravo Contracting Co., 302 U. S. 134, 82 L. Ed. 155, 114 A. L. R. 318, where the legal question involved validity of a tax imposed by West Virginia on the gross receipts of the Dravo Contracting Company on its contracts with the United States for the construction of locks and dams on the Kanawha river and the Ohio river. The contracts provided for partial payments as the work progressed and that all the materials and work covered by the partial payments should thereupon become “the sole property of the government.” Payments by the government were made from time to time accordingly. The court held that so much of the company’s gross receipts as resulted from its business in Pennsylvania and elsewhere outside of West Virginia could not be subjected to the tax complained of, but on that portion derived from its activities within that state the tax was valid. Some excerpts from the opinion of Mr. Chief Justice Hughes are quite pertinent to the case we are considering. These read:
“The application of the principle which denies validity to such a tax has required the observing of close distinctions in order to maintain the essential freedom of government in performing its functions, without unduly limiting the taxing power which is equally essential to both nation and state under our dual system.
“Many years ago the court recognized and enforced the distinction between a tax laid directly upon a government contract or an instrumentality of the United States and a tax upon the property employed by an agent or contractor in performing services for the United States. ‘Taxation of the agency is taxation of the means; taxation of the property of the agent is not always, or generally, taxation of the means.’ Thomson v. Pacific Railroad, 9 Wall. 579, 591.
“If it be assumed that the gross receipts tax may increase the cost to the government, that fact would not invalidate the tax. With respect to that effect, a tax on the contractor’s gross receipts would not differ from a tax on the contractor’s property and equipment necessarily used in the performance of the contract. Concededly, such a tax may validly be laid. Property taxes are naturally, as in this case, reckoned as a part of the expense of doing the work. Taxes may validly be laid not only on the contractor’s machinery but on the fuel used to operate it. . . . But a tax of that sort unquestionably increases the expense of the contractor in performing his service and may, if it enters into the contractor’s estimate, increase the cost to the government. The fact that the tax on the gross receipts of the contractor in the Alward case, supra, might have increased the cost to the government of the carriage of the mails did not impress the court as militating against its validity.” (pp. 150, 153, 160.)
Applying the foregoing precedents and others which merely reiterate the selected quotations we have made, we reach the conclusion that plaintiffs’ contentions for the exemption of the machinery and equipment for their airplane plant facilities in Wichita from the Kansas sales tax and the Kansas use tax cannot be sustained. While it is true that the government has agreed to reimburse the plaintiffs for the cost of these properties, and the properties will become government property five years hence unless one of several options to keep them is exercised by plaintiffs, that situation does not justify their exemption from the challenged taxes. Neither does the fact that the government has bound plaintiffs to many strict obligations in respect to the construction and installation of the projected airplane plant facilities relieve plaintiffs from the payment of the questioned taxes. Nothing is more common than for an exacting money-loaner to impose strict obligations upon a borrower- — to keep the property built or equipped with the borrowed money free from mortgages, tax liens or other liens, and to keep it insured for the benefit of the money-loaner as his interest may appear. Indeed, many an exacting money-loaner requires the borrower to carry life insurance on himself and liability insurance on his employees, and frequently requires that the improvements to be made or built with the borrowed money shall be constructed according to plans approved by an architect or civil engineer named by the money-loaner.
In recent years the government has gone into the money-loaning business in a large way, and when it does it commonly prescribes a multitude of conditions- — -in respect to hours of labor, wage scales, arbitration of disputes between employer and workmen, etc., etc. We concede that the relation of money-loaner and borrower may not precisely define the status of plaintiffs to the federal government, but in respect to their financial arrangements to pay for equipment and installation of machinery in their airplane plant, facilities in Wichita there is a reasonably close analogy.
This court holds that the challenged taxes should be paid, and the judgment of the district court must therefore be reversed and the cause remanded with instructions to enter judgment for defendants.
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover against an estate on a claim based on a contention that certain funds in the possession of the decedent for many years were impressed with a trust in favor of the plaintiffs. The administrator, defendant in the action, demurred to the petition. This appeal is from an order sustaining the demurrer. There were originally two plaintiffs, but one of them assigned his interest to the other, and the remaining plaintiff is the only appellant.
The petition, filed on April 24, 1940, alleged, in substance, that T. D. Leinbach, a resident of Pottawatomie county, died testate in March, 1917; that among the devises and bequests of the will there was a devise of certain real estate to Perry Leinbach, son of the testator, “after he shall have become thirty-five years of age,” and also a bequest to Perry of “four thousand dollars — the value to be in livestock on the foregoing described lands”; that it was further provided that if Perry died before he reached the age of thirty-five, and having no children, the devise and bequest should go to the plaintiffs, nephew and niece of the testator; that Perry Leinbach died in July, 1918, without having reached the age of thirty-five and having no children; that Celinda Leinbach, widow of the testator, was named in the will as executrix and was so appointed; that the “said $4,000” was delivered to her and kept by her until her death on April 24, 1939, and never delivered to the plaintiffs; that in September, 1918, she conveyed to the plaintiffs, by quitclaim deed, the real estate heretofore referred to; that “no demand' has heretofore been made by plaintiffs upon said Celinda Leinbach, and that she never, at any time, refused to deliver” the $4,000 to the plaintiffs. The prayer of the petition was that $4,000 from the property held by Celinda Leinbach be decreed a trust fund in favor of the plaintiffs and that they be given judgment for that amount against her estate, together with interest from September 1, 1918.
The defendant demurred to the petition on the grounds that the court was without jurisdiction of the subject matter, that the petition did not state a cause of action and that the demand was barred by the statutes of limitation. The demurrer was sustained apparently on all three grounds.
We proceed at once to the question of whether the demand was barred. The conclusion stated on that question makes it unnecessary to consider the questions relating to the proper construction of the will of T. D. Leinbach.
The testator died in March, 1917. If appellant is correct in her interpretation of the will, she became entitled to the bequest of $4,000 when the testator’s son, Perry, died in July, 1918, without reaching the age of thirty-five and having no children. Although appellant contends that after July, 1918, the executrix held this bequest in trust for her benefit, she alleges that she never made any demand upon her for it, and by asking for interest from September 1, 1918, she alleges in effect that she received no income from the bequest. This covers a period of almost twenty-one years, and until the death of Celinda Leinbach on April 24, 1939. Appellee was appointed and qualified as administrator of Celinda Leinbach’s estate on April 26, 1939. It was not until April 24, 1940 — two days less than a year after appointment of the administrator — that appellant took any steps to assert or establish her demand.
The present probate code went into effect on July 1, 1939. Many sections of the prior law relating to the allowance of demands against estates were repealed, and in sections 212 to 217, inclusive (Laws 1939, ch. 180), now appearing as G. S. 1939 Supp., 59-2236 to 59-2241, inclusive, provision was made for a more simplified and certain procedure in the matter. Section 59-2239, while designated as a “nonclaim statute,” is also clearly a statute of limitations, enacted with the evident purpose of providing for expeditious closing of estates, with the interests and rights of all persons concerned definitely determined. It provides that all demands not exhibited as provided in the act (G. S. 1939 Supp. 59-2237, 59-2238.) “within nine months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment.” The section then provides — omitting certain provisions not here involved —as follows:
"In any estate in the process of administration at the time of the taking effect of this act in which any executor or administrator has not been discharged, all demands, including demands of the state, whether due or to become due, whether absolute or contingent, including any demands arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including the individual demands of executors and administrators, not exhibited as required by this act within nine months after the taking effect of this act shall be forever barred from payment by any such executor or administrator unless a provision of a will requires payment of any such demand exhibited later. This section applies to both domiciliary and ancillary administration.” (Italics ours.)
The provision clearly applies to the instant claim. The estate had been in the process of administration for more than two months when the new code went into effect. No demand was made until this action was filed on April 24,1940, nine months and twenty-four days after July 1, 1939. Appellant contends that in order for the administrator of the estate to take advantage of the nine months’ limitation period in the new code, it was necessary for him to publish a new notice of his appointment, containing the notice to creditors as provided in section 59-2236, supra. But the provisions of section 59-2239, supra, contains no such requirement. The pro vision with reference to demands against estates in process of administration when the new code became effective is unequivocal— they must be exhibited within nine months after the effective date of the act “unless a provision of a will requires payment of any such demand exhibited later.” Appellant contends that the phrase “exhibited as required by this act” in the provision relative to pending estates must be construed to mean that a new notice of appointment, with its notice to creditors as provided in section 59-2236, supra, must be given before the nine months’ period of limitation will begin to run. We find no basis for that construction. The words “exhibited as required by this act” have no uncertainty about them. Plainly they refer solely to the method provided in the act for exhibiting demands (sections 59-2237 and 59-2238), and not to the provisions relative to the executor’s or administrator’s notice of appointment and notice to creditors. Moreover, this is clearly in line with the legislative intent evidenced by this section and related sections of the act. Prior to the new code a one-year limitation had been in effect. The new code cuts the period to nine months, beginning with the first published notice to creditors which must now be included in the notice of appointment of the executor or administrator. This makes it possible, ordinarily, to close estates in one year. As to pending administrations, the period of limitation is fixed at nine months after the effective date of the act. To make this unqualified time limitation for exhibiting demands against pending administrations contingent upon the filing of a new notice of appointment, with its notice to creditors, would be to read a wholly new provision into the statute.
Appellant’s demand being barred by the provisions of G. S. 1939 Supp., 59-2239, it is unnecessary to consider her other contentions. The demurrer was properly sustained. The judgment is affirmed.
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The opinion of the court was delivered by
Hoch, J.:
This is an action to abate and enjoin the maintenance of a nuisance under the intoxicating-liquor law. The sole appellant is the owner of the property in question. His contention is that there was no evidence under which a judgment in personam could lawfully be entered against him and made a lien upon the property.
On November 3, 1939, a petition was filed in Kingman county charging that the liquor laws were being violated and a common nuisance maintained in a certain property known as “Fink’s café and filling station,” located at Rago. Named as defendants were Fink, who operated the place, and Wills, the appellant, who owned the property and lived at Norwich, fourteen miles from Rago. Fink was charged with the actual operation and maintenance and Wills with knowingly permitting the property to be so unlawfully used. Accompanying the petition was a motion for a temporary injunction, which was granted the day the petition was filéd.
Several years theretofore Wills had leased the place to one Wilson and his wife. For reasons not necessary to narrate, Wills had executed a new lease to Mrs. Wilson individually, the term running from June, 1939, to June, 1940. During the time here involved Mrs. Wilson was living at Wichita. While the lease did not provide for subletting, Mrs. Wilson had sublet to Fink when she moved to Wichita, and this was with the knowledge of Wills. Wills’ dealings, however, were entirely with Mrs. Wilson and he looked exclusively to her for rent and care of the property. She usually sent him by mail the check for the rent. Mrs. Wilson was not made a defendant in the action to abate the nuisance.
Following the filing of the action and the granting of the temporary injunction against Fink and Wills, there was apparently no complaint about the way the place was conducted by Fink until about six months later, in May, 1940, when two women, Melba Bockleman and Leona Rogers, were apparently placed in charge by Mrs. Fink, who had been operating the restaurant and desired to sell out. On May 29, 1940, the place was raided, intoxicating liquor found, Fink and the two women were arrested and contempt proceedings instituted against them. Wills was not made a defendant in the contempt proceedings. At a hearing on June 5, Fink and one of the women were adjudged in contempt. Following the contempt proceedings, trial was had in the original action. Fink had filed a general denial, but made no defense at the trial. Appellant had filed an answer denying all knowledge that the place was being unlawfully conducted and setting forth various matters by way of defense. At the conclusion of the state’s evidence appellant demurred. The demurrer being overruled, defendant’s evidence was heard. Judgment granting a permanent injunction was entered, material portions of the journal entry being as follows:
“3. That the above-described premises were on the 3d day of November, 1939, and for a number of months prior thereto, used by the defendant, F. E. Fink, as a common nuisance; contrary to the provisions of the intoxicating-liquor laws of the state of Kansas, and bore a reputation as being so used in the community in and surrounding Rago, Kan., and said premises continued to be so used and to bear such reputation in said community to and inclusive of May 29, 1940.
“4. That the defendant, J. H. Wills, lived at Norwich, Kan., fourteen miles from Rago, was in poor health, and of considerable means. During the period of perhaps a year prior hereto, Wills had been in Rago only once, and that to inspect and order a new floor put in the café building, which was some considerable time prior to the issuance of the temporary injunction herein. He stayed rather close about his own home, but after service of the temporary injunction he employed an attorney and learned that Fink had an internal revenue license for retailing intoxicating liquors, and his attorney notified Mrs. Wilson of the injunction proceedings, disclaiming any present intention of canceling the lease, demanded that she see 'that any improper use of said premises be ended at once.’ That no other measures were taken by said defendant, Wills, to eject Mrs. Wilson, or the defendant, Fink, from said premises.
“5. That on the night of May 29, 1940, the sheriff raided said property and found some 25 people in the so-called dance hall, located between the café and the living quarters, and some eight or ten bottles containing intoxicating liquor in or about the booths in the dance hall. A number of the persons were under the influence of intoxicants. The property is located on state highway number 14, and on this and previous occasions traffic hazards were created by frequenters. A few weeks previous Mrs. Fink had left the community and two young women from Newton came down and were ostensibly operating the café as ‘Fink’s place.’
“6. That the temporary injunction heretofore issued should be sustained and a permanent and perpetual injunction should be granted.
“It is therefore considered, ordered, adjudged and decreed that a permanent and perpetual injunction be and is hereby granted against said property, hereinabove described, and the defendants and each of them . . . that the plaintiff have and recover of the defendants its costs in this action, now taxed at $231.25, that said costs are hereby declared to be a lien upon the real estate and appurtenances thereto as hereinabove described, and that unless said costs shall be paid within thirty days from this date, then that execution shall issue as against the property hereinabove described.”
Motion to set aside certain findings and substitute others and the motion for a new trial need not here be noted in detail. There is no contention that the right of appellant to be heard on issues raised by the appeal was not adequately protected.
In the recent case of State, ex rel., v. Dick, 150 Kan. 230, 92 P. 2d 92, which in many respects is similar to this one, will be found (pp. 233, 234) a concise summary of the statutes dealing specifically with questions here involved and we need not repeat what is there said. The particular section with which we are here immediately concerned is G. S. 1935, 21-2137, which provides:
“Anyone who knowingly permits any building or tenement owned or leased by him or under his control, or any part thereof, to be used in maintaining a common nuisance, or, after being notified in writing of such use, omits to take all reasonable measures to eject therefrom the person so using the same, shall be deemed guilty of assisting in maintaining such nuisance.”
It should first be made clear that no attack is made upon that part of the judgment which determined that a liquor nuisance had been maintained on the premises and which granted a permanent injunction as against the property. The proceeding was also in the nature of an action in rem, and there was ample evidence to support such a judgment. (See State v. Lewis, 63 Kan. 265, 65 Pac. 258.) It should also be noted that there is no appeal from the personal judgment for costs against defendant Fink, who was charged with actual operation. The issue here is whether there was substantial evidence that appellant, owner of the building, either assisted in maintaining the nuisance, had actual knowledge of such unlawful use of the property, or was in possession of facts sufficient to put an ordinarily prudent person upon inquiry. In determining that question we must also examine the record to see just what appellant did following the service upon him in the original action.
It must first be said that there is no evidence that appellant had any knowledge, prior to the temporary injunction in November, 1939, that the law was being violated in his property at Rago. There was testimony that for some time the place had had a bad reputation in and around Rago as a place where intoxicating liquors were sold and where people were permitted to congregate for the purpose of drinking liquor. But there was no testimony that such reputation extended generally to Norwich where appellant lived, or that he had any knowledge whatever concerning such reputation. Appellee virtually concedes that if the judgment against appellant is to stand it must be supported by what took place subsequent to the filing of the petition to abate in November, 1939.
As found by the trial court, Wills, who was in poor health, had been in Rago only once during the preceding year and that was sometime before the issuance of the temporary injunction. Immediately after service of the temporary injunction he employed an attorney, who at once wrote to Mrs. Wilson, appellant’s lessee, concerning the matter, calling attention to the statutes relating to the violation of the liquor laws by a tenant, stating that Wills had had no knowledge or any reason to suspect that such a violation of law was going on in his property at Rago. In this letter it was stated that Wills assumed that Mrs. Wilson likewise had had no such knowledge, desired to give her the benefit of the doubt and was not canceling the lease as he might do- under the law, but was demanding that she, as lessee, see that any improper use of the property be ended at once. We have examined the record carefully and find no evidence that the appellant had any reason to suspect that any violations of the liquor laws took place in the property following the temporary injunction until the raid took place in May, six months later. The court found that the place bore the reputation in and around Rago of being a place where the liquor laws were violated and that the premises continued to be so used, and such reputation in the community continued “to and inclusive of May 29th, 1940.” The court did not find that the appellant had knowledge of such reputation, and we find no substantial evidence to support a finding of violations after the issuance of the temporary injunction until shortly before the raid in May. On May 31, two days after the raid, the county attorney filed his affidavit upon which the citation for contempt was issued against Fink and the two women. In this affidavit he said:
“4. Affiant further states that /or some time after the issuance of said temporary injunction the defendant, F. E. Fink, maintained the premises as ordered by the court, but that, heretofore and on the-day of May, 1940, the exact date being unknown to this affiant, the defendant, F. E. Fink, knowingly and intentionally and with the purpose of avoiding and defeating the temporary injunction aforesaid, did cause to come upon the premises hereinabove described, the said Melba Bockelman and Leona Rogers, as lessees, servants, agents or employees. That the said F. E. Fink, Melba Bockelman and Leona Rogers since such date have maintained upon the premises hereinabove described a common nuisance in the following particular, to wit:” (italics ours).
The evidence, later adduced, substantiated the county attorney’s affidavit that the place appeared to be conducted lawfully until the two women came there in May upon arrangement with Mrs. Fink, when she decided to get out of the restaurant business. There was no evidence that the appellant was at Rago at any time during the period in question. L. J. Wilson, son of Mrs. Wilson, who seemed to be looking after matters for her, was a witness for the state and testified repeatedly that appellant had insisted that the place be properly conducted and that when he advised appellant, just before the women came, that Mrs. Fink was selling out, appellant said that he did not know these women, but that whoever went in there would have to run the place as it should be run. The sheriff, testifying for the state, testified that the place became quiet after the temporary injunction, and that complaints began again in May; that between the time the temporary injunction was issued and the raid in May he had looked in on the place several times; that he talked to Wills shortly after the temporary injunction, and Wills told him he wouldn’t allow any liquor violations to go on there; that he never saw the appellant around Rago at any time; that he never reported anything about the place either to the appellant or his attorney. Various witnesses for the state, who were residents at Rago, testified that they had never seen the appellant in Rago.
Evidence on the part of appellant supplied no deficiencies in the state’s evidence. Appellant testified, in substance, that he did not know the two women who took charge of the restaurant from Mrs. Fink and had never seen them until the day of the trial; that the first time he had any knowledge or reason to suspect that the place was not conducted lawfully was when he was served with notice of the temporary injunction; that he thought he then took effective steps to see that the violations were stopped; that he talked to the county attorney, who told him Fink was being given a little time to dispose of his business and get out. He said that he didn’t know until after the raid that the two women had actually taken over the business. He admitted he had not canceled Mrs. Wilson’s lease or started court action to eject her subtenants.
Mr. Wunsch, attorney for Fink, testified that at the December term of court, following the temporary injunction in November, the case was formally continued, and at the March term was passed over; that all of this was after discussions with the county attorney and agreement that the case would be continued if Fink would pay the costs and would sell out, and that then the case would be dropped; and that it was understood that “it could remain without being closed up to give Fink an opportunity to sell out” so that he wouldn’t have too much of a financial sacrifice. This testimony was not controverted.
It is urged by the appellee, however, that the judgment was properly entered against appellant because he did not cancel Mrs. Wilson’s lease and take legal steps to eject her and her subtenants from the premises. Attention is called by appellee to the latter part of G. S. 1935, 21-2137, supra, which provides that an owner who fails to take all reasonable measures to eject from the premises the person who has maintained a common nuisance therein “after being notified in writing of such use” shall be deemed guilty of assisting in the maintenance of the nuisance. The petition, however, which stated the only charges which appellant was required to meet, was not based upon that part of the statute. He was charged solely under the first part of the section with knowingly permitting the unlawful use of the premises. Appellee argues, however, that the petition charged a continuing offense and that therefore any material, facts subsequent to the filing of the petition could be shown. Assuming this to be true, it does not follow that subsequent facts not falling within the charges made against Wills would be admissible against him. In other words, the defendant was entitled to know what the specific charges were and to assume that he would be tried only on the charges contained in the petition. He was not charged with failure to eject after written notice. If the state desired to enlarge the charges to include such an allegation, it should have asked to file a supplemental petition for that purpose as provided for in G. S. 1935, 60-764. It did not do so, nor was appellant made defendant in the contempt proceedings. However, even if we assume— solely for purposes of the argument — that a personal judgment could properly be entered against appellant on the ground that he had failed to eject after written notice, although such charge was not included in the petition, and if we further assume that the temporary injunction was equivalent to the “written notice” required by the statute, we still find the record insufficient to support the judgment. Considering all the facts hereinbefore enumerated, we do not think it could be said that he did not take “reasonable measures” as required by the statute to see that violations were stopped and that Fink or other persons guilty of such violations were ejected by Mrs. Wilson. Certainly there was no evidence whatever that he had any knowledge that the new subtenants, under whose operation the violations were resumed, had been guilty of such violations. It may be well to observe that appellant is entitled to haye the evidence subjected to the same test of sufficiency that would be applied if this were any other sort of case not involving the intoxicating liquor laws.
As heretofore noted, the judgment against Fink and the injunction as against the property are not disturbed. Insofar as the judgment granted an injunction against appellant Wills personally and made such a judgment a lien against the property, it must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendants’ demurrer to plaintiff’s petition was overruled, and they appeal, the question presented being whether the alleged cause of action is barred by the statute of limitations.
The petition was filed on June 28, 1940, and allegations necessary to be noted are summarized.
F. W. Martin died in June, 1935, leaving a last will which was duly admitted to probate on June 26, 1935, and Thomas W. Martin and George Martin, brothers of F. W. Martin, and Bernice B. Martin, his widow, were appointed as executors. On July 21, 1936, George W. Martin resigned, and on December 7, 1937, Bernice B. Martin and Thomas W. Martin were removed by order of the probate court and plaintiff was appointed administrator with the will annexed de bonis non. At the time of his death F. W. Martin was the president' of defendant, The Martin Metal Manufacturing Company, hereafter referred to as the corporation, and the owner of more than six hundred shares of its stock. Upon his death, Thomas W. Martin succeeded to the presidency and was familiar with the status of the corporation and knew the shares of stock held by various stockholders and the shares owned by his brother, F. W. Martin, and where the same were kept. It was alleged that Thomas W. Martin unlawfully and feloniously purloined and earned away the shares which belonged to F. W. Martin, and, with other officers of the corporation, caused the purloined shares to be transferred on the books of the corporation from the name of F. W. Martin to his own name; that Thomas W. Martin knew the stock belonged to the estate of F. W. Martin but concealed the fact of the ownership and illegal transfer; that Thomas W. Martin illegally voted, as his own, at stockholders’ meetings, the shares of stock belonging to the estate of F. W. Martin, and was thereby enabled to control the corporation until he died. No dates as to the purloining of the stock or of the death of Thomas W. Martin are set out. The defendant, Ruth E. Martin, is the widow of Thomas W. Martin and the executrix of his estate, and now is illegally voting the stocks. Plaintiff further alleged that George W. Martin, a brother of Thomas W. Martin and F. W. Martin, is the record holder of one hundred shares of the corporation which belonged to F. W. Martin at the time of his death, but the shares are not in the possession of George W. Martin and he denies he is the owner, and plaintiff alleges that the shares are in possession of Ruth E. Martin individually or as executrix. The dates when the stock was transferred to George W. Martin or when Ruth E. Martin acquired possession are not shown.
Plaintiff further alleged that Louis Henry Martin another brother of Thomas W. Martin and F. W. Martin, after the death of the latter purloined 150 shares of the stock owned by F. W. Martin and caused the same to be transferred on the books of the corporation to the name of Louis Henry Martin; that Louis Henry Martin died testate on March 26, 1938, and Thomas W. Martin was on May 7, 1938, duly appointed as executor of his estate, and with full knowledge of the felonious taking and illegal transfer of the 150 shares of stock failed to inventory thg stock in his estate, and, with other officers of the corporation, caused the shares to be transferred on the books of the corporation to himself, and that the same are now in the possession of Ruth E. Martin, either individually or as executrix of the estate of Thomas W. Martin, deceased, or in the possession of his daughters, Eleanor E. Martin or Carolyn G. Martin Kennedy, defendants in the action, and that all of that stock has been and is being illegally voted at stockholders’ meetings; that all of the stock belongs to the estate of F. W. Martin, deceased, and should be turned over to the plaintiff administrator. Other allegations are that Thomas W. Martin purloined a large number of shares of other stockholders, and that Ruth E. Martin, either individually or as executrix of his estate, is in possession thereof; that as a result of the illegal acts above alleged, the shares of stock which rightfully belong to the estate of F. W. Martin are being unlawfully used and illegally voted and there are persons in control of the corporation and its management by illegal methods; that since the death of F. W. Martin the corporation has paid no dividends, and is being mismanaged; that Thomas W. Martin wrongfully withdrew large sums of money for various stated purposes and as a result of the mismanagement the earnings of the corporation have been decreased and an accounting should be had from the date of the death of F. W. Martin up to the present time; that by reason of the foregoing the estate of F. W. Martin has suffered great loss and damage and plaintiff has no adequate remedy unless the court will appoint a competent person to take charge, etc. His prayer was for the appointment of a receiver; that defendants be required to turn over all books, records, etc., of the corporation, and to make a complete accounting, that they be required to surrender the stock, and that they be restrained from transferring any stock belonging to the estate of F. W. Martin, etc.
The demurrer specifically raised the question the action was commenced too late and was barred by the statute of limitations. This demurrer was overruled and defendants appeal. It seems clear that plaintiff may maintain his action against the defendant corporation for an accounting only on the theory that he is, or stands in the position of, a stockholder of the corporation. Whether he occupies that position depends on his being able to maintain his alleged cause of action against the individual defendants as successors in interest of Thomas W. Martin who is charged with purloining the stock which belonged to plaintiff's intestate.
Before proceeding to consider the arguments made in the brief, it may be well to note that Thomas W. Martin and Louis Henry Martin are charged with having unlawfully and feloniously “purloined” certain shares of the defendant corporation. The verb “purloin” may mean either to wrongfully appropriate or to steal. By reason of the argument made by the appellee, generally we shall use the word as meaning to steal. Although in connection with many of the allegations no dates are given, the following does appear: F. W. Martin died about June 15, 1935, his will was admitted June 26, 1935, and George W. Martin and Thomas W. Martin, brothers, and Bernice B. Martin, widow, were appointed executors of his estate and duly qualified. George W. Martin resigned July 21, 1936, and on December 7, 1937, Thomas W. Martin and Bernice B. Martin were removed by order of the probate court and plaintiff was appointed as administrator with the will annexed de bonis non of the estate of F. W. Martin. The reason for the removal is not alleged. Then follows the charge that F. W. Martin owned 605 shares of stock of the defendant corporation and thereafter, seriatim, that Thomas W. Martin purloined an unknown number of shares and caused them to be transferred on the books of the corporation to his own name, and that thereafter he voted the shares, no dates being given; that 100 shares were placed in the name of George W. Martin, no date being given; that Louis Henry Martin purloined 150 shares which were transferred to his name on the books of the corporation, no dates being given; that Louis Henry Martin died testate on March 26, 1938, and on May 7, 1938, Thomas W. Martin was appointed and duly qualified as executor of his estate. It thus appears that all the unlawful acts were committed prior to March 26, 1938. As has been noted, the action was commenced June 28, 1940, or at least two years and three months after the commission of the unlawful acts.
The general substance of appellant’s contention is that the action is one for taking and detaining personal property and for the specific-recovery of that property, or for relief on the ground of fraud, and there being no allegation the fraud was not discovered until within a period of two years prior to the commencement of the action, the action is barred by G. S. 1935, 60-306, third.
The substance of appellee’s contention that his action was commenced in time is that Thomas W. Martin was guilty of larceny; that a thief obtains no title, and no statute of limitations runs in •his favor; that Thomas W. Martin is estopped to take advantage of his own wrong, he holds the stock in trust for the rightful owners, and that his executrix, widow and children, the individual defendants, are not purchasers for value without notice and stand in his shoes.
Under the allegations of the petition, there is no necessity for referring to any authorities dealing with the rights of purchasers of stolen property. The petition does charge a larceny of the stock, but the commission of the crime charged concerns the state. Plaintiff in this action is interested only in the civil consequences. When the stock was stolen, as alleged, it was transferred on the books of the corporation and was voted by Thomas W. Martin. Lacking any allegation to the contrary, we must assume that after the death of F. W. Martin the corporation filed with the secretary of state its various annual returns showing a complete list of the stockholders with the post-office address of each and the number of shares held by each (G. S. 1935, 17-701 [9]) and hence every person interested was put on notice as to the shares held. (See In re Estate of McFarland, 118 Kan. 534, syl. ¶ 2, 235 Pac. 832; Smith v. Rector, 135 Kan. 326; 10 P. 2d 1077; Kittell v. Smith, 136 Kan. 522, 524, 16 P. 2d 538; Causemaker v. DeRoo, 153 Kan. 648, 113 P. 2d 83; Henne v. Wood, 153 Kan. 673, 677, 113 P. 2d 98.) When the stock was unlawfully taken and converted to his use by Thomas W. Martin, by having it transferred to himself and by voting it, the plaintiff had two remedies open to himself. He could treat the matter by waiving the wrong and bringing action for the conversion and to recover the value, or he could bring replevin to recover the stock. He chose to do the latter, his petition, charging that the successors in interest of Thomas W. Martin should turn the stock over to him and the prayer asking for that specific relief.
As to the recovery of stolen property, our attention is not directed to any Kansas case directly in point, but there is little conflict in the authorities generally as to a situation such as is here presented. Where the thief conceals the property, he may not plead the statute of limitations in his own defense, but where he holds the property openly and notoriously, so that the owner has a reasonable opportunity of knowing its whereabouts and of asserting his title, the statute begins to run; this, not on the theory the thief is to be protected, but because of the failure of the owner to make timely assertion of his claim. (See 17 R. C. L. 94, 34 Am. Jur., 109; 2 C. J. 287, 2 C. J. S. 885, § 239. Also, see note Lightfoot v. Davis, 29 L. R. A., n. s., 119, 120, infra.) Where there is concealment of the property, so that a fraud may be said to have been committed, in which event the usual rules applicable to discovery of the fraud would apply, the statute begins to run from the discovery. We need not pursue this phase of the matter, however, for here the petition charges the converse of concealment. A fair reading of the petition is that the larceny took place prior to the time plaintiff was appointed as administrator in December, 1937, and a necessary interpretation is that it took place and was disclosed prior to the death of Louis Henry Martin in March, 1938, or over two years before the action was commenced.
On the question of the statute of limitations, appellee seeks to justify the ruling of' the trial court by directing our attention principally to Hinze v. Hinze, 76 Kan. 169, 90 Pac. 762, and Lightfoot v. Davis, 198 N. Y. 261, 91 N. E. 582, 29 L. R. A., n. s., 119, special weight being given the last case. The Hinze case dealt not with theft, but with misappropriation of money by a husband acting as his wife’s agent, and where he concealed from his wife the fact he had taken in his own name instead of hers title to real estate purchased with the wife’s money. The Lightfoot case dealt with theft of Kansas school bonds and the collection of the principal thereof, all of which was concealed by the thief and was discovered only after the death of the thief, when in an examination of his effects, a stolen memorandum in connection with the bonds was found and his books disclosed he had collected the bonds. The element of concealment in both of the above cases clearly distinguishes them from the case at bar.
While we are of opinion that the gist of the instant action is to recover specific property, if the petition should be construed as one seeking damages for fraud, the result would be the same insofar as the statute of limitations is concerned. If the purloining of the stock be considered as a fraud on the estate of F. W. Martin, the petition discloses that it was perpetrated over two years before the action was commenced. We do not overlook the allegation with reference to the shares transferred to Thomas W. Martin that he—
“Well knew that said stock belonged to the estate of his deceased brother, F. W. Martin, but nevertheless concealed said fact of ownership and illegal transfer.”
That allegation discloses there was a transfer of the stock, which was hardly concealment. But given its greater potency, it is not an allegation that plaintiff made discovery within two years prior to bringing his action, and under repeated decisions of this court was not sufficient to avoid the bar of the statute of limitations. (See, for example, Malone v. Young, 148 Kan. 250, 264, 81 P. 2d 23, and cases cited.)
Appellee seeks to avoid the effect of the statute of limitations by contending that Thomas W. Martin is estopped to take advantage of his own wrong; that the corporation is a trustee for its shareholders ; that Thomas W. Martin was a trustee holding the stock for his deceased brother’s estate, and upon the stock being purloined and transferred on the books of the corporation to Thomas W. Martin, the law would raise a trust in invitum out of the transaction. In support Lightfoot v. Davis, supra, and cases therein are principally relied on. By reason of concealment of the crime in the Lightfoot case, a different situation was presented than exists here. Viewed from the angle that a trust relation was created, it must have arisen from the acts of Thomas W. Martin. Bo considered, the gist of the action is that the talcing of the stock was in fraud of the rights of the true owner and that fraud is the gravamen of the cause of action stated. In such case plaintiff’s action must have been commenced, at the latest, within two years from the date of discovery of the fraud (G. S. 1935, 60-306, third). There are allegations showing the fraud occurred over two years before the action was commenced, but there is no allegation it was discovered within the two-year period, rather the converse is true, and consequently the action was commenced too late (City of Clay Center v. Myers, 52 Kan. 363, 35 Pac. 25). If it be assumed that a trust was created, and that the acts of Thomas W. Martin did constitute him a trustee for the beneficiaries of his brother’s estate, and that the statute of limitations would not commence to run until the trustee repudiated the trust, then it is to be observed that under the allegations of the petition, all the acts of Thomas W. Martin, after taking the stock, were in repudiation of that trust. Apparently from the date of his appointment as administrator, and certainly prior to the death of Louis Henry Martin, plaintiff was in full possession, or in position so to be, of all the facts. Under the view most favorable to the plaintiff, the statute commenced to run as against the plaintiff upon the repudiation, of the trust, and by lapse of time he is barred from maintaining an action on that theory. (See Malone v. Young, supra, and Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19.)
We are of opinion the trial court erred in overruling the demurrer. Its ruling is reversed and the cause remanded with instructions to sustain the demurrer. | [
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The opinion of the court was delivered by
HáRVey, J.:
Alleging she was the owner of a described quarter section of land in Sedgwick county which she was occupying as her homestead, plaintiff brought this action against the sheriff and judgment creditors to enjoin them from selling the land under an execution. The trial court made extended findings of fact, also conclusions of law, and rendered judgment for plaintiff. Defendants have appealed.
The facts found by the court, or otherwise shown by the record, may be summarized as follows: Plaintiff’s father, Theodore Oss-weiler, was a well-to-do farmer and businessman of Sedgwick county. He owned several farms, including the farm in question. On July 14, 1922, he conveyed the land in question to plaintiff by a warranty deed, which contained a paragraph requiring the grantee to pay him $200 annually as long as he lived and prohibiting her from selling or encumbering the land within his lifetime. On November 12, 3925, plaintiff and her husband executed a quitclaim deed for the land to her father. The next day, November 13, 1925, plaintiff’s father conveyed the land by warranty deed to plaintiff for life, with remainder to her issue. The deed included the paragraph requiring the payment to the grantor of $200 annually and prohibiting the grantee from selling or encumbering the land during his lifetime. Early in 1929 there was oil development in the vicinity of this land and there was an opportunity to lease it for gas and oil and a prospect of selling some of the mineral rights to the land. The condition of the title made it difficult to do this. At that time plaintiff was indebted to her father for some of the annual payments, and had other debts, and there were unpaid taxes on the land. There was an oral agreement between plaintiff and her father that plaintiff and her husband would reconvey the land to him, he would execute the oil and gas lease, and also a conveyance of mineral rights, if a purchaser could be found, and if not, that he would execute a mortgage on the property for money sufficient to pay up plaintiff’s then indebtedness. In the carrying out of this agreement plaintiff and her husband, on Februray 27, 1929, conveyed the land to her father by a quitclaim deed. After this deed was made plaintiff’s father leased the property for oil and gas and placed a mortgage thereon of $2,100 to a trust company at Wichita. The taxes and plaintiff’s indebtedness to her father and others was paid out of the proceeds of the lease and mortgage. Beginning in 1929, Theodore Ossweiler kept an account book respecting the farm in question containing this heading on one sheet in his own handwriting: “Expenses paid by me for Elizabeth and John Stump in the year 1929.” On another sheet, starting in 1929, in his own handwriting, were entered the items of income from this farm. These entries were made continuously down to and including the year 1937. On the date of March 7,1930, the books showed the account to be balanced, and on that date plaintiff’s father executed a general warranty deed for the land in question to plaintiff. After executing the deed he called plaintiff to his home and told her about all the various transactions and handed her the deed and told her about it. Plaintiff told her father to take care of it, for she would not know what to do with it. At sometime later her father took the deed to the bank, where he had a safety deposit box, and placed it therein. In November, 1936, he asked his son, Theodore, Jr., to go with him to the bank. There they looked through his papers and among others was an envelope containing this deed, on which there was written plaintiff’s name in longhand. He told Theodore, Jr., that this contained Lizzie’s deed, which was to her farm, and asked his son to record it as soon as he, the father, was dead. They then took this, with other papers, to the father’s home and placed it in a bookcase. The father asked the son to note where it was so he could record it after the father’s death, and after the father’s death the son saw the deed and took it to the courthouse and recorded it, January 19, 1938. Among other things the court found:
“At all times from and after the execution of this deed, Mr. Ossweiler treated the land as that of his daughter, the plaintiff herein, and frequently spoke of it as her land. At the time he told her where her deed was, he expected her to receive it and considered that she had received it and he was keeping it for her at all times thereafter by her request. He desired to have her own the land and income therefrom, and that the same should be sufficient for her keep and maintenance.”
Plaintiff and her husband moved onto this land in February, 1930, with their furniture, farm machinery and livestock. They occupied it as a homestead. Plaintiff’s husband died in September, 1930, and she continued to reside upon the land, pursuing the usual occupations of one living upon a farm, until about 1935 or 1936, when because of financial conditions she found herself obliged to work, and worked for some time at White City, Kan., keeping house for her employer. During this time she maintained a room at her home and kept considerable of her furniture there; also some farming tools, machinery and cattle. She returned from time to time for short periods, occupying her room. She looked upon the farm as her home, and at all times expected to return to it permanently. She has had no other homestead and has considered this her homestead.
On September 11, 1929, Theodore Ossweiler executed his will, and on January 28, 1932, a codicil thereto, and on February 21, 1934, a second codicil, and neither in the will nor codicils was any reference made to the land in question, although the will disposed of other lands, being all the land he owned, unless the land in question should be regarded as belonging to him. On December 31, 1937, he made a further codicil to his will, placing $1,000 in trust for plaintiff, pro viding that should the income from the land in question be insufficient to properly keep or maintain her, the trustee would pay such portion of the trust fund as was deemed advisable for the maintenance of plaintiff. Theodore Ossweiler died January 13, 1938. The land in question never was inventoried as a part of his estate. After his death it appears that plaintiff consulted an attorney in Wichita something about the estate. Some time later this attorney asked the attorney of the executor to get for plaintiff a quitclaim deed from her brothers and sisters. The attorney for the executor got those deeds, but neither plaintiff nor the attorney who requested that they be procured ever called for them. They never have been delivered to the plaintiff, nor to anyone representing her, and it is not at all clear from the evidence that she requested her attorney to get them, or knew they had been procured.
In 1933 certain of the defendants procured judgments in the district court against the plaintiff on notes which she and her husband previously had executed. After the death of plaintiff’s father executions were issued on these judgments and placed in the hands of the sheriff, with the request that he levy upon and sell the land in question as the property of plaintiff for the payment of the judgments.
After finding the facts more in detail than we have stated, the trial court made the following conclusions of law:
“That following the' deed of February 27, 1929, Theodore Ossweiler held the property in trust by oral agreement for the plaintiff until the execution and delivery of the subsequent deed.
“That the execution of the deed of March 7, 1930, and the acts and circumstances following thereon, constituted a delivery of the deed in question to the plaintiff herein, and that she has been the absolute owner of the real estate in question since on or about March 8, 1930, subject only to the' mortgage of the . . . Trust Company.
“The property in question was the homestead of the plaintiff and her husband prior to his death, and has since that time continued to be the plaintiff’s homestead.
“The plaintiff is entitled to have her title to such real estate quieted and established as against the defendants and each of them, and that the defendants should be and are hereby enjoined from selling the land described.”
Judgment was rendered in harmony with the conclusions of law.
Arguments on behalf of appellants may be summarized as follows: Under the rules of law applicable to the facts there was no delivery of the deed of March 7, 1930, hence plaintiff had no title to the property prior to the death of her husband in September, 1930, upon which a claim of homestead could be based; that plaintiff’s father at no time held title to the property in trust for plaintiff; that plaintiff acquired the title to the property in this manner: Since the farm in question was not disposed of by her father’s will it passed to his heirs under the statute of descent. Plaintiff was one of the heirs and inherited a share of the property. She later acquired the remainder of the shares by deeds executed by her brothers and sisters at the request of the attorney for the executor.
The principal point relied upon by appellants is their contention that the deed of March 7, 1930, never was delivered prior to the death of plaintiff’s husband, or prior to the death of the grantor. In support of this contention they cite Hush v. Reeder, 150 Kan. 567, 576, 95 P. 2d 313, where the court quoted approvingly from Young v. McWillams, 75 Kan. 243, 245, 89 Pac. 12, as follows:
“Where one who has executed a deed retains it in his own possession, with the intention that it shall become operative upon his death, no conveyance is effected. He dies in the full ownership of the property and the title passes to his heirs or devisees.”
Also, quote from Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, where the rule is stated thus:
“Before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor.”
Also, from 18 C. J. 417, where it is said:
“Where a deed which has been duly executed and acknowledged is subsequently found in the possession of the grantor, a presumption arises that it was never delivered (citing Burton v. Boyd, 7 Kan. 17), and the burden of proof rests upon the party claiming under the deed.”
Counsel also cite Stone v. French, 37 Kan. 145, 14 Pac. 530; Worth v. Butler, 83 Kan. 513, 112 Pac. 111; Alward v. Lobingier, 87 Kan. 106, 123 Pac. 867; Hoard v. Jones, 119 Kan. 138, 237 Pac. 888; Poteet v. Knappenberger, 139 Kan. 534, 31 P. 2d 1003; Roberts v. McCoach, 145 Kan. 407, 65 P. 2d 289; Fulton v. Menefee, 146 Kan. 150, 68 P. 2d 1112, all of which cases deal with the necessity of the delivery of the deed during the lifetime of the grantor. Many more of our cases are collected in Hush v. Reeder, supra, at page 576.
The question of whether the deed was effectively delivered during the lifetime of the grantor is largely one of the intention of the grantor. See Balin v. Osoba, 76 Kan. 234, 91 Pac. 57; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573; Smith v. Dolman, 120 Kan. 283, 243 Pac. 323; McLain v. Barr, 125 Kan. 286, 264 Pac. 75; Central State B. & L. Ass’n v. Bitler, 149 Kan. 349, 87 P. 2d 631. That the intention of the grantor with respect to delivery was controlling was held in many of the other cases above cited or referred to.
In this case, under the facts found, the court concluded as a matter of law that the deed in question was effectively delivered on March 8, 1930. Our real problem is to determine whether there is substantial, competent evidence to support these findings and conclusions. The pertinent facts bearing on that question may be summarized as follows: Plaintiff acquired title to this land by a deed from her father on July 14, 1922. In November, 1925, by an exchange of deeds, the nature of that title was somewhat altered, but she continued to have an estate in the land. When taxes and debts had accumulated in 1929, in order that they might be handled advantageously, it was agreed between plaintiff and her father that plaintiff and her husband would convey the land to him, that he would execute an oil and gas lease thereon, sell some of the mineral rights if he could find a buyer, and if not, execute a mortgage on the land to secure money to pay taxes and indebtedness, and that he would then reconvey the land to plaintiff. Now there is no question under this evidence about this parol agreement having been made. It is thoroughly sustained by the testimony of witnesses who were not interested in the outcome of this suit. Appellants do not contend otherwise. Plaintiff’s father promptly set up an account of moneys received and disbursed and designated the accounts as pertaining to plaintiff’s land. This was done soon after the deed to him was executed in February, 1929, and indicates his idea that although he was then holding the title under that deed the land belonged to plaintiff. He handled the business matters connected with the receipts and disbursements pertaining to this farm until the books were balanced on March 7, 1930, when he promptly executed a deed to plaintiff for the land. He sent for plaintiff, who went to his home the next day; told her what he had done; that he had executed the deed to her for her land. There is a little quibble about just the language used. We shall not take time to set that out -extensively. We are confident, however, the court was justified in finding that the grantor gave the deed to plaintiff and she asked him to take care of it for her. Where a deed is effectively delivered, the fact that it is handed back to the grantor for some purpose does not defeat the delivery. The subsequent evidence is to the effect that the grantor did keep it for plaintiff for several years in his lockbox at the bank, where it was kept in an envelope, marked with plaintiff’s name,- as belonging to her. Then the grantor handed it to his son, told him it was plaintiff’s deed to her land and to keep track of it and record it after his death. In 1929 plaintiff’s father made his will. He did not include the land in question in the property disposed of in his will, even though at that time title stood in his name, indicating that even then he did not regard the land as his; and the subsequent codicils to the will, and particularly the last one, indicated clearly that he regarded this land as belonging to his daughter. Apparently his children so understood it, for at the request of the attorney for the executor they executed deeds to the plaintiff. Considering all these things we think the court was fully justified in finding there was an effective delivery of the deed in question.
The transaction of the - execution of the deed of March 7, 1930, and the delivery of it to plaintiff next day, occurred more than three years before appellants obtained their judgments against plaintiff. There is no- claim on appellants’ part that this transaction was fraudulent as to them, or that the debts were then in existence which finally ripened into judgment.
Appellants contend that the oral agreement between plaintiff and her father in February, 1929, was void under our statute pertaining to trusts. (G. S. 1935, 67-401.) This statute does not prohibit the carrying out of such oral agreements when the parties desire to do so. If there had been no such oral agreement plaintiff’s father could have deeded her the land. Hence, the question whether that agreement was valid is of no particular importance in this case.
Plaintiff and her husband moved upon this land with their household goods, farming equipment and livestock in February, 1930. Both plaintiff and her husband lived on the land and made it their home until his death in September of that year. We regard it as not material whether plaintiff actually had title to the land at the time they moved upon it in February, since they did get title by the delivery of the deed on March 8, and the homestead may be regarded as commencing either when they first went there, or on the date of the delivery of the deed.
Appellants argue that even though this became the homestead of plaintiff that she abandoned the homestead when she commenced working for people in 1935 and 1936. We think this contention is untenable. She and her husband had a homestead in the place prior to his death, and as long as she continued to live on the place it was her homestead. (Weaver v. Bank, 76 Kan. 540, 94 Pac. 273.) When she went away to work for people in 1935 or 1936 she kept her household goods, cows and farm implements on the place and returned to it at her convenience and considered and regarded it as her home. (See Farmers State Bank v. Weeks, 138 Kan. 376, 26 P. 2d 262, and cases there cited.)
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to foreclose a materialman’s lien on real estate and to determine priorities between two liens of that character and between those liens and a first mortgage lien. The former lienholders prevailed as against the holder of the mortgage lien and only the latter appeals.
The trial court made the following findings of fact:
(1) “At the time of the trial of the above-entitled case, it was stipulated by and between the parties that Edgar White acquired title to the west 45 feet of lots 13, 14 and 15, in block 20, Southern Heights addition to the city of Salina, Kansas, by warranty deed from Nellie Mae White, said deed being dated October 18, 1938, acknowledged on October 22, 1938, and recorded in the office of register of deeds in and for Saline county, Kansas, on October 27, 1938.
(2) “The plaintiff, Leidigh & Havens Lumber Company, Inc., was at all times mentioned herein a corporation duly organized and existing under the laws of the state of Kansas, having a place of business in Salina, Kansas, and engaged in the business of selling general building materials.
(3) “The defendant M. R. Powell, was at all times mentioned herein a plumbing and heating contractor with his principal place of business in Salina, Kansas, and engaged in the business of plumbing and heating as a contractor.
(4) “The above-mentioned Edgar White died intestate on the 22nd day of July, 1939, leaving surviving him as his sole heirs at law the above-named defendants, Goldie Hazel Larkin, Nell White, Eva White, his daughters, all of whom are of lawful age.
(5) “On the 27th day of November, 1939, the said Eva White was duly appointed administratrix of the estate of the said deceased, Edgar White, by the probate court of Saline county, Kansas, and was at all times herein mentioned after said 27th day of November, 1939, the duly appointed, qualified and acting administratrix of said estate, and as such administratrix is one of the above named defendants.
(6) “Mrs. Will E. Wyatt, one of the above-named defendants, is the owner and holder of a promissory note for $2,000 signed by said Edgar White and secured by a mortgage on the above-described real estate, said note being-dated October 25, 1938, payable five years after date and bearing interest at the rate of 5%% per annum, payable semiannually, as shown by the terms of said note and evidenced by interest coupons attached thereto.
(7) “The remaining defendants named in the above-entitled action have either filed a disclaimer of any interest in said real estate or have made default by failing to file any pleadings in the case.
(8) “On October 13, 1938, said Edgar White commenced the excavation of a basement on said property as a part of the construction of a dwelling house thereon and thereafter work was continued and construction of the house continued until June 13, 1939.
(9) “During the months of September and October, 1938, the said Edgar White was negotiating for a loan in the sum of $2,000 with R. P. Cravens & Sons, for the purpose of obtaining money with which to construct the dwelling house upon said real estate, and said negotiations culminated in the said R. P. Cravens & Sons loaning to said Edgar White the sum of $2,000, said loan being represented in this action by the above-mentioned note, dated October 25, 1938, and payable to Mrs. Will F. Wyatt and secured by mortgage upon said real estate, bearing even date with said note.
(10) “The defendant Mrs. Will F. Wyatt was a customer of said R. P. Cravens & Sons and at the time said R. P. Cravens & Sons made said $2,000 loan to said Edgar White, she had on deposit with said R. P. Cravens & Sons, the sum of $2,000. The said R. P. Cravens & Sons had been authorized by said defendant Mrs. Will F. Wyatt to purchase a $2,000 loan for her with said $2,000 deposited with said R. P. Cravens & Sons. The said R. P. Cravens & Sons instead of making said $2,000 note and mortgage from Edgar White payable to themselves, and afterward assigning same to said defendant Wyatt, made the note payable to said Mrs. Will F. Wyatt and inserted the name of Mrs. Will F. Wyatt as the mortgagee in the mortgage securing said $2,000 note, and on said October 25, 1938, charged the account of Mrs. Will F. Wyatt with said R. P. Cravens <& Sons $2,000 and credited on their books said $2,000 to the account of Edgar White, and after the execution and delivery of said $2,000 note and mortgage by said Edgar White, said R. P. Cravens & Sons delivered said note and mortgage to the said Mrs. Will F. Wyatt. The said Mrs. Will F. Wyatt at no time knew of or participated in the making of said loan, and purchased said loan from said R. P. Cravens & Sons for the sum of $2,000.
(11) "On or about October 13, 1938, plaintiff, acting by and through its authorized manager and agent, entered into an oral contract with Edgar White for the sale of certain building material to be used in the erection of said dwelling house upon the above-described real estate, and at the time said plaintiff, through its agent, agreed to sell to said Edgar White the building material consisting principally of lumber and cement, but including other building material, as shown by plaintiff’s exhibit one and in evidence in this case, at the prices therein stated; and thereafter on October 13, 1938, made the first delivery of part of said building material to said Edgar White upon the above described real estate and continued to deliver said materials as ordered by said Edgar White to said Edgar White upon said real property above described, the last delivery of said material being made as aforesaid upon June 13, 1939. All of said materials so delivered as aforesaid, were actually used in the construction of said dwelling house on said real estate.
(12) “On September 2, 1939, plaintiff filed in the office of the clerk of the district court of Saline county, Kansas, its mechanics lien statement, as evidenced by the original mechanics lien statement so filed and in evidence in this case.
(13) “Prior to October 10, 1938, the defendant M. R. Powell entered into an oral agreement with the said Edgar White, wherein he agreed to supply the material and furnish the labor for the heating and plumbing for said dwelling house to be constructed upon said real estate, and commenced work under said contract on or about October 13, 1938, and continued the supplying of material and labor for the plumbing and heating in said dwelling house until May 31, 1939, at which time the last of said heating and plumbing material was so furnished. By the terms of said oral contract between said M. R. Powell and said Edgar White, the contract price for the labor and material to be furnished thereunder totaled the sum of $443. On account of the illness and death of the said Edgar White, all of the heating and plumbing material so contracted for was not furnished and said contract work has not been completed. A detailed statement of the material and labor furnished is not in evidence, but the court finds that plumbing and heating material consisting of water pipes, soil pipes, bath pipes, wall heaters in bath and bed room, sink, trap, and furnace of the value of and in the sum of $265 was furnished and used in the erection of said building, and labor of the value of $98 was performed in the erection of said building, making a total of $363 worth of labor and material supplied under said contract.
“During the month of February, 1939, the said Edgar White paid to the defendant M. R. Powell the sum of $200 to be applied upon said contract, leaving a balance due said M. R. Powell for material and labor which has been furnished and performed under said oral contract in the sum of $163.
(14) “On August 31, 1939, defendant M. R. Powell filed in the office of the clerk of the district court of Saline county, Kansas, his mechanics’ lien statement for the aforesaid amount due him as the balance due and unpaid for labor and material furnished as evidenced by defendants’ exhibit No. 21.
(15) “The said Edgar White was a carpenter by trade and in the construction of said house and in purchasing the material therefor he acted for himself both as owner and contractor.
(16) “Interest on said $2,000 note secured by said mortgage in the sum of $55 was due on October 25, 1939, and has not been paid. By the terms of said note upon such default being made all of the principal and interest shall, at the option of the legal holder of said note, become at once due and payable without notice, and the legal holder of said note, defendant Mrs. Will F. WTyatt, having declared and exercised her said option with regard thereto, the said note and interest thereon is by the court found to be in default.
(17) “The court finds that plaintiff furnished material to Edgar White in the sum of $1,074.77 which was actually used in the construction of the building upon said real estate.
(18) “The court further finds that defendant M. R. Powell furnished material and performed labor in the sum of $363 actually used and performed in the construction of the building on said real estate, and that said M. R. Powell has been paid the sum of $200, leaving a balance due said Powell for said material and labor furnished, in the sum of $163.
(19) “The court further finds there is due and payable to defendant Mrs. Will F. Wyatt, the legal holder of said note and mortgage, the sum of $2,055 with interest thereon at 10% per annum from October 25, 1939, until paid, and said defendant is entitled to have said mortgage securing said note foreclosed.”
In the conclusions of law all claims for liens were sustained in the amounts claimed to be due. The liens of plaintiff and the defendant, Powell, were decreed to be first liens and of equal priority. The mortgage lien was made subject to each of the other liens. The findings of fact and conclusions of law were attacked in part by plaintiff and the defendant, Powell. Their motions were overruled and neither of them has appealed. The mortgage lienholder, appellant, moved to set aside only the conclusions of law. She also moved for a new trial. She contends the court erred in holding the claims of plaintiff and the defendant, Powell, constituted valid liens.
Before examining that contention we are confronted with a preliminary subject. It is the motion of Eva White and Nellie White, heirs of Edgar White, deceased, and Eva White, administratrix of decedent’s estate, to dismiss the instant appeal. In support of that motion it is urged the respective claims for liens were not presented for allowance and classification in the probate court as required by law, and that the judgment of the district court is void for want of jurisdiction.
The theory of the contention is that where an estate is in process of administration, the probate court has exclusive jurisdiction over claims against the estate and that jurisdiction of the district court can be invoked only by appeal from the order of the probate court. In support of that position our attention is directed to G. S. 1939 Supp. 59-301, 59-1301, 59-1410, 59-2237, 59-2239; Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435; Correll v. Vance, 127 Kan. 840, 275 Pac. 174; Fry v. Riley, 131 Kan. 252, 291 Pac. 748; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006; Roberts v. Wallace, 141 Kan. 717, 42 P. 2d 594; Wright v. Simpson, 142 Kan. 507, 51 P. 2d 1; Staker v. Gillen, 143 Kan. 212, 53 P. 2d 821; Shuckrow v. Maloney, 148 Kan. 403, 83 P. 2d 118; Page v. Van Tuyl, 150 Kan. 285, 92 P. 2d 110. Neither of the statutes nor the decisions cited support the contention. These are statutory liens which attach to specific real estate. Materialmen’s and laborers’ liens on buildings and the premises upon which they are located attach from the date of the commencement of construction or repair. (G. S. 1935, 60-1401; Kantzer v. Southwest Home Investment Co., 128 Kan. 401, 402, 278 Pac. 53.) G. S. 1939 Supp. 59-2239, in part, provides:
“No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of his death, unless an executor or administrator of his estate has been appointed within one year after the death of the decedent and such creditor shall have exhibited his demand in the manner and within the time herein prescribed.” (Emphasis supplied.)
In the instant case the liens on this specific real estate existed prior to decedent’s death and the lien claimants were not precluded from enforcing their security by appropriate actions in the district court. The claims were exhibited as authorized by law. The lien statements were both filed within less than two months after decedent’s death and within the statutory period of four months after material was last furnished or labor performed. The instant action against the administratrix to foreclose the liens is considered a demand legally exhibited against decedent’s estate from the time the original process is served on the administratrix. (G. S. 1935, 22-704; G. S. 1939 Supp., 59-2238; 2 Bartlett’s Kansas Probate Law and Practice, §§1118, 1119, 1120; Masheter v. Lanning, 151 Kan. 604, 100 P. 2d 682.) The instant action was commenced in less than six months after decedent’s death. The district court manifestly had jurisdiction over the parties and the subject-matter of the action. •The motion to dismiss the appeal is denied.
Appellant contends the lien claimants did not contract with the owner of the lots for the sale of materials or the furnishing of labor as required by G. S. 1935, 60-1401. On the record before us it is conceded: That prior to October 10, 1938, Powell entered into an oral contract with Edgar White to supply the material and furnish the labor for the heating and plumbing of the dwelling and that Powell commenced work under that contract on October 13, 1938; that Edgar White commenced negotiations in September and October of 1938 for a loan in order to obtain money to construct a dwelling upon the lots in question; that on October 13, 1938, White commenced the excavation of a basement on the lots as a part of the construction of the dwelling and thereafter the work and construction continued until June 13, 1939; that on October 13, 1938, plaintiff’s agent contracted with White for the sale of materials to be used in the erection of the building and that the sale of the materials was made pursuant to such contract; White acquired title to the lots in question by warranty deed, dated October 18, 1938, and acknowledged October 22, 1938; appellant’s note and mortgage was not executed until later, to wit, on October 25, 1938.
In view of these conceded facts we need not discuss the question of the sufficiency of decedent’s equitable title to support the liens on the dates of his contracts with the lien claimants. On that subject, however, see Nason v. Patten, 88 Kan. 472, 129 Pac. 138, and cases therein cited. Under statutory provisions the liens for ma-' terial and labor on the building and premises attached from the date construction was commenced and those liens are expressly made prior to all other liens or incumbrances which may attach subsequent to the commencement of the building or improvements. (G. S. 1935, 60-1401.) Excavation for the basement constituted commencement of the building. (Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 29 Pac. 153; Security Stove & Mfg. Co. v. Sellards, 133 Kan. 747, 749, 3 P. 2d 481.) In any event White was the owner not only of the equitable but of the legal title to the lots prior to the execution of the mortgage and construction commenced prior to the time appellant’s mortgage lien attached. It follows the trial court properly concluded the liens for materials and labor were prior and paramount to the mortgage lien.
Appellant contends the lien statements were fatally defective. The specific objection to plaintiff’s lien statement is that it failed to state the name of the contractor or to name any person who contracted for the material. It is true the space intended for the name of the contractor was left blank. The statement did, however, allege Edgar White was the owner of the lots described. At the top of the itemized account which was attached to the statement and specifically made a part thereof, it clearly appeared the account was with Edgar White. The lien statement itself also contained the direct allegation that there was due and owing to plaintiff from the estate of Edgar White for the materials furnished, a balance in the sum of $1,074.37. The itemized account attached indicated that balance was due on the account of Edgar White. It is true the statute requires that the name of the contractor be included in the lien statement. (G. S. -1935, 60-1402.) The trial court specifically found from the evidence Edgar White was a carpenter by trade and that in the construction of the house and in purchasing the material therefor he acted for himself both as owner and contractor. That finding was not challenged by appellant and is now conceded. When a lien claimant contracts directly with the owner there are, of course, only those two parties involved in the transaction. Under such circumstances there is no contractor, in the ordinary sense of the term, to be named in the lien statement. (Brown v. Walker, 100 Kan. 542, 545, 164 Pac. 1092.) It appears the defendant, Powell, requested leave to amend his lien statement and that the court stated it would permit amendments of both the lien statements of plaintiff and the defendant, Powell, but not so as to affect the rights of the mortgage lienholder. The statute expressly provides that a lien statement may be amended in furtherance of justice in any manner except as to the amount claimed. (G. S. 1935, 60-1405.) In view of the judgment sustaining the liens we must and do assume the trial court later concluded the lien statements were sufficient or if amendments were necessary that he would consider them as having been made. In either view the ultimate judgment was correct and that is our only concern now.
The complaint concerning the lien statement of the defendant, Powell, is that his account Was not properly itemized. It is true his lien statement did not itemize all the material furnished or the hours of labor. He was not employed upon an hourly basis. It contained a statement that material was furnished in the sum of 1265 and that labor was performed in the amount of $98, for a total sum of $363. It disclosed Powell had received the sum of $200, leaving an amount'due to him in the sum of $163. It is true the statute requires that the lien statement shall set forth the amount claimed and the items thereof, as nearly as practicable. (G. S. 1935, 60-1402.) It is also true that owing to the illness and death of the owner, the plumbing work was not completed. Appellant emphasizes language employed in Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236, where it was said:
“If the building had been completed according to contract and within the contract price, the items might not have been so important; but, as has been seen, the building was incomplete, and no one can tell what proportion of the work has been done, or the amount or value of labor and material necessary to its completion.” (p. 303.)
No question of right to amend appears to have been raised in that case. What we have said concerning plaintiff’s right to amend in the instant case applies with equal force to the lien statement of the defendant, Powell. (Supply Co. v. Oil Co., 110 Kan. 468, 470, 204 Pac. 692.) Concerning the Nixon case, supra, it also may be noted that Rutledge Brothers had a contract to-construct the entire building and that much of the work was done by subcontractors. Moreover, in that case the lien statement failed to itemize separately the material and the labor. That fact was stressed in the opinion (p. 303). In the instant case those items were separated. Furthermore, the evidence disclosed and the trial court found and enumerated the items of material furnished which were of the value of $265, the amount claimed for material. It further found that labor of the value of $98, the amount of the claim, was performed.
We think the trial court properly sustained the validity of the liens and correctly decided the issue of priority. We have noted various decisions from this and other jurisdictions cited by appellant and do not deem it necessary to further extend the opinion. Nothing in our own decisions requires a reversal and the judgment of the district court is affirmed. | [
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The opinion of the court- was delivered by
HaRvey, J.:
This was an action to have it decreed that the principal defendants held in trust for plaintiff the title to certain real property, with a prayer in the alternative that plaintiff be subro-gated to the rights of a certain mortgagee. A trial by the court resulted in judgment for defendants. Plaintiff has appealed.
The petition was filed April 27, and the amended petition September 20, 1938. In this it was alleged that W. F. Ley died intestate in July or August, 1937; that his estate had not been administered upon and that he left as his sole heirs at law his widow, Docia Ley, and two sons, Harold Ley and Horace Ley; that plaintiff is the equitable owner of a certain described tract of farm land of 140 acres in Franklin county; that W. F. Ley, at the time of his death, was the apparent owner of the land, as shown by the public records, and upon his death his only heirs at law became the apparent owners, but in fact the ownership of W. F. Ley in his lifetime and of his heirs now was and is colorful only, and that W. F. Ley did not in his lifetime and his heirs at law do not now have any actual ownership in the land; that about December 17, 1931, through the agency of the Mansfield Land & Loan Company of Ottawa, he contracted to purchase the land for $8,500, the land being then encumbered by a mortgage for $3,500; that he paid $500 at the time the contract was entered into, and on January 6, 1932, paid an additional sum of $4,500; that the then owners of the real property conveyed the land to W. F. Ley by a general warranty deed, subject to the mortgage, which deed was duly recorded; “that said described real estate was, as aforesaid, purchased by plaintiff and conveyed to the said W. F. Ley without any fraudulent intent on the part of this plaintiff, the said W. F. Ley, or any other person, and such conveyance was accepted and received by the said W. F. Ley pursuant to an oral understanding and agreement between this plaintiff and the said W. F. Ley that he, the said W. F. Ley, was to hold the legal title to said described real estate in trust for this plaintiff, and that he would convey said premises to plaintiff on demand”; that W. F. Ley was a brother-in-law of plaintiff and plaintiff imposed special confidence and trust in him; that he represented and stated to plaintiff that he would move upon and occupy the land and farm the same in good workmanlike manner and protect the real estate and improvements thereon from waste if plaintiff would advance to him money from time to time to help him get started to farming, and that he would repay such loans and account for the rents arising from the farming venture; that plaintiff was a widower and had no permanent place of residence, and by reason of his advanced age it was impracticable for him to manage the farm; that for the purpose of holding the legal title thereto “W. F. Ley was the confidential agent and -trustee of plaintiff, and said plaintiff believed and relied upon the said oral agreement”; that at the time of the conveyance and the oral agreement plaintiff had no creditors; that about December-29,1931, W. F. Ley and his wife, Docia Ley, executed to G. S. McCurdy their promissory note for $3,500, payable November 1, 1936, and as security therefor executed a mortgage upon the real property in question for the purpose of renewing the mortgage of $3,500 upon the land at the time it was purchased; that plaintiff paid the note of $3,500, together with interest thereon and taxes' upon the land, amounting to $4,072.61; that neither the sum of $5,000 originally paid by plaintiff upon the purchase price, nor the sum paid by plaintiff to retire the mortgage given by W. F. Ley and wife upon the property, have ever been repaid to plaintiff; that he paid the taxes upon the real property for 1932 at the request and with the consent of W. F. Ley, and for the purpose of protecting plaintiff’s equitable interest in and claim to the real property; that it was necessary for plaintiff to make the payments of taxes and the principal and interest on the $3,500 loan to discharge the real estate from the lien created by the mortgage given by W. F. Ley and wife to McCurdy, and in order that plaintiff might not lose his equitable interest in the property; that on April 29,1935, plaintiff completed full payment of the $3,500 note and mortgage, which transaction was handled through the Peoples National Bank at Ottawa; that it was plaintiff’s understanding that the holder of the note and mortgage, G. S. McCurdy, would assign the same to plaintiff, but that through mistake the mortgage was released of record; that about August 4, 1934, W. F. Ley and wife executed to G. S. McCurdy their second mortgage upon the real property to secure a loan of $500 without the knowledge and consent of plaintiff; that about January, 1938, he demanded of the heirs at law of W. F. Ley that they execute and deliver to plaintiff a proper instrument conveying to plaintiff the legal title to the real estate, but that such heirs, and each of them, failed and refused to do so.
The prayer was for a decree against the heirs of W. F. Ley requiring them to convey the property to plaintiff, or that the decree act as such conveyance, and in the alternative that if the court should for any reason fail to find for plaintiff respecting his ownership of the property that plaintiff be subrogated to all the rights theretofore owned and possessed by G. S. McCurdy under the $3,500 note and mortgage hereinbefore mentioned, and for such other and further relief as is just and equitable.
The defendants, Docia Ley, Harold Ley and Horace Ley, answered, admitting the residence of plaintiff and the death of W. F. Ley and their heirship, as alleged, and denying all other allegations of the petition. G. S. McCurdy, made a party defendant, filed no answer or plea to the petition.
The facts disclosed by the evidence, which were stipulated at the trial or are not seriously controverted, may be summarized as follows: In 1920, and for some time prior thereto, plaintiff and his wife lived about six miles nqrth of Parsons, on a farm which he owned and operated. They had no children. His wife had a favorite brother, W. F. Ley, who with his wife and two sons resided at Pittsburg, and who was employed as a motorman on an electric interurban railroad. The families visited back and forth. Plaintiff’s wife died September 4, 1920. After her death plaintiff found it impracticable for him to attempt to operate his farm. He sold the farm and converted his personal property into cash, realizing a total of about $9,000. This was about 1922. He invested this money in building and loan shares, or deposited it in banks at various places — at Parsons, Kan., and in Oklahoma, Texas and Missouri. He lived for a few years in Oklahoma, then went to Illinois, where he worked as a laborer on highways for about five years. He returned to Kansas in 1930 and appears to have made his home, a part of the time at least, with his sister, who lived at St. Paul in Neosho county. W. F. Ley had wanted to get on a farm and engage in farming. Plaintiff shared his wife’s good opinion of and kind feeling-for W. F. Ley and his family and was particularly interested in the two boys, Harold and Horace. There was some talk between plaintiff and Mr. Ley and his family about plaintiff letting Mr. Ley have money to buy a farm, or the plaintiff investing in a farm, or buying a farm for the Leys to move upon and operate. The lack of clearness as to the nature of these talks, and as to what was eventually agreed upon, make it difficult to determine the present rights of the parties. In the late fall of 1931 plaintiff, W. F. Ley, and his son Harold Ley, started out to look for a farm. They visited a real-estate agent at Lawrence, W. W. White, who showed them several farms, but no purchase was made from him. They went to the Mansfield Land & Loan Company, in charge of Allen Mansfield, at Ottawa, and were shown several farms by D. L. Casida, who was connected with the Mansfield company. After looking at several places they decided to buy what was known as the Naylor farm. On December 17,1931, a written contract was entered into by which the executor of the Naylor estate agreed to sell the property to W. F. Ley at the price of $8,500. There was a mortgage on the land of $3,500 held by G. S. McCurdy, which was to be assumed by the purchaser, and the balance of the purchase price was to be paid in cash — $500 on the signing of the agreement and $4,500 by January 20, 1932. Plaintiff made each of these payments. It took some time to get deeds executed by the several Naylor heirs, one of whom was a minor for whom a'guardian had to be appointed and authority granted for him to convey the minor’s interest. In the meantime and on December 29, 1931, W. F. Ley and his wife, Docia Ley, executed to G. S. McCurdy their note for $3,500, due November 1,1936, with interest coupons attached, and also executed a mortgage upon the land then being purchased to secure the payment of the note. This was a renewal of the mortgage of $3,500 referred to in the contract of sale. The deeds were finally executed and the deeds and the mortgage executed by W. F. Ley and wife were filed for record April 25, 1932. In the meantime the Leys had gone into possession of the property and the plaintiff had executed to W. F. Ley checks for various sums aggregating more than $900. With the moneys furnished by plaintiff Ley opened a bank account with the Peoples National Bank of Ottawa and used the money apparently for the purpose of buying livestock, feed and implements to get started in the farming business. For about a year plaintiff made his home with the Leys on the farm most of the time, usually spending the week-ends visiting with his sister at St. Paul. On February 18, 1933, he paid the taxes for 1932 on the land, amounting to $127.61, and on October 26, 1933, paid the premiums, $36, on the insurance policy for the buildings on the farm. He paid as they came due the interest coupons upon the $3,500 note executed by W. F. Ley and wife and secured by a mortgage on the farm, and paid on the principal $500 October 18, 1932, $2,000 October 26, 1933, and the balance of the principal, $1,000, on April 29, 1935. These payments were all made through the Peoples National Bank of Ottawa, either in person or by mail. Plaintiff testified these payments of taxes and on the mortgage were made to protect the interest he “figured” he had in the land. Under date of May 8,1935, W. D. Devilbiss, vice-president of the bank, wrote plaintiff as follows:
“According to arrangements made when you were here and paid the balance due on the W. F. Ley mortgage, we have had same released of record and are enclosing you herewith the mortgage together with the coupon bond canceled to which is attached four interest coupons, all of which have been canceled.
“I trust that these will reach you safely and will ask that you please acknowledge receipt.”
On May 11,1935, plaintiff wrote the bank as follows:
“Dear Sir: Papers rec. but you claim they were made according to arrangement? but whoms arrangement. I did not ask you to cancel the Nots, did I? they were n'ot mentioned in my presents.”
Under date of May 13, 1935, Mr. Devilbiss, for the bank, wrote plaintiff as follows:
“We have yours of the 11th regarding the release and cancellation of notes which we sent you on May 8th, and I am sorry that this has not been handled satisfactorily for it was my understanding that as soon as your check which you made in payment was cleared, that the mortgage was to be released and sent to you. This, of course, carries with [it] the cancellation of the notes because the mortgage would not be of any benefit after having been released.
“You will remember that it was suggested in the presence of Mr. McCurdy that you could take a new mortgage in lieu of your having paid this one.
“I trust that this explanation will clear the matter for you.”
In the meantime and in 1934 W. F. Ley and wife had executed a second mortgage on the land to G. S. McCurdy to secure a note for $500. Plaintiff did not know of this until after he had made the final payment on the $3,500- mortgage. Later he paid interest coupons on this $500 second mortgage to the amount of $90. It is not clear from the record just when plaintiff ceased to make his home with the Leys on the farm. It was sometime in 1933. He appears to have made his home, or at least his headquarters, for a time with his sister at St. Paul, but for some time before this action was brought he was living in Wabaunsee county, doing farm work. W. E. Ley died August 24, 1937, intestate. There was no administration upon his estate. He left as his sole heirs at law his widow, Docia Ley, and two sons, Harold and Horace Ley. Perhaps in December, 1937, plaintiff wrote Docia Ley asking for some rent from the land and received no reply. A little later he wrote her, enclosing a quitclaim deed to him for the land, which he asked her and her sons to sign. She replied by a postcard, mailed January 18,1938, as follows:
“Ottawa, Kans.
“Mr. John Katschor, Alma, Kans.
“Received your letter, will say I will be glad to have you come down some time to talk things over. Will talked a great deal to me before he left us. I did not1 have time when you were here last Aug. to talk shall be glad to do so whenever you can come. We have all worked hard this fall, had lots of debts to pay, have had to figure awfully close. Hope you are well.
“Sincerely, D. M. Ley.”
A few weeks thereafter plaintiff took his attorney with him and went to see Mrs. Ley. When she found plaintiff had an attorney with him she declined to talk with them and consulted her attorney, with the result that no agreement was reached, and this action was brought. Plaintiff testified that while he and W. E. Ley were present in Mansfield’s office when the contract was being prepared, Mr. Mansfield asked: “In whose name shall I make thei deed in?” and plaintiff replied; “Mr. Ley’s, he will hold it for me until I need it. He can give me a quitclaim deed.” On the point Mr. Casida testified:
“When we got ready to draw the deed we asked Mr. Ley and Mr. Katschor, they were both there, who the deed should be made to. Mr. Ley said that it would be made to him and Mr. Katschor said that was right. Then I asked them also if they had any papers they would want to make out or any agreement and they both said no, not at the present.”
Plaintiff further testified that Mr. McCurdy was at the bank when he made the last payment of $1,000 on the $3,500 note and mortgage, and “When I give them the check I wanted the rest of my papers. He said, ‘You can’t have them yet. The check may not be good.’ I said, ‘This looks funny to me.’ Then what could I do? I walked away.”
Considering defendants’ demurrer to the evidence, the court treated plaintiff’s case as though his petition contained two causes of action — one to impress a trust upon the land and the other to be subrogated to the rights of the mortgagee McCurdy. The court sustained the demurrer to the first of these propositions and overruled it as to the second.
The testimony of witnesses called by defendants, insofar as it relates to the purchase of the farm, the payments plaintiff made on the contract of purchase, and later on taxes and insurance, the $3,500 and the $500 second mortgage, his motives and purposes in doing so, and the oral agreement, if any, between plaintiff and W. F. Ley, may be summarized as follows: Allen Mansfield was present when the contract of purchase was written. Plaintiff and W. F. Ley were there. They said, “They would buy the farm and that Mr. Ley— the contract would be made to Mr. Ley — with Mr. Ley and the payment for it was made by Mr. Katschor.” Pressed as to what plaintiff said about the $3,500 note and mortgage mentioned in the contract, he answered: “Well, I just don’t recall . . . the exact conversation that was had about the $3,500.” W. W. White, engaged in the real estate business at Lawrence, showed three or more Douglas county farms to plaintiff and W. F. Ley in the fall of 1931, but sold none. He testified that while he was with them there was a joint conversation, the substance of which was that Mr. Katschor was paying for the farm and Mr. Ley was to have; the farm. The farm was to be the property of Mr. Ley after the deal was completed and Mr. Katschor was supposed to live with them whenever he felt like it, but he was not bound to stay there. Mrs. E. R. Warden, who at the time of the trial was living in Wichita, was a friend of the Leys, having lived with them in their home in Pittsburg from September, 1922, to October, 1923. While there she became acquainted with plaintiff, who visited the Leys several, times; that in her conversations with plaintiff she said he had been looking around at farms; that the farms in Oklahoma were not very good and that he wanted the Leys to have a farm; that he wanted to buy them a good farm; “if his wife had lived that she would have done a lot of things for the Ley boys and for Mr. Ley, and that he was buying the farm, or would buy the farm for Mr. Ley because his wife would have wanted him to had she lived;” that she met plaintiff again at the Ley home about 1925. “He was still looking for the farm, but he was anxious to get a good farm, because the Leys had a nice home there in Pittsburg. He felt anything he would buy would have to be as comfortable as what they would be going out of.” She saw him again! at the Ley home for just a little while the evening they had made the contract for the purchase of the farm. Plaintiff said he “believed they had found the place they were looking for.” After that they discussed the farm for some time. Plaintiff said, “always that he was buying the farm for Leys.” The witness saw plaintiff on the day of the funeral of W. F. Ley and while the witness was trying to comfort Mrs. Ley plaintiff said to her, “You don’t need to worry about her. She has her own home and she will be well taken care of.”
Docia Ley, widow of W. F. Ley and principal defendant, testified she and her husband were married in 1905 and lived at Pittsburg, Kan., until the spring of 1932, when they moved on the farm in question; that she became acquainted with plaintiff a year or two after her marriage, and over the years saw him two or three times a year, sometimes oftener; that her husband had an ambition to have a farm and engage in farming, and this was discussed at various times over the years; that'after the death of plaintiff’s wife, about 1920, plaintiff was in Oklahoma and later in Illinois, but when in Kansas made his home with his sister at St. Paul. The first real talk with him about buying the farm was about February, 1930. Plaintiff spoke of having $6,000 invested in a building and loan association in Texas and talked of letting Mr. Ley have that money to use in purchasing a farm, but a little later said he had agreed to leave the money in Texas for another year, and no real effort was made to buy a farm until in the fall of 1931. In thei meantime the matter was talked over in the Ley home and at times with plaintiff, as would be natural with any other business matter; that plaintiff spoke of “investing” his money in a farm for Mr. Ley and his family. At other times he spoke of buying a farm, for Mr. Ley and his family. He was interested and wanted to be of help to Mr. Ley and' his family, and particularly wanted their two sons to have an opportunity on the farm. Beginning in September, 1931, plaintiff and Mr. Ley made several trips to look at farms. Plaintiff'wanted to buy a good farm, but no definite amount to be invested or to be used in the purchase of the farm was mentioned or discussed. Plaintiff was a believer in spiritualism, and consulted a medium of that faith in an effort to learn if what he was doing, or was about to do, was in accord with the wishes of his deceased wife, and learned that it was. Mrs. Ley did not go with them on any of the trips when they were looking for farms and was not present when the contract for the purchase of the farm in question was executed, but on the day it was executed, after their return home, the plaintiff expressed satisfaction with the farm and with the purchase of it. Mrs. Ley knew that plaintiff let her husband have some money to get started in the farming business, but did not know of the several checks plaintiff had made to her husband, or the amount of them, although they aggregated about $900. Neither did she know of what arrangement or understanding the plaintiff and her husband had concerning the purchase of the farm, or the money plaintiff advanced, and testified therA was no arrangement or understanding between them. That after they moved on the farm in the spring of 1932 plaintiff made his home with them for about the first year, dividing his time between that place and the home of his sister; that Mrs. Ley and her husband executed the note for $3,500 and the mortgage on the farm to secure it; that plaintiff paid the interest coupons as they became due and also paid the principal; that on some occasions when he paid the interest she went with him to the bank and when the coupon was given to him he turned it over to her, and in some instances when the coupons were paid by mail the bank sent the coupons to her. She had four of them, which were introduced in evidence, but thought perhaps more of them were given or sent to her. After plaintiff had made the last payment on this mortgage he was at' their home and learned or had discovered that she and her husband had placbd a second mortgage on the farm for $500. He said he did not know about that; that if they had told him they needed money he would have tried to let them have it; and later when talking with the witness alone he specifically asked her not to mortgage the place again. She was uncertain what reply she made. Her husband died August 24, 1937. A few months later she received a letter from plaintiff asking for part of the rent. This she did not answer. She later received a second letter from him enclosing a quitclaim deed to him for the land and asked that she and her sons! execute the deed. It was in response to this letter that she wrote the card mailed January 18,1938.
Harold Ley, 33 years of age, son of W. F. and Do.cia Ley, and one of the defendants, had been acquainted with plaintiff for many years and had heard plaintiff talk of purchasing a farm for his father. He said “He was going to purchase a farm for my father, as that was what his wife wished.” He stated that in substance many times. He first heard this talk in 1929, “as near as I can recall.” In the fall of 1931 the witness went with his father and plaintiff to look for a farm, and made as many as three trips with them. He was with them and Mr. Casida when they looked at the farm which was purchased. After the farm was purchased plaintiff told witness “that he was satisfied that he had bought this farm as my father liked it.” The witness was not present in Mansfield’s office when the contract of purchase was made and did not know what the arrangement was between his father and the plaintiff. At Christmas time in 1935 the witness went with plaintiff to attend a spiritualistic meeting in Guthrie, Okla. “We sat in a circle and this trumpet would answer any question you would ask it, which was supposed to be a voice of someone that had gone over beyond.” Plaintiff asked, “If I remember correctly, he asked if he had done what she had wished. . . . After they had sat there this trumpet told him, which was supposed to be Aunt Mary, the deceased wife, he had done the proper thing.” The witness went with his parents when they moved to the farm and stayed there until July of that year, and then went to Kansas City. When he was there plaintiff would go out over the place and express satisfaction with the farm and that the witness’s father liked it.
Inez Drake, a sister of Docia Ley, testified by deposition. For many years she made trips with her husband, who traveled. She met the plaintiff at the home of her sister, Mrs. Ley, in Pittsburg in the fall of 1920, after his wife’s death. At that time plaintiff “said in substance that he wanted to invest the inheritance that his wife had received from her mother in the land for Will Ley; that was his wife’s desire.” About eight years, later she saw the plaintiff again at her sister’s home in Pittsburg and had a conservation with him in which “he said that he would like to see my brother-in-law's sons on a farm, and he asked Mr. Drake what he thought about him investing Mary Katschor’s inheritance money in land, and how he thought it would be to put the boys on a farm.” In the course of the conversation plaintiff said “that he wanted the deed made out to Will [W. F. Ley] because Mary wanted him to have the inheritance.” She met the plaintiff again in the spring of 1932 when she was visiting her sister, Mrs. Ley, at the farm in question. At that time plaintiff “said in substance that he had finally invested Mary, his wife’s money in this land for Will, the brother, Will Ley, the brother.”
Respecting the inheritance which his wife received from her mother, plaintiff testified that this amounted to about $1,800 at the time of the death of his wife; that the money was then invested, and as soon as he could get it, which was in 1922, he sent all of it to W. F. Ley; that at no time did he talk about investing that money in a farm. Docia Ley was examined on this point and said plaintiff had sent her husband money. She did not know whether it was $1,800 or some other amount; neither did she know whether it came from plaintiff’s wife’s inheritance or some' other source, nor when it was sent, and stated that she was unable to give the court any information about it.
On behalf of appellant it is argued there was sufficient evidence to have justified the trial court in granting the relief first suggested by plaintiff in the pray'er of his petition, namely, that the principal defendants hold the land in trust for plaintiff. This argument is predicated upon our statute (G. S. 1935, 67-406) which lays down the rule that “when a conveyance for a valuable consideration is made to one person and a consideration therefor paid by another, no use or trust shall result in favor of the latter”; and G. S. 1935, 67-408, which provides that this rule shall not extend to cases “where it shall be made to appear that by agreement and without any fraudulent intent the party to whom the conveyance was made, . . . was to hold the land ... in trust for the party paying the purchase money or some part thereof.” It is pointed out that the written contract for the purchase of this land called for a cash payment of $5,000, and the evidence discloses plaintiff paid at least that part of the purchase price. That he did so is conceded by defendants. Appellant points to the testimony of plaintiff that at the time he was not indebted to anyone, and that there was no fraudulent intent respecting the transaction on the part of anyone. This is not controverted. Appellant points also to the testimony of plaintiff that at the time the contract was being made, in answer to a question by Mr. Mansfield as to in whose name the deed was to be made, replied: “Mr. Ley’s, he will hold it for me until I need it. He can give me a quitclaim deed,” and the testimony of Mr. Casida that after the deed had been prepared he inquired of plaintiff and Mr. Ley if they desired any other papers or agreement made out, and that they both said, “No, not at the present.” Except as this oral testimony may tend to show it, there was no evidence before the court as to what the parol agreement between plaintiff and W. F. Ley was. The evidence tends to indicate that only two persons knew what was the oral agreement or understanding between plaintiff and W. F. Ley, and the voice of Mr. Ley had been stilled by death and that of the plaintiff by our statute, G. S. 1935, 60-2804. It is true the defendant Docia Ley testified there was no arrangement, but obviously this was a conclusion not based on any fact, for she testified with respect to various aspects of the matter that she did not know what their understanding or agreement was. The other defendant who was a witness, Harold Ley, was not present when the written contract was made for the purchase of the land and did not know what parol agreement there was between his father and plaintiff. The testimony of Mrs. Warden and Inez Drake pertained to some general statements made at various times by plaintiff, none of which bore directly upon the contract for the purchase of this land, and although they were controverted by plaintiff, even if given full credence they have no evidential value bearing upon the oral agreement or understanding between plaintiff and W. F. Ley. Even though it were conceded that evidence on plaintiff’s behalf tended to support the allegations of plaintiff’s petition of “an oral understanding and agreement between this plaintiff and the said W. F. Ley that he . . . was to hold the legal title to said described real estate in trust for this plaintiff, and that he would convey said premises to plaintiff on demand,” it is clear that the evidence is short of clearly establishing such an agreement. Appellant concedes the court was not bound to believe the testimony of plaintiff and of Casida bearing on that matter, and without it there is little, of course, to support that view.
In a written opinion filed after all evidence had been received the court makes it clear the evidence offered on behalf of defendants was considered by the court as a “defense to the whole claim of plaintiff.” In view of this situation counsel for appellant do not seriously contend the judgment of the trial court should be reversed with directions to enter a decree that the defendants, heirs of W. F. Ley, hold the land in trust for plaintiff, and we are of the opinion we would not be justified in reversing, on this ground.
It is argued on behalf of appellees that plaintiff, having contended in the prayer of his petition that he is entitled to a decree that the defendant heirs of W. F. Ley hold the property in trust for him, he elected his remedy, and cannot contend that he should be sub-rogated to the rights of G. S. McCurdy under the $3,500 mortgage. We think this point is not well taken. Plaintiff in his petition pleaded all the facts as he understood them to be. The purpose of the prayer was to set forth the kind of relief plaintiff thought he would be entitled to. The fact that he made two suggestions in the prayer, we think does not amount to an election of remedy, even though they are necessarily predicated upon different theories. The prayer contained the request for such other and further relief as the court should find equitable. This was a suit in equity, and perhaps all that is essential in the prayer was for such relief as the court should find to be equitable. The fact plaintiff particularizes the kind or kinds of relief he thought he might be entitled to under the facts pleaded does not amount to such an election of remedy as would preclude him from having one or the other, as the evidence would warrant.
On behalf of appellant it is argued that in any event plaintiff should have been subrogated to the rights of G. S. McCurdy under the $3,500 mortgage. There is much merit to this contention. In announcing its decision upon this branch of the case the court, among other things, said:
“It is true that subrogation is something that receives a good deal of attention but it requires an agreement and understanding of some kind. It requires some positive action on the part of the person who claims subrogation and a lapse of time and failure to do anything sometimes may be taken as evidence that he was satisfied with the way things were.”
On behalf of appellant it is argued the court erred in its view of the law that the application of the doctrine of subrogation “requires an agreement and understanding of some kind.” The point is well taken.
In 60 C. J. 807, under the title “Subrogation” and the subtitle “Third Persons Advancing Means to Discharge, or Discharging, Debt or Encumbrance Securing Such Debt,” the general rule is stated as follows:
“It always requires something more than the mere payment of the debt by a third person in order to entitle such person to be subsituted in place of the original creditor; it requires an assignment, legal or equitable, from the original creditor, or an agreement or understanding on the part of the party liable to pay that the person furnishing the money to pay the same shall in effect become the creditor, or the person furnishing the money must have done so be cause he is liable as surety or other secondary capacity, or for the purpose of protecting some real or supposed right or interest of his own.”
This language is taken verbatim from the opinion of this court in Crippen v. Chappel, 35 Kan. 495, at page 499, 11 Pac. 453, where it continues as follows:
“But the right of subrogation or of equitable assignment is not founded upon contract aloije, nor upon the absence of contract, but is founded upon the facts and circumstances of the particular case and upon principles of natural justice; and generally, where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in the place of the creditor, such person will be so substituted.”
On this point it is said, in 60 C. J. 700:
“The right of legal subrogation is not a matter of contract; it does not arise from any contractual relation between the parties, but takes place as a matter of equity, with or without- an agreement to that effect. It is not dependent on privity or founded on, or dependent on, contract or on the absence of contract, but is independent of any contractual relations between the parties. Nor does the right depend upon the act of the creditor, but may be independent of him and also of the debtor.”
In support of the text many authorities are cited, including from our own state: Crippen v. Chappel, supra; Lynds v. Van Valkenburgh, 77 Kan. 24, 93 Pac. 615; Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Breyfogle v. Jackson, 113 Kan. 373, 214 Pac. 779; Blitz v. Metzger, 119 Kan. 760, 241 Pac. 259; 120 Kan. 555, 245 Pac. 161; and Federal Land Bank v. Hanks, 123 Kan. 329, 254 Pac. 1040.
See, also: Deposit Co. v. City of Stafford, 93 Kan. 539, 144 Pac. 852; Waddle v. Bird, 126 Kan. 255, 267 Pac. 974; Spradling v. Hawk, 133 Kan. 545, 1 P. 2d 268.
In the recent case of Home Owners’ Loan Corporation v. Henson, (Ind.), 29 N. E. 2d 873, it was said:
“The right of ‘subrogation’ is not founded on contract, express or implied, but on principles of equity and justice, and includes every instance in which one party not a mere volunteer, pays a debt for another, primarily liable, and which, in good conscience, should have been paid by the other.”
To the same effect, see the late cases of People v. Phillip State Bank & Trust Co. (Ill. App.), 30 N. E. 2d 771; Netherton v. Farmers Exchange Bank, 228 Mo. App. 296, 63 S. W. 2d 156, and McCracken County v. Lakeview Country Club (Ky. App.), 70 S. W. 2d 938. Appellant stresses the portion of the texts above quoted authorizing subrogation when a person pays “for the purpose of protecting some real or supposed right or interest of his own.”
In 25 R. C. L. 1345 it is said:
“Where subrogation is claimed on the ground that the payment was necessary to protect the interests of the subrogee, the extent or quantity of the interest which is in jeopardy is not material. If he has any palpable interest which will be protected by the extinguishment of the debt, he may pay the debt and be entitled to hold and enforce it just as the creditor could.”
In the recent case of Banks v. Cartwright (Tex. Civ. App.), 26 S. W. 2d 708, it was said:
“Oné paying debt.to protect his property or interest is not volunteer, as regards subrogation.”
And in Schuetz v. Schuetz (Wis.), 296 N. W. 70, it was held:
“Where a person, as a result of a mistake of law, supposes himself to have an interest in land, he- is treated- as having such ah interest for purposes of ‘sub-rogation’ and as being within the rulé entitling a person to subrogation in cases where he of necessity acts to protect his own interest.” ' ■ . ■■
Counsel for appellees cite no authorities on this branch of the case and in their brief say: ' - -
"We have no criticism of the abstract principles of subrogation which’are outlined in the brief of the appellant. The difficulty with them is that they are not applicable to the facts of this case. This is a ‘fact’ case. The court heard all of the evidence, and decided against the appellant, and that he was not entitled to this right of subrogation.”
This is followed with an argument that the evidence sustains the judgment of the court. On the point respecting plaintiff’s claim to subrogation the legal question for this court to determine is whether there is substantial competent evidence to support the judgment of the trial court. Appellees rely upon the parol testimony of witnesses called on their behalf. Hereinbefore we have summarized the testimony of each of these witnesses. Collectively it may be said to show that W. F. Ley was the favorite brother of plaintiff’s wife. Had she lived she would have helped him in some indefinite way. She wanted him to have, after her death, what she had inherited from her mother. There is no serious contention that the farm in question was purchased with the proceeds of that inheritance ; neither is there any competent evidence to sustain that view. Plaintiff thought well of W. F. Ley. Perhaps it is not going too far to say they thought well of each other and that each had confidence in the other. Plaintiff thought well also of the family of W. F. Ley, and having no children of his own, was particularly interested in the two Ley boys. After his wife’s death in 1920 plaintiff sold his farm and other property and lived for several years in Oklahoma and later for several years in Illinois, returning at intervals to Kansas, where he made his home with his sister, who lived in St. Paul, Kan. Over these years he visited the W. F. Ley family two' or three times a year, sometimes oftener. All this time W. F. Ley was employed as motorman on an electric interurban railway. He'and his family lived in a comfortable home, but there is no evidence that he owned it; indeed, the contrary might well be concluded, since he seemed to have had no financial assets of his own at the time the farm in question was purchased. He had a yearning or ambition to live on a farm and engage in farming. Plaintiff, having lived on a farm most of his life, talked about farms and somewhat indefinitely about buying a farm, or investing in a farm, to be owned or occupied by W. F. Ley and his family. However, there was no serious talk about purchase of a farm until perhaps early in 1930. Mrs. Ley fixed the date in February of that year; her son Harold, although very indefinite about it, fixed the time late in 1929. At that time plaintiff said he had about $6,000.in a building and loan association and talked of letting Mr. Ley have that money to use in buying a farm. The terms on which he was to let Mr. Ley have the money were not testified to by any witness, and apparently were unknown to them. A little later plaintiff said he had agreed to leave the money where it was for another year. The talk was not definitely renewed until in the fall of 1931. Plaintiff then talked of “investing” in a farm, or of “buying” a farm for Mr. Ley. No amount which he planned to so invest or use was stated by plaintiff, and the kind of a farm to be purchased was a “good” farm. None of the witnesses called on defendants’ behalf knew what agreement or understanding there was between plaintiff and W. F. Ley with respect to the terms of the purchase, or the manner in which it should be handled, except that it was planned that Ley and his family would move upon the farm and farm it.
As it pertains to the purchase of the farm in question and the payments made thereon, reliance must be had almost exclusively on the written evidence. W. F. Ley, as purchaser, alone executed the contract of purchase, and the deed named him as the sole grantee. Since plaintiff could not produce evidence to sustain his allegation that he and Ley had an oral agreement to the effect Ley was to hold the title for him, no finding of that kind can be made,- and it must be held that the title to the land passed to W. F. Ley, even though plaintiff paid the cash consideration of $5,000. The note for $3,500 and the mortgage given to secure it were executed by W. F. Ley and Docia Ley, his wife. It was their obligation. Nothing in the contract, deed, note or mortgage indicates any liability on the part of the plaintiff to pay this note. The witness Mansfield was asked in substance if plaintiff was to pay this mortgage as well as the cash of $5,000 and testified he remembered no statement of the parties about who was to pay the $3,500 note. So, on the question of who was liable on the note and mortgage we are bound by the record evidence only. Plaintiff paid this $3,500 note and interest thereon. This is conceded. Did he intend to make a gift of that to the Leys? Again we think the record evidence and such oral testimony as explains it is the only competent evidence on the subject. The last payment on this note was made at the bank. Plaintiff testified that he asked for his papers and was told his check might not be good and that he could not have them then. When the check cleared the note was then marked “paid,” the mortgage was released of record, and the papers sent to plaintiff. He promptly objected; said he had not asked that the note be canceled. The banker’s reply indicated that when plaintiff left his check to pay the note he wanted an assignment, and Mr. McCurdy had told him he could get another mortgage. We pass the thought that McCurdy might have beén looking out for his own interests by giving such advice, since he had a second mortgage on the land. The correspondence clearly shows plaintiff did not intend for the note to be marked “canceled” or the mortgage to be released, and that is the principal idea important here. We take note of the fact that Mc-Curdy was made a party defendant to this action, that he did not answer or otherwise plead, neither did he appear as a witness. From this it may reasonably be concluded he had no defense to plaintiff’s claim of subrogation and that he could offer no testimony tending to controvert the obvious meaning of this correspondence.
One who has no interest in mortgaged property, and who voluntarily pays the debt of another, secured by a mortgage thereon, is not entitled to subrogation. We think the evidence in this case will not support a holding that the payment of this mortgage by plaintiff was voluntary. On the contrary, it discloses that he paid intending to get a transfer or assignment of the mortgage. In his language, he wanted the papers turned over to him and not to have the mortgage canceled. More than that, from any view taken of the evidence, plaintiff had some interest in the mortgaged property. Even testimony on behalf of defendants indicates that he was to have the right to make his home on the property purchased, and the testimony of Mrs. Ley is that he did make his home there for about the first year. He paid the taxes for 1932 on the property in February, 1933, and in October, 1933, paid the premium covering insurance on the buildings. He testified he made these payments to protect the interest which he "figured” he had in the property. When he learned of the second mortgage of $500 on the property he asked Mrs. Ley not to mortgage it again without his knowledge. He testified that she promised him she would not. She did not deny that statement, but was unable to recall what reply she did make to plaintiff. When sometime in the fall of 1937 he wrote her for some of the rents from the property she made no claim that he had no interest. In fact, she did not answer the letter. When he did not hear from her and wrote enclosing a quitclaim deed to him for the land, to be executed by Mrs. Ley and her sons, she replied asking him to come down and talk it over, and made no claim that he had no interest in the property. Hence, we think it must be held as a matter of law that plaintiff did have an interest in the property. More than that, he might reasonably have believed that he had a greater interest than he has been able to prove in this case.
Under the authorities above set out, and under the substantial, competent evidence we find in the record, we think the trial court erred in denying plaintiff the right of subrogation with respect to the payments he made on the $3,500 note and mortgage. We think, also, the suggestion that plaintiff is barred by his laches is not well taken. (See note in 103 A. L. R. 1182.)
The judgment of the court below is reversed with directions to the court below to enter judgment in harmony with the views herein expressed.
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The opinion of the court was delivered by
Allen, J.:
The trial court sustained a motion to strike certain allegations, from the answer of defendants. This appeal is from the order and ruling so made.
Lizzie Bockes, a resident of Brown county, died April 19, 1931. She was an incompetent and at the time of her death William Whistler was her guardian. Whistler filed a final settlement as guardian, which was approved by the probate court of Brown county May 2, 1931. Whistler was appointed administrator of the estate of Lizzie Bockes and gave bond for the faithful performance of his duties. In 1935 Whistler resigned as administrator and made final settlement, which was approved by the court October 1,1935.
The present action was brought by the administrator de bonis non of the estate of Lizzie Bockes against Whistler and the sureties on his bond as administrator to recover large sums due the estate by reason of the negligence and misconduct of Whistler as administrator. Thereafter Whistler died and his executor was made a party.
The defendants filed a demurrer to the second amended petition on the ground such second amended petition failed to state a cause of action. The demurrer was overruled and defendants were given thirty days to answer. In due time defendants filed an answer. The answer was attacked by a motion to strike, and this motion was sustained. This appeal is from the order sustaining that motion.
Where an order sustaining a motion to strike has the effect of a demurrer, the order is appealable. (Grain Co. v. Coöperative Association, 109 Kan. 293, 198 Pac. 964; Wigton v. Donnelly, 122 Kan. 796, 253 Pac. 400; Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039.)
The petition charged that Whistler as administrator of the estate of Lizzie Bockes failed and neglected to perform his duties as such administrator; that he came into the possession of various notes due the estate, and that by his neglect and delay in the collection of such notes, the makers became insolvent and the notes became worthless; that he failed to turn over to his successor large sums in his hands belonging to the estate; that as guardian of Lizzie Bockes, he paid claims against the estate of his ward that had been barred by the statute of limitations; that as guardian he had paid fraudulent claims in large amounts; that as administrator it was his duty to bring action upon his bond as guardian to recover funds fraudulently diverted and misappropriated, but that he failed and neglected to take any action for such recovery. It was alleged that as administrator he aided and assisted certain persons in presenting-fraudulent claims against the estate, and paid such claims out of the estate. It was alleged that the final settlement on October 1, 1935, was made without notice, and was fraudulent and void.
Paragraph 4 of defendants’ answer alleged that the final settlement of Whistler entered on October 1,1935, was duly and regularly entered according to law; that the order approving the settlement was not appealed from; that the settlement was a final judgment and all questions touching the liability of the administrator to the estate are res judicata.
It is evident that the order of the court striking paragraph 4 of the answer had the effect of taking out of the answer of defendants the defense of res judicata. Likewise the order to strike deprived defendants of the plea of the statute of limitations as therein pleaded, and deprived defendants of other defenses not necessary to enlarge upon.
It is apparent the matters stricken went to the merits of the action, were pertinent defenses which the defendants wer'e entitled to plead, and such motion was equivalent to a demurrer to the defenses pleaded. We think the order to strike was an appealable order. See cases cited, supra.
Appellee contends that matters raised, argued and briefed, which were decided by the court upon overruling the demurrer to plaintiff’s petition, and unappealed cannot again be raised by being pleaded in the answer of defendants. It is asserted that the matters set up in the answer and which were stricken were briefed and submitted to the court upon the demurrer to the petition, and as the decision on the demurrer was not appealed, that the ruling on the demurrer was a final adjudication, and therefore the motion to strike was properly sustained. In support of these contentions appellee cites 49 C. J. 693, sec. 984, and Iowa decisions.
We do not think the contentions of appellee can be sustained.
Our statute G. S. 1935, 60-758, provides that upon a demurrer being overruled, the party who demurred may answer if the court or judge is satisfied that he has a meritorious defense, and did not demur for delay. In overruling the demurrer the court made an order giving defendant thirty days in which to file an answer. Manifestly the court was satisfied the defendant had a meritorious defense.
The argument of appellee is based on the assumption that as there was no appeal from the ruling on the demurrer to the petition, that such ruling was a final adjudication. However, if final judgment should be entered in the case against defendants, and an appeal from such judgment should be taken within two months, then, under G. S. 1939 Supp., 60-3314a, the ruling on the demurrer would be subject to review.
As stated when the demurrer was overruled, the defendants were granted time to answer. As the answer filed appears to set up a meritorious defense, we think the court erred in sustaining the motion to strike.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against three defendants to recover damages for personal injury. The demurrers of the defendants to plaintiff’s evidence were sustained and those rulings constitute the sole basis of appeal.
The defendants were the lessee of a building, who operated a cigar and lunch business, the owner of the building and the owner’s manager of the building.
The building was located in the business section of the city of Wichita, and at the southeast corner of an intersection. The building faced the north. It had an entrance at the west front corner and from the north near the northeast corner. A counter was located near the front and across the building east and west. Between the east end of the counter and the east wall of the building was an opening which led to a hallway along the east side of the building. The hallway led to a toilet which was located toward the west end of the hall. The toilet was west of the hallway. Immediately to the south of the portion of the building occupied by the defendant lessee another tenant operated a shoeshine parlor. There was an entrance to the shoeshine parlor from the west. There was access from the shoeshine parlor to the toilet and hallway by means of a door into the toilet. There was a trap door in the floor of the hallway approximately half way between the lunch counter of the defendant lessee and the toilet room. The hallway was 29 or 31 inches in width. Plaintiff had been a customer of the defendant lessee for a number of years. On Sunday morning, June 4,1939, between 8:30 and 9 o’clock, plaintiff entered the place of business operated by the defendant lessee as a cigar and lunch business. He spent probably fifteen or twenty minutes in the front part of the building and then started for the toilet. He stepped into the open trap door in the floor of the hallway, broke his right arm and sustained some other injuries.
Other pertinent facts will be considered in connection with the contentions of the respective parties.
We shall first consider the sufficiency of the evidence to take the case to the jury on the question of lessee’s liability. Lessee demurred to the evidence upon the ground it showed that if plaintiff sustained an injury it was due to his own contributory negligence and not the negligence of Weathers, the lessee. Appellant contends that demurrer raised only the question of his contributory negligence. The contention is not good. The demurrer was intended to raise, and did raise, also, the question of the sufficiency of the evidence to show negligence on the part of the lessee. It was so considered and ruled upon.
The first issue to be determined is the relationship between plaintiff and the lessee. Was plaintiff -a trespasser, a licensee or an invitee? The answer must be found in the evidence. A part of the answer is contained in the nature of the business the lessee conducted. It is conceded lessee operated a business which was open to the public. Lessee’s business was that of selling cigars and lunches to the public. It was conceded in oral argument, although the abstract does not reflect it, that the lessee also operated a bar for the sale of beer, but that beer was not being sold on Sunday, the day of the accident. Plaintiff, had been a customer of the lessee for a number of years. He resided in the city of Wichita. He was a switchman for one of the railroads. He stopped at the lessee’s place of business whenever he was in town. He had used the hallway and toilet on numerous occasions, whenever he was in town, and had never been advised the toilet was not intended for public use. When he entered lessee’s place of business the lessee and three of his employees were present. He thought he had stated he was going back to use the toilet, but he was not certain he had so stated. None of the persons present heard the remark. He saw no signs which warned him not to use the hallway or toilet. The hallway was the direct route to the toilet. One of lessee’s employees testified he had never been told by the lessee or anyone else that the toilet was a private toilet. On that point the examination of one of lessee’s employees discloses the following:
“Q. Mr. Hodges, do you know or were you ever told by Mr. Weathers or by Mr. Black or anybody who purported to be the manager of that building that that toilet was a private toilet? A. No, sir.
“Q. Do you know whether or not it was used by people other than the employees and the lessees and lessors of that building? A. Yes, sir.
“Q. Well, was it used? A. Yes, it was used by everybody, used by the public.”
Appellant insists the evidence discloses he was an invitee. Ap-pellee counters with the contention appellant was not an invitee for the purpose of using the toilet. Appellee also urges the evidence does not disclose appellant purchased anything on this particular day and hence was not a customer on this occasion.
The evidence disclosed appellant had been a regular customer of the lessee for a number of years and that he had used the hallway and toilet about every day he had been in town. He had never seen any signs not to use the toilet and had never been forbidden to use it. That the public had a general invitation to be or to become lessee’s customers cannot be doubted. It appears the trial court sustained the demurrer on the ground appellant had received no specific invitation or express permission to use the toilet on this particular occasion. Was a specific invitation or permission necessary in this case? That lessee was operating a lunch counter is conceded. No valid reason is advanced by appellee for his contention that lessee was not conducting a restaurant business within the ordinary acceptation of that term. We think it would constitute undue and unwarranted nicety of discrimination to say that a person who operates a public lunch counter is not engaged in the restaurant business. This appellant, a restaurant operator in the city of Wichita, was required by statute to provide a water closet for the accommodation of his guests. G. S. 1935, 36-111 and 36-113, required that he furnish a public washroom, convenient and of easy access to his guests. (Bass v. Hunt, 151 Kan. 740, 100 P. 2d 696.) The word “toilet” might refer to either a water closet or washroom, (p. 743.) Appellant was an invitee not only while in the front part of the place of business where the lunch counter was located but while he was on his way to the toilet. He was an invitee at all times. (Bass v. Hunt, supra, p. 743.) Appellant had been a regular customer of the lessee for a number of years. We think it is clear appellant, in view of the evidence in the instant case, was an invitee to use the toilet. (Bass v. Hunt, supra; Duens- ing v. Leaman, 152 Kan. 42, 45, 102 P. 2d 992; Restatement, Torts, § 332; 45 C. J. 835, § 242; 20 R. C. L. 65, § 57.) The mere fact appellant had received no special invitation or specific permission on this particular occasion to use the toilet provided for guests or invitees did not convert him into a mere licensee. (Duensing v. Lea-man, supra, p. 45.) The evidence is clear appellant had used the hallway and toilet for a number of years and that it was used by everybody.
Can we say, as a matter of law, in view of the record in this particular case, appellant had no implied invitation to use the toilet simply because he had not made an actual purchase before he was injured? Assuming for the moment that it might be necessary under some circumstances for a regular customer of long standing to be an actual purchaser on the particular occasion of his injury to constitute him an implied invitee to use the toilet, does the evidence in the instant case compel such a ruling on the demurrer? We think it does not. We are not now concerned with what a jury may ultimately conclude from all the evidence. We are now concerned only with the question whether we can say as a matter of law, in view of the evidence thus far presented, that appellant was not an invitee to use the toilet facilities. On a demurrer the evidence must be construed in the light most favorable to the party adducing it and courts may indulge only in inferences favorable to the party adducing it. (Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669.)
The evidence of lessee’s own employee was that the toilet was not regarded as a private toilet. The evidence is that it was not used only by the lessor, the lessee, or by lessee’s employees. Did the evidence disclose that in addition to the lessor, the lessee and his employees, it was to be used only by customers of the lessee? It did not. The positive and unqualified testimony was: “It was used by everybody, used by the public.” Neither the trial court nor this court can alter that testimony. Neither may courts reduce or minimize its significance. On demurrer we are compelled to accept the evidence at its face value, namely, that the lessee provided the toilet facilities for anybody who saw fit to use them. In a densely populated business district such a privilege may have constituted a distinct inducement to bring, not only old customers like appellant, but prospective customers into lessee’s place of business. It is not our province to say the lessee could not provide such facilities or hold out such inducement. The jury may ultimately determine that toilet facilities were not provided by the lessee for the use of everybody. Such a negative finding, however, would be directly contrary to the evidence before us now. The evidence before us is the only evidence with which we are now concerned.
For this court to say everybody, including appellant, was invited to use the toilet facilities does not even require that we indulge in any inference in appellant’s favor, it simply requires that, on demurrer, we do not ignore the plain, direct and unqualified testimony of lessee’s own employee. But we need not rest our conclusion that appellant was an invitee upon the fact that, according to the unqualified evidence, not only customers but everybody was permitted to use the toilet.
The writer cannot subscribe to the theory that a regular customer of long standing is not an invitee to use toilet facilities required by law to be provided by the operator of a restaurant, simply because the customer had not actually made a purchase on the particular occasion of his injury, prior to his injury. It would seem doubtful whether such a doctrine could be applied justly to regular customers of a business which the law does not specifically require to be supplied with toilet facilities, but which does so for the convenience or accommodation of its guests. Women do a great deal of shopping. They sometimes shop all day in their favorite stores and fail to make a single purchase. Shall courts say, as a matter of law, they were not invitees of the business simply because on a particular occasion they had not yet made a purchase? No business concern would contend they were not invitees unless perchance an injury had occurred. Men frequently, during spare moments, step into a place of business, which they patronize regularly, where drinks, cigars and lunches are sold. They may not have intended definitely to presently make a purchase. They may, nevertheless, become interested, for example, in a new brand of cigars on display which they may purchase then or on some future occasion. Would the owner or operator of the business contend they were not invitees? We do not think so. Then why should courts arbitrarily say so, as a matter of law? It is common knowledge that business concerns invest huge sums of money in newspaper, radio and other mediums of advertising in order to induce regular and prospective customers to frequent their place of business and to examine their stocks of merchandise. They do not contemplate a sale to every invitee. They do hope to interest regular customers and cultivate prospective customers. It is common knowledge that an open door of a business place, without special invitation by advertisement or otherwise, constitutes an invitation to the public generally to enter. Shall courts say, as a matter of law, that such guests are not invitees until they actually make a purchase? We think the mere statement of the question compels a negative answer. Manifestly this does not imply that a trespasser or a mere licensee who enters the premises on a personal errand for the advancement of his own interest or benefit is entitled to the protection due an invitee. In the case of Kinsman v. Barton & Company, 141 Wash. 311, that court had occasion to determine what constituted an invitee, and said:
“An invitee is one who is either expressly or impliedly invited onto the premises of another in connection with the business earned on by that other. . . . If one goes into a store with the view of then, or at some other time, doing some business with the store, he is an invitee.” (pp. 313, 314.)
See, also, 45 C. J. 815, §223; MacDonough v. Woolworth Co., 91 N. J. L. 677; Jones v. Bland, 182 N. C. 70. In the MacDonough case, supra, it was held:
“The implied invitation of the storekeeper is broad enough to include one who enters a general store with a vague purpose of buying if she sees anything that strikes her fancy.” (Syl. If 1.)
Of course, if it appears a person had no intention of presently or in the future becoming a customer he could not be held to be an invitee, as there would be no basis for any thought of mutual benefit. (45 C. J. 812, § 221, and cases cited.)
It is true, in the instant case, there was no direct evidence of appellant’s intention to make a purchase on this particular occasion. We cannot, however, well ignore the pertinent fact that this appellant had been a customer of lessee of long standing. He had patronized lessee’s business for a number of years and had done so whenever he was in town. In view of this record, we think it unreasonable to say, as a matter of law, appellant lost his status as an invitee, simply because he had not actually made a purchase prior to his injury on this single occasion, or because the record did not affirmatively disclose he actually intended to make a specific purchase presently or in the future. There is nothing in the record which remotely indicates appellant had abandoned his practice to continue patronizing the lessee, and his presence there on this occasion is some evidence he had not abandoned such previous custom. Did the' lessee violate any duty to appellant, an invitee? The specific negligence alleged was:
“1. That they caused an opening to be made in the middle of the dimly lighted hallway leading to the toilet, knowing that the said hallway was used by customers, employees and the general public.
“2. That they negligently failed to warn this plaintiff of the hole in the said floor and of the dangerous condition caused by the hole being left open in the floor.
“3. That they negligently failed to warn this plaintiff of the insufficiently lighted and darkened condition caused by the defendants in the said hall. At the time the plaintiff entered into the said hall, the defendants and their agents knew well that the hole was not properly lighted and that there was no lid on the hole that this plaintiff stepped into, and that they, the defendants, and their agents, negligently failed to warn this plaintiff of the condition of the said floor.”
It was also alleged the foregoing acts of negligence were directly responsible for the injury sustained.
The trap door in the hallway was opened on the day before the accident. It was opened in order to obtain ventilation underneath the floor and in order to get relief from dampness and the muddy ground, preparatory to reenforcing the floor. It was left open on Sunday, the day of the accident, at the suggestion of the lessee. The hallway was very narrow, only 29 or 31 inches in width. The trap door covered enough of the floor so as to make it impossible or highly inconvenient for persons to pass between the east side of the hole and the east wall without walking sideways. That distance was between six and bight inches, or perhaps one foot. On the morning of the accident the hallway was dark or dimly lighted. There was an electric light suspended from the ceiling, but it was not lighted at the time of the injury. It appears, if appellant stated he was going to the toilet, no one heard the statement. Appellant did not know the trap door was open. He saw no signs to warn him it was open and no one in person advised him concerning it. The lessee previously had been expressly warned by one of his own employees that he had almost fallen into the hole and that it should be closed or someone would be injured and sue him. The employee thought the lessee advised him to leave the hole open. At any rate it was left open. It was the custom to clean up on Sunday mornings and to throw trash into the hallway. After appellant started for the toilet he passed the porter, who had a broom in his hand. Owing to the lack of light, appellant could see only the image of a pasteboard box on the floor of the hallway. The hole could not be seen by reason of the box. It has been held upon good authority that a storekeeper who places racks of merchandise about a railing around a stairway to a basement so as to obstruct the view of customers is negligent. (Rogers v. Penny Co., 127 Neb. 885, 257 N. W. 252; Haley v. Deer, 135 Neb. 459, 464, 282 N. W. 389.) See, also, Gibeson v. Skidmore, 99 N. J. L. 131, 122 Atl. 747. There was not sufficient room between the box and the east wall to pass around the box. Appellant stepped over the box “very easily” and in doing so stepped into the hole, broke his right arm and possibly sustained some other injuries. The pasteboard box was variously described as 20 inches in height, 16 to 18 inches in height, and approximately 14 to 16 inches wide. In the case of Bass v. Hunt, 151 Kan. 740, 100 P. 2d 696, the trial court sustained a demurrer to plaintiff's evidence in a case very similar in principle. This court reversed the ruling, and held:
“It is the duty of a restaurant keeper to keep in a reasonably safe condition the portions of his establishment where his guests may be expected to come and go, including a necessary water closet and the passage thereto, and it cannot be said as a matter of law there was no actionable negligence in his failure to sufficiently light the passageway or to warn a guest of an unguarded stairway covered by a trap door which was not closed.” (Syl. ¶ 1.) (Emphasis supplied.)
We are unable to distinguish the Bass case from the instant case, in principle. In the Bass case plaintiff was not familiar with the passageway to the toilet and was advised by the lessee concerning the route to take in order to find it. In the instant case no directions were necessary. Appellant knew the route. The passageway in the Bass case, as in the instant case, was dark. The lessee in the Bass case did not know of the opening in the floor. Lessee in the instant case did know of the danger. He had been expressly warned concerning it. He did nothing about it. While the lessee in the Bass case did not know of the danger we, nevertheless, held it was his duty to keep the passageway to the water closet, where his guests might be expected to go, in reasonably safe condition. In the instant case the lessee knew the toilet was used by everybody.1 We further held, in the Bass case, we could not say, as a matter of law, there was no actionable negligence in lessee’s failure to sufficiently light the passageway or to warn a guest of the dangerous condition. The statutory duty of the operator of a restaurant toward an invitee, and the duty of other business concerns toward invitees, was thoroughly treated in the Bass case. We do not deem it necessary to again review the various authorities. An instructive and carefully reasoned case pertaining to the duties of due care to an invited guest, including users of toilets, may be added to the cases reviewed in the Bass opinion. It is the case of Haley v. Deer, 135 Neb. 459, 282 N. W. 389. While the Haley case itself is not cited as being directly in point with the instant case, some of the decisions reviewed in the opinion are in point. See, also, exhaustive annotation in 100 A. L. R. 710.
Was appellant guilty of contributory negligence which bars his recovery as a matter of law? Lessee says he was. Lessee contends the dark hall in itself constituted a warning. In the Bass case plaintiff followed the course prescribed and we said he was not guilty of contributory negligence, as a matter of law, because he did not take the additional precautions which it might be argued he could have taken. (See, also, Donaldson v. Kemper, 149 Kan. 330, 333, 87 P. 2d 535.) Touching the subject of darkness, it must be remembered appellant in the instant case did not embark upon an uncharted course. He had used this same hallway on numerous occasions. It was the only direct route to the toilet from the front of lessee’s place of business. There is no evidence it had ever before been in other than good condition. Appellant had a right to assume the restaurant operator had performed his statutory duty in maintaining a reasonably safe hallway to the toilet. Appellant was not obliged to anticipate lessee had unlawfully left an open hole in an unlighted and narrow passageway. Appellant had the right to assume if the hallway was not in a reasonably safe condition warning signs would be erected to apprise him of the lurking danger or that he would have been otherwise notified concerning it.
The lessee also contends the pasteboard box constituted a warning and appellant was guilty of contributory negligence in stepping over it. There was not room, or at least not sufficient room, to conveniently pass between the box and the east wall. Certainly we cannot say, as a matter of law, appellant should have interpreted the existence of a pasteboard box of the size mentioned, in view of other circumstances, as constituting a barricade to an open hole in the floor immediately on the other side of the box. Nor is there any evidence in the record the box was intended to constitute a barricade. Appellant saw the porter with a broom. Trash wras being swept into the hallway. That was the custom on Sundays. Can we say, as a matter of law, it was unreasonable for appellant to believe the pasteboard box was being used as a receptacle for trash which was being swept, or otherwise placed, into the hallway? Manifestly we cannot. Well, that is exactly what the evidence discloses appellant did think was the purpose of the box. In Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669, the long established rule was again asserted to be:
“In determining whether a plaintiff is guilty of contributory negligence, when tested by demurrer or on motion for a directed verdict, the question must be submitted to the jury if the facts are such that reasonable minds might reach different conclusions thereon.” (Syl. ¶ 2.)
The rule touching proximate cause was well stated in Durst v. Wareham, 132 Kan. 785, 297 Pac. 675, in which it was held:
“The question of whether a negligent act is the proximate cause of an injury and whether an ordinary, reasonable, prudent man would have foreseen that injury might occur as a result of a negligent act is a question of fact for the jury.” (Syl. 114.)
See, also, Jones v. McCullough, supra, and Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923.
Does the record disclose actionable negligence on the part of the defendants, the owner of the building or the manager of the building? It is conceded if either of them is liable the other is liable. For convenience we shall therefore refer to them as the landlord. The latter lodged a general demurrer to appellant’s evidence, which was sustained.
The issue is narrowed materially by reason of appellant’s concession. He concedes a landlord ordinarily is not liable to invitees of a business concern by reason of defects within leased premises where the property was in safe condition of repair at the time the lessee entered, and where the particular portion of the building involved is in the possession, supervision and control of the lessee. (For statement of general rule and exceptions, see Woodfall’s Law of Landlord and Tenant, 20th ed., p. 882; Wilson v. Dowtin, 215 N. C. 547, 550, 2 S. E. 2d 576.) This concession eliminates from our consideration numerous cases. The hallway to the toilet and the toilet were both within the leased premises.
Appellant’s contention, however, is that the landlord made the repairs, and that where a landlord undertakes to make repairs he is liable for injuries sustained by reason of his negligence. The con tention presents first a factual question. The landlord denies he made any repairs. There is nothing in the record which indicates it was the landlord’s duty to make repairs. The terms of the lease, whether written or oral, do not appear.
Did the landlord voluntarily make repairs? There is no evidence in the instant record that the landlord made repairs voluntarily or otherwise. We have carefully examined the record and fail to find any evidence which would justify a conclusion that the landlord was actually to be in charge of making the repairs when, and if, they were in fact made. The record discloses the owner had a manager of the building. Just what his exact duties were does not appear. It does appear there had been a leak in the plumbing and that the ground underneath the floor was wet and muddy. The lessee, not the landlord or his manager, had some plumbers working there on Saturday, the day before the accident. Appellant, on Saturday, had some conversation with Mr. Black, the manager of the building, concerning the subject of reenforcing the floor. Black had a carpenter inspect the condition under the floor. The carpenter reported it was then too wet for such work. The lessee suggested the trap door be left open for ventilation. Black and the carpenter agreed the suggestion was a good one. When the carpenter left he reminded the lessee of the suggestion the lessee had formerly made. Concerning the trap door the testimony is positive that Black did not say how long it was to be left open, nor when it was to be left open, nor how it was to be left open. So far as the instant record discloses, that was the end of Black’s, or of his carpenter’s, connection with the subject of repairs. The record is silent concerning the subject of who was in charge of the repairs when they were eventually made, if ever.
There is no allegation in the petition that lessee was the landlord’s agent in making any repairs, or in leaving the trap door open. The negligence pleaded against the landlord narrows down to the charge that the trap door was left open in a dimly or insufficiently lighted hallway and to the charge that the landlord failed to warn the guests of the lessee. There is no contention the hallway had not been properly equipped with an electric light. This light was lighted earlier in the morning. There is no evidence which would remotely indicate the landlord had any reason to suspect the lessee would not keep lighted the electric light which had been provided.
Appellant further insists the landlord is liable because he con« sented to have the trap door left open. It is difficult to understand how that bare consent added anything to the rights which the lessee had without such consent. It was lessee’s own suggestion. Trap doors are common contrivances in buildings. The lessee had just as much right to open the trap door for ventilation on premises under his control, without the consent of the landlord, as he had with such consent. Moreover, there is nothing in the record which indicates the landlord authorized lessee to leave the trap door open without providing the necessary safeguards or warnings. The landlord was not obliged to assume lessee would leave the hallway, over which lessee had control, in a dangerous condition. At any rate, the landlord’s consent cannot be stretched into authorization to darken the hallway and to leave the trap door open and improperly guarded. The real trouble arose from lessee’s failure to keep the hallway lighted',- or to erect a proper barricade. The opening of a trap door, in order to obtain ventilation, does not, in and of itself, constitute negligence. It is generally held the mere consent of a landlord to a tenant to do a lawful act upon leased premises is not consent to do the act negligently or unlawfully. (Zolezzi v. Bruce-Brown, 243 N. Y. 490, 154 N. E. 535; Taylor v. Loring, 201 Mass. 283, 87 N. E. 469; Reynolds v. King, 132 N. Y. S. 273; Arnold v. Dlugo, 110 N. J. L. 89, 164 Atl. 320.)
Furthermore, according to the weight of authority, which we regard as sound, a landlord is not liable where, as in the instant case, an intervening act or acts of the tenant over which the landlord had no control constitute the procuring cause of the injury. (Kallenbach v. Manne, 138 Kan. 797, 799, 28 P. 2d 746.)
The order sustaining the demurrers of the landlord and the manager of the building is affirmed; the order sustaining the demurrer of the lessee is reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
This case was decided by this court on June 6,1891. A motion for a rehearing was in due time filed and afterward presented to the court, and we shall now proceed to dispose of the same. It appears that some time in April, (about the 19th,) 1888, A. E. Guy was appointed by the judge of the district court in the supposed or intended case of Ott & Tewksbury et al. v. D. P. Doak, J. H. Allen, and A. P. Allen, et al., a receiver to take charge of the estate and property of said Allen & Allen. At that time, however, no such case had any existence. On May 9, 1888, the supposed receiver obtained leave of the judge of the district court to commence this present action of replevin against Doak and A. T. Irvin. On May 14, 1888, the intended action of Ott & Tewsbury against Doak, Allen, Allen, and others, and the present action of Guy, receiver, against Doak and Irvin, were commenced. On July 30, 1888, Doak and Irvin and others presented a motion to the judge of the district court to remove the receiver, Guy, in the aforesaid case of Ott & Tewksbury against Doak, Allen, Allen, and others, and this motion was duly heard and considered, and was overruled. On October 18, 1888, a trial was had in this replevin case before the court without a jury, and at the close of the plaintiff’s (Guy’s) evidence a demurrer thereto was interposed by the defendants, Doak and Irvin, and on October 20, 1888, the demurrer was sustained. Afterward evidence was introduced, and judgment was rendered in favor of the defendant Doak, and against the receiver, Guy, for a return of the property, or, in case a return could not be had, then for the value thereof, found to be $4,977, and interest, $145.15, and damages, $737.33 — total, $5,859.48; and judgment was also rendered in favor of both the defendants, Doak and Irvin, against the plaintiff, Guy, for costs of suit. The journal entry of the district court showing these last-mentioned proceedings reads, so far as it is necessary to quote the same, as follows:
“And thereafter, on the 20th day of October, 1888, it being also one of the judicial days of said term of court, the court, after listening to the argument of counsel, and being fully advised in the premises, considers, orders, and adjudges, that said demurrer be sustained; to which ruling plaintiff excepted at the time, and the exception was allowed by the court. And thereupon, and upon said 20th day of October, 1888, the defendant D. P. Doak introduces testimony as to the value of the property taken, and as to damages to said defendant resulting from the taking and detention thereof by the plaintiff, and the plaintiff introduces testimony on the same matters. And after listening to the argument of the counsel, and being fully advised in the premises, the court finds for the defend ants, D. P. Doak and A. T. Irvin, and against the plaintiff, and that defendant D. P. Doak is, and at the time of the commencement of this action was, the owner and entitled to the immediate possession of the property described in the affidavit for replevin for plaintiff, and for the property obtained by plaintiff under the order of delivery issued in said action; that plaintiff under said order of delivery, on tbe 16th day of May, 1888, obtained possession of the property enumerated in the following schedule, and that the value of said property at the time of its passing into the possession of plaintiff was as shown in said schedule, by the figures placed opposite each item of property. [Here follows schedule.]”
The certificate of the judge of the district court appended to the case-made and brought to this court also states that the case contains all the evidence “ except evidence as to value of property given after the demurrer was sustained.” It also appears that this case was decided in the court below upon the theory that Guy had no possible interest in the property in controversy, and therefore that the defendants did not need to prove any interest in themselves, but only to prove the value of the property and damages, and this is probably all that they did prove. This we infer from the fact that no evidence is found in the record showing what their interest in the property was, except possibly that they were mortgagees thereof, with a possible mortgage claim against the property of about $1,808; and no evidence is found in the record introduced by themselves showing that they had any right to the property or any right to the possession thereof. We infer from the foregoing that no evidence was introduced by the defendants at all nor by either party after the demurrer to the evidence was sustained, except evidence “ as to the value of the property taken and as to damages.”
It is claimed by the defendants that Guy had no interest in the property when he commenced this action of replevin as receiver, for the reason that when he commenced the action he was not a receiver at all; and this for the reason that when he was appointed receiver the judge of the district court appointing him had no power or jurisdiction to make the appointment; and this for the reason that at that time no action was pending in which a receiver could be appointed. To this extent we think the decision of the district court extended, and to this extent we think its decision was correct, and this court so held in its former decision in this case. (Ante, p. 236.) But there is still another element involved in this case. When the defendants and others appeared before the judge of the district court, after the receiver was appointed and after this action was commenced, and before the trial therein was had, and moved the judge to remove the receiver, which motion was overruled, we think such proceeding had the effect to majce j.jje j.ecejver sue]2 from that time on, as between the parties. As giving some support to this proposition, we would refer to the cases relating to voluntary appearances. (Cohen v. Trowbridge, 6 Kas. 385; Carver v. Shelly, 17 id. 472.) But the decision of this proposition does not depend upon any voluntary appearance on the part of the defendants, or upon any waiver by them of previous irregularities; for at the time of their appearance, and at the time when they made the motion to remove the receiver, and at the time when their motion was overruled, the district court, or the judge thereof, had the unquestioned right and the power to appoint a receiver without appearance or waiver by them and without notice to them. (See former opinion in this case.) And by the order of the j udge overruling their motion to remove the receiver the judge undoubtedly intended that the receiver should, from that time on, act as and be the receiver in the aforesaid case of Ott & Tewksbury et al. v. Doak, Allen & Allen, et al., and be such receiver for the estate and property of the said Allen & Allen, which includes the property in controversy. And this action on the part of the judge, with his aforesaid intention, was equivalent to making a new appointment of Guy as receiver. The order overruling the motion to remove the receiver still stands unreversed and in full force. If the foregoing is correct, then Guy, from that time on, and at the time of the trial of this case, was receiver, and had some interest in the property in controversy. If, however, at the time of the trial, he had had no interest in the property, then the judgment of the court below giving the property or its full value to Doak would of course have been correct and could not be disturbed. (Hall v. Jenness, 6 Kas. 365, 366.) But as it was shown, as we now think, that Guy was receiver and did have some interest in the property at the time of the trial, it then devolved upon the defendants, Doak and Irvin, to show just what interest they had, for they had no right to recover from the plaintiff, Guy, who had the property in his possession and some interest therein more than their own special interest in the property.
It is a universal principle in replevin that where each of the parties has an interest in the property, and the party not having the possession thereof at the time of the trial recovers in the action, he should recover / from the other party, as value, only the value of his own special interest in the property and not the actual value thereof. (Wolfley v. Rising, 12 Kas. 535; Shahan v. Smith, 38 id. 474; Friend v. Green, 43 id. 167.) In the present case we suppose that the defendants, Doak and Irvin, were mortgagees, and that the amount of their claim against the property was about $1,808; while the judgment which they obtained was for a return of the property or the value thereof, $4,977; and interest, $145.15; and'damages, $737.33 —total, $5,859.48. It may be that the defendants’ interest in the property is much greater or much less than $1,808, but it can hardly be said that they showed it to be greater. In fact, as we construe the record brought to this court, the defendants did not attempt to show their interest in the property, but simply showed, after the demurrer to the plaintiff’s evidence was sustained, what the value of the property was, and what the damages were. Although the plaintiff failed to show that he had any right at the time of the commencement of the replevin action to commence the same, yet he showed that by subsequent proceedings he in fact obtained an interest in the property. It is admitted that the property belonged to Allen & Allen. And he showed that by the ratification on July 30, 1888, of his prior appointment as receiver of the Allens’ estate, in the case of Ott & Tewksbury et al. against Doak and the Allens and others, he. obtained an interest in the property; and therefore, while the defendants had the right to defeat his action of replevin, because he commenced it when he had no right to do so, yet they had no right to a return of the property, or the value thereof, unless they showed that they had some interest therein. And in that event they could obtain a judgment as to the value thereof only for the actual value of their own special interest therein. This we think follows from §§ 184 and 185 of the civil code. Under § 184 of the civil code, they had the right to show that they had a right to the property, and a right to the possession thereof; and under § 185 they then had the right to obtain a judgment in the alternative for a return of the property to them, or for the value of their special interest therein in case a return of the property could not be had, and also damages.
We think that justice demands that this case should be returned to the district court for a new trial. There is nothing in the record that shows that the defendant Doak is entitled to any such enormous judgment as he obtained in the replevin action; and, as we construe the record, there could not have been any evidence introduced in the case that would entitle him to any such enormous judgment, and in all probability no such evidence was introduced, and he is not entitled to any such judgment; but if he is, he can show it on a subsequent trial.
We think the motion for the rehearing should be allowed, the judgment of the court below should be reversed, and the cause remanded for further' proceedings, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case was tried by the court without a jury. The court made the following finding of fact:
“The mortgages executed by T. C. Ritter & Co. in favor of the Wyeth Hardware Company and other creditors, on August 30,1887, were made voluntarily by T. C. Ritter & Co., without solicitation from such creditors, and as part of the plan of Ritter to abandon control of his property by making an assignment thereof for the benefit of his creditors, with a preference to the Wyeth Hardware Company and others. The mortgages and deed of assignment were made at substantially the same time, and as part of one and the same transaction. The Wyeth Hardware Company did not ratify the making of the mortgage and accept the same until after the execution of the deed of assignment, and had no knowledge that the making of such mortgage was contemplated until notified at St. Joseph, by telegram from Salina.”
The contention in this case is, that the evidence does not sustain this finding; and further, if the finding is supported, that the mortgage to the Wyeth Hardware Company is not null and void, as declared by the trial court. We think the finding of fact referred to is fully sustained by the evidence. It is a familiar doctrine that every presumption upon appeal or on error is in favor of the finding and judgment below. The burden is on the appellant, or party complaining, to show error. The Wyeth Hardware Company does not appear in this case as a vigilant creditor, urging the execution of a chattel mortgage to secure its indebtedness. The evidence shows that on August 30, 1887, T. C. Ritter & Co., being in an insolvent condition, and having determined to turn over their property to their creditors by assignment, and desiring, in doing so, that certain creditors might be preferred in the payment of their claims, executed five chattel mortgages, to Smith George, Rothschild Bros., B. E. Quincy, the Wyeth Hardware Company, and Wight & Henne, respectively; and that, at the same time, they executed a general deed of assignment of their property for the benefit of all their creditors. The writing of these mortgages was concluded about 4 o’clock p. m. on August 30th, and as soon as completed the mortgages were deposited with the register of deeds of the county; that of the Wyeth Hardware Company being indorsed as filed at 4:20 P. M. The chattel mortgages, and also the deed of assignment, were written at Lovitt & Sturman’s office in Salina, by Mr. Sturman. The mortgages were taken to the court-house and filed about the same time. Smith George, the assignee named in the deed of assignment, took the mortgages to the court-house for record. After leaving the mortgages for record, he went back in about half an hour to Lovitt & Sturman’s office, and when he got back the deed of assignment had been written up, and he was in the office when the deed was signed. Before the mortgages were executed, it was agreed that he should be the assignee in the deed which was to be prepared at once. Under the evidence and the finding of the trial court, the making of the chattel mortgages and the execution of the deed of assignment must all be treated as a simultaneous or continuous act. The statute provides that—
“Every voluntary assignment of lands, tenements, goods, chattels, effects and credits, made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor, in proportion to their respective claims; and every such assignment shall be proved or acknowledged, and certified and recorded in the same manner as is prescribed by law in cases wherein real estate is conveyed.” (Gen. Stat. of 1889, ¶ 342; Gen. Stat. of 1868, ch. 6, § 1.)
In Bailey v. Manufacturing Co., 32 Kas. 73, it is declared “ that an insolvent, as long as he retains a jus disponendi of his property, may appropriate it to the payment of his debts, and may prefer creditors. He may use all of his property this wa7> or he may s0 use a Part> and make a general assignment of the remainder.” But. a debtor, in failing circumstances, engaged in making a general assignment of his property for the benefit of all his creditors, cannot at the same time make valid ■ preferences of certain of his creditors by chattel mortgages or otherwise.
It is said in Shillito v. McConnell (Sup. Ct. of Ind.), 26 N. E. Eep. 832, that—
“ While it cannot be said that the debtor has in fact surrendered dominion over his property until the assignment is complete, as from the purely voluntary nature of the transaction he may at any time before the final act change his mind and refuse to complete it, yet, being completed, we think-it ought to be held to relate back to the time when it was actually commenced, and cover all intervening transactions. The act of making the assignment embraces the preparation and execution of the necessary instruments; and whether that takes a long or a short time, it certainly must all be treated as one continuous act. To say that the debtor’s surrender of his absolute control over the disposition of his property is to be dated from the time he actually commences to make the assignment, is to give to the entire transaction the character of good faith, and make it in fact what it purports to be, an effort to secure to all his creditors that equal consideration contemplated by the statute. But to hold that while he is thus engaged he may at the same time successiully prefer favore(j creditors, is to hold that he may at one and the same time do two exactly contradictory acts. It is to hold that he may be engaged in making a voluntary assignment for the benefit of all his creditors, insuring the equal distribution of all his property among all of them, without preference, and also in securing to some of these creditors payment in full of their claims to the exclusion of others; something as difficult of accomplishment as the equestrian feat of riding two horses in opposite directions at the same time.” •
It is urged upon the part of the hardware company that the prior decisions rendered by this court uphold the chattel mortgage given to that company. The following cases are cited in support of this claim: Randall v. Shaw, 28 Kas. 419; Tootle v. Coldwell, 30 id. 125; Bailey v. Manufacturing Co., 32 id. 73; McPike v. Atwell, 34 id. 142; Deford v. Nye, 40 id. 665. In neither of the cases of Randall v. Shaw, supra, nor Tootle v. Coldwell, supra, was there any general assignment; therefore, in those cases, it cannot be said there were any preferences of creditors while the insolvent debtor was engaged in the act of making' an assignment under the terms of the statute, because no assignment was ever consummated. In McPike v. Atwell, supra, the chattel mortgage was executed and delivered on May 7, 1884; the deed of assignment was executed and delivered on the 19th day of June, 1884. These instruments were not executed at substantially the same time, or as a part of one and the same transaction. In Deford v. Nye, supra, the opinion states that there “ was competent testimony to show there was no connection between the making of the mortgages and the deed of assignment, and that they were not intended or treated as a single transaction.” In Bailey v. Manufacturing Co., supra, the insolvent debtor agreed to execute the chattel mortgages on January 17 or 18, 1882. The mortgages were executed on January 19,1882, and filed for record at 5 o’clock p.m. of that day. The deed of assignment was not executed until the next day — January 20, 1882 — and filed for record at 9 o’clock A. M. of that day. That case, in some of its features, is similar to this, but it could not be said in that case, as it clearly can in this, that the making of. the chattel mortgages and the execution of the deed of assignment were a simultaneous or continuous act. If, however, there is any declaration of law in this case which is at variance with the views of the court announced in the case of Bailey v. Manufacturing Co., we are of the opinion, after mature consideration, that that case must be modified to conform with the views herein expressed.
The judgment of the district court will he affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal objections to the judgment
are, that the contract between Emma Nogle and Mrs. Aiken, formerly Mrs. Giles, was verbal only, and therefore void under the statute of frauds, because it was not to be performed within the space of one year from the making thereof; (§6, ch. 43, relating to frauds and perjuries;) and because the cause of action was barred long before it was commenced. The statute of frauds cannot avail in this case. The evidence shows that the verbal contract was made about July 23, 1881, after Emma Nogle became of age. She entered upon her performance of the contract at once, and therefore the contract for the first year was good, notwithstanding the statute, on the ground that performance was not only possible, but was actually completed within the year. If the contract could not, by reason of the statute of frauds, extend into the second year, the jury had the right to determine what was the’understanding with which the parties entered upon the second and other years of employment. If Mrs. Aiken agreed to pay her servant $100 a year, commencing July 23,1881, this was competent evidence from which to infer under what terms the parties continued their relations after that time until Emma ceased to work as a servant. The agreement between Emma Nogle and Mrs. Aiken may be construed as running for one year’s service only, although it might have been, and really was, continued for several years upon like terms. In Sutphen v. Sutphen, 30 Kas. 510, it was decided that—
“A parol agreement which, fairly and reasonably interpreted, admits of full performance within the year, although not likely to be so performed, will not be adjudged void by reason of the last prohibition in § 6 of the statute of frauds and perjuries.”
The established doctrine is that, to bring a case within the section of the statute of frauds referred to, there must be an express and specific agreement not to be performed within the space of one year, or the facts must show the agreement cannot be performed within the year. (Kent v. Kent, 62 N. Y. 560.)
But, again, the contract has been fully executed upon the part of Emma Nogle. She performed her services as a servant, without objection, from the 23d of July, 1881, to February 6, 1888. She was paid from time to time in clothing, and, when she finally quit service, she received and accepted further payments in dishes, bedding, etc. The balance of the wages found by the jury has never been paid. Where services have been rendered, the party benefited thereby must pay for them. There may be some differences in the form of the action, and perhaps the allegations in the original petition in this case may be subject to some criticism, but the facts developed upon the trial on the part of the plaintiff below fully sustain the verdict of the jury and the judgment rendered thereon. The statute of frauds cannot, and ought not to be, construed to permit palpable frauds. When one who need not have done the services because the promise was verbal’ has voluntarily performed the agreement for the actual benefit of the other party, he or she may have an action against the other for the services actually performed. Common honesty requires and compels such a ruling.
The statute of limitations has no application, because of the payments made and accepted from time to time in clothing, bedding, dishes, etc. (Carney v. Havens, 23 Kas. 82; Waffle v. Short, 25 id. 503.) The other errors alleged are unimportant, and in no way prejudicial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 22d day of December, 1886, one James E. Dryden, who lived about three miles east of the city of Troy, in Doniphan county, was driving east from his home, early in the forenoon of a cold, frosty day, in a buggy drawn by two horses, and in attempting to cross the track of the Chicago, Kansas & Nebraska Eailway Company, in advance of an approaching train, was killed. He had lived near the crossing for many years, and the railroad had been in operation for several weeks. The top of his buggy was up, and he was driving in a brisk trot. The railroad extends east and west at the crossing. The wagon road, on which the deceased was traveling, ran north and south at this place, and crossed the railroad track at right angles, but before approaching the crossing from the north, and at a short distance therefrom, the road ran west, parallel with and about 100 feet north of the railroad track for several miles. The public road, after crossing the track of the railroad from the north, ran south for about 400 feet, and then turned and extended to the east. The deceased was driving along the road from the west until he came to the turn, and then went south for about 100 feet onto the track where he was killed. The railroad track for a distance of 50 or 60 feet west of the crossing was constructed upon a very light grade, but about 300 feet west of the crossing there was a cut from 2 to 11 feet deep, and probably 200 feet long, and west of this, and about 1,300 feet from the crossing, was a bridge 54 feet long. As the crossing is approached from the west, and before the road turns south, the ground is high and hilly, and the approaching train could be plainly seen from the top of the hill for 120 rods. As the crossing is approached from the west, and before the turn is made to the south, the ground between the road and track is comparatively level; when the turn is made on the road going south to the crossing the grade is slightly down hill until near the crossing; and to the west of the road, after the turn south is rnad'e, the view of the track west is somewhat obscured by weeds and elder bushes along the side of the fence and on the right-of-way. Dryden approached probably within 40 feet of the track at the crossing, when he leaned forward and looked in the direction of the approaching train. He then struck his horses with the whip and endeavored to cross the track before the train arrived at the crossing. He was struck by the train and killed. There is evidence tending strongly to show that while the train was in the cut west of the crossing, and probably ISO feet away, the whistle sounded the usual danger signals. A fair summing up of the evidence shows that the deceased was driving along the road from the west at a brisk trot, and not until he turned south toward the crossing, and had advanced to within 40 or 50 feet of the track, did he pay any attention to the approaching train. At the latter point, something caused him to lean forward and look in the direction it was coming. He then whipped his horses, increased their speed, and tried to cross in advance of the arrival of the train. He lived within a half-mile of the crossing, his house being within 160 feet of the track of the railroad. The train-that struck him was a regular train and on time.
This action was brought by his wife, as administratrix, to recover damages for the negligent killing at a public crossing. At the trial the court instructed the jury in these words:
“It is deemed by the court that the evidence in this case shows that the deceased, James E. Dryden, did not use ordinary care in crossing the railroad of defendant, and under the law is not entitled to a verdict for the injury done. You are, therefore, instructed to find for the defendant.”
The jury returned a verdict for the defendant, and the administratrix brings the case here for review. The principal error complained of is the instruction above given; but as this-is error of law occurring at the trial, and as the overruling of the motion for a new trial is not assigned as error in the petition in error filed in this court, we are without the power to review this cause. This has been held in many cases, from Carson v. Funk, 27 Kas. 524, to Struthers v. Fuller, 45 id. 735. Every assignment of error in the petition in this case is for errors occurring at the trial, and this ruling we now make on the instruction complained of applies to all the other assignments of error.
We can do nothing but recommend an affirmance of the-judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J. :
John H. Rodgers brought his action against the Great Spirit Springs Company, the Chicago Lumber Company, and others, to recover from the springs company the sum of $1,696.24, with interest from the 25th day of December, 1884, for work, labor and material in constructing a stone hotel upon the southeast quarter of section No. 25, town ship 6, range 10, Mitchell county, in this state, and to have the amount adjudged a lien upon the premises, which were alleged to be owned by the Great Spirit Springs Company. The Chicago Lumber Company filed its separate answer and cross-petition, alleging that John H. Rodgers was indebted to it in the sum of $1,688.61, with interest from the 30th day of June, 1884, for lumber and building material furnished and used in the construction of the hotel upon the premises described in the petition, and praying for judgment against plaintiff for said amount, and also for a foreclosure of a mechanic’s lien filed on the 28th day of January, 1885. Subsequently, the Great Spirit Springs Company filed a reply to this answer and afterward amended the same. Trial was had before the court without a jury. Judgment was rendered in favor of the Chicago Lumber Company against John H. Rodgers in the sum of $2,128.26, with interest at 7 per cent., and also costs, taxed at $153.73. The trial court also decreed a foreclosure of the mechanic’s lien filed by the Chicago Lumber Company upon the premises described in the petition, and owned by the Great Spirit Springs Company, for the amount of $2,043.34, with interest and costs. The springs company brings the case here.
It is contended that the special findings and judgment of the trial court are not supported by the evidence. The record, as to the evidence, comes to us in an unsatisfactory condition. The only statement that all of the evidence introduced at the trial is preserved in the record is the recital of the trial judge in his certificate to the case-made. This is insufficient.
“Where a case is made and settled for the supreme court, and the party making it desires that it shall be shown that the case contains all the evidence introduced on the trial, a statement to that effect shall be inserted in the case itself, and not in the certificate of the judge who settles the case.” (Eddy v. Weaver, 37 Kas. 540; Insurance Co. v. Hogue, 41 id. 524.)
It is further contended that various errors occurred during the trial. These alleged errors cannot be reviewed, because no exception was taken to the overruling of the motion for a new trial. If any errors occurred they were waived thereby. (Lyons v. Bodenhamer, 7 Kas. 472; Nesbit v. Hines, 17 id. 317; City of Atchison v. Byrnes, 22 id. 68.)
It is claimed that the court, after the Chicago Lumber Company had introduced its evidence and rested, allowed an amendment to its answer and cross-petition, so as to allege the abandonment of the work by Rodgers, instead of the completion of the hotel, as alleged in the original answer. The condition of the record about the amendments allowed to the various pleadings is also unsatisfactory. If, however, the amendment was allowed, as claimed, as the Great Spirit Springs Company filed a general denial to the answer or cross-petition of the lumber company, it does not seem that any amendment was necessary to put in issue the alleged abandonment of the work by Rodgers. The court and parties upon the trial seem to have fully tried this issue; therefore no prejudicial error appears.
Really the only matter before us for consideration, owing to the condition of the record presented, is, whether the judgment rendered in favor of the Chicago Lumber Company is supported by the pleadings framed by the parties. It is urged that the trial court made a great many findings of fact which were entirely unnecessary and immaterial and not within the issues of the case, but failed to make findings that were necessary in order that the lumber company could legally recover against the springs company, because the court, did not specifically find that the last work on the hotel was done under the contract or within 60 days prior to the filing of the mechanic’s lien of the lumber company. The court, however, made this finding:
“ The hotel was never fully completed, and still remains in an unfinished state, unoccupied. In July or August, 1884, there was a cessation in the work of the plaintiff on the building, and no work was thereafter done by or for him on the building until the 25th day of December, 1884; nor after that date, at which time he put a hasp and fastening on the door which had previously been hung in the basement of the building, and locked the door with a padlock, nailed up two doors that opened on the first story above the basement with sheeting and boards and 2x4 pieces of lumber, and also with pieces at the bottom of the door. Whether he did any further work or labor on the building at that time does not satisfactorily appear from the evidence, and whether the hasps and fastenings on the basement door .were in accordance with the plans and specifications does not appear, as the plans and specifications were not offered in evidence.”
The contract of John H. Rodgers required him “to do all the carpenter work on the hotel, furnish all the wood material required by the plans and specifications, excepting the lath for plastering, furnish all hardware, nails, locks, bolts, hinges,” etc. It must be assumed, in the absence of any showing to the contrary, that the work done by Rodgers on December 25, 1884, was done under his contract, or with the consent of the springs company, the owner of the hotel. In either case, the springs company would be liable for the work and materials, and therefore the mechanic’s lien, under the finding, was filed within time. It was decided in Shaw v. Stewart, 43 Kas. 572, that—
“ Where the abandonment of work upon a building is caused either by the consent or fault of the owner, the building is to be deemed completed for the purpose of filing a mechanic’s lien. If a contractor permanently abandons his work upon a building before completing the same under his contract, the subcontractor may, if not inequitable, consider the building as completed for the purpose of filing a lien thereon.”
Finally, it is contended that if the lumber company had a lien for materials furnished, it waived its right to enforce it by withdrawing the statement or lien from record. It appears that the lien was properly filed on January 28, 1885. The answer of the lumber company in this case was filed on the 24th day of December, 1885. To prepare the answer, Joel Holt, esq., one of the attorneys of the lumber company, took the lien and papers connected with it from the office of the district clerk. It was soon returned to the clerk, but was attached to the answer of the lumber company. As between the lumber company and the Great Spirit Springs Company, we do not think that the withdrawing temporarily of the statement or lien, and returning it to the district court as filed with the papers in this case, a sufficient cause for holding the lien waived, or inoperative. If the rights of third parties had intervened, a very different question would be presented.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an appeal from a condemnation proceeding instituted by the Chicago, Kansas & Nebraska Railway Company to obtain a right-of-way for its railroad through lands in Norton county. The commissioners con demned a right-of-way through a 10-acre tract of land, and the quantity deemed necessary for the route, and which was taken, was ly^o- acres- The land, taken was valued by the commissioners at $1,200, and they assessed damages to the 8ÁV acres not taken at $300. The commissioners were unable to ascertain who were the owners of the land, and made an award to “unknown owners” of $1,500. The report of the commissioners was filed on December 16, 1887, and on December 19,1887, the railway company took an appeal from the award. On April 10, 1888, Ernest Broquet filed a petition in the appeal, setting up title to the land in himself, and asking for damages in the sum of $3,000. This petition was stricken from the files by the court, and the reason for this action does not clearly appear from the record. It appears that Ernest Broquet, at his own request, was made a party defendant, and W. H. Boys was also treated as a defendant, and was represented by an attorney appointed at the instance of the court, but the reason for this appointment is not shown by the record. The cause was tried with a jury, and a verdict was returned in favor of Ernest Broquet, awarding him the sum of $1,683.41.
Errors are assigned on the rulings of the court in charging the jury. There were two controverted questions submitted to the jury: one was as to the ownership of the land at the time of its appropriation, and the other was as to the amount of damages suffered by the owner or owners. In one of the instructions, the court stated to the jury the amount awarded by the commissioners for the land taken and for the resulting damages to the part not taken. The award made by the commissioners was not admissible in evidence, and the court was not warranted in presenting the amount of the allowance as a fact to the jury. When an appeal is taken, the case is tried de novo upon new evidence, and the award of the commissioners is no more competent than would be the former verdict of the jury upon an appeal from a justice of the peace to the district court. It is only the opinion of the commissioners as to the damages sustained, and the statement of the amount awarded by them is hearsay evidence, which is not admissible, whether stated by a witness or by the court in its charge. (Railroad Co. v. Dwelle, 44 Kas. 509.) We are referred to Railroad Co. v. Kuhn, 38 Kas. 104, as justifying this instruction; but in that case the court did not inform the jury what the amount of the award was; it only gave a rule for the computation of interest, stating that if an award of damages greater than a certain sum was allowed, interest should be awarded; otherwise, none should be allowed. The sum mentioned was the amount allowed by the commissioners, but this fact was not called to the attention of the jury. In this case the amount was not given as a basis for calculating interest, but was a flat statement of what the commissioners deemed to be a proper allowance for the land taken and the damages done.
There is also a complaint as to the rule given for the measurement of damages. In fixing the time for the valuation of the land, the court mentioned January 20, 1888, whereas in another place it is said, and the record shows, that the land was condemned and appropriated December 16, 1887. The compensation should be ascertained and the damages assessed as of the time when the property was actually appropriated, and the correct measure of damages was the difference between the market value of the tract through which the right-of-way was laid immediately before and immediately after the time when the property was actually taken. There is some confusion in the evidence, as well as in the charge of the court, with respect to when the right-of-way was condemned and appropriated. While this error of itself might not have been sufficient to reverse the judgment, it should be corrected if another trial is had, as the value of property might greatly change in the period between December 16,1887, and January 20,1888.
Error is also assigned on remarks made by the court in the hearing and presence of the jury, with respect to an offer of compromise. The railway company made an offer to allow judgment to be taken against it in favor of Broquet for $1,000, and costs. This offer was not accepted by Broquet, and they afterward proceeded to trial, and one of the principal grounds of contention was that Broquet was not the owner of the land. Testimony was offered upon that question, and a special interrogatory was submitted to the jury with reference to the fact, and the court instructed the jury that the burden of proof was upon Broquet to show that he was the owner of the land on December 16, 1887, and unless they found him to be the owner at that time, the verdict must be for the railway company. Notwithstanding this, the court stated in the presence of the jury that “the Chicago, Kansas & Nebraska Railway Company has filed a paper in this case in which it recognizes Ernest Broquet as defendant or party in interest herein, and in which it made a certain offer to settle with said Broquet for damages to the land in question.” As the offer of compromise was not accepted, it could not be given in evidence, and should not have been mentioned on the trial. (Civil Code, §§ 523, 528.) In view of the issue which had been presented as to the right of Broquet to any damages, and the testimony given tending to show ownership in another, the statement made by the court, that the company had by its written proposal to allow a judgment recognized Ernest Broquet as an owner, and had made an offer to compromise with him, was prejudicial error.
For the errors mentioned the judgment will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is the second time that this plaintiff in error has brought this case to this court for review. For a statement of most of the material facts, see 39 Kas. 495. The action is one for partition of the east half of section No. 36, township 23, range 23, in Bourbon county. This court held when the case was here before that Daniel Van Buskirk and William H. Van Buskirk held the title to the southeast quarter in trust only, so far as William and Nora Phipps are concerned, and this court ordered that an accounting must be had and the property partitioned as the interests of the heirs of David M. Phipps should appear, and reversed the cause and remanded it to the district court for another trial. At the September term, 1888, the second trial was had, and the court made these special findings:
“1. The said plaintiff, Nora Phipps, and the defendants, William Phipps and Lilly Van Buskirk, as heirs-at-law of David M. Phipps, and the grantees of his widow, their mother, are the owners in fee-simple, subject to the claims of William H. Van Buskirk, as hereinafter mentioned, of all that tract or parcel of land situated in Bourbon county, state of Kansas, and described as follows, to wit: The east half of section No. 36, in township No. 23 south, of range No. 23. Each of said parties owns an equal undivided one-third share and interest in said real estate, and they are entitled to have partition thereof made.
“2. In the fall of 1877 the said Daniel Van Buskirk married the said Lilly, one of said heirs, and immediately after his marriage the said Daniel and Lilly Van Buskirk made an agreement with Margaret Zuck, the mother and natural guardian of said heirs, who, since the death of David M. Phipps, had married one Peter Zuck, by the terms of which agreement said Daniel and Lilly Van Buskirk were to pay all taxes due and to become due upon said land; also to pay all other claims against said land, including two annual payments due the state upon a school-land purchase upon said southeast quarter-section, with accruing interest; the other heirs, the said Nora and William Phipps, then minors, to live with them on said land. Pursuant thereto, said Daniel and Lilly Van Buskirk at once went into the use and possession of said east half-section, and the said Nora and William Phipps lived with them in the home place of the Phipps family, on the south half of said southeast quarter; said Margaret Zuck also turned over to Daniel and Lilly Van Buskirk the crop raised upon said land for the year 1877, and some live stock, the property of David M. Phipps’s estate, upon which estate there had been no administration, to aid in paying any claims against said land. At that time the title of said southeast quarter-section was a school-land purchase certificate, upon which two payments were yet to be made.
“3. In November, 1878, the taxes were delinquent upon said southeast quarter-section for .the year 1875 and subsequent years, and there was also an installment of interest due on the school-land certificate. Daniel Van Buskirk, whose duty it was to pay these taxes and this interest, was unable to do so, and in order to save a portion of said land to the heirs of David M. Phipps, procured W. H. Van Buskirk to pay the same, with the understanding and agreement that as soon as W. H. Van Buskirk obtained title from the state, he would convey to the heirs of David M. Phipps the north half of said quarter-section and retain the south half for himself. At the time of this agreement W. H. Van Buskirk was informed by the county treasurer, and was under the impression, that the land was forfeited by reason of the failure to pay the taxes and installment of interest. The amount so paid by W. H. Van Buskirk in pursuance to such agreement was: On November 22,1878, for taxes, $89.94; for interest on school-land certificate, $10.60; on October 10, 1879, balance due state, principal and interest on school-land certificate, $114.60, at which time W. H. Van Buskirk obtained title to said quarter-section from the state, and thereupon caused the north half of said quarter to be conveyed to Daniel Van Buskirk, husband of Lilly Van Buskirk, while Lilly Van Buskirk with Daniel Van Buskirk, her husband, conveyed to William and Nora Phipps all of Lilly Van Buskirk’s interest in the northeast quarter of said section 36, as the heirs of David M. Phipps. The said Nora and William Phipps declined to accept the benefit of the said conveyance from Lilly and Daniel Van Buskirk for said northeast quarter-section, and on trial consented that a decree might go revesting such title in said Lilly Van Buskirk.
“4. On November 22, 1878, when W. H. Van Buskirk paid the taxes and' interest aforesaid, he was living in Missouri, and it was mutually agreed between him, Daniel Van Bus-kirk, and the county treasurer, that, for the convenience of the parties, the tax certificate should be taken out in the name of Daniel Van Buskirk, which was accordingly done, although Daniel Van Buskirk did not at any time have any interest in said certificate, except to hold the same for the' benefit of W. H. Van Buskirk; and the assignment of said tax certificate by Daniel to William H., on October 16, 1879, was for the purpose of putting it in the original and actual owner, so that he might thereby complete the payment of the purchase-price and procure a patent from the state.
“4-i. Immediately upon getting the patent for the land and making the conveyances mentioned, Daniel Van Buskirk built a house and moved upon the north half of said quarter, with William and Nora Phipps, who lived with him until about three years before bringing this suit. Daniel Van Buskirk has had exclusive possession of said north half of the quarter ever since he moved upon it, and has made lasting and valuable improvements thereon. W. H. Van Buskirk has had exclusive possession of the south half of said quarter from the time he obtained the patent.
“5. The said Wm. H. Van Buskirk has made lasting and valuable improvements upon said south half of said southeast quarter-section, of the value of $1,050, and is entitled to the amount paid on said south half of said quarter-section on said tax deed, and for subsequent taxes, with 20 per cent, interest thereon from date of payment, in amounts as follows:
To paid for tax deed October 16, 1879...................... $94 65
Interest thereon to date at 20 per cent..................'---- 163 62
Tax paid December 16, 1879............................... 6 73
Interest thereon to date at 20 per cent....................... 11 88
Tax paid November 20, 1880............................... 3 50
Interest thereon at 20 per cent, to date..................... 5 56
Tax paid June 18, 1881.................................... 3 50
Interest thereon at 20 per cent, to date...................... 5 13
Tax paid December 20,1881................................ 4 73
Interest thereon at 20 per cent, to date...................... 6 39
Taxes paid December 12,1882.............................. 9 33
Interest thereon at 20 per cent, to date...................... 10 90
Taxes paid December 19,1883.............................. 8 11
Interest thereon at 20 per cent, to date...................... 7 83
Taxes paid November 8, 1884.............................. 12 02
Interest thereon at 20 per cent, to date...................... 9 40
Taxes paid November 16,1885.............................. 8 74
Interest thereon at 20 per cent, to date...................... 5 04
Total tax redemption................................. $376 83
Said Wm. H. Van Buskirk paid, October 16,1879, the balance due on said school-land purchase, principal $104, and interest from November 22,1878, at 10 per cent., total $114.60. The amounts due said Wm. H. Van Buskirk are as follows, to wit:
Value of improvements, as above......................... $1,050 00
Tax redemption, as'above................................ 376 83
Paid on school certificate and interest..................... 114 60
Interest on same at 7 per cent, to date.................... 72 19
$1,513 62
“6. There is due and chargeable, as the rents and profits of said south half of said southeast quarter-section from the year 1878 to date, in the sum of $650.62, to be deducted from the amount due said Wm. H. Van Buskirk, being the total deduction to be made therefrom, and leaving a balance due him of $963.
“7. Said Wm. H. and Daniel Van Buskirk hold in trust the title to said southeast quarter-section for the use and benefit of said Nora Phipps, Wm. Phipps and Lilly Van Buskirk.
“ 8. Said' tax deed is void, and said heirs are entitled to the possession of said south half of said southeast quarter-section, (subject to a lien in favor of said Wm. H. Van Buskirk for the said sum of $963;) and the said Nora and William Phipps are each entitled to be let into the possession of an equal undivided one-third interest in and to the north half of said quarter-section. It is therefore by the court now here considered, ordered and adjudged and decreed, that the said Nora Phipps, William Phipps and Lilly Van Buskirk have and recover of and from the said Wm. H. Van Buskirk the possession of the said south half of the southeast quarter of section No. 36, in township No. 23 south, of range No. 23 east; that he, the said Wm., H. Van Buskirk, execute and deliver to them a proper deed of conveyance therefor of all of his right, title and interest therein, executed by himself and his wife; and that in default thereof this judgment shall operate as such conveyance, subject, however, to a specific lien thereon, which is hereby given the said Wm. H. Van Buskirk for the said sum of $963, and process is awarded to carry this judgment and decree into effect. It is further ordered, that if said sum of $963 is not paid on or before March 1, 1889, an order of sale may issue. It is further considered, ordered and adjudged and decreed, that the said Nora Phipps, William Phipps and Lilly Van. Buskirk have and recover as against the said Daniel Van Buskirk like relief as set forth in the above and foregoing judgment and decree against Wm. H. Van Buskirk, as to the north half of said southeast quarter-section; and it is ordered that all questions as to any claims in favor of said Daniel Van Buskirk for improvements made and taxes paid upon said north half of-said quarter-section, as also all claims for rents thereof from November, 1877, to this time, in favor of said heirs, shall be left open for consideration upon the incoming of the report of the commissioners hereinafter appointed to make partition of said real estate. It is further considered, ordered, adjudged, and decreed, that partition be and is hereby granted of all that tract or parcel of real estate mentioned in plaintiff’s petition, situated in Bourbon county, state of Kansas, and described as follows, to wit: The east half of section 36, in township No. 23 south, of range No.'23 east, subject to the lien and claim above mentioned, so that there shall be set off in severalty an equal one-third in value to each of the said Nora Phipps, William Phipps, and Lilly Van Buskirk; and in order to make such partition, Geo. W. Armstrong, J. N. Post and Clifford Latta are hereby appointed commissioners for that purpose, and if said partition of said half-section can be made without manifest injury, said commissioners will lay off said several interests by metes and bounds; but if not, then they shall make a valuation and appraisement thereof, and return their doings under this order to this court. It is further ordered and adjudged, that said Wm. H. Van Buskirk pay the costs and fees due his own witnesses herein, and one-half of the court costs, also that the other parties hereto pay the costs and fees due their witnesses and one-half the court costs, to be charged and adjusted upon the incoming of the report of said commissioners.”
From these findings and the judgment based upon them, there is no longer any question of title, as full title is now vested in all of the Phipps heirs. William and Nora Phipps having refused to accept the benefit of the deed for their interest made by Daniel Van Buskirk and wife to them for the north quarter-section, each of the heirs of David M. Phipps, to wit, Lilly Van Buskirk, Wm. Phipps, and Nora Phipps, is entitled to one-third of the half-section, subject to whatever rights accrued to Wm. H. Van Buskirk by reason of the facts hereafter to be recited. So that the only question here is, what are the rights of Wm. H. Van Buskirk under the second, third, fourth, fifth, sixth, seventh and eighth findings? The fourth finding states that the tax certificate was taken out in the name of Daniel Van Buskirk, by agreement, for the convenience of parties, because Wm. H. Van Buskirk lived in Missouri, but that Daniel did not have any interest in the same except to hold it for the benefit of William, and that the assignment of the certificate from Daniel to William was for the purpose of putting it in the original and actual owner, so that he could complete the payment of the purchase-price, and procure a patent from the state. Upon the theory of this finding, the court then proceeds in the fifth finding to state an account between Wm. H. Van Buskirk and the Phipps heirs, and in this statement of account committed several grave errors, greatly to the prejudice of the heirs. The most flagrant of these is, that Wm. H. Van Buskirk is allowed interest on the amount paid for the tax deed from its date until the date of the findings at the rate of 20 per cent, per annum. Waiving any discussion at present as to whether he is entitled to any interest but that for money advanced, which would bear but the legal rate, it is evident that, being in possession of the premises, and enjoying the rents and profits thereof, these must be devoted as they annually accrue to the payment of the accruing taxes, and, if there be a surplus, to the annual reduction of the original cost of the tax deed. In other words, it would be gross injustice to allow William 20 per cent, on the cost of the tax deed from its date, and 20 per cent, on the annual payment of taxes from the date of their payment up to the time of trial, when he was annually receiving from the proceeds of the farm sums that at the time of the trial aggregated $650.62, and when no interest is allowed on these rents and profits so annually received. The rents and profits must be applied annually to the reduction of the amount paid for the tax deed, and accruing annual taxes. It may be said, as a matter of strict law, that William H. Van Buskirk could take no greater rights by virtue of the tax certificate of sale than his assignor, Daniel Van Buskirk, acquired by the purchase of the certificate. It is difficult to see, under this state of facts, how Daniel Van Buskirk or his assignee, William, can use this certificate for any legal purpose, except evidence of payment; so that, whatever claim William may have by reason of having furnished the money with which Daniel made the purchase, and thus by operation of law paid the delinquent taxes, arises from equitable considerations, and not from the face or terms of the tax certificate of sale and its statutory attributes. Under the circumstances of this case, we do not think that it is either legal or equitable to allow 20 per cent, interest on the amount of money William furnished Daniel with which to purchase the tax-sale certificate, or to allow that rate of interest on the subsequent taxes paid.
Again, it is only such improvements as enhance the value of the property that can be taken into account under all the facts and circumstances of this case. All absolutely necessary improvements, that contribute to the comfort and convenience of the party in possession, and all those necessary to protect his stock and preserve his crop, such as the repair of the dwelling-house, the repair of fences, the cleaning out of the spring that furnishes them water, and all acts of a similar character pertaining to the present use and enjoyment, and contributing to the comfort and profit of the occupant, are not such lasting and valuable improvements as enhance the value of the property and become the subject of equitable recognition and protection. The accounting between these parties ought to be done on this basis and guided by these rules: There should be deducted from the amount of money furnished by William H. Van Buskirk and paid on school certificate and interest, and for tax deed and for taxes of 1879, the annual rental value of the premises he occupied from the date of his occupancy to the end of the first year. This would bring a credit on the money furnished on or about the 1st day of December, 1880, the sums advanced by William bearing interest at 7 per cent, to that date. This balance would then bear interest until the next annual rent became the subject of deduction. The annual rental, as it accrued, should first be devoted to the payment of the taxes accruing annually on the land, and if'the rent is in excess of the taxes, the excess should be credited on the original amount paid for school certificate, tax deed, and interest, the annual balance thus created bearing interest at 7 per cent, per annum. To any balance remaining at the expiration of William’s occupancy should be added the value of such lasting and valuable improvements as he may have made in good faith while in the actual occupancy of the premises that have enhanced the value of the property. It seems to us, on the state of facts presented in this record, and its peculiar circumstances, that this mode of accounting is as fair and equitable as anyone that can be adopted. That the court has power to adjust on an equitable basis, is clear from § 629 of the code, which gives the court full and ample power to settle all such questions in actions of this character on just and equitable principles. This is the view taken of the power of the court in Sarbach v. Newell, 28 Kas. 642, and that case is express authority to require the application of the rents and profits to the taxes as they annually accrue. Every case makes its own law; and the facts and attending circumstances of this one call for the fullest exercise of those equitable powers conferred upon the court by § 629 of the code in actions of this character. We regard the declaration of the court when this case was here before, “that William H. Van Buskirk cannot claim any higher or greater rights in the tax-sale certificate,” as a correct exposition of the law governing that particular transaction, because the moment that certificate was assigned by the proper county officer to Daniel, the law operated, and it became a payment of the delinquent taxes, and this operation of a well-settled principle cannot be varied to suit the necessities of any of the parties to a lawsuit. These are some of the reasons that induce us to recommend to the court that the judgment be reversed and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This was an action brought upon the following instrument, which is made a part of the petition in the case, to recover from W. P. Fulton the sum of $200, the amount of his subscription therein:
“We, the undersigned, agree to pay the sum set opposite our names as follows: One-third down, one-third in six months from date hereof, and one-third in 12 months from date hereof, and the said sums so subscribed is a donation to the Cooper Memorial College, of Sterling, Kas., and the said sum to be used in erecting the said college building. And it is agreed that the commencement and building of said college is to be considered and held as a full consideration for this subscription and our obligation to pay the same set opposite our names.
“And each subscriber is entitled to lots to the amount of their subscription in the investment company’s addition.
J. H. Ricksecker........ $750 00
H. Irish................ 750 00
J. C. Turner............ 750 00
C. K. Beckett........... 750 00
J. Hoops............... 750 00
3. S. Smith............. 750 00
W. M. Quigley.......... 200 00
Truehart So Logan....... 300 00
R. J. Shay.............. 200 00
Skiles So Wirshing....... $300 00
W. L. Brown............ 200 00
W. H. Page............, 300 00
J. C. Johnson........... 150 00
H. W. Maxwell.......... 200 00
T. A. Dillay............. 200 00
C. B. Donaldson......... 100 00
McMurphy So Hughes.... 200 00
W. P. Fulton............ 200 00
J. W. Goodson.. $300 00
A. G. Landis____ 300 00
J. M. English... 300 00
W. M. Lamb 150 00
M. T. Williams.. 200 00
D. Sturgeon____ 200 00
Hodge & Evans. 200 00
Chas. Mann............. $150 00
J. T. Gaskell......... 150 00
R. F. Bond.......... 200 00
H. Swartz........... 150 00
J. O. Stow........... 500 00
B. Arnold............ 300 00-
W. Q. Elliott......... 750 00
“To be paid only when actually needed to prosecute the • work.”
The defendant below filed a demurrer to the petition, which was overruled. He then answered, and the case went to trial before the court without a jury. The court found in favor of the plaintiff below. Motion for a new trial was filed and overruled, and a case made and brought to this court for review.
The first error assigned is the action of the court in overruling the demurrer to the petition. The petition alleges the incorporation of the plaintiff under the laws of Kansas, recites the fact that, in 1886, the people of Sterling, Rice county, Kansas, were desirous of securing the location and erection of a college at their city, to be called the Cooper Memorial College, of Sterling, Kas.; that for the purpose of raising money to aid in the construction of said college, the instrument in writing, copied above, was created and the subscriptions therein contained were made; that at the time such subscriptions were made it was understood by the subscribers, including the defendant, Fulton, that the plaintiff, the Sterling Land and Investment Company, was to erect the college, and that said subscriptions were to be collected by said investment company and by it used in the construction of said college; that said subscription list was handed over to said company, and the subscriptions therein, except that of Fulton and one other, were paid to said company; that said company, relying upon said subscriptions to, in part, compensate them therefor, erected said college and turned it over to the trustees of the Cooper Memorial College; that the company tendered Fulton lots-in its addition to the full value of his subscription, which he neglected and refused to take; and that he refused to pay the amount of his subscription, or any part thereof.
We think the petition states a cause of action, and the demurrer was properly overruled. Counsel for Pulton claims in his brief that there was no contract between Fulton and the plaintiff below. We think there was. The instrument signed by Fulton must be construed in the light of all that occurred in connection with the subject to which it relates. An examination of the record shows that, in 1886, the people of the city of Sterling, like the people of most other cities of Kansas, were actively engaged in an endeavor to improve their city. To promote such endeavor, they determined to secure the erection of a building therefor and the endowment of a college in the midst. They held public meetings and discussed plans for raising money for the erection of the college building, the defendant below, Fulton, being a resident of said city, and actively engaged with others in the work of securing said money. The consultations in relation to the method of obtaining the means to secure the erection of a college building finally resulted in an understanding that a corporation should be created which should take control of the business of erecting such building; that said corporation should purchase land in a body, and cut it up into blocks and lots and sell the same, and from the profits thus obtained raise a portion of the money with which to erect said college building. It was also agreed that subscriptions should be solicited among the residents of the city, to further aid in the construction of said building. In pursuance of this understanding, the Sterling Land and Investment Company was incorporated, and the subscriptions contained in the subscription list herein copied were obtained.
It was the understanding, from the inception and adoption of the plan pursued for raising money, that the subscribers to the fund for the erection of the college building should be permitted to select and have lots in the company’s addition — that is, in the land purchased and subdivided by the company — equal in value with their several subscriptions. The company purchased land, subdivided it, and — except what was taken by the subscribers to the college fund — sold what it could of it, and used the proceeds of such sales in the con struction of a college building. It was also understood that a second corporation should be created, known as the Cooper Memorial, College of Sterling, Kas., that should accept the college building when completed, endow the college, and agree to conduct a school therein. The subscription list was turned over to the Sterling Land and Investment Company, which erected the college building and turned it over to the trustees of the Cooper Memorial College, which accepted it.
Construing the instrument sued on in this case in the light of these endeavors, understandings, and accomplishments, with the petition declaring that it was understood by each subscriber to said instrument, including Fulton, that the Sterling Land and Investment Company was to erect the college building, and that the money subscribed should be turned over to said company to be used in the construction thereof, and with a finding of the court in favor of the company upon these allegations, it is not difficult to arrive at the conclusion that the undertaking of Fulton was with the plaintiff below. The last clause of the instrument itself lends decided aid and comfort to this view of the question. It says: “And each subscriber is entitled to lots to the amount of their subscription in the investment company’s additon.” What investment company, and what addition? It is difficult to determine what company and what addition from the face of the instrument, but with a knowledge of what occurred in connection with the making of said instrument, and the purpose for which it was made, knowing by whom the college building was erected and how the money was to be and was raised for its construction, and also that the understanding was, at the time the subscriptions were made, that the subscribers were to have lots in the Sterling Land and Investment Company’s addition equal in value to the amount of their subscriptions, it is very plain that the company referred to in the instrument is the Sterling Land and Investment Company, and the addition referred to is the addition of that company, or the land purchased by that company and subdivided into lots for the purpose of obtaining in part money to construct the college building. Although the subscriptions in the list are, in said list, said to be donations to the Cooper Memorial College building, yet it is evident from all the surrounding facts and circumstances and understandings that the subscriptions were to a fund which was to be used in the construction of the college building. It is also evident from the same sources that the subscriptions were not absolute donations to any person or corporation, since the subscriber was to receive lots in equal value with his subscription in consideration thereof. It is also evident from the sources enumerated, that the lots promised were to come from the plaintiff below, and to that extent the consideration moved from the said plaintiff to the subscribers. The Cooper Memorial College was to do nothing for anyone except to take the college building when completed and agree to conduct a school therein. It did not undertake to do anything until after the building was completed. It had no duty to perform so far as Fulton was concerned, except the duty alike toward him and all the people of the city, of conducting a school in the college building, after completed and accepted. We think it entirely proper to say, upon the whole record, that the promise and undertaking of Fulton was with the plaintiff below, and we so hold.
But as the subscriptions, upon the face of the instrument alone, seem to be a donation to the Cooper Memorial College, of Sterling, Kas., and as the instrument declares that the commencement and building of the college shall be considered and held as a full consideration for the subscriptions and obligation to pay the same, and as the petition alleges the transfer of the subscriptions to the plaintiff below and the court found in its favor, we could also, with perhaps equal propriety, hold the undertaking, though nominally with the Cooper Memorial College, to be for the benefit of the said plaintiff, and still affirm the judgment of the court below, upon the well-known rule of law that a contract between two persons for the benefit of a third may be enforced by him for whose benefit it is made. To this view of the case it is objected, that the Cooper Memorial College was not incorporated until nine days after the subscriptions (including Fulton’s) were made. We do not, however, think this a valid objection. We think a subscription for the benefit of a corporation not yet in existence is binding on the subscriber, if made with the understanding that a charter is being obtained, and it is obtained in accordance with the subscriber’s understanding at the time of his subscription.
Upon the theory that the undertaking of Fulton was with the plaintiff below, and that the subscription was to be used by the plaintiff in the construction of a college building to be erected by the plaintiff, it is objected that the plaintiff had no power to make a contract that would bind itself or Fulton, by the terms of which the plaintiff company was to erect a college building; that the construction of a college building is ultra vires the powers of the plaintiff as defined in its charter.
The charter of the Sterling Land and Investment Company declares that the purpose for which the corporation is formed is “to buy, own and sell real and personal property, and to improve the same.” The charter confers express power upon the corporation, not only to buy and sell both real and personal property, but also to improve the same. We think it might be held that the building of a college upon a small piece of land a part of the larger tract purchased by the corporation, and which is surrounded by the lands of the corporation, is an improvement of the lands of the corporation. The building of the college certainly enhanced the value of the lands owned by the corporation, and in that sense improved them. But whether or not the charter conferred express power upon the corporation to build the college, still, within the decisions of this court, the corporation had power to build the college, or do anything else the direct and proximate tendency of which would be to improve the property of the corporation by enhancing its value, or to render it more desirable and salable. (Whetstone v. Ottawa University, 13 Kas. 320; Town Co. v. Russell, 46 id. 382.)
'We think this disposes of all the questions in this case. It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This is a proceeding in mandamus to compel the chairman of the board of county commissioners and the county clerk of Wichita county to issue to the plaintiffs the warrant of said county in the sum of $6,000. The plaintiffs claim they entered into the following contract with the commissioners of Wichita county:
“ This Contract, Entered into this 5th day of September, 1888, by and between Waters, Chase & Tillotson, attorneys at law, of Topeka, Kas., parties of the first part, and the board of county commissioners of Wichita county, Kansas, parties of the second part, witnesseth: That the parties of the first part, for the consideration hereinafter named, are to take and prosecute such legal proceedings as may be necessary to relieve the said Wichita county of any obligations that may have been incurred on account of an attempt heretofore made by the commissioners of said county to subscribe $80,000 to the capital stock of the Chicago, Kansas & Western Railroad Company, and also an attempt to subscribe $55,000 to the capital stock of the Denver, Memphis & Atlantic Railroad Company, whereby it is claimed that said Wichita county should execute and deliver to said railroad companies the bonds of Wichita county for the amount so attempted to be subscribed; that in consideration of the services above set forth, the parties of the second part agree to pay to the parties of the first part all their necessary traveling expenses incurred in such service, and $30,000, payable as follows: A retainer fee of $6,000, to be paid at the regular meeting of the board of county commissioners of Wichita county in October; and $12,000 when the courts finally decide that Wichita county is not liable on the attempted subscription to the capital stock of the Chicago, Kansas & Western Railroad Company; and $12,000 when the courts finally decide that Wichita county is not liable on the attempted subscription to the capital stock of the Denver, Memphis & Atlantic Railroad Company.
“ Done this 5th day of September, 1888, in the city of Leoti, Wichita county, Kansas.
(Signed)
Waters, Chase & Tillotson.
H. T. Trovillo, Chairman,
W. S. Temple, Chas. Sinn,
Crn~ty Commissioners of Wichita County.
“Order to be made record of on commissioners’ journal.
H. T. Trovillo, Chairman.”
That afterward, on October 1, 1888, the board of county commissioners in session allowed the claim of the plaintiffs in the sum of $6,000, that being the amount to be paid down on said contract as a retainer fee, and directed the clerk and chairman of the county board to issue the warrant of the county to the plaintiffs for that amount. The affidavit for the order of mandamus alleges that the said chairman and clerk refuse to issue said warrant, and plaintiffs ask this court, by its order, to require them to do so. The chairman of said board, answering, says he is ready to sign the warrant whenever prepared by the clerk of the board. The clerk answers and says, first, that the alleged contract is void because it was never made by the board of county commissioners, but was signed by the several commissioners each in the absence of the others, when not in session, and denies that the board ever ratified said contract ; and, second, that said contract is void because the board of county commissioners had no power to make it. Counsel for the defendant clerk also says in his brief that the claim of the plaintiffs must be enforced by an action, and not by a proceeding in mandamus.
The briefs in this case show some misunderstanding between counsel as to what was introduced in evidence on the hearing of this case. It is the recollection .of the commissioners that the county clerk produced and read in evidence the record of the board of county commissioners at their January, 1889, session, or so much of it as related to plaintiffs’ claim, which record showed that the board, at its January session, reconsidered the action of the board at the former October session, in allowing the claim of the plaintiffs, and rejected said claim. This evidence would probably show, as was argued by counsel for the plaintiffs, a ratification by the board of commissioners, at the October meeting, of the contract made by the commissioners individually September 5, 1888, by the allowance at that time of the plaintiffs’ claim for $6,000, provided for by said contract. Upon the theory, then, that the record was introduced, the case occupies in law exactly the position plaintiffs claim it occupies in fact by agreement, so that the misunderstanding as to the evidence is not material; for if the evidence was introduced, and showed among other things a ratification of the contract, it is the same in law as though it was agreed upon the trial of the case that the contract was ratified, as in either event the case turns upon the same question, to wit: Did the commissioners have power to make the contract in the case, or was the making of said contract ultra vires, and the contract itself void?
This case was before this court on a motion to quash the return of H. A. Platt, the county clerk, March 9, 1889. The question raised by that motion was practically identical with the question before the court now. The court denied the motion to quash at that time, in the following brief opinion: “Upon the authority of Clough v. Hart, 8 Kas. 487, the motion to quash will be denied.” The consideration named in the contract under which the plaintiffs claim, for which the $6,000 was to be paid, is legal services to be performed by the plaintiffs. There is nothing in the contract that shows whether such services were to be performed in the courts of Wichita county, or elsewhere. But as the contract was made in Wichita county, and simply provides for legal services for the county, without showing that such services are to be performed outside of Wichita county, the fair presumption is that they were to be performed within the county, and this presumption is supported by the fact that the legal services actually performed by the plaintiffs under the contract consisted in bringing certain suits in the district court of Wichita county. The law provides an officer whose duty it is to conduct legal proceedings in behalf of the several counties of Kansas, in the persons of the county attorneys of said counties. This court, in the case of Clough v. Hart, supra, used the following language :
“ Where a written contract between a county and an individual shows upon its face that it was made by the county for the' professional services of the individual as an attorney or counselor at law, which services are such as the law requires to be performed by the county attorney j such contract is prima facie void.”
We think the contract in this case falls within the rule laid down in that case, and that the writ now prayed for should be refused, upon the law of that case. (See also, Morrill v. Douglass, 14 Kas. 294.)
We recommend that the writ be refused.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton C. J.:
This is an action of mandamus by the state of Kansas, upon the relation of the board of regents of the state normal school, at Emporia, against S. G. Stover, the state treasurer, to compel him to pay to the treasurer of the board $1,700 upon its written order, from interest in his hands, on the state normal school .fund. The state treasurer refuses to pay the order presented, and also refuses to pay any other order of the board of regents, upon the ground that there has been no appropriation by the legislature of any moneys accruing from the interest of the state normal school fund, as required by the constitution of the state. Section 24 of article 2 of the constitution ordains, “that no money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law; and no appropriation shall be for a longer term than two years.” The sole question in this case is, whether the interest of tbe state normal school fund can be disbursed by the treasurer of the state upon the orders of the board of regents of the state normal school without an appropriation by the legislature. In 1863, the legislature of the state established and permanently located at Emporia a state normal school. At the same time it set apart and reserved as a perpetual endowment for the support and maintenance of the normal school certain lands granted to the state by the fourth subdivision of the third section of the act of congress admitting Kansas into the union. (Laws of 1863, ch. 57; ¶¶ 6310, 6312, Gen. Stat. of 1889.) In 1872, the legislature passed an act providing for the sale of lands belonging to the normal school. Section 4 of that act provided: “All moneys derived from the sales of lands under the provisions of this act, both principal and interest, less the amount of commissions allowed by the board of directors for the sale thereof, shall be paid into the state treasury, where it shall constitute the ‘state normal school fund/ for said institution.” (Laws of 1872, ch. 189; ¶ 6333, Gen. Stat. of 1889.) In 1886, the legislature granted to the. normal school a further endowment of 12 sections of land. (Laws of 1886, ch. 156.) In 1879, the legislature enacted the following provision: “All moneys belonging to the . . . state normal school fund . . . shall be deposited with and paid to the state treasurer, and be subject to the order of the board of school-fund commissioners.” (Laws of 1879, ch. 166, §49; ¶6594, Gen. Stat. of 1889.) Sec. 117 of ch. 166, as amended by the Laws of 1883, ch. 143, § 1, now reads:
“Said board of commissioners shall have the power, and it is hereby made their duty, from time to time to invest any moneys belonging to the . . . state normal school fund, ... in the bonds of the state of Kansas or of the United States, school-district bonds of the several school districts of the state of Kansas, bridge, court-house bonds, or in county, township, or city refunding bonds of the several counties, townships and cities of the state of Kansas.” (Gen. Stat. of 1889, ¶ 6654.)
From the provisions of § 4, chapter 189, Laws of 1872, and §49, chapter 166, Laws of 1879, we are of the opinion that all moneys derived from the sale of the lands of the normal school, both principal and interest, less the commissions for the sales of the lands, are expressly required to be paid into the state treasury. These sums constitute “the state normal school fund.” The interest on this fund, which the board of regents, through its president and secretary, now desire to draw from the possession, of the defendant, who is the treasurer of the state, is rightfully in his hands as state treasurer. It is therefore rightfully in the state treasury. If it is in the state treasury, and rightfully there, then it can- » ,. ■ n not be drawn therefrom except in pursuance of an act of the legislature specifically authorizing the same to be done. (Martin v. Francis, 13 Kas. 220.)
There was no appropriation made at the late session of the legislature for the payment of the class of orders or warrants issued to the state treasurer by the president and secretary of the board of regents. As the interest, as well as the principal, of the state normal school fund is rightfully and legally in the state treasury, the state treasurer has no lawful power, under the provisions of the constitution of the state, to honor or pay the order drawn upon him. It is contended, however, that the language of § 4, chapter 189, Session Laws of 1872, and of §3, chapter 156, Laws of 1886, which authorizes the interest of the school fund to be subject to the order of the president and secretary of the board of regents, and permits them to use the same as the needs of the school shall require, make the state treasurer the agent of the board of regents, and that the interest derived from the state normal school fund is to be held by the state treasurer as the agent of the board, not otherwise. The statute, however, expressly provides that the interest, as well as the principal, “shall be paid into the state treasury;” not that it shall be paid to the person holding the office of state treasurer, or to the agent of the board of regents. The provision in the statute for the board of regents to use the interest for the support and maintenance of the state normal school must be read in connection with the provisions of the constitution of the state, and the use by the board is subject to the limitations prescribed in the constitution. (Const., art. 2, § 24.)
The contention that the board of regents; under the statute, has the power to use the interest on the state normal school fund without an appropriation by the legislature, is disposed of by the decision in Martin v. Francis, supra. The legislature, in 1871, by chapter 39, §17, provided for the creation of an insurance fund out of the fees to be paid to the state superintendent of insurance, and also provided that the fees should be paid into the state treasury by the superintendent of insurance when collected. In another section of the same act, it was provided that the expenses of the insurance department should be paid out of the insurance fund upon the order of the superintendent of insurance. This court, in construing this statute, decided that, although it expressly stated that the expenses of the insurance department were to be paid out of the insurance fund upon the order of the superintendent of insurance, they could not be so paid except in pursuance of an act of the legislature specifically authorizing the same to be done. The language referred to in chapter 189, Laws of 1872, and chapter 156, Laws of 1886, as to the use of the interest of the normal school fund by the board of regents, is similar to the language of the statute of 1871 concerning the use of the insurance fund by the superintendent of insurance. The construction given by this court to the statute of 1871, relating to the insurance department, and § 24 of article 2 of the constitution of the state, if followed in this case, forbids the board of regents to use the interest of the normal school fund rightfully in the state treasury, except in pursuance of an appropriation by the legislature, passed within two years prior thereto. We have no disposition to reconsider or change the decision in Martin v. Francis, supra.
Again, it is contended that, as the legislature in 1877 expressly enacted “that no appropriation should be made for the state normal school in the future;” and again enacted in 1886 “that the legislature would notin the future appropriate anything for salaries or incidental expenses for the state normal school,” these expressions of the legislature are controlling in favor of the board of regents using the interest on the state normal school fund without any specific appropriation, as, in the absence of an appropriation, the school cannot be successfully carried on without the use of the interest. These provisions of the legislature are not binding upon any subsequent legislature, and in fact the subsequent legislatures have regarded them “ more in the breach than in the observance.” In 1879, the legislature appropriated $25,000 for the purpose of rebuilding the state normal school. In 1885, the legislature appropriated moneys to the school, not only for fuel, water, gas, and repairs, but also for furniture, mathematical and chemical apparatus, for designs for the drawing department, etc. In 1891, the legislature appropriated for the school for the years of 1891, 1892, and 1893, in addition to the money provided for fuel, water, gas, and permanent improvements, over $2,000 for incidental expenses. But even if the legislature had said, or had intended to say, that the board of regents could use the interest of the state normal school fund, which, under the statute, was rightfully in the treasury of the state, without any specific appropriation, such an act would be in violation of the constitution, and void. "We have fully considered the practice which has prevailed so many years between the board of directors or regents of the normal school and the state treasury department, in allowing orders to be drawn and paid out of the state treasury without any special appropriation; but the practice of the school and state officials cannot be sustained, if contrary to the provisions of the constitution. That is the paramount law. Section 24 of article 2 of the constitution is clear and emphatic in its terms. It has already been construed by this court.
Finally, it is suggested, not very strongly, however, that, on account of the provisions of the several acts of the legislature referred to, there is a contract executed between the state and state normal school, whereby the endowment of the lands, together with the proceeds thereof, are in the nature of an absolute donation or grant which cannot be repealed, changed, or impaired; that neither the state nor the legislature has any control whatever over the endowment fund, whether it be principal or interest, and that the officials of the state normal school have the exclusive authority to use for its support and maintenance all the funds of the institution. The complete reply to this suggestion is, that the state normal school is not a corporation de jure or de faeto. It has never organized, or attempted to organize under the statutes relating to corporations. The legislature has no authority to pass any special act conferring corporate powers, and has not attempted to do so, so far as the state normal school is concerned. The governing board of the school is appointed by the governor and confirmed by the senate. No action affecting the normal school, its property, or its endowment, can be prosecuted in the name of the normal school, but such actions are to be prosecuted in the name of the state. (Laws of 1877, ch. 179; Gen. Stat. of 1889, ¶¶ 6358-6361.) The state normal school is under the control of the legislature, and is not a separate or independent corporation. It is a part of the great public school system of the state, and, as a part of that beneficial system, is entitled to the generous support and liberal maintenance of the people. It is unfortunate that the attention of the late legislature was not expressly called to the necessity of a special appropriation, so that the interest on the state normal school fund could be used as the wants and needs of the institution demand. This seems to have been overlooked, and has been overlooked by the state and school authorities for many years. The provisions of the state constitution, however, are now invoked by the attorney general and the state treasurer, both state officials having responsible duties and powers, against the further payment of any order of the board of regents, until an appropriation is passed. We are called upon to say whether the provisions of the constitution, which is the paramount law, forbid further payments. We think they do, and must therefore hold that the interest on this school fund cannot be disbursed by the state treasurer without an appropriation by the legislature. We regret the unfortunate condition in which this decision may temporarily leave the normal school, which has been so successful in its operations, and so beneficial in its influences; but whatever the present consequences may be, we perform a single and unmixed duty in declaring our views upon the matters submitted. We cannot do otherwise. The constitution is the supreme law, and the acts of the state and school officials must be in obedience to its provisions.
The writ prayed for will be denied.-
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The mortgage which was foreclosed was dated the 18th of March, 1887. J. L. Beverly purchased the premises mortgaged on the 25th of April, 1887, and assumed the payment of the mortgage. He was therefore the owner of the premises subject to the mortgage lien, and entitled to the possession of the same. When the action was commenced by Wm. Fairchild and John Higginbotham, on the 22d day of September, 1888, to foreclose the mortgage and obtain personal judgments, Beverly was a necessary party defendant in the foreclosure proceedings. It was decided by this court long ago that, in an action to recover upon a note and foreclose a mortgage given to secure the same, no indorsement was required on the summons, it not being an action for the recovery of money only. (Civil Code, § 59; George v. Hatton, 2 Kas. 333; Weaver v. Gardner, 14 id. 347.) Therefore, we think in this case, considering the action and the judgment rendered, that the failure to indorse the summons did not make the judgment void. (Simpson v. Rice, 43 Kas. 22; Friend v. Green, 43 id. 167.)
If the plaintiffs in the original action had wholly disregarded the mortgage, and brought their action against Beverly only upon his promise to pay the notes secured by the mortgage, the action might then have been considered one for money only, and in such a case an indorsement of the summons would have been necessary; but such was not the action which was commenced.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal question for determination in this case is whether W. W. Guthrie, the alleged purchaser of the land or lot described in the petition, can be compelled to pay the balance claimed to be due upon the written memorandum, dated March 3, 1888, and signed, “N. Anderson” and “Sophie Anderson.” It appears from the evidence that Mr. Guthrie prepared, or caused to be prepared, the memorandum. It is an executory agreement upon the part of Anderson and wife, and not a completed contract, like a deed executed and delivered. It concerns the sale of land, and is not signed by Mr. Guthrie, but by Anderson and wife only, the owners of the lot. Soon after the signing, Guthrie paid the Andersons $200, but has never taken possession of the lot, or accepted any deed. When the Andersons were ready to tender the deed he refused the same, and also refused to take possession of the lot. Section 6 of the act for the premention of frauds and perjuries provides that no action shall be brought to charge any person upon any contract for the sale of lands, tenements, or hereditaments, or 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 authorized. The agreement or memorandum referred to in the petition, although in writing, is not signed by the party sought to he charged in this action. The objection that the action cannot be maintained upon the writing or memorandum against Mr. Guthrie is, therefore, well taken. To hold a party, in an action upon # x J 1 any writing or memorandum for the sale of land, or concerning the sale of land, he must have signed or authorized the same to be signed. The party charged in the action is the one who must have signed. It was said by this court, in Becker v. Mason, 30 Kas. 701, referring to contracts or memorandums for the sale of or concerning lands, that—
“ It will be seen that the statute does not attempt to make parol contracts concerning real estate void, but simply provides in substance that no party shall be ‘charged’ upon them, unless the contract, or some note or memorandum thereof, has been reduced to writing ‘and signed by the party to be charged.’ The statute merely relates to the proof of the contract — providing in substance that the contract must be proved, if proved at all, by some written note or memorandum of the contract, signed by the party to be charged, which party is generally the defendant in the action. . . . The contract necessarily embraces two parties, each contracting with reference to the real estate — either of whom may be charged upon the contract, if the contract or some note or memorandum thereof is reduced to writing and signed by such party.”
Ross v. Allen, 45 Kas. 231, was an action for specific performance against Ross, brought by Allen to compel him to pay the purchase-price of certain lots which it was alleged had been bought by him, and $100 paid thereon. In that case, the receipt or memorandum was signed by J. M. Allen, agent. Allen was in fact the agent for his wife, Mrs. Allen, the owner of the lots. Judgment was rendered in the district court in favor of Allen and against Ross, decreeing a specific performance of the contract, and requiring Ross to pay the balance of the purchase-price of the lots. This court reversed the judgment for various reasons, among others, that “the memorandum is not signed by Ross, nor by anyone for him, and the omission of this essential is of itself sufficient to defeat the maintenance of the action.” If the Andersons desired that Mr. Guthrie should be charged by the writing or memorandum, they should have required him or his agent to have signed the same. The Andersons, who signed the writing or memorandum, are bound thereby, and could not set up the statute in bar. Mr. Guthrie is not bound, because neither he nor his agent signed, and therefore he can plead the statute. At one time it was a serious question whether the courts would specifically execute a writing or memorandum concerning lands,, where one party only was bound, that is, where only one party had signed. It was held by some of the courts that in such a case, the writing or memorandum not being mutually binding, one party ought not to be at liberty to enforce at his pleasure an agreement which the other was not entitled to claim. But the authorities now agree that where an action is brought upon a writing or memorandum for or concerning the sale of land, if the party sought to be charged in the action signed the same by himself or agent, he is liable thereon, and he cannot successfully plead as a defense that the plaintiff has not signed. To the party sought to be charged, who has signed, the statute is no defense. (Hawkins v. Holmes, 1 P. Wms. 770; Clason v. Bailey, 14 Johns. 484-489; Justice v. Lang, 42 N. Y. 493; Fry, Spec. Perf., §497; Waterman, Spec. Perf., §239; Rogers v. Saunders, 16 Me. 92; Sams v. Fripp, 10 Rich. Eq. 447.)
In several of the states, like Wisconsin, the statute differs from ours. In Wisconsin, and some other states, the contract is required to be subscribed by the party by whom the sale is made. Therefore the decisions in Wisconsin and the states where the statute differs from ours are not applicable. Several decisions are cited by the counsel for plaintiff below, to the effect that a parol agreement by the vendee of land to pay the purchase-price or consideration mentioned in the deed is binding although not in writing. The case of Nutting v. Dickinson, 8 Allen, 542, is one of those. In that case the defendant accepted the deed, thereby obtaining full title to the premises conveyed, and the contract was wholly executed upon the part of the plaintiff, who sought to recover the consideration of the deed. In such a case, the promise of the vendee is not within the statute.
“The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing, signed only by the lessor, makes it a written contract binding upon such lessee; and a suit can be instituted on it, and the same rights be maintained as though it were also signed by the grantee.” (Schumaker v. Sibert, 18 Kas. 104; Wood, Frauds, §§ 222, 223; Worrall v. Munn, 5 N. Y. 229; Wilkinson v. Scott, 17 Mass. 249; Davenport v. Mason, 15 id. 85.)
Where a deed or lease is executed and delivered, the seller or lessor has fully completed his part of the contract, and the purchaser or lessee has not only the written deed or lease in his possession, but also has possession or right of possession of the land deeded or leased. (See, also, Aiken v. Nogle, ante, p. 96.) In Gartrell v. Stafford, 12 Neb. 545, the action was by the vendee against the vendor for a specific performance of an alleged contract for the conveyance of real estate. The vendor, Mrs. Stafford, had signed certain letters agreeing to sell. Therefore, in that case, as has been frequently decided in other cases, she was bound, because she had signed the let ters or agreement and was the party to be charged. The court in that case, however, did not decide that where the vendee does not sign the writing or memorandum the vendor can enforce the writing or agreement which he has signed. The authorities are also to the effect that, where possession is taken or other part performance had by the purchaser or vendee, such acts may take the case out of the operation of the statutes. But this case does not come within that class. The mere payment of $200 by Mr. Guthrie to the owners of the lot described in the petition is not part performanee. His refusal to complete the contract after paying part of the purchase-money is no fraud upon the sellers, but his loss. (Fry, Spec. Perf., § 567.)
Upon the trial, the court charged the jury that—
“A contract for the conveyance of real estate is not binding and valid unless the same is reduced to writing or some memorandum thereof, and signed by the parties to be charged therewith. The signing of the contract, however, need not be at the end of the contract, and it need not be formal. It may be at the beginning or in the body of the contract by one party, ánd signed at the end by the other. Such a contract, if the insertion of the name at the beginning or in the middle or any part of the contract is intended by the party or parties as the signature of said party, then said contract would be as binding as if the signature had been made at the end of said contract, if such signing is done in a manner and under such circumstances as to authenticate the contract as the contract of such parties so signing. And in this case, if the said Guthrie so inserted his name or caused the same to be inserted in the body of the contract with the intention of binding himself thereby, and intended to be as a signature, or intending to lead the plaintiff to believe that he was bound thereby, in either case the contract would be in compliance with the statute of frauds, and would be a contract in writing signed by the party to be charged therewith. You are further charged that, if in this case you find that the defendant, W. W. Guthrie, prepared the contract, or caused the same to be prepared upon a type-writer, and caused his name to be written therein as a party to said contract, this will operate precisely the same as if he had written the contract himself and written his own name therein.”
The jury, among others, made the following special findings of fact:
“Q,ues. 10. Was any agreement, memorandum or note in writing of the contract, upon which plaintiff claims in this action, signed, other than by the plaintiff and his wife? Ans. Yes.
“Q,. 11. If No. 10 is answered in the affirmative, then state where such signing is found to have been done and by whom and on what account? A. Such signing is found in the body of the contract, by direction of said Guthrie.”
The portions of the charge of the court referred to are inapplicable to the evidence introduced, and the foregoing special findings of the jury are unsupported by the evidence. The writing or memorandum was prepared, or caused to be prepared, by Mr. Guthrie, and his name appears in the body of the instrument as the party to whom the Andersons agreed to sell. But this is not equivalent to the instrument being signed by Mr. Guthrie. The rule is stated in Wood on Frauds, § 22, p. 61, as follows:
“In all cases, the signature must be such as amounts to an acknowledgment by the party that the agreement is his; consequently, if it is not signed by him or his agenb authorized as provided by the statute, although it is wholly in his handwriting, and his name appears in the body of the instrument, it is not sufficient to satisfy the statute.”
Waterman on Specific Performance says that “when the name of the party is introduced in the body of the instrument as one of the terms of the agreement — as, in the memorandum for a lease, in the words, ‘the rent to be paid to A./ it does not amount to a signature by A.”
In the case of Caton v. Caton, L. R., 2 H. L. 127, Lord Westbury says: “If a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum.” (See, also, Fry, Spec. Perf., §§ 503-506; Stokes v. Moore, 1 Cox, 219; Hawkins v. Holmes, 1 P. Vms. 770.) If Mr. Guthrie had signed his name at the bottom or the top or anywhere upon the memorandum after it had been written or prepared, or directed his name to be so written for acknowledgment, then it might be held that such a signature would satisfy the statute. But his name only appears (except as hereinafter referred to) in the body of the instrument as one of the terms or a part thereof;. therefore the charge of the court was not only misleading but prejudicial, and the findings of the jury based thereon cannot be sustained.
Finally, it is claimed that Mr. Guthrie signed the memorandum, because in paying the $200 he gave his agent, Mr. Storch, a check which reads as follows:
“Atchison, Kas. March 3, 1888.
“$200. ‘ ■ No. 17.
“United States National Bank. — Pay to Geo. Storch or order two hundred dollars.
[Signed] W. W. Guthrie.”
"Writtenacross face: “Lot 8, block 39, O. A.”
This was indorsed on the back by Geo. Storch, and delivered to the Andersons. The Andersons collected the $200 — the amount of the check. Mr. Storch was the president of the bank upon which the check was drawn. He was acting for Mr. Guthrie, and the check was payable to his order, not to the order of the Andersons. It was not a writing or memorandum to be kept or retained by the Andersons or by Storch, the payee, but it was an order or check upon Mr. Guthrie’s deposit in the United States National Bank, returnable to him in the usual course of banking business, after it had been paid, when he should settle with the bank concerning his account therein. Mr. Guthrie testified about this check, as follows:
“This memorandum of Got 8, block 39, O. A.,’ [upon the check] I put there for the purpose of identifying it; this was another party’s matter, and I had drawn the check for $200 because Mr. Parker was not in the city, and to identify what it was for I put this on the face of it, and that is the reason why it was put there; neither of the indorsements was put there for any other purpose than as a memorandum to identify the paper in any further use of it.”
The signing of the cheek, with the words and figures “ lot 8, block 39, O. A.,” written across the face thereof, was not the signing of the memorandum executed by the Andersons. The words and figures seem merely to have been used to indicate to Mr. Guthrie the purpose for which he gave the check. The indorsement on the back of the written memorandum of March 3, 1888, by Mr. Guthrie was after the same had been delivered to him, and was put thereon by him when placing it among his papers or files as marks of identification — not as an acknowledgment, or as any authentication.
The judgment of the district court must be reversed, and the cause remanded.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The appellant, who is a division roadmaster of the Atchison, Topeka & Santa Fé Railroad Company, was convicted in the district court of Allen county for willfully obstructing a public highway. The particular-act of obstruction consisted of fencing up a county road that-was located and opened across the track of the Southern Kansas Railroad Company, afterward the Atchison, Topeka & Santa Fé Railroad Company. The alleged offense was charged to have been committed on or about the 10th day of February, 1890. The case was tried by the court, a jury being waived. The road was established by an order of the board of county commissioners of Allen county made on the 4th day of January, 1887, and on the same day the road was ordered opened. It is not claimed or pretended, up to this time, that the Southern Kansas Railroad Company had any notice of these road proceedings, but on the 21st day of March, 1888, the following letter was received by the county board:
“The Southebn Kansas Railway Company.
Tbaok, Bbidge and Building Depabtment.
Lawrence, Kas., March 21, 1888.
“To the Board of County Commissioners, Allen County, Iola, Kas. :
“Gentlemen — In reference to the opening of the county road on the east and west J line of section 15, township 25, range 18, Allen county, I met the viewers, Messrs. McCurley, Moon, and DeWitt, on February 29, as stated in the notice. It was there agreed that the Southern Kansas Railway Company should present to your board an application for damages, caused by the opening of above road over the rightTof-way of said S. K. Rly. Co.
“Inclosed you will find such an application.
Yours truly, M. N. Wells, Engineer.”
Accompanying this letter was a claim for damages in these words:
“application eor damages.
“To the Board of County Commissioners, Allen county, Kansas, engaged in laying out a road on the east and west quarter line of section 15, township 25, range 18, in Allen county,
Kansas, petitioned for by-and others:
“Gentlemen — The Southern Kansas Railway Company respectfully claims $249-/^- as its damages and compensation on account of laying out said road across the railroad track and right-of-way 100 feet wide of said company in the east half of section 15, in township 25 south, range 18 east of the 6th principal meridian, in Allen county, Kansas.
“Dated this 21st day of March, 1888.
The Southern Kansas Railway Company.
By M. N. Wells, its Agent, Engineer.”
It was shown by the journal of the board of county commissioners, and by a record of county warrants issued, that in July, 1888, an allowance was made and warrants issued to the Southern Kansas Railroad Company for land taken and for fencing, crossing, etc., of this county road. This application for damages filed by the railroad company gave the board of county commissioners jurisdiction of the subject-matter, and of the railroad company, the same as if the notice required by the road law had been regularly served, and such jurisdiction relates back to the commencement of the proceedings. (Comm’rs of Woodson Co. v. Heed, 33 Kas. 34, and cases cited.) It is sought to evade the curative effect of the presentation of this claim for damages, by an attempt to make it appear that the talk between viewers and the engineer of the company that preceded the presentation of the claim referred to the crossing of a state road in the same section, but as that road was located and opened before the railroad was built, and as it was the duty of the railroad company to establish the crossing and restore the state road at the point of crossing to its natural condition, we are not impressed favorably with such an explanation. It is also claimed that the claim was merely an estimate, originating in an attempt to compromise differences, and not a deliberate act of presentation for the purposes of compensation. This contention is partially supported by the evidence of Wells, the engineer of the railroad company, but the drift of all the other facts is against it, and they are sufficient to support the judgment of the trial court. This appears to us to be a sufficient answer to the contention of the plaintiff in error, that, in order to sustain a conviction, it must be shown that there was a public road legally laid out.
The next query is, whether or not the railroad company was served with notice to open the road across its track for public travel. On the 9th day of February, 1889, the following notice was served on one J. S. Turner, the ticket agent of the railroad company at the depot of said railroad company at Iola, Allen county, to wit:
“To the Southern Kansas Railway Company: The road petitioned for by R. L. Thompson and others, and which runs through a portion of your lands, to wit: Commencing at the southwest corner of the northeast quarter of section 16, town 25, range 18, and running thence east 1-J miles, and ending at the northeast corner of the southeast quarter of section 15, town 25, range 18, situated in Iola township, Allen county, Kansas, was, on the 4th day of January, 1887, duly established by the board of county commissioners of said Allen county; and said board has ordered the trustee of said township to cause said road to be opened to public travel. You are therefore notified to open said road through your said lands, as surveyed and marked by the county surveyor of said county under the direction of the viewers of said road, within 90 days after the service of this notice on you, or it will become my duty to enter, or to depute some one to enter, upon said lands and open said road.
“Witness my hand, this 9th day of February, 1889.
D. C. Neer, Road Overseer
of District No. 6, of Iola Township, Allen County, Kansas.”
It appears from the evidence of Turner that the Southern Kansas Railway Company ceased to operate the road on the 1st day of May, 1888, and from and after that time it was operated by the Atchison, Topeka & Santa Fé Company; so that the technical point is made on this state of facts, that the latter company was not served with the 90 days’ notice required by the road law to be given to owners to open the road. The only change in the transaction of business testified to by the agent of the Southern Kansas, who continued to be the agent of the Santa Fé, was in the name of the company operating the road, and this objection is not sufficient for the purpose urged. After the expiration of 90 days from the service of this notice, the road overseer of the district in which the county road crossed the railroad track made a crossing over the track, the balance of the road having been opened for nearly two years; and this defendant, acting under the orders of his superior officers, rebuilt the fences enclosing the right-of-way of the railroad company, and removed the crossing made by the road overseer. From June 20, 1872, to April 25, 1874, the notice prescribed by § 12, chapter 108, Laws of 1874, (¶ 5485, Gen. Stat. of 1889,) was required to be in writing. (Laws of 1872, ch. 175, § 5.) But since April 25,1874, up to the present time, it has not been necessary that the notice should be in writing. (Wilson v. James, 29 Kas. 249.) After the road was established, the allowance of the damages presented by the Southern Kansas Railway Company, and the opening of the road by the overseer, even if the notice to open such road was defective or irregular, we do not think that it could thereafter be legally obstructed.
On the state of facts presented by this record, we think the judgment of conviction was right, and recommend its affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action for damages, commenced in the district court of Finney county, by Samuel A. Temple against the Atchison, Topeka & Santa Fé Railroad Company. The plaintiff alleged that on the 21st day of March, 1887, he shipped over the defendant’s railroad, from Kansas City to Pierceville, Kas., a bay mare and three mules; that a written contract for the transportation of the stock was made, a copy of which was attached to his petition; that the railroad company broke the contract by negligently and violently striking the car in which the stock was being transported against another car, and thus throwing the animals together upon the floor of the car and injuring them, resulting in the death of the mare and the crippling of the mules; that the condition of the stock was made known to the agent of the railroad company at Pierceville while they were in the car at the station; that the agent inspected the stock, and consented and requested that the mare and mules be removed from the car, and, after such removal and before they had been intermingled with other stock, inspected the injured animals; and. that, before bringing suit and after the death of the mare, written notice was given to the defendant, through its agent, of the plaintiff’s claim for damages. The contract of shipping contained the following condition:
“And for the consideration before mentioned, said party of the second part further agrees that, as a condition precedent to his right to recover any damages for loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before said stock is removed from place of destination above mentioned, or from the place of delivery of the same to said party of the second part, and before said stock is mingled with other stock.”
The defendant filed a general denial, and for a further de fense alleged that the plaintiff had not complied with the condition precedent in the contract for transportation, requiring written notice of the claim for damages. The defendant filed a demurrer to the plaintiff’s evidence, which was overruled. No evidence was introduced upon the part of the defendant. The jury returned a verdict for the plaintiff for the sum of $345. A motion for a new trial was overruled, and judgment was rendered on the verdict.
The plaintiff in error brings the record here for review, and the principal assignment of error is, that there was not such a substantial compliance with the condition precedent, as to a written notice of a claim for damages under the contract, as to entitle the plaintiff to recover. Complaint is made that the court refused certain instructions asked for by the defendant in error, to the effect that if the plaintiff did not give a written notice of his claim for damages to some officer of the railroad company, or its nearest station agent, before the stock was removed from the place of destination or place of delivery, and before they were mingled with other stock, that then their verdict should be for the defendant. Further, that if they should find from the evidence that the plaintiff did not serve upon the defendant a written demand for damages for injury or loss of the mare in question until April 7,1887, after the death of the mare and her removal from the place of destination or delivery, or after the animals had mingled with other stock, then their verdict should be for the defendant. We think the instructions requested were properly refused. Upon this branch of the case the court instructed the jury as follows:
“You are instructed that the railroad company has a right to limit their responsibilities to the owners in the carrying of stock or goods by a special contract, so long as the limitation does not affect their liability on account of negligence or misconduct. Plaintiff further alleges that the animals were removed from the car in which the injury was sustained by the advice and with the knowledge and the consent of the employés of the defendant prior to the time that written notice was given of any claim of damage because of said injuries. Should you find from the testimony that the animals were so removed, and that the mare died from the injuries so received, and that the mules were injured so as to be depreciated in value, and that the death of the mare and the injuries to the mules were caused by the carelessness and negligence of the agents and servants of the defendant company, and that the company had a good, fair and reasonable opportunity to examine and inspect all of such stock, and to know of its condition after it was removed without unreasonable inconvenience, you will then find that the service of the notice of application for damages was 'made in due time, and that the company is not absolved from liability because of the fact that the written notice introduced in the testimony was not served upon the station agent or other employé of the company named in said contract prior to the removal of the stock from the car at the place of destination. The purpose of such notice is that the company may have a fair and reasonable opportunity of examination and inspection of the condition of the live stock transported under its management before it shall be placed beyond its reach or beyond the possibility of certain identification.”
The court stated the law correctly. The plaintiff in error seems to rely upon the cases of Goggin v. K. P. Rly. Co., 12 Kas. 416, and Sprague v. Mo. Pac. Rly. Co., 34 id. 352. In the former case, no written notice was given for more than a year after the cattle were injured; and in the latter case, no notice was given before suit was commenced. In the case before us, written notice was given within a few days after the stock arrived at Pierceville, and before the mules were taken from the place of destination. While the carrier may stipulate by contract that notice of a claim for damages shall be given within a specified time in order to be valid, still the construction upon such stipulations must be reasonable, and adapted to the circumstances of each case. (3 Am. & Eng. Encyc. of Law, 15.) This court said, in the case of Goggin v. K. P. Rly. Co., supra:
“Of course, it is not understood that by the phrase ‘before or at the time the stock is unloaded/ that it must be the identical moment, but so immediately that the object sought by the notice can be attained. Nor would such notice be reasonable in the case of an ordinary shipper who did not accompany and superintend his stock, nor would it probably prevent a recovery for injuries sustained which could not readily be seen, and actually should not be discovered till the time of giving notice had expired.” (Rice v. K. P. Rly. Co., 63 Mo. 314; Oxley v. St. Louis &c. Rld. Co., 65 id. 629.)
It is claimed that the court erred in permitting a witness for the plaintiff to testify to a conversation had with some employé of the railroad company at Argentine, where it seems the stock was injured. In this conversation the employé told him how the accident had occurred; that there had been a jam and the stock had been injured. The evidence may not have been competent, but we fail to see how the railroad company was prejudiced. It was established that the car and stock were in good condition at Kansas City. When next seen at Argentine, the mare and mules were injured and the car damaged. There was no controversy about there having been an accident, and the statement of the employé of the railroad company was immaterial error. We need not notice the other errors, as they are of the same nature.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
It appears from the record in this case that a direct contempt of court was made by the petitioner in the presence of the court. It was said in The State v. Henthorn, 46 Kas. 613, that—
“ When the contempt sought to be punished is committed in-facie curice, the punishment is summary, and generally immediately following its commission. In such case no preliminary process or evidence is necessary, except what is gathered by the sense of seeing and hearing. The court takes judicial notice of the offense, and punishes without a hearing of any kind, except in some cases to give the guilty parties an opportunity to apologize, upon which the court may discharge, or it may receive the apology in mitigation of the offense in fixing the punishment.”
Subsequent proceedings were taken before the probate judge of Kingman county, but as that court has original jurisdiction in habeas corpus cases, if the district court has in any man ner violated its order, this is not the proper court, upon the case as submitted to consider or determine that matter. It is clearly evident that the district court had jurisdiction, and properly performed its duty in punishing the petitioner. When the attention of the probate judge is called to the proceedings before the district court against the petitioner, and our opinion concerning the validity of such proceedings, he will undoubtedly dismiss the case of the petitioner, now pending before him in the habeas corpus matter.
The petition will be denied and the prisoner remanded. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 2d day of February, 1889, Allen Barber and Frank Seichpine recovered a judgment against the Leavenworth Coal Company for $65 and costs, taxed at $72.20. The coal company excepted to the judgment, and on February 20, 1889, the case-made was duly settled and signed by Hon. Robert Crozier, judge of the district court of Leavenworth county. On the 20th of March, 1889, the coal company filed a petition in error in this court, and also a praecipe directing the issuance of a summons thereon.
A motion has been submitted by the plaintiffs below to dismiss the proceedings in error, under the provisions of chapter 245, Laws of 1889. (Civil Code, §542a; Gen. Stat. of 1889, ¶4642.) Chapter 245 was approved on March 2, 1889. Section 2 provides that “ This act shall take effect and be in force from and after its publication in the official state paper.” The act was published in the official state paper on the 20th of March, 1889, the same day as that upon which the petition in error and praecipe were filed in this court. The question therefore arises, whether the day of the publication is included or excluded, as the act provides that it shall take effect “from and after its publication.” And also, the further question arises, if the day of publication is to be included, not excluded, at what precise time on the 20th of March, 1889, did chapter 245 go into force. Undoubtedly the great weight of authority is to the effect that a statute which is to take effect “from and after its passage” takes effect upon the day of its passage. (Arnold v. United States, 9 Cranch, 104; Matthews v. Zane, 7 Wheat. 164, 211; Mallory v. Hiles, 4 Metc. (Ky.) 53; People v. Clark, 1 Cal. 406.) The reason usually assigned for this is, that it is in accordance with the general rule that when a computation of time is to be made from an act done, the day on which the act is done is to be included. (Arnold v. United States, supra; Mallory v. Hiles, supra.)
In Dougherty v. Porter, 18 Kas. 206, Mr. Justice Brewer approvingly cited Soldiers’ Voting Bill, 45 N. H. 618, where it is held “that in the computation of time from a date, or from the day of a date, the day of the date is to be excluded; but that where a computation is to be made from an act done, or from the time of an act, the day in which the act is done is to be included.” To like effect are the cases of Jacobs v. Graham, 1 Blackf. 391, and Chiles v. Smith’s Heirs, 13 B. Mon. 461. In the latter case the court says:
“ It was decided by this court in the case of Woods v. Patrick, Hardin, 457, that in calculating the 30 days which were required by the statute to intervene between the lodging of the order and the commencement of the next term, to entitle the party to a change of venue, the day of depositing the order should be included. So, where process is required to be served a certain number of days before the term, the day on which the process was executed is reckoned as one of the days in the computation of the time.”
Applying this rule, and the day of filing the reply and joining the issues, the day of an act done will be included. The authorities which rule that, where a statute provides it shall take effect “from and after its passage,” or “from and after its publication,” the date of its passage or publication is to be excluded, assent to the doctrine that a day is to deemed an indivisible point of time, and therefore that the fractions of a day must be disregarded. Under these authorities, the words, “from and after its passage,” or “from and after its publication,” are words of exclusion, and this construction is largely given to the word “from” so as to avoid the old, harsh rule that a statute taking effect on the day of its passage or publication is to be deemed in force from the earliest moment of that day. These authorities also hold, that there is usually no satisfactory means of ascertaining the exact hour of the passage or publication of the statute; hence, that it is public policy to hold that a statute shall not go into operation until the day after its passage or publication. (Parkinson v. Bradenburg, 35 Minn. 294.)
We are not in sympathy with the decisions ruling that courts of justice must not take cognizance of the fractions of a day. Lord Mansfield said:
“But though the law does not in general allow of the fractions of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour of the day may not be so too, when it is necessary and can be done; for it is not like a mathematical point which cannot be divided.”
In Louisville v. Savings Bank, 104 U. S. 469, Mr. Justice Harlan, speaking for the court, uses the following language:
“In view of the authorities, it cannot be doubted that the courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. In determining when a statute took effect, no account is taken of the time it received the sanction of the two branches of the legislative department, which sanction is as essential to the validity of the statute as the approval of the executive. We look to the final act of approval by the executive to find when the statute took effect, and, when necessary, inquire as to the hour of the day when that approval was, in fact, given.” ,
Sutherland on Statutory Construction says:
“ The law takes notice of fractions of a day when necessary. The general principle declared by Lord Mansfield is believed to be sound, and established by the weight of authority, that, where it is ne'cessary to justice and it can be done, the law takes notice of the parts of a day; then the precise time when an act is done may be shown. This necessity exists when an act is done on the same day that a legislative act is passed,, if that statute, being passed, afterward should not affect such act, or, being passed before, should do so.” (§110, p. 133.)
In this case, the evidence clearly shows that said chapter 245 was published at 6 o’clock A. M. on the 20th of March, 1889. Therefore, following the great weight of authority and the better reason, and taking notice of the fractions of a day, said chapter 245 went into operation “from its publication”— that is, from and after 6 o’clock A. M. of the 20th of March, 1889. The petition in error and praecipe were not filed until a much later hour during that day. They were not, in fact, filed until several hours after the publication of said chapter 245. That statute, therefore, was in full force at the time of the commencement of the proceedings in this court. As the amount in value in controversy in this action, exclusive of costs, is $ 65 only, the proceedings in error cannot be retained in this court.
Defendant below had no vested right for an appeal or proceeding in error prior to the commencement thereof in this court. The appeal or proceeding in error was not had or taken until after chapter 245, Laws of 1889, was in force. Therefore, the proceeding in error in this case was filed too late to give this court any jurisdiction under the provisions of said §542a (Laws of 1889, ch. 245) of the civil code. This proceeding does not come within any of the excepted cases of said chapter 245.
The proceedings must be dismissed at the cost of the plaintiff in error.
All the Justices concurring. | [
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Opinion by
Green, C.:
This was an action upon an insurance policy for the sum of $800, claimed to have been issued by the German Fire Insurance Company on the 10th day of June, 1887, for one year, upon a two-story frame house, 18x40 feet, with an addition 16x24 feet, one story high, in St. Marks, Sedgwick county. It was alleged that the property was totally destroyed by fire on the 30th day of July, 1887, and that the proof of loss was furnished within 60 days. A blank .copy of the policy and the application for the insurance were attached to and made a part of the petition. The defendant answered, admitting the execution and delivery of the application for the insurance, which was made a part of the answer; and further alleged that the same was taken by an agent for the plaintiff; that before it was accepted, and before any premium had been paid, a fire broke out on the premises and destroyed the house described in such application. The answer was verified. The plaintiff filed a verified reply. The case was tried before the common pleas court of Sedgwick county and a jury, and a verdict was returned in favor of the plaintiff for the sum of $901.43. The insurance company brings the case here, and it is urged, first, that there was a total failure of proof establishing the fact that the company executed and delivered a policy of insurance to the plaintiff below; second, that the court permitted incompetent and prejudicial evidence to go to the jury; third, that the trial court should have sustained the motion of the insurance company directing a verdict for the defendant. Substantially the same questions are raised by the first and last assignments of error, and we shall consider them together.
The insurance company admitted, in its answer, that an agent of the plaintiff had presented an application for insurance on the property described in her petition to the agent of the company, but alleged that the application had never been accepted, and that no premium had been paid thereon. The evidence established the fact that a policy of insurance was delivered, but it is not clear by whom. The evidence shows, however, that it was a policy of the plaintiff in error. The insured gave a note for the premium, which was made payable to the German Insurance Company, and which was unpaid at the time the loss occurred. It seems there was a notice sent out in regard to this note, but the record is silent as to its contents. It is urged by counsel that because the evidence did not establish the fact that the policy was countersigned by the agent at Fort Scott, and that the policy itself showed that such an attestation was necessary to make the policy valid, therefore there was no evidence showing that the company had ever executed and delivered a policy of insurance to the insured. To support this position, our attention is called to several authorities which, it is contended, support this position. The first is the case of Hardie v. Insurance Co., 26 La. Ann. 242. In that case the policy had never been countersigned or delivered, and the premium had not been paid. In the case of McCully v. Insurance Co., 18 W. Va. 782, the policy had never been delivered or countersigned. The court said, in the case of Insurance Co. v. Walser, 22 Ind. 83:
“ It would seem that, to a complete execution of the policy, it was necessary that it should be signed by the president and secretary of the company, and countersigned by the agent. The policy in question is not signed by the president and secretary. It is only signed by the agent.”
In the case of Lynn v. Burgoyne, 13 B. Mon. 400, a policy was issued by a clerk of the company, and it was held that it was not a valid policy because it was not countersigned. The cases cited do not sustain the position of the plaintiff in error. The supreme court of Michigan has held that where there has been a delivery of a policy by an agent, or a renewal receipt with his name written upon it as a completed instrument, neither he nor the company Can afterward object that it was not countersigned by him. (Insurance Co. v. O’Conner, 29 Mich. 241; Insurance Co. v. Earle, 33 id. 143.)
There was some evidence .to establish the fact that the insured had a policy of insurance. The plaintiff below testified that her husband gave her a policy, and she put it away in a box and it was burned with the building. It has been said:
“The mere manual possession of the policy is of little consequence, whether it be in the hands of the insurers or the insured. Its possession by the insured makes a prima facie case for him, subject to be met by proof that it was never delivered with the consent of the insurers; while its possession by the insurers makes a prima facie case for them, subject to be met by proof that, though not transferred, it was intended by the parties to be a valid contract without further action by either party, and so in legal contemplation there was a delivery.” (May, Ins., §56.)
It was admitted by the pleadings that the insurance company had an application from the plaintiff below; and it was established that she executed a note signed by herself and husband to the company for the premium upon the policy. We think this admission in the answer, the giving of the premium note and the possession of the policy, showed a prima fade case in favor of the plaintiff in the common pleas court. There was, at least, evidence sufficient to submit the facts to the jury; and we cannot say that there was an entire failure of proof that the insurance company had executed and delivered a policy? or that the court erred in refusing to sustain the motion of the company for verdict in its favor. There was no evidence offered upon the part of the company in the court below.
It is insisted that the court erred in permitting the husband of the plaintiff below to testify in regard to a certain notice claimed to have been received from the company in regard to the premium note. We do not think this was material error. The witness did not know the contents of the notice. If the matter of the notice had been eliminated from the case, still we think' there would be sufficient evidence to make out a prima fade case. The evidence remained that a note had been executed to the company; besides there was some evidence to show that the husband had been acting for the wife in effecting the insurance.
We recommend an affirmance of the. judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Strang, C.:
Action for damages in two counts, begun in the district court of Coffey county, May 2,1888. In his first count the plaintiff below alleges that on the 1st day of September, 1887, he accompanied some stock which he shipped at Waverly, in Coffey county, for Kansas City, over the road of the plaintiff company, riding in the caboose of the freight train on a stock contract; that the train to which the caboose in which he was riding was attached was side-tracked at a station called “ Gardner,” and while standing on the said side-track another train ran in on the side-track behind the one on which he was riding, and struck the rear of the caboose in which he was riding so violently that it threw him from the seat upon which- he was lying to the floor of the car, whereby he was greatly bruised, wounded, and hurt, to his damage in the sum of $1,500. For his second cause of action the plaintiff below alleged, that on the 15th day of September, 1887, he again accompanied some stock shipped from Waverly to Kansas City over the company’s road, riding as before in the caboose attached to the stock train; that when they reached Argentine, during the night, they were required to get out of the caboose and get on top of the stock cars and ride into Kansas City; that while making said change and before he had got off of the caboose, and without giving him time to get off, and while on the steps of the caboose in the act of getting off, without any warning, the switch engine, in the act of coupling on to the caboose to run it back to a side-track, ran violently against the said caboose, throwing him off onto the ground, injuring his hands, arms, side, and back, and also injuring him internally, putting him to $300 expense for doctors and medicine, and to his damage otherwise in the sum of $4,000. The defendant company answered to each of said counts, first, a general denial; and, secondly, alleged that if the plaintiff was injured such injuries were the result of his own negligence. Plaintiff replied by a general denial. The case was tried January 24, 1889, by the court and a jury, resulting in a general verdict for the plaintiff in the sum of $1,800. The jury also made special findings of fact. Motion for a new trial was argued and overruled. A case was made for this court, and brought here asking this court to review and reverse the judgment of the trial court, and send the case back for new trial.
Numerous errors are alleged in the petition of plaintiff in error, but only one or two mre seriously argued. We will consider only the motion for a new trial, and, in connection with this, only the character of the general verdict and the findings of fact upon which it is based. The general verdict is for $1,800. The findings show that $50 of that amount was for inconvenience and suffering, resulting from the injury claimed to have been inflicted September 1st, as set out in the first count in the petition. Under the second count of the petition the sum of $400 was allowed for permanent injury, resulting from the injury inflicted on the 15th of September, at Argentine. Four hundred and seventy-five dollars were allowed the plaintiff for future pain and suffering in connec tion with the same injury, and $750 for loss of future ability to labor. The jury also allowed $125 for medical expenses and treatment. The jury seem to have absolutely ignored the evidence in relation to the plaintiff’s inability to labor from the date of his injury to the time of the trial, as they fail to give him anything for this, the real period of disability, as disclosed by the evidence. Nor do they accord him anything for pain and suffering during this time, the period during which he must have suffered most, and during which the uncontradicted evidence shows that he did suffer. An examination of . this case shows that the jury, either through ignorance or design, decided this case with little regard to the evidence or rights of either party under the evidence. In cases where juries, whether designedly or as the result of ignorance, ignore the evidence or trifle with the rights of parties, trial courts should promptly set aside their verdicts, and thus remind them that they are sworn to try causes according to the law and the evidence, and not to render verdicts and make findings to suit their whims or desires. It is evident that the jury in this case did not intend to be fair, or else that they were too ignorant to understand and appreciate the evidence as produced and the law as given.
The following questions, and the answers to the same, fully illustrate the character of the jury that tried the case, and the manner of their treatment of the same:
Q,. 28. “Is not the plaintiff at this time in a sound and healthy condition? ” To this question the jury first answered: “The preponderance of the evidence in the case would indicate that he is.” After they were sent back to answer questions that they had left unanswered, and to return more specific answers to some of the questions already answered, they returned with a new answer to this question 28, the answer this time being “No.” This was a flat contradiction of their first answer, the jury being still bound to observe the preponderance of the evidence. The final answer to this question being against the preponderance of the evidence thereon as found by the jury themselves, the trial court should have set aside the verdict and granted a new trial.
Q,. 29. “Is not the plaintiff’s complexion fresh and ruddy at the present time?” The first answer of the jury to this question was, “Moderately so,” while in their second answer they say, “No.”
Q,. 31. “Is there any indication at the present time of any fracture'of the plaintiff’s ribs?” Answer: “Not from the evidence of the examining physicians.” Their second answer to this question was, “No.”
Q. 39. “On the morning of September 15,1887, at Argentine, did not C. M. Stout, in alighting from the caboose, step upon his sound leg, and fall over to avoid ah injury to his leg which had been broken theretofore?” The first answer to this question was, “ No conclusive evidence that he did.” The •second answer was, “Yes.”
Q,. 55. “If you find in favor of plaintiff on the second •count in his petition, say how much you will allow for future pain and suffering, if anything.” To this the first answer was, “No evidence introduced to determine this point.” In their second answer they say, “$475.”
Q. 57. “ If you find in favor of the plaintiff in the second count of his petition, how much do you allow him for medical •expenses and treatment?” The first answer to this question was as follows: “Noevidence to determine an answer, but allowed in question 54.” The second answer to this question was, “$125.” The amount thus found above $50 was unsupported by any evidence. This was so clearly an arbitrary finding of the jury,'that counsel for plaintiff below offer, in their brief in this court, to remit $75 of the amount.
Q. 30. “ Is not the plaintiff unusually well preserved, strong and vigorous for a man of his age?” To this question the jury gave the following evasive answer: “Not unusually so.” And yet with such an answer to this question the jury allowed the plaintiff below $400 for permanent injury; $475 for future pain and suffering, and $750 for future loss of ability to labor; or $1,625 damages based upon a condition of health that the worst they can say of it is, that the individual referred to is not unusually well-preserved, strong and vigorous for a man of his age. This will not do. Trial courts must hold juries to a better observance of their duties, or it will become necessary for this court to reverse their judgments and send the cases back for new trials.
There are many other glaring inconsistencies in the record before us, but we have quoted enough to show their character, and the want of intelligent consideration given the case by the jury that tried it. We think the court should have granted a new trial.
We recommend that the case be reversed, and remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action by a rural high-school district to recover tuition from a community high-school district, the principal question being the force and validity of the so-called statute for equalization of tuition. The trial court held the statute to be valid, and the rate of tuition under it to be three dollars per week per pupil, as more fully later detailed.
The facts of the case were stipulated in the trial court and for our purposes are summarized as follows: At all times involved plaintiff was a duly organized rural high-school district maintaining a high school with a four-year course accredited by the state board of education at Miltonvale, in Cloud county, Kansas. Although not stipulated, from statements made in the briefs it appears the district lay wholly within Cloud and Ottawa counties. The defendant district was originally organized under the county high-school law (Laws 1886, ch. 147; G. S. 1935, ch. 72, art. 26) and became a community high-school district by virtue of Laws 1923, chapter 187, now appearing as G. S. 1935, chapter 72, article 25. Its present territory includes all of Clay county not included in some other high- school district. The defendant district maintains a duly accredited four-year high school. There was never any agreement concerning payment of tuition, and whatever obligation there is arises under the law. During the school year 1936-1937, eight pupils, residents of the community high-school district, having complied with preliminary statutory requirements, attended the rural high school for fixed periods and during the following year three such pupils attended. At the proper time the rural high-school district presented to the community high-school district verified vouchers for the tuition which it claimed to be due. Plaintiff claimed it should be paid at the rate of three dollars per week for the time each of the above students attended its school, while defendant contended the rate should be two dollars per week, añd it tendered that amount, which plaintiff refused. The amount to be received at whatever was determined to be the correct rate was stipulated. Neither county has a Barnes high school (G. S. 1935, ch. 72, art. 30), but Cloud county is a so-called tuition county (G. S. 1935, ch. 72, art. 38) and Clay county is not. Long before the students mentioned attended the rural high school, that school had fixed the rate for nonresident students at three dollars per week and had at all times maintained such rate. The question submitted to the trial court was whether the proper rate applicable was three dollars or two dollars per week.
The cause was submitted to the trial court upon the stipulation as to the facts and upon written briefs as to the law, and therefrom the trial court concluded the proper rate was three dollars per week and rendered judgment in favor of the plaintiff district. In due time the defendant district perfected its appeal, presenting, in substance, two questions: Can the tuition provisions of the community high-school law (G. S. 1935, 72-2505), the tuition provisions of the rural high-school law (G. S. 1935, 72-3513) and the provisions of the so-called equalization statute (G. S. 1935, 72-3804, 72-3805) be harmonized, and second, if they cannot be harmonized, is the last law unconstitutional?
The first question presented compels a review of the above-mentioned tuition provisions, and in discussing the second question it may be of assistance to consider other statutes dealing with tuition due on account of attendance by pupils who are nonresidents of a particular district.
We notice briefly the first statute dealing with tuition of nonresident high-school pupils. By Laws 1886, ch. 147, provision was made for the establishment of county high schools. Under section 13 of that act, provision was made for the admission of nonresident pupils “upon the payment of such tuition as the board of trustees may prescribe.” The section mentioned has never been changed, the act has never been specifically repealed, and as it has been amended in particulars now appears as G. S. 1935, 72-2601 to 72-2617, inclusive.
Laws 1923, chapter 187, is an act disorganizing county high schools, creating community high schools and providing for the payment of tuition. It provides extensive machinery for conduct and operation of community high schools and, by section 5, that upon compliance with certain procedure,. resident pupils may attend a high school outside the boundaries of the community high school and its board of trustees shall pay tuition at the rate of two dollars per week, and also that nonresident pupils may attend the community high school, the rate being fixed at two dollars per week, the details pertaining to source of payment not being here of moment. It is specifically provided that the provisions relating to tuition shall apply to pupils attending high schools in adjoining counties. This act, as amended, now appears as G. S. 1935, 72-2501 to 72-2505, inclusive, and G. S. 1939 Supp., chapter 72, article 25. We are advised by the stipulation of facts the defendant district was organized originally under the act of 1886, and continues as a community high-school district under the act of 1923.
By Laws 1915, chapter 311, provision was made for the establishment of rural high-school districts. This act as subsequently amended now appears as G. S. 1935, chapter 72, article 35. Later amendments shown in G. S. 1939 Supp. are not of importance here. By section 10 of the original act — and it has not been changed — the school board may admit nonresident pupils, not to the exclusion of a resident pupil, “on the payment of a tuition fee fixed by the high-school board.” We note this act contains no specific provision as to who must pay this tuition nor does it make any provision for its resident pupils attending any other high school. These last matters are not involved in the present action.
Although not directly involved, we notice the tuition provisions of four other acts, one providing for Barnes high schools, the others providing for -payment of tuition by certain counties. By Laws 1905, chapter 397, provision was made for so-called Barnes high schools. This act has been amended and supplemented and now ap pears as G. S. 1935, chapter 72, article 30. Subsequent amendments appearing in G. S. 1939 Supplement are not here important. Two sections, 72-3013 and 72-3014, last amended in 1923, provide for attendance by nonresident pupils, specifically including pupils from adjacent counties, upon compliance with certain regulations. The rate of tuition fixed is two dollars per week, payable from the general fund of the county where the pupil resided. Laws 1911, chapter 263, provided for aid to high schools in counties having a population less than 10,000. As amended and supplemented, it appears as G. S. 1935, chapter 72, article 31. It makes no specific provision for tuition of nonresident pupils. Laws 1919, chapter 276, subsequently amended and now appearing as G. S’. 1935, chapter 72, article 32, is by its terms probably applicable to only one county in the state. It makes no specific provision for tuition of nonresident students.
In 1915 the legislature made provision for free high-school tuition of pupils not residing in a high-school district and covering counties in which provision was not otherwise made. The original act, Laws 1915, chapter 314, has been amended and now appears as G. S. 1935, 72-3801 to 72-3803, inclusive, and G. S. 1939 Supplement, 72-3802. The details of the act are of interest here only in that the pupil may attend the high school nearest his residence in the county of his residence or in an adjoining county, the tuition rate is fixed at three dollars per week, and a tax is levied to create a tuition fund out of which to pay the tuition.
In an appendix to the school laws, as published by the state superintendent, it appears that in 1939 there were twenty-three counties operating under the community high-school law; forty were operating under the Barnes law; one was operating under G. S. 1935, chapter. 72, article 31; one was operating under G. S. 1935, chapter 72, article 32, and.the remaining forty counties operated as tuition counties. Although a few counties operating under the Barnes law, a few operating under the county tuition law and four under the community high-school law are entirely bounded by other counties of like classification, many others are bounded by counties of one or more of the other classifications. In each county operating under the Barnes law or community high-school law adjacent to a tuition county, or vice versa, the question could and did arise as to the rate of tuition to be paid by nonresident pupils of one attending the high schools of another. The problem generally was further complicated by the fact that rural high schools could be and were established in Barnes law counties, in parts of community high-school counties not included in the boundaries of the community high-school district and in tuition counties, and one rural high-school district could and did include within its boundaries lands within two or more counties of different classification. (See State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1090, where a rural high-school district was organized with territory in four counties, one of which was a community high-school county.)
Although the factual situation may have been some different in 1927 than at an earlier or later period, in that year the general situation was about the same as above disclosed, and in an effort to clarify the matter of the rate of tuition, the legislature enacted Laws 1927, chapter 275, the title and pertinent portions of which read as follows:
“Aisr Act relating to tuition in all the high schools of Kansas, and repealing all acts and parts of acts in conflict herewith.
Be it enacted by the Legislature of the State of Kansas:
“Section 1. Tuition shall be free in all high schools in the state of Kansas to pupils having the necessary educational qualifications to enter the same.
“Sec. 2. Whenever under existing laws of the county, high-school district or school district is liable for the payment of the tuition of said pupils, the rate to be paid shall be that prevailing at the high school where said pupils attend.
“Sec. 3. All acts and parts of acts in conflict herewith are hereby repealed.”
Sections 1 and 2 of the above act now appear as G. S. 1935, 72-3804 and 72-3805.
Appellant first contends that as applied to the facts of the instant case, .the tuition provisions of the rural high-school law, the community high-schóol law and the so-called equalization statute may all be harmonized, and as harmonized, the rate of two dollars fixed by the community high-school law is the applicable rate. The theory is that the rural high-school law is the older, and was supplanted by the community high-school law which fixed' the rate at two dollars and expressly provided that its provisions shall apply to pupils attending high schools in adjoining counties; that the rate being so fixed was the legal rate the rural high school could collect and therefore must be held to be the prevailing rate under the equalization statute. We are in general agreement with the rule that the later of two inconsistent'provisions must prevail, and indeed it was applied as between a community high school under the law of 1921 and later provisions of the Barnes law as amended in 1923, in the case of School District v. Community High School, 126 Kan. 51, 267 Pac. 23. Application of that rule, however, would require that the equalization law, if valid, be followed. That act provides that where tuition is due “the rate to be paid shall be that 'prevailing at the high school where said pupils attend.” (Italics ours.)
The rural high-school district board was empowered to- fix the rate, it was fixed long prior to events complained of; that is where the Clay county students attended and we are of the opinion that it may not be said the prevailing rate is one amount for one group and another amount for another group. Appellant’s contention does violence to the plain language of the statute. That statute must prevail unless it is unconstitutional, as contended.
Appellant contends the equalization statute is unconstitutional for two reasons: The first is that it is a special and not a general law and violative of article 2, section 17 of the state constitution. No citation of authority that the act is special is included. Without pursuing the matter, it may be said that under the rule laid down in Barker v. Kansas City, 149 Kan. 696, syl. ¶ 1, 88 P. 2d 1071, the contention is not good. The second reason is that the equalization statute is a statute which amends a former statute or statutes, does not contain the entire act or acts amended, nor repeal the amended sections, violates article 2, section 16 of the state constitution and is therefore unconstitutional. Our reports contain many decisions dealing with the question here presented, and a very comprehensive review of them would unduly extend this opinion.
It was early held that in considering constitutionality of a statute, all presumptions are to be in its favor and before the court should declare it invalid, the invalidity must clearly appear. (State of Kansas, ex rel, v. Robinson et al., 1 Kan. 17, syl., and Leavenworth County v. Miller, 7 Kan. 479, syl. ¶ 8. And see the recent case of Thompson v. Reno County Comm’rs, 152 Kan. 610, 613, 106 P. 2d 700.) The review made of the statutes with respect to tuition shows inconsistency in the various acts preceding the enactment of the so-called equalization act, not only as to the amount to be paid, but, if the review had been more extended, the sources from which it was to be paid. In the last act, no effort was made to affect sources of money or to change funds from which the tuition would be paid. Clearly an effort was made to provide that in any one school district, the rate of tuition from nonresident pupils should be the same for each of them, although some might come from one county operating under a law fixing another rate. In order to accomplish that, it was necessary to specifically amend each statute and repeal the amended statute, or could the legislature pass a general law which would fix such a standard and leave previous laws stand, to have their operation where the situation permitted?
Viewed from appellant’s standpoint, a strong case is Atchison, T. & S. F. Rly. Co. v. Board of Education, 123 Kan. 378, 255 Pac. 60, which dealt with the rate of taxation as applied to a board of education in a first-class city. For our purposes here, it may be said that in 1907 an act (Laws 1907, ch. 330) had been passed providing a rate of levy not in excess of twenty mills, with a proviso for a different rate where the city had over 38,000 inhabitants. In the same year, a different method of assessment was provided with the result that excess amounts were raised. To remedy the situation, in 1909 the legislature passed an act having a comprehensive general title concerning taxation and limiting rates of levy. Section 22 of the act read, in part:
“The authority of boards of education in cities of the first class to levy taxes as provided in chapter 330, Laws of 1907, is hereby limited so that the board of education of any such city shall not fix a rate of levy for the respective purposes in excess of the following rates:” (Laws 1909, ch. 245, §22.)
followed by a schedule of rates, changing the population figure and rate thereunder. This act contained no specific repeal of the previous act, but did have a section, which was denominated as nonsensical, that all acts or parts of acts in conflict with it were repealed. Later other acts of similar form were enacted referring to the section of the 1907 act, but of tenor similar to the one quoted above, and if the legislation was valid, the rate levied in a certain year was too high. The railway company tendered payment under the last act, which was refused, then paid under protest and brought an action to recover the alleged unlawful excess. It recovered in the lower court, but on appeal this court held that method of legislation was expressly forbidden by article 2, section 16 of the constitution, it being said
“If the act of 1909 had contained but a single section consisting of the matter contained, in section 22, besides the repealing section it would have been patently invalid. Invalidity was multiplied, not cured, by dealing in wholesale fashion with many statutes whose provisions were changed without compliance with the constitutional requirement. The act was not legislation by reference', because legislation by reference leaves the law referred to unmodified. (State v. Shawnee County, 83 Kan. 199, 110 Pac. 92.) The act was not a new, independent superseding act, a code complete in itself, relating to power of taxing bodies, including boards of education in cities of the first class, to levy taxes. It was not interpretative. It could not operate to repeal the law of 1907 by implication because that law was expressly referred to and modified, and attempt was made to repeal the inconsistent portion. The purpose of the constitutional restriction was ‘to prevent uncertainty and confusion which might arise from adding or striking out words and making additions and substitutions without rewriting the section as amended.’ (State v. Pauley, 83 Kan. 456, 464, 112 Pac. 141.) That purpose was flagrantly disregarded.” (p. 382.)
Another case to which our attention is directed is School Districts v. Stafford County Comm’rs, 141 Kan. 108, 40 P. 2d 334, it was there contended that Laws 1929, chapter 239, section 2, now appearing as G. S. 1935, 72-3807, was unconstitutional as being in violation of article 2, section 16 of our constitution. The particular act had a title referring generally to tuition of pupils attending school in a county other than that of their residence. The first section of the act, now appearing as G. S. 1935, 72-3806, provided certain regulations to be followed in order that a nonresident student might attend a high school (as to its constitutionality see Gridley Rural High School District v. Woodson County Comm’rs, infra). The first part of the second section provided for the rate of tuition, followed by a provision that in Barnes-law counties the county commissioners should pay tuition from the high-school fund of the county. It was this provision which was attacked. We need not review the Barnes law, which provided for payment of the fund to the various school districts entitled. This court held that the effect of the second act was amendment and repeal, that if permitted to stand, it changed the management and control of tuition moneys in Barnes-law counties; that it did not attempt to cover all the matter contained in the earlier statutes and could not be held to repeal any of them by implication', and was unconstitutional. In that case it was recognized the line is not easily drawn as to whether there is amendment and repeal, or independent legislation with resultant repeal by implication. Many of our cases are there reviewed and reference is made thereto.
In Gridley Rural High School Dist. v. Woodson County Comm’rs, 150 Kan. 704, 95 P. 2d 972, the question was the constitutionality of section 1 of the act considered in the last case above discussed. The question presented, in part, was whether that section 1 (G. S. 1935, 72-3806) was merely supplementary to certain prior enactments, or whether its terms so modified or amended them as to make them no longer operative in their entirety. This court took note that it was plainly the intention of the legislature to establish a uniform procedure for the admission of nonresident pupils, and that it was the legislative intent to supplement previous sections of the statute by a statewide procedure to embrace cross-county line tuition cases, and constitutionality was upheld.
The same question here presented arose in State, ex rel., v. Rural High-school District, 126 Kan. 166, 267 Pac. 2, in which validity of the defendant district was challenged by the state. Prior to 1925, it was possible under existing laws to organize'a rural high-school district containing not less than sixteen square miles, upon compliance with the law. In 1925.an act was passed having a general title, and providing in effect, that no high-school district should be organized unless the aggregate assessed property value was two million dollars. In 1927 it was attempted to organize the defendant rural high-school district, which concededly did not have an aggregate assessed value of property of two million dollars. The defendant district sought to meet the state’s challenge by contending the act of 1925 was unconstitutional for the reason it was amendatory of the provisions of the previous act, or sections amended, etc. In discussing that contention, it was said:
“It will be observed that the act applies not only to rural high-school districts, but is made applicable to all high-school districts of every kind organized within the state. In its enlarged scope it would seem to he supplemental legislation as to rural high-school districts. . . The act itself makes no reference to other statutes and does not purport to amend any existing laws. It, like many other separate acts, restricts to some extent the operation of existing statutes, but such modifications do not require the statutes thus modified to be included in the' modifying act. The constitutional provision invoked does not apply in such cases because they are not within the mischief designed to be remedied by it. At the most the act of 1925 only amends former statutes by implication, and it has been held that the constitutional provision invoked has no application to amendments by implication. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, dealt with the subject of providing for the issuance of special tax bills against property chargeable with the costs of improvements in cities of a certain class. In earlier acts provision had been made to pay for improvements with bonds, and the language of those earlier acts followed closely parts of the new act. It was held to be well settled that the constitutional provision has no application to amendments by implication, and proceeded to say:
“ ‘The act of 1905 in a sense amends various sections of the earlier act, but it does so by implication; it does not cover their entire subject matter, and hence does not supersede them, but merely restricts the field of their opera tion; it is a complete and in a sense an independent enactment, which requires no reference' to any other statute to make its meaning clear.’ (p. 724.)” (p. 169.)
Our attention is directed to other decisions, many of which are referred to in those above mentioned, all of which reiterate the holdings of which those mentioned are illustrative.
Analysis of the so-called tuition law shows that section 1 is merely a restatement of the provision found in practically every high-school law ever enacted in this state. Section 2 does not pretend to disturb in any manner the source from which tuition moneys are to be paid, or to confer any right on any nonresident student to attend any high school. Its sum and substance is that if, under any existing law, any county, high-school district or school district is liable for tuition because pupils resident therein attend another high school as nonresident pupils, the rate of tuition shall be that prevailing at the high school where the pupils attend. The act does not pretend to cover the field of admission of nonresident pupils, does not alter the rates fixed by statute in various cases, but merely provides that at one particular school the rate shall be the same to all legal nonresident students regardless of the type of district from which they may come. There is no specific repeal of any statute, for evidently the legislature did not care to make a uniform rate applicable alike to all types of districts. Notwithstanding section 3 of the act, if there is any repeal whatever it is only partial; the original tuition sections of all the laws still have their field of operation for under them the prevailing rate in any .one district may be determined. In our opinion the legislation was supplemental and only indirectly of an amending nature, and does not violate our constitutional provision.
In view of what has been said, it follows that the trial court’s decision was correct, and it is affirmed.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus. It was submitted at the December session. An alternative writ was issued. The defendants filed an answer and plaintiff has filed a motion for a peremptory writ.
The following facts appear from the pleadings:
William Z. Graves, a resident of Russell county, Kansas, died intestate on February 6, 1925. His estate was administered and it was determined that Lucile Graves, a daughter, was entitled to $3,-384.98 as her distributive share; the administrator could not locate her, and after a year, or on December 12, 1930, paid the above sum to the county treasurer of Russell county, pursuant R. S. 1923, 22-932. The county treasurer immediately paid this money out to the various school districts of the county. On August 9, 1939, certain relatives of Lucile Graves brought an action in the district court of Russell county pursuant, to the provisions of chapter '234 of the Laws of 1939, this being G. S. 1939 Supp., 60-4001 to 60-4026. Attention is called especially to section 60-4010. On November 27, 1939, the court made findings of fact in accordance with the allegations of the petition and appointed John P. Ruppenthal conservator of the estate of Lucile Graves Phillips. There was no finding that the missing heir or her descendants were dead. No appeal was taken from that judgment and it has become final. The conservator made a demand on the county treasurer for the payment to him as conservator of the sum of $3,384.98, but this payment was refused. On May 11, 1940, the conservator filed a petition in the probate court of Russell county pursuant to G. S. 1939 Supp., 59-1508, asking the probate court to order the county treasurer of Russell county and the board of county commissioners of Russell county to pay to him the sum of $3,384.98. After due notice and hearing the probate court made an order in accordance with the prayer. No appeal was taken from the above judgment and it has become final. The above officials have refused to pay the judgment or to include it in the budget for the county.
The plaintiff requested the defendant officials to include the judgment in the budget of the county for the current year and to levy taxes to pay it. The defendants refused to do this or to appropriate any money for the payment of it.
The petition alleged the above facts and also alleged that defendants had sufficient funds to pay the judgment.
The prayer was for the equitable relief to which this court should hold plaintiff entitled.
To this petition the defendants filed an answer in which they denied that they had refused to pay the judgment or that they had refused to appropriate money for the payment of the judgment. They also denied that they claimed or had claimed that the judgment was void.
The answer further alleged Russell county should not be held responsible for the payment of $3,384.98 for the reason that it had been paid to the county treasurer in accordance with law, the county treasurer had immediately illegally distributed it pro rata to the various school districts of the county and the treasurers of the various school districts were liable.
The answer further alleged that under the cash-basis law the defendants were forbidden to pay any indebtedness which had not been budgeted, and defendants had not included this item in the budget for the reason that they had been unable to ascertain whether or not they were required to pay it, and if they were required to pay it what fund to pay it from, and whether it should be paid from the general fund or the state and county school fund.
The prayer of the answer was that the plaintiff’s motion for a peremptory writ be denied and in the event that the motion be sustained this court should determine whether the judgment should be paid from the county school fund and whether it must be budgeted.
. In this action no brief was filed for the defendants. The plaintiff briefed only two questions: Is Russell county released from paying a judgment in favor of the plaintiff in the sum of $3,384.98 plus interest at six percent from July 16,1940, because the county treasurer of said county paid out the money which is' the basis of said judgment to various school districts in Russell county? And may such judgment be paid out of the general fund of the county without including it in the budget and without levying a special tax therefor when there is sufficient money in the general fund of the county to pay the same?
This court did not care to have the question of whether a peremptory writ should issue rest solely upon the answer to the above questions. We were aware that no appeal was taken from the judgment in the case where the conservator was appointed nor from the judgment in probate court in which the county treasurer was ordered to pay the money to plaintiff.
We were also aware that to raise the question of the validity of those judgments in this action is to make a collateral attack upon them. This was an action for a writ of mandamus and the question of whether such a writ should issue rests in the sound discretion of this court. Accordingly we ordered the parties to file briefs on the following questions:
(a) Does chapter 234 of the Laws of 1939, being G. S. 1939 Supp. 60-4001 to 60-4026, inclusive, apply to a case such as this, where some ten years before the distributive share of an heir was paid to a county treasurer for safekeeping, pursuant to R. S. 1923, 22-932?
(b) Since the district court was unable to find the missing heir or her descendents were not living, was its judgment valid even if no appeal was taken?
(c) What authority did the conservator appointed by the district court have to appear on behalf of collateral heirs in the probate court?
(d) What is the binding effect of the order of the probate court?
(e) If plaintiff’s right to the relief sought is doubtful, should mandamus issue?
On account of the public interest in the questions we requested the attorney general, as well as counsel for the parties, to file a brief on the above questions. We have been favored with a brief by all parties.
The best means of ascertaining just what was the legislative intent is to fix what the situation was at the time of the enactment of a particular act.
We shall first examine the legislative history of R. S. 1923, 22-932. In the revision the origin of that section is given as G. S. 1868, ch. 37, sec. 176 (Laws 1917, ch. 187, sec. 1). The above is not quite as comprehensive as it might be. It should be noted that R. S. 1923, 22-932, provides that where a distributive share shall remain unclaimed for a year the executor or administrator shall pay it to the county treasurer for the benefit of the common schools. The section then provides for the payment of this share to a rightful heir if one appears and claims it within twenty-one years of the payment.
The first time the legislature of this state dealt with this subject was in 1855. Article 6, chapter 1, sections 15, 16 and 17, of that session were as follow's:
“In all cases when the legatee or distributee shall not appear within one year after final settlement by the executor or administrator, and claim his share, the probate court shall order the same to be paid into the territorial treasury.
“When any share shall be paid into the treasury, the executor or administrator shall take from the treasurer duplicate receipts, one of which he shall file in the office of the auditor, who shall charge the treasurer with the amount, and the other with the clerk of the probate court, ordering the share to be paid into the treasury, and the court shall credit the executor or administrator .therewith.
“When any legatee or distributee shall appear and claim any share paid into the treasury, the probate court before whom the final settlement was made, being first satisfied of his right, shall grant him a certificate, under its seal; and on presentation of the certificate to the auditor, he shall draw his warrant on the treasury for the amount.”
After the general repealing provision of the Territorial Laws of 1859, ch. 89, we find sections 210, 211 and 212 of chapter 2 (Ter. Laws 1859, ch. 91, Gen. Laws 1862) as follows:
'“In all cases when the legatee or distributee shall not appear within one year after final settlement by the executor or administrator, and claim his share, the probate court shall order the same to be paid into the county treasury.
“When any share shall be paid into the treasury, the executor or administrator shall take from the treasurer duplicate receipts, one of which he shall retain, and file the other with the clerk of the probate court, ordering the share, to be paid into the treasury, and the court shall credit the executor or administrator therewith.
“When any legatee or distributee shall appear and claim any share paid into the treasury, the probate court before whom the final settlement was made, being first'satisfied of his right, shall grant him a certificate, under its seal; and on presentation of the certificate to the treasurer, he shall pay him the amount.”
It should be noted that the only change made was that in the officer designated to whom this money should be paid. It should be further noted that the above sections both provided that the share should be paid a legatee or distributee should one appear later.
The subject was again dealt with in the session of 1868. Section 176 of'chapter 37 of the General Statutes of 1868 provided as follows:
“If any sum of money directed, by an order of the court, to be distributed to heirs, next of kin or legatees, shall remain, for the space of one year, unclaimed, the executor or administrator shall pay over the. same to the treasurer ofpthe county for the benefit of the common schools of the county.”
It should be noted that the above statute did not provide any means by which the share of an absent distributee could be paid to an heir or legatee of that distributee or the distributee himself should such a person later appear.
The provisions for such payment were repealed by section 2, chapter 119, General Statutes 1868. (See Burgess v. Railroad Company, 18 Kan. 53.)
From 1868 to 1917 there was no provision by which an heir of a distributee, to whom a distributive share could not be paid and where the money had been paid to the county treasurer, could appear later and claim the money.
The legislature of 1917 passed chapter 187, and section 1 of that chapter amended section 4663 of the General Statutes of 1915. Section 4663 was the same as section 176 of chapter 37 of the General Statutes of 1868. As amended, that section provided as follows:
“That section 4663 of the General Statutes of Kansas for 1915 be amended so as to read as follows: Section 4663. If any sum of money directed by an order of the court to be distributed to heirs, next of kin, or legatees, shall remain for the space of one year unclaimed, the executor or administrator shall pay over the same to the treasurer of the county for the benefit of the common schools of the county: Provided, If at any time within twenty-one years after the date of payment of said money to the county treasurer any person or the legal representative of any person shall appear and claim said money as the rightful heir to said estate, and shall prove heirship satisfactorily to the probate court, the judge of said court shall so certify, and the county treasurer shall pay over to such claimant or his legal representative the sum so received from such estate.”
The above section was carried into the Revised Statutes of 1923 as R. S. 1923, 22-932. It was the law on the subject when the payment was made to the county treasurer in this case. It should be noted that the legislature in 1917 put back into effect the provision about an heir of a missing distributee claiming the share after it had been paid to a county treasurer.
This legislative history has been reviewed at length here because it is deemed persuasive on the question we are considering that the matter of what should be done with a distributive share of an estate that could not be delivered has from the beginning of statehood been treated as a subject by itself apart from legislation with reference to estates of people who die without known heirs. Furthermore, the action of the legislature in amending section 176 of chapter 37 of the General Statutes of 1868 is a definite legislative edict that it was the intention of the legislature that the probate court should be the tribunal which should determine whether a person claiming the share of a missing distributee was an heir of the distributee or the dis-tributee himself and as such was entitled to the money. It is worthy of note in this connection that the order of the probate court on final settlement to pay the share of the missing distributee has all the binding effect on all parties and all the finality of any judgment of a court of record. (See Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, also Gaston v. Collins, 146 Kan. 449, 72 P. 2d 84.)
We conclude, therefore, that when the money was paid to the county treasurer in this case it was paid in fulfillment of a final, binding adjudication of a court of record to the officer to whom the statute designated it should be paid. The fact that the county treasurer had paid this money to the common schools of the county has no bearing on the question we are considering. As far as the applicability of this statute is concerned the money was being held by the officer to whom the statute directed it should be paid.
In 1935 the legislature again dealt with this subject by itself. Chapter 167 of the Laws of 1935 provided as follows:
“If any sum of money directed by an order of the court to be distributed to heirs, next of kin, or legatees, shall remain for the space of one year unclaimed, the executor or administrator shall pay over the same to the treasurer of the county for the benefit of the common schools of the county: Provided, If any person to whom the court ordered a sum of money to be distributed refuses to accept the same when it is offered or tendered to him by the administrator or executor, and no appeal has been taken from the order of distribution, the court, upon application made before the sum of money is paid to the county treasurer, or within ten years thereafter’, and upon a showing that the sum was offered or tendered to the distributee and that he refused to accept it, shall order and direct that the sum of money be paid or distributed to other heirs, next of kin, or legatees, in the share or portion they would have been entitled to receive it had the refusing distributee not been entitled to a share or portion of the state [estate]; and if at the time such order is made the sum of money has been paid to the county treasurer, the court shall certify tQ its order for a redistribution of the sum of money, and on such certificate being presented to the county treasurer he shall pay the same to the persons entitled to receive it, as designated in the order so certified: Provided further, If at any time within ten years after the date of payment of said money to the county treasurer (if no order for redistribution has been made, as above provided), the person to whom the order of distribution was made, or his legal representative, or the heir or legatee of such person, may appear and claim said money, and upon a showing to the court of his right thereto the court shall order the money to be paid to him, or them, and shall so certify his order, and on such certificate being presented to the county treasurer he shall pay over to such claimant the sum so received.” (Sec. 1.)
It will be noted that this chapter added a provision dealing with the share of a distributee who refused to accept the payment of money and provided that in the case of a missing distributee an heir or legatee of the distributee might appear and claim the money. There was no change in which we are interested here.
The final change came in 1939 when the probate code, chapter 180 of the Laws of 1939, was enacted. This law was enacted after a long and careful study of the general subject of decedents’ estates. Section 119 of that chapter reads as follows:
“If any part of the money on hand has not been paid over because the person entitled thereto cannot be found or refuses to accept the same, or for any other good and sufficient reason, the court may order the executor or administrator to deposit the same with the county treasurer for the benefit of the common schools of the county: Provided, If the person to whom said sum is ordered to be paid refuses to accept the same when it is tendered him by the executor or administrator, the court may, either before or after the sum has been deposited, order the same to be paid and distributed to those who would be entitled thereto had the refusing legatee or distributee not been entitled to it. Upon application to the probate court within ten years after such deposit, and upon notice to the county attorney and the county treasurer, the court may order the county treasurer to pay the same to the person entitled thereto. No interest shall be allowed or paid thereon, and if the deposit is not claimed within such time no recovery thereof can be had.”
It will be noted that this section provides that on the proper showing ten years after payment the probate court may order the money that had been paid to the county treasurer because the dis-tributee cannot be found paid to the person who was entitled to it. That section is now cited as G. S. 1939 Supp., 59-1508.
The same session that enacted the above section as part of the probate code also enacted chapter 234 of the Laws of 1939, which is now cited as G. S. 1939 Supp., 60-4001 to 60-4026.
We realize that where two statutes are enacted by the same session of the legislature and there is a question about whether or not the statutes cover the same matter or operate in the same general field it is the duty of the courts to reconcile these statutes, if possible. However, we do not deem that such is the case here. G. S. 1939 Supp., 60-4001 to 60-4026, inclusive, cover a distinct field which was not dealt with by any previous legislature, while section 59-1508 covers a field to which the very first legislature in this state gave attention and which has been the subject of legislation as a distinct subject from time to time. The end sought which was to enable the person entitled to an unclaimed distributee’s share to appear and prove that he was entitled to that share is provided for in section 59-1508 and has been ever since 1917. There was no remedy for that particular situation which would have caused the legislature to enact 60-4001 to 60-4026. The purpose of that statute was undoubtedly to provide a procedure in cases where money, or other personal property, or real estate, were being wasted or lost through lack of someone to take care of it. Such is not the case here. This money is in good hands and is as safely kept awaiting the appearance of the person entitled to it as though it were in the hands of a conservator. The two statutes deal with separate things altogether. We have therefore concluded that 60-4001 to 60-4026, inclusive, does not apply to cases such as the one we have here where a dis-tributee’s share of an estate was paid to the county treasurer because the person who was entitled to it could not be found.
We now reach the point where it becomes necessary to consider the fact that the judgment in this case appointing the conservator and also the order of the probate court directing this money to be paid to the conservator were unappealed from and have become final. We are unable to say that these judgments are void. This, however, is a proceeding in mandamus. The question of whether or not such a writ should issue is addressed to the discretion of this court. While it is too late for an appeal to be taken from those two judgments, we have concluded that our decision, had an appeal been taken, would have been that G. S. 1939 Supp. 60-4001 to 60-4026, did not apply to a case such as this where a distributee’s share had been paid to a county treasurer pursuant to R. S. 1923, 22-932, ten years before.
We shall not inquire into the reasons why the defendants in this case did not appeal from either one of these judgments. Evidently they did not entertain any doubt about the matter at the time. Were this a matter between two private litigants we might let the matter go at that and issue a writ to enforce the judgment. There is a public interest here, however. The matter not only affects the Russell county treasurer but might affect every county treasurer in the state.
In State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419, in considering whether a writ should issue to compel the calling of á county seat election, this court said:
“The writ of mandamus is not wholly a writ of right, but lies to a considerable extent within the sound judicial discretion of the court where the application is made (The State v. Marston, 6 Kan. 524, 537; The State v. Stevens, 23 Kan. 456); and no court should allow a writ of mandamus to compel a technical compliance with the letter of the law, where such compliance will violate the spirit of the law.” (p. 425.)
In Railway Co. v. City of Liberal, 108 Kan. 836, 196 Pac. 1067, this court said:
“If the writ is discretionary, it ought not to be issued to compel the performance of an act technically legal but which accomplishes actual injustice.” (p. 839.)
Kolster v. Gas Co., 106 Kan. 84, 186 Pac. 738, was an action to compel the gas company to furnish gas to plaintiffs at a city residence. This court said:
“An action in mandamus is a very different thing from an action on a debt or for damages or the like, where judgment as prayed for goes as a matter of course to the prevailing party, and where the court is absolutely bound to give such judgment. Mandamus is a discretionary writ, and before granting it the court may and should look to the larger, public interest which may be concerned — an interest which the private litigants are apt to overlook when striving for their private ends.” (p. 86.)
There are many authorities to the same effect.
In this action if a writ of mandamus should issue, as prayed for, the only result would be to compel the county treasurer of Russell county to perform an act which the legislature did not contemplate he should have the authority to do. Under such circumstances the writ should not issue. This conclusion makes it unnecessary for us to decide the other questions presented.
The writ is denied. | [
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Per Curiam:
This is an original proceeding in mandamus. Briefly stated, plaintiff in his motion for the writ alleges that he is, and for more than ten years last past has been, a resident of the city of Topeka; that at the primary election for the nomination of city officials held March 24, 1941, he was one of the candidates for nomination for the office of commissioner of finance and revenue and received the second highest number of votes of the candidates for that office; that at the same election one M. P. Jones was a candidate for the nomination for the same office and received the highest number of votes (at the argument on the motion we were told there were two other candidates for the nomination); that our statute, G. S. 1935, 13-1801, requires as a qualification for said office that the commissioner be a resident of the city of Topeka for three years immediately preceding his election; that M. P. Jones has not been a resident of the city of Topeka for the last three years but in fact is and has been a resident of Reading in Lyon county, and on August 8, 1938, voted at that precinct, claiming to be a resident and citizen thereof; that it is the duty of defendant, as city clerk, to prepare the ballot for the city election to be held April 1, 1941, and that he is preparing and is about to distribute such ballots with the name of M. P. Jones as one of the nominees for the office in question.
The prayer of the motion is that a peremptory writ of mandamus issue commanding defendant to cause such ballots to be printed omitting therefrom the name of M. P. Jones as the nominee for the office of commissioner of finance and revenue.
Having considered the motion and the argument of counsel and being fully advised in the premises, it is by the court adjudged and ordered that the motion for the writ be denied and that the action be dismissed for the following reasons:
1. The relief sought is injunctive relief and this court has no original jurisdiction in injunction.
2. That the statute G. S. 1935, 13-1705, makes it the duty of defendant as city clerk, in preparing the official ballot for the city election to be held April 1, 1941, to include thereon the names of the two candidates who received the highest number of votes for nomination for the office at the primary election.
3. The motion for the writ alleges defendant is preparing the ballots in harmony with this statute. This court is not justified in commanding defendant not to do what the statute requires of him.
Other reasons might be given, but these are deemed sufficient. In view of our conclusions, we do not find it necessary to determine any question respecting the eligibility of Mr. Jones for the office. | [
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The opinion of the court was delivered by
Smith, J.:
These two actions were tried in different divisions of the district court of Shawnee county, but involved the same facts and were consolidated here.
Action No. 35,248 was an action wherein the plaintiff sought to have a sheriff's deed and a quitclaim deed declared to be a mortgage. Judgment was entered pursuant to a stipulation. The plaintiff later filed a motion to set that judgment aside. This motion was overruled and the appeal is from the order overruling that motion.
Action No. 35,249 was brought to foreclose a lien on real estate that was provided for in the judgment entered in action 35,248. The defendant answered setting up substantially the facts that were contained in his motion to set aside the judgment in action 35,248. These allegations were stricken from the answer on the motion of the plaintiffs and judgment entered for the plaintiffs. The defendant appeals from the judgment in that case and argues error on the part of the trial court in striking those allegations from his answer.
The facts in case 35,248 are as follows: After setting out the residence of the parties, the petition alleged that the United States National Bank of Denver and Albert S. Brooks were the trustees and the National Bank of Topeka was the executor of the estate of Henry K. Brooks. The petition then alleged that plaintiff had purchased certain real property for $50,000 and had paid $30,000 of this amount and given a mortgage for $20,000; that on June 23, 1932, an action had been commenced to foreclose this mortgage and a judgment was rendered and a sale was had in the foreclosure proceedings and the mortgagees were given a certificate of purchase; that Henry K. Brooks, the plaintiff’s brother, advanced money to plaintiff so that this real estate could be redeemed, and to secure himself Henry took an assignment of the certificate of purchase from the mortgagees and also a quitclaim deed to the property in question and also an assignment of stock in some building and loan association in the amount of $2,150; that from the date of the foreclosure of the mortgage Henry Brooks received the income from the real estate up to his death on August 12,1934, and after that the trustees and executors of his estate received it. The petition then alleged that this assignment and the quitclaim deed were intended to be mortgages only. The petition alleged that on August 12, 1934, Henry Brooks died testate, and under the terms of his will his property was transferred to the defendant Bank of Denver and Albert Brooks, another brother, as trustees to be held and administered for them; that about October 11, 1934, these trustees received the sheriff’s deed to the real estate in question; that Edith Teresita Brooks-Krueger, the daughter and only heir of Henry Brooks, claimed some title and interest in the property; that the trustees took the title to the real estate in question subject to the rights of the plaintiff. The petition prayed that the sheriff’s deéd and the quitclaim deed be declared to be mortgages to secure the payment of the money advanced by Henry Brooks, and that the plaintiff be declared to be the legal and equitable owner of the real estate subject to these conveyances; that an accounting be had to determine the amounts due the trustees on account of the advancements made by Henry Brooks for plaintiff, and for other equitable relief. •
Later this petition was amended by adding a cause of action charging that while Henry Brooks had been in charge of the real estate in question, which was a hotel, he had pulled out certain partitions and caused a garage to be installed next to the hotel, which damaged it in the amount of $5,000, and a third cause of action which charged that the plaintiff was the owner of all the furniture and furnishings in the hotel and that Henry Brooks had illegally taken possession of this furniture and was retaining it and that this had damaged plaintiff in the amount of $900. Due service was had upon all the defendants in this action. On three different occasions on application of the defendants an order extending the time for the defendants to plead was entered by the trial court. No answer was ever filed.
On April 27, 1936, the court made a journal entry finding that settlement had been made by the parties on all of the issues involved in the case and stating that the stipulation provided that the defendant trustees should have the legal title to the real estate in question and that the plaintiff should have the equitable title subject to a lien in the principal sum of $10,000, together with any other sums that might become due the trustees under the terms of the stipulation; that the $10,000 lien grew out of a debt owed the estate of Henry Brooks by George Brooks.
The stipulation was referred to and made a part of this judgment. The terms were as follows:
1. That the executor of the estate and the two trustees and Mr. and Mrs. Krueger should execute a quitclaim deed in favor of the plaintiff to the real estate in question; that this deed should be placed with the clerk of the district court of Shawnee county, who, upon satisfactory evidence of the compliance with the provisions of the stipulation, should deliver this deed to plaintiff or his heirs or assigns; that plaintiff might at any time before the expiration of five years from the date of the agreement pay the trustees the amount due them under its terms and the clerk could then deliver the deed to plaintiff.
2. That plaintiff should assign to the trustees all his title and interest in his shares of stock in the building and loan association.
3. That plaintiff should assign and agree to pay the $5,000 mortgage against the property in question in favor of either Roy P. or C. R. Forbes.
4. That the real estate in question should be impressed with a lien of $10,000, together with such additional charges and expenses as might be set out in the stipulation.
5. That the title to the real estate should remain in the trustees until the payment of the amount due the trustees, and in the event this amount should not be paid within five years from the date of the judgment the quitclaim deed referred to should be returned to the trustees and they should have the right to sell and convey the real estate or as much of it as might be necessary to pay the sums due them without foreclosure action; that the balance of the proceedings of the sale might be paid to plaintiff or his heirs or assigns.
6. That the management and control of the property should be vested in a board of control consisting of the National Bank of Topeka and plaintiff himself and one other party, and that the unanimous consent of all three members to this board should be required in all matters pertaining to the management and control of the property ; that the property should be kept insured and this board should have the right to collect the rents and pay the taxes and insurance and remodel the building, and in the event of the death, resignation or incapacity of any one of the board then the remaining two members were to select a third.
7. That the compensation for the members of the board should be paid by plaintiff.
8. That certain funds in the Bank of Topeka should be paid to this board.
9. That in the event the income from the property was insufficient to pay these charges the trustees would have unlimited right upon notice to sell and dispose of the property, either at private or public sale, and after deducting the amount due the trustees, deliver any balance remaining to plaintiff.
10. That the trustees shall cooperate with the board in securing the extension of the mortgage on the property in favor of Roy P. and Carrol R. Forbes in the amount of $5,000.
11. In the event that any ordinance in Topeka should require the removal of any improvements to be made on the real estate in question neither the Henry Brooks estate nor the trustees should be liable for any such expense.
12. That in the event the board had an opportunity to sell the property within the five-year period or if plaintiff desired to refinance the property the parties should cooperate in carrying this out.
The stipulation then contained the following provision:
“This stipulation, when properly executed by all of the parties hereto, shall constitute a full and complete settlement of any and all claims on the part of George W. Brooks against the Henry K. Brooks estate, the National Bank of Topeka, executor of said estate, the United States National Bank of Denver and Albert S. Brooks, trustees, and the heirs of said Henry K. Brooks, and this settlement shall also constitute a full and complete settlement of any and all claims on the part of the Henry K. Brooks estate, the National Bank of Topeka, executor of said estate, the United States National Bank of Denver and Albert S. Brooks, trustees, and the heirs of said Henry K. Brooks, against said George W. Brooks, except the $10,000, and such further or additional sums which may be due said trustees, as hereinabove set forth, covered by the lien against the Fifth Avenue hotel property as hereinbefore set forth.”
This stipulation was signed by the plaintiff, by his lawyers, by the National Bank of Topeka, by Albert S. Brooks and the United States National Bank of Denver and Edith Teresita Brooks-Krueger.
On February 1, 1941, four years, nine months and six days after the date of entering of the judgment, the plaintiff filed a motion to vacate this judgment. He first referred to the judgment and' stipulation and asked that it be vacated on the ground that it was void because while the action was pending he was old and weakened by worry and the victim of mental depression and that Albert Brooks, one of the trustees, intimidated him and threatened him that if he did not acknowledge he owed $10,000 to the estate of Henry Brooks he would have him prosecuted for perjury; that even though he knew himself to be innocent of any intention of wrongdoing, he was afraid he would be disgraced and sent to the penitentiary if he did not do as required, and that he brooded over this threat; that he refused to sign this stipulation until his attorney told him that Albert Brooks had given him the same information and that Albert Brooks, even though the defendants had not answered and there was no issue before the court and nothing for the court to decide, still demanded that he sign the stipulation, and that the will of plaintiff being wholly overcome and destroyed and being bereft of his free will he attached his name to the stipulation and directed his attorneys to approve it; that he did not learn of his mistaken belief until August 25, 1940, when he discussed the matter with another attorney; that defendants, having secured the void stipulation, went before the court and moved for judgment according to it, and that plaintiff, on account of his terror from the threats, refrained from informing the courts as to the manner in which the stipulation had been obtained; that the trial court had been deceived and was without knowledge of the fact that Albert S. Brooks was in control of both sides of the litigation and made the journal entry in question without jurisdiction.
The motion set out that the judgment should be set aside because—
“1. There was no issue developed by the pleadings or otherwise, for decisions by the court.
“2. There was no trial or hearing or pretense of hearing; and no questions of fact or law was submitted to, or decided by the court.
“3. The journal entry shows upon its face that it was decided by, and written by the parties as a mere development of the void stipulation they had previously secured by duress.
“4. The only thing submitted to the court was a fully prepared journal entry and the stipulation on which it was based.
“5. The stipulation was an attempt to stipulate jurisdiction, and for that and other reasons was entirely void.
“6. The said journal entry was signed and entered without jurisdiction by the court and was void and of no effect.
“7. That said stipulation was signed by plaintiff under the influence of duress as above set forth, at a time when his will was completely overcome and was wholly controlled by the will of the said Albert S. Brooks, who really signed the said stipulation for plaintiff herein by substituting his own will for the will of this plaintiff.”
The trial court, when this motion came on to be heard, held first that no evidence of .duress would be admitted in support of the motion to vacate because duress was in the nature of fraud and the plaintiff had only two years from the entering of the judgment to file such a motion. The trial court later held that the judgment was not void and overruled the motion to vacate.
Action No. 35,249, as has been stated, was an action to foreclose the liens and mortgages that were referred to in the stipulation. The defendant in that action, George W. Brooks, who was the plaintiff in the action that has just been described, alleged in his answer substantially the same matters as he alleged in his motion to vacate. That matter was stricken from the answer, and judgment entered.
We shall discuss the situation with reference to No. 35,248, because the conclusion reached in that case will be decisive of the questions raised in the other case.
Appellant argues first that the judgment in case No. 35,248 is void, regardless of whether there was duress. He refers first to article 3, section 6 of the constitution, which provides as follows:
“The district courts shall have such jurisdiction ... as may be provided by law.”
He then points out that the legislature has provided for: Judgment by the court after full trial (G. S. 1935, 60-3117 to 60-3125); default judgments (G. S. 1935, 60-3109); judgments by confession (G. S. 1935, 60-3110 to 60-3116); judgment on agreed facts (G. S. 1935, 60-2938 to 60-2940); offer by defendant to allow judgment for a specific sum (G. S. 1935, 60-2936, 60-2937); declaratory judgments (G. S. 1935, 60-3127 to 60-3132); and judgment after trial by referees (G. S. 1935, 60-2922 to 60-2928).
He argues that no other judgments' are provided for by our statutes; that this judgment did not comply with the provisions of any of those statutes — hence, was not provided for by law, and is therefore void.
Appellee argues that the statutes cited by appellant do not have the force in this case that he argues for them. The rule is well established that where a, court has jurisdiction of the subject matter of the action and of the parties and has authority to grant the particular relief that was granted, the judgment is not void.
We shall examine the relief for which the plaintiff prayed in this case.
First, he prayed that the sheriff’s deed and the quitclaim deed from him to Henry K. Brooks be declared mortgages to secure the payment of money advanced by Henry Brooks for him in redeeming the real estate in question from sale, and that the plaintiff be decreed to be the legal and equitable owner of that real estate and that his title be quieted. That is precisely the relief he was given by the judgment which he seeks to have this court hold void. The instruments were held to be mortgages and his title was quieted. Nobody argues that the district court of Shawnee county did not have jurisdiction to grant that relief. Nobody argues that the parties did not have jurisdiction of the subject matter of the action, which was the land and conveyances, and nobody argues but what the parties were all in court, and nobody argues but what the court had jurisdiction to give this precise relief, which was to declare these conveyances to be mortgages.
Next, he prayed for an accounting to determine the amount due the trustees of Henry Brooks for money expended in redeeming the real estate. In his petition in this case the appellant alleged that he did not know how much Henry Brooks had furnished, but stated that Henry Brooks “advanced sufficient moneys, the exact amount of which plaintiff is unable to state, to redeem said real estate for plaintiff”- — hence, he asked for an accounting. He had also alleged that Henry Brooks had been in possession of the property and had taken income and rents from it. This was clearly a case of an accounting, and nobody argues but what the district court of Shawnee county had authority to order an accounting. As the result of an accounting, the lien for $10,000 against the property about which appellant complains, could very well have been found to exist, also the claim that caused the assignment to the trustees of the building and loan stock. There does not seem to be any question about the $5,000 mortgage which the Forbes’ had on the real estate in question. No one argues but what the trial court had jurisdiction to order such an accounting.
The other two causes of action where money judgment was claimed — nobody doubts but what the court had jurisdiction to award the money judgment or withhold it under the circumstances pleaded and as the facts might warrant.
Appellant urges that because there was no answer filed in this case and no evidence taken, the judgment is void. That is not the rule. G. S. 1935, 60-3110, clearly provides that a person against whom a cause of action exists may appear in a court of competent jurisdiction and agree to a judgment growing out of the matters pleaded in his petition. Appellant realizes that this is the statute, but points out that G. S. 1935, 60-3113, provides that there shall be an affidavit of the defendant filed stating briefly the facts upon which the indebtedness arose and that the amount of indebtedness is justly due and owing to the defendant. He points out that there was no such affidavit filed in this case and that without that affidavit the judgment is void. Even if that section applied to a case such as- this, the fact that it was not strictly followed in taking this judgment would not render the judgment void. In Smith v. State, 64 Kan. 730, 68 Pac. 641, this court held that- between the parties the failure to file this affidavit did not affect the validity of the judgment. The court stated—
“The judgment was not confessed in the technical manner provided in section 4856 of the General Statutes of 1901. It is conceded by counsel for plaintiffs in error that the statute cited has no application to the judgments in injunction suits. We regard the judgment complained of to have been rendered by consent, which estops the party consenting to its rendition from thereafter objecting to its validity. A judgment entered by confession, with out the filing of an affidavit, required by section 4854 of the General Statutes of 1901, is valid between the parties.”
(See, also, Manly v. Mayer, 68 Kan. 377, 75 Pac. 550; also, Baldwin v. Baldwin, 150 Kan. 807, 96 P. 2d 614, and cases there cited.)
The judgment in this case provided for the appointment of a so-called board of control composed of a brother to appellant and a reputable lawyer and appellant himself. There might be a question as to whether the court had jurisdiction to appoint such a board. The appellant does, however, make no point of that in his brief, and if the court did not have jurisdiction to appoint such a board the fact that it did so would not render the entire judgment void. Furthermore, it does not appear from this record that the appointment of this board in any way prejudiced the appellant or hindered him in the management of his property or will hamper him in his efforts to redeem. We conclude, therefore, that this did not render the judgment void.
The next question is whether the duress pleaded by the appellant was sufficient to warrant the court in vacating this judgment. The trouble with that is, duress has been held to be a species of fraud. (See Johnson v. Schrader, 150 Kan. 545, 95 P. 2d 273.) As was said in that opinion, unless duress is a species of fraud the statutes do not provide any ground for vacating a judgment on account of it. If it is a species of fraud, then the action to vacate a judgment on account of it must be brought within two years of the rendition of judgment. (See G. S. 1935, 60-3007, subsection 4, 60-3008.) This motion was not filed for more than four years after the judgment was entered — hence, was too late.
The decision we have reached as to this case makes it unnecessary to discuss the questions with reference to the second case.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Haevey, J.:
This is an original proceeding in mandamus and for a declaratory judgment construing certain statutes relating to the amount of capitalization fee which should be paid by a foreign corporation which proposes to and does use a part of its capital in this state.
As shown by the pleadings, the controversy between the parties arises in this way: In July, 1927, the Empire Gasoline Company, a corporation organized under the laws of Delaware and authorized to do business in Kansas, amended its charter, changing its name to The Empire Oil and Refining Company (which name since has been changed to Cities Service Oil Company) and increasing its capital stock. These facts were certified to our secretary of state.
But there was not included in the certificate a statement of the amount or portion of its capital the corporation proposed to use in Kansas, and the capitalization fee for such intended use was not paid, as required by G. S. 1935, 17-221. This is said to have been an oversight. These omissions' appear not to have been discovered in defendant’s office until 1940. In the meantime the plaintiff corporation each year had filed its annual report and paid the annual license fee required by statute for doing business in this state. These reports show that the largest amount of its capital plaintiff used in this state any year since 1927 was used in the year 1929. On September 7, 1940, defendant wrote plaintiff calling its attention to the omission in its certificate of 1927 and its failure at that time to pay the capitalization fee. Plaintiff conceded its liability therefor and sent a check for what it regarded as the proper capitalization fee which should have been paid in July, 1927. This seems to have been computed upon the annual reports of the company filed with the secretary of state in December, 1926, and December, 1927, showing the amount of its capital used in Kansas those years. Defendant returned the check, declining to accept it, and asked for a larger sum computed upon plaintiff’s report for 1929. Plaintiff contends defendant should have accepted the sum tendered, and asked for an order requiring him to do so, while defendant contends the larger sum should be paid.
The determination of the controversy requires the construction of two sections of our statute — G. S. 1935, 17-221 and 17-222 — -as they apply to the facts pleaded, although there are some other sections co-related thereto. The pertinent portions of the two sections mentioned read:
“. . . (3) Every foreign corporation authorized by the charter board to engage in business in this state shall, before such certificate of authority is issued, pay to the secretary of state a fee toi be known as capitalization fee, based upon that proportion of its lawfully issued capital which it proposes to invest and use in the exercise and enjoyment of its corporate privileges within this state ... (5) When any corporation doing business in this state shall increase its capital stock as heretofore provided, such corporation shall pay to the secretary of state, at the time of filing certificate thereof, a capitalization fee of one-tenth of one percent on the first one hundred thousand dollars or less of such increase. . . . Foreign corporations shall pay the same fee for increased capitalization as domestic corporations, except that the fee shall be based upon the amount of capital which.it proposes to use. in its business in the state of Kansas. . . (G. S. 1935, 17-221.)
“Whenever it shall appear to the secretary of state that there are reasonable grounds for believing that a foreign corporation seeking to do business in Kansas has understated or underestimated the amount of its capital stock which it proposes to use or does use in the exercise of its corporate business within this state, said secretary of state is hereby authorized to cause an investigation to be made at the expense of such corporation, of the corporate capital, business and assets of any such corporation, and his findings- pertaining thereto shall be prima facie evidence of the correctness of such finding upon the company, and the company shall be liable forthwith to pay an additional capitalization fee as provided in this act based upon the estimate of the secretary of state of the corporate capital, business, assets and property which it seeks to use or does use and enjoy within the state of Kansas.” (G. S. 1935, 17-222.)
Plaintiff stresses the point that in July, 1927, was the time when the capitalization fee should have been computed and paid, based upon the increase then made in the capital stock of the company and the amount of its capital it proposed to use in this state, citing on that point State v. Railroad Co., 81 Kan. 404, 105 Pac. 685. Defendant concedes that point and says if the corporation had then certified the amount of its capital it proposed to use in Kansas, and had tendered the capitalization fee therefor, no doubt it would have been accepted, but points out that under section 17-222, if it developed the amount the company proposed to use in Kansas had been underestimated, defendant could have made an examination of the company, at its expense, to determine the amount of its capital actually used in the state, and could have assessed an additional capitalization fee therefor. Plaintiff points out that defendant did not follow that method, but took the annual report of the company for 1929 and computed the tax on the amount the report showed was actually used in this state. There is no contention this, report was inaccurate; neither is it contended that had defendant made an investigation of plaintiff’s business at its expense the result would have been different. It is clear, therefore, plaintiff is not damaged in any way by the method used by defendant. Plaintiff argues defendant could have used a similar method in determining the capitalization fee due in July, 1927, by examining the annual reports of the company for 1926 and 1927. Let it be assumed defendant by this method could have discovered the amount of the company’s capital stock used in this state in each of those years, and by assuming that is what the company intended to use at the time it increased its capital stock in July, 1927, could have computed what capitalization fee was due at that time. Even if by this method defendant had attempted to correct plaintiff’s mistake in not making the proper certificate and paying the proper fee, still it would have been defendant’s duty, when he found later the amount of plaintiff’s capital used in this state had been underestimated, to have made an appropriate computation and asked for a larger capitalization fee.
It is clear from this record that plaintiff is not now asked by defendant to pay any greater fee than it should have paid years ago. It is benefited by the fact that defendant did not, at the expense of the company, investigate in 1929 or 1930 its use of the capital and make an independent computation of the part of it used in this state.
The result is, the writ prayed for should be denied. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to specifically enforce a contract for the sale of real estate.
The trial court sustained a demurrer to defendant’s answer and cross petition and he appeals.
Omitting formal parts and much of the detailed allegations, plaintiff’s petition alleged he was the duly appointed, qualified and acting administrator with the will annexed of Kisarah Maynard, deceased, a copy of his letters being attached; that Kisarah Maynard died May 22, 1935, and her will was duly admitted to probate, a copy of the will being annexed and referred to later; that on September 6, 1939, plaintiff, as such administrator, was in possession of the real estate hereafter mentioned, and entered into a contract in writing with the defendant for the sale of a certain described tract of real estate to defendant, who paid the Iuka State Bank, of Iuka, Kan., the sum of $500 in escrow as part of the purchase price. A copy of the contract was attached to the petition and is referred to later. Plaintiff further alleged he had fully performed his contract but defendant refused to perform. The prayer was to compel specific performance.
It appears from the letters of administration with the will annexed issued to plaintiff, under date of July 25, 1939, that Charles A. Maynard, the executor named in the will and to whom letters testamentary were issued, was dead, and upon petition of Benny Maynard “and due hearing thereon in the manner provided by law” letters of administration be granted to George Barrett, as administrator with the will annexed of the estate of Kisarah Maynard, deceased.
So far as concerns the present controversy, it may be noted the will of Kisarah Maynard appointed her son, Charles A. Maynard, as executor. Certain bequests were made, and the testatrix then devised and bequeathed the residue of her property, real and personal, to her executor to hold for a period of three years after her death, paying the net income to her five children, and at the end of the three-year period the executor was directed to convert the property into cash and when so converted to pay each of her children one share or part, with provision if any child be dead, its issue should take.
The contract was made September 6, 1939, between plaintiff as party of the first part and defendant as party of the second part, and among other things provided that in consideration of $7,500 to be paid as provided, first party agreed to sell and second party agreed to buy a certain described quarter-section of land. Second party paid $500 to the Iuka State Bank as 'escrow agent to be used as stipulated, the balance of $7,000 to be paid the bank upon delivery of a good and sufficient administrator’s deed. First party agreed to furnish abstract of title showing merchantable title, with taxes paid, second party was to have a reasonable opportunity to examine it and first party was to have a reasonable time to meet any requirements. Upon perfection of the title, second party was to pay the remaining $7,000 to the bank, which was then authorized to deliver the deed to the second party, and to pay out the moneys for certain expenses and unpaid taxes, the residue to be paid to first party. The contract further provided:
“It is further agreed that if second party shall fail or refuse to accept deed and comply with the terms of this agreement to be performed on his part when first party has complied with the terms of this agreement to be performed on his part, then the sum of S500 so escrowed with the Iuka State Bank, Iuka, Kansas, at the signing of this contract shall be 'paid by the escrow bank to first party for and as liquidated damages and this contract shall cease and terminate, and the parties hereto shall thereafter be relieved from further liability hereunder, and the escrow bank shall return to first party the deed so to be escrowed by first party according to the terms of this contract.” (Italics ours.)
By his answer defendant admitted the death of Kisarah Maynard; that her will was ádmitted to probate and a true copy was attached to the petition, and that he had entered into a written agreement for the purchase of real estate, a correct copy being attached to the petition, and that he had made the initial payment of $500 as therein provided. He expressly denied that plaintiff was duly appointed as administrator with the will annexed, and further answering alleged that upon admission to probate of the will of Kisarah Maynard, Charles A. Maynard was appointed and qualified as executor thereof and served until his death on July 11, 1939; that on July 25, 1939, on the petition of Benny Maynard, letters were issued to George Barrett as administrator with the will annexed of the estate of Kisarah Maynard, deceased; that the appointment was void and of no effect because no order was made for the time and place of hearing the petition, and no waivers of any of the heirs at law or devisees under the will of Kisarah Maynard were filed as provided by section 180 of the probate code (G. S. 1939 Supp. 59-2204), but that the petition was heard without notice, and by reason thereof the appointment was illegal and void, the probate court was without jurisdiction, and George Barrett was not, at the time of making the contract, nor when the answer was filed, the duly appointed, qualified and acting administrator with the will annexed. It was further alleged that by reason of the above the abstract of title did not show a merchantable title to the real estate in the plaintiff, and that his deed as administrator with the will annexed would not convey a merchantable- title. Then follows a series of allegations that certain of the legatees under the will of Kis.arah Maynard had made mortgages, deeds and assignments of their respective interests in the estate and in the particular real estate, and by reason thereof the abstract of title did not show a merchantable title in George Barrett as administrator with the will annexed; that the abstract of title was submitted to the defendant for examination, who caused it to be examined by his attorneys and an opinion was prepared and delivered to plaintiff setting out the defects, but the defects still exist, and by reason of all the foregoing defendant has not been tendered a clear and merchantable title and plaintiff is not entitled to recover. Defendant’s cross petition made allegations of his answer a part thereof, and alleged failure of the plaintiff, within a reasonable time, to perfect the title to the real estate, and sought recovery of the $500 paid in escrow to the Iuka State Bank under the contract.
Plaintiff demurred to the answer and cross petition as stating no defense to plaintiff’s petition nor ground for affirmative relief in favor of the defendant. The trial court sustained the demurrer and this appeal followed.
Appellant’s first contention is that plaintiff was not the duly appointed and qualified administrator -with the will annexed of Kisarah Maynard, deceased, and arises under the new probate code now appearing as G. S. 1939 Supp., ch. 59. References hereafter made will be only to chapter and section number. In effect appellant’s contention is that an administrator may be legally appointed only upon the filing of a verified petition, 59-2201, showing petitioner’s right to the relief sought, 59-2202, giving the information requisite to a petition for administration, 59-2219, upon the filing of which the court shall fix the time and place for the hearing thereof, and order notice to be given, 59-2222, unless such notice be waived, as provided in 59-2223, and upon hearing shall appoint an administrator and fix his bond, 59-2232. In effect, appellee argues that no notice is required where the appointment is of an administrator de bonis non under 59-708. With that general proposition we cannot agree. In an ordinary case, to procure such an appointment the filing of a petition was necessary (59-2201), it had to be set for hearing (59-2204), and it seems implicit from the entire code that notice should be given, unless the court shall make an order to the contrary. (See especially 59-2222 and generally 59-705, 59- 710, 59-2204, 59-2227, 59-2232.) It is to be observed that in the case now before us, the original appointment was of Charles A. Maynard as executor, whose duties were to execute the will; that George Barrett was appointed as his successor to complete the administration, and that strictly speaking he was an administrator with the will annexed de bonis non. Had Kisarah Maynard died subsequent to July 1, 1939, when the present probate code took effect, it would have been necessary to do more than was done in the probate court in the present instance, but that it was not done does not make the proceedings bad. It would appear that under 59-2204 the filing of a petition for the appointment of an administrator with the will annexed de bonis non was the commencement of a proceeding, and in a case arising entirely after the code was effective would require observance of all provisions for filing of petitions. But in this case we have to give consideration to the fact the administration of the Maynard estate had been continuing for some years prior to the date of the appointment of George Barrett as administrator, etc., on July 25, 1939, and that it is provided by 59-2602 the rules of procedure prescribed by the new code and effective July 1, 1939, govern all proceedings after that date “except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible,” etc. There is no provision the probate court must make a specific finding the exception should apply. But it is evident from the recitals in the letters issued the probate court must have so concluded, for it recited therein “that upon the petition of Benny Maynard and due hearing thereon in the manner provided by law” letters should issue to George Barrett. Under the circumstances disclosed, we cannot say the probate court was without jurisdiction to entertain the petition of Benny Maynard, nor that because no notice was given to the legatees or heirs of Kisarah Maynard, the order of appointment was void. Even though the method followed be held irregular, the probate court had jurisdiction, and its judgment may not be collaterally attacked.
Appellant also contends the title to the real estate was not marketable, and that he was so advised by his attorney to whom he submitted the abstract of title for examination. In essence, two objections are made. The first is that owing to the failure to give notice of hearing of the petition for appointment of the administrator with the will annexed, there was no valid appointment of George Barrett and his deed as such administrator would not convey good title. What has been said in the earlier part of this opinion is a sufficient answer to this objection. The second is that the various assignments and conveyances by the legatees under the will of Kisarah Maynard constitute clouds on the title, which might subject the purchaser to litigation.
Appellant directs our attention to various decisions defining a marketable title, and tests to be applied to determine whether or not, in an action for specific performance, the purchaser shall be compelled to accept the title tendered. The two following cases state a rule as favorable to him as any cited or which our research discloses.
In Eisenhour v. Cities Service Oil Co., 149 Kan. 853, 89 P. 2d 912, it was held:
“A title need not be bad in fact in order to be nonmerchantable or unmarketable. It is sufficient to render it so if an ordinarily prudent man with knowledge of the facts and aware of the legal questions involved would not accept it in the ordinary course of business.” (Syl. ¶ 3.)
The above rule was adhered to and applied in Ayers v. Graff, 153 Kan. 209, 109 P. 2d 202.
In the earlier case of McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834, it was held:
“Equity will not compel a purchaser under an executory contract for the sale of land to accept the title if doubtful or unmarketable. A title is doubtful if it exposes the party holding it to the hazard of litigation.” (Syl. ¶ ¶ 1, 2.)
The same rule was recognized in Newell v. McMillan, 139 Kan. 94, 30 P. 2d 126, where it was said that “mere quibbles and peccadilloes which the ingenuity of counsel can raise against a title do not render it unmarketable.” (p. 100.) Applying the rules stated above to the instant situation, we learn from the record that under the will of Kisarah Maynard, the testatrix disposed of certain personal property, all the residue and remainder of her property, whether real or personal, being devised and bequeathed to her executor, who was to hold it for a period of three years, then convert it into cash and divide the proceeds into five shares, one share going to each of five named children, with a provision that if any child be dead, its share or part should go to the heirs of its body, etc. Conversely stated, the testatrix did not devise any real estate, including that presently involved, to any one of the persons making the assignments and conveyances, which appellant contends constitute clouds on the title. Those assignments and conveyances were made by persons who had no title to the real estate presently involved. Even though it be conceded that in an ordinary case there might be some doubt by reason of the beneficial interest of the children in the proceeds of the lands when sold by the executor, it could hardly be said to be substantial here. What interest the legatees took under the will of Kisarah Maynard, deceased, was before this court in an action between persons other than the parties to the present appeal, under a situation arising during the period in which the executor was to hold the lands before selling them, the question being whether the interest of a legatee was of real estate subject to attachment, or of personal property consisting of an interest in the proceeds and subject to garnishment. In disposing of the first phase of that proposition, this court said in Paulin v. Parker, 149 Kan. 673, 674, 88 P. 2d 1099:
“It will be noted that by the terms of the will no real estate is devised to the defendant Katie Parker. On the contrary, there is a specific devise to the executor for the uses and purposes stated in the will. The situation before us is not one where there is no devise to the executor or trustee who is given only a naked power to sell; here the title is vested in the executor in order that certain things be done in the management of the property for a definite term, following which he is under duty to convert the property into cash by selling it, and to then divide the proceeds among the children, their bodily heirs, or their survivors. Although appellant did seek to attach the claimed interest of appellee in the real estate which her mother had owned, it clearly appears the real estate was devised to the executor, who was directed to sell it and divide the proceeds among certain beneficiaries to be determined as set out in the will. It also clearly appears that it was the intention of the testatrix to give to the beneficiaries shares of personal property, and not an interest in real estate, and that under Hart-Parr Co. v. Chambers, 116 Kan. 136, 225 Pac. 1076, the doctrine of equitable conversion should apply. And when it is applied here, it follows that the appellee had no interest in the real estate formerly owned by her mother which is now subject to attachment as property of the appellee. The trial court did not err in discharging the attachment.” (p. 674.)
The above appeal had been disposed of and an opinion filed before George Barrett had been appointed administrator, etc., and before the contract in question had been executed. Of course, the matters decided in that case may not be said to be res judicata in the present appeal, but they are of consequence in determining the sufficiency of the present complaints against the title.
We do not now have before us the sufficiency of the assignments and conveyances made by various of the legatees, nor'of the rights of those designated therein as assignees, grantees or mortgagees, but as they affect rights in personal property, they will no doubt ultimately be considered in the probate court, if not before, at least when an order of final settlement is made. The purchaser of any of the real estate belonging to the estate of Kisarah Maynard, deceased, either from the executor originally named or from his successor, the administrator with the will annexed de bonis non, is not, however, interested as purchaser in what is done with the proceeds of the real estate. The record discloses that none of the children making the assignments or conveyances had any legal title to the real estate involved, and the various instruments executed by any of them were not sufficient to constitute clouds on the title, nor make the title doubtful or unmarketable.
Appellant’s contentions with respect to his cross petition need not be discussed, for they depend on his being sustained on his other contentions previously discussed.
There remains for consideration one other matter. Although not dwelt on at length, appellant says that the demurrer searches the record, and that the demurrer should have been sustained as to the petition, for the reason the contract provided, as quoted above, that if he failed to perform, the bank holding the $500 initial payment should pay the same to the other party as liquidated damages and he should be relieved from further liability. The fact there was such a provision, and that it was fully effective, did not make the petition demurrable, for the only effect would be to determine the extent of plaintiff’s recovery. We cannot here treat fully the question whether plaintiff’s recovery is to be limited for two reasons. One is that there is nothing in the record to indicate the question was presented in the trial court. The other is the issue raised by the answer was not that liability was limited by the contract; appellant contended no valid contract was made or, if made, the title was unmarketable, and his cross petition was on the same theory. The record does not show that any final judgment was rendered in the action. Before there is a trial on the merits, defendant may see fit to file an amended answer specifically raising the question. As the pleadings in the cause as submitted to us do not raise the issue, we shall not discuss it further.
The judgment of the the trial court is affirmed. | [
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The opinion of the court was delivered by
AlleN, J.:
This action was to recover damages for personal injuries. The petition, filed February 1, 1936, alleged that on August 14, 1935, the automobile which plaintiff was driving collided with a streetcar of the defendant company at the intersection of State avenue and Tenth street in Kansas City, Kan. It was alleged that the injuries sustained by the plaintiff were caused by the negligence of the servants of defendant in the operation of the streetcar. Plaintiff prayed for judgment in the sum of $3,000.
Defendant filed a motion, the nature of which is not set forth in the record, which was sustained. Thereafter, and on May 23, 1936, plaintiff filed an amended petition. On June 2,1936, defendant filed its answer, which after a general denial and a plea of contributory negligence, alleged, as a bar to the cause of action set forth in plaintiff’s petition, that on February 1, 1936, the plaintiff brought an action against the defendant in the city court of Kansas City, Kan., for property damage to his automobile sustained in the same collision; that the action in the city court was tried on April 23, 1936, and a judgment rendered in favor of plaintiff for the sum of $125 and costs; that no appeal was taken from the judgment, and that on May 13, 1936, the judgment was paid in full and the judgment was satisfied of record by the plaintiff. The reply was a general denial.
Under an agreed statement of facts the parties stipulated that on February 1, 1936, the plaintiff brought an action in the city court of Kansas City, Kan., against defendant for property damage to the automobile of plaintiff resulting from the same collision sued on in the present action; that the action was tried and judgment was rendered in favor of plaintiff; that the judgment was paid by defendant, and that the judgment was satisfied of record by plaintiff.
The case was tried to a jury, and at the conclusion of the evidence the defendant filed a motion for a directed verdict. This motion was overruled. The jury rendered a verdict for $250 in favor of plaintiff and returned answers to special questions. Judgment was entered upon the verdict and this appeal followed.
Defendant contends that a single wrongful or negligent act, causing an injury both to the person and property of the same individual, constitutes but one action with separate items of damage; that the cause of action cannot be split, and that a recovery of judgment for one item of damage may be pleaded in bar of an action to recover for the other item of damage. Obviously, if this theory must be sustained, there was nothing to submit to the jury and the motion for the peremptory instruction should have been sustained.
The principle that a judgment for a part of an entire and indivisible demand is a bar to an action for another part of the same demand is the general rule (1 C. J. S. 1306) and has been inflexibly maintained in this jurisdiction. (Madden v. Smith, 28 Kan. 798; Tootle v. Wells, 39 Kan. 452, 18 Pac. 692; W. & W. Rld. Co. v. Beebe, 39 Kan. 465, 18 Pac. 502; Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467; Barrett v. Montgomery County, 109 Kan. 685, 201 Pac. 1098.)
In the leading case of King v. Chicago M. & St. Paul Ry. Co., 80 Minn. 83, 82 N. W. 1113, 50 L. R. A. 161, 81 Am. St. Rep. 238, the rule of the English courts announced in Brunsden v. Humphrey (1884) L. R. 14 Q. B. Div. 141, that injury to the person and property of plaintiff resulting from a single tortious act of defendant created two separate causes of action, was repudiated. In the King case the court stated:
“We are of the opinion that the cause of action consists of the negligent act which produced the effect, rather than in the effect .of the act in its application to different primary rights, and that the injury to the person and prop erty as a result of the original cause gives rise to different items of damage. . . . The views we have adopted seem to us more in harmony with the tendency towards simplicity and directness in the determination of controversial rights. That rule of construction should be adopted which will most speedily and economically bring litigation to an end, if at the same time it conserves the ends of justice. There is nothing to be gained in splitting up the rights of an injured party as in this case, and much may be saved if one action is made to cover the subject.” (p. 88.)
As stated in Clark on Code Pleading, p. 332, "A rule leading to two lawsuits where one will accomplish the same results is not to be favored.”
While the question is a new one in this jurisdiction, we unhesitatingly adopt the majority view, and hold that the injury to the person and property of the plaintiff resulting from the single act of negligence on the part of the defendant constituted one cause of action. See cases cited in Annotations, 50 L. R. A. 161; 64 A. L. R. 663; 104 A. L. R. 973.
The rule against splitting a cause, of action does not prevent a plaintiff from suing for a part of a single cause of action; it merely precludes him from thereafter maintaining another action for the other portion. (Todd v. Central Petroleum Co., Inc., post, p. 550, this day decided.)
Plaintiff contends, however, that defendant has waived the enforcement of the rule. In 1 C. J. S. 1312, the rule as to waiver is stated:
“Since the rules prohibiting the splitting of causes of action is for the benefit of defendant, he alone is entitled to object if the rule is not enforced; he may waive or renounce its benefits by either expressly or impliedly consenting to the institution of separate actions on a single demand or cause of action, and such a waiver will be presumed unless timely and proper objection is made.”
See, also, Anspaugh v. Dougherty, 153 Kan. 257, 109 P. 2d 101. As stated above, the action for property damage was filed in the city court on February 1, 1936, the case was tried and judgment entered on April 23, 1936, and on May 13, 1936, the judgment was paid and satisfied of record. While the present action was brought on the same date as the action in the city court, a motion was leveled at the petition, which motion was sustained by the court, and the plaintiff was given time to file an amended petition. The amended petition was filed on May 23, 1936, which was after the judgment was entered and satisfied in the city court. The answer of defendant to the amended petition was on June 2, 1936. It thus appears that when the judgment was entered in the city court the answer was not yet due on the present action in the district court. The defendant was not compelled to raise the defense of res judicata until a petition stating a cause of action was filed. The motion leveled at the original petition was sustained, so the court evidently considered the petition insufficient. As the issue of res judicata was raised at the first opportunity after the amended petition was filed, we do not think it could be fairly urged that the rule against splitting was waived by defendant. We hold, therefore, that the personal and property injury to the plaintiff resulting from the negligence of defendant constituted one cause of action, and that the judgment for the property damage in the city court was a bar to the action in the district court. As this conclusion determines the action, it is unnecessary to consider the other specifications of error.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an attachment proceeding. In September, 1936, plaintiff recovered personal judgment for $2,558.84 against the defendant, Paul Heusser, in the district court of Wyandotte county. On May 1,1940, plaintiff had an alias execution issued on this judgment. This was returned unsatisfied. On June 12, 1940, plaintiff caused a garnishment summons to be issued on the judgment and directed to the Guaranty State Bank. The bank answered that it “was indebted and owed said defendant, Paul F. Heusser & Company, General Agent, Trust Account, the sum of $476.68 . . .” Paul Heusser filed an answer taking issue with the averments of the affidavit of garnishment, and with the answer of the garnishee, and alleging that he was agent for several insurance companies; that the sum in the bank account was made up of premiums collected by him on insurance policies delivered, and that it belonged to the insurance companies and was held by him in trust for them. The Phoenix Assurance Company, Ltd., by leave of court, filed its interplea in which it alleged Heusser was its agent under a written contract, which is set out, by which he was authorized to deliver insurance policies and collect the premiums thereon. This contained a clause:
“All premiums received by the agent shall be held by him as trustee for the company until delivered to it. The privilege being granted of taking commissions provided in section 7 from premiums shall not be considered as changing the relationship of the respective parties hereto.”
Attached as an exhibit was a list of policies, upon which defendant had collected the premiums and had not remitted to the insurer, showing total collections of $635.88, less commissions of $158.97, leaving as belonging to the insurer $476.91, which, less the bank charges of 23 cents, left $476.68, the amount reported by the bank as being in the trust account.
A hearing was had upon the answer and interplea, with the result that the court discharged the garnishment. Plaintiff has appealed.
Appellant argues that his demurrer to the answer, to the inter-plea, and to the evidence should have been sustained as insufficient to establish that the money garnisheed was the property of the insurer held by defendant as a trust fund. Our statute (G. S. 1935, 40-247) in substance provides that an agent who rightfully receives the premium on an insurance policy holds such premium in trust for the insurer. If he uses the money for some other purpose than paying it to the insurer he is guilty of larceny. Even if the agent does not remit the premium to the insurer, the policy is in force, and the insurer cannot cancel it for nonpayment of premium. (Riddle v. Rankin, 146 Kan. 316, 69 P. 2d 722.) The substance of this statute had been written in the agency contract. The pleadings and the evidence on behalf of defendant, used also on behalf of the interplea, fairly tended to show that the sum in the bank account at the time of the garnishment was made up of insurance premiums collected, was in fact a trust fund, within the meaning of the statute, previously cited, and within the meaning of the agency contract, and did in fact belong to the interpleading insurer. Plaintiff offered no evidence.
Appellant makes some criticism of the evidence, but this goes to its weight rather than to its sufficiency. The weight to be given to the evidence was for the trial court. We examine it only to see if it is sufficient to sustain the judgment. We think it ample for that purpose. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is the second appearance of this case in this court. (Niebauer v. Bivins, 149 Kan. 260, 87 P. 2d 619.) The ex tended statement of the case in our former opinion need not be repeated.
Briefly, it was an action to recover on a bond given by defendant sureties for the redelivery of chattels which plaintiff had taken possession of under the authority of certain chattel mortgages. The original record was long, and various impertinent issues were raised which led to an erroneous and altogether unjust result in the trial court. To prevent its repetition, when this court reversed the judgment and remanded the cause for a new trial, we ordered that it should be reduced to the single issue of ascertaining and determining what property seized by the sheriff and returned to Bivins (defendant in custody of the mortgaged property and mortgagor of part of it) on the faith of the redelivery bond signed by the sureties had not been redelivered to plaintiff in accordance with its terms and to give plaintiff judgment therefor. In our opinion it was said:
“Here, unfortunately for all parties, the record does not permit this court to end this litigation with directions to enter judgment. There will have to be a new trial. But the multifarious and irrelevant matters which confused the issues at the last trial should be eliminated entirely, and the controverted issues reduced to the ascertainment and determination of what property seized by the sheriff and redelivered to Bivins on the faith of the bond signed by Trindle and Near as sureties has not been delivered to Niebauer according to its terms. The fact that a neighbor took up some horses running at large and offered them to the mortgagor, Mrs. Sibon, was not a return of the mortgaged horses to Niebauer according to the obligation of the bondsmen. Neither did the offer of the bondsmen to go to Stanton county and hunt up the cattle and bring them to Niebauer, if he would accept them, constitute a return of the cattle according to the obligation of their bond. The value of the unreturned horses and the unreturned cattle, as of the date of the replevin bond, should be fairly determined and judgment for their value rendered in plaintiff’s behalf. That is the minimum of justice which must be accorded to plaintiff in this action.” (p. 269.)
Neither party filed any motion for a rehearing or to modify our opinion and judgment, and our mandate issued in due course.
In the second trial the learned trial court was persuaded by defendants that what we said was the “minimum of justice” to which the plaintiff was entitled — the value of the unreturned horses and cattle — was also the maximum, of what he was entitled to recover. We had no such thought. Indeed, we would have had no right to deny plaintiff a recovery of the fair value of every article seized by the sheriff on the writ of replevin and later surrendered to Bivins on the faith of the redelivery bond which was not forthcoming accord ing to its terms. It is the duty of this court and of every court in a government which professes to administer justice according to law, to render to every man his due, not a mere fraction of his due, or to split the difference between him and his adversary where he is clearly in the right and the latter clearly in the wrong.
The redelivery bond read as follows:
“State of Kansas, Stevens County, ss :
“Whereas, By virtue of an order of replevin issued to the undersigned, sheriff of said county, out of the district court for said county, in an action therein pending, wherein Charley Niebauer being the same person as Charles Niebauer, is plaintiff, and Ray B'ivins and Hazel Bivins, his wife, are defendants, said sheriff has taken into his possession the following described goods and chattels, of the value as follows, to wit:
“description of property :
1 six year old mare, brown, weight about 1,200 lbs.$ 100.00
1 smooth mouthed mare, brown, weight about 1,200 lbs. 25.00
1 smooth mouthed mare, bay with spot in forehead, 900 lbs. 25.00
2 smooth mouthed horses, weight 1,000 lbs. each. 50.00
1 smooth mouthed mare, iron gray, weight 1,600 lbs. 25.00
1 smooth mouthed mare, brown, weight 900 lbs. 25.00
1 smooth mouthed horse, bay, weight 900 lbs. 25.00
2 colts .
1 Red Durham bull. 135.00
27 mixed colors cows, age 4 to 7, $30 each. 810.00
11 2-year old heifers, mixed colors, $30.•. 220.00
1 header. 15.00
2 header barges. 15.00
2 farm wagons. 15.00
1 2-row lister. 15.00
2 cultivators. 30.00
6 sleds . 10.00
1 3-section harrow. 5.00
5% sets harness. 30.00
1 auto trailer. 30.00
All other tools, implements, etc., on the premises occupied by defendants, NEl/L of section 3-34-39, Stevens county, Kansas. 50.00
80 acres of maize growing on the northeast quarter of section 3, township 34, range 39; 100 acres of maize growing on the southeast quarter of section 34, township 33, range 39; and 80 acres of maize growing on the south half of the south half of section 35, township 33, range 39; all in Stevens county, Kansas, estimated 52,000 bushels . 1,800.00
“All of the aggregate value of three thousand five hundred and fifty-five and no/100 dollars, which property said sheriff returns to said defendants.
“Now, we, the undersigned, residents of the state of Kansas, bind ourselves to said plaintiff in the sum of $8,800 dollars, that said defendants shall deliver to the said plaintiff the property herein returned to them, if such return be adjudged, and pay all costs and damages awarded against them in this action.
(Signed) J. A. Trindle,
Ray Bivins, A. Near,
Mrs. Hazel Bivins, Sureties. Principals.
Approved by me this 3d day of November, a. d. 1933.
H. I. McBee, Sheriff.”
In its instruction to the jury the trial court rehearsed the terms of the redelivery bond, but added:
“The only property that is left for you to consider is the livestock therein described.”
Plaintiff made timely objection to this instruction and requested one which may not have conformed to the ruling of this court. Be that as it may, the trial court’s instruction was clearly erroneous, in that it failed to tell the jury that they should find the fair and reasonable value of every chattel which the sheriff had surrendered to Bivins on the giving of the redelivery bond and which was not redelivered to plaintiff or otherwise properly accounted for pursuant to its terms. The only qualification permissible on the value of the unreturned chattels covered by the redelivery bond, and not otherwise properly accounted for, was that plaintiff’s judgment should not be more than the actual amount due on his notes (less credits) secured by the mortgages pertaining thereto.
The judgment is reversed and the cause remanded for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Wedell, J.:
This action is the outgrowth of an order of a probate court sustaining a petition of the administrator to sell real estate for the payment of debts. Appellee is the widow of the deceased. Appellant claims to be a purchaser of the property under a written contract with the administrator and an order of sale by the probate court. He claims he is entitled to a deed to the property but, if not, he has a lien thereon to the extent of the value of the improvements he placed thereon after taking possession. The appeal is from an order of the district court overruling appellant’s motion for a new trial, and from the final judgment by which it was decreed the prop erty constituted the homestead of the widow and as such was exempt from sale for payment of debts.
The property involved consisted of fourteen lots in the incorporated city of Prescott. There were seven lots on each side of an alley which had been dedicated to the public use, but which had not yet been so used. All the lots comprised approximately three acres. The improvements consisted of a house on one side of the alley and a barn and well on the other side of the alley.
The principal defense of the widow in the probate court and in the district court was that one acre of the ground constituted her homestead. The one acre she claimed was not described and its exact location and boundaries have never been determined. The probate court held against her on the homestead contention, and ordered the property sold to pay debts pursuant to the petition of the administrator. The widow appealed to the district court. In that court the instant appellant was permitted to file an intervening petition. Issues were joined by an answer filed by the widow. The principal issues joined by the pleadings in the district court were: (1) Did one acre of the property constitute the widow’s homestead; (2) if so, did the widow waive her homestead rights therein, as against appellant, by her acts and conduct with respect to the sale of the property, and (3) if the widow was not estopped to claim the property as her homestead then what were appellant’s rights, if any, under the occupying claimants act.
While the journal entry of judgment discloses the foregoing issues were joined by the pleadings, the journal entry and the trial record clearly disclose that the only issue the trial court actually considered and decided was whether the property constituted the widow’s homestead at the date of her husband’s death. The refusal to consider the other issues and to admit evidence touching those issues, was raised by appellant on motion for a new trial. The motion was overruled and from that ruling and the judgment the appeal is taken.
The first question to be determined is whether the widow had a homestead right in any portion of the fourteen lots. The second question is what particular portion thereof, if any, constituted her homestead. Other questions presented will be treated later.
Appellee and her husband were married in 1894. Her husband died intestate October 17, 1939. His personal property at the time of his death consisted of meager household furnishings. The record title to the lots in question stood, in his name. The improvements thereon consisted of a five-room house located on lot No. 3. A barn was located on lot No. 1, which was directly across the alley from lot No. 3. A well was located across the alley from the house and was situated on lot No. 2. The parties purchased that property together in 1914. The value of the entire premises was approximately $700 or $800. By reason of the fact the husband was addicted to the habit of drinking he made life miserable and disagreeable for his wife. By reason of the husband’s misconduct the parties in 1928 agreed to live separately. They were not divorced. At that time the wife deeded the lots in question to her husband and he executed a deed to her for twenty acres lying just east and outside of the town of Prescott. They divided their personal property. There were no improvements on the twenty-acre tract and the wife built a little barn on the twenty-acre tract and lived in it. They had one married daughter who lived elsewhere. The widow and daughter were the only heirs of the decedent. The widow worked at whatever employment was obtainable. For a short time she worked in Kansas City. She returned to the twenty-acre tract and raised chickens and hogs. She visited her husband intermittently, in the home in question. In 1933 the husband became ill and remained so during most of the remainder of his life. There was evidence a reconciliation was effected in 1933, and that thereafter she was frequently in the home of her husband. Although the evidence is conflicting there is ample testimony to1 sustain the court’s finding that the wife, beginning in 1933, occupied the home with her husband during the daytime and that, at times, she remained with him overnight. Her testimony, in substance, was that after 1933 she was with him practically every day, washed for him and cooked for him. That testimony was corroborated. Her testimony was “it was man and wife and nothing else.” He was without funds and she provided food for him, but did not supply money for whisky. She kept her wearing apparel in the home. She paid taxes on the property during the last four years of her husband’s life. She did not remain in the home all the time for the reason that her husband had rented some of the rooms to people who also drank and it was disagreeable to stay there. When her husband died she moved her household goods from the barn on the twenty-acre tract into her place (meaning the house in question). She had always regarded this property as her home and his home. The building on the twenty acres was a barn with a tin roof and concrete floor. She testified “It was not a home, but a place to hang out and raise chickens.” During a portion of the years 1933 and 1934, when she was working for other parties, the husband looked after the chickens and hogs on the twenty-acre tract. She cared for her husband almost continuously when he was sick. She and her daughter made the necessary funeral arrangements.
Appellant contends the widow was deprived of her homestead rights in the property by reason of the separation in 1928, and the deed which she executed and delivered to the husband. We do not believe the agreement to live separate and apart, under the circumstances in the instant case, deprived the widow of her homestead rights. There is ample evidence to support the finding of the trial court that the separation was occasioned by the husband’s fault and misconduct. In fact, that does not appear to be disputed. In order to constitute an abandonment of the homestead the abandonment must be voluntary. Absence of a wife from the home occasioned by the husband’s abuse does not constitute a voluntary abandonment of homestead rights. It is well established that a wife by living apart from her husband without fault on her part does not thereby divest herself of her homestead rights at his death. (Blankenship v. Hall, 233 Ill. 116, 132, 84 N. E. 192; Rogers v. Day, 115 Mich. 664, 74 N. W. 190; Sherrid v. Southwick, 43 Mich. 515, 519, 5 N. W. 1027; Novotny v. Horecka, 200 Iowa 1217, 206 N. W. 110, 42 A. L. R. 1158, 1161, and annotation, page 1162; O’Neal v. Miller, 143 Fla. 171, 196 So. 478, 129 A. L. R. 295, and annotation 305; 29 C. J. 933, § 345; 26 Am. Jur., p. 113, § 181, p. 121, § 195.)
The separation agreement was oral. It appears deeds were executed and exchanged in order that the wife might have some place to reside where she would be free from her husband’s molestation during the times he was under the influence of liquor. There was no decree of divorce which barred her from any right or interest in and to the property at her husband’s death. There was nothing in the agreement such as in the case of Hewett v. Gott, 132 Kan. 168, 294 Pac. 897, and other cases relied upon by appellant, in which the widow renounced and waived all right, title and interest — present, future or contingent — in and to the property. Moreover, there was sufficient evidence, although the evidence was conflicting, that a reconciliation was effected in 1933, and that thereafter the parties occupied the premises as husband and wife. Under the circum stances we think the finding and judgment of the district court that the widow had a homestead right in the city property cannot be disturbed.
But what portion of the fourteen lots, comprising between two and three acres, and separated by an alley, constitute the widow’s homestead? Manifestly, it includes the ground upon which the home stands. But how much more land does it embrace and what are its boundaries? The district court found the homestead included one acre of the real estate on which the dwelling house and improvements belonging thereto, were situated. The barn and well, however, were located on lots across an alley from the lot on which the house was situated. It is true that two or more lots or pieces or parcels of land may, when adjoining, and when united, constitute only one tract or body of land, and therefore, may all be included in one and the same homestead. But where several lots or pieces or parcels of land claimed as a homestead, are not contiguous, but are separated by lands in which the person claiming the homestead has no title or interest, such several lots, pieces or parcels of land cannot be included in or constitute one and the same homestead. In this state the fee of all streets, alleys and other public grounds which have been dedicated to the use of the public by the proprietors of any town or city, is vested in the county in which such streets, alleys or other public grounds are situated and not in the abutting or adjacent lot owners. (Randal v. Elder, 12 Kan. 257; Commercial Nat’l Bank v. Carnahan, 128 Kan. 87, 89, 276 Pac. 57; 1 Bartlett’s Kansas Probate Law and Practice, §§ 177, 178.) Manifestly, the judgment of the district court as to what portion of the fourteen lots constituted the widow’s homestead cannot stand. The ground allotted to the widow as her homestead was not only separated by an alley, but in addition to that fact the boundaries of the homestead have never been selected by the widow and settled by judicial decree. The result is her homestead rights in particular lots or portions thereof, other than the lot on which the dwelling stands, remain wholly undetermined.
Appellee contends the widow has the right to select her homestead at any time prior to final settlement of the estate. We think it was the intention of the lawmakers under the new probate code to require the widow to promptly select and describe the ground she claims as a homestead. Certainly she is required to make such selection when a controversy concerning the sale of the land arises, as to a part of which she claims a homestead. The new code provides that after the inventory and appraisement has been filed, the surviving spouse, or in case there is none, the children may petition the court to set apart the homestead and personalty allowed in paragraph 21 (G. S. 1939 Supp. 59-403), and that the petition shall show, among other things, a description of the homestead claimed. (G. S. 1939 Supp. 59-2235.) The same section further provides that upon proof of the petition the court shall set apart such homestead and personal property and that such property so set apart shall be delivered by the executor or administrator to the persons entitled thereto, and shall not be treated as assets in his custody. Upon final settlement the decree must state the proportion or part of the real estate to which each legatee or devisee is entitled. (G. S. 1939 Supp. 59-2249.) The new code further provides that upon final settlement the court shall assign the real estate to the persons entitled thereto. (G. S. 1939 Supp. 59-2251.) It would result in endless confusion to permit the instant erroneous judgment to stand as to what constitutes the widow’s homestead and to permit the widow thereafter to select a different homestead. The controversy should be settled now while the issue is before the court. The case must be remanded for a new trial in order to permit the widow to make a selection of the homestead property and in order that the one acre she chooses to take may be definitely described. The one acre must, of course, all be located on the side of the alley on which the dwelling house is situated. The district court has ample power and general jurisdiction to permit such pleadings to be filed or amendments to be made to- the instant pleadings as will enable the court to render a decree in keeping with the views herein expressed. The power and general jurisdiction of the district court in this regard is the same as though that court had obtained original jurisdiction of the action. (G. S. 1939 Supp. 59-2408; Erwin v. Erwin, 153 Kan. 703, 113 P. 2d 349.)
The case must also be remanded for a new trial in order to obtain a determination of two other undecided issues, namely, first whether the widow by her acts and conduct with respect to the sale of the property, waived her homestead rights therein, and, second, if she is not estopped from claiming a homestead right, then what appellant’s rights are, if any, under the occupying claimants act.
It may also be well to note one other point. It pertains to the claim for funeral expenses which was allowed by the probate court on January 8, 1940, after finding the claim had been duly exhibited to the administrator who had waived service of notice of the presentation of the claim and had consented to its hearing. The testimony of the probate judge was that the widow and her daughter had both conceded the claim was just and that the property should be sold to pay the debt. The only contention made by appellee now, or on appeal to the district court, is that no notice as required by law had been given to her as to the hearing of the claim. She does not dispute the claim and, according to the record, conceded in open court prior to the hearing that it was a just claim and that the property should be sold to pay it. The order allowing the claim was an appealable order. (G. S. 1939 Supp. 59-2401 [5]). The time for perfecting the appeal was thirty days. (G. S. 1939 Supp. 59-2404.) 'No appeal from the order was perfected in time. The claim was allowed on January 8, 1940, and the only appeal was from the order of the probate court refusing to dismiss the administrator’s petition to sell this real estate to pay debts of the estate. That appeal was not filed until June 10, 1940. In that notice of appeal she did not appeal from the allowance of the claim on the ground it was not a just and meritorious claim, but only for the reason she had no formal notice of the hearing. Under the circumstances, we think the point is without merit.
That portion of the judgment, which awarded appellee a homestead right in the city property, is affirmed. The action is remanded for a new trial on the other features of the case heretofore indicated. | [
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The opinion of the court was delivered by
Harvey, J.;
This was an action to foreclose a real-estate mortgage. There was a decree of foreclosure, a sheriff’s sale, and the property was redeemed from the sale. The present controversy arises between classes of defendants and involves the duty of one class to contribute to the cost of redemption, and also involves the question of their present interest in the property.
The pertinent facts may be stated briefly as follows: On November 1, 1919, Frederick Tittel and wife executed to the plaintiff their mortgage on 320 acres of land in Russell county, being the northeast quarter, and the west half of the southeast quarter, and the south half of the southwest quarter, of section 14, township 15, range 14 west, to secure their note for $7,500. This mortgage was kept in force by successive extension agreements until it became in default shortly before this action was filed in November, 1937. Frederick Tittel’s wife died prior to July, 1929. Thereafter Frederick Tittel executed mineral deeds for fractional shares of the oil, gas and other minerals in and under, or that might be produced from the south half of the southwest quarter of the section. He executed similar mineral deeds covering only the west half of the southeast quarter of the section. Each of these mineral deeds contained the following provision:
“. . . and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”
By the time this action was brought the grantees of those mineral deeds had conveyed fractional portions of their shares to various parties. No mineral deed had been executed covering the northeast quarter of the section. There were also oil and gas leases covering all or a part of the property. Frederick Tittel died intestate December 11, 1936, leaving as his sole heirs at law five adult children and one minor grandson. They will be spoken of hereafter as the Tittel heirs. In the foreclosure action the Tittel heirs were made parties defendant, also the record holders of interests under the respective mineral deeds and the holder of a second mortgage. The petition in the action with respect to the defendants alleged that they “have or claim to have some right, title and interest, in and to the above-described real estate, the nature of which is to this plaintiff unknown, but plaintiff avers that whatever right, title or interest said above-named defendants may have in and to said above-described real estate, the same is inferior, junior and subsequent to plaintiff’s right under and by virtue of said note and mortgage.” Summons was served personally on the Tittel heirs and upon some of the other defendants, and as to other defendants summons was by publication. The holder of the second mortgage answered and asked to have that foreclosed as a second lien. The guardian of the minor Tittel heir answered setting up his interest, and six of the defendants who held fractional interests under the mineral deeds answered setting out their interests, and the administrator of the estate of Frederick Tittel answered. None of the other defendants answered. On May 8, 1938, a decree of foreclosure was rendered. This found the amount due plaintiff on the first mortgage and also the amount due on the second mortgage and contained appropriate provisions for the sale of the property to satisfy those liens. It also contained a recital that the owners of interests under the mineral deeds “who had appeared and filed answers” were recognized as owners of mineral rights which were subject only to the mortgages and judgments thereon “and were given rights of redemption of the land.” It was further decreed that the defendants, C. W. Shaffer, H. C. Donahue, H. B. Johnson, M. H. Shelton, D. M. Carroll, and other defendants, in default of answers, have no right, title or interest in or to the real estate, “and that the title to said real estate and each and every part thereof is hereby quieted as against said defendants.” No party was named in whom the title to the land was quieted. The decree directed the sale of the real property to satisfy the mortgage liens, provided for eighteen months redemption, and in default of such redemption a sheriff’s deed issue, and that thereafter all parties to the action should be forever barred from any right, title or interest in or to the property. The property was sold by the sheriff under this decree December 27, 1938, and later the sale was confirmed.
While the foreclosure action was pending, five producing oil wells were drilled on the northeast quarter of the section, and the administrator of the estate of Frederick Tittel collected about $2,500 in royalties. Only one oil well had been drilled on the west half of the southeast quarter of the section and it had come in a dry hole. No oil well had been drilled on the south half of the southwest quarter of the section.
On February 1, 1940, the Tittel heirs borrowed from the Peoples State Bank of Luray.a sum of money, secured by a mortgage on the land, with which they redeemed the property from the sheriff’s sale. This mortgage warranted the title as against everything except mineral deeds and oil and gas leases of record. On June 10, 1940, the defendants, C. W. Shaffer, H. C. Donahue, D. M. Carroll, H. B. Johnson and M. H. Shelton, each filed an application asking the court to determine whether they were under obligation to contribute to the sum paid by the Tittel heirs to redeem the land, and if so, for the court to determine the amount they should contribute, and to whom the contribution should be made, and for a determination of their rights as holders of fractional shares under the mineral deeds. Later, F. D. McMillen, who had succeeded to the interest of one of the original defendants, filed a similar application. These applications were answered by the Tittel heirs, the administrator of the estate of Frederick Tittel and The Peoples State Bank of Luray. After a full hearing the court made exhaustive findings of fact, which we have hereinbefore summarized. The court further found the value separately of the surface rights and of the mineral rights of the several tracts of land to be as follows: The northeast quarter, surface $5,162.50, mineral $40,000; the west half of the southeast quarter, surface $1,000, mineral $2,000; and the south half of the southwest quarter, surface $2,400, mineral $2,000. As conclusions of law the court held that the applicants are tenants in common as to their mineral rights with the Tittel heirs and that redemption by said heirs was for the benefit of their cotenants; that “no right of redemption vested by law in any of the cotenants was taken away by any judgment rendered in this action. . . . Any wording of the journal entry of judgment which might be construed as barring such right should be corrected to show that such right is saved. The applicants hold their interests in the minerals free from the obligation of Frederick Tittel, Jr., his heirs, executors, administrators to satisfy all adverse claims affecting applicants’ right of enjoyment, or, in other words, to warrant and defend the property unto said applicants against every person whomsoever lawfully claiming the same. . . . Redemption having been made by those whose duty it was to defend the rights of the applicants in the real estate, no contribution on the part of the latter is required to save their interests in the land.” An appropriate judgment embodying these conclusions of law was rendered. A motion for a new trial filed by the Tittel heirs, the administrator and the bank, was overruled, and they have appealed.
While stated in their brief from various viewpoints the principal contention of appellants in this court is that in the foreclosure decree there is a provision which quieted the title to the land against all defendants who had not answered; that the appellees had not answered prior to' the decree of foreclosure; hence that all rights and interests which appellees had in or to the land under mineral deeds or otherwise were effectively cut off, and, since there had been no appeal from that decree, are now forever barred. We first take note of the fact that such a holding would be equally effective against the adult Tittel heirs, who are the principal appellants here, for none of them answered prior to the foreclosure decree. But we pass this thought, since we are convinced the point contended for by appellants is not well taken.
In answer to this contention appellees argue that the provisions of the foreclosure decree by which tire title was quieted as of the date of the decree, not in favor of anyone, but against all defendants who had not answered, pertained to a matter not within the scope of the pleadings, hence was ineffective and void. This was the view taken by the trial court at the time of the ruling when this appeal was taken. We concur in that view.
The general rule is that before an action to quiet title can be maintained the plaintiff must have the actual possession of the property, or the legal title thereto. (Wood v. Nicolson, 43 Kan. 461, 463, 23 Pac. 587; Sutliff v. Smith, 58 Kan. 559, 50 Pac. 455.) Here it was not alleged in the petition that plaintiff had title to the land, or was in possession thereof.
In this state a mortgage is merely an encumbrance of security for a debt. (Chick et al. v. Willetts, 2 Kan. 384; Stark v. Morgan, 73 Kan. 453, 461, 85 Pac. 567; Motor Equipment Co. v. Winters, 146 Kan. 127, 135, 69 P. 2d 23.) In the foreclosure of a mortgage on real property the legal title to the property does not pass until the sheriff’s deed is executed and delivered. (Chambers v. Rose, 111 Kan. 22, 206 Pac. 336; New York Life Ins. Co. v. Slentz, 145 Kan. 849, 852, 67 P. 2d 522.) And where, after a sale of the property under a decree foreclosing a mortgage on real property, redemption from the sale is made, and no sheriff’s deed is issued, the title to the property is not affected by the foreclosure proceedings. (Motor Equipment Co. v. Winters, supra.) In an action to foreclose a real-estate mortgage a provision in the decree which is not within the issues formed by the pleadings is void. (Hill v. Alexander, 2 Kan. App. 251, 41 Pac. 1066; State Reserve Bank v. Daniels, 142 Kan. 694, 696, 51 P. 2d 1009, 42 C. J. 142.)
In its petition in this case the plaintiff made no claim of having title to the property or being in possession thereof. In the petition there were no allegations of any grounds for quieting title. Plaintiff set up its note and mortgage and sought a decree foreclosing its mortgage for the purpose of collecting the sum due on its note. As to the many defendants, it was alleged that any lien they had upon, or any right, title or interest they had in or to the real property, was inferior and subordinate to the lien of the plaintiff. The provision in the decree purporting to quiet title against some of the defendants was not within the issues of the case, and under the authorities above cited was ineffective and void. Appellants argue that when the court passed upon the application of the appellees in 1940 it had no jurisdiction or authority to interpret and to hold invalid a provision of the foreclosure decree rendered in May, 1938. This point is not well taken. A void judgment may be set aside at any time. (G. S. 1935, 60-3009; State Reserve Bank v. Daniels, supra.)
Appellants argue that in any event the court should have required appellees to pay a share of the cost of redemption. This point is not good as against the holders of rights under the mineral deeds executed by Frederick Tittel, because of the warranty contained in each of the mineral deeds. The heirs of Frederick Tittel and his administrator are bound by those warranties. As to the appellant, The Peoples State Bank of Luray, the mortgage executed to it by the Tittel heirs, in warranting the title, excepted mineral deeds and oil and gas leases of record. The mineral deeds under which appellees claim were of record, hence the bank has no claim under its mortgage against the holders of the mineral deeds.
Many other details of the case might be discussed, but we see no purpose in doing so. We have examined the record and the authorities cited by counsel with care and find nothing .that would authorize or justify the disturbance of the judgment of the trial court. It is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for a declaratory judgment. Defendant’s demurrer to the petition was overruled and it appeals. The question to be determined is the liability of the territory of a disorganized school district for the payment of the bonded indebtedness of the district to which it was attached.
The petition disclosed that prior to August 4, 1927, there was in existence in Sheridan county school district No. 28, embracing in its boundaries at least ten sections of land, the plaintiff being then and ever since the owner of a one-half section thereof. That the district failed to maintain a school for three consecutive years, and on August 4, 1927, under the provisions of Laws 1917, ch. 275, the county superintendent disorganized the district and attached the territory to school district No. 26, which maintained a graded school. At the time of the disorganization of district No. 28 it had no bonded indebtedness. Its schoolhouse was sold and the proceeds of the sale went to and were received by district No. 26. At the same date district No. 26 had an outstanding bonded indebtedness of $40,000, which became due and delinquent, and on March 1,1937, the district issued refunding bonds in the sum of $44,500 and with the proceeds refunded the outstanding bonded indebtedness. Beginning in 1937, district No. 26 caused a levy to be made on the entire territory of the district, including that formerly comprised in district No. 28, for the purpose of paying interest on and accumulating a sinking fund to retire the refunding bonds, the various levies for 1937,1938 and 1939 being set forth.
Plaintiff further alleged that the levy and tax represented an unlawful charge against the property in the territory formerly constituting district No. 28 and particularly against the property of the plaintiff; that the tax is substantial and the defendant district continues to levy against plaintiff’s property to raise funds to pay the above-mentioned refunding bonds; that he has paid the first half of his 1939 tax under protest, and that he now owes for the last half of that year. That the purpose of the action is to determine the right of district No. 26 to levy a tax on the property formerly included in district No. 28 to pay interest on and retire the bonded indebtedness, and that it should be determined the district has no such right, but the defendant district continues to exercise such claimed right and authority. Defendant’s demurrer on the ground the petition did not state a cause of action was overruled, and it appeals.
In a preliminary way, it may be stated that appellee does not contend there is any specific statutory provision which compels the relief he seeks, but that the statutes generally compel the result, while the appellant contends that there being no such specific provision, under the law generally it has the right and authority to make the levy. The answer requires consideration of the statute under which district No. 28 was disorganized and possibly other statutes. There is no contention but that the present bond issue represents an indebtedness of district No. 26 existing prior to the annexation.
Under Laws 1917, ch. 275, sec. 1, it was provided that if a school district failed for three successive years to maintain a school as therein provided, the district should be disorganized and attached to adjacent districts, or where the district was adjacent to a third-class city maintaining a high school or graded school it should be attached to the school district in which the city is located. Section 1 of this act was amended by Laws 1921, ch. 228, and later appeared in revised form as R. S. 1923, 72-818. This last mentioned section was amended by Laws 1933, ch. 254, and was repealed by Laws 1935, ch. 255. The various changes made do not affect the question now submitted. Under the allegations of the petition, school district No. 26 maintained a graded school, but it is not disclosed whether the district includes a third-class city. Under section 2 of the first mentioned act, now appearing as G. S. 1935, 72-819, provision is made for payment of floating indebtedness of the disorganized district by a levy to be made by the board of county commissioners on the territory of the district. Under section 3, now appearing as G. S. 1935, 72-820, any money, unpaid taxes, buildings and other property of the disorganized district shall be applied as provided in sections 8931 and 8932, G. S. 1915 (G. S. 1935, 72-812, 72-813), and any bonded indebtedness be paid as provided in section 8928, G. S. 1915 (G. S. 1935, 72-809). Reference to those sections discloses they are parts of Laws 1901, ch. 307, providing for disorganization of school districts which have become depopulated as defined therein, for disposition of property, payment of bonded debt, etc. Section 8931 provided moneys and unpaid taxes should be applied to payment of floating and bonded indebtedness, any remaining sums to go to the districts to which the disorganized territory was attached. Section 8932 provided for sale of the buildings and other property and for similar disposition of the proceeds. Section 8928 provided that if the disorganized district had a bonded indebtedness, the county commissioners should levy a tax upon the real and personal property in such disorganized territory sufficient to meet the interest and provide a sinking fund, and provision for refunding the debt is also made. Section 10 of the above chapter 307, later appearing as G. S. 1915, sec. 8933, and now appearing as G. S. 1935, 72-814, and not referred to in Laws 1917, ch. 275, read:
“The territory of any school district so disorganized shall not be liable for any debt, floating or bonded, or any contract of any district to which it may be attached, existing at the time of such attachment.”
Appellant contends that because the last-quoted section was not referred to in Laws 1917, ch. 275, but the other provisions quoted were specifically mentioned, it must be concluded a disorganized district must not only pay its own debt, floating or bonded, and that any excess of its taxes, money or property must be delivered to the district to which it was attached, but that the property in the disorganized territory becomes liable for the existing debt of the district to which it was attached. It may be observed that if that be true, this result might have followed. Had disorganized district No. 28 had a $40,000 bond issue outstanding, it would have had to pay it, and also would have had to pay its ratable part of the $40,000 bond issue of district No. 26 to which it was attached. It may be further observed that under the terms of the statute authorizing disorganization, it would have been possible to attach the disorganized territory to two adjoining districts. If one had a heavy bonded indebtedness and the other had none, a very unfair and inequitable result would follow, if appellant’s contention is good.
In support of its contention that because the statute does not make specific provision otherwise, the territory of the disorganized district is liable for the payment of the liabilities of the annexing district, appellant directs our attention to 56 C. J., p. 732 (Schools, § 856), reciting:
“Property in territoiy annexed is liable to assessment for the payment of bonds and liabilities of the annexing district existing previous to the annexation, and no express statutory provision is necessaiy to impose such liability.”
In the same text, section 859, it is said:
“Under constitutional or statutory provisions limiting the right to tax to pay a bonded school indebtedness to real estate which was taxable for that purpose 'at the time the indebtedness was created, property annexed to a school district already subject to a bonded indebtedness cannot be taxed to help retire that debt.”
All persons possessing the qualifications of electors and who have been residents of the district for thirty days prior to the time of offering to vote are entitled to vote at any school district meeting (G. S. 1935, 72-404), and no bonds of any district shall be issued until favorably voted on by a majority of the qualified electors of the district (72-2001). Such bonds must be registered, and the register must contain the number of sections of land in the district issuing such bonds, and the number of acres assessed and subject to taxation in that district (72-2003), and it is made the duty of the board of county commissioners to make an annual levy upon all the taxable property in the district, sufficient to pay the interest and bonds issued as they mature, the taxes so collected to be a specific fund for the payment of interest on such bonds and for their payment as they mature (72-2004). Although it is not positively stated, it seems clear that the lands in the district at the time the bonds are issued are liable for the full payment of principal and interest. Any doubt to the contrary is resolved by the statutes above reviewed, and those hereafter mentioned.
Our statutes with reference to bonds define a municipality as every corporation or quasi-corporation empowered to issue bonds in payment of which taxes may be levied (G. S. 1935, 10-101), provide how bonds shall be executed by a school district (10-105), and that all municipal bonds shall constitute a general obligation of the municipality issuing the same (10-112), and that whenever a part of the territory of a municipality has been detached, or whenever it has been disorganized and the territory attached to some other municipality, the detached territory shall be liable for the payment of all bonds issued by such municipality before such detachment or disorganization, and provision for compelling payment is made. It would seem to follow the issued bonds had all the properties of a lien on the territory in the municipality when the bonds were issued.
It would appear, also, that in many instances where annexation or detachment of territory or change of boundary lines was the subject of statutory consideration, that express provision has been made. Under G. S. 1935, ch. 72, art. 9, providing for consolidation of school districts, provision is made for assumption of a proportionate share of the existing indebtedness of the consolidated or union district, etc. Certain first-class cities may attach territory for school purposes, and after the order of attachment the attached territory shall be subject “to taxation and bear its full proportion of all expenses incurred in the erection of school buildings and in maintaining the schools of said city.” (72-1725.) Further, in other first-class cities if territory be detached, it shall remain liable for its proportionate share of any bonded indebtedness, etc. (72-1744.) Territory attached for school purposes to second-class cities shall bear “its full proportion of all expenses incurred in the erection of school buildings and in maintaining the schools of the city.” (72-1803a.) And note provisions for adjustment of property rights of a school district which is included within the territorial limits of a first- or second-class city occasioned by the extension of the boundaries of the city. (72-5316, 72-5317, 72-5318.) With reference to county and township bonds, which are expressly made a lien upon real estate (G. S. 1935, 10-1001), it is provided that no person or property in territory attached, shall be subject to taxation for the payment of principal or interest of bonds issued previous to the attachment (10-1002), but that detached property shall remain subject in the same manner as though no change of boundary lines had been made (10-1003).
Appellant directs our attention to Young v. Regents of State University, 87 Kan. 239, 253, 124 Pac. 150, and Alter v. Johnson, 127 Kan. 443, syl. ¶ 1, 273 Pac. 474, and argues the trial court and this court may not depart from the plain terms of an act; that a court is not warranted in looking further than the act itself to determine legislative intent, and if there is a defect or omission, it must be supplied by the legislature. The premise is sound, but the mere failure of the legislature to make specific provision that the attached territory should not be liable for the existing indebtedness of the district to which it was attached does not make it automatically follow that the attached territory shall be liable.
It is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history. (Jones v. The State, ex rel., 1 Kan. 273; State v. Bancroft, 22 Kan. 170; Intoxicating-Liquor Cases, 25 Kan. 751; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835; Railway Co. v. Cowley County, 103 Kan. 681, 684, 685, 176 Pac. 99; Schmitz v. Schmitz, 124 Kan. 546, 549, 261 Pac. 824; State, ex rel., v. Horn, 126 Kan. 591, 270 Pac. 597; State v. Lebow, 128 Kan. 715, 280 Pac. 773; Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042; State, ex rel., v. Gleason, 148 Kan. 1, 14, 15, 79 P. 2d 911; Johnson v. Hensley, 150 Kan. 96, 90 P. 2d 1088.)
In the case before us, we have to determine whether the omission to excuse the attached territory from liability means that it was intended there should be such liability. It has been demonstrated that in every instance where the legislature has spoken affirmatively, it has relieved the attached territory from liability for the debts of the political subdivision to which it was attached, or has provided for proportioning the same. Here it did not say the property in the attached territory should be liable, and we think by reason of its silence it did not intend' any such result.
The ruling of the trial court on the demurrer was correct and is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to foreclose two real-estate mortgages on the same city lot. One of the mortgages was given by holders of a contingent interest and only as additional security. Plaintiff, A. W. Jonas, prevailed, and only the defendants, W. S. Norris and May Norris, his wife, appeal. May Norris is interested only by reason of her marital relation to W. S. Norris and we shall refer to W. S. Norris as appellant.
Appellant was not one of the mortgagors. He claims to have purchased, prior to the execution of the mortgages, a contingent interest in the land in an attachment suit which he instituted against one of the sons of Mary B. Jones, the principal mortgagor. He contends the trial court erred in granting appellee, the mortgagee, a first, prior and paramount lien upon the interest he claims.
The instant action was tried upon a lengthy agreed statement of facts. It will be necessary to state only a few of the facts. The real issue involves the construction of a deed which was executed in 1914 by the parents of Mary B. Jones to "Mary B. Jones, and her living issue.” Other pertinent provisions of the deed, which determine the estate or interest conveyed to the grantees, will be considered presently. At the time the deed to the land in question, a lot in the city of Salina, was executed and delivered to Mary B. Jones, Mary B. Jones had, and now has, two adult sons, Horace W. Jones and Walter H. Jones.
In 1928, appellant brought an action for money judgment against Walter H. Jones, and attached a contingent interest he claimed Walter H. Jones had in and to the lot in question. That interest was sold in the attachment action. The sale was confirmed and pursuant to court order a certificate of sale was delivered to appellant on July 19, 1930. The certificate was recorded on the same day in the office of the register of deeds of Saline county. On the date appellant filed his attachment action he also filed in the office of the register of deeds of Saline county, a notice of lis pendens. The notice was promptly recorded and recited the interest appellant claimed in the attachment action to the lot in question under the deed to “Mary B. Jones and her living issue.” No redemption was made of the interest appellant purchased and after eighteen months had expired and on September 15, 1932, appellant received and recorded his sheriff’s deed to that interest.
After appellant had received his certificate of sale to the alleged interest of Walter H. Jones to the lot in question, Mary B. Jones, on August 12, 1931, executed her note and mortgage on the lot to appellee. On the same day and as additional security appellee received from Horace W. Jones and Eloy D. Jones, his wife, and Walter H. Jones, a single man, their mortgage on the same lot. The mortgages became in default and on June 30, 1939, the instant foreclosure action was filed. The pertinent provisions of the deed which determine the estate or interest of 'the grantees, the mortgagors in the instant action, were as follows:
“This indenture, made this 16th day of December a. d. 1914, between William Hoard and Isabella Hoard, his wife, of Saline county, in the state of Kansas, of the first part, and Mary B. Jones and her living issue of Saline county, in the state of Kansas, of the second part.
“Witnesseth, that the said parties of the first part, in consideration of the sum of one dollar and love and affection (dollars), the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell and convey subject to the reservation hereinafter contained, unto said Mary B. Jones for and during her natural life and in fee to the issue of her body living at her death and their heirs and assigns, all that tract and parcel of land situated in the county of Saline and state of Kansas, to wit: The south twenty-five (25) feet of lot one hundred forty-eight (148) and the north nine (9) feet of lot one hundred fifty (150) on Santa Fe avenue in the city of Salina, Kansas, according to the original plat thereof now on file in the register of deeds office of said county.
“The grantor, William Hoard, reserves the use, control and income of said real estate for and during his natural life and agrees to pay all taxes to be assessed thereon during said period.”
On April 29, 1930, after judgment had been rendered in favor of appellant in his attachment action and the judgment had been made a lien upon the interest of Walter H. Jones in and to the lot, Mary B. Jones executed and delivered to Velma M. Moorman her warranty deed to the lot. On May 13, 1930, the latter conveyed by warranty deed to Mary B. Jones. Both of the last-mentioned deeds were recorded on the dates they were executed.
The trial court concluded: The deed of December 16, 1914, from the Hoards to Mary B. Jones, created an estate tail in Mary B. Jones; the entailment was broken by the deed from her to Velma M. Moorman; when title to the lot was reconveyed to Mary B. Jones the latter acquired the fee title and the mortgage which Mary B. Jones executed to A. W. Jonas, appellee, constituted a first and prior lien on the lot.
Appellee does not contend there was any defect or irregularity in the attachment proceedings. He i’elies wholly upon the construction placed by the trial court upon the deed to Mary B. Jones.
Did that deed create an estate tail in Mary B. Jones? The general subject of what constitutes estates tail, under the decisions of this court, has received extensive reconsideration in the last few years, and it is unnecessary to again cover the entire field. Some of the definitions of estates tail which have been recognized in this state were collected and may be found in Coleman v. Shoemaker, 147 Kan. 689, 691-692, 78 P. 2d 905. We pause to note only a few of them. In Gardner v. Anderson, Trustee, 116 Kan. 431, 227 Pac. 743, such estates were defined as follows:
“An estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and in which the regular and general succession of statutory heirs at law is cut off.” (Syl. ¶ 3.)
In Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475, it was said:
"The essential and distinguishing earmarks which denote the creation of an estate tail are an interference with and curtailment of the statutory rules pertaining to the descent and distribution of real estate and a limitation of the right of inheritance to the issue of the body of the grantee or devisee.” (p. 640.)
In the course of the last opinion it was declared:
“Where the grantor has selected a line of inheritable succession for his property it must continue so long as posterity endures in a regular order and course of descent. He may, of course, provide for the disposition of the property on an indefinite failure of issue, but if this is attempted on a definite failure, such as at the time of the death of the devisee named or other fixed time, the estate tail fails.” (p. 642.)
In Brann v. Hall, 141 Kan. 749, 43 P. 2d 229, the foregoing definitions and comment from the Woodley and Gardner cases were applied to a devise, which in substance read:
“I hereby give and devise unto my son, ... a life estate only in . . . ; after the death of my said son ... I give and devise unto the lawfully begotten issue of my said son . . . then living all of the said real estate to take share and share alike, and to their heirs and assigns forever," etc. (Italics ours.)
It was held the devise did not create an estate tail and it was said:
“The testator did, in part, select a fixed line of inheritable succession limited to the' issue of the body of his devisee, but by express inclusion, he then provided that the heirs and assigns of the devisee were to take, and thus the regular and general succession of the statutory heirs at law was not cut off. Under the terms of the devise, the line of inheritable succession in the selected line could not continue so long as posterity endures in the regular course of descent, for the testator has provided otherwise, and for that reason no estate tail in the first taker was created. The result is that the devisees named as taking life estates took life estates and no more, the remainders going to the issue and the heirs and assigns of such issue of the respectively named devisees of the life estates.” (p. 752.)
What was said in, the Brann case applies with equal force in the instant case. Numerous other cases to the same effect might be cited. Many of them were reviewed in Coleman v. Shoemaker, supra.
An estate tail in the first taker, Mary B. Jones, must fail for another reason. From the italicized provision contained in the granting clause of the instant deed, it will be observed the limitation over is upon a definite failure of issue. A time is definitely fixed for the possibility of such failure, namely, at the death of Mary B. Jones. That expression in the deed makes her death the time when failure of issue of her body shall be determined. It prevented the grant from constituting a fee tail estate in Mary B. Jones. (Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904; Burnworth v. Fellerman, 131 Kan. 186, 189, 289 Pac. 433; Coleman v. Shoemaker, supra, p. 694.) The provision in the deed that the fee title should go to the heirs of the issue of her body living- at her death, was likewise inconsistent with the theory of a fee tail estate. (Coleman v. Shoemaker, supra.)
From a memorandum opinion it appears the decision of the trial court that a fee tail estate was created in Mary B. Jones, was based principally upon Meyer v. Meyer, 149 Kan. 23, 86 P. 2d 493 (last opinion on rehearing in the Meyer case), and Foster v. Stowers, 150 Kan. 599, 95 P. 2d 343. They are not authority for the decision that a fee tail estate was created in the instant case. In the Meyer 'case a life estate was created in Henry Meyer and at his death the will devised the real estate in fee simple to the heirs of his body. The Foster case was a deed case. The pertinent provision in the deed was a declaration of the grantor’s intention that the grantee “shall have a life estate in the property hereby conveyed, and after her death the heirs of her body shall share equally in the said property.” It was held an estate tail was created in the grantee. It would appear the trial court, in the instant case, ignored or misinterpreted the effect of the italicized portion of the grant, to wit: “living at her death and their heirs and assigns.”
Appellee reminds us the rule in Shelley’s case, in this state, had been abolished only as to wills and not as to deeds when the instant deed was executed. He also states the new law abolishing that rule is not operative as to deeds executed prior to enactment of the new law. That is true. (G. S. 1939 Supp., 58-502.)
Appellee further contends if Mary B. Jones was not granted a fee tail estate she nevertheless obtained a fee title absolute under the rule in Shelley’s case. In support of that contention he cites Kirby v. Broaddus, 94 Kan. 48, 145 Pac. 875, where we held:
“The rule in Shelley’s case, except as applied to wills, is a part of the common law of this state, and therefore a deed to a named grantee for life, with, a provision that at his death the title shall vest in his heirs, enables him to make an effective conveyance of the fee.” (Syl.)
The trouble with the contention is the deed in the instant case did not convey a life estate to Mary B. Jones with remainder to. her heirs. It conveyed the fee to the issue of her body living at her death and their heirs and assigns. Under such a provision, Mary B. Jones could not be held to possess an absolute fee even though the words employed in the instant deed had been employed in a will, and in a jurisdiction in which the rule in Shelley’s case was operative. In a well-reasoned early case upon that subject the supreme court of Pennsylvania in Taylor v. Taylor, 63 Pa. St. 481, said:
“It is a position not open to dispute, then, that if it appears, either by expression or by clear implication, that by the word ‘issue’ the testator meant ‘children’ or issue living at a particular period, as at the death of the first taker, and not the whole line of succession, which would be included under the term ‘heirs of the body,’ it must necessarily be construed to be a word of purchase; and the rule in Shelley’s case can have no application.” (p. 484.)
The same rule has been asserted frequently in later decisions. (Lee v. Sanson, 245 Pa. St. 392, 91 Atl. 611.)
The contingent interest of Walter H. Jones was subject to sale on execution. (Thompson v. Zurich State Bank, 124 Kan. 425, 428, 260 Pac. 658; Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703; Kimberlin v. Hicks, 150 Kan. 449, 452, 94 P. 2d 335.) Appellant purchased that interest. He had a certificate of purchase covering the interest when the instant mortgages were executed. His certificate ripened into a deed when redemption was not made. Appellee’s mortgages, therefore, did not constitute a first, prior and paramount lien upon the contingent interest formerly held by Walter H. Jones and now held by appellant, but only upon the interest of the defendant mortgagors, Mary B. Jones and Horace W. Jones. It follows the court erred in foreclosing the mortgage as to the contingent interest held by appellant. To the extent indicated the judgment must be reversed. It is so ordered.
AlleN, J., concurs in the result. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin to recover possession of certain mortgaged printing presses and equipment. The defendant recovered on a cross petition and the plaintiff appeals.
Under date of October 5, 1937, defendant Lucas, purchased from the plaintiff company a Kluge automatic printing press and certain equipment at a total price of $2,438.60 to be paid by plaintiff’s taking in a used press at $140, the balance to be paid in sixty monthly installments evidenced by a note. The terms of the contract need not be noticed particularly, further than the automatic press was guaranteed to have accurate register — that is, that the automatic press and feed devices would so deposit the paper or stock to be printed upon that a sheet would take the same place in the press that, if it were repeatedly reinserted by the automatic feeder, the impression would be exactly superimposed upon the impression already made. The note above mentioned was secured by a chattel mortgage covering the automatic press and equipment sold as well as another press belonging to the defendant. Between November 30, 1937, and March 10, 1939, defendant paid plaintiff the sum of $533.43 on the above note.
The petition filed June 5, 1939, alleged the execution and delivery of the note and chattel mortgage and default by defendant and that plaintiff was entitled to the immediate possession of the mortgaged property and the prayer was for such possession, or failing possession for the value alleged to be $1,765.17. A proper affidavit and bond was given and plaintiff recovered possession. No redelivery bond was given.
Defendant filed an answer admitting execution of the note and chattel mortgage and a cross petition in which he may be said to have sought recovery of the amount alleged to have been paid by him, $575.80, also the value of the press turned in by him as part of the purchase price at $140, and the value of the second press covered by the chattel mortgage and taken under replevin, the value being alleged to be $150. Defendant sought also to recover damages sustained by reason of the failure of warranties 'on the automatic press.
Plaintiff filed a motion to require defendant to elect whether he sought recovery of moneys on the theory of rescission or damages on the theory of breach of warranty of the contract, and this motion being sustained, thereafter defendant filed an amended answer and cross petition which omitted all reference to damages. This pleading was not attacked in any manner. Plaintiff filed its reply denying the new matter and praying for judgment according to its petition and that defendant take nothing by his cross petition.
At the trial, and after defendant had made his opening statement, plaintiff moved for judgment because defendant’s answer and cross petition was not verified and because facts sufficient to constitute a defense or a valid counterclaim were not stated. This motion was denied and the trial proceeded. At the conclusion of defendant’s evidence, plaintiff moved for a directed verdict, which motion was denied. At the close of its evidence in rebuttal plaintiff made another similar motion, which was denied. Thereafter the cause was submitted to a jury which found in favor of the defendant on his counterclaim for the sum of $533.43, and in addition he was entitled to have restored to him the- press taken in at the value of $140, and the mortgaged press taken in replevin, the value being fixed at $150, or in lieu the said amounts. The jury also answered special questions. By the answers the jury found there was a breach of warranty of the press, the defect being unknown; that the press did not register accurately, the exact cause being unknown, the testimony indicating a defective machine; that defendant first learned of the defect on or before December 20, 1937, and offered to return the press. In answer to a question as to when and how the defendant offered to return the press, the jury answered:
“The letter of April 4, 1939, for removal of machine, agreeing the contents therein, of a letter dated Jan. 26, 1938. Letter not admitted but service rendered on press. They acknowledge the letter of Jan. 26, 1938, for removal of the press by sending a service man March 2, 1938, without any further request, for a sendee man previous to that time and also by letter of April 4, 1939, asking removal of machine and return of money paid on contract for purchase of press.”
And it further answered that such offer to return was made as soon as was reasonably possible after defendant had discovered the defects and that he could not operate the press satisfactorily.
Plaintiff’s motions for judgment non obstante veredicto and for a new trial were denied and it appeals, its specifications of error covering five propositions discussed in its brief, which we consider in the order presented.
Appellant contends that the defendant kept and used the press for sixteen months after he knew of its defective condition, continued to make payments thereon and otherwise recognized validity of the contract of purchase, and that such conduct was inconsistent with a rescission of the contract and precludes him from pursuing any remedy based on rescission of the contract. To support its argument appellant directs our attention to evidence that appellee discovered as early as December 20, 1937, the press was defective, but he continued to use it getting unfavorable results until about March, 1939; that he continued to make payments and that he never gave plaintiff an unconditional and unequivocal notice of rescission until April 4, 1939, that notice being revoked by a later alternative demand that appellant fix the press or take it away, and that when the present action was instituted appellee filed a cross petition based both upon rescission and affirmance and only elected to stand upon rescission when compelled to do so by action of the court. If those were all of the facts, it would not be difficult to apply the rule that where a purchaser of personal property desires to rescind the contract by reason of a failure of warranty, he must within a reasonable time and as a condition precedent to rescission return or offer to return the purchased property, and where with knowledge of the defect he retains possession and uses the machinery, he waives his right to rescind. (See Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95; Manufacturing Co. v. Moore, 46 Kan. 324, 326, 26 Pac. 703; Hay Press Co. v. Ward, 89 Kan. 218, 131 Pac. 595; Sylvester v. Lynde, 113 Kan. 450, 454, 215 Pac. 305; Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429, and cases and other authorities cited therein.) However, there was other evidence which the jury evidently believed and which may not be ignored. The press was set up October 22, 1937, and thereafter appellee attempted to use it. He testified that representatives of the plaintiff called on him about every three weeks and he told each of them the press would not register accurately. On January 26, 1938, he wrote the appellant a letter stating the press would not register and that he was ruining stock with it and that the press was a liability as it was, and must be made usable, otherwise he would replace it. Thereafter two officials of appellant called on him and said they would send a man to fix it. This man came, did some work on the press and left. The trouble had not been rectified. Thereafter there was considerable correspondence, appellant endeavoring to get appellee to pay installments on the contract price and making suggestions as to operating the press and ap-pellee complaining of performance. In addition to other representatives or salesmen of appellant calling on appellee, on at least two more occasions, mechanics from appellant’s St. Louis office called and made various adjustments of the press. Finally, on April 4, 1939, appellee wrote appellant asking the press be removed, appellant acknowledged receipt of that letter, suggesting the trouble might be incompetence of the operator but that it had instructed its St. Louis office to check the machine, and asking that in the meantime appellee continue his payments. Appellee answered that letter that the press must perform or it must be taken out. Other correspondence need not be noted. There was evidence from which the jury could infer the press was kept and tried repeatedly because of representations that it could and would be made to perform under the warranty. Whether under all of the circumstances the purchaser retained possession an unreasonable time, and whether he waited too long to rescind, were questions of fact for the jury. (See Implement Co. v. Haley, 77 Kan. 72, 93 Pac. 579; Hull v. Manufacturing Co., 92 Kan. 538, 141 Pac. 592; Manufacturing Co. v. Products Co., 100 Kan. 579, 164 Pac. 1082; Vandermark v. Plow Co., 114 Kan. 6, 216 Pac. 829; Wilson v. Doolittle, 114 Kan. 582, 220 Pac. 508, and cases cited therein.)
Appellant contends further that because the answer and cross petition were not verified and because they failed to state facts sufficient to constitute a defense or valid counterclaim, no defense was presented. The first part of the contention is predicated on the second sentence of G. S. 1935, 60-729, that in actions founded on a written instrument for the unconditional payment of money, the answer must be verified. It is to be observed the present action was not one for money but for the possession of personal property, the only usual purpose in pleading the note and chattel mortgage being to show appellant’s special ownership as a basis for maintaining the action. Appellant relies on Niebauer v. Bivins, 149 Kan. 260, 87 P. 2d 619, but while that action was commenced as one in replevin, it was expanded as one to recover on a redelivery bond, which was an action for the recovery of money. But assuming that a verification was necessary, the following must be considered. When the answer and cross petition was filed, appellant did not challenge sufficiency either by demurrer or motion, it pleaded over by filing a reply denying the new matter and renewing the prayer of its petition. By pleading over, appellant waived lack of verification. (See Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075, and Greensburg Production Credit Ass’n v. Buckner, 152 Kan. 398, 103 P. 2d 881.) Appellant cites two cases: Smith v. Jones, 145 Kan. 892, 67 P. 2d 506, and Christy v. Kinsinger, 149 Kan. 437, 87 P. 2d 615, both of which it contends support its claim. Both may be distinguished. In the Smith case, the reply filed contained a challenge of sufficiency of the answer to constitute a defense. In the Christy case, while a reply had been filed, the parties stipulated plaintiff might withdraw his reply so that a motion for judgment could be ruled on, it being said:
“Had the defendant not stipulated and expressly agreed to have plaintiff’s reply withdrawn for the purpose of obtaining a ruling on the motions for judgment on the pleadings, we might be confronted with the question of whether the plaintiff had waived the lack of verification by filing a reply. The defendant does not argue the question of waiver and indeed could not well do so in view of his express agreement the reply should not be considered in passing on the motions.” (p. 441.)
On the question of sufficiency of allegations, appellant’s contention is there was no allegation of a tender or offer to return the Kluge press. That may be conceded. Appellee states, however, that this particular question was never raised in the trial court and the record as abstracted does not disclose anything to the contrary. At the time the answer and cross petition was filed, the Kluge press was in appellant’s possession. At the trial, the proof was ample to show an offer to return. Had the question been timely raised, appellee would have had an opportunity to amend. The present complaint comes too late.
Appellant’s next contention is that the verdict and judgment in favor of appellee finds no support in the pleadings. This contention is that it was incumbent on appellee to plead as a defense in his answer his right to recover for the press turned in and for the press taken under replevin; and that the allegations of his cross petition are not suffiicient. We can discern from the record that appellant objected the answer and cross petition was not sufficient because not verified, but we cannot discern where the questio'n presently discussed was even mentioned. Under G. S. 1935, 60-1010, a defendant claiming a right to the return of replevined property may have judg- nient in his favor, but that does not necessarily mean he must plead his claimed right by answer and that he may not do so by cross petition. The code of civil procedure recognizes right to relief under a counterclaim (G. S. 1935, 60-711) and that it may be made a part of the answer, but that it must be so pleaded does not appear. In any event, the name applied to the pleading is not decisive. The pleadings in this case, by whatever name they were called, fully advised the appellant of the appellee’s claim, the cause was tried without objection for the particular reason being discussed, and the parties, the court and the jury understood the issue. The pleadings were sufficient to support the judgment.
Appellant also contends the evidence was insufficient to show breach of warranty. The warranty was that the automatic press would register accurately. Appellant’s point is there was no evidence of any particular defect in the press. Appellee’s evidence showed the press would not register accurately and that appellant tried repeatedly to make it do so and failed. Probably if appellee had known what was the matter he would have told appellant so that it could be remedied. Because he didn’t know, and if appellant did know it did nothing effectual, gave rise to this action. Appellee had only to prove the press did not comply with the warranty, not the cause why it did not. The proof was sufficient.
We have also examined appellant’s contention the court erred in not sustaining its motion to strike an answer of a witness for the asserted reason it was irrelevant. Perhaps it was, but that it was prejudicial does not appear. The error, if any, must be prejudicial to warrant a reversal.
And finally, appellant contends the trial court erred in its instructions to the jury in submitting whether the defendant had offered to return the press within a reasonable time and whether appellant’s conduct excused a failure to make an earlier tender. The record does not disclose that any objection to the instructions was made when they were given, and the complaint is late. What has been said earlier, however, disposes of the contention.
From what has been said it follows the judgment of the trial court should be, and it is, affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
These were two actions to set aside mineral deeds on the ground their execution was induced by fraudulent representations. Defendants denied the alleged fraud and pleaded the statute of limitations, estoppel and laches. The pleadings in the two cases are alike except the name of plaintiff and the description of property conveyed. The issues are the same in both cases; they were consolidated for trial, and are presented together here. A trial by the court resulted in judgment for plaintiffs. Defendants have appealed and contend plaintiffs are barred from maintaining the action by the statute of limitations, and that they are estopped from maintaining them by their acts and conduct, and by laches.
The pertinent facts necessary to be stated are sufficiently set forth in the findings of the trial court, which may be summarized or quoted as follows: On September 11,1930, each of the plaintiffs was the owner in fee simple of a described quarter section of land. They were unfamiliar with oil and gas production and had had no experience in the sale of mineral rights and oil and gas royalties.
“3. The Kansas Farmers Union Royalty Company was organized for the purpose of creating an oil royalty pool among its stockholders by the exchange of shares of stock for mineral interests in lands owned by the stockholders. The incorporators of the company were individuals who at the time were connected with various organizations sponsored by The Farmers Union Educational and Co-Operative Union of America, Kansas Division. Among such incorporators were C. E. Brasted and C. E. Huff, respectively secretary and president of The Farmers Educational and Co-Operative Union of America, Kansas Division; W. J. Spencer and C. E. Broom, respectively president and secretary of The Farmers Union Mutual Insurance Company, and Thomas B. Dunn, secretary-manager of The Farmers Union Auditing Association. The plan of organization required the transfer of an undivided one-half interest in the oil, gas and other minerals in and under a quarter section of land as consideration for one share of stock in the company. The bylaws provided that not to exceed 25 percent of the total royalty acquired by the company could be sold for cash or exchanged for services rendered or for moneys advanced, without a majority referendum vote of all stockholders. One Aldrich Blake of Oklahoma City entered into a contract with the company to organize and promote the pool and to pay all expenses connected therewith, in return for which one-fourth of all royalties taken were to -be transferred or conveyed to him or to his nominee.
“4. In the negotiations for the mineral deed executed by plaintiffs to defendants, the latter were represented by one Oscar S. Evans as their agent. In connection with the transaction, plaintiffs executed in writing an application for shares.”
This was addressed to The Kansas Farmers Union Royalty Company and recited:
“We hereby apply for one share of stock in The Kansas Farmers Union Royalty Company, and attach mineral deed hereto, covering a one-half undivided interest for fifty years in all of the mineral rights in the following described land. (Description.) We hereby state and represent that there is no mortgage on the above-described land; . . . that no part of the mineral rights on the said above-described land has been previously disposed of; . . . that above-described land is leased as to record . . . that all taxes . . . are paid. ... In making this application, it is our under standing that not to exceed an undivided twenty-five percent interest of the total royalty interest acquired by the company shall be sold for cash or exchanged for services rendered or for moneys advanced without a majority referendum vote of all stockholders according to the bylaws of the company. I am a member of the Kansas Farmers' Union.”
Attached to the application was an instrument called “mineral deed special,” by which the owner of the land and his wife, “in consideration of the sum of one dollar, cash in hand paid by the Kansas Farmers’ Union Royalty Company and Flag Oil Company, hereinafter called grantees, and other good and valuable considerations, the receipt of which is her.eby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver unto said grantees an undivided one-half interest in the proportion of three-fourths and one-fourth interest therein, respectively, to the said grantees in and to all of the oil, gas and other minerals in and under, and that may be produced from” the described land. It further recited that the land is now under an oil and gas lease, as shown by the records, and that the sale was made subject to the lease, and the deed contained other provisions usual in such an instrument.
“6. Plaintiffs were induced to sign the application for shares and the mineral deed set out in finding No. 5, on the strength of false assertions and representations made by Oscar S. Evans to them as follows:
“(a) That The Kansas Farmers’ Union Royalty Company then held royalty deeds to a one-half interest in the royalty or minerals in and under at least two quarter sections of land in each township in McPherson and Rice counties, Kansas, and also in many of the townships in Barton and Pawnee counties, and on several quarter sections of land in Stafford county, Kansas. As a matter of fact, at such time, the company held only a three-eighths interest in the minerals in and under not more than eight quarter sections of land in McPherson county. There are twenty-five townships in said McPherson county. The acreage held is scattered among five townships in said county. At such time the company held no royalties at all in Rice, Barton and Pawnee counties, and only under one quarter in Stafford county.
“(b) That said company at that time held and owned one-half of the royalty or minerals on several tracts close in to production and to drilling wells, and within one-half mile thereof, in McPherson county, and within one-half mile of the Raymond pool in Rice county. As a matter of fact, all the royalty held by the company in McPherson county was located at least two miles from the nearest production, and the company had no royalty within half a mile of the Raymond pool in Rice county and in fact had no royalty whatsoever in that county, and none anywhere nearer production than that in McPherson county.
“(c) That The Kansas Farmers’ Union Royalty Company was a part of' The Kansas Farmers Union which was the name commonly used for The Farmers Union Educational and Co-Operative Union of America, Kansas Division. As a matter of fact, said companies were distinct and separate organizations. At the time of said transaction on September 11, 1930, plaintiff R. C. Gates was a member in good standing of the latter company.
“(d) That the mineral deed executed by plaintiffs conveyed an undivided one-half interest in the oil, gas and other minerals in and under the northeast quarter of section 34-21-13, Stafford county, Kansas, to The Kansas Farmers’ Union Royalty Company, whereas in truth one-fourth of the mineral interest conveyed was thereby transferred to the Flag Oil Company.
“7. On September 11, 1930, prior to the execution of the deed in question, plaintiffs knew from reading the application for shares that the company, under its bylaws, could sell or exchange for services not to exceed 25 percent of the total royalty interest acquired by the compahy, without a referendum vote of the stockholders. Evans stated and represented to R. C. Gates that he would fill out the deed in accordance with the application and immediately filled in the deed and thereafter stated to the grantors that the deed was written up in accordance with the application. Evans retained possession of the deed until it was presented for execution before the notary public at the bank in Seward. Plaintiffs did not read the deed before signing same. They relied instead upon the statements of Evans that the deed was prepared in accordance with the application for shares and understood thereby that the entire one-half interest in the royalty on their land was conveyed to the royalty company, subject, however, to the right of said royalty company to sell or exchange for services not to exceed 25 percent of the royalty conveyed to it. Evans also represented to plaintiffs that there was no present need to draw on the 25 percent interest for expenses because the lease rentals then being received by the royalty company were more than enough to take care of all expenses.
“8. Plaintiffs did not learn until in the summer of 1934 that the representations made by Evans with reference to the royalty holdings of the company in McPherson, Rice, Barton, Pawnee and Stafford counties were false. Discovery was brought about by investigation following information through the newspapers to the effect that suits had been filed in Russell county, Kansas, questioning the validity of certain royalty deeds made to The Kansas Farmers’ Union Royalty Company. Shortly after that time, plaintiffs also first received actual knowledge of the fact that one-fourth of the mineral interest conveyed under the deed went to the Flag Oil Company. Plaintiffs did not learn that The Kansas Farmers’ Union Royalty Company was not a part of The Kansas Farmers’ Union of Kansas until in the year 1937.
“9. In September, 1930, plaintiffs’ land was subject to an oil and gas lease. Production was found within three-fourths of a mile of the Gates land in 1933, but thereafter the lease on plaintiffs’ land was dropped and the land remained unleased for a time during the pendency of the present action.
“10. Plaintiffs have tendered into court for cancellation the share of stock issued as consideration for the mineral deed in question in this case.
“11. Plaintiff relied upon the representations made by Evans (o) as to the number, amount and location of the royalties held by the royalty company in McPherson, Rice, Barton, Pawnee and Stafford counties; (b) that the royalty company held royalty close to production (within half a mile) in McPherson county, and within half a mile of the Raymond pool in Rice county; (c) that The Kansas Farmers’ Union Royalty Company was a part or branch of The Kansas Farmers’ Union of Kansas; (d) that the deed executed by plaintiffs conveyed all the one-half interest in the minerals covered thereby to The Kansas Farmers’ Union Royalty Company. Plaintiffs would not have executed the deed in question had they not relied upon the aforesaid false representations made by Evans as true.
“12. The court finds that the representations inducing the plaintiffs to sign the application and the mineral deed, which representations are set forth in paragraph No. 6 of these findings, were all false and untrue, and were known by all of the defendants to this case to be false and untrue, and they were made for the purpose of deceiving the plaintiffs, and for the purpose of inducing the plaintiffs to execute the application for membership and the mineral deed involved in this action, and such representations did induce-the plaintiffs to execute the application for shares, and the mineral deed involved in this action and referred to herein.
“13. The mineral deed executed by the plaintiffs to the defendants was recorded in the office of the register of deeds of Stafford county, Kansas, on November 24, 1938 [1930], in Book 1 of Royalty Record, page 455.
“14. This action was commenced August 24, 1934, to cancel and set aside the mineral deed referred to in these findings.
“15. Plaintiff R. C. Gates, on September 11 and 13, 1930, was possessed of more than average intelligence, ability and experience, and had held public office in Stafford county.
“16. On or about November 17, 1930, the plaintiffs received a cheek signed by ‘The Planters State Bank, trastee for Farmers’ Union Royalty Company of Kansas,’ for the sum of $1. This check was received by the plaintiffs before they had learned or had any knowledge of, or reason to believe, that they had been tricked into the execution of the mineral deed and the application for the stock, and the court believes that this check was made for the purpose of furthering the fraud practiced upon the plaintiffs, and that they were delivered for the purpose of endeavoring to perpetuate the fraud practiced upon the plaintiffs. It will be noticed that this check was dated November 17, 1930, about two months after the mineral deeds had been delivered to the defendants, and the court is of the opinion that there was no money whatever in the hands of the treasurer from the operation of the corporations to pay any dividends, and that the money for this dividend was advanced by somebody in the interests of the company in order to get stockholders who had been defrauded, to accept a dividend with the purpose of thereby estopping the plaintiffs in this case and others from bringing a suit to cancel mineral deeds on account of misrepresentation and fraud. It will be noticed that this dividend check was mailed while the company was actually seeking new members, and that no dividends whatever have been paid since the corporations have ceased seeking new members and new mineral deeds. Notwithstanding the fact that the company has undoubtedly collected considerable money for delay rentals from leaseholders and notwithstanding that they now have one producing oil well, no dividends whatever have been paid since the nominal payment above referred to.
“In order for the plaintiffs in this case to be estopped by reason of the acceptance of this dividend check, it would be necessary for the plaintiffs to have known at the time of accepting and cashing the check, that the representations made by the defendants were false and untrue. The plaintiffs did not learn of the fraud practiced upon them until long after the check had been received and cashed, and therefore there could be no estoppel.
“IV. The evidence fails to disclose that the plaintiffs ever executed any proxy to anyone to represent them at any meeting of the defendant companies, and fails to disclose that the plaintiffs ever participated in any manner in any meetings of the stockholders of the defendant companies.
“18. The books, records and files of the Kansas Farmers’ Union Royalty Company have been kept at its office in Salina, Kan., from the time of its organization to date.
“19. One of the claims of the defendants at the trial was that the plaintiffs could have learned by examining the records in the register of deeds offices of McPherson, Rice, Barton, Pawnee and Stafford counties, that the defendants did not, at the time of the taking of the mineral deed and application, have and hold royalty deeds as represented by the defendants and set out in paragraph No. 6, subdivisions ‘a’ and ‘b.’ The records in the offices of the register of deeds of these several counties would not have reflected what royalty deeds were held by the defendants for the reason that the defendants may have had, and in fact did have, many royalty deeds which were never recorded. So, that the plaintiffs could not have learned of this misrepresentation by a mere examination of the records in the offices of the several registers of deeds.”
The court made the following conclusions of law:
“1. The court finds as a conclusion of law that the plaintiffs are not es-topped by any act of theirs from obtaining a decree cancelling the mineral deed and quieting the title of the plaintiffs to the real estate involved.
“2. The court finds that the action is not barred by the statute of limitations.
“3. The court finds as a matter of law the plaintiffs are not estopped by reason of the acceptance of the dividend check for 81 for the reason that the check was given by the defendants as a part of the general scheme to defraud the plaintiffs and for the reason that the plaintiffs, at the time of accepting the dividend check, had not learned of any of the fraud practiced upon them by the defendants,, and, therefore, could not have waived the fraud, and this court can require, as a condition of the cancellation of the mineral deed, that the plaintiffs return the 81 dividend received by them, plus interest at six percent, so that the defendants will not lose or suffer in any respect by reason of the acceptance of the dividend.
“4. The court finds that the mineral deed should be canceled and set aside, and held for naught, and the title of the plaintiffs quieted against the defendants.”
Judgment was rendered accordingly.
In the trial court defendants moved to set aside the court’s findings as not being supported by the evidence and as being contrary to the evidence. This motion was overruled, as was also their motion for a new trial. In this court, while the findings are criticised by appellants, the criticism goes largely to the weight which should have been given to the evidence. There is no contention that the findings of the court of the fraud which induced the execution of the mineral deeds are not supported by substantial competent evidence. Appellants’ sole contentions are that the appellees are barred from obtaining relief from the fraud found by the statute of limitations and by estoppel and laches.
The pertinent portion of the statute of limitations (G. S. 1935, 60-306) relied upon by appellants reads:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards: . . . Within two years; ... an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The principal fraud found by the court was from dates in September to November, 1930. The action was not filed until in August, 1934. The trial court found the fraud relied upon by the plaintiffs which induced the execution of the deeds was not discovered by them until the spring and summer of 1934.
Appellants contend plaintiffs should have discovered the fraud earlier and at some time more than two years prior to the date the action was brought. The phrase “discovery of the fraud” as used in the section above quoted means the discovery by the person defrauded of such facts indicating he has been defrauded as would cause a reasonably prudent person to investigate, and which, if investigated with reasonable diligence, would have led to knowledge of the fraud. (Duphorne v. Moore, 82 Kan. 159, 107 Pac. 791; Mateer v. Land Co., 91 Kan. 349, 137 Pac. 786; Horne v. Curtis, 105 Kan. 371, 184 Pac. 719; City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807; Bluff City v. Western Light & Power Corp., 137 Kan. 169, 19 P. 2d 478; Malone v. Young, 148 Kan. 250, 81 P. 2d 23; Bradrick v. Woodward, 148 Kan. 784, 84 P. 2d 885; Travis v. Glick, 150 Kan. 132, 91 P. 2d 41; Simmons v. Clark, 151 Kan. 431, 99 P. 2d 739.)
A mere suspicion of fraud is not sufficient. (Marbourg v. McCormick, 23 Kan. 38; 37 C. J. 946.)
As found by the trial court, the fraudulent representations made by defendants’ representative, relied upon by plaintiffs and which induced them to execute the mineral deeds, consisted of four groups of false representations (see finding 6): (a) The large number of mineral deeds held by The Kansas Farmers’ Union Royalty Company in certain counties. It is argued plaintiffs could have gone to the office of the register of deeds in each of the counties and ascertained exactly how many mineral deeds the company held in that county. This could not have been done, for the company had mineral deeds which it never had recorded. More than that, there is nothing in the court’s findings, and we are cited to nothing in the evidence, which would cause plaintiffs to suspect the representations of defendants’ representative were false in that particular until in February, 1934. (b) That the company held mineral deeds on several tracts within a half mile of production and drilling wells in McPherson county and that near to the Raymond pool in Rice county. Appellants argue those facts could have been discovered by a search of the records in the office of the register of deeds in McPherson and Rice counties. For reasons previously stated that could not have been done, and no reason was shown for plaintiffs to make such a search or other inquiry respecting such matters until the court found they did so early in 1934. (c) That The Kansas Farmers’ Union Royalty Company was a part of The Kansas Farmers’ Union, with the organization of which plaintiffs were familiar, since they were members of it. Appellants argue that the very name indicates the difference. But even the difference in name does not disclose the fact that The Kansas Farmers’ Union Royalty Company was not a part of the Kansas Farmers’ Union, (d) That the mineral deeds executed conveyed rights only to The Kansas Farmers’ Union Royalty Company. Appellants argue the deeds on their face show that one-fourth of the mineral interest which passed by the deeds was conveyed to the Flag Oil Company. Appellants make no specific complaint of the finding of the trial court (No. 7) to the effect that appellants’ representative handled the execution of that deed so the grantors would not discover the fact that the Flag Oil Company was one of the grantees. The name Flag Oil Company did not appear in the application for membership signed by plaintiffs. That application did disclose that The Kansas Farmers’ Union Royalty Company had authority by a vote of its members to use not more than one-fourth of the mineral interest conveyed for operating expenses, but plaintiffs’ evidence was to the effect that defendants’ representative at the time the application was made assured plaintiffs that none of the mineral rights had been disposed of by The Kansas Farmers’ Union Royalty Company, and that there would be no necessity of doing so. So, up to the time the mineral deeds were in fact executed there had been nothing in writing to indicate the Flag Oil Company had any interest in the matter, and the testimony of plaintiffs, to which apparently the court gave credence, was to the effect there had been no oral representation of that character. Appellants point out that the deed was recorded November 24, 1930, and they stress the contention that plaintiffs, by examining the recorded deeds any time after they were recorded, could have ascertained the fact that by them a share of the mineral rights passed to the Flag Oil Company, hence could have learned that fact much earlier than two years before the action was brought. In support of this argument they cite many of our cases in which it has been held in effect that the recording of a fraudulent deed is constructive notice of the fraud. Without attempting to make a complete list, see the following: Black v. Black, 64 Kan. 689, 68 Pac. 662; Hutto v. Knowlton, 82 Kan. 445, 108 Pac. 825; Underwood v. Fosha, 96 Kan. 549, 152 Pac. 638; Davis v. Heynes, 105 Kan. 75, 181 Pac. 566; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332; In re Estate of McFarland, 118 Kan. 534, 235 Pac. 832; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077; Dorsey v. Protection State Bank, 143 Kan. 398, 54 P. 2d 952; Keys v. Steele, 143 Kan. 826, 57 P. 2d 28.
Even if this contention were held to be well taken we think it would be of no avail to appellants in this case because there are three groups of fraudulent representations found by the court to which the principle would not apply. Each of the cases cited by appellants may be distinguished from the one before us. None of the cases was brought by the owner of property who had executed a deed thereto to set it aside because of the fraudulent inclusion therein of the name of a grantee. An owner of real property is not bound in'such a way as to start the running of the statute of limitations by constructive notice of the recording of a deed to which his name as grantor has been forged (Cox v. Watkins, 149 Kan. 209, 87 P. 2d 243); neither is the recording of a deed executed by the owner of a property constructive notice to the grantor of the fact that there had been fraudulently included in the deed a description of property other than that which the grantor had intended to convey so as to start the running of the statute of limitations. (37 C. J. 944; Webb et al. v. Logan et al., 48 Okla. 354, 150 Pac. 116; Ford v. Perry, 66 Okla. 150, 168 Pac 221; Stocklassa v. Kinnamon, 132 Okla. 139, 269 Pac. 1080; Davis v. Monroe, 187 Pa. 212, 41 Atl. 44; Madole v. Miller, Appellant, 276 Pa. 131, 119 Atl. 829.)
We think the same rule would apply to the fraudulent insertion in the deed of another or different grantee than that intended to be used by the grantor, although counsel have cited no cases on that point and our limited time for research has disclosed none. In Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, a suit by a creditor to set aside a deed, for which it was alleged the debtor had paid the consideration by taking the title in the name of his wife, the rule that the recording of the deed furnished constructive notice to the creditor and started the running of the statute of limitations was applied. But even that case is distinguishable from this. Here it is the grantor, not the creditor of a supposed grantee, who is complaining of the fraud practiced upon him. Normally, an owner of the property who executes a deed therefor has no occasion to examine the record after the deed is recorded to ascertain if a fraud has been committed upon him by the inclusion of additional real property or an additional grantee. Certainly we think that would be true in the absence of any fact or circumstances which would cause a reasonably prudent grantor to suspect fraud practiced upon him in that manner.
Appellants complain plaintiffs were estopped by their acts and conduct from maintaining the action. This rests primarily upon the fact as found by the court that in November, 1930, shortly before the mineral deeds were filed for record, The Kansas Farmers’ Union Royalty Company sent to each of plaintiffs a check for $1 — which plaintiffs cashed — purporting to represent a dividend. Respecting that, the court found that this was a part of the scheme and plan of defendants to defraud plaintiffs and that in fact the company had no money on hand from which it could pay dividends. We are unable to say as a matter of law that the finding and conclusion of the court on that point were incorrect. Appellants argue that plaintiffs executed proxies for someone to represent them at meetings. The court was unable to find that such proxies were sent, which is really a finding against appellants on that point. This finding is complained of on the ground that it was contrary to evidence. In support of that complaint appellants quote the testimony of one of plaintiffs to the effect that he did send a proxy. What other evidence there was bearing upon the question is not disclosed. It is quite clear, however, that if any proxy was sent it was before plaintiffs had knowledge of the fraud which had been practiced upon them. It is argued plaintiffs attended certain meetings. These were likewise before they had knowledge of the fraud, and there is no showing that at any meeting which they may have attended or for which they may have sent proxies was any business transacted that would enable one present to discover the fraud more than two years prior to the bringing of the action. Appellants also contend plaintiffs were guilty of laches in not discovering the fraud sooner. We find nothing in the record that would justify us in holding as a matter of law that plaintiffs were estopped either by their acts or conduct, or by laches, from maintaining the actions.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the owners of an 80-acre tract of land to recover damages from the defendants, Shell Petroleum Corporation and McPherson Oil & Development Company, for breach of the implied covenant in an oil and gas lease to explore, develop and produce oil from each of two alleged oil-bearing sands between certain dates. A general demurrer to plaintiffs’ evidence was sustained upon the ground the evidence was so speculative as to constitute merely guesswork. .From that ruling plaintiffs appeal.
We shall refer to the Shell Petroleum Corporation as the “Shell,” to the McPherson Oil & Development Company as the “McPherson,” and to the lease involved as the “Myers 80.”
The Myers 80 was located in what is known among oil men as the Galva Sector of the Ritz-Canton field of McPherson county. The Myers 80 was leased for both oil and gas by plaintiffs, five owners of undivided interests, under three separate leases of the same character, namely, a regular Kansas producer 88 form. The leases were executed February 3, 1926, and November 26, 1927, to the Roxana Petroleum Corporation. The name of that company was later changed to Shell Petroleum Corporation. We shall refer to the leases as one lease. The basic, or primary, term of the lease was five years. Under the terms of the lease the lessee was permitted to pay rentals in lieu of drilling during the primary term. From production lessors were entitled to one-eighth of the oil and one-eighth of the revenue from the gas produced. The lease was assignable. Rentals were regularly paid until February, 1931. In January, 1931, a commercial gas well was completed in the center of the north half of the 80 at a depth of 2,939 feet. Shortly thereafter, and in 1931, the McPherson entered into a contract with appellants whereby it paid them stipulated sums of money in lieu of drilling a second gas well in the south part of the Myers 80. The payments were determined upon the basis of royalties from gas wells in the neighboring-territory. This contract did not pertain to development of oil interests. It is claimed the McPherson as well as the Shell was liable to appellants by reason of contractual relations between the Shell and the McPherson.
The two oil-bearing formations which appellants contend should have been explored and developed are the shallower formation encountered at approximately 2,900 feet, known as the Mississippi limestone and referred to by the parties as the Chat formation. The second or deeper formation involved, and encountered at approximately 3,360 feet, is the Trenton limestone and it is spoken of by the parties as the Viola formation.
The instant action for failure to develop the oil interests was filed June 24, 1937. The specific items of damage alleged, in the petition fall under two general headings. One item is for damages alleged by reason of failure to explore and develop the Chat formation, and the other was for alleged failure to develop and produce from the Viola formation. It was alleged the gas well drilled in 1931 on the north half of the 80 should have been deepened in the Chat not later than October 1, 1933, by 19 feet, and converted into a combination oil and gas well, and that by failure to do so plaintiffs were damaged between October 1, 1933, and the filing of this suit, June 24, 1937, in the sum of $3,750. That damage was based upon the allegation that the well, if so deepened and operated, would have produced, between the dates stated, 30,000 barrels of oil of the market value of $30,000. It was alleged careful and prudent operation also required the drilling of one additional Chat well on the 80 between October 1, 1933, and December 1, 1933, and that such a well, if drilled and operated, would have produced by August 1, 1935, not less than 60,000 barrels of 36 or 37 degree gravity oil. It was alleged the market price was one dollar per barrel and plaintiffs’ royalty would have amounted to $7,500. It was also alleged, if that well had been so drilled and operated it would have protected and preserved the oil in the Chat sand so that the Chat would have continued to produce oil indefinitely thereafter, and that failure to drill the additional well in the Chat had substantially reduced the possible recovery of oil from that sand.
The other specific item of damage was alleged to have resulted from failure to reasonably explore and develop the Viola formation. The averment was that diligent operation required the drilling of four wells in that sand to the approximate depth of 3,375 feet between June 1, 1934, and August 1, 1935, and if such wells had been so drilled defendants could have produced and marketed not less than 210,565 barrels of similar gravity oil as that produced from the Viola formation on adjacent and surrounding lands. It was alleged plaintiff’s royalty from those four wells to August 1, 1935, would have amounted to $26,320, and that such drilling would have preserved the oil in that stratum in profitable quantities for an indefinite period after August 1, 1935, and that failure to drill the four wells had substantially reduced the possible recovery of oil from that stratum in the future.
The parties stipulated touching the following facts:
1. Change of name of defendant Shell.
2. Maps of the vicinity, marked exhibits “A” and “B,” correctly show the location of wells drilled for oil or gas in the Chat and Viola formations as to January 1, 1939. All other data shown on the maps relative to the various wells is deemed to be correct for the purpose of this suit.
3. Exhibit “C,” consisting of three pages; shows the total production as of January 1, 1939, of wells drilled in the field generally. It covered 39 Chat wells and 65 Viola wells.
4. Exhibit “D” contained the logs of all oil and gas wells in the entire field.
5.The average rock pressure of all gas wells drilled to the Chat in the areas shown by exhibits “A” and “B,” on the dates shown, was as follows:
Original pressure . 1,025 lbs.
February, 1932 . 825 lbs.
February, 1933 . 735 lbs.
July, 1934 . 665 lbs.
July, 1935 . 560 lbs.
July, 1936 . 430 lbs.
6. The area in the vicinity of land described in plaintiffs’ petition was core-drilled by the Shell in 1925 and 1926. A contour map drawn according to the information obtained from such core drilling would be substantially the same as a contour map drawn on the top of the Chat, based on information from wells now drilled in that area.
7. The oil, if produced from the Myers 80 as plaintiffs claim it could have been produced, would have been sold for one dollar per barrel, whether produced from the Chat or Viola.
8 and 9. The cost of drilling and equipping a well to the Chat was $25,000, and to the Viola $35,000, during the years 1932 to 1935, both inclusive.
10. The expense of operating an oil well in either the Chat or Viola was $325 per month.
11. The salvage value of material in a well drilled to the Chat was $3,000, and $3,500 for a well drilled to the Viola.
12. Additional evidence may be introduced which is not inconsistent with the stipulated facts.
13. The stipulation is limited to the trial of this or any sub-, sequent case involving the same controversy.
We shall first consider the case against the Shell. If it is liable upon any theory on any specific item of damage alleged we shall next consider the liability of the McPherson. On the other hand, if the Shell is not liable, it is not contended the McPherson is liable.
We shall first consider the item of damage pertaining to the Viola formation. Did the court err in sustaining the demurrer to appellants’ evidence insofar as failure to explore and develop that formation was concerned? The first element of appellants’ cause of action was the establishment of the breach of the implied covenant to explore and develop that formation. The second element they were required to reasonably establish was the extent of their damage. What about the proof touching the first element?
The petition alleged four wells should have been drilled in the Viola between June 1, 1934, and August 1, 1935, and that failure to drill them between those dates resulted in damage to appellants in the sum of $26,320.
The parties stipulated that the data contained on maps, exhibits “A” and “B,” correctly reflected certain facts pertaining respectively to wells drilled in the Chat and Viola formations. The data covered the location of wells, date completed, the subsea depth of each well to the top of the producing horizon, the number of feet each formation was penetrated, the initial and maximum production of each well, the total recovery of barrels of oil, the number of months they produced, the date water was first encountered, if encountered, the wells which were initially and currently water free, the percentage of current water where initially free from water, percentages of initial and current water in each well, wells formerly drilled to the Viola and plugged back to the Chat formation, producing wells, dry holes, the location and number of gas wells in the entire field, and wells which originally produced and were later plugged back to the Chat formation or abandoned. Facts touching these subjects were thus admitted, in addition to the specific facts embraced in the stipulation'formerly mentioned.
Appellants’ experts estimated the total production from the four Viola wells, if drilled, would have been 260,000 barrels of oil. They allocated 65,000 barrels of oil to each of the four wells. They claimed that in arriving at their estimate they considered all stipulated facts, together with the location of the four wells on the structure, gas pressure, porosity and permeability of the formation as •reflected by the general production in the entire field, and all factors which are generally regarded by practical operators as accepted methods for determining the amount of recoverable oil. In ruling on the demurrer those facts must be accepted as true.
According to the record, wells in the Viola were drilled on ten-acre locations and not closer than 330 feet from the property line. By June 1,1934, no wells had been drilled in the Viola on the Myers 80, the land in question, and no wells had been drilled sufficiently near it to require an offset on the Myers 80. The nearest producing Viola well, as early as June, 1934, was located in the southwest corner of the eighty to the west of the Myers 80. It was drilled in June, 1934. It was approximately 1,320 feet west of the location on the Myers 80 where appellants insist one of the four Viola wells should have been drilled. Altogether four Viola wells were drilled on the eighty west of the Myers 80. Another of those four wells was drilled in the center and along the west line of that eighty in January, 1935. The two other Viola wells on that eighty were drilled along its north line. One of those wells was drilled in the northwest corner of that eighty and as an offset to a well across the north line and as an offset to a well across the line diagonally to the northwest. The two north wells were drilled in October, 1934, and in February, 1935. The other one of those two north wells was drilled in the northeast quarter of that eighty and as an offset to a Viola well across the north line. It will be observed the last of these four wells was located so as to ordinarily require an offset in the northwest corner of the Myers 80. A Viola well had also been drilled in April, 1935, at a point one location east of the center of the Myers 80. It thus appears two offset wells ordinarily would have been required on the Myers 80. The Shell, appellee, insists, according to the stipulated facts and the testimony of appellants’ own expert witness, a loss was sustained on the Viola well to the east of the Myers 80 of approximately $16,000, and that a loss of between $25,000 and $30,000 was sustained on the well drilled in the northeast corner of the eighty to the west of the Myers 80. Appellee also insists that, according to the stipulated facts, it sustained a loss on the well drilled across the line northwest of the northwest corner of the Myers 80 of approxi-. mately $30,000 to $35,000.
We need not determine whether those are the exact amounts of loss the Shell sustained on those respective Viola wells it had drilled to the northwest, west and east of the Myers 80. At least two of those wells were the nearest Viola wells to the Myers 80 at any time. They constituted the best evidence of which the subject, namely, the alleged breach of implied convenant to explore and develop the Viola formation on the Myers 80, was susceptible. We are persuaded, in view of the record, the trial court correctly ruled the evidence was insufficient to warrant submitting to the jury the question of breach of the implied covenant to explore and develop, so far as the Viola formation was concerned. The opinion testimony of experts to the contrary — if indeed it was contrary — cannot prevail against the stipulated facts. This is especially true in view of the express provision contained in the stipulation which makes it impossible to consider any evidence' which is not consistent with the stipulated facts. No implied duty rests upon a lessee to offset a nonpaying well, where the offset probably would result in a loss to the lessee. (2 Summers on Oil & Gas, 342, § 399; Eastern Oil Co. v. Beatty, 71 Okla. 275, 279, 177 Pac. 104; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 814; Pelham Petroleum Co. v. North, 78 Okla. 39, 44, 188 Pac. 1069; Franklin v. Wigton, 132 Okla. 236, 237, 270 Pac. 1; State Line Oil & Gas Co. v. Thomas, [Tex. Civ. App.] 35 S. W. 2d 746.)
It may also be well to observe that the combined production from the four Viola wells on the entire eighty-acre tract to the west of the Myers 80 was not sufficient to justify a finding the Shell had breached the implied covenant to explore or develop the Viola on the Myers 80. The production from those four wells, if averaged, might possibly show a slight profit, although that is doubtful. At any rate the evidence certainly did not disclose a breach of duty to diligently or prudently explore and develop the Viola formation under the Myers 80. The evidence also disclosed if four Viola wells had been drilled on the Myers 80 at locations indicated by appellants’ witnesses, that such wells probably would have reduced to some extent the production from the four Viola wells on the eighty to the west of the Myers 80. Furthermore, the evidence discloses that two Viola wells on the south of the Myers 80, if they in fact had resulted in commercial wells, would have required offsets across ,the south line of the Myers 80 and offsets to the southeast and east of the Myers 80, which also probably would have reduced to some extent the production from the south wells on the Myers 80.
While we have thus far considered only the wells which formed the best basis for determining the question of breach of implied covenant, it may be well to note that other evidence considered in connection with evidence already discussed did not establish the contention the Myers 80 was located in the center of proven commercial production in the Viola structure. The Myers 80 is the east 80 of the northeast quarter of section 14. The oil development of this entire field was principally to the southwest, west and northwest of the Myers 80, although there was also some Viola development to the south and southeast, and two wells on the quarter section to the east of the Myers 80. The nearest Viola wells directly south of the Myers 80 were located at the extreme southern line of section 14. The nearest wells to the southwest of the extreme southwest corner of the Myers 80 were one location removed from the west line of the southeast quarter of section 14. The nearest Viola well to the southeast of the southeast corner of the Myers 80 was located in the northeast corner of the quarter section which lay southeast of the Myers 80. The latter well’was drilled by other lease owners in April, 1932. Only one producing well to the east of the Myers 80, other than the nonprofitable well previously mentioned, had been drilled, and it was located in the southeast corner of the quarter section east of the Myers 80. It was drilled in 1932. There were no Viola wells directly north of the Myers 80 and there were no Viola wells in the quarter section to the northeast of it.
Where the object of the lease is production — and it ordinarily is — neither the lessor nor the lessee, in the absence of stipulation, is the sole arbiter of what constitutes diligent exploration or development. (Indiana Oil, Gas & Development Co. v. McCrory et al., 42 Okla. 136, 140 Pac. 610; Empire Oil & Refining Co. v. Hoyt, 112 F. 2d 356.)
A lessee or assignee of an oil and gas lease, under the implied covenant to diligently develop the property, is required to do what is reasonably expected of operators of ordinary prudence under the same or similar circumstances. (T. P. Coal & Oil Co. v. Barker et al., 117 Tex. 418, 6 S. W. 2d 1031; Indiana Oil, Gas & Development Co. v. McCrory et al., 42 Okla. 136, 140 Pac. 610; Stanolind Oil & Gas Co. v. Kimmel, 68 F. 2d 520; Empire Oil & Refining Co. v. Hoyt, 112 F. 2d 356; Hartman Ranch Co. v. Associated Oil Co., 10 Cal. 2d 232.) That, of course, means what a reasonably prudent operator would have done under the circumstances existing at the particular period of the alleged breach and not what hindsight indicates he possibly might have done.
The large expense incident to exploration and development, combined with the fact the lessee, and not the lessor, must bear the loss of unsuccessful exploration and development, justifies the lessee in proceeding with reasonable caution and with a proper regard to his own interests, as well as those of the lessor. A lessee is under no implied duty, to engage in an undertaking which is unprofitable to him, although it might, or would, result in some profit to the lessor. (Stanolind Oil & Gas Co. v. Kimmel, 68 F. 2d 520; T. P. Coal & Oil Co. v. Barker et al., 117 Tex. 418, 6 S. W. 2d 1031, 60 A. L. R. 936; Daughetee v. Ohio Oil Co., 263 Ill. 518; Empire Oil & Refining Co. v. Hoyt, supra; Brewster v. Lanyon Zinc Co., 140 Fed. 801, 814; State Line Oil & Gas Co. v. Thomas, [Tex. Civ. App.] 35 S. W. 2d 746; Franklin v. Wigton, 132 Okla. 236, 237, 270 Pac. 1; 2 Summers Oil & Gas, 342, § 399.) It is only to the end of mutual benefit or profit to both lessor and lessee that reasonable diligence is required. See cases last cited above and also Greenwood v. Texas-Interstate P. L. Co., 143 Kan. 686, 690, 56 P. 2d 431, and cases therein cited; Harris v. Morris Plan Co., 144 Kan. 501, 61 P. 2d 901. True, in Harris v. Morris Plan Co., supra, a cancellation case, we held:
“The lessee is not warranted in not developing the leased real estate under the implied covenants of an oil and gas lease because it may not prove presently profitable to him, where there is a market for the oil and gas which may be produced and the production and sale thereof will be to the advantage of the lessor.” (Syl. It 3.)
Manifestly, if the lessee thinks an undeveloped portion of his lease cannot be developed with profit to him he may be required to surrender such portion of the lease. That is not the instant case. This is an action for damages for alleged breach of the implied covenant to explore, develop and produce. The evidence of appellants’ own witnesses was that a lessee should not be required to operate a lease at a loss to himself. In substance the testimony was to the effect that where expense of exploration, development or production is large, the anticipated profit should be substantial. This fact is accepted in the industry by reason of the large risks taken. The best evidence failed to disclose exploration and development of the Viola formation on the Myers 80 would have been profitable to lessee. On the contrary, we think it fairly disclosed it probably would not have been profitable to the lessee. Since the breach of the implied covenant was not established as to the Viola formation, we obviously are not concerned with the second element of appellants’ cause of action, namely, the extent of damage resulting from a breach of the covenant.
What about the damages touching the failure to explore, develop and produce from the Chat formation? This alleged damage falls under two headings. The first is that appellants were damaged in the sum of $3,750 by reason of failure to deepen the gas well further into the Chat by October 1, 1933. In other words, the contention is that diligent and prudent operation required that this gas well, be converted into a combination oil and gas well, and that failure to só convert it resulted in the estimated damagé between October 1, 1933, and the filing of this action in June, 1937.
The second item of damage in the sum of $7,500 is claimed by reason of failure to drill a second Chat well on the Myers 80 between October 1, 1933, and December 1, 1933. It is claimed rea sonable diligence required it. In other words, appellants contend the Shell did not discharge its duty under the implied covenant of the lease to explore and develop the lease for oil and gas by merely exploring and developing it for gas alone, and that reasonable diligence required the drilling of two oil wells in the Chat formation. Appellants demanded oil production on various occasions between August, 1932, and April or June of 1934. When they made demands on the Shell it notified them they should see the McPherson. When they saw the McPherson, it referred them to the Shell. In 1934 they were advised by the manager of the Shell that he had recommended development of the Myers 80 for oil a year and a half before, but that appellants' guess as to when they would get development was as good as his. Appellants’ experts and practical operators testified if two Chat wells had been drilled they would have produced together 450,000 barrels of oil. Their testimony was that 290,000 barrels of that total production were irrevocably lost. The principal reason assigned for the loss was the subsequent decrease in fluid pressure. Appellants do not seek damages upon the theory of drainage by other wells. They assert there was some drainage but that they are not seeking recovery for any oil lost by drainage. Their theory and evidence was that, by reason of decrease in pressure, it was now impossible to recover some of the oil which remained in the formations. They testified this was true by reason of the fact that large flush production of oil from other wells in various parts of the field, large production of gas from the field generally, and waste of huge volumes of gas by popping-off processes in some parts of the field, and especially by other operators of gas wells to the southwest of the Myers 80, had materially reduced the necessary pressure for maximum production.
The parties stipulated the rock pressure in the Chat formation had been reduced from its original pressure of 1,025 pounds to 430 pounds in July, 1936. There was oral testimony that at the time of trial in 1939 the gas pressure had been reduced to 250 pounds. It is well to remember the Myers 80, here involved, was the east 80 of the northeast quarter of section 14. The Shell held all leases adjoining this 80, except the southwest quarter of section 14, and the quarter section to the southeast of the Myers 80. Appellants’ evidence was further that appellees owned a sufficient percentage of the oil and gas leases in the entire field to enable them to determine the priority of development of oil and gas in the field. Appellants’ testimony was the field should have been developed for oil first for the following reasons: Oil was more valuable than gas; production of oil first conserves the gas pressure and helps force the oil from the zone into the well; when gas is removed first it leaves only water pressure underneath the oil, and water pressure works more slowly than gas pressure; to produce gas first changes the character of oil by making it thick and heavy; the thicker and heavier the oil becomes the greater is the tendency to adhere to formations and the more difficult it becomes to recover it; the removal of gas first causes salt water to penetrate the oil-bearing sands; it is economical to remove oil first; if oil is taken first the gas is not lost but may be produced later.
The subject field was discovered as a gas field in 1929. The early and extensive development of the field was for gas which had a ready market. The Myers 80 was early surrounded with gas wells. The instant field was not an ordinary oil field. It was what is described as a “gas capped” field. Gas covered the entire field and it was found in large volume in the sands nearest the surface. The oil formations were encountered next, and water, being heavier than oil, was underneath the oil formations.
Appellants’ testimony was that the Shell had core-drilled the entire field in 1925, 1926, made thorough surveys of the formations according to accepted methods in the oil industry which revealed the Myers 80 was high and favorably located upon the structure, and that the Shell had reason-to believe oil probably would be found in commercial quantities. The various factors and data which were stipulated to by the parties touching the Viola wells were likewise stipulated to as touching the Chat wells. Those factors and that data have been previously stated and need not be repeated here. Appellants’ experts in substance testified these various factors and data upon which their testimony, concerning estimated production, was based, constituted accepted standards upon which the oil and gas industry made its estimates of probable production for all practical and financial purposes. Appellants insist that testimony was the best testimony of which the subject is susceptible and hence was sufficient. The question before us does not concern the competency of such testimony but rather whether, in view of the entire record, there is testimony to establish the breach of the implied covenant to explore and develop, and second, whether the evidence forms a reasonable basis for the measurement of damages. Appellants contend it does, and appellees contend it does not.
In this connection we are, of course, also obliged to consider the stipulated facts. Before we do so, however, it will be necessary also to consider some evidence concerning which the parties did not stipulate. Appellants’ experts concede porosity and permeability of oil-bearing sands constitute important factors in determining the uniformity of production in any oil field. They did not claim to know the exact porosity or permeability of the Chat formation. They frankly stated they nor any other person, in their opinion, knew definitely what the porosity or permeability of oil-bearing sands might be at every given point. They admitted it might vary in wells one location removed and from point to point in the same well. Speaking of the instant field generally, however, it was their opinion the porosity and permeability was fairly uniform. Appellees insist the stipulated facts, showing the initial and total production from various wells, and other essential factors, disclose the porosity and permeability of both the Viola and Chat formations varied tremendously.
Appellants’ experts further testified that in determining the probable production from undeveloped leases a highly important factor was the ability to ascertain the trend of the structure. In order to discover the trend in the instant case they testified they had considered all the stipulated facts and all information known to the industry, and were of the opinion the trend definitely ran from the southwest to the northeast across the Myers 80, and that the Myers 80 was located favorably and high on the structure. They further testified the trend across the Myers 80 was likewise indicated by production running in a line from the southwest to the northeast.
Appellants’ experts conceded that in arriving at their estimates of production under the Meyers 80 they considered all information available to them at the time of the trial in 1939, as well as in form a,tion which they possessed in earlier years. One of appellants’ expert witnesses, F. G. Holl, had made a survey for appellants in 1935 and in his report in 1936 gave it as his opinion that if the Myers 80 were explored profitable oil production would result. He also made estimates at that time as to the probable production from the wells, if drilled.
The damage as to the Chat formation was predicated upon the contention that formation should have been explored and developed for oil not later than October, 1933, and that if two wells had been drilled to a sufficient depth into the Chat by December 1, 1933, royalties would have accrued to appellants to the extent of $7,500 by June, 1937, the date the instant action was filed. We are therefore obliged to examine the stipulated facts concerning production from Chat wells between October, 1933, and December, 1933. In the years 1933, 1934 and 1935 there were no Chat wells to the north, northeast, east or in the quarter section to the southeast of the Myers 80. The nearest Chat well to the Myers gas well, located in the center of the north half of the Myers 80, was the Derby-Giffin well, which was located almost one-half mile to the northwest. It was located just across the north line of section fourteen, and was drilled in September, 1932. There was also a Chat well drilled in 1931 directly west of the south half of the Myers 80. It was, however, much farther removed from the Myers 80 than the Derby-Giffin well. There were four Chat wells located in the southwest quarter of section fourteen. They were drilled in 1932. No Chat wells were drilled on adjacent or nearby surrounding lands in 1933 except one well. It was drilled in December, 1933, and was located in the center of the south half of the west 80 of the southeast quarter of section 14.
In September of 1934 the nearest Chat well, up to that time, was drilled and it was located in the center of the north half of the 80 lying south of the Myers 80. The nearest Chat wells drilled in 1935 were located in the extreme southwest corner of the southeast quarter of section fouiteen, and in the center and south half of the southwest quarter of section fourteen.
It was not until 1936 that Chat wells were drilled on the south half of the two eighties lying to the east and west of the Myers 80. Two wells were drilled in the quarter section to the east. One of those wells was drilled in January, 1936. It was located in the center of the south half of the 80 nearest to the Myers 80. The other of those two east wells was drilled in the center of the quarter section to the east. The Chat well to the west of the Myers 80 was drilled in November, 1936, and in the center of the south half of that 80. In December in 1936 appellees drilled a Chat well in the center of the south half of the Myers 80. It had an initial production of 635 barrels per day and a total production to January 1, 1939, of 71,800 barrels. In February, 1939, appellees deepened the gas well on the Myers 80 ten feet in the Chat formation and it had an initial production of 305 barrels per day. That production of oil from this gas well was far in excess of the production which appellants’ expert, Holl, had estimated the well would produce if it had been converted into a combination oil and gas well in 1933, before the gas pressure had been materially reduced. Appellees insist the oil production from this gas well in 1939 conclusively refutes appellants’ contention they were damaged by the fact gas was produced first. Appellants counter with the contention their estimates of oil production from the gas well and from the other Chat well on the Myers 80 were too conservative, and that if their Chat wells had been drilled earlier they would have produced still larger quantities of oil. Appellants’ expert, Holl, frankly conceded that in order for his theory of producing the gas first to be workable it would be necessary to operate the entire field as a unit. We have previously indicated what leases in the immediate surrounding territory the Shell did not own. Manifestly it could not compel other leaseholders to produce oil first or gas first from their leases. Much gas was produced and an enormous volume of gas was popped off on the lease covering the southwest quarter of section fourteen, which ap-pellees did not own. It was conceded by expert testimony that the Shell, in order to protect its own gas supply on the Myers 80, was obliged to produce gas. In order to compensate appellants for gas which might be drained from the south half of the Myers 80, by operation of other gas wells, appellants received royalty payments in lieu of a gas well at that location.
Appellees remind us this is not an action to recover damages by reason of drainage and that at least in the years 1933,1934 and 1935-no Chat well had been drilled sufficiently near to the Myers 80 to require an offset on the Myers 80. Appellees further insist the subject field was discovered as a gas field, they had a ready market for the gas, appellants received the revenue from one large gas well in the north and received $3,777.63 by October 1, 1936, as revenues in lieu of a gas well on the south half of the Myers 80, and that, in view of the stipulated facts, they did not breach the implied covenant to explore, develop and produce oil earlier from the Chat formations.
Appellees further contend that no damage was established by their failure to drill the Chat well prior to December, 1936, or by their failure to deepen the gas well prior to February, 1939. They also contend that if they in fact breached the implied covenant to develop the Chat formation, and if any damage was established by such breach, the damage is too speculative to form a reasonable basis of measurement.
In the view taken by a majority of the court it is necessary to consider only appellees’ last contention touching the Chat formation.
It would constitute an almost endless task to review all the testimony in detail, including comparisons of all factors pertaining to 39 Chat wells, which were drilled by January 1, 1939, nor is it deemed necessary to do so. The court has carefully reviewed the testimony touching the earlier deepening of the gas well. It has noted with much care the experiences and hazards encountered in converting other gas wells in the subject field into combination oil and gas wells. It has noted the revenues of those wells, for both oil and gas, as compared with the revenues from the Myers gas well. It has taken cognizance of the fact this field was discovered as a gas field and was first developed primarily as such, and the further fact that in later years it has been turning into an oil field. It has studiously examined the stipulated facts, including the various exhibits. We are not unmindful of the rule that the admission of expert testimony is for the court, and the weight thereof is for the jury. (Baird v. Shaffer, 101 Kan. 585, 168 Pac. 836; Empire Oil & Refining Co. v. Hoyt, 112 F. 2d 356.) It is necessary, however, that the facts upon which an expert relies for his opinion should afford a reasonably accurate basis for his conclusions as distinguished from mere guess or conjecture. (20 Am. Jur. [Evidence], § 795, and cases cited.) The writer does not mean to imply the opinions of the experts and practical operators were based entirely upon conj ecture and speculation. In the instant case, however, by virtue of the terms of the stipulation, the opinions of experts or the testimony of any witness is not permitted to be inconsistent with the stipulated facts. The stipulated facts and other clear testimony, concerning production of various gas wells which were converted into combination oil and gas wells, give rise to great speculation touching the probable profit of such a venture. Where the facts upon which the opinion of an expert is based are highly speculative and conjectural, the jury would not be relieved from the necessity of reaching an arbitrary conclusion. The result is such expert testimony cannot be permitted to form the basis of a verdict. (Empire Oil & Refining Co. v. Hoyt, 112 F. 2d 356.) We have repeatedly held a verdict resting upon highly speculative testimony cannot stand. The rule has been applied in a great variety of damage cases, including a damage action by a lessor against a lessee for loss of oil alleged to have been drained from the land of the lessor. (Railroad Co. v. Aderhold, 58 Kan. 293, 298, 49 Pac. 83; Railway Co. v. Posten, 59 Kan. 449, 53 Pac. 465; States v. Durkin, 65 Kan. 101, 68 Pac. 1091; Maxwell v. Coffeyville Mining & Gas Co., 68 Kan. 821, 822, 75 Pac. 1047; Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356; Patterson v. Oil Co., 107 Kan. 221, 191 Pac. 258; Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Altman v. Miller, 128 Kan. 120, 276 Pac. 289; Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Labette Petroleum Co. v. Cities Service Gas Co., 137 Kan. 75, 19 P. 2d 470; Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472; Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30; on rehearing, 147 Kan. 1, 75 P. 2d 212 (oil drainage case); Hogan v. Santa Fe Trail Transportation Co., 148 Kan. 720, 727, 85 P. 2d 28; Brothers v. Adams, 152 Kan. 675, 107 P. 2d 757.) These are only a few of the cases in which the doctrine against speculative damages, as to cause of injury or extent of injury, has been applied.
The same difficulty is encountered with regard to measurement of damages claimed for failure to drill the other Chat well. We are not unmindful of the expert testimony touching the general uniformity of porosity and permeability of the oil-bearing formations in this field. There was also testimony these factors varied considerably in the Chat formation. On demurrer, however, we are required to consider only testimony favorable to the party adducing it, and that is what we shall do. When, however, we turn to the stipulated facts, by which we are bound, we find various wells in the Chat formation similarly situated on the structure, only one location removed from each other, and drilled at the same or at approximately the same time, in which the production varies to a marked degree. Here the nearest Chat well in October, 1933, was practically one-half mile removed from the Myers 80 gas well, and much farther removed from the location of another Chat well which appellants thought should have been drilled. Numerous cases are cited by appellants from other jurisdictions, but we find none in which damages were allowed where the well, or' wells, used as a basis for measurement were more than one location removed. We do not mean to say we would under no circumstances allow damages where the well or wells used as a basis for determining damages were more than one location removed. We do think the stipulated facts in the instant case, by which all parties are bound, compel the conclusion that a verdict based upon the evidence in this case would be too speculative to form a safe basis for measurement of damages. For a few of the decisions in which damages in oil and gas cases were not allowed by reason of the speculative character of the extent of the damage see, also, Indiana Oil, Gas & Development Co. v. McCrory et al., 42 Okla. 136, 140 Pac. 610; Steel v. Development Co., 80 W. Va. 206, 92 S. E. 410; Henderson. Company v. Murphy, 189 Ark. 87, 70 S. W. 2d 1036; State Line Oil & Gas Co. v. Thomas, 35 S. W. 2d 746, (Tex. Civ. App.); Jennings v. Carbon Co., 73 W. Va. 215, 223, 224, 80 S. E. 368; Central Ky. Natural Gas Co. v. Williams, (C. of A. Ky.) 249 Ky. 242, 60 S. W. 2d 580.
We think the demurrer of appellee, Shell, to appellants’ evidence was properly sustained. It is therefore unnecessary to determine the effect of the contractural relationship between the Shell and the McPherson companies.
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The opinion of the court was delivered by
Smith, J.:
Plaintiff brought this replevin action against the defendants seeking to recover certain property in the hands of defendant J. R. Allen, sheriff of Gray county. The .sheriff held the property under a writ of execution issued on a judgment against defendant R. 0. Allen in favor of The Champlin Refining Company, plaintiff in another action and third defendant here. The sheriff and the refining company filed general demurrers to plaintiff's petition. The demurrers were overruled and those defendants appeal.
Plaintiff’s petition alleged that defendant R. 0. Allen, doing business as the Allen Implement Company, was a dealer for the sale of plaintiff’s machinery. Plaintiff claimed the property in controversy by virtue of certain contracts with R. O. Allen which it had filed as conditional sales contracts. The sufficiency of the petition as attacked by the demurrers depends entirely upon whether the contracts alleged by plaintiff were sufficient to retain title for plaintiff by way of security as against The Champlin Refining Company, the execution creditor of the dealer R. 0. Allen.
Nine contracts were set out in the petition. These contracts were really contracts between plaintiff and its dealer specifying all the particulars as to the manner in which the dealer and plaintiff should carry on their relationship. The contracts had been entered into in sets of three. One set of contracts was executed on January 13,1937, another set was executed on December 11, 1937, and the final set was executed on January 11, 1939. Each set included one contract to cover the business of selling cream separators, cultivators, drills, harrows, etc., another contract to cover the business of selling tractors and tractor-drawn machinery, and a third contract to cover the business of selling International trucks. Each set of contracts was to be in force for the ensuing year after the date of execution. All of the contracts were timely filed for record as provided by our conditional sales statute. (G. S. 1935, 58-314.)
The contracts for cream separators, etc., and those for tractors were similar except as to the machinery involved, while the truck contracts differed somewhat in terms from the other two. Each set of contracts was identical with the other sets except as to date.
The provisions pertinent to this controversy in what may be denominated the cream separator contracts, and also those which may be called the tractor contracts, read as follows:
“The undersigned, the purchaser, hereby orders of said company the goods marked as ordered in the list made a part of this contract, and requests that the same be shipped to Allen Impl. Co. at Copeland, Kansas, on or about the date or dates indicated herein.
“In consideration of the acceptance of this order, the purchaser agrees to all the terms, conditions and provisions of this contract, as follows:
“1. To accept delivery of said goods at points of shipment, receive the same on arrival, pay all freight charges thereon from the f. o. b. point or points named in the price schedules, and settle for the same at the dates, terms, and prices designated in the price schedules attached hereto. The purchaser shall pay for said goods in cash on or before the dates specified, and if not then paid, shall pay interest on such purchase price at the rate of 8 percent per annum and shall at any time upon the company’s request execute and deliver a bankable note or notes for the purchase price of said goods or any of them, said notes to mature at the dates herein agreed upon for payment and to draw interest thereafter at the above named rate.
“2. The title to all goods shipped under this contract, with right of repossession for default, is reserved by the company until the purchaser has made full payment in cash for all of said goods and for all notes given therefor. Prior to full settlement in cash the purchaser shall have no right to sell or dispose of any goods delivered hereunder except for value received in the ordinary course of trade and upon the express condition that prior to the delivery of any of said goods to a customer, the purchaser shall secure from said customer a full settlement in cash or good and bankable notes and that the proceeds of all resales shall be considered the property of the company in lieu of the goods so sold and held in trust for it and subject to its order, as provided in paragraph four hereof, until all sums due under this contract have been fully paid. At any time on request the purchaser will give - the company’s representatives full information regarding goods on hand, goods sold and the proceeds thereof, to enable it to ascertain and enforce its reserved rights under this clause. Nothing herein shall release the purchaser from payment for all goods ordered and delivered hereunder and after delivery to him said goods shall be held at his risk and expense in respect to loss or damage from any cause and taxes and charges of every kind.
“8. In addition to the goods now ordered, all goods heretofore or hereafter shipped to the purchaser, between the dates of November 1, 1936, and October 31, 1937, both inclusive, shall be. considered as sold under this contract, and subject to all of its provisions, except as different prices or terms have been or may be agreed upon at the time, and it is understood that the company reserves the right to reject any orders for additional goods, or to change the prices and terms applicable thereto.”
Likewise'the truck contracts provided in part:
“1. Order. The company hereby agrees to sell and the dealer to buy, subject to the provisions of this contract, the International Motor Trucks and attachments listed below, and other attachments manufactured or sold by the company for International Motor Trucks, to be delivered at points of shipment to be selected by the company f. o. b. factory and paid for at the prices specified herein (less the discounts indicated) on sight draft attached to bill of lading.
“The prices quoted herein are not guaranteed to be effective after February 1, 1937, and goods shipped after that date shall be paid for at the company’s prices to dealers then in effect in dealer’s territory.
“16. Financing Plan. After the initial shipment of trucks under this or a previous contract has been paid for in cash, the company agrees to accept from the dealer, in payment for trucks subsequently shipped, the notes of good and responsible customers taken in settlement by the dealer upon resale of International Motor Trucks. In such cases a time charge will be made in accordance with the company’s regular finance plan in force at the time and no notes will be accepted unless the amount and terms of said notes conform to said finance plan and all other provisions of said plan have been complied with.
“20. Title Reservation. In case any property sold thereunder shall be delivered to the dealer before fully paid for the title to such property and to the proceeds thereof in case of resale, whether in cash, notes or securities, shall remain in the company until the full purchase price and any notes given therefor have been paid in cash, but nothing herein shall release the dealer from payment, and after delivery to the dealer, said property shall be held and used at his risk and expense in respect to loss or damage and taxes and charges of every kind.”
Attached to each of the nine contracts was a list of machinery which the dealer ordered at the time the various contracts were executed. It does not appear that any of the property and machinery which was taken by the defendant sheriff under the writ of execution and now sought to be recovered by plaintiff in this re-plevin action was included in the property ordered and specifically described in these lists. Also attached to the contracts were certain books containing general lists of the goods which could be purchased according to the terms of each contract.
The demurring defendants argue that nowhere in these contracts can be found a description of the machinery and property now held by the sheriff, and which plaintiff contends was covered by the contracts. Plaintiff answers that this property was property which the dealer, R. 0. Allen, purchased from plaintiff under the terms of the contracts after those contracts had been executed and that in accord with the provisions of the contracts if the purchase price was not paid at the time the property was purchased then the title to such property remained in plaintiff company.
Under our statutes conditional sales and chattel mortgages are treated alike. (G. S. 1935, 58-314; Christie v. Scott, 77 Kan. 257, 94 Pac. 214; Freuhauf Trailer Co. v. State Corporation Comm., 149 Kan. 465, 87 P. 2d 641.)
Although the question has arisen more often in the case of chattel mortgages, it cannot be doubted that in either a conditional sale or a chattel mortgage the property to be affected must be sufficiently described to enable third parties to identify the property from an inspection of the public records and such reasonable inquiry as may be suggested by the recorded instrument. The above rule of law has often been announced by this court. (See Golden et al. v. Cockril, 1 Kan. 259; Savings Bank v. Sargent, 20 Kan. 576; Ehrke v. Tucker, 99 Kan. 52, 160 Pac. 985; Kohler v. Harlow, 126 Kan. 215, 268 Pac. 122.)
In Ehrke v. Tucker, supra, the late Mr. Chief Justice Johnston, in writing the court's opinion, said:
“The defendants are presumed to have had knowledge of the contents of the chattel mortgage, and if by the description there given, aided by inquiries which it would naturally suggest, the cattle could have been identified, the description would have been sufficient to bind them. (Waggoner v. Oursler, 54 Kan. 141, 37 Pac. 973; Rudolph v. Commission Co., 76 Kan. 789, 92 Pac. 1103.) A partial misdescription does not invalidate the mortgage (King v. Aultman & Co., 24 Kan. 246), but in determining whether a third party, aided by inquiries suggested by the mortgage, could have identified the property, tire whole description is to be taken into consideration. The suggestion which indicates the line of inquiry must come from the mortgage itself, and cannot rest alone in the minds of the mortgagor and mortgagee.”
For further authorities stating the same rule as to the necessity of adequate description of property upon which security is claimed when third parties are involved see 10 Am. Jur. 752, §55; 14 C. J. S. 660.
Not only must the property upon which the security is claimed by the mortgagee or vendor in a mortgage or conditional sale be described, but certainly some indication of the amount of the debt to be secured must be stated in the instrument. (11 C. J. 473; 14 C. J. S. 685; Bank v. Brecheisen, 65 Kan. 807, 810, 70 Pac. 895.)
In Cin. Leaf Tob. Warehouse v. Combs et al., 109 Ky. 21, 58 S. W. 420, the court of appeals of Kentucky said:
“A chattel mortgage reciting that it was executed to secure ‘a certain sum of money’ advanced to the mortgagor under a contract entered into on a day named, and that a note was executed therefor, is so uncertain as to amount that it doe's not, though recorded, operate as constructive notice to purchasers or creditors. . . .” (Syl. ffl.)
The court has come to the conclusion that by liberal construction all that can be said from a reading of the contracts involved in this case is that they notified the public that if R. O. Allen, the dealer, should during the ensuing year decide to purchase any of the various implements, tools and machines which were offered for sale by plaintiff, and if the dealer did not pay cash for the goods as he had a right to do under the contract — nay, even was obligated to do as to certain trucks purchased under the truck contracts— then in that event plaintiff retained title to the goods until whatever should be due on the purchase price was paid. How were third parties to know what articles the dealer purchased for cash at some future date, what articles he made a down payment on and agreed to pay the balance in accord with the contracts, or what articles he bought entirely on credit? We find no indication in the contract from which any suggestion could be drawn by a third person as to the amount which could be assumed to be due on any of these articles which the dealer might order in the future.
There is another matter which inheres in the contracts under discussion and which further affects their sufficiency as against creditors of the vendee. All of the property involved in this suit seems to have been ordered after the execution of the contract which is in each instance sought to be applied to the various articles of machinery now in the hands of the sheriff. In fact, it is only inferentially that it can be found from the petition which contract plaintiff contends applies to any particular piece of machinery. It has always been the law of this state that a chattel mortgage as to property afterward acquired by the mortgagor was good against third parties only within definite limits. (Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535; Holt v. Lucas, 77 Kan. 710, 714, 96 Pac. 30; Johnson v. Interstate Securities Co., 152 Kan. 346, 103 P. 2d 795; G. S. 1939 Supp., 58-322, 58-323.)
In the last section of the statute noted above future advances of funds are allowed, “but not to exceed in the aggregate an amount stated in said mortgage.”
It has already been noted that conditional sales and chattel mortgages under our law are to be construed under the same rules. Moreover, it may be noted in passing that there is a difference between a present contract of sale and a contract to sell or a contract under which something remains to be done before the title passes. (24 R. C. L. 18.) Here the contracts provided only that if the dealer should decide sometime in the future to do so he might buy certain articles under certain terms, in some instances, providing those terms had not been changed.
If it be thought that these contracts sufficiently describe the property upon which plaintiff claims to have a security interest and the debt for which that security is claimed, can it be argued that if the dealer purchased a cultivator on credit and afterward paid for the same that it would be necessary to file a release of record as to that cultivator? How could it be so when the contract nowhere describes that particular cultivator?
Plaintiff stresses the case of International Harv. Co. v. Poduska, 211 Ia. 892, 232 N. W. 67, 71 A. L. R. 973. Counsel is correct in stating that the contracts there involved were similar to the contracts in the case at bar. But the supreme court of Iowa very carefully pointed out in that case that one defendant in that case, the dealer’s assignee for the benefit of creditors, had under Iowa law no greater rights than the dealer himself (p. 896) and that the plaintiff in that case had obtained possession of the goods before the filing of the dealer’s petition in bankruptcy so that the trustee in bankruptcy, who was the other defendant, did not have any rights against the property such as would be possessed by a creditor armed with a writ of execution.
The other authorities cited by plaintiff have been examined and found not to be at variance with the views expressed above.
An unrecorded chattel mortgage under Kansas law is ineffective against a creditor with a writ of attachment or execution even though the creditor have actual knowledge of the unrecorded instrument. (Geiser v. Murray, 84 Kan. 450, 114 Pac. 1046.)
This court has reached the conclusion that it was error to overrule the demurrers of the defendants. The case is reversed with instructions to sustain the demurrers filed against plaintiff’s petition. | [
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The opinion of the court was delivered by
Allen, J.:
This is an appeal from a conviction of kidnaping in the second degree. The defendant presents four assignments of error, as follows:
“1. The court erred in the court’s motion to dismiss for the reason that the state failed to show the crime charged in the information had been committed.
“2. The court erred in refusing material and necessary instructions requested by the defendant.
“3. The court erred in instructions given to the jury.
“4. The court erred in approving the verdict and in overruling the motion for a new trial.”
Prior to a discussion of the alleged assignments of error, a brief statement of the facts will be necessary.
Bennie Saum, the complaining witness, testified that he lived in Salina; that he went to the Dreamland roadhouse on the evening of Sunday, November 3, 1940, after cigarettes, and remained there until about 1 o’clock. About 12 o’clock he met the defendant Bryan and talked with him; that defendant said he was a traveling salesman out of Kansas City and wanted to know where he could get some Scotch. Saum told him he didn’t know where unless it would be at a hotel. The testimony discloses that Saum and Bryan drank one or two spiked cokes and that Saum said he would have to be home around 1 o’clock and defendant said he would “take me by when he went to town.”
Just as they were leaving, a big fellow-whose name Saum did not know, got into the car with them and sat at Saum’s right in the front seat.
Saum testified that his house was about half a mile north of Dreamland on the highway; that Dreamland is west from the eighty-one by-pass; that when they drove away from Dreamland the car headed east, and when they got to the by-pass, Bryan turned south, and in answer to Saum’s statement that he lived north, told him he would turn around at the corner and take him back. Bryan then turned west on Crawford to where a car was parked, and the large fellow drew a pistol on Saum and asked him where the whisky was that he had stolen. Saum replied he didn’t know anything about it. About this time a Bill Lammon got out of the parked car, which immediately drove away, and got into defendant’s car, stating that he had lost about a thousand dollars worth, of whisky which was stolen from some farmhouse; that Saum had something to do with it — that he had stolen it — and wanted to know where it was. Saum told him that he knew nothing about it and didn’t even know he had lost any. From there they drove to the Serrault farmhouse and stopped, and the big fellow told Saum if he should run he would' shoot him. Bill Lammon inquired of Mrs. Serrault if Saum “was one of them that had been out there,” and she replied, “No, it wasn’t him.” Mrs. Serrault testified that Lammon then slapped at Saum and he staggered.
Saum testified that they all left the house and drove towards Salina, but stopped after they had driven about a mile; that the big man choked him right hard and Bryan said “I will make him talk,” and the big man held him while the defendant burned him about twenty-three times on the chest and neck with the electric cigar lighter, heating it six or seven times; that Bill Lammon then said they would take him to his house and tie him up, that they weren’t through with him yet. Saum testified:
“We went through the front door and into the basement. They told me to lie down on the bed. They was going to tie me up. Bud tied me. He had my hands down behind me and they were crossed and they had my feet tied up to my hands. They left, and they left me there alone. It seemed like around three hours. While I was there some woman came down there. I have seen her here since. I saw her in the city court in the hearing over there. She was talking to Bill Lammon. The next person after the woman I saw was Bud and Lammon and this big fellow. They untied me and we went upstairs, up in the living room. And the woman was there and they begun asking me if I knew anything about this whisky and I told them no and they wanted to know where some of the plants that any of my brothers might have had and I told them of some plants that they had. I told them there was one over by Minneapolis. Bryan took two drinks and I took one.”
Saum further testified that he must have been tied in the basement between 2 and 2:30 o’clock, and that they must have left for Minneapolis about 6 o’clock; that when they returned to Salina they went back to Lamm on’s house; that they later left the house to go over to Saum’s brother’s, but that they first went to Saum’s house, where he showed his wife what had happened and told her not to call the police until he got away; that Lammon told Mrs. Saum some of his whisky, about $1,000 worth, had been stolen and that he thought it was her husband who had stolen it; that Bryan then told Mrs. Saum that she was lucky to have a husband “because we intended to kill him”; °that they later went to the home of Saum’s brother but he was not at home. Saum testified that after going to Art’s cafe and to Corum Brothers’ garage he was taken home — about 12 o’clock noon; that he had burns on his hands, and the print of the rope was on his hands and arms; and “I did what they told me to do because they had the gun on me and I thought it was best.”
On recross examination Saum testified:
“Q. Now you say you didn’t tell your wife to call the police. What was the reason for that now? A. Because I was afraid they would kill me.
“Q. Oh, you were afread they would kill you? A. Yes.
“Q. What did they do to make you believe that, when they left your place and went over to Arnolds? A. They told me that, when they started with me.
“Q. When did they tell you that? A. Well, they told me that at Ser-raults.”
Defendant’s story of the events of November 3 differs in many particulars from that told by Saum. However, the jury chose to believe in the main the story as told by the complaining witness which, it may be noted, is not uncorroborated.
Appellant complains that the court erred in the giving of instructions 10, 11, 12, 13, 18 and 19.
This court will not ordinarily review alleged errors in the giving of instructions where the instructions given are not contained in the record. (Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1; Brugh v. Albers, 141 Kan. 223, 40 P. 2d 380; Wilson v. Doolittle, 114 Kan. 582, 220 Pac. 508.) We will, however, briefly discuss the instructions complained of.
Instruction No. 10 defines the words, “wilfully,” “unlawfully,” “feloniously” and “inflict” as used in instructions 18 and 19. While perhaps the use of' the word “feloniously” was not necessary under the wording of the statute, we fail to see how defendant was prejudiced by its use.
Instruction No. 11 reads:
“Upon the question of intent you are instructed that a man is presumed to intend to do that which he in fact does do, and he is presumed to intend the natural and probable consequences of his own voluntary act or acts.”
Appellant suggests that “instruction No. 11 amounts to instructing the jury that if the secret assailant successfully enforces his unlawful but secret domination then that fact supplies the intent to accomplish the victim’s secret confinement.”
We think the instruction fairly states the law. (State v. Dull, 67 Kan. 793, 74 Pac. 235; 20 Am. Jur. 227, §§ 232, 233; 10 R. C. L. 874.)
It is suggested that instructions 12 and 13 are in effect an instruction that any secret compulsion exercised upon a person, though he may walk abroad in public and apparent freedom amounts to a “secret confinement.” Instruction 12 defines “kidnap” as follows:
“The word ‘kidnap’ as used in the information and these instructions means not only actual, corporal and forcible taking and carrying away and detention of a person against his will, but also means coercion by threats, and menaces of fear induced by threats and menaces amounting to coercion of the will of such person resulting in the taking and carrying away and secret detention and confinement of such person against his will.” (Italics ours.)
As we read the instruction, it properly informs the jury that the taking and carrying away and secret confinement may be accomplished without physical violence to the body, as shown by the itali-cised portion above. Instruction No. 13 defines the word “confine.” No attempt is here made to define the phrase “secret confinement.” The court need not define every phrase used by it. (State v. Inverarity, 150 Kan. 160, 92 P. 2d 45.)
Instruction No. 19, we think, fairly states the law under the evidence. When all the instructions abstracted are considered together we have no difficulty in holding that the instructions as a whole were not erroneous.
Appellant next complains that the court refused to give certain requested instructions. Here again we are confronted with the diffi culty of considering the alleged error when all of the instructions given are not before us. (Rierson v. Southern Kansas Stage Lines Co., supra.)
In any event the pertinent portion of requested instruction No. 7 is, we think, covered by instructions No. 13 and 19, given by the court. (Marsol Credit Co. v. Blacker, 150 Kan. 477, 95 P. 2d 285.)
Under this heading appellant states: “Also, the jury should have been instructed on the lesser crimes the evidence tended to prove. The crime of assault and the crime of assault and battery should have been instructed on.”
This is not a prosecution under G. S. 1935, 21-436. The prosecution is one for kidnaping as defined in chapter 156 of the Laws of 1935 (G. S. 1935, 21-449 to 21-452). As enacted, the title of the act reads: “An act relating to crimes and punishments defining the offenses of kidnaping and relating to the trial of the same and punishment therefor . . .” Instructions under sections 21-449 and 21-450 were pertinent under the evidence. These sections denounce the crime of kidnaping. Simple assault is not a degree of the crime of kidnaping. (State v. Kelley, 125 Kan. 805, 265 Pac. 1109.)
The fourth specification of error is on alleged misconduct of the jury. The evidence on the motion for a new trial disclosed that one of the jurors played a joke on the foreman of the jury. There was testimony to the effect that the episode in question occurred after all the jury had voted to convict the defendant. The defendant was charged with kidnaping in the first degree under section 21-449 and in the second degree under section 21-450. After the joke episode not only was the verdict of guilty allowed to stand, but the defendant was found guilty of kidnaping in the second degree. It is therefore obvious that the perpetration of the joke could not have been prejudicial to the defendant.
The evidence on the motion for a new trial does not disclose that any juror acquired independent information of an evidentiary character during the episode.
The question of the misconduct of a juror in the first instance is for the trial court. In overruling the motion for a new trial the court determined the irregularity charged was not prejudicial to the defendant. The court had the opportunity to observe the demeanor of the witnesses, was aware of all the circumstances and the conclusion reached should not lightly be set aside. As stated in State v. Stuart, 129 Kan. 588, 283 Pac. 630, “Of course not every act of misconduct is ground for granting a new trial. If it be trivial, or not such as to influence the jury, the misconduct will not vitiate a verdict.” (p. 590.)
As the evidence' does not disclose that the practical joke perpetrated on the foreman affected the jury in arriving at their verdict or was prejudicial to the defendant, the motion for a new trial was properly overruled.
Finding no error in the record the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action upon an insurance policy by which plaintiff seeks to recover double indemnity growing out of the accidental death of her son. From a judgment in favor of plaintiff the defendant insurance company appeals.
The petition alleged that on the 6th day of November, 1937, defendant company executed and delivered to Cecil H. Nixon a life insurance policy payable to his mother, the plaintiff herein; that the policy carried a double indemnity clause in case of accidental death of the insured, and that on the 6th day of February, 1938, the insured died from bodily injuries effected through accidental means. The petition further alleged:
“That the first or original annual premium on said policy was paid in this wise: When soliciting, on October 29, 1937, the said Cecil H. Nixon to take said insurance, O. W. Faith, who was then and there the agent of defendant, authorized by it to solicit insurance, receive applications therefor and to collect the first or original premium on the same, orally agreed with the said Cecil H. Nixon that if he would then sign the application, a copy of which is attached to ‘exhibit A,’ and pay the agent $5 down and another $5 on the next day, the said Faith would at once pay to the defendant company its share of said premium and the policy would be in force when the company approved the application and executed the policy, and thereupon he, the said Cecil H. Nixon, would owe the said O. W. Faith as an individual the sum of $4.51, which could be paid during the latter part of the following month, or such time as the said Nixon should have the funds.
“And plaintiff says that pursuant to said oral agreement, the said Cecil H. Nixon on said October 29, 1937, executed said application and paid to O. W. Faith- the sum of $5 with the delivery of said application and another sum of $5 on the following day; and on November 27, 1937, the said Cecil H. Nixon paid to the said Faith the further sum of $4.51 in full satisfaction of the obligation created by said oral agreement; that following the payment as aforesaid of said two sums of $5 each, the said O. W. Faith accounted to the defendant company for its share of said premium, amounting to $7.25, and defendant approved said application and issued said policy; that the remaining portion of said premium, $7.25, by the arrangement and practice obtaining between the said Faith and defendant, was the share of commission of the said Faith for his services in and about the writing of the policy.”
The delivery of the policy was alleged as follows:
“Plaintiff says that said defendant delivered said policy to O. W. Faith for delivery to the said Cecil H. Nixon; that the said O. W. Faith informed the said Cecil H. Nixon that said policy was so delivered and in force and further informed him, the said Nixon, that he, said agent, would safely keep said policy for him, the said Cecil H. Nixon, until the said Cecil H. Nixon should find it convenient to come for it; that the said Faith did keep said policy for the said Nixon, but after the death of the said Cecil H. Nixon as aforesaid, the said Faith wrongfully delivered said policy to said defendant and defendant wrongfully retains possession of the same and refuses to let plaintiff have possession of the same.”
The answer of defendant denied the payment of the first premium and denied the delivery of the policy.
The trial court submitted two special questions to the jury. The questions and answers are as follows:
“1. Give the dates and amounts of any payments you find to have been made by deceased Cecil Nixon to 0. W. Faith. Answer:
Date Amount
First payment. Oct. 29, 1937 15.00
Second payment. Oct. 30, 1937 $5.00
“2. Give the substance of the agreement you find was had between Nixon and Faith at the time of the taking of the application relating to payment. Answer fully. A. We have unanimously agreed that on the night of October 29, 1937, the agreement between Nixon and Faith was that Nixon pay $5 on account that night and the other $5 the following night, being October 30, 1937. Further, that the balance of the premium, the amount of $4.51, to be paid in person by Nixon to Faith at Nixon’s convenience at some later date.”
The application contained the following provisions:
“I agree that any policy issued to me by the company shall not take effect until the policy shall have been delivered to and received by me during my lifetime and while I am in good health and the first premium shall have been paid by me to said company or its duly authorized agent during my life and while I am in good health.
“I agree that no statements, promises, representations, notice or information made or given by or to me or to the person soliciting or taking this application, or by or to any other person shall be binding on said Manhattan Mutual Life Insurance Company or in any manner affect its rights unless the same be reduced to writing, made a part of this application and approved in writing by the president, vice-president or secretary of said company.”
The action is founded upon a completed contract of insurance. The applicant agreed in the application that any “policy issued to me by the company shall not take effect until the policy shall have been delivered to and received by me during my life” and “the first premium shall have been paid by me to said company or its duly authorized agent during my life,” etc.
Obviously the payment of the first premium and the delivery of the policy were conditions precedent to be met and performed before the contract of insurance was complete.
The amount of the first year’s premium was $14.51. The jury found that $10 had been paid.
The report of the agent on the application contained the following questions and answers:
“12. a. How much cash has been paid you on this application? $. None. b. How much cash is remitted herewith? $.None. c. Was a receipt given applicant? . . .
“13. What settlement arrangements did you make with the applicant? C.O.D.”
The application was dated October 29, 1937, and the agent’s report states that no cash was paid on the application. In the face of this record the jury found that $5 was paid on that date. There was, however, some testimony to support the finding of the jury that $10 had been paid on the first premium.
It was neither alleged nor proved that the agent Faith was a general agent of the defendant company. In West v. Metropolitan Life Ins. Co., 144 Kan. 444, 61 P. 2d 918, it was held as stated in the syllabus:
“1. Under R. S. 1933 Supp., 40-239, an insurance agent, as distinguished from a general agent, is an individual authorized in writing, by any insurance company lawfully qualified to transact the business of insurance, to negotiate or effect contracts of insurance.
"2. In the absence of proof of authority so to do, an insurance agent as above defined cannot agree to oral modifications of a written application for insurance, nor effect an oral contract of insurance, in such manner as to bind his principal.
“3. Where the written application for insurance provides that the company shall incur no liability under it until it has been received, approved and a policy issued and delivered, and the full first premium paid, the agent may not waive payment of premium and bind the company thereby.”
Nixon knew the application requirements respecting the payment of the first premium and he likewise knew that Faith could not waive the plain provisions of the application, because, over his signature, he had agreed that “no statements, promises, representations, notice or information made or given by or to me or to the person soliciting or taking this application, or by or to any other person shall be binding on said Manhattan Mutual Life Insurance Company or in any manner affect its rights, unless the same be reduced to writing, made a part of this application and approved in writing by the president, vice-president or secretary of said company.”
Plaintiff did not plead nor was there any proof that the soliciting agent Faith had any authority to waive the payment of the first premium and to extend credit on his own responsibility to applicants for insurance. There was no evidence in the record that the defendant company was to look to the agent and not to the insured for the payment of the premium or any part of the premium.
In Smith v. Hartford Fire Ins. Co., 120 Kan. 53, 242 Pac. 455, it was contended “that Trimble was an authorized agent of the company and that the extension of a credit to him on his personal account was the equivalent of an actual payment of the premium to the company.” It was held that the agent was not acting within the scope of his authority when he agreed with the insured that a credit on his personal and private debt to the insured would be treated as payment of the premium.
Nor do we find any provision in the application which would authorize the agent to remit to the company a part of the premium and to withhold the balance in the payment of his commission. In the orderly conduct of its business the company had the right to insist upon payment of the entire premium to it.
Plaintiff did not plead nor do we find any proof that there was a custom or practice under which the agent was authorized to waive the payment of the first premium, or to extend credit on his own account to applicants for insurance.
On this point our attention is called to G. S. 1935, 40-247, and the case of Riddle v. Rankin, 146 Kan. 316, 69 P. 2d 722. In the Rankin case the premium was paid to the agent — there was no dispute on that question. But assuredly the agent does not hold in trust a premium he has not received. Before the statute can be invoked it must be shown that the agent has received money or the substitute for money as a premium. Under the application the payment of the first premium was a condition precedent to be performed before the company was bound. This was a lawful condition to impose and we discern no purpose in the statute to abrogate the privilege of parties to enter into lawful agreements. The statute has no bearing on the question before us. The claim that the first annual premium was paid to the company cannot be sustained.
Nor do we find evidence in the record supporting the contention of plaintiff as to the delivery of the policy. It is not claimed there was a manual delivery of the policy. As there was no evidence to support the allegation in plaintiff's petition of the agreement between the agent Faith and the insured Nixon that Faith would re ceive and hold the policy for Nixon, the only evidence of a delivery of the policy is the letters written by the defendant company to the applicant. In October, 1937, the company wrote the applicant thanking him for his application and stated: “We hope to deliver your policy soon — just as quickly as the application can be acted upon the routine work completed.”
On November 6, 1937, the company wrote the insured stating the policy “is being mailed today to Mr. Grigg for delivery to you.” Grigg was the local agent for the company and Faith the soliciting agent officed with him. In Mesloh v. Insurance Co., 111 Kan. 409, 207 Pac. 754, where a similar letter was under consideration it was stated:
“The plaintiff asserts that delivery of the policy to Fleer with unconditional instruction to deliver it to Mesloh, made a contract of insurance. The policy was not delivered to Fleer, in the sense that anything was effectuated between the company and the applicant. Sending the policy to Fleer merely amounted to passing it from one hand of the company to another, from a general agent at the home office, to a special agent in the field. Fleer was not agent of the applicant to receive the policy, and the policy remained in the custody and control of the company, undelivered to anybody, so far as the applicant was concerned.” (p. 413.)
The application provided that any policy issued to the insured was not to take effect until the policy was delivered and the first premium was paid. Sending the policy to the local agent was consistent with an intention not to deliver the policy except upon payment of the premium. By such act it cannot be said the company parted with control and dominion over the policy with the purpose of thereby making a valid and binding contract of insurance. The insured had neither the actual possession nor the right of possession to the policy. (32 C. J. 1126.)
Where the application for insurance makes the payment of first premium and delivery of the policy conditions precedent to a binding contract of insurance, such provisions will be enforced. (Green v. Insurance Co., 106 Kan. 90, 186 Pac. 970; Cure v. Insurance Co., 109 Kan. 259, 198 Pac. 940; Musgrave v. Equitable Life Assurance Society, 124 Kan. 804, 262 Pac. 571; West v. Metropolitan Life Ins. Co., supra.)
It is not claimed there was any element of estoppel or waiver in the case. We think the evidence fails to show payment of the initial premium and fails to show delivery of the policy.
The judgment is therefore reversed and the cause remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Wedell, J.:
This was originally an action in replevin, and in the alternative for the value of the property and for damages for wrongful detention. The issues were subsequently broadened, as will presently appear. Judgment was for defendant, and plaintiff appeals.
The subject of replevin was a road grader. The defendant township obtained possession thereof from plaintiff under a written contract denominated a “lease contract,” which was made a part of plaintiff’s petition. The contract was executed November 2, 1937. The term was for twenty-four months, commencing April 1-, -1938. The contract granted the township two options.' One was to-'extend the initial term for a second term of twenty-four months. The other option was that the township might purchase the grader at the end of the initial or extended period for the sale price effective on the date of the contract plus six percent interest from date of shipment less credits of all amounts paid under the contract. The contract required a cash down payment of $700. The sale price on November 2, 1937, was $3,400. Under the contract the township obligated itself to pay quarterly thereafter the sum of $337.50, with interest at six percent each consecutive three months. The cash payment of $700 plus the eight installment payments, denominated rental payments, aggregated $3,400. The township paid $1,150 as an initial payment instead of the $700 cash payment required by the contract. It paid the total sum of $1,558.77, the last payment being $50 on January 13, 1939. The township defaulted in its payments as per the contract, and a three months’ extension agreement was submitted to the township on January 1,1939. The township contends the second contract was not executed, but as we view the matter the second contract is immaterial. No payments were made thereunder. The township defaulted, and plaintiff made demand for possession under the express provision of the contract which gave plaintiff the right to repossess the machine upon default. The contract further provided that upon default the township would have no right, title or interest in the property, and no right to demand a return of any lease payments.' The petition alleged the reasonable value of the property was $2,200 at the time the action was commenced (July 7, 1939), and that by reason of unlawful detention plaintiff was damaged in the sum of $1,300. In the prajmr plaintiff asked damages in the sum of $1,000.
Defendant’s amended answer in substance alleged: It was a township in Smith county, and that county did not have a county road-unit system. The obligation created by the contracts had not been budgeted by the township for any of the years involved. No budget made provision for the raising of any fund or money for the purpose of leasing or renting road machinery. There were no funds on hand on N<?v.ember 2,1937, the date on which the obligation was created, out of which the initial or installment payments could be made. The contracts violated both the budget and the cash-basis laws, and were null-and void. These facts were well known to plaintiff. When the contract was made plaintiff orally represented to the township that the purchase price was $3,400, and that the township would not be required-to-pay the full purchase price at once, but that it could pay it in installments. It was the intention of plaintiff that title and possession of the machinery should vest in the township. It was plaintiff’s intention to effect a sale and avoid the provisions of the budget and cash-basis laws by means of the agreement. The citizens and taxpayers of the township had no knowledge of the alleged agreement. If the former township board signed the agreements, it had no lawful right or authority to do so, and plaintiff is not entitled to the aid of the court in any manner, and its action should be dismissed.
The cross petition of the defendant incorporated the averments of the answer, and in substance further alleged: The total payments made to the plaintiff by the former township board in the sum of $1,558.77 were unlawfully made, and were void as to the township itself. The contracts, and the payments made pursuant thereto, tended to defraud the taxpayers of the township. Plaintiff was indebted' to defendant in the sum of $1,150 paid December 27, 1937; in the sum of $225 paid June 27, 1938; in the sum of $119.35 paid October 17, 1938; in the sum of $64.42 paid December 28, 1938, together with interest at six percent per annum on the respective amounts from the dates they were paid. Plaintiff wrongfully and willfully refused to repay such amounts.
Defendant’s prayer was that plaintiff be denied any relief, and that judgment be rendered against plaintiff in the amount above stated together with interest at six percent per annum.
Plaintiff’s amended reply to defendant’s answer and its answer to plaintiff’s cross petition were in substance as follows: It denied all matters pleaded by plaintiff which it did not expressly admit. The former township officers in good faith, and without any intention of violating any law, procured independent legal advice touching the legality of the transaction in contemplation, and which was later consummated, and were advised the contract was entirely legal. The contract was not intended to be an evasion of the budget or cash-basis laws or of any other law. If the contract was in any respect illegal the township waived such illegality. The township officers were by law charged with the duty of properly maintaining the highways of the township, and for such purpose it was proper for it to acquire the necessary machinery by purchase, lease or otherwise. The purpose for which possession of the machinery was obtained was legal, and the action of the township in acquiring such possession was valid notwithstanding any alleged illegality in the contract it self. If the contract was illegal and void defendant never had any legal or rightful possession of the machinery, and plaintiff was at all times and is now entitled to the possession thereof. The amounts paid by defendant officers or their predecessors to plaintiff for the use of the machinery do not exceed the fair usable value thereof, during the period it has been in the possession of defendant. The use of the machinery made by defendant from the time it was delivered to it has resulted in depreciation in its value in an amount equal to or in excess of the money paid by defendant. Defendant is barred and estopped from seeking a return of the money paid for the use of the machinery. The amended answer and cross petition of defendant fails to state facts sufficient to constitute any defense to plaintiff’s petition, or a cause of action in favor of the defendant. In the prayer plaintiff asked for judgment as prayed for in its petition.
Defendant filed a reply which contained a general denial of the averments contained in plaintiff’s answer, and in substance further alleged the contract violated the budget and cash-basis laws, and that there was no authority or lawful right by which any other obligation could be created against the township.
It was the judgment of the trial court the contracts were null and void and unenforceable, and that all rights growing out of such contracts were likewise null and void and unenforceable. The court refused to order defendant to return the machinery to plaintiff. Defendant was given judgment for moneys unlawfully paid by the township officers to plaintiff in the sum of $1,558.77, together with interest at six percent from the dates of the various payments, or in the total sum of $1,813.51, with interest at six percent per annum from date of judgment. Plaintiff was denied any right of offset on that judgment in the form of damages, or for the reasonable value of the use of the machinery while it was in defendant’s possession.
In view of the record the rights of the parties do not depend upon the nature of the contract, that is, whether the contract constitutes a lease or a sale of the machinery. Whatever the nature of the instrument might be it created, if valid, an indebtedness or obligation payable in cash and installments. Some of these obligations were met by payments. The obligations could be legally incurred and legally paid only in the mode or manner required by the budget and cash-basis laws. They were not so incurred or paid. The budget made provisions for various items under the road fund, but made no provision whatever for the instant item of machinery, whether to be purchased or leased. The only amount budgeted for machinery in the years 1937 and 1938 was $50 and $100, respectively. Obviously, funds were not legally made available for this purpose, and in fact were not available at all. The payments' could not be made from funds budgeted for other purposes. The result is that neither the contract nor payments made thereunder were valid. They were void. (Patterson v. Montgomery County Comm’rs, 145 Kan. 559, 66 P. 2d 400; Superior Grade School District No. 110 v. Rhodes, 147 Kan. 29, 75 P. 2d 251; Shouse v. Cherokee County Comm’rs, 151 Kan. 458, 99 P. 2d 779.) The payments being void as against the taxpaying district, the trial court properly held the payments illegally made by the township officers could be recovered by the township. (Superior Grade School District No. 110 v. Rhodes, supra.) The principle upon which municipalities are permitted to recover illegal payments is that such payments cannot be regarded as acts of the municipality, but in reality constitute unauthorized and prohibited acts of its officials. (Honey v. Jewell County, 65 Kan. 428, 70 Pac. 333; Ritchie v. City of Topeka, 91 Kan. 615, 138 Pac. 618; 7 R. C. L. 964, § 38; 44 C. J. 1145, 1146, § 4089.)
Can the township recover the money it paid to plaintiff and also retain the machine? The township, as heretofore stated, is permitted to recover the moneys its officers paid upon the principle that a township is not bound by the illegal acts of its officers. Will the township, however, be permitted to recover what its officers illegally pay under a void contract and also retain the property its officers illegally obtain under the same void contract?
The record discloses the trial court reluctantly refused to order delivery of the machine to the plaintiff. Its refusal to make such order was based upon the theory courts cannot lend their aid to the enforcement of an illegal contract. Was it necessary to enforce a contract in order to require defendant to return the machine? The contract was void. There was, therefore, no contract to enforce. Defendant had acquired neither title to the machine nor the right to its possession. In legal contemplation those rights remained in the plaintiff just the same as though no contract had ever been made. In order to give plaintiff possession of the machine it was unnecessary to enforce a contract. It was only necessary to say that since, in legal contemplation, no contract existed,'plaintiff was required to return the money it had received, and defendant was required to return the property it had received. In other words, by such a decree both parties would have been placed in statu quo insofar as their contractual relation was concerned.
In a discussion of the subject whether courts will lend their assistance to parties who have made an illegal contract, it is important to bear in mind certain fundamental factors. It is not contended the instant contract itself was immoral, inequitable or unjust. The object of the contract was perfectly legal. It was executed for a legitimate purpose, namely, in order to enable the township officers to maintain township roads. That was their statutory duty. The township officers did not lack power to make such a contract. They only failed to exercise that power in the mode or manner required by law. It was only by reason of such failure that the trial court held the contract illegal.
Bad faith on the part of the plaintiff was made an issue by the defendant. Bad faith or fraud cannot rest on mere suspicion or surmise. It must be clearly established. Touching this subject we have examined the comments of the trial court with particular care. The trial court did not find or intimate either of the parties were prompted by sinister motives. On appeal we are therefore obliged to conclude actual fraud or bad faith were not established. On the other hand, the comments of the trial court affirmatively disclose the contract was held illegal by reason of the fact the township did not comply with the requirements of the budget and cash-basis laws. We therefore approach the case upon the theory the trial court held the contract illegal solely for that reason.
Courts have frequently granted the same or similar relief to that sought by plaintiff where no legal remedy existed on the contract, and where the contract was not void by reason of fraud or lack of power to contract, but where the contract was void merely by reason of the failure of municipal officers to legally exercise the power. (Salt Creek Township v. Bridge Co., 51 Kan. 520, 33 Pac. 303; Lee v. Board of Com’rs, 114 Fed. 744, 746; City of Bardwell v. Southern Engine and Boiler Works, 130 Ky. 222, 113 S. W. 97, 20 L. R. A., n. s. 110, and annotation; Snouffer & Ford v. City of Tipton, 161 Ia. 223, 235; Shaw v. Board of Education, 38 N. M. 298, 31 P. 2d 993, 93 A. L. R. 432, and annotation, 441.)
In the Salt Creek Township- casej supra, a bridge was involved, and this court said:
“Of course, as the bridge was constructed upon the highway with the permission of the authorities, the company may remove the same. As the town ship refuses to pay for the bridge, it can have no interest or right to keep it. All the parties acted without any statutory authority.” (p. 527.)
In the Lee case bridges were likewise involved, and the federal court held:
“There is no public policy recognized by the courts which allows any person, natural or artificial, to take the property of another, and appropriate it to its own use, and deny to the person who is innocent of fraud the right to reclaim it. As there was no contract binding on either party in this case, and there was no fraud on the part of the bridge company or this complainant, and the property is in existence and in the hands of the defendant, it seems clear that the relief asked for should be granted. The case seems to come entirely within the principles laid down by the supreme court in the case of Chapman v. Douglas Co., 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378. See, also, Wrought Iron Bridge Co. v. Town of Utica (C. C.), 17 Fed. 316.” (p. 747.)
In the Kentucky case, swpra, the vendor was permitted to sell an engine located in the defendant city’s electric light plant under the vendor’s lien clause of the contract. That court said:
“A loss must not be placed upon the district, but, when justice may be done without inflicting any loss upon the district, equity will lay hold of the conscience of the parties, and make them do what is just and right.” (p. 234.)
In the Iowa case, supra,• a contractor was permitted to remove paving where it could be done without substantial injury to the street. In the New Mexico case, supra, school buildings were the subject of controversy. It was held:
"Municipality cannot acquire property under invalid contract, and, because of such invalidity alone, avoid paying contract price or reasonable value of property and at same time retain property.” (Headnote 1.)
In the opinion the court remarked:
“We think it out of harmony with the sense of fair dealing and' justice, for which the good people of these two1 school districts and Lea county are well known, to retain buildings so acquired after realizing that the obligations which produced them are invalid.” (p. 308.)
An exhaustive annotation upon the instant subject is found at the conclusion of the opinion in the New Mexico case, at 93 A. L. R., page 441, and further citation or quotation from the authorities is deemed unnecessary. For other cases of our own in which relief, other than on the contract, was granted with the view of an equitable adjustment, see, also, Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465; Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176.
Is plaintiff entitled to recover damages from the township for wrongful detention of the machine as prayed for in its petition? We think not. Its claim to the right of possession was based entirely upon the terms of the contract. Damages were claimed by reason of a breach of the terms of that contract, i. e., as a result of defendant’s refusal to permit plaintiff to repossess the machine in the event of default in “so-called” rental payments. The contract was illegal, and, obviously, it could not form the basis of an action for damages. In the case of Ritchie v. City of Wichita, 99 Kan. 663, 163 Pac. 176, involving the same principle, relief was given the paving contractor for work actually performed. Touching other claims, including a claim for damages, this court said:
“But we can give no countenance to plaintiffs’ claims under their contracts, nor for loss of profits, nor for expenses in bringing the materials to the place of work, nor for damages. It is only by a somewhat vigorous interposition of equitable principles that any relief whatever can be accorded in a situation like the case at bar.” (p. 670.)
Whether plaintiff might have recovered damages for wrongful detention upon some other theory we need not decide, but it could not do so upon the theory it was damaged by the breach of a contract when no legal contract existed. The court is now assisting it in obtaining possession of the machine, not by virtue of the efficacy of its contract, but solely by reason of the fact it would be unjust and inequitable to permit defendant to recover what its officers illegally paid, and also to permit it to retain the property it had illegally acquired by virtue of the same illegal contract.
Is plaintiff entitled to recover the reasonable rental value of the use of the machine during the period it was in the possession of the township? Plaintiff contends that, notwithstanding the illegality of the contract, it is entitled to such rental value for the reason the township has received the benefits from the use of the machine. The period of such use was approximately twenty months. The reasonable rental value, according to the evidence, was $150 per month, which would make a total rental value of $3,000. In support of its contention plaintiff relies upon various cases contained in an annotation, 42 A. L. R. 632, upon the subject: “Liability of municipal corporation upon implied contract for use of property which it received under an invalid contract.” It also directs our attention to a subsequent annotation, touching the subject of recovery of rental value, found in 93 A. L. R. 441, 450-451. It would appear these cases support plaintiff’s contention. It will serve no useful purpose to repeat the careful and exhaustive analysis already made by the annotators. In the instant case plaintiff had received total payments on the contract in the sum of $1,558.77. Although it contends it is entitled to recover the reasonable rental value of the machine in approximately the sum of $3,000, it in fact asks only a setoff for rental value equivalent to the payments the township has made to it under the contract. Whatever amount, if any, is allowed to plaintiff of necessity would be allowed upon the basis of an implied contract of the township to pay for the reasonable value of the use of the machine. The court has concluded that to permit any recovery upon the theory of reasonable rental value would constitute the enforcement of an implied contract where an express contract is prohibited by law. In other words, it believes such a decision might open the door to circumvention of the intent and purpose of the budget and cash-basis laws by permitting a municipality to use machinery, and to become liable for such use, without entering into an express contract in compliance with the statutory requirements of those laws. The result would be to do indirectly that which it is forbidden to do directly.
The judgment of the district court will therefore be affirmed except as to the machine which plaintiff may repossess upon payment of the money judgment rendered against it. It is so ordered. | [
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The opinion of the court was delivered by
Haevey, J.:
This was an action for damages for personal injuries. Defendants’ demurrer to plaintiff’s petition was sustained, and she has appealed.
In the petition it was alleged that defendants managed, controlled and operated a theater known as the Alaskan Ice Palace, in Wichita, as a public place of amusement for games of ice hockey; that on a date named plaintiff purchased a reserve seat ticket for admission to one of the games; that defendants thereby impliedly warranted they would exercise ordinary care for plaintiff’s protection while viewing the game; that she attended the game and was seated next to the aisle in the second or third row; that defendants negligently permitted the aisle next to her seat to become overcrowded by patrons and spectators who apparently were unable to find seats, and negligently permitted concessionists, who may or may not have been employees of defendants, to circulate among the people standing in •the crowded aisle for the purpose of selling programs; that while the game was in progress and plaintiff was giving her attention to it one Philip Razook, while attempting to sell programs in the crowded aisle, and because of the jostling of the crowd in the aisle, lost his balance and fell, feet forward, down the aisle, and one of his feet struck plaintiff in the back, causing serious physical injuries, resulting in plaintiff’s damage in a sum named.
It will be observed there is no claim that the premises, or any part of it, was defective. It is not contended that Razook was an agent or an employee of defendants. Neither is it alleged that defendants knew' the aisle was overcrowded. With commendable frankness appellant’s theory of the case is stated in her brief as follows:
“The theory of the appellant is that regardless of agency, a theater proprietor impliedly represents to patrons of a theater and impliedly undertakes when he accepts patrons to his theater, that the premises are reasonably safe and that the seat occupied by the patron is a reasonably safe place to view the performance. . . . and that the overcrowding of the aisles of the theater is something that the proprietor of the theater impliedly has knowledge and should protect the patrons against.”
We think this position cannot be sustained. While the proprietor of a place of public amusement is held to a stricter accountability for injury to patrons than owners of private premises generally, the rule is that he is not an insurer of the patrons but owes them only what under the particular circumstances is ordinary or reasonable care. There is no occasion here to write a thesis on the subject. One interested may find extensive notes, in 22 A. L. R. 610; 29 A. L. R. 29; 38 A. L. R. 357; 44 A. L. R. 203; 53 A. L. R. 855; 61 A. L. R. 1289, and 98 A. L. R. 557. Crowds are common at theaters and other places of amusement. That there may be some jostling in such crowds is inevitable. That someone may fall and sustain injury, or cause injuiy to others, always is a possibility. These conditions are so common that those who attend such places are presumed to know of them.
To permit crowding in a place of amusement is in itself not negligence. (Thurber v. Skouras Theaters Corp., 112 N. J. L. 385, 170 Atl. 863.) The degree of care required of common carriers is higher than that of the managers of theaters, but carriers are not negligent in permitting their cars to be overcrowded, though they are responsible for damages which necessarily result from overcrowding. (Moulton v. Boston Elevated Railway, 236 Mass. 234, 127 N. E. 886.) Here, the fact that Razook fell is no evidence of defendants’ negligence. In De Salvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333, 23 N. E. 2d 457, patrons of the theater were walking along the mezzanine floor when they were shoved by a crowd and fell over a railing, causing injury to themselves and to persons below. The railing had been well constructed from plans prepared by a competent architect. It was held the operator of the theater was not liable. In the recent case of Kallish et al., Ap., v. Base Ball Club, 138 Pa. Sup. 602, 10 Atl. 2d 831, the manager of the ball club had sold so many tickets that one in seven of the patrons were unable to get seats. Several patrons were standing upon a parapet or rampart at the top of the stand, with their hands upon the rafters overhead and where their conduct was a menace to the safety of others. They were “squirming and trying to hold on” and “were pushing and pulling one another.” One of them fell and injured a boy below him. In an action for damages for injuries to the boy, in a carefully written opinion, it was held the baseball club was not liable. There are cases where the crowding was so strenuous, and with the actual knowledge of employees or agents of the management, and care not being taken to prevent injuries which resulted, the question of liability of the management was held to be a jury question; or, if liability was found by the triers of fact, the finding was sustained. (Myers v. K. C. Jr. Orpheum Co., 228 Mo. App. 840, 73 S. W. 2d 313; Mears v. Kelley, 59 Ohio App. 159, 17 N. E. 2d 386.)
There is no such situation alleged in the petition here. The ruling of the trial court was correct, and it is affirmed. | [
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Per Curiam:
The clerk is directed to file without deposit for costs the papers filed herein under the above caption.
The applicant seeks release by a “writ of error coram nobis” from a judgment and sentence of the district court of Bourbon county in June, 1934, for the crime of “car theft; sentence, 10 to 30 years.”
This court has no original jurisdiction to grant a writ of coram nobis; therefore, the application is denied and this proceeding dismissed. | [
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The opinion of the court was delivered by
HaRvey, J.:
This was an action to quiet title to an eighty-acre tract of land in McPherson county. The trial court sustained defendants’ motion to strike from plaintiff’s reply allegations deemed vital to plaintiff’s right to recover. Plaintiff has appealed.
Briefly, the pleadings may be summarized as follows: Plaintiff, in his petition, alleged that he is the owner and in the actual possession of the described land; that defendants claim some estate in or lien on the property, the nature of which is unknown to plaintiff; that all such claims were subject to and inferior to plaintiff’s title, and the court was asked to require defendants to set up their claims. The prayer was for judgment excluding defendants from any interest in, claim to, or lien upon the property, and quieting plaintiff’s title thereto as against defendants.
Defendants’ answer contained a general denial, with the admission that they claim an interest in the land; alleged that on November 6, 1925, Carl J. Hanson and wife were the owners of the fee-simple title to the land, and on that date executed to F. A. Smith a mineral deed for an undivided one-half interest in and to all the oil and gas and other minerals in or under the land, or which may be produced therefrom, which deed was duly recorded December 7,1925; that on September 10, 1926, F. A. Smith and wife, by a mineral deed, conveyed to Virgil 0. Wood all of the oil, gas and mineral rights previously conveyed to him by Carl J. Hanson and wife, which mineral deed was duly recorded September 23, 1926; that on November 12, 1930, Virgil 0. Wood and wife, by1 their mineral deed, conveyed to the defendant, Homa Wood, an undivided one-eighth, and to Robert H. Wood an undivided one-eighth, of all the oil, gas and other minerals in and under the land, or which may be produced therefrom, which deed was recorded November 14, 1930; that on January 10, 1940, Robert H. Wood and wife conveyed to the defendant, Homa Wood, their undivided one-eighth interest in and to; all the oil, gas and other minerals in and under, or that may be produced from the said land, which mineral deed was duly recorded January 19, 1940, and that by reason of these conveyances the defendant, Homa Wood, is the owner of an undivided one-fourth interest in the oil, gas and other minerals in or under, or which may be produced from the land in question. The prayer was for judgment in harmony with these allegations, and by cross petition the defendants sought to quiet their title as against plaintiff in and to the undivided one-fourth interest of the mineral rights.
The reply contained a general denial, and a specific denial that Carl J. Hanson and wife were the owners of the fee-simple title to the land on November 6,1925, and alleged that prior thereto, and on January 25,1923, Carl J. Hanson and wife had executed to the Central Trust Company a mortgage on the land to secure their note for $2,500, which mortgage was duly recorded. It is further alleged that about April 16, 1931, the Central Trust Company brought an action to foreclose the mortgage, in which action a judgment of foreclosure was rendered, and an order of sale issued under which the property was sold by the sheriff on August 10, 1931, and bid in by the plaintiff, the Central Trust Company, which sale was confirmed on September 18, 1931, and a sheriff’s certificate of purchase was duly issued ; that about September 22,1931, the sheriff’s certificate was duly assigned to plaintiff, to whom a sheriff’s deed was issued February 13,1933. In this foreclosure action F. A. Smith and wife and Virgil O. Wood and wife were made parties defendant, but Robert H. Wood and the defendant, Homa Wood, were not made parties defendant.
It is alleged that Virgil Wood, Robert H. Wood and Homa Wood are brothers, and F. A. Smith is their brother-in-law; that after plaintiff had purchased the certificate of purchase for the property, Homa Wood, acting for himself and for his two brothers and brother-in-law, approached plaintiff and wanted to buy the certificate of purchase, but terms were not agreed upon; that Homa Wood, with intent of deceiving plaintiff, fraudulently stated that all of them were parties defendant in the foreclosure action, and that the rights of all of them under the mineral deeds had been foreclosed, that they intended to redeem the property from the foreclosure sale and would do so; that relying upon these representations plaintiff was deceived, and did not investigate the record in the foreclosure action to determine whether or not Robert H. Wood and the defendant, Homa Wood, were parties defendant in the action, and that he did not actually learn they were not parties to the action, and, that their interests under the mineral deeds were not foreclosed thereby until in the spring of 1939. We have attempted to state only the gist of the allegations of the reply, which was twice amended, and which altogether is quite lengthy.
In 42.C. J. 164 it is said:
“In accordance with general rules [relating to judgments] the judgment or decree in a foreclosure action is conclusive on all persons who were properly made parties to the action. The converse of this rule is equally true, that persons not parties are not concluded by the judgment of foreclosure. . . .”
Our decisions are in harmony with this rule. See Britton v. Hunt, 9 Kan. 228; Lenox v. Reed, 12 Kan. 223; Ervin v. Morris, 26 Kan. 664; Richards v. Thompson, 43 Kan. 209, 23 Pac. 106; Stacey v. Tucker, 123 Kan. 137, 254 Pac. 339; Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P. 2d 23; Phillips v. Parker, 148 Kan. 474, 83 P. 2d 709; Simmons v. Clark, 151 Kan. 431, 99 P. 2d 739.
Under our code (G. S. 1935, 60-3101) a judgment is a final determination of the rights of the parties to an action, and G. S. 1935, 60-3102, authorizes judgment only against such parties.
Appellant does not contend he acquired the interests under the mineral deeds to Robert H. Wood and Homa Wood by the foreclosure proceedings, but argues that the defendant, Homa Wood, is estopped to claim rights under the mineral deeds to him by his failure to disclose to plaintiff his title, and by his fraudulent representations to plaintiff that he and his brother, Robert H. Wood, were parties to the foreclosure action, and that their rights under the mineral deeds had been foreclosed in that action unless they redeemed, which they would do if they could not buy the certificate of purchase from plaintiff. The trial court held, as a matter of law, that the defendants were not estopped for those reasons from claiming their rights under the mineral deeds. We concur in that view.
Plaintiff was not induced to buy the certificate of purchase because of anything Homa Wood said to him; he had previously purchased it. In this and other material respects the case differs from Burgess v. Hixon, 75 Kan. 201, 88 Pac. 1076; Investment Co. v. Reddig, 86 Kan. 689, 121 Pac. 912; 87 Kan. 295, 123 Pac. 741, and other cases cited by appellant. Plaintiff alleged defendant, Homa Wood, approached him and wanted to buy the certificate of purchase. There was nothing wrong about that. It is alleged defendant stated he and his brothers and brother-in-law would redeem from the sale. This was but an expression of a, plan or intention to do' something in the future. Appellant does not contend there was any contract by which appellee was bound to redeem. It was alleged defendant stated he and Robert H. Wood were parties to the foreclosure action, and that their rights under the mineral deeds were foreclosed thereby. Since plaintiff had previously acquired the certificate of purchase, this statement could not change his rights; he had not relied upon this statement when he purchased, and was not justified in relying on it when it was made. (In re Estate of McFarland, 118 Kan. 534, 235 Pac. 832.) A prudent man would have investigated that matter before he purchased. Standing in the position of a purchaser at a judicial sale, he purchased what was sold, and no more. (See Simmons v. Clark, 151 Kan. 431, 433, 99 P. 2d 739, and cases there cited.) Neither the defendant, Homa Wood, nor Robert H. Wood had concealed ownership of their mineral rights; their mineral deeds were duly recorded before the foreclosure action was brought. That record, and the record of the foreclosure proceedings, were as open to plaintiff as they were to defendant. They involve the very transaction in hand, and themselves are sufficient notice to plaintiff of any fraudulent representation respecting them made by defendant. (Black v. Black, 64 Kan. 689, 68 Pac. 662.)
Appellant stresses the fact that the judgment of foreclosure was rendered, the sheriff’s sale had and confirmed, all in the June, 1931, term of the district court. (See G. S. 1935, 20-1009.) While the date the defendant, Homa Wood, is alleged to have talked with plaintiff is not fixed in the reply, appellant argues it was within the same term of court, and that plaintiff was injured by defendant’s statement in this way: Had the false representations not been made by defendant, plaintiff would have examined the records of the fore closure proceedings and the records in the office of the register of deeds, and would have discovered that the defendant and Robert H. Wood held title to certain mineral rights in the property, and that they had not been made parties defendant to the action, and would have applied to the court to have the judgment of foreclosure, the sheriff’s sale, and the order confirming it, set aside in order that they might have been made parties defendant, and their interests cut off. We regard this argument as quite fanciful, for two reasons: First, not having examined those records before he acquired the certificate of purchase, which would have been the prudent thing for him to have done, there is no assurance that he would have examined them within that term of court; and second, had he examined them, there is no certainty that the court would have set aside the foreclosure sale and confirmation upon his request in order that additional parties might be made defendants. It is true, the court has control of its judgments during the term, and in its discretion may set them aside, but this is a judicial discretion founded upon some reason therefor. Here the property had sold at the judicial sale for the entire amount of the mortgage debt, hence the mortgagee was no longer interested. Had the holders of the mineral deeds been made parties defendant in the first instance, the court, on their request, might have ordered the property sold subject to their rights under the mineral deeds, particularly if in the mineral deeds the grantor had warranted the title, and if such a sale would have brought enough to set aside the plaintiff’s debt, would have permitted the mineral deeds to stand; hence the argument of appellant on this point is entirely too speculative to be of any value.
In addition to what has been said, relief from the alleged fraud was barred by the statute of limitations (G. S. 1935, 60-306, third) long prior to the filing of this action. The alleged fraud was practiced sometime between September 22 and the first Monday of December, 1931, if within the term of court at which the judgment was rendered, and in any event before the sheriff’s deed was issued, February 13, 1933. This action was not filed until April, 1940. The means of discovery of the fraud was in the public records on which plaintiff’s deed was based. He cannot be heard to say he did not discover the fraud until the spring of 1939. (Black v. Black, supra; In re Estate of McFarland, supra; Sauberli v. Sledd, 143 Kan. 350, 55 P. 2d 415; Malone v. Young, 148 Kan. 250, 81 P. 2d 23.)
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Haevey, J.:
This was an action against the surety on the bond of a general contractor for state highway construction to recover for hauling base materials by truck for the construction of work under a parol agreement with a subcontractor. The jury answered special questions submitted by the court and returned a general verdict for plaintiff. After reducing the amount of the verdict the court rendered judgment thereon. Defendant has appealed.
The petition was in eight counts. The first contained allegations to this effect: That M. W. Watson had a contract with the state highway commission for the construction of a certain part of a state highway designated as a project and numbered; that he as principal and defendant as surety executed a bond to the state in a sum named, conditioned among other things to “pay all indebtedness incurred, whether by said principal, subcontractor or otherwise, for supplies, material or labor furnished, used or consumed in connection with or in or about the construction of the project for which said contract has been let . .• ;” that one Charles Gates had a subcontract with M. W. Watson for the hauling of base materials on the project; that plaintiff worked for Charles Gates as a truck driver hauling base materials on the project under an oral contract of employment made April 26, 1938, by which plaintiff agreed to haul base materials in his truck and Charles Gates agreed to pay plaintiff at varying rates per yard-mile of material hauled, as later set out in the itemized statement of hauling done; that he had not been paid and there was due him a sum named, and that on December 17, 1938, which was within six months after the completion of the project, he sent to the State Highway Commission a verified statement of the sum due him pursuant to G. S. 1935, 68-410. Each count in the petition contained similar allegations. They differed only in the designation of the project and the account and amount claimed to be due. The sum alleged to be due was $1,342.40, less $528.26 credit for payments received, leaving a balance of $813.84, for which plaintiff prayed judgment.
The sole original defendant was the surety on the bonds of the contractor. Apparently later Charles Gates was made an additional party defendant, but the abstract does not show that he answered.
The surety on the bond answered, denying generally the allegations of the petition except those specifically admitted; admitted the residence of plainitff; that defendant was a corporation; that M. W. Watson, as a general contractor, had contracts pertaining to several projects for the construction of the state highway; that Charles Gates had a subcontract for the hauling of base materials upon a ton-mile basis, but denied that the rates varied, and alleged rate was in accord with a written contract between Charles Gates and Watson, a copy of which was attached to the answer; admitted that Watson had made a contract with the State Highway Commission for the project mentioned in the first count and for accuracy as to its contents set up a copy of it, and also admitted that a bond was executed with defendant as surety, as alleged. It contained a specific denial that the account attached to plaintiff’s petition is true and correct, or that, there is due and owing plaintiff the amount therein set forth, and alleged that the account had been paid in full, or that the same should have been paid by Charles Gates, or that the plaintiff is estopped to claim any balance due him on the account, for the reasons, briefly stated: (1) That plaintiff is the son of Charles Gates, the subcontractor; that Charles Gates executed the subcontract on behalf of himself and his partner, the plaintiff, and upon the representation that they owned the trucks that would be used for the hauling and it would not be necessary to hire or use other trucks; and (2) that after the work was completed Charle? Gates and plaintiff went to the office of the general contractor, M. W. Watson, to determine the amount due, where all the hauling was computed, and the sum agreed upon as being due was paid by check to Charles Gates. By a cross petition the surety set up the facts and alleged that if Charles Gates had not paid plaintiff he is primarily liable therefor, and the surety should have judgment, over against Charles Gates, for any sum due plaintiff which it may be required to pay. The subcontract was in the form of a letter, dated April 23, 1938, written by Charles Gates to M. W. Watson and accepted in writing, which letter reads:
“I will haul gravel from your plant or plants to road projects as may be agreed upon from time to time for the sum of .0375 cents per cu. yd. per mile.
“I will pay all labor, gas and oil and repairs on trucks. Also Social Security; insurance and compensation on men, and carry public liability and property damage insurance on all trucks used on the projects.
“You are to pay the men each week for the hours worked and deduct gas and oil bills and pay any other bills on the job and deduct from the amount due me for haul and send the balance to me.”
The reply was a general denial and a specific denial that plaintiff was at any time in partnership with Charles Gates. All pleadings were verified.
It will be necessary to give only a brief summary of the evidence. As provided in his subcontract with Gates, Watson paid plaintiff by check each week for the hours he worked. These checks aggregated $171.88. Although plaintiff’s name appeared endorsed on each of them he expressed doubt in his testimony as to his signature on two of them totaling $30.10, stating:
“I don’t know that I received the money on the cheeks or not. It has been so long ago that I can’t remember that long. I have no records showing what money I received.”
His father, Charles Gates, paid his bills for gas and oil amounting to $134.76. This item appears not to be challenged. Plaintiff testified he had received also from Charles Gates three checks, two for $100 each, which he had turned to the credit company to apply on his truck, and another check for $50. In his petition plaintiff alleged he had been paid by Charles Gates $250 in cash. In his statement of September 13, 1938, on account of moneys due him he listed two cash payments, one for $150 on June 27,1938, and one for $100, August 11, 1938. At a former trial of this case plaintiff testified this $250 was paid him in cash and was used largely for living expenses, and that the only checks his father paid out to him were those used to pay his gas and grocery bill, that is, his eating bill.
Plaintiff testified he had an oral agreement with his father, made a week or two before the job began, by which he was to receive 3.75 cents per cubic-yard mile for each load hauled more than nine miles, and for a load hauled less than nine miles was to - get the “state rates.” Defendant objected to this testimony on the ground that as to the rate of pay plaintiff is bound by the contract between Charles Gates and Watson, and the further ground that the talk he had with his father before the Gates-Watson subcontract was executed was unknown to Watson or his surety and not binding upon them. This objection was overruled. It should have been sustained. On this point it is worthy of note that Charles Gates testified he had no such talk with plaintiff; that after his contract was signed with Watson he called the truck drivers together (there were more than thirty trucks used on the projects) and told them the rate of pay would be 3.75 cents per cubic-yard mile, whatever distance the load was hauled, and how payments would be made; that plaintiff was present and was employed on the same terms as the other truck men. This is the only competent evidence we find in the record as to plaintiff’s employment by Charles Gates. When plaintiff sent his written account to Watson, September 13, 1938, the pay claimed was computed at 3.75 cents per cubic-yard mile for all the hauling. Plaintiff’s counsel sought to bring out in the examination of plaintiff, and in cross-examination of witnesses called by defendant, that there was in force a minimum "state rate” for truck hauling which varies per cubic-yard mile for the distance the load is hauled, being greater than 3.75 cents for distances of less than nine miles and less than that amount for greater distances, and in that way sought to create a right of recovery for more than 3.75 cents per cubic-yard mile for the loads hauled less than nine miles. Defendant’s objections to this line of evidence were overruled. They should have been sustained. No issue of that kind was raised by the pleadings, if indeed it could have been. Plaintiff predicated his right to recover upon a parol contract with Charles Gates under his subcontract with Watson, and that is the measure of his right to recover.
Appellant does not contend there is substantial evidence to support its pleaded defense that plaintiff and Charles Gates were partners, and we find none. Upon its pleaded defense of waiver and estoppel defendant’s evidence was to this effect: About the middle of August, 1938, after all the work was completed, plaintiff and Charles Gates went to the office of M. W. Watson at Topeka for the purpose of computing the sum remaining due for all the work; that because some of the records were with a Mr. Cahill, Watson’s timekeeper at Russell, plaintiff and his father went from Topeka to Russell, where the records there were checked^ that a few days later both of them returned to Mr. Watson’s office at Topeka, where the computation was completed. There had been some claims made by truck men to the Watson office. These were taken into account and inquiry was made if there were any other claims; Charles Gates replied there were none; plaintiff made no reply; that the balance computed to be due was then paid, and that up to the time of this final payment plaintiff had made no claim of any sum due him personally to Watson or any of his employees. On this point plaintiff’s testimony coincided with that of defendant’s witnesses respecting the first trip to Topeka and the trip to Russell, except he testified that while at Topeka he told Watson’s employees of his personal claims, and he denied being present in Watson’s office at Topeka later when the sum due upon the subcontract with Charles Gates was finally-computed and paid. Under date of September 13, 1938, plaintiff wrote Watson the following letter:
“Enclosed you will find statement of Hauling Account for which I have not received payment in full. As you have made a satisfactory settlement with the other men on the job I think I am entitled to my hauling as well as they. Due to the fact I am the son of the contractor, I do not feel that I should take the loss.
“In regard to the fact that I own my truck (No. 1) and am making payments on it, I hope you can see my standing as an individual hauler. I have my state tickets for which payment has not been received if you would care to look them over.
“I am trusting you will make settlement as soon as possible.”
With this letter his account was enclosed. A few days later he called Watson’s office by telephone, asked if his letter and statement had been received and what was going to be done about it, and was informed the letter and statement had been received, and was told to get his money from his father.
Defendant’s objections to specific instructions were overruled and a requested instruction was denied. Reading these instructions we are inclined to the view that some, at least, of the points contended for by defendant were well taken, but we shall not pass upon them for the reason that appellant does not argue them here, and perhaps proper instructions will be given upon a new trial, which we think must be granted for reasons soon to be stated.
Defendant drafted eight special questions and requested they be submitted to the jury. None of them was submitted. The court submitted: to the jury eleven special questions. The record is silent as to who prepared them. Some of them, though phrased in different form, sought substantially the same information sought by some of the questions submitted by the defendant, but some of the questions deemed important by defendant were not submitted in any form.
The jury returned a general verdict for plaintiff for 1793.48, and in answer to one of the special questions submitted found the total paid by Charles Gates to plaintiff, or on his behalf, was $443.80. Defendant filed a motion for a new trial, which included all necessary grounds. After argument of the motion the record shows the following:
“The Court: Gentlemen, you can often see how the Court is put on the spot. Not to escape any criticism in the least — that is the least thing that concerns me, always does — but the question is, can a jury ever arrive in a case of this kind at what might be termed exact justice? Now, then, the Court may have erred in not giving the requested instructions—
“Defendant’s counsel: You mean special questions, your Honor?
“The Court: Special questions. Yes, I mean special questions, because I didn’t follow it through to the conclusion that Mr. Siefkin has in mind. It might be if those questions had been submitted to the jury and they had given an answer, we could easily see then, as Mr. Siefkin points out, whether or not certain payments were made in fact by Charles Gates. It is a test of veracity on both sides. As badly as I hate to grant a new trial in cases of this character, I wasn’t myself exactly satisfied, maybe because of my own shortcomings and, too, probably owing to the shortcomings of the trial lawyers.
“Plaintiff’s counsel: I would like to have you withhold your ruling.
“The Court: Let me point out just a minute. If this comes to trial again, I want to point this out to counsel on both sides: You can see my mistakes easily enough. You probably don’t see your own when I do. Both sides worried the jury until its mind was filled with a lot of questions and answers which seemed to them wholly irrelevant and with no materiality at all and their mind was tired out with useless bickerings, we might call it. There is a lot of that enters into these trials. If you want time on the matter, I will wait for two weeks from today.
“Plaintiff’s counsel: I would like for you to withhold your rulings.
“The Court: At the present time, however, I just want to let you know my inclinations because when the verdict was received I wasn’t satisfied with it myself. My inclination will be to grant a new trial.”
Upon the later hearing of the motion plaintiff’s counsel stated:
“The only way is to allow a remittitur of $59.04 — giving to the plaintiff an option of consenting to a remittitur of $59.04 or granting a new trial.”
The court ordered the remittitur, which was accepted by plaintiff, and judgment was rendered for plaintiff in the sum of $734.44. The appeal is from this judgment and all adverse rulings.
Appellant contends the court erred in refusing to submit its special questions requested. The point is well taken. Our statute (G. S. 1935, 60-2918) gives a litigant the right to have such questions submitted. While the trial court should examine special questions requested to see that they are clearly stated and pertain to matters concerning which there is evidence which would support an answer, the court should not refuse to submit them. There is no contention that the questions requested were open to any infirmities.
Appellant argues it was error for the trial court to render its judgment upon a verdict with which the court was not satisfied, citing Posey v. Johnson, 145 Kan. 742, 745, 67 P. 2d 598, and many other cases. These authorities lay down the rule that it is the duty of a trial court to exercise an independent judgment upon the verdict of a jury and not to approve it unless satisfied with it; that if dissatisfied with the verdict the court should grant a new trial. Ap-pellee makes no complaint of these rules of law nor of the authorities cited in support of them, but contends the court did approve the verdict; that the only thing the court was dissatisfied with in the verdict was its amount, and having required a remittitur of $59.04, which was accepted by the plaintiff, the court then approved the verdict. The journal entry of judgment contains no recitation that the court approved the verdict. Normally by rendering a judgment upon a verdict the court is presumed to have approved it, but that can hardly be said here. The court’s comments indicate a dissatisfaction with the verdict because special questions requested by defendant were not submitted; because there was much “useless bicker-ings” by counsel during the trial which worried the jury; and because the jury’s findings rested upon the testimony of plaintiff. After the verdict the court seemed to realize that special questions requested by defendant should have been submitted. Much, if not all, of the “useless bickerings” of counsel might have been avoided had the court promptly ruled correctly upon incompetent evidence offered. It is true, also, that the verdict rendered appears to have rested upon the testimony of the plaintiff, although as to many material points it was in direct conflict with the testimony of other witnesses, including plaintiff’s father, which normally would have been believed; even in conflict with his own testimony at the former trial, and in some respects with the statement of his account as submitted in writing to the contractor. It was therefore peculiarly the kind of a case in which the court should have exercised its own judgment as to the verdict. No figures in the record indicate a reason for the remittitur of $59.04. Appellee explains it in this way: The jury found plaintiff had received from his father $59.04 more than his testimony disclosed. Presumably the jury in reaching its general verdict deducted from the total amount plaintiff had coming to him the amount which it found plaintiff had received from Charles Gates. If that deduction was already $59.04 too much it seems that error could not be corrected by a further reduction of the same amount. The result is the trial court rendered judgment on a verdict with which it had expressed dissatisfaction after requiring a remittitur not authorized by the record.
The correctness of plaintiff’s verified account embodied in his petition was denied under oath. Plaintiff was permitted to testify he had figured up what was due him and the amount shown in the statement was correct. Defendant’s objection to this method was overruled. The ruling was erroneous. To what extent this affected the result is not clear.
For the reasons hereinbefore stated, the judgment of the trial court is reversed with directions to grant a new trial. | [
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Opinion by
Simpson, C.:
P. M. Wood and C. P. Wood entered into a partnership in April, 1886, for the purpose of conducting a second-hand store in the city of Atchison, each of the partners contributing the sum of $500 as capital. C. P. Wood, for the purpose of contributing his share of the capital, and for other purposes, borrowed the sum of $800 from P. M. Wood, and for this sum executed his note, payable in one year, securing the same by mortgage on a house and lot in Atchison. When the note for $800 became due, the partnership accounts for the year were settled, and it was found that there was due C. P. Wood a sum that reduced the note to $209.50. For this amount C. P. Wood and his wife, Mary A. Wood, executed their note, due in one year, with interest at 10 per cent., and P. M. Wood released the mortgage. By agreement, on the 20th of April, 1887, the partnership was continued for another year, but on the 4th day of October, 1887, they sold out their stock, notes, mortgages and business to Vm. Vance, each receiving therefor the sum of $600. After said note for $209.50 became due, P. M. Wood brought suit thereon before a justice of the peace, in the city of Atchison, filing a bill of particulars, alleging the execution of the note, and praying judgment for the amount of the note, with interest and costs. C. P. Wood and wife filed an answer, denying all the allegations of the bill of particulars, except that of the execution of the note. They also pleaded want of consideration; they pleaded fraud and misrepresentation on the part of the plaintiff in obtaining said note; and by way of counterclaim or set-off they alleged a partnership between the parties, and that there were profits enough due C. P. Wood to cover the amount due on the note. To this P. M. Wood pleaded settlement of the partnership account for the first year of the partnership business, and the execution of said note for balance due on an account stated.
The case was tried in justice’s court, appealed to the district court and tried by a jury, resulting in a verdict and judgment for C. P. Wood for $154.67 and costs. P. M. Wood brings the case here for review, claiming that there are errors appearing on the record for which the judgment below ought to be reversed.
It is said in the brief and oral argument of counsel for plaintiff in error, that the main question is, did the justice of the peace have any jurisdiction to hear and determine the matters contained in defendant’s set-off and counterclaim? This question appears to be raised for the first time in this court. We do not find that either before the justice of the peace or in the district court any distinct objection to the jurisdiction of the justice to try the issues raised by the pleadings was ever made. Nor do we understand that the bill of particulars of the defendant in error filed in the justice’s court called for what is technically known as an accounting. This was not the object of the action. The suit was brought on a promissory note. One of the defenses was that the maker and payee were partners in business, and that there was due the maker from the payee on settlement a sum more than sufficient to pay the note. Another one of the defenses was that the plaintiff in error had taken property belonging to the firm of the value of $200 or more, and had not accounted for it. The thought that the defenses prayed for an accounting seems not to have occurred to counsel for plaintiff in error until after judgment had been rendered against him in the district court. He replied to the defenses set up in the defendant’s bill of particulars and made no attack upon them. It is too late to raise the question of jurisdiction now. (Hodgin v. Barton, 23 Kas. 740.)
Complaint is made that the partnership books were admitted in evidence, for the reason that “ there was no pretense that the books contained any matter relative to the case except partnership accounts of the parties, and the jury could not take the place of a court of equity.” We fail to find any such objection in the record. Counsel for plaintiff in error call our attention in their brief to pages 11 and 43, but no such objection is found at these pages. Objections are found in both pages to the introduction of the partnership books on the ground that they are “incompetent, irrelevant, and immaterial, no proper foundation laid for their introduction, and not sufficiently proven.” This is a very different objection to that stated in the brief. It may be that the objection stated in the brief might be considered an attack on the jurisdiction of the court, on the theory that the defenses pleaded would call for an accounting. It was proven that the entries in the books were in the handwriting of the plaintiff in error, and these were surely admissible under any view that could be taken. We do not believe, under all the circumstances, that the ruling of the court below, as to the admission of the books, is mate-, rial error. We fail to find any objection recorded to what counsel call the statement of the attorney for the defendant in error as to what the books contained. What he did do was to call the attention of the jury to certain items in an account about which cluster these contentions, but, as we state, there are no objections noted. The trial court permitted the jury to take the account-books to the jury-room while considering their verdict. This is within the discretion of the trial court, (Thompson v. McEwen, 24 Kas. 757,) and there is no showing by the plaintiff in error, or no implication arising from the record, that this discretion was abused, while every presumption is that it was not.
Finally, it is claimed that the third, fifth and sixth paragraphs of the instructions are prejudicial errors. The concluding words of the third paragraph are “or that the defendant’s share of the profits of the partnership business, after deducting all expenses of the partnership, were sufficient or more than sufficient to pay off and discharge said note.” The partnership had been dissolved for some time before this action was commenced; a settlement had been made before this action was commenced, and the defendants in error claim that in the settlement made the plaintiff in error had not given credit to his partner for certain goods that he had taken out of the stock and appropriated to his own personal benefit, and this and other things pleaded would amount to more than sufficient to discharge the note. The plaintiff in error is still insisting that the defense was really a cross-action for an accounting. The fifth paragraph covers substantially the same ground, and so does the sixth. The jurisdictional question, as well as the contentions about the instructions, are the aftermath of a lawsuit.
We find no material error among the assignments, and recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
We have been asked to reexamine the grounds of the opinion handed down by the commission. We have done so with great care, but the result has not changed our former conviction. The authorities cited by the counsel for plaintiff in error concerning inter meddlers and volunteers do not, we think, apply in this case. At the time that Levagood was injured he was not a mere intermeddler or volunteer. There is some evidence to show that his duties did not require him to confine himself to pitching grain only. On the day of the injury, E. E. Mastín, one of the owners of the threshing machine, was driving the horse-power. Jack Mastín and Wm. Rankin were feeders, but Jack Mastín, whose father owned one-third of the machine, seemed to act as the boss of the work. When the machine was set up and ready to work, the horse-power got out of fix, and both the Mastins asked Levagood to help fix the machine, and with' a wrench he took some caps off the bolts of the machine. Rankin, who is experienced in the running of threshing machines, testified, among other things, “that he asked Jack Mastín to oil the cylinder, but as he was sick, and down on his knees and hands, gagging from dust, he then told Levagood to oil the cylinder.” He was asked:
“Q,. It wasn’t the part of anybody’s duty to do that except the hands or men running with the machine? A. Well, the threshing-machine hands, they generally do ask others when they are attending the separator, or sick or something that way, they ask some one that is close by; I have done that.
“Q,. That isn’t the rule, I believe. A. Yes, that has been with us.
“Q,. You have run a machine? A. Yes, sir.”
It also appears from the evidence that when the Mastins were operating the threshing machine a few days before the injury, at Mr. Thresher’s, Mr. Applegood (nota regular feeder) was permitted to feed, and also to oil the cylinder after the shield was off. Jack Mastín, the boss of the work, testified about the accident, among other things, as follows: “Well, I don’t know much about it. I was sick, lying down. Levagood came and asked me for the oil can; I don’t know what he was going to do with it. ... I told Levagood I didn’t know anything about where the oil can was.”
“ Q. Did you ask him what he wanted to do ? A. No, sir.
“Q,. You told him to hunt around? A. Yes, sir.”
On account of the foregoing, and other evidence contained in the record, we cannot say that the instructions were erroneous, or the verdict unsupported.
The motion for a rehearing will be overruled. | [
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Opinion by
Green, C.:
This was an action to recover damages for the loss of certain property destroyed by fire. James M. Richardson owned 820 acres of land in Labette county, which he cultivated as a farm for raising fruit, grain, and stock. The St. Louis & San Francisco Railway Company owned and operated a line of railroad through this farm; and it is alleged that the railway company carelessly, negligently and unlawfully allowed and permitted weeds, grass and rubbish to accumulate and remain on its right-of-way, near to and along its track; that on the 26th day of February and the 1st day of March, 1887, while operating its line of railroad, it carelessly, negligently and unlawfully caused and permitted fire to escape from its engines or some part of its trains, which fire ignited the weeds and grass upon the right-of-way, communicated to the premises of the plaintiff, and destroyed his fences, grape vines, fruit trees, forest trees, and shade trees. The case was tried before a jury, and a verdict was returned for the plaintiff for $421.67. The jury returned special findings of fact, showing that each one of the trains was properly handled; that there was a public highway running along the east side of the defendant’s railway track where the fire escaped on the 26th of February; and that the fire caught on the east side of the railroad track, near the center of the highway. The jury found, too, that the right-of-way where the fire escaped was covered with grass. In answer to the question as to whether the fire was set out on purpose or escaped by accident, they answered: “No; carelessness.” The findings are substantially the same as to fire of March 1st, except that the jury answered that there was no dry grass, weeds or other rubbish in the draw on the defendant’s right-of-way, where the fire escaped, other than the ordinary growth of the past season. The jury found as to each fire that the defendant had omitted to properly clean its right-of-way. There was a motion for judgment in favor of the defendant, upon the special findings, notwithstanding the general verdict. This motion was overruled, and judgment was entered upon the general verdict.
The record presents but a single question for our consideration: Did the court err in refusing to give the defendant judgment upon the special findings ? It is contended by the plaintiif in error, that while the statute makes the setting out of a fire prima fade evidence of negligence, it does not change the rule of liability, but shifts the burden of proof from the plaintiff to the defendant; and therefore, where the evidence on the part of the defendant rebuts this presumption, and shows that the defendant carefully conducted its business, the verdict should be for the defendant. As an abstract proposition we might admit the correctness of the principle as stated; but it is a question as to whether the special findings establish such a state of facts as will relieve the railroad company from all liability under the statute. This court said, before the enactment of the statute:
“Negligence is a question of fact for the jury. It is for them to determine whether there has been any negligence, and its nature and degree. Even where the circumstances are all admitted, if there is any doubt as to what they prove, it is still a question for the jury. It is not the duty of the court to draw inferences from the evidence, but only to pronounce legal conclusions from facts admitted or properly found.” (U. P. Rly. Co. v. Rollins, 5 Kas. 187.)
In a later case it was said, that when the evidence shows an accumulation of dry grass and stubble, it is a question for the jury whether the accumulation is such, and under such circumstances, as to impute negligence. (White v. Mo. Pac. Rly. Co., 31 Kas. 280.) We think it evident from the findings that the fires escaped on the right-of-way. This sqemed to have been the theory of the railroad company, from the following special findings submitted to the jury, with others:
“13. What was the condition of the right-of-way of the defendant at the place where the fire escaped — covered with grass or burned off? Ans. Covered with grass.
“14. Is it not a fact that the defendant company had taken precautionary measures to prevent fire from being set out on its right-of-way, by having its right-of-way burnt off during the winter before the fife occurred of February 26, 1887? A.. Partially so.
“15. Was there any dry grass, weeds, rubbish lying, standing or being upon defendant’s right-of-way at the time and place where the fire was set out on the 26th day of February? If so, state fully the quantity and height of any dry weeds, grass or other rubbish that was on defendant’s right-of-way at said time and place. A. Yes; growth of 1886.”
The answers are the same as to the fire of March 1st. We think, therefore, that the findings show that the fires escaped on the right-of-way; and under chapter 155 of the Laws of 1885, (¶ 1321 of the General Statutes of 1889,) the railroad company was prima fade guilty of negligence. (Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404; Mo. Pac. Rly. Co. v. Cady, 44 id. 633.) It is true that it has been held that “it is not negligence per se for a railroad company to permit standing grass and weeds to remain on its right-of-way; ” (K. P. Rly. Co. v. Butts, 7 Kas. 308;) still there may be such a state of facts surrounding each particular case as will establish negligence; and when such facts do exist, it is proper to submit them to the jury.
The law in this class of cases ordinarily commits the question of negligence to the jury. The negligence imputed to the railroad company in this case is in the care of its right-of-way. It has been said in this class of cases that “the removal of combustible substance is quite as much a means of preventing the communication of fire from locomotives as the use of inventions for preventing the escape of fire from the locomotives themselves.” (Thomp., Neg. 162, and authorities there cited.) This question the jury passed upon, and found that the company omitted to clean its right-of-way, and returned a general verdict in favor of the plaintiff. We do not feel that we can disturb the judgment of the trial court based upon these special findings and the general verdict of the jury, especially when the occurrence of a fire caused by the operation of a railroad is by statute made prima facie evidence of negligence.
It is urged that, if the defendant below were guilty of negligence under the special findings, the plaintiff was guilty of a greater degree of negligence, because he took no precaution whatever to prevent fire. The special findings were that he pastured his premises. This, too, was a matter for the jury to determine, and not a question of law. (K. C. Ft. S. & G. Rld. Co. v. Owen, 25 Kas. 419; St. J. & D. C. Rld. Co. v. Chase, 11 id. 47; Beach, Contrib. Neg., § 75.)
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This present action was commenced by Jacob Schroeder against the Atchison, Topeka & Santa Fé Railroad Company for $5,000 as damages for personal injuries. It was tried in the court below upon the first count of the plaintiff’s amended petition and the defendant’s answer, and judgment was rendered in favor of the plaintiff and against the defendant for $3,000 and costs, and the defendant, as plaintiff in error, now complains. The evidence of the plaintiff below fairly tended to prove the allegations of that part of his amended petition upon which his case was tried, and we have nothing to do with the other part of his petition, to wit, the second count. Much of the plaintiff’s evidence, however, was contradicted by the evidence of the defendant. The plaintiff’s evidence showed that he was the section foreman of section 4CX of the “El Dorado branch” of the defendant’s railroad; that George J. Lockie was the roadmaster under whom he worked and received his orders; that John Faust was a section-hand working under the plaintiff and subject to his orders. The injury of which the plaintiff complains occurred on February 17, 1886, substantially as follows: The plaintiff and Faust were unloading five railroad rails from what the witnesses call a “push car,” and while unloading the last rail, the plaintiff holding one end and Faust the other, Faust threw, or in some manner let fall, his end while the plaintiff was holding his, and the plaintiff’s end struck him in the lower part of his abdomen and produced a rupture; and this is the injury of which he complains. The plaintiff testified that the handling of these rails was a part of his duties as section foreman; that he was required by the roadmaster, George J. Lockie, to perform all his duties as section foreman with only one assistant, to wit, Jóhn Faust; that one assistant only was not sufficient; and that the handling of these rails in the manner in which he was required to handle them was dangerous and hazardous. The roadmaster, however, George J. Lockie, who at the time of the trial resided in California, and whose deposition was read in evidence on the trial, testified among other things as follows:
“While thus employed as such roadmaster I was acquainted with the plaintiff, Jacob Schroeder, who was a section-foreman under my orders, and in charge of section No. 4CX of said road, that being the first section north of the city of El Dorado. I never either ordered or requested Mr. Schroeder to change rails or to replace rails of said road with the help of only one man, b,ut on the contrary, whenever there was work of that kind to be done by him I sent him whatever assistance he required. During the years that I have mentioned, that is while I was in charge of the “ElDorado branch” as road-master, it was customary for us to reduce the section force during the fall and winter months, and at times Mr. Schroeder only had one man regularly with him on his section, but, as I have already stated, whenever it became necessary from any cause to remove or replace rails, he was furnished with sufficient help, either by hiring an additional force for the time being, or by sending him men from some of the other sections of the road to aid him in making such changes of rails as might be necessary. In fact, Mr. Schroeder and all the other section foremen of that branch had general standing orders and authority from me to call upon each other for assistance whenever such assistance was in their judgment necessary, for the purpose of changing or replacing rails, or doing any other work that rendered necessary or proper more force than such foreman might have under his immediate charge.and direction at the time.”
For the purposes of this case we shall take the evidence of the plaintiff as true; and under such evidence and the allegations of the plaintiff’s petition, can he recover in this action ? We would think not. The only allegation of negligence against the railroad company was that it failed and refused, notwithstanding the solicitations and protests of the plaintiff, to furnish him with sufficient help to perform his duties as section foreman. It is admitted and was shown that the plaintiff was an experienced railroad man, had worked at this same kind of business for many years, and knew all the risks and hazards of the business as well perhaps as any man could know the same. He was not employed for any particular length of time, and could have quit the defendant’s employment at any time without violating any contract, or without leaving any contract of his own unfulfilled; and, if his own evidence is true, the company did not agree to furnish him with any additional help, but, on the contrary, utterly refused; and he had no reason to expect or to hope for any additional help. If the evidence of the defendant is true, however, he could have had additional help whenever it was necessary by simply asking for it. We shall consider this case, however, upon the theory of the plaintiff, and that is, that he desired additional help; that additional help was necessary; that he asked for it; that the railroad company, through its roadmaster, refused to give him any, and threatened to discharge him if he could not perform his duties without additional help; and that the injury occurred because of a want of sufficient help. This is substantially what the plaintiff alleged in his petition, and what his testimony showed on the trial. His testimony shows that the order from the roadmaster to reduce his force to one man only besides himself was received by him on November 30, 1885, and his injury did not occur until February 17,1886. It was therefore not an order to perform some duty on such short notice that he did not have a sufficient time for reflection or consideration before he encountered the danger. He protested against the order, according to his own testimony, but it was not revoked or modified, and he had no reason to believe or to hope that it would be revoked or modified. We think the principles discussed and decided in the case of Rush v. Mo. Pac. Rly. Co., 36 Kas. 129, et seq., are controlling in the present case. In that case an elaborate opinion was delivered, which see. In the case of Leary v. B. & A. Rld. Co., 139 Mass. 580, the following is decided:
“If a servant, of full age and ordinary intelligence, upon being required by his master to perform other duties more dangerous and complicated than those embraced in his original hiring,, undertakes the same, knowing their dangérous character, although unwillingly and from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action against the master for such injury.” (Syllabus.)
In the case of G. H. & S. A. Rly. Co. v. Drew, 59 Tex. 10,. the following is decided:
“The master is not liable in damages for an injury to his employé which results from the use of defective machinery, if the employé has full notice of the defect and of danger which will attend continuing the employment. The simple protest by the employé against the use of the machinery, when directed to use it, will not vary the rule, if, when having knowledge of the risk, he obeys the order.” (Syllabus.)
In the case of M. R. & L. E. Rld. Co. v. Barber, 5 Ohio St. 542, the following is decided:
“It is the duty of a railway company to furnish the necessary and proper number of hands for the safe management of its trains; and for a delinquency in this particular the conductor of a train has a right to decline his charge, or refuse to-run the train. But where he takes the charge, and runs his train for a length of time without a sufficient number of hands, he voluntarily assumes the risk, and waives the obligation of the company in this respect as to himself, and if injured by means of such delinquency on the part of the company,, he is- without a remedy against the company for damages.” (Syllabus.)
Also, in the case of Woodley v. M. D. Rly. Co., 2 Exch. Div. L. R. 384, 389, the language of Chief Justice Cockburn is strong and to the point. Among other things he says:
“ If a man chooses to accept the employment or to continue in it with a knowledge of the danger, he must abide the consequences so far as any claim to compensation against the employer is concerned.”
In the case of Wormell v. M. C. Rld. Co., 79 Me. 397, 405, (same ease, 10 Atl. Rep., 49, 51, 52,) the following language is used:
“ Every employer has the right to judge for himself in what manner he will carry on his business, as between himself and those whom he employs, and the servant having knowledge of the circumstances must judge for himself whether he will enter his service, or, having entered, whether he will remain. . . . But there are corresponding duties on the part of the servant; and it is held that the master is not liable to a servant who is capable of contracting for himself, and knows the danger attending the business in the manner in which it is conducted, for an injury resulting therefrom.”
■See, also, the cases cited in this last-cited case, and also the following cases: OruteJifteld v. E. ós D. Eld. Co., 78 N. C. 300; Stephenson v. Dimean, 73 Wis. 404; same ease, 41 N. W. Rep. 337; Smith v. W. & St. F. Eld. Co., 42 Minn. 87; same case, 41 Am. & Eng. Rid. Cases, 289) Me Glynn v. Brodie, 31 Cal. 376.
After a careful consideration of all the cases, we must say that, while in our opinion it is the duty of an employer, whether a railroad company or other corporation or person, to make th e work of his or its employés as safe as it is reasonably practicable, yet when the employé, with ful knowledge or all the dangers incident to or connected with the employment as it is conducted, accepts the employment, or, having accepted the same, continues in it with such full knowledge, and without any promise on the part of the employer, or any reason to expect on the part of the employe, that the employment will be made less dangerous, the employé assumes all the risks and hazards of the employment.
It is also claimed by the plaintiff in error that the court below erred both ip the admission of evidence and in the exclusion of evidence; but with the views which we entertain concerning the matters already discussed, we think it is unnecessary to consider these other alleged errors.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The material facts of this case are as follows : The firms of Innes & Ross and Aldrich & Brown, in 1882, owned property and were engaged in business on Main street, in the city of Wichita, in this state, near the building where the post office in Wichita was kept. They were desirous of having the post office remain in the building near their place of business, and, as an inducement to have the post office remain in the building, on the 1st of October, 1882, they executed and delivered to W. C. Woodman their written contract, whereby they agreed to pay him, as part of the rent for the post-office building, the sum of $75 every three months. The post office was continuously kept in the building on Main street up to the 1st of October, 1886, and the firms of Innes & Ross and Aldrich & Brown paid the rent up to the 1st day of October, 1885, but refused thereafter to pay any further rent. On the 24th of December, 1886, W. C. Woodman commenced his action to recover $303.96 for the residue of the rent, which he claimed to be due upon the written contract. While the action was pending in the court below, W. O. Woodman died, and his executors were substituted, by the order of the court, as plaintiffs. Upon the trial the defendant objected to the introduction of any evidence. The court sustained the objection, holding that the contract was against public policy, and therefore void. We approve of the ruling of the trial court. It was decided in Railroad Co. v. Ryan, 11 Kas. 609, that a contract not to have or use a depot within three miles of a given point was against public policy, and void. It was said in that case, among other things, that—
“Railroad corporations are, as we have seen, public agencies, and perform a public duty. They are agencies created by the public, with certain privileges, and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty, and cannot be enforced. They are under obligations to use the utmost human sagacity and foresight in the construction of their roads, to prevent accidents to passengers. A contract that they will not use such sagacity and foresight certainly cannot be upheld. They are under obligations to employ skillful and competent engineers to manage their engines, and other competent employés to superintend and take care of the running of their trains. A contract that they will not employ such agents and servants is certainly void. They are bound to furnish reasonable facilities for the transportation of freight and passengers, both as to the quality and quantity of ears and coaches, and the number of trains,.and a contract not to furnish such facilities will not be tolerated. So though one train a day with one freight car and one passenger coach might be at present amply sufficient to do all the business between two given places, yet a contract never to run but one train a day with the one car and coach, could not be upheld, for the necessities of trade and travel are varying, and it is the duty of the company to adjust its capacities and facilities for business to these varying necessities. Upon the same principle, it is the duty of a railroad company to furnish reasonable depot facilities. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots is in contravention of this duty.”
Under the allegations of the petition, the location of the post office in this case was to be restricted to one place. The government locates only one post office in a city, and such office is a public one, and the general public has an interest in the location of the office. Any contract which is made for the purpose of securing the location of such an office, or which prevents, or tends to prevent, the change or removal of such an office, when the necessities of business or the interest of the public demand a change or removal, tends to the injury of the public service, and therefore is against public policy. Such contracts as referred to in the petition tend to improperly influence those engaged in the public service, and also tend to subordinate the public welfare to individual convenience or gain. Parties should not be permitted to make contracts which induce personal or private interest to overbear public duty or public welfare. (County Lodge v. Crary, 98 Ind. 238.)
Counsel for plaintiffs say that the written contract of the parties is enforceable, because it is not shown that it is unfair, or that any undue influence was to be used to retain the post office on Main street. Such contracts lead to secret, improper and corrupt influences, to the injury of the public. In this view, we cannot think it good policy for the courts to enforce such contracts.
“All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation by refusing them recognition in any of the courts of the country.” (Tool Co. v. Norris, 2 Wall. 45.)
If W. C. Woodman had no control over the location of the post office, or if he could not, by his influence, representations, or otherwise, induce the United States post-office department to permit him to retain the post office upon Main street, then the contract sued upon was wholly without consideration, and for that reason ought not to be enforced.
The case of Beal v. Polhemus, 67 Mich. 130, (34 N. W. Rep. 532,) which is referred to as fully sustaining the petition, is somewhat different in its facts, but all said therein is not satisfactory to us.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
Motions have been filed upon the part of the plaintiff against the defendants to quash the return filed to the alternative writ, and also for a peremptory writ of mandamus to issue at once, notwithstanding the allegations contained in the return. The motions will not be sustained at this time; but, in view of the arguments before the court concerning the allegations of the return for a peremptory writ, that there may be no attempt to relitigate or reargue questions which have already been settled and determined in the case of C. K. & W. Rld. Co. v. Ozark Township, 46 Kas. 415, decided at the January term of this court for 1891, which was subsequently entered under a mandate from this court by the district court of Anderson county, we deem it necessary to say something concerning the proceedings in the latter case. The parties in this action are virtually the same as in the action of the C. K. & W. Rld. Co. v. Ozark Township, supra, and the subject-matter between the parties is the same, excepting the recitation in the writ in this case of the tender of $10,000 of the stock of the railroad company subsequent to the entry of the judgment against Ozark township by the district court of Anderson county. The rule of res adjudícala applies as well to facts settled and adjudicated as to causes of action. When a matter is once adjudicated, it is conclusively determined between the same parties and their privies as to all matters which were or might have been litigated; and this determination is binding, as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made. (Hentig v. Redden, 46 Kas. 231; Railroad Co. v. Comm’rs of Jefferson Co., 12 id. 127; Whittaker v. Hawley, 30 id. 327; Hoisington v. Brakey, 31 id. 560; W. & W. Rly. Co. v. Beebe, 39 id. 465; Comm’rs of Marion Co. v. Welch, 40 id. 767; Shepard v. Stockham, 45 id. 244; Freeman, Judgm., § 249; Poorman v. Mitchell, 48 Mo. 45; Allis v. Davidson, 23 Minn. 442; Casebeer v. Mowry, 55 Pa. St. 419; Franklin Co. v. Savings Bank,12 U. S. 147.) We therefore are of the opinion that everything that was litigated in the action of C. K. & W. Rld. Co. v. Ozark Township, supra, or that might have been litigated therein, was determined in that case, and cannot be opened up again. Therefore, there can be no litigation in this action over the terms of the submission under which the railroad claims the right to have the bonds issued, or the subscription, or the construction of the road, or the initial points thereof. All of these matters were, or could have been, liti gated in the action determined; and therefore the judgment heretofore rendered by this court and the district court of Anderson county is a bar to any further controversy over these or any similar matters. All that is left for this court to determine concerns the tender of tbe stock of the railroad company, subsequent to the rendition of the judgment in the district court in Anderson county, in accordance with the mandate of this court.
It is probable that there was sufficient evidence introduced upon the hearing of this motion to authorize a judgment as prayed for to be entered for the plaintiff against the defendants, but in view of the return concerning the denial of any tender of stock, it would be irregular to hear and dispose of the case upon evidence before it has been assigned for hearing. Since the foregoing motions were filed, James Black, one of the county commissioners, and S. Durall, county clerk of Anderson county, have filed supplemental returns, showing that on the 7th of January, 1892, they ceased to be county officers. It is therefore ordered that their successors in office be substituted and made parties defendant in this action, and that the alternative writ be corrected accordingly, and notice thereof given to said successors in office. The case will be set down for hearing at the next sitting of this court, upon the only matter left in dispute, which concerns the alleged tender of stock referred to, and the clerk will notify the parties. | [
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Opinion by
Simpson, C.:
On the 25th day of January, 1888, Mrs. Carr commenced this action in replevin against Huffman, who was the sheriff of Hamiltori county, to recover possession of a piano, of the alleged value of $300, that the sheriff had seized under an execution against the husband of Mrs. Carr. This piano was situated in Kearny county, then attached to Hamilton county for judicial purposes. She gave bond for costs, and an undertaking in replevin, the sureties on which were approved by the clerk of the district court; filed the necessary affidavit; and an order of delivery was issued to the coroner of said county, that was served and duly returned with a redelivery bond, with sureties, in the sum of $600. After this, Huffman filed an answer, consisting, first, of a general denial; and second, that as sheriff as aforesaid, under an execution against Sam. H. Carr, he had levied on the piano as the property of Carr. Afterward, the attorney of Huffman filed a motion to set aside and quash the order of delivery and the service thereof. This motion was filed after the answer of the defendant in error had been filed for some months. Before filing the motion to set aside the order of delivery the sheriff asked leave to withdraw his answer, and this was granted. The motion to set aside the order of delivery was sustained, and the court then permitted the sheriff to file an amended answer. The plaintiff in error asked leave to amend her petition and affidavit for replevin, and certain amendments were made. On the 22d day of October the plaintiff in error caused an alias order of delivery to be issued, directed to the sheriff of Kearny county, (that county having been organized,) which was served and returned with another redelivery bond. The defendant in error then filed a motion to set aside the alias order of delivery, and this was sustained.
The plaintiff in error is here complaining of all these rulings, and as to all but one we cannot review them, as no final 'disposition of the case has been made. The orders of the court for leave to plead and file motions and to amend we cannot now consider. - The one most bitterly complained of is that of quashing and setting aside the first order of delivery, and as that is a final order that discharges a provisional remedy, we can review it. The motion directed against it enumerated the reasons why it should be set aside. The first is, “that it was prematurely issued, without the plaintiff filing a prceoipe therefor with the clerk of the court.” The code does not require that a prceoipe shall be filed, but it is made the imperative duty of the clerk to issue an order of delivery whenever a certain proper affidavit is filed therefor, and a sufficient undertaking entered into with the approved sureties. (Civil Code, §§176, 177.) It might be that the clerk; to protect himself, when he has doubts either as to the sufficiency of the affidavit or the legal form of the undertaking, can demand a prceoipe, but after he issues the writ without such a demand it is too late to question the regularity of the proceeding. The second cause assigned is, “because the officer to whom the same was directed had no jurisdiction to execute the same, the writ showing on its face that the property was outside of his county; ” and the third, that may be considered in connection with the second, is, “because said order is issued for property outside of Hamilton county.”
The writ was directed to the coroner of Hamilton county, an affidavit being filed that the sheriff was interested, being the defendant in the action. It described the property as being situate at Lakin, in Kearny county, Kansas, and the averment of the petition is that Kearny county, being unorganized, is attached to Hamilton county for judicial purposes. The district court of Hamilton county must take judicial notice of the attachment of Kearny to Hamilton county for judicial purposes, as we do, and hence none of the objections urged against the order of delivery were good, and did not authorize the court to set it aside. Besides, the defendant had answered, and it was too late to move against the order of delivery. To withdraw his answer, then interpose his motion to vacate the writ, and then ask and obtain leave to renew his answer as soon as the motion was disposed of, looks like trifling with the orderly course of judicial proceedings; and all this defendant in error did, and was permitted to do. This suit was commenced on the 25th of January, 1888. The answer of defendant was filed on the 24th day of February, 1888. On the 8th day of August, 1888, the defendant in error filed his motion to vacate the order of delivery. On the 15th day of August, 1888, he asked leave of the court to withdraw his answer and file his motion to vacate, and this was granted; and on the same day the motion to vacate was sustained, against the objections of the plaintiff in error, who then and there had her exceptions noted. On the 27th day of August, 1888, by permission of the court, the defendant in error filed what he calls an amended answer, being in legal effect the same as his original answer. It will be seen from this statement that the withdrawal of the original answer was a mere pretext to attempt to avoid the decision of this court in the case of Kennedy v. Beck, 15 Kas. 555, wherein the court holds that in an action of replevin it is too late to raise any question about the irregularity of the issue'of an order of delivery on behalf of the defendant after he has filed his answer. So that the effect of the trial court permitting these things to be done, if we should affirm them, would be to deprive the plaintiff in error from obtaining a writ of replevin. We regard the struggling efforts of the plaintiff in error, after the defendant in error filed an answer, to procure an alias order of delivery as null and void, and having no bearing on the question of the regularity of the original order of delivery.
We recommend that the order of the trial court vacating the original order of delivery be reversed, with instructions to overrule the motion, and for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The material facts are, that Cox and Ernst were partners, doing a small butcher business in the town of Eulton, in Bourbon county. January 6, 1888, Ernst died intestate, leaving a widow and some minor children. At the death of Ernst the partnership owed no debts, and had on hand tools and stock of the value of several hundred dollars. Individually Ernst was indebted to several creditors, and owed Grubb about $207, and the only means of payment was the intestate’s interest in the partnership property. Shortly after the death of Ernst, an attempt was made to settle up the affairs of his estate without having administration thereon, and for that purpose it was proposed that the said Cox retain the Ernst share of the partnership property, and pay a pro rata share to each of the creditors, the said Grubb being one of them; the value of the assets belonging to the estate of the said Ernst being found to amount to about 50 cents upon the dollar of his debts. To this the widow of Efnst, a partial meeting of the creditors, and the * said Cox, all assented. The amount due Grubb by Ernst was $206.60, and this suit was for such pro rata amount, or one-half. The defendant, Cox, made the promise to pay this pro rata amount, believing that if all the creditors assented it could be legally done; but finding there were other creditors, he refused to do so, and did not pay Grubb. After a while an administrator was appointed, who took possession of the assets of the estate of Ernst, and disposed of the same by selling to defendant Cox, he accounting for all of the property, including some after-accruing profits, with the administrator. The plaintiff below, Grubb, had judgment, and Cox brings the case here for review, a new trial having been denied.
The questions are: Was the promise of Cox to pay Grubb based upon a valid consideration? and, if so, was it binding, when not in writing, it being conceded that it was in parol only? Another serious question is: Can such a contract be upheld unless the minor heirs are represented, and unless such . a disposition of the estate of the deceased person is authorized or ratified by the probate court? The case of Ravenscraft v. Pratt, 22 Kas. 20, holds that a sale made by the widow of a deceased partner, who had been appointed administratrix of her husband’s estate, to the surviving partner, of all the deceased partner’s interest in the partnership, consisting of tanning and the hide and leather business, was illegal and void. In this case the deceased partner left a widow and four children. In the case of Specht v. Collins, decided by the supreme court of Texas, and reported in 16 S. W. Rep., 934, it is held that a contract by the husband to convey his deceased wife’s land, “as soon as administration is had upon said estate,” is void as against public policy, since the husband can neither bind the estate nor the course of administration. The record in this Texas case does not disclose whether there were other heirs, or whether there were debts against the estate of the deceased wife.
In the Ravenscraft case the widow was administratrix, and the deceased partner left other heirs. In the Texas case, the surviving husband was the sole heir, but was not the administrator when he made the contract for sale. In this case, the deceased partner left a widow and minor heirs, but at the time this promise was made there was no administration. The cases cited go upon the theory that such a contract is against public policy, for the reasons that the statutes provide a tribunal whose duty it is to supervise the settlement of the estates of all deceased persons, and whose special duty it is to protect the interests of minor children and heirs. No contract can be made respecting the assets of a deceased person’s estate except by the authority and with the approval of the probate court, and only then to the extent authorized or permitted by the laws of the state. In the absence of administration, no heir can make a contract that will be binding. No stipulation could be entered into by the widow that would bind the minor heirs in any matter respecting the settlement of the estate or its property or its debts. The law fixes the manner of administration; it imposes certain restrictions upon the sale of the assets of an estate, and even when the sale is authorized by law, and ordered by the probate court, the sale and its terms and its methods are still subject to the approval of the court ordering it. No person interested in the estate can by contract, assent or silence create other methods of selling the assets of the estate than those prescribed by the law. To permit this in any one instance would withdraw all the safeguards and beneficent restrictions that the law imposes for the protection of the interests of minor and non-resident heirs. The widow could not make any contract that would bind the minor heirs; she could make no contract pledging the course of the administration of the law respecting the settlement of the estate of a deceased person. Public policy, the policy of the probate law, and the interests of minor children in the estates of their deceased parents, all forbid such contracts as the one made in this case. This particular contract was illegal, and the promise of Grubb, being a part and parcel of it, was illegal and void.
We recommend that the judgment be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered. ■
All the Justices concurring. | [
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Opinion by
Green, C.:
The Linn County Bank sued A. T. Hopkins upon three promissory notes, and at the same time caused an attachment to be levied upon the northeast quarter of the southeast quarter and the southwest quarter of the northeast quarter of section 21, in township 19, of range 24 east. A motion was made to discharge the attachment, on the ground that the 80 acres was exempt from forced sale for the reason that it was a homestead. The motion was sustained. The question, as stated by counsel for defendant in error, is whether all of the real estate attached at the instance of the plaintiff was exempt as the homestead of the defendant. The decision of that question settles the controversy in this case. The two tracts of land “cornered” upon each other, as will appear from the following diagram:
The defendant had occupied the tract marked “A” as a homestead, but his home had been burned. We think, however, the evidence upon the motion to discharge the attachment established the fact that he intended to rebuild it, and that this tract was clearly exempt. He had never resided upon the other subdivision. Does the constitution exempt two tracts of land as a homestead which corner? It has been settled by this court that a homestead must consist of only one tract of land. (Randal v. Elder, 12 Kas. 257, and authorities there cited.) The language of the constitution is, that “a homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, shall be exempt from forced sale.” etc. (Const, art. 15, § 9.) A homestead is defined to be a person’s dwelling place, with that part of his landed property which is about and contiguous to it. Contiguous means touching sides, adjoining, adjacent. Two tracts of land touching only at one point are not contiguous. In the case of Kresin v. Mau, 15 Minn. 119, it was said: “Two tracts of land mutually touching only at a common corner — a mere point — cannot, according to any ordinary or authorized use of language, be spoken of as constituting one body or tract of land.” The same construction has been placed upon acts of congress in relation to the entry of public lands. (1 Lester, Land Laws, Reg. and Dec., p. 360. See also Hill v. Bacon, 43 Ill. 477; Aldrich v. Thurston, 71 id. 324; Thomp., Homestead Ex., §§120, 145, 147.)
The order of the district judge discharging the attachment levied upon the southwest quarter of the northeast quarter of section 21, in township 19, of range 24, should be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 14th day of January, 1887, in the district court of Crawford county, B. F. Branham recovered a judgment against I. W. Moody for the sum of $243.32 and costs. The court adjourned the day that this judgment was rendered. On the 7th day of November, 1887, Moody filed his petition for a new trial, upon the ground of surprise which ordinary prudence could not have guarded against, and also for misconduct of the plaintiff below. A demurrer was filed to the petition, alleging that it did not state facts sufficient to constitute a cause of action. No ruling was made upon the demurrer, but the defendant withdrew the same and on September 14, 1888, with leave of the court, filed a motion to strike the petition from the files, upon the ground that it was not verified as required by law. Thereupon the plaintiff, with leave of the court, filed a new or amended verification. The motion to strike the petition from the files, as amended and verified, was sustained. The plaintiff below excepted and brings the case here.
The petition for the new trial seems to have been filed under §310 of the civil code. Said section reads as follows:
“ Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by peti tion, filed as in other cases, not later than the second term after discovery; on which a summons shall issue, be returnable and served, or publication made, as prescribed in § 74. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of 20 days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases ; but no such petition shall be filed more than one year after the final judgment was rendered.”
The causes for a new trial alleged in the petition were among those stated in § 306 of the civil code. No verification is required to a petition filed under the provisions of said § 310, and therefore the failure to verify the petition for a new trial was not sufficient ground to strike it from the files.
No brief has been filed upon the part of plaintiff below, and we have before us for consideration only the record filed and the brief of plaintiff in error.
The order and judgment of the district court will be reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
In 1868, the widow-Elizabeth A. Williams, and the widower Frederick P. Barlow, were married in Iowa, each having children by a former marriage, Elizabeth having four sons — David, Egbert, Charles, and Arthur. She at the time had considerable property, and with her children was drawing a pension of $16 per month. He had no property of any consequence. In 1869, he became nearly blind, and he continued so during the remainder of his life. They then agreed to come to Kansas and procure land, and that whatever property they might obtain should belong to her. In the early spring of 1870 they removed from Iowa to Kansas, and settled in Mitchell county, upon 160 acres of government land (the land now in controversy); and in April of that year a homestead entry thereof was made in the name of the husband, she furnishing all the money to pay all the costs and expenses. At the time of their removal she had $600 in cash, $310 in good promissory notes which were afterward paid, five horses, one wagon, and two sets of double harness; and she and the children were then drawing a pension of $14 per month. He had no property. Afterward improvements were made upon the land, and these were all made by her and her sons, they having come from Iowa to Kansas with Barlow and wife. His children remained in Iowa, and have never resided in Kansas, and are now the plaintiffs in this action. On March 13,1877, final proof was made regarding this homestead entry, and a proper receipt or certificate was given. The proof was also made and the receipt or certificate issued in the name of Barlow, Mrs. Barlow furnishing the money to pay all the costs and expenses. On March 14, 1877, Barlow delivered to her the certificate and told her again that the land was hers, and that he would execute a deed to her for it after the patent should be issued, and that they would build a house thereon and make other improvements thereon; that he wanted her' to furnish him a home on the land as long as he lived, and she said she would do it, and that she would furnish the money and labor to make the improvements. She continued to make improvements on the land up to the time of Barlow’s death, and afterward. On April 23, 1877, Barlow died intestate, and without having executed to Mrs. Barlow any deed for the land. She and her children were then drawing a pension of $12 per month. She continued to live upon the land and to make improvements thereon; and on September 1, 1885, more than eight years after Barlow’s death, his children and heirs brought this action for partition, claiming that they in the aggregate were entitled to one-half of the land. Mrs. Barlow has continuously resided upon the land ever since about April, 1870. She furnished all the money to procure the land and to make all the improvements thereon, and all this with the agreement and understanding between herself and her husband, before they left Iowa and afterward up to the time of his death, that the land should be hers; and the only question now presented is, whether upon all the facts of the case the land is hers or not.
We think this question must be answered in the affirmative. (Act relating to Trusts and Powers, § 8; Gen. Stat. of 1889, ¶ 7166; Newkirk v. Marshall, 35 Kas. 77; Franklin v. Colley, 10 id. 260; Edwards v. Fry, 9 id. 417; Twiss v. George, 33 Mich. 253; Littlefield v. Littlefield, 51 Wis. 23; Johnson v. Hubbell, 8 N. J. Eq. 332; Davison v. Davison, 10 id. 246; Rhodes v. Rhodes, 3 Sandf. Ch. 279.) Ever since the early spring of 1870, Mrs. Barlow has been in the actual possession of the property, with and in pursuance of the agreement and understanding between herself and husband that the property should be hers. All the money expended for the procurement of the property, and for putting improvements thereon, was hers; and although Mr. Barlow was the nominal head of the family, yet, because of his infirmities, she was the real and actual head thereof. The agreement between herself and husband was not to destroy their homestead interest in the property, or the homestead interest of either, or to deprive either of the occupancy thereof, but it was simply to transfer the title to the homestead from the nominal head to the real head of the family, and the husband was to remain on the homestead and occupy it as his home as long as he should live; and even with the title in his wife, she could not, under our homestead exemption laws, deprive him of his right to occupy it as his homestead as long as he should live.
In our opinion, all the equities in the case are in favor of Mrs. Barlow, and as the court below so held and gave her the property, its judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, and for rents and profits, brought in the district court of Shawnee county on October 27, 1884, by Harry Austin against Thomas Jones, Lizzie Jones, and Nathaniel Jones, to recover the west half of the northeast quarter of section 34, in township 12 south, of range 15 east, in said county. E. D. Jones was afterward, and on May 16,1885, made a party defendant. Afterward, and on July 20, 1885, a demurrer of the defendants to the reply of the plaintiff was sustained by the court, and on October 18, 1885, the plaintiff, as plaintiff in error, brought the case to this court for review, making the defendants below defendants in error; and on October 8,1887, the judgment of the district court was reversed, and the cause remanded for further proceedings. (Austin v. Jones, 37 Kas. 327, et seq.) The original petition was in form an ordinary-petition in ejectment, and for rents and profits. The answer of the defendants set up as a defense to the plaintiff’s action certain tax deeds; and the plaintiff’s reply is copied in full in the case of Austin v. Jones, supra. After the case was returned from the supreme court to the district court, and on October 27, 1888, the plaintiff produced and asked leave of the court to file a supplemental petition, which reads, omitting caption and signature, as follows:
“Comes now said plaintiff, and for his supplemental petition, leave of court being first had to file the same, shows: That since the commencement of this suit there has been filed and recorded in the office of the probate judge of Shawnee county, Kansas, a duly-authenticated copy of the last will and testament of Alonzo Child, deceased, executed and proved in the city and county of New York, in the state of New York, according to the laws of the state of New York, together with the probate thereof by and in the surrogate’s court in and for the county of New York, in the state of New York, with a duly-authenticated copy of proceedings of said surrogate’s court in relation thereto; and that by said will, probate and proceedings of said court, duly recorded as aforesaid, William Dean, sole executor of the last will and testament of Alonzo ■ Child, deceased, was authorized to sell and convey the land described in plaintiff’s petition; that since the commencement of this suit, and subsequent to the filing and recording of said last will and testament and the probate thereof and proceedings in relation thereto, as aforesaid, said William Dean, sole remaining executor under said will, and in pursuance of the power and trust therein vested in him, made, executed and delivered to Edwin A. Austin his deed of conveyance as such sole remaining executor of the lands described in the plains tiff’s petition, and since receiving said deed said Edwin A. Austin has made, executed and delivered to the plaintiff herein his deed of conveyance, conveying said lands to the said plaintiff; that prior to the commencement of this suit said Edwin A. Austin had made, executed and delivered his certain other deed of conveyance of said lands to this plaintiff for a valuable consideration, and prior to the execution and delivery of said first deed said Edwin A. Austin had contracted with said William Dean, as executor of the last will and testament of Alonzo Child, deceased, for the purchase of said lands, and had paid to said Dean as executor aforesaid the purchase-money and consideration therefor, and said William Dean as executor aforesaid had made, executed and delivered to said Edwin A. Austin his certain deed of conveyance therefor; that prior to the commencement of this suit, and prior to the execution and delivery of said first deed by Edwin A. Austin to this plaintiff, said Edwin A. Austin had for a valuable consideration received a deed of conveyance of said lands, made, executed and delivered by one Pearley A. Child to said Edwin A. Austin; that prior to the commencement of this suit, and prior to the execution and delivery of said deeds by Pearley A. Child and said William Dean as executor aforesaid, the title to said lands, so far as the same appears of record in the office of the register of deeds of Shawnee county, Kansas, in which said land is situate, appears to be in said Pearley A. Child, and that although there appeared of record a deed purporting to be made, executed and acknowledged by one Peabody A. Child to said Alonzo Child, said Edwin A. Austin nor this plaintiff had no knowledge or information prior to the commencement of this suit that said Pearley A. Child had conveyed said land by deed made, executed and delivered by .him prior to his said conveyance of the same to said Edwin A. Austin; that by reason of the record aforesaid, said , Edwin A. Austin and this plaintiff were induced by the advice of counsel to rely on said deed by Pearley A. Child to Edwin A. Austin as conveying the legal title to said premises, and neglected to cause said duly-authenticated copy of the last will and testament of Alonzo Child, deceased, and of the probate thereof to be recorded in the office of and on the journals of the probate court of Shawnee county, before the execution and delivery of said first deed from William Dean as executor aforesaid; that since the commencement of this suit, and at the last term of this court, this plaintiff has discovered for the first time that said Pearley A. Child had, prior to the execution and delivery of his said deed to Edwin A. Austin, made, executed and delivered his certain deed of conveyance of said land to said Alonzo Child, since deceased, and that the register of deeds in recording and indexing the record of said deed, erroneously recorded and indexed the same as having been made, executed and acknowledged by Peabody A. Child, thereby misleading said Edwin A. Austin and this plaintiff. Wherefore plaintiff prays that he may be permitted to set up and show the facts herein alleged in addi tion and in supplement to plaintiff’s petition, and that he have relief as prayed for in his original petition.”
This supplemental petition was duly verified by affidavit. The court overruled the motion for leave to file this supplemental petition, and refused to permit it to be filed. Afterward, and on November 19, 1888, a trial was had before the court and a jury, which resulted in a general verdict of the jury and a judgment for costs by the court in favor of the defendants and against the plaintiff; and the plaintiff again, as plaintiff in error, brings the case to this court for review.
The first question presented by counsel for consideration in this court is, whether the court below erred or not in overruling the plaintiff’s application for leave to file his supplemental petition. For the purposes of this question it is perhaps wholly unnecessary to state any of the facts which the evidence introduced on the trial tended to prove or disprove; and still we might say that the evidence introduced and ‘offered on the trial tended to prove among other things the following: On January 15, 1873, and prior thereto, the original patent title to the property in controversy was in Pearley A. Child. After that time, and prior to the commencement of this suit, he executed one deed for the property to Alonzo Child, the record of which deed, however, shows that it was executed by Peabody A. Child, and not by Pearley A. Child, and afterward and before the commencement of this suit Pearley A. Child executed another deed for the property to E. A. Austin. Prior to the execution of this last-mentioned deed Alonzo Child died; and after his death William Dean, the executor of his last will and testament, executed two deeds for the property to E. A. Austin, one before the commencement of this action and the other afterward; and E. A. Austin executed two deeds for the property to the plaintiff, Harry Austin, one before the commencement of this action and the other afterward. Prior to the commencement of this action certain proceedings were had in the surrogate’s court of the county and state of New York relating to the last will and testament of Alonzo Child, deceased, and to his executors; and since the commencement of this suit certain other proceedings were had in the probate court of Shawnee county in this state relating to the same matters. The foregoing relates to the plaintiff’s title. The defendant’s title is founded upon certain tax deeds which, for the purposes of the question now under consderation, if not for the purposes of the entire case, must be considered as absolutely void. The defendants, however, have the actual possession of the property, which is some evidence of title, and casts the burden of proving a better title upon the plaintiff. Section 144 of the civil code provides as follows:
“Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.”
This court has repeatedly and uniformly held that supplemental pleadings may be filed, within the provisions of the foregoing section. (Porter v. Wells, 6 Kas. 453; Clark v. Spencer, 14 id. 398; Simpson v. Voss, 31 id. 227; Williams v. Moorehead, 33 id. 609; Dreilling v. National Bank, 43 id. 197.) See especially the case of Williams v. Moorehead. It would seem that the principal objections urged against this supplemental petition are, that the plaintiff asked leave to file it “ precisely four years after the commencement of the action; ” and that it constituted a departure from his original case, and an attempt to set forth a cause of action which he did not have at the beginning of the suit. We do not think that these objections are sufficient. As long as the suit continues undisposed of, the parties have the right under § 144 of the civil code to file supplemental pleadings, provided, of course, that they can bring themselves within the provisions of such section, even if it should be four or more years after the commencement of the action before they ask to file their supplemental pleading. Besides, the plaintiff in this case did not attempt by his supplemental petition to set up a new or independent cause of action, but simply attempted to set forth facts which took place subsequently to the commencement of his action, for the purpose of perfecting or making better his original cause of action. The principal facts and nearly all the facts upon which the plaintiff seeks to recover took place prior to the commencement of the action, and the facts taking place afterward were intended to be used only in connection with those which took place prior thereto. It is possible under the facts of this case that the plaintiff should have recovered independent of his supplemental petition, for it does not require much of a title or estate to enable a party to recover as against a party having no title or estate except possession; but for the purposes of this case it is unnecessary to go into a consideration of this matter, for upon any theory the judgment of the court below must be reversed and the cause remanded for a new trial. Suppose that in any case the entire facts existing at the time of and before the trial would authorize the plaintiff to recover, provided they were properly pleaded and proved; but suppose that some of them, not sufficient to authorize a recovery, took place prior to the commencement of the action, and the others, also not sufficient to authorize a recovery, took place afterward: must the plaintiff be precluded from setting forth the subsequent facts in a supplemental petition, and be thereby defeated in the action? We think not, and we decide this case upon this theory.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
John C. Collins was the probate judge of Miami county for a term commencing on the 12th day of January, 1885, was reelected, and was in office at the time of this trial, at the February term, 1889, of the district court of said county. On the 3d day of January, 1889, he presented to the board of county commissioners of that county a claim, duly verified, for his salary as probate judge for the quarters ending September 30 and December 31, 1887, and March 1, 1888, amounting to $195, being $67.50 for the two first quarters, and $60 for the third quarter, under § 2, chapter 165, Laws of 1887, now a part of ¶ 2524, General Statutes of 1889, reading as follows:
“The probate judge shall receive no fees for his services under this act, except a salary of $15 per annum for each one thousand inhabitants in such county, the number to be determined by the last annual census return of such county, but in no case shall such salary exceed the sum of $1,000 per annum, to be paid by the county commissioners as other salaries.”
The population of Miami county in tlie years 1887, 1888, was 16,249, as shown by the census returns of these years, and these facts were admitted. The board of county commissioners rejected the claim, and Collins appealed to the district court, and a judgment for the full amount was recovered. The case is brought here for review, and the questions presented and discussed are, that the probate judge is not entitled to compensation unless he has actually performed service by granting permits or doing some of the other things required by the statute, and that the legislature has no power, under section 8, article 3, of the constitution, to provide a salary for the probate judge.
Neither of these contentions is supported by reason or authority. The salary granted the probate judge by virtue of ¶ 2524, General Statutes of 1889, is not dependent upon the amount of services rendered. The terms of the statute are absolute and unconditional; his office is open, and he is in attendance day by day to discharge the additional duties imposed upon him by the act of the legislature. If the conditions are such that no labor is imposed upon him, this is no reason why we should disregard a plain command of the lawmaking power. Such a construction would involve the courts or the boards of county commissioners in prolonged investigations as to whether salaried officers of the state and county had performed all or any of the particular acts enumerated in the statute that are required of persons occupying these salaried positions. The county attorney is paid a salary, and it is not dependent on the fact as to whether the services that are imposed upon the office have been rendered in part or in whole. His compensation does not vary with the amount of service performed, but is fixed arbitrarily by that body that alone has the power to designate it. The object of this law was to pro vide an officer who would grant permits legally to druggists to sell intoxicating liquor for the purposes and under the conditions imposed, and we have no doubt but that such officer can better discharge his duty by non-action than by the performance of every act contemplated by the terms of the statute.
On the constitutional question it is only necessary to say that the language used in § 8 of article 3, according to the ordinary rules of construction, applies to only those things that are enumerated in the section. “ He shall hold court at such times, and receive for compensation such fees,” etc., is the language, and this refers to the probate jurisdiction granted by the same section. The legislature has the power under the constitution of casting upon the person who holds the office of probate judge the duty of issuing permits or licenses for the sale of liquors, as provided in chapter 128, Laws of 1881. (Intoxicating-Liquor Cases, 25 Kas. 751.) A probate judge may receive judicial powers other than those granted by the constitution to the probate court. (Young v. Ledrick, 14 Kas. 92.) If the legislature has the power to add to the duties of the office, it follows that it has power to provide for compensation for the performance of the additional duties, the constitutional provision only fixing compensation for the class of duties therein enumerated.
In any view that can be taken, we think the district court did right, and recommend an affirmance of the judgment.
By the Court: It is so ordered)
All the Justices concurring. | [
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The opinion of the court was delivered by
Wed-ell, J.:
This was an action to recover damages which it is alleged resulted from the salvaging of personal property on oil and gas leases pursuant to a bill of sale. The defendant filed an answer and cross petition. A money judgment was rendered in favor of the defendant and against the plaintiff, and plaintiff appeals.
The appeal is from the judgment and order overruling plaintiff’s motion for a new trial. Defendant was the administratrix of the estate of George Steinberger, deceased. The bill of sale was duly approved by the probate court. By the bill of sale defendant undertook to sell and transfer to plaintiff' — •
“All the following described personal property belonging to said estate as is more particularly set out in a list thereof attached hereto and marked exhibit A and made a part hereof.”
Exhibit A contained three principal headings, to wit: “tools,” “personal property,” and “pipe-line system.” Various items of personalty were specifically described under those principal headings. Following the specific description under the three principal headings mentioned, the bill of sale contained the further provision, to wit:
“Also all personal property and equipment now owned by the estate of George Steinberger, deceased, located on or used in connection with the following described leases.”
Under the separate description of each of the twenty-two leases there was, however, again contained a specific itemization of the personalty conveyed, except in the case of four leases. The total consideration for the purchase was $12,000, which was paid when the deal was consummated. No separate price or value was specified for any of the separate articles of personalty. Under the terms of the bill of sale its delivery constituted an acceptance and delivery of the personalty conveyed. Plaintiff was authorized to enter the lands and to remove the property at his own expense.
Plaintiff sought a new trial upon the grounds: (1) Erroneous rulings of the court; (2) that the findings are in part contrary to the evidence; (3) that the findings are in conflict and inconsistent with each other and cannot form the basis of a judgment herein.
It is necessary to notice first the theory upon which plaintiff grounded his action. He pleaded the bill of sale and made it a part of the petition. The petition alleged there wrere shortages of certain materials specifically described in the bill of sale and that there were other materials of lesser value than those specifically described. The petition disclosed plaintiff did not stand upon the bill of sale. It reveals plaintiff appropriated and sold whatever materials he found on the leases, irrespective of whether the articles ■were covered by the bill of sale. He sought to recover damages for the claimed shortages and offered to credit defendant with materials appropriated which he conceded were not covered by the bill of sale. The petition conceded plaintiff appropriated and sold footages of certain materials in excess of footages specifically designated.
We also need to note plaintiff's theory and contention touching items of property claimed under the general provision, to wit: “Located on or used in connection with the following leases.” As previously stated, items of personalty were also specifically described under that general provision as to eighteen of the twenty-two leases involved. Touching some of the eighteen leases plaintiff appropriated and sold some entirely different articles of personalty than those specifically described. Plaintiff claimed he was entitled to those articles under the general provision of the bill of sale heretofore quoted. He pleaded and contended the total value of shortages exceeded by $2,222.54, the value of the materials he appropriated and sold which were not covered by the bill of sale.
It was defendant's theory plaintiff had personally inspected the pipe-line system and all property on the leases prior to sale and that plaintiff had purchased the property as a unit for $12,000. Defendant, however, further- pleaded and contended in substance that if the court should adopt plaintiff’s theory that then and in that event defendant should be held liable for shortages under the bill of sale and plaintiff should be held liable for the value of property appropriated in excess of the property specifically described in the bill of sale.
In view of the record we need not determine whether the action was tried entirely upon the correct theory. The trial court appears to have tried the action, as nearly as possible, upon plaintiff’s own theory. In other words, the trial court charged defendant with shortages on items specifically described, and credited defendant with the value of materials taken by plaintiff which were not specifically described. Some of the last mentioned articles appropriated by plaintiff were of an entirely different character than those specifically designated following the description of the leases. The court determined the value of the materials in accordance with their market value on the leases and before severance from the leasehold estate, as contemplated by the bill of sale.
The basis, adopted by the trial court, for the determination of the value of the materials, constitutes the first ground of the motion for a new trial. Plaintiff insists the measure of damages was the market value of the materials after they had been made ready or available for sale on the leases and not the market value at the time of sale by defendant to plaintiff. With that contention we cannot agree. The personalty was sold in its then existing condition, that is, as a part of and connected with the leasehold estates. Plaintiff, under the terms of the sale, was obliged to disconnect and dismantle the various articles of personalty located on the leases at his own expense. This he was obliged to do in order to obtain possession of the articles of equipment he had purchased. On the other hand, if in that necessary salvaging process defendant incidentally benefited by getting the property she had not sold into a condition in which it would sell for a better price, plaintiff cannot be heard to complain.
Before we consider grounds two and three of the motion for a new trial, it is well to remember that where a party induces a trial court to try an action, or any part thereof, upon his own theory, he is not in a position to complain on review that such theory was erroneous. (Keefe v. Kill, 135 Kan. 14, 9 P. 2d 640; Gelphman v. Gelphman, 142 Kan. 582, 50 P. 2d 933; Meyer Sanitary Milk Co. v. Casualty Reciprocal Exchange, 145 Kan. 501, 66 P. 2d 619.)
Touching the second ground of the motion for a new trial, it will be observed it was only claimed the findings were “in part,” contrary to the evidence. There was no. motion to set aside any particular finding or findings on the ground they were contrary to the evidence. We are therefore not advised what particular finding or findings were challenged. Before this court is justified in reversing a trial court upon the ground of such alleged error the record should disclose the particular error was called to the attention of the trial court.
This brings us to the third ground of the motion for a new trial. That ground has been stated previously. The principal contention made before this court does not follow the substance of the motion as made. The emphasis before us is rather that the findings are not in harmony with the evidence. The contention pertains to such subjects as footages of material, grades or kinds of material, whether some of the material on the lease was the same as that specifically described in the bill of sale, and to market value. On review we are not concerned with evidence which, if believed, would support a contrary finding, but only with evidence which supports, or tends to support, the findings made. (Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.) In view of the record before us we cannot say the trial court erred in overruling the motion for a new trial. It follows the judgment must be affirmed. It is so ordered. | [
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Per Curiam:
Petitioners’ application for a writ of habeas corpus ordered filed without deposit for costs.
Petitioners’ application to appoint counsel to represent them denied.
Petitioners’ application for writ of habeas corpus read, considered and denied on the ground that the matters of which they complain, if given the largest credence, could only have been brought before this court on appeal from the judgment and sentence imposed on their pleas of guilty in the district court of Jefferson county on November 30, 1937, as shown by the record appended to their application herein.
Application for the writ is denied and dismissed. | [
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The opinion .of the court was delivered by
Thiele, J.;
This was an action to recover for damages alleged to have been sustained by reason of defendants’ negligence. The trial court treated defendants’ motion to strike various allegations of the petition as though it were a demurrer and sustained it, and plaintiff appeals. He does not contend there was error in the method of treatment, but only that the result was erroneous.
The petition alleged that the defendants, as partners, conducted a sales yard in Hutchinson, handling all kinds of livestock; that the sales yard consisted of a central ring about sixty feet in diameter which was enclosed by a fence consisting partly of boards and partly of woven wire and that seats were arranged outside of the fence; on December 9,1938, plaintiff attended an auction sale of horses and secured a seat outside of the fence; there was a large attendance at the sale consisting of several thousand people, and defendants had permitted 150 to 200 people to come inside the fence and to stand 15 to 20 deep in places around the sales ring and inside the fence, and plaintiff, who attended for the purpose of bidding upon horses offered was unable to see and hear and was forced to leave his seat and to enter the enclosure in order to see the horses offered, hear the auctioneer and make himself heard as a bidder; that after he had entered the enclosure, one of defendants’ helpers led a colt or young horse into the ring, it had not been halter-broke and was unused to crowds and attendant noise, and it became frightened and reared upon its hind legs and lunged into the crowd; the crowd gave way and jumped aside; but plaintiff on account of the confusion and numbers present was unable to get entirely out of the way and the wild horse came down and struck his foot. We omit all reference to injuries alleged to have been sustained. Plaintiff further alleged that his injuries were wholly and proximately the result of the negligence of the defendants: 1, in permitting their employee to lead a wild unbroken young horse into the center of the ring, where there were a great many customers who were in a position to be injured in case the animal became frightened and bolted; 2, in not warning plaintiff and others prior to the time the horse was led into the ring, so they might take precautions for their safety; 3, in permitting the unbroken and wild young horse to be led into the ring with only one attendant holding and leading it and with nothing but a rope halter to control it; and 4, in permitting an employee to lead a young horse into the sales ring which had not been halter-broke, under the circumstances described, when the defendants knew or'should have known from their long experience in handling horses, that a young unbroken animal, in the presence of a crowd would be likely to become frightened and to rear and lunge about and injure one of the customers who was there for the purpose of bidding at the sale.
The first question for consideration is whether the petition charges actionable negligence on the part of the defendants. It is to be noted that that portion of the petition describing the manner in which plaintiff was injured, the animal was described as “a colt or young horse” which “had not been halter-broken” and as a “wild horse” and in that portion charging negligence it is referred to as “a wild unbroken young horse,” and “unbroken young horse,” and “unbroken and wild young horse,” “a young horse” and a “young unbroken animal,” but in no place is it alleged that defendants had any knowledge that it was wild or vicious in any degree. The general rule is that the owner of a domestic animal not naturally vicious is not liable for injury done by it when it is in a place where it has a right to be, unless it is, to his knowledge, vicious. (See 2 Am. Jur., p. 728; 3 C. J. S., p. 1248; Looney v. Bingham Dairy, 70 Utah 398, 260 Pac. 855; Splaine v. Eastern Dog Club, 306 Mass. 381, 28 N. E. 2d 450, 129 A. L. R. 427, and the annotated note to the last citation.) And the rule is old. (See Exodus 21:28, 29.) A strict application of that rule would of itself justify the ruling of the trial court. In Bertram v. Burton, 129 Kan. 31, 281 Pac. 892, where a bull which was being driven along a public highway, broke into a fenced feed yard and caused injury to stock therein, it was said:
“The owner of a domestic animal is bound to take notice of the general propensities and characteristics of the class to which it belongs and must anticipate and guard against them if of a nature to cause injury, for he necessarily knows that some act causing injury will be committed if opportunity therefor is afforded.” (p. 34.)
The quotation above is based on statements found in 3 C. J. 89. Reference to the cases cited in support of the text deal with the natural propensities of animals which are not vicious and not with the habits of vicious animals.
Insofar as the petition before us is concerned, there is no allegation the defendants owned the horse; the inference is to the contrary. There is no direct allegation the animal was not broken to lead with a halter, or that it was any different in character from any other young horse, or if so that the defendants knew thereof. If the adjectives used to describe the horse are sufficient to charge it was a vicious animal, there is no allegation the defendants knew of the viciousness. If we disregard those adjectives as charging viciousness and consider them only in the sense that it was meant to charge that rearing and plunging is a natural propensity of a colt or young horse, then we have to consider whether the manner of handling it was negligent. As stated in 3 C. J. S. 1253, the rule is that to avoid being negligent, the owner of the animal must use that degree of care to restrain that an ordinarily prudent person would have used.
The petition charges that defendants caused the unbroken young horse to be led into the sales ring without warning the plaintiff so lie could take precautions for his own safety, the horse being led in with nothing but a rope halter to control it. It must be remembered that this was an auction sale, where the usual practice is to lead a single animal in for exhibition to prospective purchasers, put up for sale and sold, to be followed by another animal where the same procedure is again followed. How would ordinarily prudent persons have done the same acts? Was the manner -and method followed negligent? We think not. Every person who ever handled horses, even those having vicious traits, knows that the usual and ordinary method of leading and controlling horses is by the use of a halter and lead strap. Halters are sometimes made of leather straps, sometimes of rope, but both kinds serve the same purpose. There is no allegation there was anything wrong with the halter used or that it was defective in any way.
The allegation concerning failure to warn has a double aspect. If it was meant to charge that it was negligent to lead any horse, gentle or otherwise, into the sales ring without giving warning, it may be said that such is not the ordinary method of conducting a public sale. If it was meant to charge there should have been warning because the horse was vicious, then we are confronted with the fact there is no allegation defendants had knowledge. We are of opinion the petition failed to allege facts showing that defendants were guilty of any negligence which caused the plaintiff’s injuries. It becomes unnecessary to discuss whether the plaintiff was guilty of contributory negligence or whether, by his own actions, he assumed the risk of being injured. We do note, however, that Slaughter v. Sweet & Piper Horse & Mule Co., (Mo. App.) 259 S. W. 131, relied on by appellant as showing defendants were negligent and he was not guilty of contributory negligence, does not sustain his contention. There mules were turned into a sales ring without halters or other means of control, and were driven about by men using whips. One mule did not move as quickly as one of the men desired and he commenced whipping and beating the mule, which became wildly excited and bolted through the crowd in the sales ring, injuring the plaintiff. The case is clearly distinguishable from the one before us.
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OPINION ON REHEARING
Per Curiam:
This is an original proceeding for a writ of habeas corpus which was filed in this court October 16,1940.
The petition was on that day considered, denied and dismissed. Shortly afterward petitioner filed a motion for rehearing and this motion was considered and denied by the court on November 16, 1940. Thereafter petitioner seems to have applied to the United States district court for the district of Kansas, and to have been denied relief in that court. Now he has returned to this court, and in a motion filed April 15,1941, urges that the original petition be reconsidered.
While this court is still convinced that it has no jurisdiction to give relief to petitioner under the facts appearing in this record, it has been decided that the court should briefly give its reasons for denying the petition for a writ of habeas corpus.
The record before the court shows that petitioner was convicted of possession of narcotics on May 23, 1930, in the district court of Sedgwick county; that he was sentenced to the Kansas state penitentiary on May 29, 1930 (the time of petitioner’s actual incarceration is not shown in the record); petitioner was paroled January 2, 1937, and on March 15, 1938, he was granted a conditional pardon by the governor. The conditional' pardon provided for the restoration of petitioner’s civil rights, but contained the following conditions :
“First. The said Frank Boaz, No. 1561, shall, during the remainder of the term of his original sentence, refrain from the use of intoxicating liquors as a beverage, and deleterious drugs or narcotics.
“Second. He shall not, during said time, carry any deadly weapon of any kind, excepting as a duly commissioner [edj officer in the performance of his duty as such, or by lawful permission.
“Third. He shall not, during said time, carry on his person, or otherwise, any gambling device, or any burglar’s implements or anything designed for the use of the commission of any crime.
“Fourth. He shall not, during said time, violate any of the criminal laws of this state or of the nation.
“Fifth. He shall, during said term, notify the governor of his whereabouts, his employment, his earnings, and his post-office address, on the first days of January, April, July and October of each year.
“Should the said Frank Boaz, No. 1561, violate any of these conditions he shall be liable to summary arrest upon the warrant of the governor of the state of Kansas, whose judgment and decision as to the sufficiency of the proof of the violation of these conditions shall be conclusive, and the said prisoner shall thereupon be remanded to the state penitentiary there to serve the remainder of the term of his original sentence, and this conditional pardon shall thereupon be null and void and be summarily revoked. Said paroled prisoner does, by the acceptance of this conditional pardon, accept nil the conditions herein expressed and agrees to abide by them.”
The conditional pardon was granted under G. S. 1935, 62-2216.
In the spring of 1939 a criminal charge was instituted against petitioner in the district court of Sedgwick county. On April 25, 1939, the governor revoked the petitioner’s conditional pardon and petitioner was returned to the penitentiary to serve out his original sentence. Thereafter on May 4, 1939, the criminal proceeding in Sedgwick county was dismissed without prejudice on motion of the state.
Petitioner argues that he was given no hearing at the time the conditional pardon was revoked, and that in fact he had never broken the conditions of his pardon. Be that as it may, this court has no jurisdiction to review the reasons which may have prompted the governor and the parole authorities to revoke this conditional pardon. See In re Patterson, 94 Kan. 439, 146 Pac. 1009; Bowers v. Wilson, 143 Kan. 732, 56 P. 2d 1212; State v. Frame, 150 Kan. 646, 95 P. 2d 278; Stephens v. Bertrand, 151 Kan. 270, 98 P. 2d 410.
In 20 R. C. L. 573, sec. 61, it is said:
“A condition in a pardon that the governor may summarily determine whether the conditions have been complied with, and if he finds that they have not, may revoke the pardon and order the reconfinement of the offender, is binding upon the convict, and authorizes his rearrest and commitment upon the terms and in the manner imposed. Such conditions are not illegal, immoral, or impossible to be performed, and to enforce them deprives the petitioner of no legal right. Upon its revocation the legal status of the petitioner must be regarded the same as it was before the pardon was granted. His summary return or remandment to servitude or imprisonment under the sentence is not violative of organic guaranties of jury trial, that no warrant shall be issued to seize any person without probable cause, supported by oath or affirmation, etc., for the person being dealt with is a convict, who has already been seized in a constitutional way, been confronted by his accusers and the witnesses against him, been tried by the jury of his peers secured to him by the constitution, and by them been convicted of crime, and been sentenced to punishment therefor. In respect of that crime and his attitude before the law after conviction of it, he is not a citizen, nor entitled to invoke the organic safeguards which hedge about the citizen’s liberty, but he is a felon, at large by the mere grace of the executive, and not entitled to be at large after he has breached the conditions upon which that grace was extended to him. The governor may order the convict to be so remanded without notice to him and without giving him an opportunity to be heard.”
Petitioner, in his brief, cites the case of In re Charles, 115 Kan. 323, 222 Pac. 606, in which certain ambiguous instruments under which prisoners had been released from the penitentiary in 1918 to join the United States army were construed to be commutations of the sentence involved and not to be conditional pardons. That case was decided under the statute as it existed prior to 1921, at which time the legislature adopted the present form of G. S. 1935, 62-2216. Moreover, there is nothing ambiguous about the conditional pardon concerned in this case which would bring it within the decision in the Charles case.
The petitions for rehearing and for a writ of habeas corpus should be and are hereby denied. | [
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The opinion of the court was delivered by
Harvey, J.:
This action was brought by resident taxpayers of a school district against the school district board of a consolidated school district to enjoin it from using a bus purchased and operated by money raised by taxation to transport pupils “to towns and cities a long distance from the territory comprising” the school district, alleging that such use was unauthorized by law. It was further alleged that the bus now in use was recently purchased at a cost of $2,000, and that it took the place of an older bus worn out in part by the taking of such unauthorized trips. Defendants’ demurrer to plaintiffs’ petition was overruled, and they have appealed.
Appellees move to dismiss the appeal for the reason that after their demurrer was overruled defendants filed an answer, to which plaintiffs filed a reply. On behalf of appellees it is argued that defendants thereby waived their right to appeal from the order overruling their demurrer. Our statute (G. S. 1935, 60-3302) makes “An order . . . that sustains or overrules a demurrer” an appealable order. As is true with all appealable orders, a party against whom it is made may waive his right to appeal by subsequent procedure in the action inconsistent with the position taken by him which resulted in the order from which he seeks to appeal, or which shows clearly that he concedes the correctness of the court’s position in the order made. Respecting the general rule that one who pleads over waives his right to appeal, there is an exception to this effect: If the contention is that the petition does not state facts sufficient to constitute a cause of action, or that it discloses the court does not have jurisdiction, the filing of the answer does not waive the right of appeal. (See Phillips on Code Pleading, § 306; Scovill v. Scovill, 144 Kan. 759, 763, 62 P. 2d 852, and authorities there cited.) These exceptions are for the reason that a judgment should not be entered upon a petition which does not state a cause of action; neither should a judgment be rendered in a case in which the court has no jurisdiction. When a party demurs to a pleading and the demurrer is overruled and he pleads over, whether he has waived his right to appeal may depend upon whether or not his plea over is contradictory to the position taken by him on his demurrer. (Scovill v. Scovill, supra.) Here the answer filed by defendants admitted they had used the bus for trips outside of the district aggregating 242 miles and had used 24 gallons of gas in making such trips, but contended such use was authorized. So, upon the principal point in controversy, the answer is a confession, in part at least, of the principal charge of the petition, and defendants seek to avoid the injunction by the contention they had the legal right to do so. It therefore raises the same legal question presented by the demurrer to the petition. The appeal, therefore, should not be dismissed.
The authority of the defendants to purchase and use the bus must be found in the statutes. (State, ex rel., v. Cruzan, 120 Kan. 316, 243 Pac. 329; State, ex rel., v. Bunton, 141 Kan. 103, 40 P. 2d 326.) Our pertinent statute reads:
“The district board of consolidated school districts shall provide for the comfortable transportation of the pupils of said district, who live two or more miles from the schoolhouse by the usually traveled road, in a safe and enclosed conveyance or conveyances,” or in lieu thereof make certain payments for transportation, “and shall establish such rules and regulations as may be necessary for carrying out the provisions of this section: Provided, That said district board may establish regular routes for the transportation of such pupils.” (G. S. 1935, 72-602.)
G. S. 1935, 72-603, makes a provision respecting pupils living in out-of-the-way places, and G. S. 1935, 72-604, provides for the transportation of pupils to another district where the school board has a contract with such other school district. But there is nothing in the petition or in the answer which makes either of these sections applicable.
Appellants discuss the doctrine of implied authority, citing Gilbert v. Craddock, 67 Kan. 346, 72 Pac. 869; Woodson v. School District, 127 Kan. 651, 274 Pac. 728; Foster v. Board of Education, 131 Kan. 160, 289 Pac. 959; Woelk v. Consolidated School District, 133 Kan. 346, 299 Pac. 648; and State Tax Comm. v. Board of Education, 146 Kan. 722, 73 P. 2d 49. We think these cases are not in point. There is nothing in the petition on which to base the doctrine of implied authority ruled upon in the cases cited.
Appellants argue, also, that plaintiffs have no standing to maintain the action. The point is not well taken. (G. S. 1935, 60-1121; Darby v. Otterman, 122 Kan. 603, 252 Pac. 903; Jackson v. Joint Consolidated School District, 123 Kan. 325, 328, 255 Pac. 87.)
There was no error in the trial court’s ruling. Its judgment is affirmed. | [
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